POSITION PAPER: IMPACT OF NEW DRIVER'S LICENSE RULE ON NON-CITIZENS

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Position Paper: Impact of the New Driver's License Rule on Non-citizens

A single, reported incident of a Dallas taxi driver bringing undocumented immigrants into Texas to obtain driver's licenses in an attempt to exceed their lawful stay in the United States sparked a fear of an increasing illegal immigration population in the state.[1] In response to this concern, the Public Safety Commission, the governing board of the Texas Department of Public Safety (DPS), adopted rule 37 TAC § 15.171 in October 2008 to increase restrictions on driver's licenses and identification cards.[2] The stated purpose for adoption of the stringent rule was to remedy concerns about national security, identify theft, fraud, and protection of the integrity of the licensing process, as well as bring Texas into closer compliance with the federal Real ID Act-a 2005 law that set more rigorous standards for state driver's licenses and identification cards and is currently under attack by the Department of Homeland Security.[3]

Unfortunately, the new DPS rule has caused more problems than it has solved, making it more difficult and expensive for immigrants legally residing in the U.S. to acquire a driver's license or identification card, and putting these documents out of reach for other immigrants who are unable to satisfy the new restrictions and are left without a means to drive to work or school. Civil rights organizations have joined forces to fight to rescind the rule. These include the American Civil Liberties Union (ACLU), Mexican American Legal Defense & Educational Fund (MALDEF), League of United Latin American Citizens (LULAC), and the Texas Chapter of the American Immigration Lawyers Association (AILA). Human Rights Initiative (HRI) is concerned because several of our clients-who are legally in the United States and qualify for a driver's license or identification card under DPS rules-have been denied one or both of these documents.

Before adoption of 37 TAC § 15.171, individuals applying for driver's licenses or identification cards were required to show documentation only to establish identity, not legal status.[4] However, § 15.171 now requires non-U.S. citizens to prove they are in the country legally before they are issued an original, renewal, or duplicate license or identification card.[5] Many legal immigrants have been denied a license or ID card because of gaps in the rule's provisions that fail to cover the vast array of legal statuses available to the immigrant population. This lack of foresight in the rule-making process, coupled with a lack of understanding and training on the part of DPS employees in the area of immigration, has created unnecessary alienation of the immigrant population in Texas.

Before adoption of § 15.171, an unexpired visa was an acceptable form of identity for an immigrant seeking to obtain a driver's license or ID card.[6] The new rule added an additional requirement, however, whereby immigrants who are not green-card holders must present immigration documents showing they have been admitted to the United States for at least a year and have at least six months to remain in the country.[7] This new time requirement presents a number of obstacles for legal immigrants, as do the list of alternative acceptable documents that fail to include every kind of immigration status.

For example, a certified copy of an immigration court order is one of the only forms available to individuals who have been granted asylum that will be accepted by DPS.[8] Some asylees, however, are not granted a court order in their claim for asylum and therefore cannot obtain an ID until they adjust to permanent resident status. This process can take several years. Moreover, immigrants whose status does not provide them with any of the immigration forms on the DPS list are barred from receiving a license or identification card, and are left without recourse.

Immigrants who have been granted status under the Violence Against Women Act (VAWA) receive "deferred action," which has the practical effect of allowing the individual to stay in the U.S. until she can adjust to lawful resident status.[9] Initial grants of deferred action are for fifteen months and must be renewed every year thereafter, but the current trend is to allow renewal indefinitely.[10] Nevertheless, this type of document may be rejected by DPS on the basis that it does not indicate validity for at least a year, or show that the immigrant has six months remaining in the U.S.[11]

Immigrants encounter other serious problems as well. Some immigrants may have a work authorization card (called EAD) as their only form of identification of legal status. An EAD was accepted by DPS prior to the adoption of § 15.171, but must now be valid for six more months under the new rule.[12] Unfortunately, the timing of an EAD renewal many times does not coincide with the driver's license renewal, and if less than six months remains on the work authorization card DPS will not renew the license until a new one arrives. This is problematic because the renewed EAD is often late due to the slow bureaucratic process. And although immigration will often send an informal letter that extends immigrants' work status in the meantime, DPS will often refuse to accept such a letter as proof of immigration status.[13]

The denial of driver's licenses on the basis of valid EADs that have a term of less than six months remaining has a distinct impact on seasonal employees. Companies that legally hire foreign workers for seasonal employment through a federal visa program have been unable to fulfill their work commitments because their employees are unable to drive to the work locations.[14] One such example is the federal H2-B program, which gives workers a legal right to work and live in the United States usually for ten months or less. Under the new DPS rule, however, the workers are unable to get their driver's licenses because their work authorization visa is good for less than one year.[15]

Even if a legal immigrant clears these hurdles and manages to obtain a license or identification card, he is faced with additional regulations that make the process more costly and cumbersome. Under the new rule, immigrants must prove their immigration status every year and in-person, and must pay $24 to renew their licenses each time.[16] Not only is the annual renewal an inconvenience and a substantial time commitment, immigrants also face a significantly higher financial burden at a potential cost of over $120 more than that of a U.S. citizen who must pay only $24 every six years for a renewal.[17]

In addition to the increased cost to immigrants, the DPS procedures adopted in accordance with the rule require their licenses to look distinctly different from typical licenses. Licenses issued to immigrants are vertical and have the words "Temporary Visitor" on the top, even though an immigrant may be a legal permanent resident whose status does not expire, who is not here temporarily, and who is eventually able to apply for U.S. citizenship.[18] There is also a statement near the individual's photograph that indicates the expiration date of his or her legal stay in the United States, which is declared to be one year if the individual is legally in the United States indefinitely. [19] Governor Perry has stated the reason for these alterations is "so that [immigrants] are immediately recognizable by the police."[20] Nevertheless, the vertical alignment of the license and the "Temporary Visitor" designation were not mentioned in § 15.171, but were instead adopted in accordance with a department-wide memo.[21] The license modifications make Texas only the second state in the country to have a different-looking license for a set of drivers.[22] Immigrants' rights groups fear the difference in the licenses' visual appearance may easily lead to racial profiling and discrimination.[23]

Legal immigrants are not the only group who have faced difficulty with the new DPS rule. U.S. citizens have also been snagged in its net. Although U.S. citizens are not required to show documentation of their citizenship under § 15.171, in some cases DPS cannot determine whether an individual is a U.S. citizen without proof of citizenship.[24] The problem apparently stems from an incomplete database used by DPS to verify legal status.[25] Showing identification of U.S. citizenship, however, may create problems for those citizens who do not have a passport or who do not have a birth certificate readily available, such as individuals who were born abroad.[26] And with discretion given to each DPS office to make judgment calls on which individuals appear to be U.S. citizens, there is a high potential for racial discrimination of minority groups in DPS offices across the state.[27] Indeed, HRI has found that our clients often overcome the hurdles posed by this rule only once an HRI employee accompanies them to DPS or makes a phone call on their behalf.

As a practical matter, the new rule negatively affects everyone in the state of Texas. Not only has § 15.171 put a greater strain on state resources by spending taxpayer dollars defending the legality of the rule and training DPS employees on its enforcement, the rule also has created a public safety concern by increasing the risk of more unlicensed and uninsured drivers on Texas roads.[28] Legal immigrants who have been denied driver's licenses and have no alternative transportation to work or school will most likely eschew legal requirements and opt for driving without a license.[29] Since many insurance companies require an individual to have a driver's license before purchasing car insurance, and all others stipulate a mandatory time period for an individual to acquire a license, an increase in the number of uninsured drivers on Texas roads is also likely.

Many Texans question whether DPS even had the power to promulgate the new license and identification rule without a legislative directive. In the recent legislative session, § 15.171 was met with mixed reactions by state legislators. A dozen or so bills were filed that addressed the rule and its intended goals. Some bills attempted to codify the rule while others attempted to retract it in whole or in part. With the end of the legislative session on June 1, however, no real progress was made by either camp. The DPS overhaul legislation (HB 2730) originally contained a provision addressing the new driver's license requirements, but the provision was removed in the House and sent to Governor Perry on June 3 without any such language.[30] Thus, it appears enforcement of § 15.171 will have to be resolved in the courtroom.

Two lawsuits have already been filed challenging § 15.171. In a hopeful victory for immigrant rights groups, a state trial court judge issued a temporary injunction of § 15.171 in a suit filed by MALDEF.[31] In the court's opinion, Judge Naranjo emphasized that the case "is not about illegal immigrants obtaining driver licenses, it is about legal residents who have been denied or have been threatened a denial of a driver license."[32] Judge Naranjo held that DPS "acted outside the scope of its statutory authority" when it adopted § 15.171 pursuant to the Texas Transportation Code § 521.142(e) because the legislature did not give DPS the authority to create a new category of ineligible persons to receive a driver's license, did not give DPS the authority to create exceptions to the six-year renewal term, and DPS did not adopt the changes in appearance of the license through proper notice and comment rulemaking.[33]

DPS has appealed the decision to the Third Court of Appeals in Austin and the temporary injunction has been stayed pending the outcome of the appeal. The appeal has been expedited as is the case in all appeals of temporary injunctions. This translated into the state having twenty days to file their appellate brief and MALDEF having twenty days to reply following the state's submission. The deadline for this forty-day window ended in early June. In filing their response brief MALDEF additionally requested that the court forego oral arguments and rule only on the briefs to speed up a lift of the injunction. The court is expected to rule on the case in the following two to four months. Although DPS's apparent strategy is to postpone the outcome of the case as long as possible, the department appears to have exhausted its arsenal of delay tactics at this point. Many immigrants and immigrant rights advocates eagerly await the outcome of the court's decision.

Texas Civil Rights Project has also filed suit for a temporary injunction on behalf of three women who had driver's licenses but were denied renewal of their licenses because DPS would not accept their federal work authorization status.[34] Two of the women are victims of domestic violence-one of whom has been granted status under VAWA and one of whom has her legal status pending under VAWA-and the third woman has been granted Temporary Protected Status (TPS).[35] The federal judge granted DPS's motion to abate pending the outcome of the legislative session, and both parties must file a status report by June 30 to update the court on any action taken by the legislature. Because Governor Perry has recently called a special session, however, it is likely that the judge will further delay the case in order to defer to any potential legislative solution.

Although some Republican lawmakers have proposed that a clarification of the rule for the benefit of the public and DPS employees would solve the problem,[36] the rule as written is irreconcilable with current federal immigration law and can only be resolved by its modification or termination.

HRI recommends:

• The Texas Legislature must demand that Governor Perry include as an issue for the special session the abrogation of § 15.171 to eliminate or reduce the harmful effects on immigrants.
• In the absence of a statutory fix, the Third Court of Appeals must uphold a temporary injunction of § 15.171 as outside the scope of DPS's power allocated by the legislature.
• If § 15.171 remains in place, DPS must modify the rule's provisions to extend the renewal periods for driver's licenses and ID cards to six years for immigrants who have permanent legal resident status or who are in the United States indefinitely in order to align with the requirements for U.S. citizens.
• DPS must better train their employees on the different types of immigration status so that driver's licenses and identification cards are not improperly denied to lawful immigrants.
• DPS must also change its operating procedure so that its employees are required to accept informal letters from federal immigration agencies that extend the work authorization of immigrants whose renewed EADs have not yet been issued.
• DPS should also issue driver's licenses to immigrants that are identical in appearance to all other driver's licenses to decrease the risk of racial profiling and discrimination.

[1] Clay Robison, DPS Cracks Down on Illegal Immigrants, Hous. Chron., available at http://www.texascivilrights project.org/?s=eligible.

[2] Id.

[3] Id.; 33 Tex. Reg. 5270 (proposed July 4, 2008) (to be codified 37 TAC § 15.171) available at http://texinfo.library/ .unt.edu/ texasregister/html/2008/jul-04/PROPOSED/37.PUBLIC%20SAFETY%20AND%20CORRECTIONS .html.; Homeland Security Chief Seeks to Repeal Real ID Act, CNN.com, Apr. 22, 2009, available at http://www.cnn.com/2009/POLITICS/04/22/real.ID.debate; Miguel Liscano, New Rules for ID Cards, Driver's Licenses, Austin-Am. Statesman, available at http://www.texascivilrightsproject.org/?s=eligible.

[4] Liscano, supra note 3.

[5] 33 Tex. Reg. 5270.

[6] Peggy Fikac, DPS Standing Firm on Approval of Noncitizen Driver's Licenses, Hous. Chron., Apr. 10, 2009, available at http://www.chron.com/disp/story/mpl/front/6368537.html.

[7] Id.

[8] See 37 T.A.C. § 15.171 (Oct. 1, 2008).

[9] Catholic Legal Immigration Network, Inc. and Immigrant Legal Res. Ctr., The VAWA Manual: Immigration Relief for Abused Immigrants 4-25 (2006).

[10] Id.

[11] See Robison, supra note 1.

[12] See Clay Robison, DPS Sued Over Tighter Rule for Immigrant Drivers, Hous. Chron., Jan. 14, 2009, available at http://www.chron.com/disp/story.mpl/chronicle/6210805.html.

[13] Press release from James C. Harrington, Director, Texas Civil Rights Project, Two Non-citizen Domestic Violence Survivors and a Honduran Refugee Sue DPS, Claiming New Driver's License Requirements are Discriminatory and Burdensome (Jan. 14, 2009) (on file with author).

[14] Monika Diaz, Law Change Hits North Texas Landscaping Companies, Dallas Morning News, Jan. 31, 2009, available at http://www.dallasnews.com/sharedcontent/dws/news/localnews/tv/stories/wfaa090131_lj_diaz2. 8289a8c.html.

[15] Salazar v. Tex. Dep't of Pub. Safety, No. D-1-GN-09-000273, at 3 (419th Tex. Dist. Court Apr. 9, 2009).

[16] Harrington, supra note 13.

[17] Id.

[18] Salazar, No. D-1-GN-09-000273, at 3; Immigrant Advocates Call for an End to New Texas Driver's License Rules, The Institute for Southern Studies, Dec. 11, 2008, available at http://www.southernstudies.org/2008/12/ immigrant-advocates-call-for-an-end-to-new-texas-drivers-license-rules.html.

[19] Salazar, No. D-1-GN-09-000273, at 5.

[20] Robison, supra note 1.

[21] Salazar, No. D-1-GN-09-000273, at 5.

[22] Immigrant Advocates Call for an End to New Texas Driver's License Rules, supra note 18.

[23] Id.

[24] Lisa Falkenberg, Editorial, Citizenship "Glitch" Hurts new DPS Law, Hous. Chron., Nov. 19, 2008, available at http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/6122164.html.

[25] Id.

[26] See Kelly Shannon, Some Dems Try to Undo New Driver's License Rules, Hous. Chron., Mar. 16, 2009, available at http://www.chron.com/disp/story.mpl/headline/metro/6314264.html; see also U.S. Dep't of State, Documentation of U.S. Citizens Born Abroad, http://travel.state.gov/law/info/overseas/overseas_703.html.

[27] Falkenberg, supra note 24.

[28] Id.

[29] Id.

[30] See Peggy Fikac, House Tentatively OKs Shakeup at DPS, Hous. Chron., May 13, 2009, available at http://www.chron.com/disp/story.mpl/headline/metro/6422977.html.

[31] Salazar, No. D-1-GN-09-000273.

[32] Salazar, No. D-1-GN-09-000273, at 1.

[33] Id., at 4-5.

[34] Juan Castillo, Austin-Am. Statesman, Lawsuit Challenges New Driver's License Rules for Noncitizens, Jan. 15, 2009, available at http://www.tomesparza.com/2009/01/15/lawsuit-challenges-new-drivers-license-rules-for-noncitizens/.

[35] Id.

[36] Shannon, supra note 26.

HRI would like to thank the following interns from Southern Methodist University's Dedman School of Law for their help with this project:  Angela Vorpahl  for the initial research and drafting of this position paper, Austen Swaim with cite-checking.