PHOENIX — The question of whether “dreamers” can keep their Arizona driver’s licenses could depend on who a federal judge believes first came up with the idea to reject them.
Attorney Douglas Northup said the 2012 decision to deny licenses to those in the Obama administration program came from John Halikowski, director of the Arizona Department of Transportation.
Northup told U.S. District Court Judge David Campbell on Wednesday it was only after ADOT concluded these people did not meet the requirements of Arizona law that then-Gov. Jan Brewer issued her executive order denying licenses to those in the Deferred Action for Childhood Arrivals program.
Northup said Halikowski also was concerned that providing licenses to those who are not here legally could open the door to their getting public benefits and leave the state liable.
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But Araceli Martínez-Olguín of the American Civil Liberties Union said the “plain text” of Brewer’s order made it clear she made the decision and blocked ADOT from issuing licenses.
The distinction could prove crucial because it goes to the question of whether there was a “rational basis” for the state policy.
In agreeing to a preliminary injunction blocking that policy, Judge Harry Pregerson of the 9th U.S. Circuit Court of Appeals rejected arguments by the state that DACA recipients do not meet the requirements of a 1996 Arizona law that licenses are available only to those whose presence in the country is “authorized by federal law.”
Pregerson pointed out that Arizona has continued to issue licenses to others who are not in this country legally but have been allowed to stay while pursuing certain appeals. And he said people in those groups are issued “employment-authorization documents,” the same documents issued to DACA recipients.
What that suggests, Pregerson wrote, is that the policy “appears intended to express animus toward DACA recipients themselves.” And that, he said “is not a legitimate state interest.”
Attorneys for DACA recipients want Campbell to make the injunction permanent.
During Wednesday’s hearing, Northup told the judge that ADOT concluded on its own — without direction from Brewer — that DACA recipients are not entitled to licenses. He said there is no evidence in the record that Brewer, who was independently looking at the question, had any animosity toward DACA recipients.
“At best, the governor had a problem with what President Obama did” when he declared people who came to this country illegally as children can remain and work without fear of deportation, Northup said. He said Halikowski has said in a sworn statement it was his agency that decided there is a “rational basis” for treating DACA recipients differently than others.
Martínez-Olguín said that is contradicted by other evidence, including Brewer’s Aug. 15, 2012 order itself.
In it, Brewer says by virtue of her authority she concludes the issuance of employment-authorization documents to those not here legally “does not confer upon them any lawful or authorized status,” meaning they cannot be licensed.
Northup said if the judge has any question about how the policy came about, he should have a full-blown trial and reject the request by the DACA recipients for an immediate and permanent injunction.
But Martínez-Olguín said there is no basis to argue that DACA recipients are any different than others the state is licensing, including people who have been ordered removed from the country but are trying to have that canceled.
Sean Hood, another attorney for the state, said those others are getting licenses because their appeal process is spelled out in federal immigration law, and, “They’re only here as long as it takes to resolve that issue.”
He said the difference is that there is “no basis” in immigration law for DACA.
Follow Howard Fischer on Twitter at @azcapmedia
