In a legal opinion rooted in the summertime death of a nun hit by an alleged drunken driver, Virginia’s attorney general ruled that the state Department of Motor Vehicles does not have to accept work permits as sole proof that a driver’s license applicant is in the country legally.
The advisory opinion came in response to an inquiry from DMV Commissioner Richard Holcomb.
The DMV can accept — or refuse to accept — an Employment Authorization Document (EAD), or work permit, as the sole proof that the applicant is in the country legally,
Cuccinelli ruled.
“It should be noted that the EAD may sometimes be an indicator of lawful status in the United States, but that is not its primary purpose as a document,” Cuccinelli wrote. “Any person who holds an EAD and who is also in a lawful status … should be able to produce other documentary evidence of that lawful status in addition to the EAD.”
In September, Gov. Bob McDonnell told the state DMV to stop accepting the card as proof of legal status. Carlos Martinelly Montano, an alleged drunken driver who killed a nun in Prince William this summer, used the document to prove his legal status when he applied for a Virginia ID card, according to police. The August crash was the third time Montano, whose parents brought him to the United States illegally from Bolivia, was arrested for drunken driving.
Claire Guthrie Gasta?aga, a former chief deputy attorney general of the state and an immigrant advocate, said that the September decision to stop accepting the document left many residents who are in the country legally scrambling to find additional forms of identification.
The American Civil Liberties Union is investigating whether the policy is constitutional, ACLU of Virginia Executive Director Kent Willis said.
But Stacey Johnson, a spokeswoman for McDonnell, said the governor would continue to have the DMV refuse the work permit as the sole form of proof of legal residency.
“Until the federal government can provide clear assurance that everyone who has an EAD is lawfully in this country, we will direct the DMV to continue not accepting this paperwork for purposes of receiving a Virginia driver’s license,” she said.
The opinion, though, gave the discretion to Holcomb and not the governor, Gasta?aga noted.
“He can choose to [have the DMV] accept the EAD, and we urge him to do so,” she said.
