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DACA Ohio BMV Letter 2.8.13

DACA Ohio BMV Letter 2.8.13

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Published by OhioDreamAct
Attorneys, DREAMers, community members urge Attorney General Mike DeWine and Registrar Mike Rankin to issue drivers licenses for Deferred Action for Childhood Arrivals (DACA) recipients.
Attorneys, DREAMers, community members urge Attorney General Mike DeWine and Registrar Mike Rankin to issue drivers licenses for Deferred Action for Childhood Arrivals (DACA) recipients.

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Published by: OhioDreamAct on Feb 08, 2013
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02/08/2013

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February 8, 2013Mike DeWineOhio Attorney GeneralState Office Tower—17
th
Floor 30 E. Broad St.Columbus, OH 43215Mike RankinRegistrar Ohio Bureau of Motor Vehicles1970 W. Broad St.Columbus, OH 43223Dear Attorney General DeWine and Registrar Rankin:On June 15, 2012, the Obama administration announced that certain immigrants whowere brought to the United States as children would be eligible for what is known as “deferredaction.” Deferred action is a form of prosecutorial discretion in which federal authoritiesdetermine not to take action to remove certain individuals from the United States. On August 15,2012 United States Citizenship and Immigration Services (“USCIS”) began acceptingapplications for this new type of deferred action, known as Deferred Action for Childhood Arrivals, or DACA, and in January 2013, USCIS reported that over 150,000 young people havebeen approved for this program thus far.It has come to the attention of the undersigned Ohio attorneys and community membersthat several individuals who have been granted deferred action have recently experiencedproblems obtaining Ohio driver’s licenses. The various issues that have come to the attention of this group suggest a lack of uniformity in how different Ohio Bureau of Motor Vehicles officestreat DACA grantees. For this reason, we are writing to respectfully request that the Registrar of Motor Vehicles issue affirmative instructions to all license-issuing offices in the state clarifyingthat DACA grantees are eligible to receive an Ohio driver’s license. As you know, Ohio law does not affirmatively set forth the eligibility criteria for receivingan Ohio driver’s license. Instead, R.C. § 4507.08(D) prohibits the issuance of a driver’s licenseto any of seven enumerated categories of people, including “[a]ny person who is not a residentor temporary resident of this state.”
1
R.C. § 4507.01(A) defines “resident” as “a person who, inaccordance with standards prescribed in rules adopted by the registrar, resides in this state on apermanent basis,” and defines “temporary resident” as “a person who, in accordance withstandards prescribed in rules adopted by the registrar, resides in this state on a temporary
1
O.R.C. § 4507.08(D)
 
basis.”
2
Thus, the relevant inquiry is whether individual DACA grantees meet the prescribedstandards for permanent or temporary Ohio residency.Ohio Administrative Code § 4501:1-1-35 restricts the issuance of Ohio driver’s licensesto persons qualifying as residents of Ohio, defined as “a native-born or naturalized citizen of theUnited States or a person who presents credible evidence from the United States citizen andimmigration services (USCIS) that the person is a permanent resident of the United States.”
3
 However, the language of O.A.C. § 4501:1-1-35(A) explicitly contemplates that persons who donot qualify as residents under the aforementioned definition are still eligible for nonrenewablelicenses and nonrenewable identification cards.
4
 O.A.C. § 4501:1-1-35(B) reads, in its entirety: “A nonrenewable license or nonrenewableidentification card may be issued to a temporary resident of this state when the applicantpresents acceptable documents, including those listed in rule 4501:1-1-21 of the AdministrativeCode, verifying the following: the applicant’s full legal name, date of birth, social security number if ever assigned, proof of Ohio street address and legal presence in the United States, andtemporary residence in this state.”O.A.C. § 4501:1-1-35(A)(4) defines “legal presence” in the following words: “’Legalpresence means for the purposes of this rule that the individual has taken the necessary stepsto ensure that they have a recognizable legal status with the United States as evidenced by theappropriate legal documents issued by the United States citizen and immigration services(USCIS).”The key phrase to establishing that DACA grantees are eligible for Ohio driver’s licensesis “recognizable legal status,” which is not a term specifically defined in state or federal law.However, it can quickly be established by reference to several additional authorities that DACAgrantees do meet the Ohio Administrative Code’s “recognizable legal status” test. First, 6 CFR §37.3 includes an alien “who has approved deferred action status” within the federal definition of “lawful status.” Since DACA is a form of deferred action, DACA grantees clearly satisfy thefederal test. Second, USCIS is very clear on its Frequently Asked Questions website (a copy of which is appended to this letter) that “[a]n individual who has received deferred action isauthorized by the Department of Homeland Security (DHS) to be present in the United States,and is therefore considered by DHS to be lawfully present during the period deferred action is ineffect.” The fact that a DACA grantee is specifically authorized by DHS to be in the UnitedStates and considered to be “lawfully present” is plainly a “recognizable legal status” inasmuchas USCIS has authorized DACA grantees to be present in the United States for the duration of their deferment, and has provided them with legal documents that comply with the requirementsof O.A.C. § 4501:1-1-21.
2
O.R.C. § 4507.01(A)
3
O.A.C. § 4501:1-1-35
4
O.A.C. § 4501:1-1-35(A) reads, in its entirety: “No Ohio driver’s license, commercial driver’s license,motorcycle operator’s license, temporary instruction permit identification card (TIPIC) or identification card
other than a nonrenewable license or a nonrenewable identification card 
shall be issued to any personunless that person qualifies as a resident of Ohio under this rule.” (emphasis added)
 
Because several other states have, for apparently ideological reasons, announced thatthey will not comply with federal guidance establishing that DACA recipients are eligible for statedriver’s licenses, and because at least one federal lawsuit is currently underway charging one of those states with unconstitutional behavior, it is understandable that there should be confusionamong state officials about the rights and privileges conferred by DACA status. As has beennoted in complaints filed against states that are not in compliance with federal guidance onDACA grantees, failure to confer driver's licenses to DACA recipients would impermissiblyregulate immigration by creating a new state-based classification of noncitizens that treatsDACA recipients as though they were unauthorized and unlawfully present, and would exposeOhio to the same kind of federal lawsuits currently pending against non-complying states. Theundersigned appreciate the fact that prior to its abrupt and unexplained policy change, Ohio hadbeen issuing licenses to DACA grantees, and simply request that the Registrar explicitly clarifythat DACA grantees are eligible to receive driver’s licenses in Ohio.We appreciate your kind attention to this matter.Very truly yours,Brian J. Hoffman, Esq., ColumbusRichard Herman, Esq., ClevelandMatthew Benson, Esq., CincinnatiCesar Cuauhtemoc Garcia Hernandez,Esq., ColumbusLaura M. Jurcevich, Esq., ColumbusJorge Martinez, Esq., HamiltonBarbara Fernandez, Esq., ColumbusDeifilia Díaz, Esq., Mason Alex Durst, Esq., Cincinnati Angie Plummer, JD., ColumbusScott Culbert, Esq., Delaware Ambrose Moses, III, Esq., ColumbusBob Fitrakis, Esq., ColumbusLynn Tramonte, Cleveland HeightsPaula M. Jackson, CincinnatiNick Torres, Columbus Angy Valencia, ColumbusJose Trevino, ToledoJoel Diaz, ColumbusVeronica Isabel Dahlberg, PainesvillePadraic Stanley, FindlayPaige Jessee, CincinnatiEsteban Ortiz, WilmingtonSister Mary Wendeln, SilvertonLauren Hines, ColumbusUzuki Cahue, HilliardCraig King, ColumbusJanelle Henderson, ColumbusGabriela Santiago, ColumbusBarbara Glueck, Cincinnati

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