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.