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Columbus, OH 43215 Mike Rankin Registrar Ohio Bureau of Motor Vehicles 1970 W. Broad St. Columbus, OH 43223 Dear Attorney General DeWine and Registrar Rankin: On June 15, 2012, the Obama administration announced that certain immigrants who were brought to the United States as children would be eligible for what is known as “deferred action.” Deferred action is a form of prosecutorial discretion in which federal authorities determine not to take action to remove certain individuals from the United States. On August 15, 2012 United States Citizenship and Immigration Services (“USCIS”) began accepting applications 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 have been approved for this program thus far. It has come to the attention of the undersigned Ohio attorneys and community members that several individuals who have been granted deferred action have recently experienced problems 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 offices treat 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 clarifying that 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 receiving an Ohio driver’s license. Instead, R.C. § 4507.08(D) prohibits the issuance of a driver’s license to any of seven enumerated categories of people, including “[a]ny person who is not a resident or temporary resident of this state.”1 R.C. § 4507.01(A) defines “resident” as “a person who, in accordance with standards prescribed in rules adopted by the registrar, resides in this state on a permanent basis,” and defines “temporary resident” as “a person who, in accordance with standards prescribed in rules adopted by the registrar, resides in this state on a temporary
O.R.C. § 4507.08(D)
basis.”2 Thus, the relevant inquiry is whether individual DACA grantees meet the prescribed standards for permanent or temporary Ohio residency. Ohio Administrative Code § 4501:1-1-35 restricts the issuance of Ohio driver’s licenses to persons qualifying as residents of Ohio, defined as “a native-born or naturalized citizen of the United States or a person who presents credible evidence from the United States citizen and immigration 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 do not qualify as residents under the aforementioned definition are still eligible for nonrenewable licenses and nonrenewable identification cards.4 O.A.C. § 4501:1-1-35(B) reads, in its entirety: “A nonrenewable license or nonrenewable identification card may be issued to a temporary resident of this state when the applicant presents acceptable documents, including those listed in rule 4501:1-1-21 of the Administrative Code, 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, and temporary residence in this state.” O.A.C. § 4501:1-1-35(A)(4) defines “legal presence” in the following words: “’Legal presence means for the purposes of this rule that the individual has taken the necessary steps to ensure that they have a recognizable legal status with the United States as evidenced by the appropriate 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 licenses is “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 DACA grantees 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 the federal 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 is authorized 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 in effect.” The fact that a DACA grantee is specifically authorized by DHS to be in the United States and considered to be “lawfully present” is plainly a “recognizable legal status” inasmuch as 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 requirements of O.A.C. § 4501:1-1-21.
O.R.C. § 4507.01(A) 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 person unless that person qualifies as a resident of Ohio under this rule.” (emphasis added)
Because several other states have, for apparently ideological reasons, announced that they will not comply with federal guidance establishing that DACA recipients are eligible for state driver’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 confusion among state officials about the rights and privileges conferred by DACA status. As has been noted in complaints filed against states that are not in compliance with federal guidance on DACA grantees, failure to confer driver's licenses to DACA recipients would impermissibly regulate immigration by creating a new state-based classification of noncitizens that treats DACA recipients as though they were unauthorized and unlawfully present, and would expose Ohio to the same kind of federal lawsuits currently pending against non-complying states. The undersigned appreciate the fact that prior to its abrupt and unexplained policy change, Ohio had been issuing licenses to DACA grantees, and simply request that the Registrar explicitly clarify that 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., Columbus Richard Herman, Esq., Cleveland Matthew Benson, Esq., Cincinnati Cesar Cuauhtemoc Garcia Hernandez, Esq., Columbus Laura M. Jurcevich, Esq., Columbus Jorge Martinez, Esq., Hamilton Barbara Fernandez, Esq., Columbus Deifilia Díaz, Esq., Mason Alex Durst, Esq., Cincinnati Angie Plummer, JD., Columbus Scott Culbert, Esq., Delaware Ambrose Moses, III, Esq., Columbus Bob Fitrakis, Esq., Columbus Lynn Tramonte, Cleveland Heights Paula M. Jackson, Cincinnati
Nick Torres, Columbus Angy Valencia, Columbus Jose Trevino, Toledo Joel Diaz, Columbus Veronica Isabel Dahlberg, Painesville Padraic Stanley, Findlay Paige Jessee, Cincinnati Esteban Ortiz, Wilmington Sister Mary Wendeln, Silverton Lauren Hines, Columbus Uzuki Cahue, Hilliard Craig King, Columbus Janelle Henderson, Columbus Gabriela Santiago, Columbus Barbara Glueck, Cincinnati
Heather Yomboro, Hilliard Ariana Ulloa-Olavarrieta, Hilliard Rev. Joan Vanbecelaere, Columbus Nancy Holman, Columbus David Boggs, Columbus Sandy Wong, Columbus Kyla Snow, Westerville Sylvia Vasquez, Columbus Andrew Murry, MD, Lancaster Maritza Motino, Columbus Carol Nowlin, Hilliard Gloria Schanely, Columbus Esmeralda Flores, Columbus Ines Valdez, Columbus Tani Kushner, Columbus Karen Castro, Canal Winchester Dr. Robert Hines, Columbus Diana Pagan, Columbus Brian Williams, Columbus Deanna Stickley-Miner, Columbus Leslie Espinoza, Columbus Eric Hernandez, Columbus Laura Gomez, Columbus Natalie Dibartola, Columbus Augusto Sanchez, Columbus Yalidy Matos, Columbus
Connie Hammond, Columbus Carol Apaestegui, Stow Cristal G, Columbus Manuel Perez, Cincinnati Robin Burnette, Columbus Kelly O'Rourke, Columbus Tony Chou, Columbus Walthinho Casanova, Columbus Evava Pietri, Columbus Max Dwinne, Columbus Jesus Ventura, Columbus Laura Santiago, Columbus Sarahy Farias, Columbus Kenneth Ramos, Pickerington Judy Crawford, Westerville Laura Little, Groveport Nolan Stevens, Columbus Debra Sanborn, Groveport Maria Apaestegui, Stow Rohany Flores, Columbus Erika Ruelas, Galloway Daisy Torres, Worthington Ana Osorio, Columbus Marisol Guijosa, Columbus Jenny Polanco, Columbus Iliana Gomez, Grove City
Andrea Herrera, Columbus Irma Nonato, Columbus Juan Segura, Hilliard Deborah Wang, Kent Jillian Park, Columbus Ron Irvine, New Paris Nyasia, Detroit John Stroman, Columbus Adriana Castillo, Dublin Rebecca Tollefson, Worthington Victalina Montejo, Dublin Joanna Rodriguez, Galloway Jose A Hernandez, Kent Eunice Park, Cleveland Marco Saavedra, Columbus Eleazar Sanchez, Columbus Paul Sonenberg, Columbus Becky Guzman, Columbus Teresa Parsons Jabe, Columbus Maria Arriaga, Columbus Ana Delgado, Akron Gladis Sandoval, Columbus Manuel Bartsch, Findlay Courtney Pugno, Delaware David G. Hogan, Delaware Maria Renee Banig, Tallmadge
Marisol Duarte Lopez, Columbus Rebecca Jenkins, Akron Naomi Hokky, Ravenna Cheryl Edie, Delphos Nancy Connor, Columbus Francine Stacy, Dayton Mark D. Stansbery, Columbus Jose Villegas, Columbus Erin Mckinney, Chesterland Yanheli Lopez, Hilliard Anita Rios, Toledo Larren Mcbride, Columbus Maggie Baxter, Columbus Jennifer Hess, Pickerington Karen James, Worthington Sarah Schneider, Pataskala Jenny Sigler, Columbus Jennifer Bartley, Columbus Rikki Baxter, Columbus Joshua Bohinc, Grandview Heights Megan Sutherland, Columbus Anna Roberto, Columbus Jason Fullen, Hilliard Northwest News, Hilliard This Week Chelsea Skaggs, Columbus Natalie Dibartola, Columbus Dorothy Christensen, Westerville
Elizabeth Sierra, Columbus Samantha Feierabend, Pickerington Sandra Hamilton, Ada Christine Gilmore, Hilliard Erin Hammond, Granville Kenneth Adler, Sylvania Benjamin Wellman, Columbus Sue Morrissey, Cincinnati Sean Nestor, Toledo Louise Hernandez, Kent Alyssa Shumaker, Westerville Lewis Beman, Westerville David Yingling, Enon Katherine Plank, Plain City Margaret Singer, Cincinnati Don Bryant, Cleveland Maria Torres, Dublin Kate Snow, Westerville Esteban Badillo, Hilliard Judith G Ramirez Torres, Columbus Eduardo Biffi, Columbus Bill Christensen, Columbus Kerry Davis, Gahanna Mark Sullivan, Westerville Nicole Mills, Westerville Kenneth Warren, Westerville
Sarah Ammerman, Columbus Cynthia Smith, Columbus Joshua D Wilson, Columbus Melinda Layman, Pickerington Andreanna Doane, Westerville Dana Hazen, Columbus Mike Szlapak, Westerville Bill Canonico, Columbus Daniel Nathan, Bexley Sher Isaacs, Columbus Nannette Horn, Columbus William Scott, Columbus Debra Griffin, Westerville Matt Shetler, Columbus Bernie Larsen, Columbus Staci Rue, Columbus Liz Gee, Lewis Center Kristin Maccaughey, Columbus Carol Achmoody, Westerville Brooke Bohinc, Columbus Rachell Smith, Bexley Linda Mcpherson, Columbus Andrew Saperstein, Westerville Deborah Whitney-Scott, Westerville Christopher Scott, Westerville Jeannine Panovich, Westerville
Mark Batcheck, Columbus Jonathan Rue, Westerville Lauren Scott, Columbus Valerie Middleton, Columbus Christian Root, Columbus Joyce Shuster, Columbus Andrew Oswalt, Columbus Rhodara Shreve, Columbus Alicia Streicher, Westerville Marlene Nathan, Westerville Amy Moorehead, Dublin Lorie Kaufman Rees, Columbus Beulah Kishore, Westerville Christophaer Andrew Wade, Columbus Melody Kulp, Grove City Corey Garris, Dublin Noelle Shearer, Westerville Jeff Baker, Westerville Craig Heselton, Columbus Melissa Carvill-Ziemer, Kent Barbara Castanien, Gahanna Thalita Pontes, Blacklick George Garshar, Youngstown
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