The Washington Post recently did an article about my client Hirut Bekele who has Withholding of Removal and who has a valid Employment Authorization Document (“EAD”), but who was denied a driver’s license by the Virginia DMV. As a result of losing her license, Ms. Bekele also lost her job and now she and her young daughter may become homeless.
The Commonwealth of Virginia had issued driver’s licenses to people with valid EADs, but changed its policy after Carlos Martinelly-Montano, an illegal immigrant, killed a nun in a drunk-driving accident last summer.
The change affects not only people like Mr. Martinelly-Montano, who receive an EAD while his removal case was pending, but also people like my client, who have been granted Withholding of Removal.
Withholding of Removal is a legal status granted to people who face persecution in their homeland, but who are not otherwise qualified for asylum. In Ms. Bekele’s case, she received Withholding as a compromise with the DHS Trial Attorney; she had lived in Germany for a number of years before she came to the U.S., and her case was weakened by the fact that she did not seek asylum in Germany (she was married to a German citizen, but the marriage failed and she lost her status in that country). Other people receive Withholding instead of asylum because they failed to file for asylum within one year of their arrival in the United States, or because they committed a crime rendering them ineligible for asylum.
While asylum is the better form of relief (an asylee can get a green card after one year and eventually become a U.S. citizen), the legal standard to obtain Withholding is more difficult than for asylum. This means that my client had to demonstrate by a preponderance of the evidence (i.e., a more than 50% likelihood), that she would be persecuted in Ethiopia. An asylum seeker need only show a 10% chance of persecution to obtain asylum.
The Virginia DMV’s excuse for refusing to grant Ms. Bekele a driver’s license is that her immigration status in “under review.” I had a brief quote in the article on this point:
Because the federal government is technically required to keep trying to resettle her, said Jason Dzubow, a Washington lawyer who is helping Bekele, “I suppose one could argue that Hirut’s ability to remain in the U.S. is ‘under review’ because DHS can continue to look for a third country to send her to, but I have never heard of DHS removing someone like her to a third country [Withholding of Removal prevents removal only to the home country; not to a third country].”
Another part of my comment did not appear in the article, but I think it is relevant:
I do not see how the DMV can say that her “legal status” is under review – it is not. She has been granted Withholding of Removal. That order has not been appealed, and it is final. There is nothing more to review. It seems to me that her legal status–not some theoretical action that DHS might take [to deport her]–should determine whether Hirut is eligible for a driver’s license. Her legal status is Withholding of Removal. It is a permanent status, even if it does not guarantee that she can remain in the U.S. forever.
Thus, it seems unclear to me why Virginia is denying driver’s licenses to refugees like Ms. Bekele. It is also unclear whether Virginia will face a lawsuit to force it to issue driver’s licenses to people with EADs. My guess is that the lawsuits are coming. Let’s hope so.
Hi! I came here on L1B status,but when my employer ended my employment, I applied for asylum and now my application is pending. I had driver’s licencse from VA since 2013. Can I renew it now or do I have to wait for EAD to arrive and it is another 5 months or so for my EAD clock. Can you help? ThankS!
You should go to the DMV and try to renew. It may not work, but it is worth a try (it seems the DMV is sometimes inconsistent in how it does things, so it is worth a try). If you cannot renew it, you should be able to do that with your EAD. Also, you may be able to do that with just the asylum receipt; that works in some places (like Maryland). Take care, Jason
Thank you. I will update you if I manage to ggt it.
Hi again! This is my update on the DL. I went to Fair Oaks DMV today and presented my docs. They scanned all of my docs in their system and told me to wait 36 hours for my legal presence evidence. What I realized from what they said was I am able to get my DL in 36 hours. Will update.
Hi! My legal presence was approved in the system and got my DL for one year from Fair Oaks DMV today. Wanted to update everyone reading this site so that they can renew their licenses,too. A car is a must in VA as we all know if we want to work. Thanks Jason for this website. A great help and resource!
Belle, what kind of papers did you have to show to DMV to get DL?
This is utterly ridiculous and must be challenged — Has anyone filed a lawsuit against VA?? If so, please let me assist. We have numerous clients who are being hurt in this way.
There was a lawyer in Alexandria who was working on this some years ago, but I forget his name, sorry. They used to have a DMV person who dealt with immigration issues, but she left (or was terminated) and has not been replaced. Very unfortunate. Take care, Jason
Dear Jason,
Do you know if an asylum applicant is eligible to obtain driving license in Virginia at this time. I read your article of 2011 which stated that Virginia was not allowing people with pending asylum application to get driving license. Have things changed now?
Thanks!
A
If you have the EAD, you should be able to get a driver’s license. If not, you probably cannot, but you can ask the DMV anyway. It seems that some people are able to convince the DMV to issue a license, but for the most part, without the EAD, it does not work. Take care, Jason
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I went to DMV today for ID and denied having the same case with Bekele. What is going on? Why are we treated like we are from other universe? we are here just seeking asylum people!
where is the humanity,
Virginia looks like they don,t know what they are doing. How can Pending for asylum compared withholding?? how if the green card holder cause an accident like that…will all the green card holders refused Virginia driver license??
it is official here http://www.dmv.state.va.us/webdoc/pdf/legal_pres_review.pdf page 2 letter k. it’s not just granted withholding. do you have additional information on how many people are affected by this law? I am surprise for the eligibility criteria that people with pending case (e, j, and i) are eligible for license/ID. Isn’t that “Carlos” also under pending case? I thought granted has more value than pending. on pending case, DHS/immigration judge still has to review all documents and don’t have final decision yet. how could people that still under pending case get driver’s license/ID while people with granted withholding get nothing?
I have not done asylum cases in a while, but if my understanding of the legal standards that apply to asylum and withholding of deportation cases is correct, then some of your comments are imprecise. With respect to both of these types of cases, you seem to have conflated the burden of proof with the proof itself. To my understanding, the burden of proof on the applicant in both types of cases is “by a preponderance of the evidence.” The differences between these types of cases is that a) any relief offered in asylum cases is discretionary, whereas such relief is mandatory in withholding cases and b) an applicant for asylum needs to demonstrate a reasonable possibility of being persecuted if the applicant were deported to their home country while the applicant for withholding needs to demonstrate a clear probability of such persecution. While the proof required to win an asylum case is thus less than the proof required to win a withholding case, I believe your statement is oversimplified when you assert that “An asylum seeker need only show a 10% chance of persecution to obtain asylum.” I believe that a statement that “to obtain asylum, an asylum seeker need only show a chance of persecution as little as 10%” is a more precise reflection of the court’s language in INS V. CARDOZA-FONSECA, 480 U. S. 421 (1987). Perhaps I am being too picky.