Michigan Gov. Rick Snyder seeks federal clarity as undocumented immigrants fight for right to drive

By Jonathan Oosting
on December 21, 2012 at 4:00 PM, updated December 21, 2012 at 7:15 PM
mlive.com

LANSING, MI -- Gov. Rick Snyder is asking the federal government to clarify whether young undocumented immigrants who qualify for a new deportation deferral program are legally present in the United States, a distinction that would allow them to obtain driver's licenses in Michigan.

Snyder, in a December 7 letter sent to Homeland Security Sec. Janet Napolitano, said that confusion over the Deferred Action for Childhood Arrivals program "casts a shadow over the progress and continued growth of our immigrant population."

Michigan is amongst a small number of states that has announced it will not issue driver's licenses to young people who qualify for the DACA program, announced in June by Napolitano and President Barack Obama.

The program is designed to enable young immigrants who entered the country illegally -- often through no choice of their own -- to become productive members of society by living and working without fear of deportation, but critics say Michigan's policy conflicts with that goal.

Secretary of State Ruth Johnson earlier this year directed staffers not to issue licenses or identification cards to DACA recipients granted work authorization. Her office said the decision was informed by legal interpretations rather than politics.

Michigan law only allows the Secretary of State to issue driver's licenses to individuals who have "legal presence," and the United States Citizenship and Immigration Services has said that DACA recipients do not have "lawful status."

"We rely on the federal government to tell us who is legally here in the United States and who is not," SOS spokeswoman Gisgie Gendreau said earlier this week. "The feds have made clear that DACA participants are not."

Snyder, in his letter to Napolitano, acknowledged that the issuance of driver's licenses falls under the purview of the Secretary of State, but he asked Napolitano to clarify whether there is a difference between lawful status and legal presence, which he said is relevant to other functions that his office performs.

Read: Michigan Gov. Rick Snyder's Letter to Homeland Security Sec. Janet Napolitano seeking DACA clarification (.pdf)

Specifically, he asked whether DACA recipients receive a verifiable Social Security number, whether work permits allow them to form their own companies, whether they are required to file federal income taxes and whether those tax documents can be used to prove legal presence.

"A determination that DACA individuals' presence in Michigan differs from that of others with deferred action may impact the activities and opportunities these residents are able to access and the services our state is able to provide," Snyder wrote. "I look forward to your reply and working together to implement common-sense immigration reforms that allow Michigan and the United States to attract the best and brightest the world has to offer."

DACA provides qualifying applicants with a renewable two-year deportation deferral. It is open to immigrants who illegally arrived the U.S. before they were 16, are under age 31 and have lived here for five years, are enrolled or have graduated from high school and do not pose a safety threat.

The federal government has not yet offered clarification on the driver's license issue despite confusion in Michigan and other states. Stateline, a news service run by the Pew Center on the states, reported this week that Michigan is one of six states to formally announce that it will not issue licenses to DACA recipients.

Tanya Broder, a senior attorney for the National Immigration Law Center, said she is only aware of two other states -- Arizona and Nebraska -- that have similar policies to Michigan.

"The vast majority of states have laws or rules recognizing that individuals who have work authorization from the feds, a Social Security number and deferred action are eligible for driver's licenses," said Broder. "And that was actually the case for both Arizona and Michigan as well. They both decided to carve out DACA and exclude them while still issuing licenses to everybody else that has work approvals."

Lawful status and legal presence are distinct concepts, according to Broder, and conflation of the two has resulted in a Michigan policy that denies young immigrants the full range of opportunities that DACA was intended to provide.

"One way of distinguishing it is to say that a status is provided by Congress, whereas this is authorization to work and live granted by the Department of Homeland Security," she said. "If an individual is granted authority to work lawfully in the United States, how could they not be authorized to be present here?"

The American Civil Liberties Union has filed separate lawsuits in Michigan and Arizona challenging each state's DACA driver's license policy.

The Michigan suit, filed this week in Detroit on behalf of three young immigrants and an advocacy group, seeks a declaratory judgement that DACA recipients are legally present and that Michigan's policy is invalid.

The complaint also argues that the policy violates the Supremacy Clause of the U.S. Constitution by interfering with federal immigration law and the Fourteenth Amendment’s Equal Protection Clause by discriminating against certain noncitizens.

Resilda Karafili, a 22-year-old plaintiff in the case, is a senior at the University of Michigan and hopes to go onto law school. She was granted deferred action in October, and the suit indicates that she received employment authorization documents and a Social Security number. But Karafili worries she will have a hard time finding a job in Michigan if she cannot drive to work.

"Michigan doesn't have a great public transportation system and (many employers) won't hire someone who doesn't have one," she said. "Even saying that you can't drive sounds unprofessional."

Michigan Gov. Rick Snyder seeks federal clarity as undocumented immigrants fight for right to drive | MLive.com