In May, federal officials told California that its proposed driver's license for immigrants in the country illegally had a major design flaw: it looked too much like a regular license.
But instead of coming back with changes, state officials have spent the last month making the case for the original design.
"It's totally around the initial design," said Armando Botello, spokesman for the Department of Motor Vehicles. "It is our intent to try to persuade them to approve that model. "
Since Department of Homeland Security issued its critical memo, immigration advocates have worried the DMV would change the licenses to look so distinctive that immigrants would feel like targets using them, and perhaps avoid applying for them.
But it appears the state is standing firm even as it seeks DHS approval under the federal Real ID Act. Legal experts say California has some leverage in getting its way, given Real ID’s relative unpopularity.
Congress created the law in 2005 to boost national security by setting minimum standards for state IDs so they can be used with equal confidence at federal facilities and commercial airports around the country. But 10 years later, only 21 states are in compliance. The rest — including California — are working towards compliance, or have refused to comply altogether.
If the federal government were to persist in rejecting California’s design for immigrant licenses, that would throw California out of conformity with Real ID, said Annie Lai, an assistant law professor at UC Irvine.
"DHS would certainly be taking a strong stand if it wanted to hold up compliance for the largest state and for that reason DHS may want to take another look at California’s driver’s license," Lai said.
Another scenario — though a remote one, according to Lai —is this: DHS chooses to penalize the state and refuses to recognize all California driver’s licenses.
“Theoretically, that could mean in a couple of years, California residents with their drivers’ licenses would not be able to board commercial airlines. But my sense is that does not seem likely,” Lai said.
A DHS spokeswoman did not respond to requests for comment.
Kevin Johnson, dean of the UC Davis School of Law, did not foresee repercussions for California if state officials went ahead and issued its original design. He doubted that DHS would take any legal action against the state.
“This is not a battle that I think (the Obama) administration wants to engage in at this point in time when they’re trying to get an immigration proposal through Congress,” Johnson said.
Under the current design proposal, the new license would bear a “DP” for driver’s privilege instead of “DL” and the back of the card would indicated it was not to be used as federal ID.
A network of 40 community groups, including the Coalition For Humane Immigrant Rights of Los Angeles, restated their support for the current design — as outlined in the law AB 60 — and said they would not stand for more markings on the licenses.
“This is away for people to step out of the shadows,” said Apolonio Morales, CHIRLA’s political director. “It should not be a way to put them in a situation where someone will call (U.S. Immigration and Customs Enforcement) on them because someone found out they were undocumented.”
Advocates ideally would like licenses for immigrants without legal status to look no different than those for other drivers, as is the case in Washington state. But California has been trying to comply with the Real ID act: it’s one of 21 states that got an extension to meet the law’s requirements (it expires Oct. 10, 2014 but is renewable.) Washington, one the other hand, is one of 12 states considered “noncompliant” by DHS.
The standoff between the state and DHS has to end soon. By state statute, the DMV must start issuing the new type of licenses by January.