Texas lawyers: Those approved for deferred action can get IDs
Immigration lawyers and legal scholars say applicants who are approved for deferred action will be able to obtain state-issued ID cards and driver's licenses under state policies, despite their lack of official legal status in the country.
Gov. Rick Perry on Monday issued a memo to state agencies reminding them that despite the federal policy that allows some illegal immigrants a two-year reprieve from deportation and a renewable work permit, known as Deferred Action for Childhood Arrivals, or DACA, Texas' policies on individuals in the country illegally remain unchanged.
Perry's office said the governor had no plans to issue an executive order to amend any state policies and did not mention a specific agency he was concerned with. Instead, he used the federal government's own words to reiterate that applicants — even if approved — hold no status or pathway to citizenship.
"In fact, the [Department of Homeland Security] secretary specifically closed her directive by explaining that [t]his memorandum confers no substantive right, immigration status or pathway to citizenship," Perry wrote in a letter to Attorney General Greg Abbott dated Aug. 16.
Texas Department of Public Safety rules mandate that applicants for driver's licenses or IDs or for their renewals prove they are in the country legally.
"An applicant who is not a U.S. citizen, U.S. national, lawful permanent resident, refugee, or asylee must present lawful presence documentation issued by the appropriate federal immigration authority when applying for a non-commercial driver license or identification card," DPS policy states in its 26-page Temporary Visitor Issuance Guide.
It's this policy — combined with specific federal definitions of legal status and presence — that immigration lawyers cite as proof that approved deferred action applicants can obtain the state-issued IDs. Even though the form for DACA, the I-821D, is not on the DPS's current list of acceptable documents, the DPS guidelines indicate that people "granted deferred action status" are allowed a license or ID that must be renewed annually provided they supply the proper documents.
Some people eligible for deferred action began applying last week, and attorneys say it could take weeks or months to receive a response. But attorneys say approved applicants would qualify for a license, even though they may lack status.
"Deferred action is lawful presence, even though it's not exactly lawful status," Austin immigration lawyer Jackie Watson said. "That's because there is no category of lawful status that deferred action falls in, but they are still here with the permission of the [U.S.] attorney general. It is incredibly technical."
When the policy was announced, President Obama declared that the move was a stopgap measure until comprehensive immigration reform was passed in Congress. The president said then that the move didn't constitute immunity, amnesty or even a pathway to citizenship. Although that may have added to the confusion about status, Michael Olivas, an immigration lawyer and professor at the University of Houston, said that was the proper phrasing.
"What [Obama] meant and what he technically accurately conveyed is that this doesn't reconstitute them for the purposes of gaining citizenship," Olivas said. "But once you get given this permission to remain here under color of law, with some kind of legal status, the illegality clock stops. It doesn't go away, but it is stopped. These people are now able to be here, and it doesn't convey them any financial aid, it doesn't give them the right to vote," but it does allow them a driver's license, he added.
Perry's letter to state agencies came a week after Arizona Gov. Jan Brewer issued an executive order denying deferred action immigrants benefits or driver's licenses, something Olivas said could be illegal under federal law.
Olivas said that Perry is trying to keep pace with Brewer, but the Texas governor's office said the sole intent of his letter was to clear up any confusion that the federal policy might have caused. But both Watson and Olivas conceded that there was a possibility that lawmakers could file legislation to deny the driver's licenses to applicants.
"Immigration attorneys and civil rights attorneys, we'll be ready [to sue]," Watson said. "And they can involve the state in expensive litigation. Good times to be had for all."