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.
The legal papers filed late Monday they 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. They even pointed out that one of them 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. In fact, he said there is evidence that the state's policy violates equal protection provisions of the U.S. Constitution.
But 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, in fact, driving. More to the point, they previously got him to rule how they get around is legally off limits to questioning.
In pleadings Monday to the 9th U.S. Circuit Court of Appeals, attorneys for 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.'' Attorney for the state contend deferred action is simply an administrative decision to ignore the fact these people are not in this country legally and instead focus on higher priorities.
But 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 did say last month it appears that denying licenses to this group -- and this group alone -- violates federal constitutional provisions guaranteeing equal protection under the law.
"That, in and of itself, should have established irreparable harm necessary to issue an injunction,'' Tumlin said. "They're being harmed by a policy that singles them out and treats them differently than everybody else that has temporary status to be in the country.''
Relying on his earlier ruling, though, Campbell refused to consider the harms 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 did ask to protect the challengers so they were not forced to admit, under oath, they are violating Arizona laws requiring licenses to drive.
But she said the plaintiffs made voluntary admissions in questions posed by attorneys for the state. She said that makes their fears relevant to the question of whether they're entitled to the emergency relief.
The attorneys also said even when Campbell did consider the comments of one challenger, the judge improperly ignored what was said.
In that case, the person said he has a four-hour round-trip commute to work because he cannot drive. But Campbell said that "inconvenience does not constitute irreparable injury,'' saying if he ultimately rules the state's policy is illegal, that person can seek compensation.
Attorneys for challengers said that misses the point.
"The court ignored the extent of the injury and mischaracterized the harm as compensable in nature, providing no explanation for how the plaintiff can be compensated for the many hours unnecessarily lost from his every week while commuting,'' the lawyers wrote.