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If feds try to ID deportable immigrants using California data, state will block access

Applicants for state driver’s licenses meant for undocumented immigrants gather at a Department of Motor Vehicles office in Fresno on Jan. 2, 2011 – the first day they were eligible to apply.
Applicants for state driver’s licenses meant for undocumented immigrants gather at a Department of Motor Vehicles office in Fresno on Jan. 2, 2011 – the first day they were eligible to apply. Fresno Bee file

Ever since Maribel Solache began teaching her own version of driver’s ed in Spanish two years ago, the classes – held around San Diego County – have been jammed. But lately, apprehension has smothered that enthusiasm.

“More people come with fear. They say, ‘What is going to happen to my information?’ ” she said. “I tell them they have to get (their driver licenses) before Jan. 20, before Donald Trump.”

Her students are undocumented immigrants.

So is Solache, who took her driver’s license test on the first day in January 2015 that the state began offering it to immigrants here illegally. Since then, the state Department of Motor Vehicles reports it has issued more than 792,000 licenses to undocumented drivers.

Now, however, California is preparing for the possibility that the administration of President-elect Donald Trump – who campaigned on a promise to deport at least 2 million people – might demand access to various state databases that would reveal the names and locations of undocumented immigrants, such as the one maintained by the DMV.

But in a state where Democrats hold the governor’s office and supermajorities in both houses of the Legislature, lawmakers say that if the Trump administration does come knocking, their answer will be a vociferous “no.” That likely would kick off what could be a protracted fed-versus-state legal battle – one in which people on both sides predict their argument would prevail.

As the new Legislature was sworn in Dec. 5, Assembly Speaker Anthony Rendon, D-Paramount, said California has a larger population of undocumented immigrants than any other state “and if you want to get to them, you have to go through us.”

And Gov. Jerry Brown’s recent choice of Los Angeles Democratic Rep. Xavier Becerra to take on the pivotal role of state attorney general has been seen as part of this build-up.

The son of immigrants, Becerra recently tweeted a shoutout to so-called DREAMers, undocumented immigrants who were brought to the United States as children and who have created a movement around efforts to attend college and get jobs legally: “#DREAMers are some of the most courageous people I’ve ever met. We stand with you & are ready to fight for you.”

Trump, however, has vowed to more rigorously enforce immigration laws, to cancel the federal program that gives deportation waivers to some young people in the country without permission, and to cut off funding for cities that consider themselves “sanctuaries” for the undocumented because they do not cooperate with federal immigration law enforcement agencies.

“In a Trump administration, all immigration laws will be enforced,” Trump said during an August speech in Phoenix. “As with any law enforcement activity, we will set priorities. But unlike this administration, no one will be immune or exempt from enforcement. … Anyone who has entered the United States illegally is subject to deportation.”

California has gone further than most states to help undocumented immigrants. Besides driver’s licenses, the state allows undocumented children to get subsidized health care via Medi-Cal, and undocumented college students to apply for state-funded college scholarships and qualify for in-state tuition rates.

State efforts to protect the data don’t not mean the state would never cooperate. Various agencies already work with immigration authorities when there is an active investigation into a crime. And state prisons and jails turn over undocumented immigrants who have completed their sentences so they can be deported as the law requires.

Which law takes precedence?

Immigration legal experts say it would be unprecedented for the federal government to try to grab local or state databases – and that the state could legally refuse such requests.

“There is a long history and tradition of not sharing information from agency to agency and from state to federal that deals with immigration status,” said Bill Hing, law professor and director of the Immigration and Deportation Clinic at the University of San Francisco Law School. “There is nothing that mandates that they have to turn over information just because the federal government asks.”

To the contrary, he notes that the 10th Amendment to the Constitution specifies that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

But advocates of stricter immigration enforcement insist that under the Immigration and Nationality Act the federal government has a right to the information held by any agency or state.

“It’s a direct violation of federal law for California to have a policy that prohibits its agencies or officials from sharing immigration status information with immigration authorities,” said Dave Ray, spokesman for FAIR, the Federation for American Immigration Reform, which advocates for strict limits on immigration and increased enforcement and deportation.

Uncertain times

With so much up in the air, the city of Los Angeles is advising undocumented immigrants not in the system to hold off on applying.

“We are in new territory,” said Linda Lopez, who heads the Los Angeles Mayor’s Office of Immigrant Affairs. “What we are hearing and learning from federal agencies and some partners is that while there will be some firewalls and protections … it’s still uncertain.”

Of course, some data is already in the hands of the federal government. The prime example is a list of the 741,546 recipients of the Deferred Action for Childhood Arrivals program, which grants qualified applicants a temporary reprieve from deportation and work permits. In 2012, President Barack Obama signed an executive order creating the benefit; one-third of the DACA youths are in California.

The federal Citizenship and Immigration Services agency holds the information and it promises to keep applicants’ information secure from law enforcement, although that could change in the future. This is the program President-elect Trump has pledged to cancel upon taking office.

State leaders are urging Trump to keep the program but do not really have a say over what happens to that information.

DMV data a target?

For now, at least, California holds information about undocumented immigrants that the federal government is able to access. The largest example lives inside the computers of the DMV.

The DMV said it does not maintain a separate database of AB60 license holders; instead all drivers are on one list and are not differentiated by legal status. Nicknamed for the bill that created the program, the AB60 Driver License is nearly identical to a regular one except it says “Federal limits apply,” on the upper right corner.

The agency noted in a statement that it keeps all personal information confidential, and that a law enforcement agency can access individual data only if there is an ongoing investigation.

For Solache, the San Diego driver’s ed teacher, she said getting her license was a gift.

She recalled feeling terrified every time she drove her sons to school or soccer practice. She used to envision getting stopped and taken away in front of her children – or along with her children, who are also undocumented – and deported to Mexico.

The license program, she said, changed her life: “I’m able to drive without stress or panic.”

Even with a Trump administration on the horizon, she said, “I can’t be paralyzed with fear. I am confident the Governor Jerry Brown and the Legislature are going to work to keep that information private and to protect the law they passed.”

State officials are also considering information held by California’s public university system. The heads of the University of California and California State Universities have signed letters calling on Trump to keep the DACA program and they are promising to keep students safe.

In 2001 the state began allowing eligible undocumented students to pay in-state tuition rates. In the last five years the state has also opened up private and state-funded scholarships to those who meet the criteria.

That’s how Alma Leyva, 27, was able to finish college this year. Leyva started college in 2007, qualifying as an in-state student and paying for school out of pocket. In 2013 she applied for state grants to help her pay for school. In the meantime, she had also qualified for the federal Deferred Action program.

Now she is in all those databases.

“Deportation is a big concern, not just deportation for myself but also for my family,” said Leyva, who works at the Dream Resource Center at the UCLA Labor Center, where she advocates for undocumented immigrants. “I think it’s something we’re going to continue to put up a fight for, to make sure that (data is) protected.”

Hing, the legal expert at USF, said there is no federal law requiring universities to turn over information especially about students. But he also said that doesn’t mean the laws will not change under a new administration.

CALmatters.org is a nonprofit news venture devoted to covering California policy and politics.

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