Lawsuit challenges new drivers license rules for noncitizens

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AMERICAN-STATESMAN STAFF 
Thursday, January 15, 2009

An Austin woman and two others claim in a lawsuit filed Wednesday in Travis County that new Department of Public Safety driver’s license requirements for noncitizens discriminate against them, even though they are legally in the United States.

The women, who are represented by the Texas Civil Rights Project, are identified in the District Court lawsuit as Sonia Castillo, a Mexican national who resides in Austin; Jocelyn Alvarez Torres, a Mexican national from Mount Pleasant in East Texas; and “Jane Doe,” a political refugee from Honduras living in Houston.

Castillo and Alvarez Torres are domestic violence victims and have a legal right to be here while their petitions for legal status are pending under the federal Violence Against Women Act, said James Harrington, the project’s director who is representing the plaintiffs.

All three women had driver’s licenses but were denied renewal or likely will be denied because they are not citizens and the DPS does not accept their federal work authorization status, Harrington said. The rules, which went into effect Oct. 1, are intended to prevent undocumented immigrants from obtaining driver’s licenses. At the same time, the DPS created a new kind of license for noncitizens that is valid until a driver’s legal status to be here expires.

The lawsuit seeks to force the DPS to stop enforcing the rules, which Harrington called “an unconscionable burden on immigrant survivors of domestic abuse and discriminatory against the Hispanic community.”

A spokeswoman for the governor’s office said the office had no comment on the lawsuit. “The governor for some time has been in support of those (license rule) changes to ensure public safety and national security and to enhance the integrity of the driver’s licenses,” said the spokeswoman, Katherine Cesinger.

The rules require people who are not U.S. citizens to prove they are in the country legally before getting an original, renewal or duplicate driver’s license or identification card. Harrington said noncitizens and nonlegal permanent residents — known commonly as green card holders — must show official work authorization, called an Employment Authorization Document, for a period that exceeds six months, or else they will not be able to get a license.

In addition, they must renew their licenses every six months, at a cost of $24 each time, Harrington said, adding that temporary workers who are legally in the country have to pay more than $200 more for licenses than a typical driver who renews a license once every six years.

Harrington explained that because of backlogs, it often takes the federal government months to provide the official work authorization document showing it has extended permission for the immigrant to work here.

Harrington said Jane Doe was denied a license even though she provided a letter from the federal government extending her work status. He said Doe, a single mother, depends on her car to work in minimum-wage jobs and has had a Texas driver’s license and auto insurance for 18 years. She continues to drive, Harrington said.

“What we ought to be doing in reality is facilitating people having driver’s licenses because that means they’ll have insurance, and that protects the public at large,” Harrington said.

jcastillo@statesman.com ; 445-3635

The Obama-Biden Plan

“The time to fix our broken immigration system is now… We need stronger enforcement on the border and at the workplace… But for reform to work, we also must respond to what pulls people to America… Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should.”

– Barack Obama, Statement on U.S. Senate Floor

May 23, 2007

The Obama-Biden Plan

For too long, politicians in Washington have exploited the immigration issue to divide the nation rather than find real solutions. Our broken immigration system can only be fixed by putting politics aside and offering a complete solution that secures our border, enforces our laws, and reaffirms our heritage as a nation of immigrants.

Create Secure Borders: Protect the integrity of our borders. Support additional personnel, infrastructure and technology on the border and at our ports of entry.

Improve Our Immigration System:  Fix the dysfunctional immigration bureaucracy and increase the number of legal immigrants to keep families together and meet the demand for jobs that employers cannot fill.

Remove Incentives to Enter Illegally:

 Remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants.

Bring People Out of the Shadows: Support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.

Work with Mexico:

 Promote economic development in Mexico to decrease illegal immigration.

Beginning on January 12, 2009 All Visa Waiver Program Travelers must have ESTA

ALL VISA WAIVER PROGRAM TRAVELERS MUST HAVE ESTA PRIOR TO TRAVELING TO THE U.S. BEGINNING ON JANUARY 12, 2009

 

On January 12, 2009, all business and pleasure visitors traveling to the U.S. from a Visa Waiver Program (VWP) country, who do not have valid a U.S. visa stamp in their passport, will be required to obtain an electronic system for travel authorization (ESTA) pre-boarding clearance. The information provided by the applicant to the system will allow the Department of Homeland Security (DHS) to make a preliminary determination of a traveler’s eligibility to enter the U.S. The ESTA clearance will need to be presented to the airline or cruise ship at the time of check-in for travel to the United States. As with a visa issued by a U.S. embassy or consulate, the issuance of an ESTA clearance is not a definitive guarantee of admission to the U.S. All final determinations of eligibility for admission to the U.S. will continue to be at the port of entry or pre-flight inspection by Customs and Border Protection (CBP).

 

The VWP countries presently include Andorra, Australia, Austria, Belgium, Brunei, Czech Republic,Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Republic of Korea, Singapore, Slovenia, Slovak Republic, Spain, Sweden, Switzerland and the United Kingdom.

 

In order to be issued an ESTA clearance, the prospective traveler must enter his or her biographic details (name, birthdate, passport information) as well as answer questions related to the travelers’ eligibility for admission to the U.S. under the VWP. Although application processing generally takes only a few seconds, we recommend that the prospective traveler allow sufficient time for the ESTA clearance to be issued as it has been reported that it may take up to several hours. For individuals without direct internet access, the ESTA request can be submitted by a friend, relative, travel personnel or other third party. Once queried, the system will provide one of three responses: (1) Travel authorized; (2) Travel Not Authorized; or, (3) Authorization Pending. The authorization pending will be resolved within 72 hours. If an ESTA clearance is not granted, the individual will need to apply for a visa at a U.S. embassy or consulate overseas prior to attempting to travel to the U.S. As visa application processing times vary, we recommend that an individual apply for an ESTA clearance as soon as U.S. travel plans are made.

 

The ESTA clearance is valid for a period of up to two years or for the duration of validity of the individual’s passport as long as the substantive information remains the same (name, gender, citizenship) as well as the responses to the eligibility questions. It is possible to update travel information in the system, such as the duration and purpose or location of the visit, for subsequent U.S. travel; however, this is not required.

 

We believe that the ESTA clearance process may be cumbersome for international travelers who previously were able to travel to the U.S. with nothing more than their passport, particularly those individuals that are not frequent travelers and have not been made aware of the requirement prior to attempting to check-in at the airport for travel to the U.S. Additionally, it could significantly increase visa wait times at U.S. embassies and consulates, particularly in the VWP countries if more individuals are not travel authorized through the ESTA system.

USCIS Memo on Preconceived Intent

The purpose of this memorandum is to clarify the NOL Districts position concerning the requirement of an Application for Waiver of Ground of Excludability, Form I-601 when an immediate relative is filing for adjustment of status.

Fiances or Fiancees Who Marry Later than 90 Days after Entry

Genco Op. No. 91-56, 1991 WL 1185167 (INS)

 8 U.S.C. 1101(a)(15)(K) . In order to qualify for entry, the alien fiance or fiancee must be seeking to enter the United States “solely to conclude a valid marriage with the petitioner within ninety days after entry.” Id. The alien’s minor children may also be admitted, if they accompany or follow to join the alien. Id. The aliens are precluded from changing to a different nonimmigrant classification. Id. 248(1), 8 U.S.C. 1258(1). The alien fiance or fiancee’s failure to marry the petitioner within three months of entry renders the alien fiance or fiancee, and any alien minor children, amenable to deportation from the United States. Id. 214(d), 8 U.S.C. 1184(d).

 

 

U.S. Department of Justice

Immigration and Naturalization Service

 

General Counsel’s Office

 

Legal Opinion Fiances or fiancees who marry later than 90 days after entry

James A. Puleo, Associate Commissioner, Examinations

CO 245-C

July 24, 1991

 

ATTN: Yolanda Sanchez-K., Senior Immigration Examiner

 

I. QUESTION

This Legal Opinion addresses the following question: If the marriage between an alien fiance or fiancee and a citizen petitioner does not occur until more than 90 days have elapsed since the alien’s admission, is there any basis upon which the alien may obtain permanent residence through adjustment of status?

 

II. SUMMARY CONCLUSION

The alien may not adjust, on the basis of his or her admission under Section 101(a)(15)(K), if the alien marries the citizen petitioner more than 90 days after entry. The citizen may, however, file an alien relative visa petition (Form I-130) after the untimely marriage. Once the petition is approved, the alien may then apply for adjustment of status.

 

III. ANALYSIS

The Immigration and Nationality Act of 1952, as amended, creates a nonimmigrant classification for the alien fiance or fiancee of a United States citizen. INA 101(a)(15)(K), 

The Service may not adjust the status of an alien fiance or fiancee to permanent residence, except on the basis of the alien’s subsequent marriage to the citizen petitioner. Id. 245(d), 8 U.S.C. 1255(d). The regulation implementing this provision is codified at 

8 C.F.R. 245.1(b)(13) 

. As currently written, Section 245.1(b)(13)  appears to bar adjustment entirely, unless the alien fiance or fiancee and the citizen petitioner marry within 90 days of the alien’s entry. Section 245(d) of the INA, on which  Section 245.1(b)(13) is based, does not include this 90-day time limit. The alien may not be admitted as a fiance or fiancee, however, unless the alien and the citizen petitioner intend to marry within 90 days of the alien’s entry. INA 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K). The alien becomes deportable if the couple does not marry within three months of entry. Id. 214(d), 8 U.S.C. 1184(d). Section 245.1(b)(13), therefore, is a reasonable interpretation of the fiance/fiancee provisions read as a whole.

The Service has recently become aware of cases in which the alien and citizen married, but the marriage took place more than 90 days after the alien’s entry. In one case, for example, the couple delayed their marriage after the death of one of their parents. Another potential problem involves alien fiances and fiancees of members of the Armed Forces deployed abroad for Operations Desert Shield and Desert Storm. The situations raise the question of whether an alien fiance’s untimely marriage constitutes an insurmountable bar to the alien’s adjustment.

Moss v. INS, 651 F.2d 1091 (5th Cir. 1981) , presents a possible solution to this dilemma. In Moss, the alien and citizen had married 92 days after the alien’s admission. In deportation proceedings, the alien attempted to present before the immigration judge evidence that illness intervened to delay the scheduled marriage. The immigration judge refused to admit the evidence, and the Board affirmed the resulting deportation order. The court held that the alien was entitled to present the evidence, and that Section 214(d) would not apply if the alien was successful in establishing a reasonable explanation for the failure to marry within the prescribed period. The court of appeals based its decision on the imprecise language of Section 214(d). 651 F.2d at 1093, n. 4. Under the statute, the couple must marry within “90 days,” but the alien is deportable only if the marriage does not occur within “three months.” The court noted that almost any “three month” period will exceed “90 days.” Id.

The court, however, cited no authority that supports its creation of an “unforeseen circumstances” exception to the requirement that an alien fiance and citizen petitioner marry within 90 days of the alien’s entry. 651 F.2d at 1093. The court did refer to Menezes v. INS, 601 F.2d 1028 (9th Cir. 1979), but this case did not involve the legal consequence of an alien fiance’s failure to marry within the time allowed by law. Since courts lack authority to alter deadlines set by Congress, INS v. Pangilinan, 485 U.S. 875 (1988), we conclude that an alien fiance or fiancee may not adjust, based on his or her admission under sections 101(a)(15)(K) and 214(d), if the alien marries the citizen petitioner more than 90 days after the alien’s admission.

An untimely marriage, however, need not be an insurmountable bar to the alien’s adjustment. The Service may not adjust the alien’s status “except to that of an alien lawfully admitted to the United States on a conditional basis…as a result of the marriage of the nonimmigrant…to the citizen who filed the petition to accord that alien’s nonimmigrant status under Section 101(a)(15)(K).” INA 245(d), 

8 U.S.C. 1255(d)

. The alien clearly may not seek adjustment under the preference system, nor on the basis of a marriage to a different citizen. Id. Section 245(d) of the Act, however, does not clearly preclude the citizen petitioner from filing a new visa petition on the alien’s behalf after the untimely marriage. Approval of the citizen spouse’s alien relative visa petition would qualify the alien spouse as an “immediate relative.” Id. 204, 8 U.S.C. 1184. [FN1] The alien could then apply for adjustment, notwithstanding the fact that the failure to marry within the time allowed by Section 214(d) renders the alien’s status unlawful. Id. 245(c)(2), 8 U.S.C. 1255(c)(2). Since the alien’s adjustment would still be based upon his or her marriage to the citizen petitioner, Section 245(d) would not clearly bar the alien’s adjustment.

Section 245.1(b)(13) of the regulations would not prohibit the adjustment either. As noted, this regulation appears to prohibit the alien’s adjustment absolutely if the marriage is untimely. This aspect of  Section 245.1(b)(13) , however, is not strictly required by the text of Section 245(d) of the Act. We recommend, therefore, that the Service interpret Section 245.1(b)(13) 

narrowly, so that it applies to the alien’s adjustment as a now-married fiance or fiancee, but does not preclude the alien’s adjustment based on a new visa petition (Form I-130) filed by the citizen spouse after the untimely marriage. Since the alien may only be adjusted as a conditional permanent residence under Section 216 of the Act, INA 245(d), 8 U.S.C. 1255(d)

, the alien would have to apply for adjustment within two years of his or her marriage, see id. 216(a)(1) and (g)(1), 8 U.S.C. 1186a(a)(1) and (g)(1).

Our conclusion involves an interpretation of an existing regulation. It is not, strictly speaking, necessary to amend Section 245.1(b)(13) in order to implement this interpretation. If the Service decides to adopt our recommendation, however, it would be prudent to amend Section 245.1(b)(13) accordingly. Doing so will help ensure uniformity of practice. We have, therefore, enclosed a draft amendment to this regulation that conforms to our recommendation.

/s/ Grover Joseph Rees, III

8 U.S.C. 1255(c)(2).

General Counsel

FN1. Unless the Service approves a visa petition according the alien the status of an “immediate relative,” the alien’s unlawful status would create an additional bar to adjustment. See INA 245(c)(2), 

Enclosure

Genco Op. No. 91-56, 1991 WL 1185167 (INS)

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