County Clerk in New York Lacked Standing to Challenge State’s Driver’s License Access and Privacy Act on Preemption Grounds, Holds Second Circuit

In Kearns v. Cuomo, No. 19-3769 (2d Cir. Nov. 30, 2020), the Second Circuit holds that a county clerk failed to allege an Article III injury in a case that claimed a conflict between the demands of the federal Immigration and Nationality Act and a state law that restricts disclosure of data gathered from driver’s license applicants.

In 2005, Congress passed the REAL ID Act, Pub. L. No. 109-13, §§ 201-02, 119 Stat. 302, 311 (2005) (codified at 49 U.S.C. § 30301 note), which sets conditions for state driver’s licenses that are used as governmental IDs for federal purposes (such as entering planes and federal facilities). REAL ID limits issuance of such licenses to persons of “lawful status.” States may nevertheless continue to issue “standard licenses” to undocumented persons, although they are not effective under the REAL ID Act.

“In June 2019, the New York legislature enacted the Driver’s License Access and Privacy Act (the ‘Green Light Law’) that establishes certain policies and procedures related to standard licenses …. The Green Light Law directs the New York State Department of Motor Vehicles (‘DMV’) to accept various foreign documents as proof of identification and age for standard licenses,  and prohibits DMV from inquiring about the immigration status of standard-license applicants.”

A county clerk, Kearns, who had authority to issue licenses under the Green Light Law brought suit in the U.S. District Court for the Western District of New York, seeking “(1) a declaration that the Green Light Law is preempted by federal immigration law, (2) an injunction against implementation of the Law, and (3) an injunction preventing Cuomo and James from removing him from office for refusing to comply with the Law.“ The district court dismissed on standing grounds.

The Second Circuit affirms. “Kearns premised his theory of standing on the threat that he would be prosecuted for violating the INA if he complied with the Green Light Law …. [He] contends that he could be prosecuted under 8 U.S.C. § 1324 for harboring, concealing, or shielding from detection aliens who entered or are present in the United States unlawfully if he performed the functions he believes are imposed on him by the Green Light Law.”

The Second Circuit holds that there is no “actual and well-founded” fear that Kearns could be prosecuted for “harboring” under the INA by administering state law.

“The theory that issuing standard licenses constitutes criminal harboring is directly at odds with federal law that expressly permits the issuance of such licenses. The REAL ID Act permits states to issue noncompliant licenses provided that they meet certain requirements, which do not include the verification of lawful status. See REAL ID Act § 202(d)(11). Moreover, 6 C.F.R. § 37.71(a), promulgated by the Department of Homeland Security, permits states that issue REAL ID Act-compliant licenses also to issue licenses ‘that are not acceptable by Federal agencies for official purposes,’ provided they meet certain requirements. In other words, the statute and rule expressly allow New York to issue standard licenses without verifying that an applicant is lawfully present in the United States.”

“’Harboring,’ within the meaning of the INA, is ‘conduct which is intended to facilitate an alien’s remaining in the United States illegally and to prevent detection by the authorities of the alien’s unlawful presence’ …. Proof of a violation of § 1324 requires that a defendant ‘engage in conduct that is intended both to substantially help an unlawfully present alien remain in the United States—such as by providing him with shelter, money, or other material comfort—and also is intended to help prevent the detection of the alien by the authorities.’ …. [C]ompliance with the Green Light Law does not require Kearns to do anything like this. Because standard licenses bear the words ‘Not For Federal Purposes’ and, by federal statute and regulation, may be issued without verifying an individual’s lawful presence in the United States, they could not be used, as Kearns apparently fears, to deceive federal immigration authorities.”

Furthermore, “Section 1324 contains a mens rea requirement. It prohibits harboring only when a defendant knows or recklessly disregards the fact that an alien has come to, entered, or remained in the United States in violation of law. Kearns’ complaint, however, fails to plead any facts that would support a plausible inference of knowledge or reckless disregard …. Simply put, failure to verify immigration status is not harboring, especially when an individual possesses no affirmative obligation to verify such status.”

Kearns argued that even without verifying immigration status, “no lawfully present person would apply for a standard license if the person were eligible for a REAL ID Act-complaint license.” But “[t]here are a number of reasons a person lawfully present in this country might apply for a standard license. For example, a foreign student present on a visa would possess a foreign passport but not a U.S. passport and might choose to use the foreign passport in connection with his application. A person with a Global Entry card might not require an additional means of identification at airports and thus prefer not to meet the more onerous requirements of the application for a REAL ID Act-complaint license …. In sum, there are abundant explanations for an individual’s choice to obtain a standard license. Merely applying for a standard license does not put a clerk—particularly one who does not interact with applicants for licenses—on actual or constructive notice of the applicant’s immigration status.”

“Kearns also lacks standing to challenge the nondisclosure provisions of the Green Light Law. He argues that these provisions violate 8 U.S.C. §§ 1373 and 1644, which impose a variety of prohibitions on states’ attempts to restrict the flow of information to federal immigration authorities. However, Kearns cannot allege a credible threat of prosecution under these provisions because, among other reasons, neither of them imposes any criminal or civil penalties and, consequently, he would have no stake in the outcome of a legal challenge.”

“Finally, Kearns lacks standing to challenge the notification provision because it does not apply to him. That provision requires ‘the commissioner [to] notify the individual about whom . . . information was requested [by federal immigration authorities].” Green Light Law § 2(12)(a) (emphasis added). No provision of New York law authorizes or requires Kearns to provide any such notification. Tellingly, he admits that ‘[he] is not personally responsible for issuing notifications’ …. Kearns does not allege that he has ever received a request that triggered a § 201(12)(a) notification.”

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