PHOENIX - Claiming the trial judge was wrong, attorneys for Arizona "dreamers" want a federal appeals court to immediately order the state Motor Vehicle Division to start issuing licenses to deferred action recipients.
Legal papers filed late Monday contend there are real dangers to those in the program, formally known as Deferred Action for Childhood Arrivals, including arrest for driving without a license and the inability to get certain jobs. That, coupled with a state policy of issuing licenses to those in other deferred action programs, shows challengers are facing "irreparable harm."
That question is crucial: Federal court rules require a judge weighing whether to issue any kind of injunction to consider whether there is a chance of irreparable harm to those seeking the relief. The judge also has to balance the hardships on each side of the dispute.
In this case, the lawyers contend, that harm to the dreamers, including the five plaintiffs in the case, is quite real. The lawyers pointed out one of the plaintiffs already has been cited for driving without a license, pleaded guilty and was forced to pay a fee to have the vehicle released from an impound lot.
Last month U.S. District Court Judge David Campbell concluded the challengers may eventually win the lawsuit after a full-blown trial, saying there is evidence the state policy violates equal protection provisions of the U.S. Constitution.
Campbell refused to order Gov. Jan Brewer to start issuing licenses, saying the challengers cannot argue they are being irreparably harmed because they have admitted they are driving. Further, Campbell previously ruled that how the challengers get around is legally off limits to questioning.
In pleadings Monday to the 9th U.S. Circuit Court of Appeals, attorneys for the challengers said Campbell ignored all of the harms their clients face, including "restricting job opportunities, limiting the freedom to engage in everyday life activities, and requiring dependency on other to accomplish basic tasks." They said those entitle the dreamers to immediate relief.
Hanging in the balance are driving privileges for 80,000 Arizonans who may be eligible for the program announced last year by the Obama administration, which says those who arrived before age 18 and meet other conditions are not subject to deportation. They also are entitled to documents allowing them to work legally in the country.
At last count, more than 19,000 Arizonans had applied, with U.S. Citizenship and Immigration Services already approving in excess of 15,000.
A 1996 Arizona law says licenses are available only to those who show their presence in this country is "authorized by federal law." Lawyers for the state contend that deferred action is simply an administrative decision to ignore the fact these people are not in this country legally.
Attorney Karen Tumlin of the National Immigration Law Center pointed out Arizona has been issuing licenses to those in different deferred action programs. And Campbell said last month it appears that denying licenses to only this group violates federal constitutional provisions guaranteeing equal protection under the law.
Relying on his earlier ruling, though, Campbell refused to consider the harm to those who admitted they are driving without a license. And without that as an issue, the judge said that was not enough for him to order Arizona to start immediately issuing licenses.
Tumlin acknowledged attorneys in this case asked that challengers not be forced to admit, under oath, they are violating Arizona laws requiring licenses to drive. But she said their fears are still relevant to the question of whether they're entitled to the emergency relief.