On June 15, 2012, the Department of Homeland security issued an Executive Branch memorandum entitled, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children;” commonly referred to as the Deferred Action for Childhood Arrivals (DACA) program.

Children who were brought to the United States as children and who met specific criteria were eligible to apply for protection from deportation and work authorization, renewable in two-year increments. Individuals were eligible for DACA if they arrived in the U.S. before their 16th birthday, met certain continuous presence requirements, were undocumented, met certain educational requirements, and had not been convicted of certain crimes.

Deferred action is a longstanding tool used by various federal agencies to provide undocumented individuals a mechanism through which they are shielded from deportation. Immigration and Customs Enforcement, the United States Citizenship and Immigration Service, Customs and Border Protection, and the Immigration Court have long used deferred action as a prosecutorial discretion tool.

The REAL ID Act, which governs the issuance of state driver’s licenses, refers to ‘deferred action status’ as a ‘lawful status.’ Additionally, a United States Citizenship and Immigration Services Frequently Asked Questions (last updated on March 8, 2018) states that “an individual who has received deferred action is authorized by 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.”

What is REAL ID?

The REAL ID Act provides standardization of and minimum specifications for the issuance of state driver’s licenses. Beginning in October 2021, the Transportation Security Administration will require all presented driver’s license and state I.D.s be REAL ID compliant, to board federally regulated aircraft.

Among other criteria, the REAL ID Act requires applicants to show proof of ‘lawful status’ when applying for a state driver’s license.  Specifically, the Act states that “a State shall require, before issuing a driver’s license or identification card to a person, valid documentation evidence that the person—(viii) has approved deferred action status.” §202(c)(2)(B)(viii).

The license or state I.D. may be issued for the validity period of the DACA recipient’s employment authorization document (EAD); meaning, that the license or state I.D. will expire the same day as the EAD.

According to the Department of Homeland Security’s REAL ID Frequently Asked Questions page, individuals with approved DACA will continue to be eligible for limited-term REAL IDs until the expiry of their EAD. Additionally, REAL ID-compliant states can continue to issue non-compliant licenses and I.D.s to individuals, regardless of their immigration status, if they so choose.

Rules for the Issuance of Driver’s Licenses

Although the REAL ID Act provides that DACA recipients may be eligible for REAL ID-compliant driver’s licenses, licenses are issued by the 50 states. As the individual states issue driver’s licenses, the rules governing eligibility for a driver’s license vary from state to state.

Typically, a grant of deferred action, work authorization, and having a social security number will be sufficient for a DACA recipient to receive a state driver’s license. However, a few states have issued specific rules and regulations for the issuance of a license to DACA holders.

Document Requirements

Typically, states require four types of documents to establish eligibility for a state driver’s license: (1) a social security number (SSN), (2) proof of identity and date of birth, (3) evidence of ‘lawful status,’ and (4) proof of residency. Although these four criteria are standard across most states, each state determines which documents will fulfill each requirement.

Some states do not explicitly require proof of ‘lawful status’ but require documents that only an individual with lawful status would possess. Conversely, a few states only require an individual to have a social security number to obtain a driver’s license.

The District of Colombia, along with fifteen states, issue driver’s licenses to undocumented immigrants. The following states issue driver’s licenses regardless of an applicants’ immigration status:

* California* Colorado
* Connecticut* Delaware
* District of Colombia (D.C.)* Hawaii
* Illinois* Maryland
* Nevada* New Jersey
* New Mexico* New York
* Oregon* Utah
* Vermont* Washington State

To obtain a license in these states, only proof of identity and proof of residency is required. Proof of identity can be shown with a foreign birth certificate, foreign passport, or Matricula consular. Some of these states require additional documents, such as a tax I.D. number, or proof of filing state tax returns. Many of these licenses may only be used for driving and not for identification purposes.

States Policies for DACA Holders

The vast majority of DACA recipients who have an EAD and a social security number will be eligible for a driver’s license, although nuances vary from state to state.

Currently, all states issue driver’s licenses to DACA recipients who are otherwise eligible for a driver’s license. When DACA was initially rolled out, a few states announced that they would not issue licenses to DACA recipients.

Michigan and North Carolina also imposed exclusions on DACA recipients; however, Michigan and North Carolina unilaterally rescinded those policies.

Ultimately, only two states-Arizona and Nebraska- implemented policies specifically excluding DACA recipients from license eligibility. The Arizona Department of Motor Vehicle revised its list of acceptable identity documents to exclude DACA EADs. However, it explicitly accepted EADs from other types of immigrants.

In July 2014, the Ninth Circuit U.S. Court of Appeals ordered the Arizona Department of Transportation to issue driver’s licenses to DACA recipients, finding that the policy was discriminatory. In January 2015, a circuit court issued an order terminating the policy.

Nebraska was also sued over its discriminatory policy; however, in May 2015, the Nebraska legislature passed a bill stating that those listed as having ‘lawful status’ by the REAL ID Act, and who were otherwise eligible, could be issued a driver’s license-including those with DACA.

Policy Implications

Being pulled over while driving is the single most common reason that immigrants have contact with law enforcement. When you provide people with driver’s licenses, you significantly reduce adverse contact with law enforcement by the immigrant community, and you free up police officer’s time for more pressing community needs.

Additionally, providing DACA recipients with access to driver’s licenses benefits the entire community. Licensed drivers are more knowledgeable about the rules of the road, are more likely to purchase a vehicle and register that vehicle, more likely to have car insurance, more likely to participate in society, and more likely to spend more time with their families. These changes directly impact the whole of society as more registered cars mean more revenue for the local community, and more insured drivers result in lower premiums across the board.

The End of Deferred Action for Childhood Arrivals

On September 5, 2017, the Trump administration announced that it was ending the Deferred Action for Childhood Arrivals program, and phasing out the program by March 5, 2018. USCIS also stopped accepting new DACA applications; however, renewals are still accepted. Multiple lawsuits were filed, and on June 28, 2019, the U.S. Supreme Court agreed to hear three consolidated cases on the matter. On November 12, 2019, the Court heard oral arguments; a decision is expected by June 2020.

Section §202(c)(2)(C)(i)-(iv) of the REAL ID Act delineates the rules for issuing driver’s licenses to those whose status is ‘deferred action.’ Section C states, in pertinent part, that “the State may only issue a temporary driver’s license or temporary identification card to the person.” §202(c)(2)(C)(i). It further states that a temporary license or identification card issued under this subsection “shall be valid only during the period of time of the applicant’s authorized stay in the United States.” §202(c)(2)(C)(ii). Lastly, a license under this provision may only be renewed “upon the presentation of valid documentary evidence that the status by which the applicant qualified for the temporary driver’s license… has been extended by the Secretary of Homeland Security.”

According to the Center for American Progress, more than 825,000 individuals have been approved for DACA since 2012. If DACA is terminated, most of these individuals will lose the opportunity to renew their driver’s licenses, unless they hold a non-immigrant visa status.

There are many things besides driving, for which one needs a driver’s license. Juxtaposed against the fact that only 15 states offer driving privileges to those who are undocumented, we will be left with hundreds of thousands of people who:

  • Are no longer authorized to drive a car;
  • No longer a have state-issued I.D.;
  • May no longer be able to enroll in college, universities, or trade schools;
  • May no longer be able to avail of in-state tuition at public universities;
  • May no longer be able to open a bank account;
  • May no longer be able to rent an apartment; and
  • May no longer be able to cash a check.