DMV FOIAs become better practices for Immigration cases where a beneficiary has or had a Florida Driver’s License

By Renata Castro, Esq.  

Individuals seeking to obtain immigration benefits who have, at any point, obtained a Florida Driver’s License, are particularly vulnerable to heightened cross-checking of information between Immigration Authorities and the Florida Department of Homeland Security.

Narrow limitations are imposed on Non-US citizens who wish to obtain a Florida Driver’s license. Aside from fulfilling Identification requirements such as providing proof of birth date, completing the required first time driver course, and going to the Drivers’ License Office to complete the written and practice test, Florida’s list of required status identification[1] excludes individuals who have overstayed their allowed period of stay, or who do not have immigration status.

Some individuals who are in removal proceedings, such as those who have a notice showing an upcoming hearing; or evidence of cancellation of removal proceedings, to name a few, are eligible to obtain proper identification to drive. Even individuals under an order of supervision are authorized to obtain a driver’s license. However, hundreds of thousands, if not millions of Floridians drive without a license and see their odds of a chance encounter with local police enforcement and possibly with the Immigration and Custom’s Enforcement task force rise as a result of driving without a license. The state of Florida has a deficient mass transportation system, which further pushes undocumented clients to make poor choices that could hinder their future immigration legal options.

Florida allows individuals with a valid I-94 to obtain a driver’s license. This possibility has driven several Florida residents to obtain fraudulent I-94s and passport stamps in order to fill the gap of driving without a license. In their mind, they are protecting themselves from being deported. The challenge arises, most likely, if and when this individual has an opportunity to adjust status, usually through marriage to a United States Citizen, or because their biological and in some cases stepchildren who are United States Citizens have turned 21 years old. With the recent improvement of cross-agency communication, it has not been as easy to obtain a license in Florida by such means, nonetheless, the problem brews from a client’s old license which is likely expired and is not a topic of conversation during an initial consultation.

It is not advisable to rely on a client’s recollection to thoroughly describe the chain of events that could imperil his goal of becoming a lawful permanent resident, and therefore, a few best practices questions and procedures are suggested for those in this susceptible group:

• At the initial consultation, ask the client if he has ever had a Florida Driver’s License;
• Subsequently, check to see if the expiration date matches that of the I-94 provided, if not, question the client how else he obtained the driver’s license;
• If your client has had a Florida Driver’s license after his authorized period of stay, or if the expiration date of the driver’s license far exceeds the expiration date of the client’s I-94, request a DMV FOIA[2]

Making a determination early on of whether or not your client has used a fake I-94 to obtain a Florida License could be the difference between pursuing adjustment of status for your client, or seeking a waiver of inadmissibility[3] prior to filing an adjustment of status application  Although using fake documents to obtain a drivers’ license is legally different from using a fake document to obtain an immigration benefit[4], it can nonetheless impose on a client the burden to obtain a waiver in order to seek adjustment of status. It is irrelevant whether the client merely purchased fake documents or used them, as long as there is not an attempt to fraudulently use the document for immigration purposes. [5] If you determine that the client has indeed used a fraudulent document, a waiver will be required. [6]

Clients can grow impatient as a result of the delay in filing any application for immigration relief, however, this precaution can, at uncertain times such as the ones we currently face in immigration law, preclude your client from unnecessary and costly detention, and even deportation.

Although this article was written focusing on cases where the immigration practitioner is faced with a client who has lived or currently resides in Florida, it is important to note several other states have similar documentation requirements for obtaining drivers’ licenses and therefore, practitioners across the country can benefit from implementing this best practice strategy.

[1] DMV Acceptable Document Table AILA Doc. No. 16021601

[2] A DMV FOIA which includes copies of all documents and declarations made in connection with obtaining a Florida Identification Card or Driver’s License can only be obtained if the request is made in writing in the form of a Driver License Records Request. There is a 2-week processing time from the date the request is received. The form is available online https://www.flhsmv.gov/forms/90511.pdf

[3] It is important to ponder whether the waiver could be granted as a matter of discretion prior to filing an I-130 Petition for Alien Relative petition, or a I-140 Immigration Petition for Alien Worker petition, as, in the current climate, removal enforcement is across the spectrum and your client could end in removal proceedings depending on the equities and the particular details of the fraud.

[4] In Matter of Cervantes-Gonzalez, it was clearly established that “working in the United States is not a benefit provided under 8 C.F.R. 274 (C ) (a)(3). Matter of Cervantes-Gonzalez 22 I&N Dec. 560 (BIA 1999).

[5] See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975); Matter of Sarkissian, 10 I&N Dec. 109 (BIA 1962); Matter of Box, 10 I&N Dec. 87 (BIA 1962; Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991).

[6] Although USCIS may not know at the point of the interview whether your client used a fraudulent document, ethical obligations on both the attorney’s and the client’s end impose the requirement of disclosure, and as a result, filing a waiver becomes a requirement.