Immigration News and developments
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Immigration News and developments

December 3, 2012, 6:16 pm
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Social security numbers, driver\'s licenses and DACA

ACLU Sues Arizona for Refusing to Provide Driver's Licenses to Illegal Aliens

In its lawsuit, the ACLU challenges the executive order on two grounds. First, the complaint alleges that Governor Brewer's executive order is preempted by federal immigration law under the Supremacy Clause of the U.S. Constitution and

Second, the complaint alleges that Governor Brewer's executive order violates the Equal Protection Clause of the U.S. Constitution  because it treats other deferred action recipients and other classes of lawfully present grantees, like temporary protected status grantees, differently than the similarly situated DACA grantees. The complaint asks the federal court to declare Governor Brewer's executive order unconstitutional and preliminarily and permanently enjoin its enforcement.

Governor Brewer has defended her executive order as necessary to uphold an Arizona state law that prohibits the granting of state benefits to illegal aliens. Brewer reasons that because the DACA program "does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants," granting driver's licenses, i.e., a state benefit, to DACA grantees would violate Arizona law

The Obama Administration has yet to weigh in on the lawsuit, but earlier this year Administration officials reportedly stated that it is up to the states to decide whether to allow DACA grantees to receive driver's licenses. Similarly, Ian Grossman, vice president of the American Association of Motor Vehicle Administrators has stated, "[t]he consensus is that well, we have our rules of who's eligible for a license... At the end of the day, it's a state-issued document, and the state has the authority to determine who is eligible for that document."

GOP Senators Introduce New Version of DREAM Act

Last Tuesday, Republican Senators Kay Bailey Hutchison (R-TX), Jon Kyl (R-AZ), and John McCain (R-AZ) introduced their version of the DREAM Act, which would grant amnesty to illegal aliens up to the age of thirty-two. Called the "ACHIEVE Act," S. 3639 creates a new, tiered nonimmigrant visa program, the W-visa, that puts illegal aliens on a path to a green card and subsequent citizenship.

Under the Republican plan, illegal aliens would be eligible for a W-1 visa if they:

  • have either:
    • completed high-school and are admitted to college or earned a college degree, or
    • completed high school and are enlisted in or have completed four years of military service,
  • have entered the country before the age of 14,
  • have lived in the U.S. continuously for five years,
  • have not committed a felony, two misdemeanors with a jail term of over 30 days, or a crime of moral turpitude,
  • are not subject to a final order of removal ,
  • pay a $525 fee, and
  • are under the age of 28 (or 32 if they have a bachelor's degree from a U.S. university).

Once an illegal alien receives a W-1 visa, the alien has six years to obtain a bachelor's, associate's, vocational/technical, or graduate degree, or to complete four years of military service. If the alien meets this threshold, the alien is then eligible for a W-2 visa. Under a W-2 visa, an alien must then either maintain employment for 36 months, or be enrolled in or complete a graduate degree program within four years.

Then, after the four-year period is up, an alien who has fulfilled the requirements of a W-2 visa becomes eligible for a W-3 "permanent nonimmigrant" visa.  Although the authors of the ACHIEVE Act say it does not provide a special pathway to citizenship, the W-3 is renewable indefinitely in four-year increments, and its recipients are free to adjust status to a green card via pathways already set up under current law.

In addition to the above provisions,  the bill creates a special path to a green card for aliens on a W-1 visa who have served four years in the military and are honorably discharged. Those aliens may bypass the W-2 and W-3 visa programs and directly apply for legal permanent residency through a process to be determined by the Secretary of Homeland Security in regulations. 

Sens. Hutchison and Kyl said that Florida GOP Senator Marco Rubio, who has been touting but not revealing his own plan for months, provided input on the proposed legislation. Rubio's spokesman, Alex Conant, confirmed that while the Senator supports the idea behind the ACHIEVE Act, he is still working on his own version. "Senator Rubio is still developing his own alternative to the Dream Act," said Conant. "[H]e intends to introduce it in the new Congress, once he is confident it will win broad bipartisan support and be signed into law."

Illinois Senate Committee Approves Driver's Licenses for Illegal Aliens

The Illinois Senate Executive Committee approved a bill which would allow as many as 250,000 illegal aliens to receive an Illinois driver's license.  The bill breezed through committee by a vote of 12-2 on Thursday. News reports indicate that SB 957 is likely to pass the full Senate next week. The bill would grant driving privileges to illegal aliens but prohibit the license from being used as a form of identification.

If passed, Senate Bill 957 would permit the state to issue temporary driver's licenses to illegal aliens who: (1) have lived in the state for at least one year and establish identity through either a  consular ID or valid foreign passport.  The bill further provides that a temporary driver's license would expire three years from the date of issuance shall not be accepted as a valid form of identification.

Some of Illinois' most prominent political leaders are pushing for passage of the bill as a way to "make the state's road's safer. Those in favor of providing illegal aliens with driving privileges include Governor Pat Quinn, Mayor Rahm Emanuel, Senate President John Cullerton, House Republican Leader Tom Cross and former governors Jim Edgar and James Thompson.

Other supporters claim the bill will increase the number of driver's with insurance.  Advocate Ald. Danny Solis stated that, "Those people need to have a driver's license so they can have insurance so that when they are on our highways, and possibly get into an accident, everybody's protected." Opponents of granting driver's licenses to illegal aliens say not so and cite to the State of New Mexico — one of only two states that grants driver's licenses to illegal aliens —which has the second-highest rate of uninsured drivers in the United States.

Opponents of the bill argue that despite the bill's language, the temporary license would become a de facto form of identification. Senator Dale Righter pointed out the "Catch-22s" of the legislation in that, "You want to find out who it is you're dealing with, but that document's not supposed to be used to tell you who you're dealing with."

Granting driver's licenses to illegal aliens is bad public policy and repugnant to federal immigration law. It treats them as if they are legal residents and facilitates their continued illegal presence. Providing identification and driving privileges to illegal aliens only enables the illegal aliens to continue to live, work, and vote in states unlawfully.

If SB 957 becomes law, Illinois would be one of three states that provide driver's licenses to illegal aliens — along with New Mexico and Washington State. California also recently passed a law to allow illegal aliens who are granted deferred action under the Obama Administration's Deferred Action for Childhood Arrival (DACA) program to obtain California driver's licenses. 

The Illinois Senate is expected to vote on SB 957 next week. If it passes, it will be sent to the state House, which will likely take up the measure in early January.

Rep. Gingrey Challenges the Granting of Social Security Numbers to Illegal Aliens with Deferred Action Status

Earlier this month, Rep. Phil Gingrey (R-GA) challenged the Obama Administration's decision to award Social Security Numbers to alien beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program. In a letter to Social Security Administration (SSA) Commissioner Michael Astrue, Rep.  Gingrey  wrote: "[I]t is still unclear what level of documentation will be required and what level of background checks are being conducted on the documents and the applicants. Due to this ambiguity, I call into question the wisdom of providing Social Security numbers to these petitioners," the letter reads.

The letter asks the Commissioner a series of questions intended to shed light on the Administration's process of handing out SSNs to illegal aliens under DACA.

The Obama Administration has asked for an extension of its November 30 response deadline as requested in the letter. As of November 15, Georgia ranks ninth among states for the highest number of illegal aliens applying for backdoor amnesty under the program.  





Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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Immigration News and developments
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