Ms. Anita Samuel
AGO 2012-4
Official Opinion No. 2012-4
State of Indiana Office of the Attorney General
October 25, 2012
Ms.
Anita Samuel
General
Counsel
Office
of the Governor
200 W.
Washington St.
Indianapolis,
IN 46204
RE: Issuance of Driver’s Licenses to
Individuals in Deferred Action Status
Dear
Counselor Samuel:
You
requested an advisory opinion from the Attorney
General’s Office concerning the legality of the Bureau
of Motor Vehicles (“BMV”) issuing a
driver’s license1 to an individual granted deferred
action status pursuant to a recent policy of the United
States Department of Homeland Security (“DHS”).
Specifically, you posed this question because deferred action
does not confer lawful status upon an individual for
immigration purposes,2 and you asked this office to analyze
(1) whether the BMV may issue a
driver’s license to an individual in deferred action
status; and the related question of (2) whether it
must do so assuming that the individual
meets other applicable requirements. We
reviewed3 these matters and, for the reasons set
forth below, concluded that the BMV may and, in fact, must
issue a temporary driver’s license to a qualified
applicant in deferred action status.
BRIEF
ANSWER
Under
Indiana law, valid documentary evidence of “approved
deferred action” status is sufficient to establish the
requisite “lawful status” to be eligible for a
driver’s license. An applicant may demonstrate such
status using documents a deferred action grantee would
possess or would be able to obtain. If an applicant meets the
applicable requirements to obtain a driver’s license,
issuance is mandatory under Indiana law. A driver’s
license or identification card issued to an individual in
deferred action status, however, must be temporary, given
that deferred action is limited to a two-year period. The
conclusion that licenses must be issued to qualified
applicants in deferred action status is supported by
decisions of state governments with similar statutory
provisions to do the same, and it is not altered by contrary
decisions of other states because those states’
applicable provisions are distinguishable.
ANALYSIS
Applicable
Indiana Provisions
The
legal requirements for an Indiana driver’s license are
contained in Ind. Code Chpt. 9-24-9.4 This statute
provides that an application must contain either a valid
Social Security number, or verification of an
applicant’s ineligibility to be issued a Social
Security number, and proof of “identity and lawful
status.”5 Concerning status, the statue lists
categories that constitute “status of legal presence in
the United States.”6 Relevant here, valid documentary
evidence of “approved deferred action status”
satisfies the lawful status requirement.7 Thus, valid evidence
of deferred action status, though insufficient under the
immigration laws, establishes lawful status under the REAL ID
Act, Indiana law, and, as discussed below, the law of other
states for the purpose of obtaining a driver’s license.
An
applicant is permitted to present to the BMV a number of
documents to establish lawful status. In the case of an
individual wishing to demonstrate his or her approved
deferred action status, those documents include the
following: (1) an unexpired employment authorization document
(“EAD”) issued by the DHS; (2) both a Notice of
Action, if it is possible to verify that the DHS has not
denied the associated application, and documents that a
federal agency issued to show lawful status and that pertain
to the applicant’s Notice of Action; and (3) other
documents issued by a federal agency to show lawful status,
assuming that the BMV can verify that the information
contained therein is accurate and that the applicant has
lawful status in the United States.8 These are documents that
an individual in deferred action status would be able to
obtain or would have received after being granted this
status. For example, after deciding to grant an individual
deferred action status, the DHS would send to him or her a
letter approving the deferred action request.[9] Additionally,
as set forth supra at n. 2, a deferred action
grantee is eligible to apply for work authorization and,
thus, would be able to obtain an EAD.
If an
applicant for a driver’s license – including an
individual in deferred action status – meets all the
legal requirements, Indiana law mandates that the BMV issue a
license.10 Given the temporary nature deferred
action status, however, a license or an identification card
issued to an individual in deferred action status must be...
