PHOENIX (CN) - Though Arizona's denial of driver's licenses to certain undocumented immigrants has been found illegal, Gov. Jan Brewer petitioned the U.S. Supreme Court for relief.
Brewer announced the ban on licenses in August 2012, on the same day that the federal Deferred Action for Childhood Arrivals (DACA) program took effect, deferring immigration-related actions against young adults under 31 who were brought to the country before the age of 16, had attended school, and not committed any felonies or serious misdemeanors.
The Arizona Dream Act Coalition and five individuals who qualify for the program filed suit, challenging the ban as a violation of their equal-protection rights and federal pre-emption principles.
Though U.S. District Judge David Campbell found "irreparable harm" unlikely, the 9th Circuit disagreed and said that the plaintiffs deserved an injunction.
"Plaintiffs' inability to obtain driver's licenses likely causes them irreparable harm by limiting their professional opportunities," Judge Harry Pregerson wrote for a unanimous three-judge panel in July.
A concurring opinion by Judge Morgan Christen said Arizona's policy violates federal pre-emption principles as "an impermissible regulation of immigration status."
With the 9th Circuit refusing to back down, Brewer petitioned the Supreme Court Justice Anthony Kennedy for a stay Thursday pending the resolution of its bid for certiorari. It filed a notice with the trial court as well.
The 45-page petition signed by Fennemore Craig attorney Timothy Berg emphasizes that President Barack Obama recent executive action makes the issue all the more critical.
"This presents fundamental issues of constitutional law and state sovereignty, the significance of which cannot be downplayed in light of the Executive Branch's continued expansion of deferred action and refusal to enforce federal immigration law," Berg wrote.
After Obama moved last month to block the deportations of about 4.7 million immigrants who can prove they have been here for five years or more with a clean record, 18 red states filed suit , and Arizona and four other states quickly joined the action.
Berg's petition also slams the 9th Circuit's opinion for having purportedly "ignored the fact that DACA recipients are not authorized to be in the United States under federal law."
There is also the matter of the concerns by the Arizona Department of Transportation (ADOT) "that issuing driver's licenses to DACA recipients might expose ADOT to legal liability for issuing licenses to 80,000 unauthorized immigrants because: (1) 'this concern has not been borne out by the numbers,' and (2) ADOT is 'unable to identify instances in which' it faced liability for issuing licenses to unauthorized noncitizens," Berg wrote.
Berg contests the 9th Circuit's opinion as well on the basis that it "conflates federal law and congressional action with an administrative agency's internal policy."
"If the Court of Appeals had followed Supreme Court precedent, it would have properly found the DACA memo does not create federal law, and necessarily determined that the DACA memo cannot preempt state law," he wrote.
Nebraska has a ban similar to that of Arizona, and the ACLU is fighting for relief there as well. On its website the ACLU has posted a January 2014 order allowing its challenge there to advance.
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