A federal judge has swatted down efforts by the Ducey administration to deny licenses to some deferred action recipients even after a federal appeals court ruled that such a move was illegal for others.
In a sometimes sharply worded ruling, Judge David Campbell pointed out that the 9th Circuit Court of Appeals told Arizona in no uncertain terms years ago that “dreamers” with certain Employment Authorization Documents are lawfully present in this country and cannot be denied licenses. Since then, the state has complied and those in the Deferred Action for Childhood Arrivals program have been licensed.
Yet state officials have refused to provide licenses to others in different deferred action programs to whom the federal government issued the exact same employment documents, like domestic violence victims. And that, said Campbell, is illegal.
“The federal government makes no distinction,” the judge wrote.
In his new ruling, Campbell also said the record shows the state has been playing litigation games, changing its policies in an attempt at first to justify denying licenses to dreamers and, when that didn’t work, to deny licenses to other deferred action recipients.
Gubernatorial press aide Daniel Scarpinato said the governor and the state Department of Transportation, who have been using taxpayer dollars to hire a private attorney to defend the policy, will be reviewing the ruling before deciding how to respond and whether to appeal.
But Nicolas Espiritu, an attorney with the National Immigration Law Center, said it is a clear — and crucial — victory for potentially 1,000 people who the state has been arguing should not get a license to drive.
“These individuals will be able to go into MVDs throughout the state and present the same documents as all other individuals who are just like them, who have a document that proves their identity and proves their authorization to be in the country, and they’ll be able to get a driver’s license,” he said.
The case is a spinoff of the original lawsuit filed against the state after then-Gov. Jan Brewer directed ADOT not to issue licenses to those who were part of the Deferred Action for Childhood Arrivals program enacted by the Obama administration. That program allows those who arrived in this country as children to remain without fear of deportation.
More significant for purposes of this lawsuit, they were granted Employment Authorization Documents allowing them to work here legally.
Attorneys for the state argued that DACA status is merely an administrative decision not to deport the dreamers. And they said DACA recipients do not meet the requirement of a 1996 state law which says licenses are available only to those whose presence in the country is “authorized by federal law.”
A federal appeals court quashed the state policy, ruling only the federal government can decide who is in this country legally. And with that the state began issuing licenses to DACA recipients.
One issue in that lawsuit was that the state was not being fair, as it had been providing licenses for years to those in other deferred action programs. These included domestic violence victims, those with pending visa applications, and those allowed to stay for humanitarian reasons.
So in its bid to justify denying licenses to the dreamers, the state stopped issuing licenses to those in these other groups.
The appellate court ruling on behalf of the dreamers did not help them, as they were not plaintiffs in the original lawsuit. So the National Immigration Law Center sued on their behalf.
In his new ruling, Campbell took notice of the changes in state policy.
He pointed out that Arizona had no problem in giving licenses to these other deferred action recipients, relying on those federally issued Employment Authorization Documents as proof of their legal presence. Only when it proved to be legally inconvenient, Campbell said, did ADOT change its mind.
“Given this history, the court concludes that ADOT’s policy changes have been made either because of Gov. Brewer’s disagreement with the federal government’s DACA program or in an effort to defend the resulting policy in court,” the judge wrote.
But this wasn’t the only bit of legal gamesmanship that Campbell found the state conducting.
Last year, attorneys for the state told Campbell there was no need for the lawsuit. They argued that ADOT has always allowed deferred action recipients like the individuals who sued to get licenses. All they had to do was present certain other documents.
The judge was not impressed.
“Again, it appears that ADOT changed its policy to bolster its defense in court,” Campbell wrote. And he brushed aside claims that it wasn’t really a change in policy but simply a clarification, pointing out that ADOT Director John Halikowski “testified that he did not know whether any employee other than himself was aware of such a policy.”
Campbell also took a swat at the attorneys for the state for trying to convince him that he should limit his ruling to affect only a handful of individuals with EADs, saying that not all deferred action programs are created equal.
“Defendants do not identify any actual distinctions between the various programs or the harms suffered by members of the programs” in being denied a license to drive. In fact, the judge said the only distinction among various deferred actions programs “is the one defendants created by altering their policies after plaintiffs initiative this suit.”