Arizona makes it tougher for young illegal immigrants to take full advantage of the new deferred-action program, but that hasn't stopped nearly 13,000 of them from applying.
Shortly after President Obama announced the program last summer, Arizona Gov. Jan Brewer signed an executive order saying beneficiaries of Deferred Action for Childhood Arrivals were not eligible for public benefits, including a driver's license. Her reasoning: Even though the program can let them avoid deportation and work legally in the U.S., they're still here illegally.
A group of lawyers and organizations, including the American Civil Liberties Union, fought back with a lawsuit arguing the governor's executive order is pre-empted by federal law. The suit also says Brewer's move violates the 14th Amendment's Equal Protection Clause because those approved for deferred action under other categories, including victims of domestic violence, can apply for driver's licenses.
The plaintiffs - the Arizona Dream Act Coalition and five individuals - filed a motion last week to get the executive order delayed while the suit is ongoing. The state is expected to respond next month.
The deferred-action program lets people who were brought to the United States illegally as children apply for a renewable two-year deportation reprieve and work permit. Applicants also must meet other criteria, including being enrolled in school and having good moral character.
U.S. Citizenship and Immigration Services has accepted more than 355,000 applications and approved 103,000 nationwide.
About 1.8 million people nationwide are eligible for the program, including 80,000 in Arizona, show estimates from the Migration Policy Institute, an independent think tank in Washington, D.C.
While deferred action doesn't give beneficiaries lawful status - meaning there's no path to permanent residence or citizenship - it does give them lawful presence in the United States, said Crystal Williams, executive director of the American Immigration Lawyers Association.
In immigration law, that's a huge deal, she said.
"Lawfully present means that as long as you are lawfully present you are not going to be removed, and in some circumstances you can get work authorization," Williams said.
Nebraska and Michigan government officials have also said they will deny driver's licenses to the young illegal immigrants who get approved for deferred action. The ACLU and the National Immigration Law Center are also suing Michigan. Some states, like California, went the opposite direction and passed a law explicitly stating that those approved under the program are eligible for licenses.
executive order only
To get a driver's license in Arizona, like in many other states, applicants must prove legal presence. In general, a work permit together with other documents like a Social Security card can be used as evidence.
Brewer issued the executive order because the deferred action program wasn't approved by Congress, said spokesman Matthew Benson.
"Congress has taken no action to authorize this and it's not recognized anywhere in federal law," he said. Had Congress approved the program, "we wouldn't be having this conversation."
In general, Congress doesn't get involved with deferred action, said Muzaffar Chishti, a policy expert with the Migration Policy Institute.
In recent decades, deferred action has been extended to certain individuals and groups, such as Chinese students in the 1970s who were subject to the one-child policy and Haitians last year after the earthquake.
"And Congress didn't do any of that," Chishti said.
Already some young people are leaving or planning to leave the state after they graduate because of Arizona's tougher immigration policies, said Florencio Zaragoza, president of Fundación México, a non-profit organization based in Tucson that gives scholarships to unauthorized immigrants in the state.
"There are truly brilliant young people, some who have even graduated from college, who are leaving Arizona due to the conditions here," he said.
In 2010, Arizona passed what many consider to be one of the toughest immigration-enforcement laws in the country. Among other things, it requires law enforcement officers to question anyone they stop for another reason about their immigration status if they suspect the person is in this country illegally.
Josue Saldivar, 21, says he plans to leave in May, when he gets an associate's degree in business administration from Pima Community College.
The Mexico native said he has mixed feelings about leaving because he saw himself studying, working and giving back to the community in Tucson, the place he's called home since he was 8.
But he said he doesn't see how he can afford to continue studying here. He pays out-of-state tuition with scholarships.
"My education has become my family's priority," he said. He has two younger sisters, one born in the United States.
But another factor in the family's decision, he said, is his parents, who are illegal immigrants.
"As students we struggle, but those who struggle the most are our parents," he said. "They are the ones who are oppressed the most and those who have sacrificed everything for their children."
Deferred Action for Childhood Arrivals (DACA)
Top 10 states of residence*:
1. California 98,531
2. Texas 57,542
3. New York 21,635
4. Florida 17,241
5. Illinois 17,224
6. North Carolina 13,314
7. Arizona 12,924
8. Georgia 11,914
9. New Jersey 11,779
10. Colorado 7,124
*Note: As of Dec. 13, 2012
Source: U.S. Citizenship and Immigration Services
Reach reporter Perla Trevizo at firstname.lastname@example.org or 573-4213.