Cuccinelli Backs DMV Refusal to Accept Permit

November 16, 2010

The Virginia Department of Motor Vehicles is not required to accept a federal work permit as proof that a driver's license applicant is legally in the U.S., state Attorney General Ken Cuccinelli said in an official opinion.

DMV Commissioner Richard Holcomb requested the opinion, which Cuccinelli issued a little more than two months after the agency temporarily quit accepting Employee Authorization Documents as proof of legal status. The Department of Homeland Security issues the document to people who are temporarily in the U.S. and looking for work.

"Individuals who have the EAD now need another document to verify legal presence," DMV spokeswoman Pam Goheen said Monday. About 20 other federal documents are still accepted.

DMV dropped the work permit from the list and sought Cuccinelli's backing after a Bolivian immigrant twice convicted of drunken driving was involved in a car crash that killed one nun and injured two others in Prince William County. Authorities said the man had used the federal work permit to get a state ID card even though he was facing deportation.

Cuccinelli said the DMV can refuse to accept the work permit if it concludes that the document is not "trustworthy evidence of lawful status" in the U.S. He said such a conclusion is supported by a federal court ruling that a plaintiff lacked standing to sue because he wasn't in the country legally, even though he had a valid federal work permit.

Also, he said, the Department of Homeland Security said in regulations adopted in 2008 "that the EAD should not be considered, by itself, as evidence of lawful status in the United States."

In response to another question from Holcomb, the attorney general said the DMV cannot revoke the driver's license or ID card of a person who is deported or subject to deportation proceedings. He said state law would have to be changed to authorize such action.

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