José Cárdenas: This week the 9th Circuit Court of Appeals ruled that young undocumented immigrants who were given deferred deportation status can have driver's licenses in Arizona. Governor Brewer had issued an executive order denying those licenses. The court ruled that the young undocumented immigrants were harmed by what the Court said was Arizona's unequal treatment of those granted the federal work permits. The Governor's Office reacted to the ruling by calling President Obama's Deferred Action for Childood Arrivals lawless, and said the ruling was especially disturbing because of the recent influx of young illegal immigrants. Joining me now to talk about the ruling I'm joined by Alessandra Soler, Executive Director for the ACLU of Arizona. Congratulations on the victory. The Governor did react very, very strongly. Any justification for her linking the DACA program to the recent development with respect to the immigrants from Central America, the children?
Alessandra Soler: No, there's absolutely no justification. In fact, there are rules relating to the DACA recipients. They have to be in this country for at least five years, they had to have arrived before they were 16-years-old. The situation involving the humanitarian crisis on the border involves very recent arrivals, and so the circumstances are very different.
José Cárdenas: There's no way the DACA program could be encouraging people to come here from Central America?
Alessandra Soler: No, not at all. And in fact, you know, the federal government -- the reason why they have chosen to give these hardworking young immigrants the ability to work and live in this country is because they recognize the Executive Branch. Congress gave the Executive Branch the discretion to make these decisions about who to allow to live and work in this country, and they made the decision that it's in all of our best interests to allow these young immigrants to live and work here.
José Cárdenas: So before we get into the specifics of the opinion, give us a brief recap as to how we got here.
Alessandra Soler: Sure. What happened was that in August of 2012, the day that the DACA program, the federal Obama’s program to allow, basically, to give these kids a two-year reprieve from deportation to allow them to live and work here, the day that program went into effect the Governor announced an executive order denying them driver's licenses, which was extremely, extremely tragic for these kids. That is one of the things the court ruled now was that not being able to drive in this state is irreparable harm.
José Cárdenas: The reason the governor had to do that, in terms of protecting her position, was otherwise, based upon DACA, they would be entitled to get driver's licenses under Arizona law.
Alessandra Soler: Exactly. Oh, sure. One of the things, for years before we got to this point, August 2012, when she issued that executive order, Brewer had been giving driver's licenses to similarly situated immigrants. In fact, the court ruled from 2005 to 2012, they cited in their decision 47,000 immigrants, noncitizens with work permits had been receiving driver's licenses.
José Cárdenas: And that's because they have deferred status.
Alessandra Soler: Exactly. That's one of the issues in this case that we argued is look, you can't single out these dreamers and treat them differently simply because you disagree with the President's federal policy. And that's what the court ruled.
José Cárdenas: At the trial court level, the Governor responded, as I recall, it had some impact on the court's decision by saying, well okay, I'll take care of that disparate treatment by making sure we don't give licenses to anybody in deferred status.
Alessandra Soler: Right, what she did was make a bad policy worse. She expanded the ban to include domestic violence survivors, victims of sex trafficking, to even more vulnerable groups of immigrants. But the court addressed that head on and said, look --
José Cárdenas: The 9th circuit. But what happened at the District Court? Why was that not persuasive?
Alessandra Soler: The issue at the District Court level was we had asked for a preliminary injunction to immediately block this order from going into effect. And the judge at the District Court level said you weren't able to demonstrate these kids were suffering irreparable harm, so to speak. What they did was the judge said you have a valid argument that these young immigrants are being discriminated against and being singled out under the Fourteenth Amendment, but you haven't demonstrated irreparable harm.
José Cárdenas: And you pointed out the difference between the District Court and the 9th Circuit, as I understand it, are the trial court judge viewed this as a mandatory injunction. You were trying to force the state to do something it hadn't been doing, and that's a tougher standard to beat. The 9th circuit disagreed. Explain all that.
Alessandra Soler: The 9th Circuit basically ruled that we were able to prove that these kids were suffering, and that it was an emergency situation and that we had to block the order from going into effect. They basically -- our clients in this case, we've got single mothers, we have primary caregivers, we have business owners, young 21-year-old business owners who can't see clients unless they take a four-hour bus ride. That was a very, very compelling argument that the court agreed was hurting these kids.
José Cárdenas: And as I understand it what the court said is that, on the issue of whether it would change the status quo or maintain it, they said no, it maintains the status quo because this is what you were doing before DACA came down.
Alessandra Soler: Exactly. That was the point initially. The state of Arizona for years has been issuing driver's licenses to noncitizens who have received deferred action from the federal government. That has been a policy in place for years. Over –- nearly 50,000 immigrants have gotten these licenses. And the state tried all kinds of legal maneuvering and arguments to demonstrate that they had a rational basis for this decision and the court saw through that. And the court said you cannot rationalize discrimination. Your decision to deny them drivers’ licenses is based simply on animus, your hatred towards these young immigrants, and it's causing real harm. So, the 9th Circuit then is remanding it back to the District Court, who will then we estimate in the next 30 days will be issuing an injunction that will allow these kids to get driver's licenses.
José Cárdenas: And I want to talk about we may being seeing coming down the road, literally, no pun intended, you mentioned rational basis. That is actually a term of significance in the opinion because that standard is a fairly weak standard. It's not ruled very hard most of the time for the government to prevail when the court says, we're going to analyze what you've done using that standard. And yet, the 9th Circuit went through argument after argument after argument and said this fails the rational basis test.
Alessandra Soler: Sure. Well, the issue of the disparate treatment, treating these young immigrants differently. The state had argued basically that we're only going to be giving driver's licenses to deferred action citizens who are on some sort of a pathway to remaining here in the United States. And then the court provided examples of that's not the case. Here are examples of where you have been giving licenses to similarly situated immigrants. And again, you can’t legitimize discrimination. The other issue was the state tried to create sort of new classifications for these DACA recipients, the young Dreamers. And then the state said you have no legitimate public policy interest in moving this ban forward.
José Cárdenas: Some of the other arguments the state made had to do with driver's licenses and how they would be used. What happens if you have to take them back and so on and so forth.
Alessandra Soler: Right, I mean, the state said well look, these kids what if the federal government says that, changes its policy, then we're going to have to pull back, collect those driver's licenses. The reality is driver's licenses here in Arizona are issued temporarily. They are issued based off of when you're here lawfully in the United States. They issue them for a period, usually they can expire in one or two years depending on how your immigration status changes, that happens regularly. So we were really pleased that the court went step by step to discredit those arguments.
José Cárdenas: You mentioned the word animus. That’s a word the court used describing perhaps the motivation by the governor with respect to this. Rather harsh statement, don't you think?
Alessandra Soler: It is, but I think we believe the court didn't use the phrase vindictive, but it is -- these kids and these immigrants were sort of caught in this political fight between Brewer and the federal government. She's using them as a football to kind of advance her own political agenda. And that was what the court -- you're right. The court said this is based on animus towards these young immigrants, because of your disagreement with the federal government. Brewer has said in her statement, she's accusing Obama of being lawless. She accuses anyone who disagrees with her of being lawless. But the irony is that the court found that she, in fact, and the State of Arizona are being lawless by ignoring the constitutional rights of these hard working immigrants. Again, from the public policy perspective, this is to our benefit. It's to Arizona's benefit for these kids to be working, contributing to our communities, for them to be licensed and tested and driving and insured on our streets.
José Cárdenas: Alessandra, we're almost out of time. What can we expect to see in a few weeks in terms of action perhaps by the Supreme Court to stay the 9th Circuit’s decision?
Alessandra Soler: The Governor has announced she is going to appeal. We -- obviously that does not mean that the 9th Circuit has to review the decision. She may seek --
José Cárdenas: Reconsideration.
Alessandra Soler: She may.
José Cárdenas: We're almost out of time. Do you think it's going to get to the Supreme Court?
Alessandra Soler: I don't think so. I think that we're estimating, we’re hopeful that within days they will start to issue driver's licenses.
José Cárdenas: Well, thank you for joining us on "Horizonte" to talk about it.