Obstacles to Obtaining Driver’s Licenses for Undocumented Immigrants
A privilege that many Americans often take for granted is the ability to obtain a driver’s license. In fact, most of the U.S.’s infrastructure is so dependent on a car-based transportation economy, that obtaining a driver’s license has become a near-mandatory rite of passage for teenagers. However, the right to a driver’s license is not a right that is extended to everyone living in the U.S. In many states, including Georgia, undocumented immigrants cannot obtain a driver’s license. The issue of whether they should be extended this right has been debated in every state. The results of these debates have been mixed, but the facts are clear. Most of the roughly 10 to 12 million (it is difficult to accurately estimate this number) undocumented immigrants in the U.S. are employed and pay taxes but by denying them the right to obtain a driver’s license they are often forced into situations that jeopardize public safety and drive up insurance rates. For example, in California, a rise in unlicensed immigrants was believed to be a significant factor in hit-and-runs increasing by 19%. Furthermore, uninsured drivers are estimated to cause over $4 billion in insurance loss per year. In 2003, New Mexico passed a law allowing undocumented immigrants to obtain driver’s licenses and as a result, their uninsured driver rate dropped from 33% to 10.6%. Driver’s license restrictions also make undocumented immigrants less willing to interact with law enforcement, decreasing the potential that they will report crimes. Granting undocumented immigrants the right to a driver’s license presents clear public safety benefits to the entire population in addition to improving the immigrant’s quality of life.[1]
A hurdle to passing legislation that would extend licenses to undocumented immigrants has been the federal government’s REAL ID Act of 2005. Passed in response to 9/11 as a way to help protect the integrity of the authentication of a U.S. driver’s license, the law requires that in order for state driver’s licenses to be used for “federal identification” purposes (such as boarding flights between states, voting, or entering federal buildings) certain requirements must be met, including the requirement of legal residency. As other states have faced this hurdle, some have been able to overcome it by issuing two (or more) types of driver’s licenses. This means that these states have different driver’s license classes with differing requirements to be obtained. They provide a license that solely permits someone to legally drive and be identified in the state it was issued in but requires only proof of residency (an electric bill for example) and not proof of legal residency. The other license the offer is REAL ID-compliant and can be used for those federal identification purposes but requires proof of legal residency. Both types of licenses could be used for driving within the state it was issued.[2] Furthermore, creating these additional classes of driver’s licenses does not present a significant burden to state departments of motor vehicles because states already have a separate class of licenses for immigrants that are in the U.S. legally (such as work or student visas) so that these immigrants can legally drive but cannot use their licenses for voting or federal identification (their passport would be needed in these cases). States could create a similar driver’s license for undocumented immigrants or extend this already REAL ID non-compliant license to undocumented immigrants by waiving the requirement of presenting a visa for the license to be issued.[3]
The infrastructure of Georgia communities, such as Athens, all but require access to a car to be able to get around, go to work, go to school or get to appointments. Without the ability to drive without fear, many undocumented immigrants are severely limited in their mobility within the communities where they find themselves. An undocumented immigrant in Boston describes the dilemma she faces of not being able to have a license as choosing between the risk of “be[ing] pulled over by police, arrested and maybe even deported” or the risk of “loss of work.” Another undocumented immigrant from the Boston area said that “it is impossible for me to have the same life without a car. Whether I have a license or not I am driving.”[4] The necessity of driving in many American communities means that denying the right to a license to undocumented immigrants does nothing to stop them from driving. Denying undocumented immigrants the right to a driver’s license does not decrease drivers on the road; it only increases the percentage of them that are unlicensed and uninsured which puts those immigrants’ safety and security at risk and decreases the safety of all drivers on the road.
Kevin Johnson argues that depriving undocumented immigrants of the right to obtain a driver’s license is a form of discrimination but that “discrimination against immigrants often is legally acceptable.” He points out that presenting a driver’s license is often required for actions necessary to live, such as opening a bank account or renting an apartment, and by denying undocumented immigrants an identification card that allows them to do such actions, they are “severely injured.” All states should prefer that all their residents have licenses because this creates safer roads, but the volatility of the subject suggests that the reason for the objection lies in a desire for discrimination against immigrants where race and nationality are so closely related that they cannot be untwined.[5]
Opponents to allowing undocumented immigrants to have driver’s licenses claim that these licenses will be abused for voting illegally or for fraudulent purposes, but Connecticut has allowed undocumented immigrants to have driver’s licenses for the past five years and has found zero cases of fraud from the use of REAL ID non-compliant licenses.[6] However, cases of fraud with these laws are not nonexistent. Take the case of Xian Liu Yue, a resident of New Mexico where undocumented immigrants may obtain driver’s licenses, who helped undocumented immigrants in New York fraudulently claim residence in New Mexico to obtain a driver’s license. This is a case of fraud that validates the concerns of critics, but it is not a case of malicious intent. The intent of Yue’s fraudulent actions was not to help perpetuate other crimes, rather they were with the intent of extending the same rights that they enjoyed in New Mexico to those in New York. Had New York allowed undocumented immigrants to obtain driver’s licenses, the fraud would not have happened at all. In fact, the claim that granting undocumented immigrants the right to a driver’s license would increase voter fraud hardly makes sense when we consider that millions of immigrants are in the U.S. legally, legally have driver’s licenses, but cannot legally vote. However, voter fraud remains a nonexistent issue.[7]
The legality of legislation at the state level that gives undocumented immigrants the right to a driver’s license was complicated by the federal passage of the REAL ID Act, but many states have discovered and used loopholes in the ways that the authority of laws function in the U.S. While federal law supersedes state law, and immigration law is under the sole jurisdiction of federal policy, states have the autonomy of state licensing policies. Driver’s licenses for undocumented immigrants thus occupy this gray area between being within the discretion of the state and conflicting with federal law. When states debate granting undocumented immigrants the right to a driver’s license, they must recognize it is something within the state’s power; however, such policies must be carefully crafted so that they do not directly conflict with the federal REAL ID law, something that might be easier said than done.
[1] https://www.nilc.org/wp-content/uploads/2015/11/FactSheet_DLs_2008-01-16.pdf
[2] https://www.dhs.gov/real-id/real-id-faqs
[3] https://law.siu.edu/_common/documents/law-journal/articles-2013/9%20-%20Davis%20Comment%20Final.pdf
[4] https://www.npr.org/2020/11/27/938936451/pandemic-renews-debate-over-drivers-licenses-for-undocumented-workers
[5] https://scholars.law.unlv.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1314&context=nlj
[6] https://www.npr.org/2020/11/27/938936451/pandemic-renews-debate-over-drivers-licenses-for-undocumented-workers
[7] https://law.siu.edu/_common/documents/law-journal/articles-2013/9%20-%20Davis%20Comment%20Final.pdf