North Carolina Road Rage: DACA Driver’s License Under Attack

In the last six months, USCIS has granted nearly 200,000 DACA requests.  Individuals who have been granted Deferred Action for Childhood Arrivals (DACA) have not problems applying for a driver’s license in a majority of states.  (The >National Immigration Law Center provides an updated list of these states.)

Since August 2012, when USCIS began granting DACA requests, only a handful of states have wrangled back and forth on whether it could and should issue driver’s licenses.  North Carolina was one such state. The Attorney General’s Opinion Letter In September 2012, North Carolina Department of Transportation DMV Commissioner Michael Robertson requested an advisory opinion from the state’s Attorney General to determine whether state law would allow DACA recipients to receive a driver’s license. On January 17, 2013, in response to the then-Commissioner’s request, the Attorney General issued a legal opinion stating without equivocation DACA recipients were considered to be in the U.S. lawfully for a limited duration and therefore qualified for a driver’s license, assuming all other documentary evidence was provided to the state’s DMV.  Effectively, February 14, 2013, the DMV will begin issuing DACA driver’s licenses. Longtime North Carolina resident and seasoned immigration attorney, Gerry Chapman, Founder of the Chapman Law Firm in Greensboro agrees with the opinion.

Roy Cooper, the Attorney General, is careful about everything.  I don’t see this as an aberration or some kind of effort to delay things.    And the head of Department of Transportation, Tony Tata, is a process-oriented man who just was appointed by the Governor.  He was right to do what he did (agree to issue licenses), and I think right to be methodical in making and implementing the decision.

Most immigration attorneys would appreciate the Attorney General’s careful explanation on the difference between “legal status” and “legal presence” in the United States in its opinion letter.  This point was also recently updated on January 18, 2013, by USCIS on its DACA FAQs page:

New – Q6: If my case is deferred, am I in lawful status for the period of deferral? A6: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status. The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.

Apart from the immigration laws, “lawful presence”, “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities. Special Designations for Limited Term Licenses Although the question seemed to have been put to rest, North Carolina’s DMV is proposing to issue driver’s licenses to DACA recipients with special designations on the card, stirring up a bit of controversy. The card would be issued to individuals who are not U.S. citizens but legally present in the U.S. for a limited duration.  The card would have a pink stripe, indicate “No Lawful Status” and “Limited Term” on the card.

What are your thoughts about the proposed designations on the “special” limited-term driver’s license?  Mr. Chapman thinks this is a bad idea.

[The DACA] population is concerned enough about their status, and now believes that the different license will be used to discriminate against them.   A license that has a two-year duration clearly indicates that the bearer is present in the U.S. as something other than U.S. citizenship.  DMV and other entities can be trained to understand that fact.  The stated purpose of the special license (to protect the rights of voters) seems weak.  People at polling stations can be taught not to accept such a license as proof of citizenship.

House Bill 141 Even more controversial is House Bill 141 looming on the horizon, threatening to curtail any issuance of driver’s licenses to DACA recipients.  The bill has rankled many, including Mr. Chapman.

This is a prime example of ill-informed legislators going off half-cocked.  Unlike the Governor, who properly sought legal counsel from the Attorney General on a question of law, [the legislators] appear to have received no legal advice, or if it did, the advice clearly was wrong.

The issue that the Attorney General addressed was quite simple but HB 141, as proposed, attempts to sidestep existing North Carolina law.  Moreover, the mean-spirited animus of the proposed bill is meant to punish DACA recipients, says Mr. Chapman.

Since DACA is a federal program, it is not clear what the “carefully crafted legislative response” would do: require DACA’s to show more than legal presence?    On what rational ground and for what legitimate purpose?  If so, the Legislature would just about be guaranteeing a lawsuit that Roy Cooper’s office would have to defend.    This begins to look like very much like the dynamic surrounding the Defense of Marriage Act that the Obama administration opposes as unconstitutional and has refused to defend.

Mr. Chapman also highlights the illogical timeline for the proposed bill:

Section 2 makes things even more curious.  It states that HB 141 will become effective upon passage, but it will expire on June 15, 2013 (the projected end of this session of the legislature).   As George Will would say, “Well, so it’s going to create a three month moratorium while the Legislature conducts a ‘carefully crafted response,’ but then, if there is no change in the law, all the DACA recipients can start applying for licenses again.   And what about those DACA children who have [already] received their licenses?  Will they be ruled void upon passage of the law?”

“Members of the NC Legislature take an oath that requires them to serve the best interests of the people of our state,” explains Mr. Chapman.  This proposal does just the opposite and will likely result in additional legal costs to defend!

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Perhaps North Carolina will be a model and lesson for the few other states contemplating a change in their DACA driver’s license policies.  We’ll have to wait to see how to the bill plays out and how much this may end up costing the taxpayers of North Carolina.  Subscribe to the Case Management Guru Blog to get instant updates and practice tips on immigration.