Alan Salinas, 23, is one of nearly 19,000 young undocumented immigrants in Arizona who have been granted permission to stay in the U.S. through President Barack Obama‚??s deferred-action program. Gov. Jan Brewer, however, has refused to let them get driver‚??s licenses, saying they are still not authorized to be here. / Nick Oza, The Arizona Republic
PHOENIX -- Gov. Jan Brewer made sure that undocumented immigrants who are allowed to stay in the country through President Barack Obama's deferred-action program can't get driver's licenses in Arizona.
But The Arizona Republic found that undocumented immigrants whom the government is actively trying to deport have been able to obtain Arizona driver's licenses in the 20 months since Brewer's executive order. That number could potentially be in the thousands.
The upshot is that for undocumented immigrants in Arizona, getting a driver's license is possible when the government is actively trying to deport you, but impossible if you receive permission to stay through Obama's program.
Alan Salinas has experienced that paradox firsthand.
In 2010, Salinas was able to get an Arizona driver's license while the government was trying to deport him for being in the country illegally.
Then last month, Salinas was approved for Obama's deferred-action program, which allows young immigrants who were brought to the U.S. illegally as children to stay temporarily in the U.S. and get work permits without the threat of deportation.
But now Salinas, whose initial, short-term license expired, cannot get a new one.
"Yeah, it's ironic. It doesn't make any sense," said Salinas, 23, who was brought to the U.S. from Mexico by his parents when he was 14 and graduated from high school in Avondale in 2008.
His experience underscores the essence of a legal challenge against Brewer's policy.
Brewer has argued that undocumented immigrants approved for Obama's program have no legal authority to be in the U.S. and therefore are not eligible for driver's licenses under state law.
State law requires people to show that their presence in the U.S. is authorized by the federal government in order to get a driver's license. But Brewer asserts the "dreamers" don't have legal authority - even though they receive work permits - because she contends the deferred-action program Obama authorized in June 2012 improperly bypassed Congress.
"Governor Brewer has made it clear this issue has never been about the Dreamers," her spokesman, Andrew Wilder, said in an email. "The governor's focus is on upholding Arizona law - and Arizona law mandates that ADOT not issue licenses unless an individual can demonstrate authorized presence under federal law. The federal executive's unilateral decision to not enforce federal law does not constitute authorized presence under federal law."
But civil rights groups challenging Brewer's policy in federal court contend that undocumented immigrants who receive deferred-action work permits have just as much legal authority to be in the U.S. as other undocumented immigrants who are granted work permits to support themselves while they contest their deportations. Denying driver's licenses to one group while giving them to another violates the equal protection clause of the Constitution, they say.
"That just defies common sense. It's not an explanation. It's an excuse," said Orion Danjuma, a lawyer with the American Civil Liberties Union's Immigrant Rights Project, one of several organizations that jointly filed a lawsuit challenging Brewer's policy.
"In reality, Governor Brewer disagrees with President Obama and doesn't think (deferred-action) grantees should be allowed to be in the country, and when the governor targets Dreamers over that disagreement she is violating the Constitution and the right to equal protection," Danjuma said.
Nebraska is the only other state that denies driver's licenses to undocumented immigrants approved for Deferred Action for Childhood Arrivals. Nebraska's policy is being challenged in court.
Obama's program allows undocumented immigrants to apply to stay in the U.S. for up to two years without the threat of deportation and receive work permits as long as they are under age 31, were brought to the U.S. before they turned 16, graduated from high school, or are in school and have no serious criminal violations. The program targets undocumented immigrants who have no clear way to legalize their status, but it does not confer any kind of legal status or access to public benefits.
Through the end of 2013, nearly 19,000 undocumented immigrants in Arizona had been approved for Obama's program.
In May 2013, U.S. District Court Judge David G. Campbell found merit in the ACLU's argument that Brewer's policy conflicted with equal-protection rights under the Constitution. However, he denied a request for an injunction that would put the policy on hold. Brewer responded in September by expanding the ban to include all undocumented immigrants who receive deferred action for deportationthrough other programs, not just those approved for Obama's program.
The ACLU appealed Campbell's ruling on the injunction. The 9th U.S. Circuit Court of Appeals is expected to decide any day now whether to issue an injunction on Brewer's ban.
Others get licenses
Arizona has for years given licenses to undocumented immigrants with work permits. Data obtained by The Republic from ADOT through a public-records request shows the practice has continued since Brewer's executive order.
Wilder did not answer questions about whether Brewer believes those in deportation hearings with work permits have legal presence that meets the state law to get licenses from the Arizona Department of Transportation.
Most states issue driver's licenses to undocumented immigrants with work permits while their deportation cases are pending. The work permits are issued to certain undocumented immigrants in deportation proceedings who can show they have a legal basis to contest their removal. Only those who have been released from custody on bond or recognizance are eligible. The work permits allow them to support themselves until their cases are resolved.
Many are applying to have their deportation canceled because they have lived in the U.S. for more than 10 years, have no criminal record and believe their deportation would cause extreme hardship to a U.S. citizen child or other close relative.
The Republic found that since Brewer's order,the state has issued more than 10,000 driver's licenses or identification cards to immigrants with work permits. But it is hard to say how many of them were undocumented immigrants in removal proceedings because the data released to The Republic often lacked the specific code indicating the reason the work permit was issued.
The state was supposed to track the codes more closely since Brewer's order.
The Republic found the state issued more than 120 driver's licenses or ID cards to immigrants with work permits with codes indicating they were contesting their deportations. The actual number of driver's licenses issued during that period to undocumented immigrants was likely much higher.
ADOT declined to answer questions about the practice or provide any clarifying information about the data. "Because this is a case in active litigation, we cannot respond or provide an interview," spokesman Tim Tait said in an e-mail.
The federal government issued a total of 22,318 work permits to immigrants in Arizona in fiscal year 2012 and 40,249 in 2013, according to US Citizenship and Immigration Services. The agency could not immediately say how many work permits were issued to immigrants in removal proceedings.
Several immigration lawyers who handle deportation cases, however, said a significant number of work permits, likely several thousand, issued each year are to undocumented immigrants in deportation proceedings who have applied for cancellation of removal.
"I would feel comfortable saying that at least half" of the driver's licenses issued to immigrants with work permits "are cancellation of removal" cases, said Jose Pe√Īalosa, a Phoenix immigration lawyer.
Former Senate President Russell Pearce, the author of Arizona's immigration-enforcement bill, said he believes Brewer's driver's-license ban should be expanded to include undocumented immigrants with work permits.
"You can't issue these legal documents to people who are illegally here," said Pearce, who was director of the state Department of Motor Vehicles in the late 1990s.
Expanding the ban, however, would likely create additional legal challenges for Arizona, said Tanya Broder, senior attorney at the National Immigration Law Center, one of the groups that filed a legal challenge against Brewer's ban.
A survey conducted by the center found that at least 38 states accept work permits as proof of lawful or authorized presence for the purposes of issuing driver's licenses. Additionally, two states, New Mexico and Washington, do not require immigrants to prove legal presence to get driver's licenses, including those in the country illegally.
"Why would a state want to deny access to a driver's license to people who live and work in their state?" Broder said. "Why not ensure they are tested, trained, licensed and insured? I don't see how it helps the state of Arizona to deny driver's licenses to people who are living and working in the state."
Can work, not drive
Edson Ayala, a 17-year-old junior at North High School in Phoenix, received deferred action in December 2013 but can't get a license. Ayala was brought to the country illegally in 2000, when he was 3.
His mother won't let him drive to school without a license. On days when his mother works a double shift, he waits at the school gate for the final bell and then rushes to catch an earlier bus and then the light rail to meet his 12-year-old sister and 9-year-old brother when they get home from school.
With his work permit, Ayala wants to get a job to earn money and help his family. But not having a license has limited his job search to businesses near North High School. Jobs farther away would require traveling by bus, which would take too long and limit the number of hours he could work, he said.
"You are forced to look for something on that main street your school is on," Ayala said.
Ayala said giving dreamers licenses would help not only him, but also the state because the 19,000 dreamers could contribute to the economy.
The practice of giving licenses to those in deportation proceedings and not people the government has said can stay seems backward to him.
"It makes no sense at all," he said.
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Read the original story: 'Dreamers' see double standard in Ariz. license ban