New America Media

PHOENIX – Arizona governor Jan Brewer issued an executive order on Wednesday (July 15) that will deny undocumented youth access to state-issued identification cards and other state benefits. But the order, say legal experts, will have consequences for other immigrants as well.

The Republican governor issued her executive order on the very day immigrants in Arizona and across the country became eligible to apply for the Deferred Action for Childhood Arrivals (DACA) program, a federal policy that allows work permits and defers deportation for immigrants who arrived in the U.S. illegally prior to age 16 and who meet a number of other criteria.

Brewer’s order, meanwhile, calls on state agencies to draft policies that would block beneficiaries of DACA from accessing state benefits such as driver’s licenses and identification cards.

But immigration attorneys predict that as a result, other immigrants — those who currently hold work permits under the Violence Against Women Act (VAWA), and others fighting deportation proceedings and in possession of a driver’s license — could also be adversely impacted by the order.

Brewer, who entered the national spotlight after signing SB 1070 and publicly defending the immigration bill all the way to the U.S. Supreme Court, indicated in the order that because deferred action does not offer full legal status to undocumented immigrants, Arizona will not confer state benefits.

DACA, announced by President Obama last June, does not guarantee a path to permanent legal status. But under DACA, some will become eligible to receive a work permit, a document traditionally used by immigrants to apply for state-issued identification cards.

Victoria Lopez, an immigration attorney at the American Civil Liberties Union (ACLU), said Brewer’s order could face legal challenges because her application of the law is incorrect and confusing.

“This is a clear example of how difficult it is to understand the complexities of immigration law, and its terminology,” explained Lopez.

While DACA beneficiaries are not considered to have “lawful or authorized status” – such status would open the door for them to qualify for a green card — the government is saying they now have “authorized presence” under DACA, which means they have permission to stay in the country legally, she said.

Arizona law currently uses the terms “authorized presence” and “lawful status” interchangeably, added Lopez, even though they technically have different meanings under federal law.

As a result, and whether it was Brewer’s intention or not, said immigration attorney Ezequiel Hernández, state employees at the Motor Vehicle Division (MVD) may well end up denying license applications to immigrants other than those the governor’s order is intending to target, due to confusion over the language used in Brewer’s order. “There’s a… lack of sophistication in that executive order,” said Hernández.

José Peñalosa, also an immigration attorney, agreed that the governor’s order could affect many immigrants other than just Dreamers – immigrants who came to the country as children. One such group is immigrants in possession of a work permit who have a deportation proceeding pending; a group that currently has a right to apply for a state issued ID.

Peñalosa, however, said that Brewer’s order could result in new state policies that would, in practice, deny ID applications to this particular group. “I think they’re going to equally apply [Brewer’s executive order] across the board,” he said.

Peñalosa interpreted Brewer’s order as “political revenge” against the Obama administration for its opposition of SB 1070. Key portions of that state law, among them one that made it a state crime to be an undocumented immigrant, were recently ruled unconstitutional by the U.S. Supreme Court, while the so-called “papers, please” portion was upheld.
Brewer’s executive order came down like a bucket of cold water for many undocumented youth, such as Daniela Cruz, who nevertheless still plans to apply for DACA.

“At the end of the day we still come out winning, because we will have a work permit and they can’t deport us,” said Cruz. “This is going to force us to unite and fight, even more.”

Carmen Cornejo, executive director of Cadena, a Phoenix-based group that advocates for the Dream Act – federal legislation that could open a path to citizenship for kids like Cruz — said the governor’s actions are fundamentally unfair.

“We are disappointed that the governor prefers the broken status quo,” said Cornejo. “She is closing the door of opportunity to people that are not responsible for being here illegally.”

“This is yet another reason why Arizona has no business trying to regulate immigration matters,” said Alessandra Soler, executive director of the ACLU of Arizona. “Brewer is distorting federal law and inaccurately interpreting state law… Not only is she singling out young people who are eligible for deferred action, but she also is excluding other categories of non-citizens who are authorized to be in the country, including victims of domestic violence, from obtaining state-identification while their immigration applications are being processed.”

Still unclear is how Brewer’s executive order will affect undocumented immigrants in Arizona who are trying to access affordable higher education at state institutions. Currently, Arizona law requires undocumented immigrants to pay out of state tuition, regardless of when they arrived or how long they have been living in the state.

Musaffar Chrishti, immigration attorney and director of the Migration Policy Institute Office at NYU School of Law, doesn’t see a viable legal challenge to Brewer’s executive order, since states have authority to decide to whom and how they grant state benefits such as a driver’s licenses. And he expects others states will follow suit.

“This is unprecedented,” said Chrishti. “This is not the last that we’ll hear of this. This is the beginning of a war between proponents of [DACA] and those that would do anything to undermine it and don’t believe the administration has the authority to [enforce] it.”