State Capitol News
11:28 am
Mon December 16, 2013

Court on Track to Toss Brewer License Denial for DREAMers

A federal appeals court may be poised to void a decision by Gov. Jan Brewer to deny driver's licenses to "DREAMers'' the Obama administration has allowed to stay and work in this country. Arizona Public Radio's Howard Fischer reports.

Credit Politico

The fight is over the federal Deferred Action for Childhood Arrivals program, which was started last year by the Obama administration. It allows those brought here as children to remain, and even legally work, in this country. But the governor, in an executive order, cited a 1996 state law which says licenses are limited to those whose presence in the country is “authorized by federal law.” And she declared these people — nearly 17,000 so far in Arizona — are not authorized. A trial judge refused to block her order. So the Mexican American Legal Defense and Educational Fund took its case to the 9th Circuit Court of Appeals earlier this month. Victor Viramontes told the judges the state cannot unilaterally decide the dreamers are not authorized.

“I think they’re hamstrung by the statute there because the statute says ‘authorized presence under the federal law,’” Viramontes said. “It doesn’t say ‘authorized presence’ as we define it or as anyone else defines it. I don’t think they could do that.”

But the judges were much more interested in the questions of whether the DREAMers, in being denied the right to drive, are suffering irreparable harm. That is a crucial question, as it is one requirement for courts to enjoin a law or practice while it is being litigated. Tim Berg, the governor’s lawyer, told the judges the plaintiffs do manage to get to work and school. And, he said there is evidence some are driving. Judge Marsha Berzon said Berg’s argument makes no sense to her.

“For many reasons it seems strange for the state to be standing up here and saying, well, this is all not a problem for people to work because they can just drive illegally,” Berg said. “There are problems for everybody else in your state if you have people driving around illegally. And there are problems for them if people are driving around illegally. And none of that is disputing the connection between driving and work. And you’re just saying they can just break the law.”

Berzon asked Berg about testimony from one person who said there are jobs she would have applied for but cannot because of the lack of a legal driver’s license.

“And I think that the record’s clear that person was working in a job at that time the deposition was taken,” Berg said.

“So what? Because she’s not starving, she doesn’t have irreparable harm?” Berzon asked.

Berg pointed out that U.S. District Judge David Campbell, in refusing to grant an injunction, said he found no irreparable harm — including from driving without a license. That provoked an angry response from Judge Harry Pregerson.

“They do because they’re living in fear all the time. Don’t you understand that?” Pregerson said.

“Your honor …” Berg said.

“That’s what it’s all about,” Pregerson said.

Berg admitted to Berzon that Brewer could not block DACA recipients from working in the state. Berzon said that proves her point.

“When you’re saying somebody can’t drive, you’re essentially saying they can’t work,” Berzon said. “Given the realities in Arizona, they can’t get to work and many people can’t get jobs without a license.”

But, Berg reiterated his point that people are driving without a license, saying there’s no evidence anyone is being denied the legal ability to work — a contention that got Pregerson’s attention.

“I don’t think this court should presume it’s true just because it seems intuitive to you that it might be,” Berg said.

“We shouldn’t assume it’s true because it is true,” Pregerson said.

“Well, I would say that because it’s intuitive to you it might be, Judge Pregerson, with all due respect,” Berg said.

“With all due respect, it is true,” Pregerson said.

“With all due respect, your honor, we disagree about that,” Berg said.

“That’s all right. I don’t need your respect,” Pregerson said.

The court has not said when it will rule.