Texas Immigration Lawyer Blog

BREAKING: Administration Confirms DACA Recipients Are “Lawfully Present”

Immigration Impact

In updated guidance released this afternoon by U.S. Citizenship and Immigration Services, the Obama Administration confirmed that recipients of deferred action are authorized to be in the United States and therefore considered to be “lawfully present” under federal immigration laws. The guidance should clarify the debate over whether beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program are eligible for driver’s licenses. Acting under the belief that DACA recipients are not “lawfully present” under federal law, four states—Arizona, Iowa, Michigan, and Nebraska—have refused to issue driver’s licenses to DACA recipients.

Separately, the administration also released updated statistics on the DACA program. Through Thursday, USCIS had received 407,899 requests for deferred action (an average of 80,000 per month since the program began), of which 394,533 had been accepted and 154,404 approved. USCIS received an average of less than 1,500 requests per day in January, down from a high of more than 5,700 per day in October soon after the program began accepting applications. The majority of DACA recipients continue to hail from Mexico and reside in California.

 

Texas DPS implements new verification process for Driver's Licenses

From Helene N. Dang at Foster-Quan:

Texas DPS implemented a new verification process for all DPS offices effective October 8, 2012 and has also issued a new document guide.

 

DPS conducts verification of the applicant’s period of lawful presence through the DHS’s SAVE (Systematic Alien Verification for Entitlements) system.  So even if an applicant presents a document listed in the document guide, DPS still needs to seek verification through SAVE and DHS.

 

When applicants apply for their DL, the DPS customer service representative is supposed to explain the verification process to them.  DPS has 3 levels of verifications: First, they will check the SAVE system to see if the person’s “admitted to” date is still valid and will get a real-time response.  If they are not able to immediately verify in SAVE (say for example, someone whose H-1B status has expired but s/he has an extension pending), then DPS will do a 2^ndlevel check which could take 3-5 business days to receive a response back from USCIS.  Lastly, the 3^rd level check is for issues that cannot be resolved and would require a “manual” check where DPS must mail the documents to USCIS for verification and we do not know how long that will take.  Once verification is complete, DPS sends a letter to the applicant notifying them that verification is complete and for the applicant to return to the DPS office to complete the application process.  DPS must run a verification check for every DL application.  (In the meantime, if the applicant’s DL has expired, then s/he cannot drive.)

 

Those individuals who have already tried applying for their DL renewals were given the attached USCIS Fact Sheet (which is not entirely useful but at least you can see what DPS is giving to applicants). 

Texas DPS Guidance on Driver's Licenses for Deferred Action Status

From Texas DPS:

The U. S. Department of Homeland Security recently announced it 

is granting deferred action status to certain individuals who came 

to the United States as children. DPS has reviewed this federal 

measure, state statute and our current policies to determine how it 

relates to obtaining a Texas driver license, and we have concluded 

the following:

The “deferred action” status alone will not entitle anyone to a Texas 

driver license.

All applicants must continue to meet the criteria that the State of 

Texas requires in order to be eligible to receive a driver license.

All first time applicants for a Texas driver license must:

• Apply in person at a Texas driver license office.
• Present documents that verify your identity.
• Present documents that verify you are a U.S. citizen or have lawful presence. All information on each document must match. Additional documentation may be required to verify conflicting information, incomplete names, and date of birth.
• Present proof of Social Security Number. If you do not have a Social Security Number, you must complete a Social Security Affidavit form available at the driver license office.
• Present proof of your Texas residency.
• Present proof of Texas vehicle registration and liability insurance on all vehicles you own.
• Complete the application for driver license or identification card (PDF). You may type your information on the form, print it, and bring it with you to the office. If you don’t have a printer, the form is also available at the office.
• Consent to be photographed, fingerprinted, and provide your signature at the time of application.
• Pass the written, driving, and vision examinations. (Read more about foreign language examinations.)
• Pay the required fee with a credit card, cash, money order, or a non-temporary check.
• Provide a vehicle for the driving exam and present current liability insurance, Texas vehicle registration, and inspection for the vehicle.

Federal immigration documentation indicating approved “deferred 

action” status meets only one of the Department’s current criteria 

(lawful presence policy) to receive a driver license. However, they 

would then have to meet the various other requirements (i.e. identity, 

residency, SSN, and other requirements*) in order to be issued a driver 

license.

The expiration date of that driver license will be based on the length 

of lawful presence indicated in the federal immigration documents, and 

each license issued will indicate that it is a “limited-term license.”  

DPS is providing this information to the media and all others seeking 

information on this issue.

Driver's licenses still obtainable by "deferred action" participants in Texas

KVUE by MARK WIGGINS / KVUE News and photojournalist ERIN COKER

AUSTIN -- Governor Rick Perry says President Barack Obama's new immigration policy will not change anything in Texas. Deferred Action for Childhood Arrivals (DACA) allows some undocumented immigrants between the ages of 16 and 30 who came to the U.S. as children to live and work legally without fear of deportation.

In letter sent Monday and addressed to Texas Attorney General Greg Abbott, Perry expressed strong disagreement with the Obama Administration's policy. In it, Perry informed state agencies the program "does not undermine or change our state laws," calling it "a slap in the face to the rule of law."

Last week, Arizona Governor Jan Brewer pushed back against the policy, announcing the state will not offer driver's licenses to those who qualify. Perry's letter Monday led initially to confusion and speculation over whether Texas had similar intentions of actively resisting the federal initiative.

"We are aware that there's not much that we can do with deferred action in Texas," said University of Texas student and DREAM activist Adrian Reyna, who was brought to the U.S. at the age of 12 and has been waiting the results of citizenship petitions for more than 16 years. "We don't need the governor to remind us of that. We're reminded of that every day."

While strong in its denouncement of DACA, the governor's memo doesn't actively block any provisions. For example, those accepted under the program will be able to apply for a Texas driver's license using their new federal work permit.

"In Texas, we do allow persons with the authorization to work from the federal government to obtain a temporary driver's license," said Austin immigration attorney Paul Parsons. "When young people are given permission to work in our country, they ought to be allowed to drive to and from work and to get driver's licenses and car insurance."

The Texas Department of Public Safety released the following information Tuesday:

•  
  • Applicants who present federal immigration documentation indicating approved “deferred action” (I-797) meet the Department’s current lawful presence policy. If they are otherwise eligible (i.e. have met identity, residency, Social Security Number (SSN), and other requirements), they can be issued a driver license with an expiration date based on the length of lawful presence indicated in the federal immigration documents.
  • Someone who has been granted “deferred action” and presents an Employment Authorization Document (EAD or I-766) meets the Department’s current lawful presence and identification policy. If they are otherwise eligible (i.e. have met residency, SSN, and other requirements), they can be issued a driver license set to expire when the EAD expires.
  • Applicants must either provide their Social Security number or fill out an affidavit saying they don't have one prior to the issuance of a driver license.
  • http://www.txdps.state.tx.us/DriverLicense/LawfulStatusDLID.htm
  • http://www.txdps.state.tx.us/DriverLicense/ApplyforLicense.htm

According to the governor's office, if a state agency currently accepts federal work permits for benefit or service applications, they will continue to do so.

 

Perry: "Deferred Action" Doesn't Change Texas State Policies

Texas Tribune by Julian Aguilar

Gov. Rick Perry advised state agencies on Monday that despite the Obama administration’s “deferred action” policy allowing illegal immigrants a two-year reprieve from deportation and a renewable work permit, Texas' policies on persons in the country illegally remain unchanged.

Perry's rebuke of the president's plan, which he called a "slap in the face to the rule of law," comes a week after it took effect.

“To avoid any confusion on the impact of the Obama administration's actions, I am writing to ensure that all Texas agencies understand that Secretary Napolitano's guidelines confer absolutely no legal status whatsoever to any alien who qualifies for the federal "deferred action" designation,” Perry wrote Attorney General Greg Abbott in a letter dated August 16 and sent to state agencies Monday. “In fact, the secretary specifically closed her directive by explaining that [t]his memorandum confers no substantive right, immigration status or pathway to citizenship."

Last week, Arizona Gov. Jan Brewer issued an executive order denying benefits and driver’s licenses to illegal immigrants who apply for deferred action. In Texas, applicants for new driver’s licenses or state IDs must prove legal residency, and some applicants for renewals are also required to show legal status or citizenship. That won’t change under the new federal policy, Perry spokeswoman Catherine Frazier said.

In his letter, Perry wrote, “These guidelines do not change our obligations under federal and Texas law to determine a person’s eligibility for state and local public benefit. Federal law prohibits conferring such benefits to most unlawfully present aliens, absent a state law to the contrary.”

NOTE: Currently Texas issues driver's licenses to individuals on Deferred Action status who have Employment Authorization cards. 

Sore Loser, Jan Brewer, Continues Anti-Immigrant Crusade

Immigration Policy Center

Despite losing both the legal and public relations battles in the fight over SB 1070, Arizona’s Governor Jan Brewer was anxious to put Arizona back in the spotlight this week. Although she can’t prevent people from from requesting or receiving deferred action, she issued an executive order that attempts to prevent Arizona recipients of Deferred Action for Childhood Arrivals (DACA) from obtaining driver’s licenses in her state. The order, which also banned access to public benefits (something DACA recipients are ineligible for, anyway) has been characterized as mean-spirited and belligerent, but it is also just wrong on the facts.

Brewer claimed to have Arizona’s best interests at heart when she announced her decision to block beneficiaries of deferred action from getting a driver’s license or receiving public benefits. Otherwise, she claimed, the onslaught of new applicants for benefits and licenses would have “significant and lasting impacts on the Arizona budget, its health care system and additional public benefits that Arizona taxpayers fund.”

As with her defense of SB 1070, this hyperbole fuels a political position unsupported by facts. The burden Brewer fears doesn’t add up: Putting aside the fact that people with deferred action are not eligible for public benefits (like welfare or food stamps); Gov. Brewer is targeting 80,000 potential deferred action beneficiaries in a state with 6.5 million people. That’s 1.2% of the population. More importantly, these are 80,000 young people. They are not going to suddenly overwhelm the school system because many of them are already in it. And those who are out of high school might be persuaded by the Obama initiative to attend college, meaning that colleges would collect tuition they wouldn’t otherwise receive. Moreover, the deferred action beneficiaries belong to an age group (30 and under) that places few demands on the healthcare system, meaning that emergency rooms are not going to suddenly be overwhelmed by a flood of sick people clutching Employment Authorization Documents given to them by the Obama administration.

With respect to driver’s licenses, the ACLU of Arizona quickly noted that Brewer’s executive order may actually violate existing law and policy in the state. According to the legal provision cited in her executive order, applicants for drivers licenses need only establish that their “presence” in the United States is authorized. While recipients of deferred action may lack valid immigration status, the Arizona ACLU notes that these young people will have authorized presence under the immigration laws. What’s more, the list of acceptable documents on the website of Arizona’s Motor Vehicle Department includes Employment Authorization Documents and Social Security cards—both of which are available to recipients of deferred action. Thus, in the name of protesting federal immigration policy, Gov. Brewer may have contradicted the law of her own state.

While it has been widely acknowledged that issues like access to drivers licenses and instate tuition are likely to be different on a state by state basis, there is something both petulant and short-sighted in Brewer’s effort to make life even more difficult for young people eligible for deferred action. At a time when many in Arizona may have felt that they could start to put the worst of SB 1070 behind them, the governor has once again shown how relying on misguided facts lead not only to bad policy but bad publicity.

 

AZ Gov. Jan Brewer bars public benefits and driver's licenses for young people granted deferred action

Associated Press 

PHOENIX - Arizona Gov. Jan Brewer on Wednesday ordered state agencies to deny driver's licenses and other public benefits to young [undocumented] immigrants who obtain work authorizations under a new Obama administration policy.

In an executive order, Brewer said she was reaffirming the intent of current Arizona law denying taxpayer-funded public benefits and state identification to [undocumented] immigrants.

Young [undocumented] immigrants around the nation on Wednesday began the process of applying for federal work permits under the Obama administration's Deferred Action for Childhood Arrivals.

The federal policy defers deportations for that group if they meet certain criteria, including arrival in the United States before they turned 16 and no convictions for certain crimes.

* * *

Brewer's order said the policy's federal paperwork doesn't confer lawful status on [undocumented] immigrants and won't entitle them to Arizona public benefits.

However, it said the policy change ``could result in some unlawfully present aliens inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers who enacted laws expressly restricting access to taxpayer funded benefits and state identification.''

Brewer directed state agencies to start any necessary emergency rulemaking processes to implement her order.

 

 

Politics, Anti-Immigrant Bias Seen in New Texas Driver's License Requirement

Texas Tribune/KUT by Ben Philpott

A new law implemented in May requires individuals seeking a new driver's license to show proof that they've lived in Texas for at least the last 30 days. But as Ben Philpott of KUT News and the Tribune reports, some say the new protocol reflects an anti-immigrant bias among state lawmakers.

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New Mexico Governor Martinez fails to repeal driver's licenses for undocumented again

Immigration Impact 

Yesterday, the New Mexico Legislature ended its 2012 session, leaving intact the 2003 state law that allows driver’s licenses to be issued to individuals regardless of immigration status. This marks the third unsuccessful attempt by Republican Governor Susana Martinez to repeal the state’s driver’s license law. HB103, the bill backed by Martinez, passed the House earlier this month but failed to make it through the Senate. An alternative Senate bill, SB235, which would have tightened residency requirements but not repealed the 2003 law, passed the Senate. Governor Martinez, however, vowed to veto that Senate bill. New Mexico and Washington are the only states that issue driver’s licenses regardless of immigration status (Utah issues a driving certificate that can’t be used for identification).

Republican Governor Susana Martinez has repeatedly tried (and failed) to repeal the state’s nearly decade old driver’s license law. Last year, a state district judge halted on constitutional grounds Gov. Martinez’s costly campaign to “certify” the driver’s licenses of foreign nationals. A spokesman for Gov. Martinez claims the current law “leads to fraud, human trafficking, organized crime and significant security concerns.” Supporters of the law, however, say the current policy aids cooperation between immigrant communities and local police as well as reduces the number of unlicensed drivers.

Texas' "Limited Term" Driver's Licenses Draw Concerns

Texas Tribune by Julian Aguilar

The Texas Department of Public Safety’s classification of licenses for some legal residents as “limited term” documents is drawing criticism from some who claim the department is going against stated policy.

The documents in question are being issued to some after proving they are in the country legally when applying for driver’s licenses or state identification cards. The label “limited term” is at the top of the applicant’s license. The DPS states on its website that it issues such licenses upon “verification of temporary lawful presence in the U.S.” and that the licenses expire “when the period of lawful presence expires.”

But critics say that isn’t consistent with a policy stating that all licenses and ID cards should be in the same format.

In 2008, the DPS enacted a policy requiring proof of legal status before receiving state-issued licenses. It was challenged in courts after plaintiffs said the department acted without legislative authority. Part of the lawsuit argued that issuing a different license to noncitizens — a vertical document that read “temporary visitor” across the top in bold lettering — was discriminatory.

“We had stories about people that weren’t able to get credit, they weren’t able to get a bank account, weren’t able to or had problems registering for school, at the university,” said David Hinojosa, an attorney for the Mexican American Legal Defense and Educational Fund. In June, MALDEF successfully argued for an injunction against the DPS policy, alleging it acted outside its scope of authority.

That proof-of-legal-status requirement, however, was granted in 2011 when the policy was added as an amendment to a fiscal matters bill passed during the special session that ended in June. Even U.S. citizens who had not done so previously must prove their legal status when they renew their licenses.

The amendment stated, however, that licenses “must be in the same format, have the same appearance and orientation; and contain the same type of information.” Some interpreted that to mean that DPS would stop issuing a different license to noncitizens.

* * *

Expiration dates have also been an issue. The amendment authorizes the DPS to determine expiration dates for noncitizens based on when an immigration document expires. If the immigration document does not have an expiration date, the department may issue an ID or license that expires annually.