Dreamers seek driver’s licenses in Wyoming

The state of Wyoming is refusing to issue driver’s licenses to young immigrants who are legally authorized by a new program to live and work in the United States.

A group of immigration lawyers in Wyoming this week objected to that policy, and asked the Wyoming Attorney General’s Office to review it.

The attorneys filed the request after learning of multiple cases where the Wyoming Department of Transportation (WyDOT) denied licenses to immigrants enrolled in the Deferred Action for Childhood Arrivals program, also called DACA.

The DACA program was initiated late last summer under a memo issued by Department of Homeland Security with the support of President Barack Obama.

Immigrant advocacy groups have worked for years to urge Congress to adopt what they call the “DREAM act,” which would grant residency to young undocumented immigrants who were brought to this country when they were children. The act stands for Development, Relief, and Education for Alien Minors.

Congress has not passed the DREAM Act. President Obama created the DACA program in summer 2012 to put in place as much of the concept as was possible by executive action.

DACA grants a temporary two-year deferral of prosecution of young undocumented immigrants who come forward to apply, provided they meet certain conditions. They must have arrived in the U.S. before age 16 and have lived in the country for at least five years, but still be under 30 years old.

Further, applicants must have jobs, be in school or graduated from school, or have earned honorable discharge from the military. Anyone with a felony or a major misdemeanor is not eligible to apply.

If applicants meet all those conditions, the DACA program grants immigrants temporary social security numbers and employment permits.

Foreigners living in Wyoming under a visa routinely use those same two documents to get driver’s licenses. But DACA enrollees who have taken these documents to get a driver’s license at a local WyDOT office have been turned down.

“I studied for the test, and I was filling out the paperwork and everything,” said Ana, a DACA enrollee who asked not to be identified by her real name. (Read WyoFile’s statement on anonymity of sources at the end of the article.)

Ana’s license application process ended when she showed her DACA identification card. On reading it, the agent told her that the state of Wyoming isn’t giving drivers licenses to this particular group of people.

Another DACA enrollee, Leslie, who also asked not to be identified by her real name, said Wyoming’s interpretation doesn’t make sense.

“If they give us a work permit then they should also (allow us) to be able to get to work,” Leslie said. “I don’t think that (licenses) should be as big an issue as they are making it out to be in the states.”

Wyoming joins Arizona, Iowa, Michigan, and Nebraska in withholding licenses from DACA enrollees. Last August, Arizona Gov. Jan Brewer signed an executive order precluding enrollees under the DACA program from getting a driver’s license or receiving public benefits.

Brewer’s order said in part, “The federal executive’s policy of Deferred Action and the resulting federal paperwork issued could result in some unlawfully present aliens inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers…”

Meanwhile, some 38 states have approved the issuing of licenses for those in the DACA program.

“I really think that no one is paying attention to Wyoming. We’ve all been hearing about Arizona, and Wyoming’s just kind of doing its own thing,” said Elisabeth Trefonas, an immigration lawyer who works in Jackson.

Trefonas was moved to act on the issue when several of her clients had difficulty getting their licenses. Last week, she and several other immigration lawyers, plus the Wyoming Chapter of the American Civil Liberties Union (ACLU), sent the Wyoming Attorney General Gregory Phillips a letter making the case that DACA enrollees should receive licenses. (Full letter at end of this article.)

The Human Rights Practicum at the University of Wyoming also sent an informational letter providing legal analysis of the issue at the invitation of the attorney general. Click here for the letter, or read it at the end of this article.

In the coming weeks, Assistant Attorney General Doug Moench says he will review the letters with WyDOT and the governor’s office to see if the state should change its position.

Their decision will have major consequences for young people born abroad but educated in Wyoming schools as they try to find a way forward to jobs and further education using their new status under the DACA program.

“When it comes to WyDOT choosing to deny driver’s licenses to DACA recipients, the first thing that comes to mind is Wyoming is better than that,” Ana said. “This is the Equality State (that gives) its residents equal opportunities to be successful members of society.”

Ana noted that the University of Wyoming and the state’s public schools provide education to all students no matter what their legal status is, yet the same attitude doesn’t apply to driver’s licenses, even when youth have federal authorization to work.

The immigrant named Leslie said she was so young when she came to the U.S. she can’t remember living in Mexico. “I was raised here like I’m part of the country, yet I’m treated like I don’t belong,” said Leslie. “Not being able to get a license makes a kid feel unwanted here.”

With the arrival of the DACA program, Ana and Leslie signed up almost immediately, joining some 400,000 young immigrants who have enrolled in the national program since last August. There is no data on how many of those applicants are from Wyoming.

“We just want to find a way to obtain a legal status and be normal like everybody else and not be afraid of getting pulled over,” Ana said.

Interpreting DACA

The passage of DACA put Wyoming in the position of interpreting how the program fit into state law.

Existing WyDOT rules say a non-citizen with an Employment Authorization Document and a social security card can get licenses. DACA enrollees typically get both of those documents. But WyDOT took the view that DACA recipients still lack legal status and remain in violation of federal immigration laws.

WyDOT’s interpretation said DACA enrollees run afoul of Wyoming Statute 31-7-108 (b)(vi) which states, “WyDOT shall not issue or renew any driver’s license to any person…who is in violation of the immigration laws of the United States.”

The governor’s office and the attorney general’s office did not actively disagree with WyDOT’s interpretation. Gov. Mead’s spokesman Renny MacKay told WyoFile in January that he hadn’t heard of the governor taking a position on the driver’s license issue. Assistant attorney general Doug Moench, who works on WyDOT issues, said he hadn’t heard of the issue until Trefonas brought it to his attention.

As WyDOT sees it, the problem for DACA recipients remains their illegal immigration status. “Immigration is issuing them an employment card, but they do not have a legal status in the United States,” said Don Eddington, WyDOT’s manager of Driver Services.

Ana disagrees with that reading. “If you are permitted to stay in the country you may not have formal status, but you are not in violation of the immigration laws,” she said.

Her position is based on a recent clarification from the United States Customs and Immigration Service website that states DACA enrollees are not breaking federal law:

“…although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.”

ACLU attorney Jennifer Horvath says WyDOT is confusing lawful status with lawful presence, a term used to describe the condition of people whose status is still under review. DACA recipients clearly have lawful presence she said, and that means they qualify for a license under Wyoming law.

“There is ample support to show (DACA recipients) meet the requirements of driver’s licenses in Wyoming,” Horvath said.

While the majority of the states have taken the position of granting licenses for DACA applicants, a number of groups have argued against the Obama administration’s decision to provide benefits to workers who arrived illegally as children. Last year several Immigration and Customs Enforcement agents filed a lawsuit challenging DACA in the Crane v. Napolitano case. They say the executive branch memo establishing DACA was improper.

The Federation for American Immigration Reform in Washington D.C also opposes DACA. “The President usurped the authority of Congress to regulate immigration,” said Bob Dane, spokesman for the organization. “Deferred action was not authorized by Congress. It was done by edict. It’s unlawful, unconstitutional, and illegitimate, and the states are under no obligation to extend benefits to illegal aliens.”

Dane’s position conflicts with interpretation of immigration scholar Bo Cooper, who holds that the executive branch has the authority to exercise discretion over how it enforces laws, including immigration laws, that Congress enacts. A similar report by Cornell professor Stephen Yale-Loeher is available here.

Last year Secretary of Homeland Security Janet Napolitano issued a series of memos directing the federal government to focus enforcement efforts on immigrants committing serious crimes.

At the same time, Napolitano created guidelines for allowing a deferred enforcement on young undocumented immigrants who are otherwise law-abiding and often called “Dreamers.” The move enabled the executive branch to put in place part of the policies contained in the DREAM Act, which hasn’t been able to pass Congress since its first introduction in 2001.

While hundreds of thousands of young immigrants jumped at the chance to gain a legal status under DACA, groups like Dane’s disagreed with the executive-branch approach.

“It guts the rule of law and it sets a dangerous precedent,” said Dane. “It says you can come into the US illegally, and as long as you don’t commit any other crime, you are good to go. That is a chaotic approach to applying laws.”

Dane also objected to issuing licenses to DACA enrollees on public safety grounds.

“The political decision to put a driver(‘s) license in the hands of someone whose background is questionable shows the complete reckless disregard for public safety,” Dane said.

But those close to the issue say undocumented workers use extreme vigilance while driving because the slightest moving violation could result in deportation.

“If they ever get pulled over, all their dreams stop there,” said Jorge Moreno, a volunteer with the Latino Resource Center in Jackson. “You get booked in, you get transferred to the Immigration Enforcement Service office, and you reach deportation.”

Leslie routinely gets behind the wheel to drive to her college classes, and every time, she says, she’s afraid of getting pulled over because she doesn’t have a valid license. The DACA program prevents her from being deported, but the same isn’t true for her parents.

“We always have fear. My dad is very cautious when driving. If my mom or dad would be pulled over they have that risk of being sent away,” she said.

Trefonas says many workers in Wyoming have no option other than driving and running the risk of getting arrested. “It’s really a ghost in the back of your mind. You need to go to work and get to school, but you are running the gauntlet every time,” she said.

While young people enrolled in DACA must have a clean record and be working to gain money and education, Dane still disagreed with the premise of the program.

“You’re starting to give immigrants a gold-plated membership card into society. It encourages and rewards illegal behavior, and it may damage national security,” he said.

The DACA program does enable immigrants to gain benefits under the Social Security program during the period of their work authorization. At the same time, it allows DACA enrollees with jobs to pay into the program.

In the case of illegal immigrants who are not part of the DACA program, there have been years of debate over whether they should get any public benefits.

“I kind of can appreciate the point of view that we can’t give benefits to people who are here undocumented. But when people are here with permission by attorney general of the federal government I am at a loss of why they wouldn’t grant driver’s licenses,” Trefonas said.

In the hands of the attorney general

The letters sent by the ACLU and the Human Right Practicum arrived on the desk of the Assistant Attorney General Doug Moench last week.

The office will now provide copies of the letter to WyDOT and the governor’s office so they can review the points made by the immigration attorneys. Moench said he has not yet reviewed the letters or analyzed the legal arguments they contain.

“We’ll definitely review the letter and analyze their point of view and I’m sure we we’ll have a discussion on it,” he said. Any final decision is up to Attorney General Gregory Phillips.

Meanwhile, immigration attorneys are hoping their letter will resolve the issue without the need for any further legal action.

For example, Phillips could rule that those enrolled in DACA are lawfully present and therefore eligible for licenses, an action recently taken by the attorney general of North Carolina.

“I’d like to think that reasonable minds take reasonable information and make good decisions with it,” Trefonas said. She has confidence that the arguments provided to the attorney general and the governor’s office are sound. Much of the information is backed up by precedents in other states and the opinions of national immigration law experts. “I would like to think that’s all we have to do,” she said.

Failing that, the attorneys might try to put together a lawsuit. If that doesn’t work, it’s possible that the legislature could take up the issue.

One legislator, at least, had thought about the driver’s license issue long before DACA.

“There have been several movements to allow undocumented workers driver’s licenses so they can have insurance, first of all, and have some form of identity. Bring them out of the shadows so to speak,” said Sen. Floyd Esquibel (D-Laramie).

Esquibel said he worked on a proposal along those lines several years ago. While it didn’t get passed, it did earn some thoughtful consideration.

“If you can’t get a driver’s license what good is your work permit?” Esquibel said. “It would seem that is an area we should look at a little more thoroughly.”

Since Wyoming isn’t a major destination for undocumented workers, immigration hasn’t become a major subject of public debate. That leaves supporters of driver’s licenses for DACA workers unsure of how any legislative action on the issue might be received.

“I’m sure there are pockets where they would get support for it, and I would suppose there are pockets where they wouldn’t,” Trefonas said.

Meanwhile, the national immigration debate is moving forward at a rapid pace. The DACA program expires in 2014, but the Obama administration will likely take further executive action to renew DACA until the end of the president’s term.

While she is grateful for the DACA program, Ana also hopes that immigration reform will get congressional attention.

“I am hopeful that Congress will do something for everyone, or at least for this group of people. In the long run, it will be better for the country because we are productive members of society who want to help contribute and stay here.”

For her own part, Ana has graduated from the University of Wyoming and now works with her language skills while helping to run a business.

Ana said she didn’t have a choice in coming to the U.S. from Mexico, because that decision was made by her mother. But now that she’s lived in Wyoming as an adult, she’s not sure she wants to leave the open space and independent mentality she’s come to appreciate.

“I love this state. When I was thinking about going back to school, and whether I wanted to do it in Wyoming or in Washington, it crossed my mind that I have lived here for many years and it would be difficult to leave. I’ve learned to live in this place and I really like it,” she said. “I am forever grateful to Wyoming because it’s made me who I am.”

The Wyoming Chapter of the American Civil Liberties Union’s letter to Wyoming Attorney General Gregory Phillips

The Human Rights Practicum at the University of Wyoming’s letter of legal analysis to Wyoming Attorney General Gregory Phillips

Anonymity policy: WyoFile grants anonymity only in certain rare cases where revealing the identity of an private citizen could be damaging to the source or their family. In this story, that policy applied to Ana and Leslie, who could face discrimination despite having authorization to live and work in the U.S.

— Gregory Nickerson is the government and policy reporter for WyoFile. Originally from Big Horn, he holds an MA in history from the University of Wyoming and currently lives in Laramie.

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