Bar Bulletin

September, 2004

 Bar Bulletin Focus

Immigration Law    

Illegal Aliens Need Not Apply
~Maryland state driver's license requirements for alien residents~

By Edward Neufville

As the United States tightens its immigration laws, the issue of granting certain aliens the right to obtain driver’s licenses has become a contentious issue. Immigration advocates in the state of Maryland argue that aliens applying for Maryland driver’s licenses should only be required to show proof of identity and verification of Maryland residence. However, there is inconsistency between what is being required at the Maryland motor vehicle administration and what the motor vehicle laws of Maryland actually require.

On September 12, 2003, in response to a request by Maryland State House delegate Ana Sol Gutierrez, State Attorney General J. Joseph Curran, Jr., clarified the Maryland State Motor Vehicle Administration’s requirements as applied to individuals who present foreign identification as part of an application for a Maryland driver’s license. Delegate Gutierrez’s request brought to the forefront the issue of whether alien applicants must show documentation that they are lawfully present in the United States as a condition for license issuance.

An alien is defined as any person who is not a citizen or national of the United States. This includes legal and illegal non-immigrants. An alien is considered illegal when she enters the United States without being admitted or paroled or violates his or her visa by remaining past the authorized period. If the alien remains in the United States after the expiration of the authorized period of stay or is present in the United without being admitted or paroled, he or she accrues unlawful presence in the United States. The accrual of unlawful presence can render the alien inadmissible to the United States.

In his opinion, Attorney General Curran stated that an alien applicant should not be denied a Maryland license because of failure to prove lawful presence in the United States. The Maryland residency requirement requires only an in-state address in an application for a driver’s license and does not require that a person be a resident of Maryland to be licensed if he or she is not licensed elsewhere. While Maryland’s motor vehicle laws provide alternative tests to determine “residence” in order to be granted a driver’s license, an alien’s ability to prove lawful presence in the United States is not one of the requirements. The Maryland residency definition does not include or make reference to the alien’s status under federal immigration laws.

The Attorney General’s opinion recognizes that the overall objective of the motor vehicle laws is not to determine the immigration status of applicants. Rather, their purpose is to control motor vehicle traffic on the streets and highways and to promote public safety by ensuring driver competency.

Although the Attorney General’s opinion seems to convey the notion that alien driver’s license applicants should not be subjected to tests requiring proof of lawful presence, the motor vehicle administration’s requirements indirectly require alien applicants to show lawful presence by producing valid immigration documents. The motor vehicle administration requires that alien applicants disclose a Social Security Number, submit a birth certificate or other proof of age and identity that is satisfactory to the administration. The alien applicant is also required to submit at least one primary source of identification, which includes documents such as a valid foreign passport, a certificate of naturalization, a temporary resident card, an employment authorization card or document or a refugee’s arrival and departure card. In the alternative, the alien can provide one primary and two secondary sources of identification. Some of the acceptable secondary forms of identification include a selective service card, handgun permit with a photograph or fingerprint, voter registration card, utility or telephone bill in the applicant’s name or a marriage certificate or divorce decree.

The Maryland state motor vehicle administration’s requirement of proof of immigration status is in excess of what the law requires. The Attorney General’s interpretation of the law clearly states that an alien should not be denied based solely on the fact that she is unable to prove lawful presence in the United States. The intent and purpose of Maryland’s motor vehicle law is to promote public safety and ensure driver competency. The requirement of immigration documents indirectly requires alien applicants to prove lawful presence in the United States as a prerequisite for license issuance. This is beyond what is required under the law. Therefore, the motor vehicle administration should end the practice of requiring alien applicants to show proof of valid immigration documents in order to obtain a driver’s license.

Edward Neufville practices U.S. immigration and nationality law in Baltimore, Maryland. He is the founder the law firm of MoraisNeufville.




Publications : Bar Bulletin: September, 2004

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