Ever since Maribel Solache began teaching her own version of driver's ed in Spanish two years ago, the classes—held around San Diego County —have been jammed. She estimates she’s helped some 3,000 students earn their licenses. But lately, apprehension has smothered that enthusiasm.
“More people come with fear. They say ‘what is going to happen to my information?’ ” she said. “I tell them they have to get (their driver licenses) before January 20. Before Donald Trump.”
Her students are undocumented immigrants. So is Solache, who took her license test on the very day in January of 2015 that the state of California began offering immigrants here illegally the opportunity to become lawful drivers. Since then, the state Department of Motor Vehicles reports it has issued more than 792,000 licenses to undocumented drivers.
Now, however, California is preparing for the possibility that the administration of President-elect Donald Trump—who campaigned on a promise to deport at least 2 million people—might demand access to various state databases that would reveal the names and locations of undocumented immigrants, such as the one maintained by the DMV.
But in a state where Democrats hold the governor’s office and supermajorities in both houses of the Legislature, lawmakers say if the Trump administration does come knocking for such state data, their answer will be a vociferous “no.” That would likely kick off what could be a protracted fed-versus-state legal battle—one in which people on both sides predict their argument would prevail.
“We’re consulting with our lawyers to make sure (data) is not accessible to federal authorities for any deportation proceedings,” said Senate President Pro Tem Kevin de Leon (D-Los Angeles).
As the new Legislature was sworn in on Monday, Assembly Speaker Anthony Rendon (D-Paramount), was even more blunt about the anti-Trump resistance. California has a larger population of undocumented immigrants than any other state, he said, “and if you want to get to them, you have to go through us.”
And Gov. Jerry Brown appeared to place an exclamation point on California’s resolve with his choice of Los Angeles Democratic Rep. Xavier Becerra to take on the pivotal role of state attorney general. Himself the son of immigrants, Becerra recently tweeted a shout-out to so-called DREAMers, undocumented immigrants who were brought to the U.S. as children and who have created a movement around efforts to attend college and get jobs legally: “#DREAMers are some of the most courageous people I’ve ever met. We stand with you & are ready to fight for you.”
Trump, however, has vowed to more rigorously enforce immigration laws, to cancel the federal program that gives deportation waivers to some young people in the country without permission, and to cut off funding for cities that consider themselves “sanctuaries” for the undocumented because they do not cooperate with federal immigration law enforcement agencies.
“In a Trump administration all immigration laws will be enforced,” Trump said during an August speech in Phoenix. “As with any law enforcement activity, we will set priorities. But unlike this administration, no one will be immune or exempt from enforcement….Anyone who has entered the United States illegally is subject to deportation. That is what it means to have laws and to have a country.”
Trump’s pick for U.S. attorney general, GOP Sen. Jeff Sessions of Alabama, advocates limiting even legal immigration. In October, Sessions described the Obama administration approach as “open-border policies have made our country less secure than we were eight years ago, eviscerated any semblance of credibility in our immigration system, and have created an ever-growing financial burden on U.S. taxpayers. The country cannot sustain this course.”
California has gone further than most states to help undocumented immigrants. Besides driver licenses, it also allows undocumented children to get subsidized health care via Medi-Cal, undocumented college students to apply for state-funded college scholarships and qualify for in-state tuition rates, and undocumented parents to apply for county-provided aid such as welfare benefits for their qualified children who are citizens.
State efforts to protect the data does not mean the state would never cooperate. Various agencies already work with immigration authorities when there is an active investigation into a crime. And state prisons and jails turn over undocumented immigrants who have completed their sentences so they can be deported as the law requires.
This debate hinges on the information the state has from hundreds of thousands of immigrants in the country illegally who have not been convicted of any crimes and are not the subjects of active law enforcement investigations.
It’s unlikely that the new administration would target such databases, said Joe Guzzardi of Californians for Population Stabilization, an organization that attributes the state’s “unsustainable” growth to immigration.
“It stands to reason the new administration is going to focus on what are the major problems,” Guzzardi said. “The major problems are criminal aliens that Obama has allowed to stay in the United States and has in some cities, the sanctuary cities, released. Priority two is meaningful enforcement—a (border) wall or a fence or a combination.”
At the beginning of his campaign, Trump said that all 11 million undocumented immigrants should be deported. Later he narrowed his focus to 2 to 3 million he says are “criminals.”
After winning the election, he said during a 60 Minutes TV interview, “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate.”
His figures worry activists who say he could be planning to go after those whose crime is being in the country illegally. According to the The Migration Policy Institute, a New York-based nonpartisan research group, it is estimated there are less than 1 million “criminal” undocumented immigrants nationwide.
Immigration legal experts say it would be unprecedented for the federal government to try to grab local or state databases—and that the state could legally refuse such requests.
“There is a long history and tradition of not sharing information from agency to agency and from state to federal that deals with immigration status,” said Bill Hing, law professor and director of the Immigration and Deportation Clinic at the University of San Francisco Law School. “There is nothing that mandates that they have to turn over information just because the federal government asks.” To the contrary, he notes that the 10th Amendment to the Constitution specifies that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Kevin Johnson, dean of the UC Davis Law School, said creating that kind of pipeline—using information from state agencies, universities or local jurisdictions—would be “a political, legal and policy disaster....You’re going to confirm to immigrants that you can’t trust government and you shouldn’t be sharing information with government and you should stay as far away as possible from government."
But advocates of stricter immigration enforcement insist that under the Immigration and Nationality Act, which outlines provisions for enforcement, the federal government has a right to the information held by any agency or state.
“It’s a direct violation of federal law for California to have a policy that prohibits its agencies or officials from sharing immigration status information with immigration authorities,” said Dave Ray, spokesman for FAIR, the Federation for American Immigration Reform, which advocates for strict limits on immigration and increased enforcement and deportation.
With so much up in the air, the city of Los Angeles has stopped offering assurances. “We are in new territory,” said Linda Lopez, who heads the Los Angeles Mayor’s Office of Immigrant Affairs. “What we are hearing and learning from federal agencies and some partners is that while there will be some firewalls and protections…it’s still uncertain.”
That’s why, for now, the city is advising undocumented immigrants to hold off on new applications for programs. For those already enrolled in the system and up for renewal, officials recommend they renew as soon as possible.
Of course, some data is already in the hands of the Obama administration, and soon, the Trump administration. The prime example is the Deferred Action for Childhood Arrivals database, a list of some 741,546 undocumented youth—one-third of them Californians—illegally brought into the country as children. In 2012, President Obama signed an executive order granting qualified applicants temporary reprieve from deportation and work permits.
That DACA database is held by the federal Citizenship and Immigration Services agency, which promises to keep applicants’ information secure from law enforcement although that could change in the future. This is the program President-elect Trump has pledged to cancel upon taking office.
State leaders are urging Trump to keep the program but do not really have a say over what happens to that information.
For now, at least, California’s database holds more information about undocumented immigrants than the federal government is able to access. The largest example lives inside the computers of the DMV, and includes the names and addresses of three-quarters of a million people who were issued “AB60” driver licenses.
Nicknamed for the bill that created the program, the AB60 Driver License is nearly identical to a regular one except it says “Federal limits apply,” on the upper right corner.
The DMV said it does not maintain a separate database of AB60 license holders; instead all drivers are on one list. The agency noted in a statement that it keeps all personal information confidential, and that a law enforcement agency can access individual data only if there is an ongoing investigation and it provides a name for a search. No agency is allowed simply to peruse the database.
“Databases available to law enforcement entities do not indicate whether a driver license was issued under AB 60,” the DMV statement said, “nor do they include any of the identification documents used to obtain a driver license, AB 60 or otherwise.”
For Maribel Solache, the San Diego driver's ed teacher, her license was a gift. Before she got that plastic card, she recalled feeling terrified every time she drove her sons to school or soccer practice. She envisioned getting stopped and taken away in front of her children—or along with her children, who are also undocumented—and deported to Mexico.
The license program, she said, changed her life: “I’m able to drive without stress or panic.”
Even with a Trump administration on the horizon, she said, “I can’t be paralyzed with fear. I am confident the Governor Jerry Brown and the Legislature are going to work to keep that information private and to protect the law they passed.”
Her students are nervous about that too—but more anxious about the prospect of being pulled over by a police officer and not having a license under a Trump government.
Fieldworker Guadalupe Solano, who picks everything from pumpkins to flowers in the San Diego area, has been pulled over before. Twice she was let go with a warning, but the third time, her car was impounded.
“My biggest fear when Trump takes office is that we will have more roundups in the area and I can be pulled over and deported,” said Solano, who made an appointment to take the test in early January. “I am afraid that they will now have all of my information, they will know what my face looks like, they will have my fingerprints, and they will know where I live. They will be able to pick me up whenever they want if they choose to.”
For some, the uncertainty is enough to deter them.
In the MacArthur Park neighborhood of Los Angeles, Francisco Caballero sells cell phone covers and men’s watches alongside other immigrant street vendors. Before the election, he intended to apply for a license. Now that plan is on hold.
“We are still very fearful,” said Caballero, who first arrived from Mexico City in 1970. “(Trump) treats us like we are not worth anything.”
The state’s public university systems also hold information for thousands of undocumented students—in some cases, beyond what the federal government has because California has been offering benefits for so much longer.
In 2001 the state began allowing undocumented graduates of California high schools, or GED holders, who had attended at least three years of high school in the state to qualify for in-state tuition rates at public colleges. Previously they were required to pay the far higher out-of-state rates. Those who enrolled under the law became known as AB 540 students, named for the bill that created the benefit.
Over a decade later, in 2012, the state began allowing California’s public colleges to grant private and non-state funded scholarships to eligible AB 540 students. A year later the state enacted what’s known as the California DREAM Act to allow those same students to apply for state-funded financial aid such as Cal Grants.
That’s how Alma Leyva, 27, was able to finish college this year. Leyva started college in 2007, qualifying as an in-state student and paying for school out of pocket. In 2013 she was able to apply for state grants through the Cal DREAM Act to continue her studies. In the meantime, she had also applied for and qualified for the federal Deferred Action program which allowed to stop worrying about deportation and granted her a work permit.
Now she is in all of those databases.
“I think it’s something we’re going to continue to put up a fight for, to make sure that’s protected,” said Leyva, who works at the Dream Resource Center at the UCLA Labor Center. “For ourselves and our families and other folks that might have put their information in any database.”
So far dozens of university presidents across the country have sent letters to the Trump administration urging it to maintain the Deferred Action program, which includes many students like Leyva, and to keep the data safe.
Hing, the legal expert at USF, said there is no federal law requiring universities to turn over information especially about students. But he also said that doesn’t mean the laws will not change under a new administration.
Assemblyman Ricardo Lara (D-Los Angeles) just introduced a bill to keep any state agency from providing religious information to the federal government—a defense against Trump’s talk of building a database of Muslims. It’s unclear if any state departments even keep a list that would include religions. In response to a request for which agencies do, an aide to Lara replied “we’re still exploring that question.”
California isn’t alone in scrambling to safeguard its databases. In New York City—which offers identification cards to anyone who wants one, including undocumented immigrants—officials have signaled they could delete the database if necessary. On Monday, in a sign of the conflict to come, two lawmakers there sued to stop the city from allowing the database to disappear.