PHOENIX - A federal judge grilled Gov. Jan Brewer's attorney Friday, suggesting the governor may have no legal excuse for denying driver's licenses to "dreamers" while letting others with virtually the same documentation drive.
Judge David Campbell got attorney Douglas Northup to acknowledge in court that Arizona has issued licenses to perhaps 505 individuals who are neither citizens nor legal residents. The basis for the state's decision was that the Department of Homeland Security had issued them documents allowing them to remain and work in this country legally.
Yet the day the Obama administration began taking applications for the "Deferred Action Childhood Arrival" program, Brewer announced those individuals are not here legally and should not be able to drive - even though they, too, were being issued federal work-authorization documents. The governor directed the state Department of Transportation to reject documents from individuals in that group as proof of the right to a license.
That different treatment is significant because Campbell is being asked by attorneys for five individuals accepted into the DACA program to conclude the governor's action is illegal, partly because unequal treatment under the law is generally forbidden.
Northup argued the 505 who got licenses are different from the potential 80,000 Arizonans who might eventually be eligible for the DACA program.
The DACA program applies to those brought to this country illegally as children but who had not yet turned 30 when the president announced it. They are allowed to stay and work for two years, which is renewable if they meet other conditions.
Northup said those previously given Arizona licenses have some hope of eventually becoming citizens or permanent residents. The presidential program creating DACA, Northup said, simply is an announcement the government will not pursue them for deportation.
"They have no hope of legal status," he said, calling the decision not to deport them "an act of administrative convenience."
Campbell, however, told Northup his distinction is flawed.
The judge pointed out, for example, the federal government sometimes needs an illegal immigrant as a witness for a future case. While that case is pending, the person gets work authorization papers - and, apparently an Arizona driver's license - even though he or she will never become a permanent resident and in fact will be deported after the trial.
"If they get an Employment Authorization Document and they come to Arizona, they can get a driver's license," Campbell said. "The fact is, Arizona is giving driver's licenses today to people with no hope of lawful status."
Northup acknowledged the inconsistency, saying ADOT is looking at its policies and might decide to no longer honor any federally issued work papers as proof an individual is entitled to a driver's license.
But Karen Tumlin, an attorney with the National Immigration Law Center, said it will not matter if the state does change its policies. She said the only issue is the wording of state law.
That 1996 law requires anyone seeking an Arizona driver's license to prove their presence in this country is "authorized by federal law." And Tumlin argued the action of the Obama administration provides that authorization and undermines Brewer's actions.
"It is a policy of targeting and discrimination," Tumlin said.
Northup responded DACA "is not the law."
Gubernatorial press aide Matthew Benson, who attended Friday's hearing, said all his boss was doing is affirming existing state law.
"The state of Arizona and the people of the state do not want to provide these kinds of public benefits to the people who are not living here with lawful presence," he said.
Even if Campbell buys Tumlin's equal protection argument, that does not mean he will issue the preliminary injunction sought by challengers requiring the state give licenses to all with federal work authorization cards.
Federal law requires those seeking such injunctive relief to prove not only that they are likely to prevail when the case eventually goes to trial, but also that they would suffer "undue hardship" without the order. And Northup pointed out the plaintiffs, in pretrial depositions, admitted they have been driving to work and school all along, without licenses.
Tumlin said anything that curtails daily activities is a hardship. And she said just being subject to an unconstitutional law also qualifies. But she also said driving is not the only issue.
Tumlin cited a case where an individual tried to return Christmas lights that were not working to a department store. She said the store would not provide a refund without an Arizona driver's license.
Attorney Julie Chang Newell presented separate legal arguments to Campbell that Arizona's denial of licenses is preempted by federal law because states cannot make their own classifications of different types of immigrants.
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"They have no hope of legal status."
Douglas Northup, attorney for Gov. Jan Brewer