MIAMI — Tens of thousands of undocumented immigrants who have been able to drive legally in Florida may be unable to get driver’s licenses again, after the state quietly changed its identification requirements for obtaining licenses.
In May the Florida Department of Highway Safety and Motor Vehicles tightened its document requirements that outline what some immigrants must provide in order to get their driver licenses. It’s the most striking change of at least six that have been made in the past six months, making it almost impossible for people who are in the deportation process to legally drive — something they had been able to do before, according to internal documents obtained by the Miami Herald.
Before May 11, people with pending deportation hearings were able to get a drivers license as long as they had a court document proving they had a future hearing date. Now, when applying for or renewing a license — which for immigrants could be valid anywhere from one to four years — they need to present an unexpired passport and an I-94 form, the federal document proving they entered the U.S. legally.
The problem: The majority of people in deportation proceedings did not enter the country legally.
Though the Executive Office for Immigration Review — a sub-agency of the U.S. Department of Justice whose chief function is to conduct removal proceedings in immigration courts — does not keep data for how many people enter the country legally versus illegally, immigration lawyers and experts across the state and country say most of their undocumented clients in deportation entered the country “without inspection” — without checking in at a port of entry.
As of June 2020, there were at least 120,000 people in deportation proceedings for the fiscal year in Florida and more than 1.2 million across the country, government data shows. There is currently no data on how many of those people are unlicensed. Deportation proceedings almost always drag on for years, and in some instances they can take a decade.
“The new requirement shows that the government is alienating those who are in removal proceedings,” said Elizabeth Ricci, who is liaison with the DMV for the Central Florida chapter of the American Immigration Lawyers Association.
“Traditionally if you were in removal in Florida, you could get a license with no problem, as long as you had a hearing date scheduled. However, now the government is discriminating against an entire category of applicants.”
Ricci, a longtime immigration law expert, said the “documents they are requesting are prohibitive.”
“Most people who are in the deportation process did not enter the country legally, which is why they are in deportation proceedings in the first place,” she added. “This is an extraordinary impediment for a very large group of people in our country, a group of hardworking people who need to drive in order to work and put food on the table.”
The abrupt change to the DMV’s “acceptable documents table” — the internal document the state gives to staffers at local DMV offices that serves at their official guide to what the current license requirements are — comes at a time when the Trump administration has continued its efforts to severely limit immigration during a global health pandemic.
Some other changes that have occurred since February include stricter rules on what documents will be accepted from TPS holders, “Dreamers,” refugees and Cubans who file under the Cuban Adjustment Act when applying for identification at local licensing offices.
DMV officials denied that there was any “change,” instead saying that the state “updated” the internal document in order to be “more compliant” with the federal REAL ID Act. The law, which Florida has adhered to since 2010, establishes security standards for license issuance and production. When it initially passed in 2005, it was designed to keep U.S. citizens from holding multiple licenses and Social Security numbers and to allow government officials to check immigration standing. So far 26 states have adopted it.
The DMV would not disclose exactly how and why the change came about and would not say whether or not the requirement change was a result of a directive from the governor or the president. Neither the Department of Homeland Security nor Gov. Ron DeSantis’ office responded to the Herald’s request seeking comment.
Aaron Keller, director of communications for the Florida Department of Highway Safety and Motor Vehicles, said that “these federal guidelines have always required the validation of both lawful presence and identity before a driver license is issued — hence the need for an I-94 and valid passport.”
But that’s not true, according to the law and national immigration experts who specialize in the Real ID Act.
Jackie Vimo, a policy analyst who leads the National Immigration Law Center’s driver’s license policy work and heads the center’s economic justice program, said the federal law only lists minimum standards and does not require a specific set of documents. She said whatever documents a state requires is discretionary and is negotiated with the Department of Homeland Security on a state-by-state basis.
“There is no such thing as being more compliant. You’re either compliant or not compliant,” Vimo said. “Florida has been REAL ID-compliant for a decade, which means DHS accepted their prior list of documents as meeting their minimum standards. If the DMV is saying that it requires an I-94, it’s not how REAL ID works.”
According to REAL ID act, an I-94 is just one of many documents an immigrant can use to prove they have “lawful presence” in the U.S. Other acceptable documents include work authorization cards — and prior to May 11, according to Florida DMV records obtained by the Herald, included proof of a future hearing, which serves as an acknowledgment that the government is aware of the immigrant’s presence.
The federal law also says that “states are not required to comply with these requirements when issuing REAL ID driver’s licenses.” (Though states don’t have to comply with the standards, there are some consequences, including the inability to use the driver license as official identity documentation when boarding a plane.)
“Seems like the personnel at the DMV are being forced to act as immigration agents under the cover of state law,” said Joel Caminero, an immigration attorney based in Orlando. “It’s overreaching, making things harder for people who have lived here for a long time, and who have driven for a very long time.”
Michael Gold, a Tallahassee immigration lawyer who began his law practice in 1986 on the streets of Miami-Dade County, echoed Caminero.
“This was just invented now; Florida’s getting creative,” he said. “It’s disingenuous to say that an I-94 has always been required,” Gold said. “My clients have never, never, never had to provide it.”
Miguel Hernandez was one of them. Hernandez, who provided a notice to appear along with a bank credit card that sported his photo on it, said he “had no issue” getting a license back in February.
“It was easy. All my friends who are on the same boat as me have licenses,” he said.
The explanation that the DMV provided to the Herald contradicts its own website, which says an I-94 is just one of several documents the undocumented person can provide to obtain a driver’s license.
DMV officials told the Herald that the acceptable documents table “does not and was not created to address every possible scenario, procedure or policy for the issuance of a driver’s license or ID. The Driver License Operations Manual — and not the Acceptable Documents Table — is the definitive procedure document used by staff for the issuance of driver licenses.”
But that’s news to Ricci, as well as two former top DMV officials that served on the department’s legal counsel.
“In all my years, the table was the go-to, not an operations manual,” said one of the former officials, who asked for anonymity due to their position at another government office. “In regards to the change in requirements, there has to be a mechanism to make that happen. When I was at the department a few years ago, we did not make changes to the accepted documents table unless there was a change in the law or a directive from the governor’s office or the president.”
Said Ricci: “So if the DMV says it’s always required an I-94, does that mean it’s been issuing licenses in error all this time?”
When the Herald asked, the DMV did not comment.
Ricci added: “It’s interesting that they provide a secret list for DMV employees inside and another set for the public to see,” Ricci said. “The list used to be online years ago and now it’s not.”
According to the second former DMV lawyer, the acceptable documents table “was always online but was at some point within the last three years taken down.”
Records obtained by the Herald show that the DMV has barred immigration lawyers across the state from sharing the new table, which is given to the American Immigration Lawyers Association every time it’s tweaked. However, the document comes with a warning: “This document may not be shared outside of AILA without permission from” the Florida Department of Highway Safety and Motor Vehicles.
Lawyers say they’ve been told that any sharing of the document would result in the possible termination of the relationship between AILA and the DMV.
DMV officials did not comment on why the department doesn’t want immigration lawyers sharing the document, but said in an email that the table “is a public record” and would be provided to anyone who asks for it.
The Herald interviewed three DMV managers in South Florida in July who agreed to interviews under the condition of anonymity because of fear of retribution by the state.
“We’ve turned lots of people away in the last two months — lots,” one supervisor said. “It’s been frustrating on both ends to have to explain to people, even asylum seekers, that if they would have come in April they would have been able to get a license. I sound like a broken record.”
Another manager referred to the acceptable documents table as “our Bible.”
“It’s what we use to determine who gets a license,” the second lead staffer said. “I’ve never referred to a manual for that. The table is our manual.
A third manager said “the government has recently changed the rules because of fraud.”
“Some people were coming in with doctored court notices, so they changed the document requirements,” the manager said, who noted that on that day, the office turned away six people.
‘LICENSE TO LIVE’
For one 33-year-old Mexican national who lives in Central Florida, a driver’s license means more than taking a joy ride.
“For me, it’s about going to work and providing for my wife and three children,” said the immigrant, who asked not to be named because of his status. He said he’s been living in the U.S. for 18 years and driving for about 15.
In early June, he was arrested by local police in north Florida for driving without a license. After being booked, the jail called U.S. Immigration and Customs Enforcement, which later transferred him into ICE detention.
“I drove for a long time without a license because I was scared that my information would be shared with ICE,” he said after being released on bond. “But since I was pulled over and arrested, and now I’m in deportation proceedings, my lawyer told me I didn’t have to drive in secret anymore, that I qualified for a license because I have proof being acknowledged by the court.”
But it didn’t pan out that way. He was recently turned away at the DMV.
Neil Rambana, an immigration lawyer based in Tallahassee who once served as a congressional liaison for AILA, said what “Florida is doing is creating a dangerous precedent.”
“All this is doing is forcing people to drive without permission, without insurance, therefore putting themselves and others in danger,” he said. “It’s also an easy way for the administration to almost guarantee that more people would end up in ICE detention and ultimately in line to be deported.”
According to state law, driving without a license is a second-degree misdemeanor that can result in a fine as large as $500 and up to 60 days in jail. If detained by one of the 48 police departments ICE has an agreement with, the individual could be transferred to ICE detention.
Meanwhile, the Mexican construction worker who was turned away said the situation “isn’t unfortunate, it’s catastrophic.”
“How am I supposed to feed my family if I can’t drive to work? My heart sank when they told me the rules changed,” he told the Herald during a Facetime interview as he held up a copy of the new acceptable documents table a DMV employee gave him.
“I don’t drive, but sometimes I go buy milk for my baby boy. I have to hide to make sure they don’t catch me and stop me because they see a Latino at the steering wheel.
“I may sound dramatic to many because for them it’s just a license to drive,” he said as he left Walmart with two bags of formula for his toddler. “But for me, it’s a license to live.”
©2020 Miami Herald