PHOENIX - A citation against a "Dreamer" for driving without a license was not enough to get a federal judge to reverse his decision to let the state continue denying licenses to individuals protected from deportation under the Obama administration's "deferred action" program.
Lawyers representing five people who are challenging the state's denial of drivers licenses said that citation proves their clients are at risk of harm and entitles them to the immediate injunctive relief.
Judge David Campbell had previously turned down an injunction request to block the state from enforcing the ban while it is being challenged in court, saying there was no evidence affected immigrants were being harmed by the state's action because they were routinely driving without licenses.
Campbell did not dispute claims by the challengers that one of the plaintiffs was cited, pleaded guilty and paid a fine - a fact lawyers for the challengers say proves their contention the state policy of denying them a license is causing them irreparable harm.
But Campbell said the challengers are forgetting one key fact: They specifically got him to issue an order barring the state from inquiring into how the plaintiffs were able to drive, obtain jobs and engage in other activities without valid Arizona driver's licenses.
"In exchange for this protection - requested by plaintiffs - the order precluded plaintiffs from arguing they are irreparably harmed by being forced to engage in illegal activities or by fear of prosecution for engaging in illegal activities," Campbell reminded them. That makes their new arguments legally irrelevant, he said.
While the ruling is a setback for challengers, it is not fatal.
Campbell still has to schedule a full-blown trial on the contention the policy instituted by the state Department of Transportation last year, at the behest of Gov. Jan Brewer, is illegal.
The state contends those in DACA - the "Deferred Action for Childhood Arrivals" program - are ineligible for Arizona licenses because a 1996 law requires applicants to show their presence in this country is "authorized by federal law." Attorneys for the governor have argued that an order by the president not to deport certain people who are in this country illegally does not authorize them to be here.
The judge already has hinted he believes the policy violates federal constitutional provisions guaranteeing equal protection under the law. But he said he can not issue a final ruling until a full trial is held. And he said he can't issue an injunction blocking the state from enforcing the ban unless the challengers show they will be irreparably harmed, which they haven't demonstrated.
The DACA program allows those who were brought here before age 18 and were not yet 30 when it was announced last year to seek permission to remain in the country without fear of deportation. Those who meet the qualifications, including having no felonies or serious misdemeanors, are issued EADs - employee authorization documents - giving them permission to work in the country during their stay. Participants must reapply every two years.
Federal officials have estimated 80,000 Arizonans are eligible. The most recent figures from U.S. Citizenship and Immigration Services show nearly 17,600 have applied in Arizona, with more than 12,200 already accepted into the program.
Linton Joaquin, attorney for the National Immigration Law Center, said Friday that no decision has been made whether to appeal the denial of the injunction or instead focus on preparing for the trial on the merits of the case.
"We're exploring our options," he said. But Joaquin said he believes Campbell's decision about the question of harm was "clearly wrong."
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