A federal appeals court may be poised to void a decision by Gov. Jan Brewer to deny driver’s licenses to “dreamers’’ the Obama administration has allowed to stay and work in this country.
During a 45-minute hearing earlier this month, Judge Marsha Berzon repeatedly chided Tim Berg, the governor’s lawyer, for his contention that those being denied licenses are not being irreparably harmed. She said the testimony of the five plaintiffs in the case show their lives have been affected.
Berg told the three-judge panel of the 9th U.S. Circuit Court of Appeals that the plaintiffs said they do manage to get to work and school. And he said there is evidence that some are actually driving.
Berzon said his argument makes no sense. “For many reasons it seems strange for the state to be standing up here and saying, ‘Well, this is all not a problem for people to work because they can just drive illegally,’ ’’ she said.
“There are problems for everybody else in your state if you have people driving around illegally,’’
The issue is crucial because Victor Viramontes, attorney for the Mexican American Legal Defense and Educational Fund, must show his clients are suffering “irreparable harm’’ if he is topersuade the appellate judges to enjoin Brewer’s denial of licenses to the dreamers.
Berg acknowledged there was testimony from one person who said there are jobs she would have applied for but cannot because of the lack of a legal driver’s license. But he said the record shows she had another job.
“So what?’’ Berzon shot back. “Because she’s not starving, she doesn’t have irreparable harm?’’
Berg pointed out that U.S. District Judge David Campbell, in refusing to grant an injunction, said he found no irreparable harm, including from driving without a license, which provoked an angry response from Judge Harry Pregerson.
“They’re living in fear all the time,’’ Pregerson told Berg. “Don’t you understand that? That’s what it’s all about.’’
Hanging in the balance is the enforceability of Brewer’s 2012 executive order that those in the federal program, known as Deferred Action for Childhood Arrivals, are not entitled to licenses.
The program lets those who meet certain qualifications remain in the U.S. and be issued documents allowing them to work. The most recent figures from U.S. Citizenship and Immigration Services show that more than 20,000 Arizonans have applied and nearly 17,000 already have been accepted into the program.
But the state Department of Transportation, on orders from Brewer, is refusing to issue licenses to anyone in the program.
Brewer takes the position that an administrative decision by the president and the Department of Homeland Security not to deport them does not make their presence “authorized,’’ even if they are given work papers.
Viramontes argued the state law — or at least Brewer’s interpretation of it — interferes with the prerogative of the president to decide how to enforce immigration laws.
But Berzon pointed out the Department of Homeland Security has never claimed those who are granted DACA status are entitled to state-issued driver’s licenses.
Viramontes countered that the Arizona statute on which Brewer is relying specifically refers to authorization under federal law. He told the three-judge panel that it limits Arizona’s ability to draw its own conclusions.
Berg said Arizona can regulate who operates a motor vehicle in the state. “Driving is a privilege,’’ Berg said.
That still leaves the question of the harm to DACA recipients from not being able to legally drive.
Berg said they do get around, whether driving illegally, being driven by others or using public transportation.
“If somebody took your driver’s license away and told you to take the bus, you don’t think you’d be irreparably harmed?’’ Berzon asked.
“I think I would be horribly inconvenienced, your honor,’’ he responded. “But I don’t think I would be irreparably harmed.’’