Thursday, October 25, 2012

Deferred Action for Childhood Arrivals (DREAMers) and Driver's Licenses

Under the President's program, deferred action can provide a person with a promise not to be deported and work authorization.  But, will it allow recipients to get a driver's license.

In general, that issue depends on state law.  Arizona and Michigan have both announced that they will not issue driver's licenses to those who receive deferred action.

What about Virginia?  Section 46.2-328.1 of the Code of Virginia clearly provides that anyone in an approved deferred action status may be issued a driver's license.  This law was on the books long before the President's program.

In August, the Virginia DMV confirmed that it was going to comply with Virginia law and issue driver's licenses to those who receive deferred action under the President's program.

The ACLU is already planning a lawsuit to challenge the decision to deny driver's license to DREAMers in Arizona.  There may be a valid federalism claim.  That is, if the U.S. Government has express authority over immigration issues, and if federal law is the supreme law of the land, then the states cannot do any action to countermand federal action.  We'll watch the Arizona case and see how that plays out.

By:  William J. Kovatch, Jr.
(703) 837-8832

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