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Immigration Law

USA to CA9: Let DREAMers Drive - (links updated)

Howard Fischer, Capitol Media Services, Aug. 28, 2015

"The Obama administration late Friday urged federal judges to spurn efforts by Arizona to once again deny licenses to drive to “Dreamers.”

Assistant Attorney General Lindsey Powell said federal law allows the Department of Homeland Security to decide who can remain in the United States. That includes issuing Employment Authorization Documents empowering those people to work in this country legally.

What Arizona is doing, she told the judges of the 9th U.S. Circuit Court of Appeals, is deciding that only the holders of some EADs meet the requirements of a 1996 Arizona law that allows licenses to be issued solely to those whose presence in this country is “authorized by federal law.” Specifically, the Department of Transportation is saying that EADs issued to those under the Deferred Action for Childhood Arrivals do not qualify.

“Federal law draws no such distinctions,” Powell wrote. “The Arizona policy thus is based on an impermissible second-guessing of federal enforcement of the immigration laws.”

The position of the Obama administration could prove pivotal in how the court rules.

Technically the lawsuit involves a group of dreamers who sued the state after ADOT, at the behest of Jan Brewer when she was governor, decided they don’t meet the terms of the federal law.

But the judges specifically asked the Department of Justice to weigh in on that argument. And that indicates they likely will give significant weight to how the federal government views DACA.

Powell made it clear that even though DACA was not specifically approved by Congress, the administration sees it as an extension of its powers under federal immigration law.

.“DACA is a valid exercise of the (Homeland Security) secretary’s broad authority and discretion to set policies for enforcing the immigration laws,” she told the court in Friday’s filing. She said that includes providing deferred action status and work authorization to certain migrants “who, in light of real-world resource constraints and weighty humanitarian concerns, warrant deferral rather than removal.”

Those “resource constraints” refer to the administration’s contention that the time and energy of its staffers is better spent looking for and deporting those who violate criminal laws rather than a broad sweep of anyone not legally present.

Hanging in the balance are the licenses that have been issued to more than 12,000 Arizona residents since a federal judge first ruled the state’s denial to be illegal.

Far more could be affected: A new report issued Friday by U.S. Citizenship and Immigration Services shows that close to 25,000 Arizonans have applied. And more than 14,000 have been in the program long enough to have renewed after two years."