DMV closes legal loophole, constitutionality questioned

Kate Lewanowicz
Contributing Writer

Virginia’s Department of Motor Vehicles is trying to close a loophole that may allow immigrants scheduled for deportation to obtain identification cards and driver’s licenses.

The DMV will no longer allow federally-issued employment authorization (I-766) documents to to prove legal presence in order to obtain a Virginia driver’s license or identification card, following an advisory from Gov. Bob McDonnell.

Currently, federal employment authorization documents are supplied to many individuals, including those who may be pending deportation. Until Sept. 7, those able to produce the document as proof of legal presence could use it to apply for a Virginia identification card or driver’s license.

The DMV’s action follows a fatal car accident in August involving Carlos Martinelly Montano of Bolivia, who was smuggled into United States at the age of eight and whose deportation is pending.

On Aug. 1, Montano is alleged to have committed his third drunken driving offense since 2007, resulting in the death of Sister Denise Mosier in Prince William County. Montano did not hold an active driver’s license but did have an identification card, according to Prince William County police.

The DMV reviewed all of the forms that it accepts as proof of legal presence after the accident.

“There are questions about the [employment authorization] form’s validity,” said Secretary of Transportation Sean Connaughton.

This change, however, could harmfully affect numerous legal immigrants, particularly those seeking asylum with temporary protected status, said Crystal Williams, executive director of the American Immigration Lawyers Association.

“People with temporary protected status have work authorization,” she said. “The only thing they have that can show their work authorized status and lawful status is this card.”

The document is widely used to prove legal presence. Among groups that could be affected is the population of thousands of El Salvadorians residing in Northern Virginia under temporary protective status, according to Williams.

“It is one of the stupidest things I’ve ever seen a government do,” she said.

Denying the validity of employment authorization documents may be tantamount to denying some the right to work, by disabling them from attaining drivers licenses.

“The federal government has authorized them to work, but the can’t,” said Williams.

Williams also expressed concerns regarding the link between Montano’s accident and Gov. McDonnell’s action, as well as constitutional issues with the change.

The drunken driving incident involving Montano should surface questions about state licensing and not immigration, Williams said. “Virginia is trying to shift the blame and questions away from their own system. This whole controversy is trying to use immigration law to enforce criminal law and the two don’t belong together.”

The American Immigration Lawyers Association is in the process of researching the constitutionality of this new Virginia policy. Researchers are investigating whether the state of Virginia has the authority to deny the validity of a federally-issued document.

“Our issue,” said Secretary of Transportation Connaughton, “is compliance with Virginia’s laws.”

“It has been challenging,” said DMV spokesperson Melanie Stokes. The department has had to deal with the reactions that the change has received. Many people mistakenly think that because the I-766 form can no longer be used to prove legal presence, it cannot be used to establish identity, said Stokes. The document, however, still allows applicants for an identification card or driver’s license to establish their identity.