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Immigration Battle Begins in Arizona

As an immigration attorney in Austin, I am constantly asked about how federal law can conflict with state law. Because the legal system is a dynamic and constantly evolving system, there are always federal or state statutes that are undergoing legal challenges. One of the most notable examples of this is the immigration battle occurring in Arizona. The governor of Arizona, Jan Brewer, has signed an executive order specifically prohibiting enrollees in the Deferred Action for Childhood Arrivals program from receiving driver’s licenses or state benefits. This action has been challenged by the Arizona Dream Act Coalition, an immigrant youth led organization.

President Obama initiated the Deferred Action for Childhood Arrivals policy in June 2012. This policy allows undocumented immigrants who entered the country before age 16 to remain in the country for two more years if they apply to the US Citizenship and Immigration Services division of the Department of Homeland Security and are approved. Candidates must be under the age of 31, and have documentation that they have continuously lived in the U.S. since June 15, 2007. They must be in school, graduated from high school, possess a GED or have honorably completed a term of service in the U.S. military. They must also have no felony convictions, a “serious” misdemeanor, or three or more misdemeanor convictions.

The response to the DACA initiative has been enormous. With almost 300,000 applications submitted, DHS has approved almost 290,000 applicants. Although a large portion of the undocumented immigrant population has signed up, there are still 1.5 million who may be eligible for this deferment and have not yet applied.

The added benefit of enrolling in this program is gaining legal status. The federal government confers upon successful applicants its permission to remain in the country and work legally. Although this does not necessarily mean that these immigrants are automatically granted the right to obtain driver’s licenses, enroll in federal student loan programs or receive state benefits, immigrants may be allowed to do so if their state law permits.

This is the heart of the immigration conflict in Arizona. Governor Brewer issued Executive Order 2012-06 on August 15 2012, after the DACA policy was implemented. This law has been challenged by a lawsuit filed by the ACLU, Mexican American Legal Defense and Educational Fund and the National Immigration Law Center. This lawsuit alleges that Arizona’s policy is a violation of the U.S. Constitution’s supremacy clause which prohibits discrimination against some non-citizens.

Many immigrant groups have criticized Arizona’s and other states’ similar driving prohibition, which limits the work opportunities for many young immigrants. This challenge in Arizona could have far-reaching implications for the DACA program and immigrant communities across the country. Texas, Michigan, Nebraska and Mississippi have similar policies. Arizona has long been a center for anti-immigrant policies, including SB 1070 which required immigrants to carry documentation permitting their residency within the country.

Brewer’s latest order modifies Arizona’s traditional policy of issuing driver’s licenses to immigrants with work permits, like the ones issued by DACA. Although licenses are still being issued to some documented aliens with work permits, those enrolled in the DACA program are being disallowed.
Until this is resolved through federal legislation or a court decision, most DACA enrollees may possess work permits but be denied the right to drive legally in some states.

As an attorney practicing immigration law, I can provide advice to you if you have questions concerning the Deferred Action for Childhood Arrivals programs or other pending legal matters. Please contact me at (512) 215-5225 to set up a consultation.

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