Gotham Gazette

The Place for New York Policy and politics

Should people who are not in this country legally have the legal right to drive an automobile? Is a driver’s license anything more than a way to assure public safety on public roads? Should it be used officially for identification?

These are issues being debated across the nation and in Congress. In New York, a crackdown by the Department of Motor Vehicles reportedly resulted in the suspension of thousands of immigrants’ driver's licenses. Immigrant advocacy groups organized press conferences and protests -– and a lawsuit.

Now, a Manhattan judge has ruled in that lawsuit that New York residents cannot be denied driver’s licenses based on their immigration status.

Acting Justice Karen Smith of New York State Supreme Court has barred the Department of Motor Vehicles from revoking the licenses of people who lack valid Social Security numbers, and prohibited the DMV from considering immigration status when evaluating applications for driving permits, licenses or renewals, as well as for non-driver photo ID's. Justice Smith has stricken the department’s requirement of proof that a license applicant is lawfully in the United States.

Until 2002, the Department of Motor Vehicles accepted foreign birth certificates and passports among the documents it could use to verify a would-be driver’s identity, age and fitness to operate a motor vehicle. But seven months after September 11th, the department began requiring proof that applicants were authorized to be in this country. Foreign documents were no longer acceptable.

In Cubas v. Martinez, Justice Smith found that the DMV had exceeded its authority in promulgating rules that were never passed by the legislature. The Court agreed with the plaintiffs that the Department of Motor Vehicles was seeking a way to prevent illegal or undocumented immigrants from obtaining licenses and that the motive was the prevention of terrorism, a role that exceeds the powers of the DMV.

"The DMV cannot be an enforcer for security," wrote Justice Smith. "It simply lacks expertise and, more importantly, it has not been empowered by the state legislature to carry out that function." The required documents must come from the Department of Homeland Security which has incorporated the formerly named Immigration and Naturalization Service.

"Those plaintiffs who face suspension of their licenses are living with a sword of Damocles over their heads," Justice Smith wrote. "Many live in areas where there is no easy access to public transportation, are dependent on driving their cars to carry out the daily tasks of living. According to the complaint, as a result of the inability to drive, plaintiffs face the inability to either partially or fully perform their job duties. A vast reduction of income or a complete loss of income further threatening the family's ability to pay for medication or for the parochial school in which their child is enrolled. As a result of these denials, at least one of the plaintiffs has been unable to take a sick child for ongoing medical treatments for her epilepsy or carry on all of the other daily tasks of living such as shopping for food, taking children to school, etc."

In addition, the court expressed a concern that the wholesale denial of motor vehicle licenses to persons who are unable to comply with the immigration status requirements of the Department of Motor Vehicle immigration will lead to much more serious consequences, such as people driving without valid licenses, and hence without insurance, and an even greater inability to track the whereabouts of hundreds of thousands of New York residents.

"We must move forward recognizing that the world has changed, and do everything we can to prevent [terrorism] from recurring," the judge said. But the Department of Motor Vehicles "cannot be an enforcer for the Department of Homeland Security," and it cannot decide on its own to play a part in this; doing so would "usurp the function of the legislature...

"DMV cannot make current immigration documents, or any other documentary proof of one's immigration status, the only documents that are acceptable to verify an applicant's identity because such a policy creates a de facto fifth requirement [that the driver be legally allowed to be in this country] that is not currently part of the statute," the decision said.

Justice Smith has stayed enforcement of her order until it is decided by the appellate courts.

Emily Jane Goodman is a New York State Supreme Court Justice