Arizona, Michigan and a few other states have been denying DREAMers drivers licenses on the ground that DACA recipients are not legally present in the US. However, USCIS issued this week a new item to its FAQs that will make it harder for states to stand by this argument.
Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.
DACA recipients are not getting a new lawful status, but they are at least going to be considered legally present during the DACA period and this should be adequate for drivers license purposes. The status language is largely there to make it clear that DACA won't excuse one's prior unlawful presence such that a person could pursue a green card or other visa.
I don't expect Jan Brewer and her allies in other states to respect the DHS pronouncement. But I do think that the DREAMers interested in taking her to court just got a big boost in their odds of winning.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.