- The Washington Times - Thursday, August 16, 2012

President Obama’s new non-deportation policy has thrown many of the thorniest immigration questions back into states’ laps, as governors and legislators now must decide whether to issue driver’s licenses or allow in-state tuition at public colleges to the illegal immigrants who will be given an iffy legal status.

Under the program, young adult illegal immigrants can apply for what the administration calls “deferred action” — an official notice that they are not going to be deported, and can live and work in the U.S., though they are not actually deemed to be here legally.

The problem is that in many states, having a work permit and a certificate of deferred action from the government is often good enough to earn a driver’s license.

This week, as the federal government began to accept applications, those states began to grapple with what they will do.

“We’re in a little bit of new territory here with the federal government. By their own admission, they’re basically saying individuals who do not have lawful status can remain here and work, but by no definition do they have lawful status or lawful presence,” said Matthew Benson, spokesman for Arizona Gov. Jan Brewer.

Ms. Brewer handled the issue one way — she issued an executive order saying that the new documents will not be considered proof of legal status and can’t be used to get a driver’s license in her state.

But California’s Department of Motor Vehicles went the other direction, telling reporters they will begin to issue licenses to those who qualify for the program. The DMV didn’t return a call from The Washington Times on Thursday.

Under Mr. Obama’s policy, illegal immigrants no older than 30 who were brought to the U.S. by age 16, who don’t have a serious criminal record and who enroll in classes or take a job-training course can apply for deferred action.

Tens of thousands of illegal immigrants lined up at clinics and consulates to get legal help or straighten out passports Wednesday — the first day the government was taking applications.

The Migration Policy Institute says that with the relaxed education standards, more than 1.7 million illegal immigrants could qualify for deferred action.

Only two states — Washington and New Mexico — don’t require proof of legal presence for someone to get a driver’s license. The rest have varying controls — and now must decide what to do.

Some states also ban illegal immigrants from getting in-state tuition at public colleges, arguing that because they aren’t in the country legally, they can’t be legal residents of the state. Those standards, too, will have to be revisited.

The situation arises just months after the Obama administration went to the Supreme Court to argue that states should not create a patchwork of laws regarding immigration, as they sought to overturn Arizona’s strict crackdown law.

The administration this week washed its hands of the controversy.

“Those are state questions,” said an official whom the administration made available to brief reporters on the condition that he not be named. “I’d have to point you to agencies that are responsible for issues like those.”

Analysts said states will take different approaches.

Jessica M. Vaughan, director of policy studies with the Center for Immigration Studies, said states with governors who want to crack down on illegal immigration likely will follow Ms. Brewer’s lead and find ways to try to deny licenses, while governors who want illegal immigrants to be legalized will follow the California model.

“It’s going to be the classic patchwork situation,” she said.

After the Sept. 11 terrorist attacks, Rep. F. James Sensenbrenner Jr., Wisconsin Republican, sponsored the Real ID Act, which pushed states to require proof that those seeking licenses are in the country legally.

The Sept. 11 hijackers had valid state licenses, which they used to board the airplanes, even though many were not in the U.S. legally. The Sept. 11 commission that investigated the attacks recommended that states tighten their license requirements.

Some states have balked at following the requirements, but Mr. Obama’s program throws the situation into even more chaos.

Mr. Sensenbrenner’s office did not respond to a request for comment Thursday.

Janice L. Kephart, who is now with CIS but who was a counsel to the Sept. 11 commission, said Real ID remains in place and states that want to comply with it should not be issuing licenses.

She said Real ID requires not just legal presence, which the work permit could prove, but it also requires that immigrants be listed in a database maintained by U.S. Citizenship and Immigration Services, the agency that also is running the deferred-action program — something that is unlikely.

“If the administration decides theses people should get licenses, then there is an argument that the feds are violating federal law — the Real ID Act — as making ‘deferred action’ a ‘lawful status’ is significant enough that Congress could argue that change requires congressional approval,” she said. “It is highly doubtful Congress would do that, however.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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