Changes to NM's Driver's License Law and Its Impact on Immigrants

Changes to NM’s Driver’s License Law and Its Impact on Immigrants

March 2, 2016

Somos un Pueblo Unido, an immigrant and worker’s rights organization integral in pushing for the HB 99 compromise bill, created a fact sheet on the new law. To see the fact sheet click here.

Para leer la versión en español por favor de hacer clic aquí

After a five-year anti-immigrant campaign waged by Governor Susana Martinez, the battle over driver’s licenses now appears to be over. On February 15, 2016, the New Mexico Legislature passed a compromise bill, House Bill 99 (or HB 99), which Governor Susana Martinez signed into law on March 8, 2016.

Will the HB 99 compromise bill still allow undocumented immigrants to drive lawfully?

Yes. Though Governor Susana Martinez claims that she took away driver’s licenses from undocumented immigrants, HB 99 allows undocumented immigrants to continue to drive lawfully in the state. This is for two reasons:

First, HB 99 allows all current New Mexico driver’s licenses to remain valid until they expire, regardless of immigration status.

Second, HB 99 creates a separate, non-REAL ID Act-compliant Driving Authorization Card (DAC), which allows undocumented immigrants to continue to drive lawfully in New Mexico. It’s important to note that any New Mexico resident—citizens, lawfully present immigrants, and undocumented immigrants—will be able to obtain a Driving Authorization Card. This will lessen the chance that undocumented immigrants will be singled out and discriminated against if they present a Driving Authorization Card.

What was the compromise?

New Mexico Legislators faced pressure amid increased media attention about New Mexico’s driver’s licenses not complying with the federal REAL ID Act of 2005. Governor Martinez and other anti-immigrant politicians falsely claimed that compliance meant denying driver’s licenses to undocumented immigrants. But, in fact, the REAL ID Act allows just the kind of licensing system that the legislature passed.

To address New Mexico’s non-compliance, HB 99 establishes a two-tiered system that creates a REAL ID Act-compliant driver’s license and a non-compliant Driving Authorization Card.

The REAL ID Act-compliant driver’s license is limited to New Mexicans who can prove “lawful status” in the United States. This means that drivers will need to provide evidence that they are a citizen or national of the United States, a legal permanent resident, or otherwise permitted to be in the United States. The driver must also provide his or her social security number.

The Driving Authorization Card provision contains rigorous proof of identity and state residence requirements, but does not require proof of lawful status. An earlier version of HB 99 mandated that New Mexicans who could establish lawful status obtain a REAL ID Act-compliant driver’s license. However, advocates and legislators successfully argued against that requirement because many New Mexicans don’t travel on commercial flights or visit federal facilities and wouldn’t need a compliant license, while other New Mexicans did not want to undergo the increased identity vetting process. As passed, HB 99 makes it optional for any New Mexican with a lawful status to choose between a compliant driver’s license and a non-compliant Driving Authorization Card.

What do immigrants in New Mexico need to know?

HB 99 does not eliminate the driver’s licenses that immigrants—documented or undocumented—currently have. The compromise bill does not cancel current licenses, but once a current license expires or is revoked, individuals unable to prove lawful status will only be eligible for a Driving Authorization Card.

Undocumented drivers with a valid license will not have to be fingerprinted, even when the time comes that they must apply for a Driving Authorization Card.  They are exempt from the fingerprinting requirement as long as they apply for a DAC before their valid licenses expire or otherwise become invalid.

First time applicants for a Driving Authorization Card will need to undergo a fingerprint and background check. Undocumented immigrants obtaining a Driving Authorization Card for the first time (and who had not been issued a New Mexico driver’s license previously or are unable to provide a valid driver’s license when applying for a DAC) will need to undergo a background check before they can obtain one.

What about the fingerprinting and background check requirements?

HB 99 establishes that any individual who wants to obtain a Driving Authorization Card, does not provide proof of lawful status and does not possess a valid New Mexico license or identification card, must be fingerprinted. The state will then submit the fingerprints to both the state Department of Public Safety and the Federal Bureau of Investigation to conduct a background check.

If the background check returns information indicating that the applicant has an outstanding valid criminal arrest warrant or if the applicant’s fingerprints are connected to any name, date of birth, or social security number other than those provided by the applicant in his or her application, the state will not issue the applicant a Driving Authorization Card. The applicant will need to resolve the problems and provide “satisfactory evidence” that the problems were resolved before he or she will be issued one.

Will my fingerprints and personal information be sent to Immigration and Customs Enforcement (ICE)?

No. An earlier version of HB 99 made it a requirement that the Motor Vehicle Division notify ICE if certain criminal history information was returned after conducting background checks on undocumented immigrants. However, the amended version of HB 99 that passed both chambers of the Legislature removed that language and only requires that the fingerprints from an individual who is unable to prove lawful status be sent to the Department of Public Safety and the Federal Bureau of Investigation for the limited purposes outlined above.

Can DACA-mented New Mexicans obtain a REAL ID Act-compliant driver’s license?

Yes. HB 99 adopts the definition of “lawful status” of the REAL ID Act of 2005. The REAL ID Act specifically includes a person “approved for deferred action status” as having lawful status and so DACA-mented New Mexicans will be eligible for a REAL ID Act-compliant driver’s license as long as they meet the other requirements to obtain the license.

What happens if I let my current driver’s license expire and I am undocumented?

If you let your current license expire, then once HB 99’s effective date arrives, you will have to be fingerprinted and will be subject to a criminal background check when you apply for a Driving Authorization Card.

Currently, HB 99 is not in effect and you still are able to renew your driver’s license under current law. See below about the expected date that HB 99 will take effect.

What happens if my current driver’s license is revoked and I am undocumented?

There are many reasons why a driver’s license may be revoked, including nonpayment of child support, a DWI conviction or certain other convictions. This means that if your current driver’s license is revoked and you are undocumented, and you need to apply for a new one after the effective date of HB 99, you may need to undergo fingerprinting and a background check.

It is unclear what would happen if a license is revoked during the implementation stage of HB 99, i.e. after the effective date of HB 99 but before the Motor Vehicle Division begins to issue DACs. We will update this section as more information becomes available.

Currently, HB 99 is not in effect and you still are able to renew your driver’s license under current law. See below about the expected date that HB 99 will take effect.

Can my current driver’s license be used for domestic air travel and to enter federal facilities?

Yes. The Department of  Homeland Security extended the compliance date until October 1, 2020. This means that New Mexicans with valid driver’s licenses may be able to use them to board domestic flights and to enter federal facilities until at least the year 2020.

When will HB 99 become effective and how long will it take to be implemented?

Governor Martinez signed HB 99 on March 8, 2016. HB 99 will become effective 90 days after the end of the legislative session, or beginning on May 18, 2016.

Remember that currently, HB 99 is not in effect and you still are able to renew your driver’s license under current law.

HB 99 gives the Taxation and Revenue Department, which houses the Motor Vehicle Division, no more than six months after the effective date of the bill (approximately May 18, 2016) to establish and begin to issue REAL ID Act-compliant licenses. This means that the Motor Vehicle Division could start issuing new REAL ID Act-compliant driver’s licenses as late as November 18, 2016. There is no indication in HB 99 on how soon the Motor Vehicle Division would start issuing DACs.**

**updated March 4, 2016 to properly reflect that HB 99 does not provide a timetable for the issuance of DACs.