Fahy v . NH DOS 05-CV-097-SM 06/26/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Sr. M . Regina Fahy, RSM; Haliyamtu Theo Amani; Sarra Ali; Eva Castillo-Turgeon; and Annagreta Swanson, Plaintiffs
v. Civil N o . 05-cv-97-SM Opinion N o . 2006 DNH 074 Commissioner, New Hampshire Department of Safety,
O R D E R
Pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure, plaintiffs move the court to reconsider and/or clarify
its order dated March 2 9 , 2006, granting in part and denying in
part their motion for preliminary and permanent injunctive
relief. The State objects.
Standard of Review
To be entitled to relief under Rule 5 9 , plaintiffs must
point to newly discovered evidence supportive of their position
that was not available to them prior to the court’s order of
March 2 9 . Alternatively, they must demonstrate that the court
based its earlier order on a manifest error of law. See, e.g.,
Landrau-Romero v . Banco Popular de Puerto Rico, 212 F.3d 6 0 7 , 612
(1st Cir. 2000). Plaintiffs may not, however, attempt to press arguments that were not advanced earlier, either in their
petition for injunctive relief or at summary judgment. See,
e.g., Aybar v . Crispin-Reyes, 118 F.3d 1 0 , 16 (1st Cir. 1997)
(“The rule does not provide a vehicle for a party to undo its own
procedural failures, and it certainly does not allow a party to
introduce new evidence or advance arguments that could and should
have been presented to the district court prior to the
judgment.”) (quoting Moro v . Shell Oil Co., 91 F.3d 8 7 2 , 876 (7th
Cir. 1996)). See also Vasapolli v . Rostoff, 39 F.3d 2 7 , 36 (1st
Cir. 1994).
Discussion
In support of their motion, plaintiffs advance four distinct
arguments:
1. The Real ID Act, Pub. L . 109-13 Div. B , Title I I , § 201-207 (May 1 1 , 2005) (“Improved Security for Drivers’ Licenses and Personal Identification Cards”), was passed well after the State enacted the challenged regulations and, therefore, could have had no influence on the State’s drafting and promulgation of those regulations. Thus, say plaintiffs, the State is impermissibly using the Real ID act as an “after-the-fact justification” for the administrative regulations at issue in this case;
2. The New Hampshire legislature may reject implementation of the Real ID Act - legislation to that effect is pending, but has not yet been enacted. S o , say plaintiffs, the court should not have relied on the provisions of the Real ID Act when
2 determining the constitutionality of the challenged state regulations;
3. The State’s practice of engaging in background checks of all persons to whom temporary licenses are issued and/or checking to see whether the names of those individuals appear on any terror watch-lists is unconstitutional; and
4. All plaintiffs are “immigrant aliens” (also known as “resident aliens”) and the Real ID Act does not authorize the State to issue them drivers’ licenses that expire prior to the five year period prescribed by state statute. And, say plaintiffs, the State’s practice of issuing temporary drivers’ licenses to immigrant aliens is unconstitutional.
Plaintiffs’ memorandum (document n o . 57-2) at 2-5.
The first two arguments advanced by plaintiffs are without
merit, but in any event were not advanced in plaintiffs’ motion
for summary judgment and, therefore, cannot be asserted as a
basis for relief under Rule 5 9 . Similarly, plaintiffs’ third
argument - that some aliens are being subjected to background
checks and/or that their names are being checked against terror
watch-lists - was not raised in plaintiffs’ petition for
injunctive relief or their motion for summary judgment.
Accordingly, that argument is also deemed to have been forfeited.
Finally, plaintiffs assert that the State is impermissibly
issuing drivers’ licenses to some aliens that expire prior to the
3 statutorily prescribed five year period. The court did not
specifically address that argument in its earlier order because
it assumed, perhaps erroneously, that it was no longer an issue
as the State was no longer engaged in that practice. But, to the
extent the issue remains unresolved, it is plain that the New
Hampshire Department of Motor Vehicles is not authorized by
federal law, state law, or even its own administrative
regulations, to issue drivers’ licenses that expire in fewer than
five years to certain categories of non-citizens, in which
plaintiffs are included.
As the court noted in its earlier order, the Real ID Act
requires states to issue “temporary drivers’ licenses”1 to five
categories of non-citizens (assuming the state wishes its
licenses to serve as federally-recognized identity documents).
See id. at §§ 202(c)(2)(B) and 202(c)(2)(C)(i). It does not,
however, mandate the issuance of temporary licenses to lawfully
admitted permanent or temporary resident aliens, individuals who
have entered the United States in refugee status, or those who
have applied for asylum status. See id. at § 202(c)(2)(B)(ii)-
(iv). The reason for the different treatment accorded to those
1 The “temporary drivers’ licenses” presently at issue are distinct from the temporary, 45-day, paper driving permits that were discussed in the court’s prior order. The so-called temporary driver’s license is one whose expiration date is tied to the expiration of the alien’s legal status documents, rather than the statutorily prescribed five year expiration date.
4 two general categories of non-citizens is fairly clear: in the
latter category (i.e., temporary and permanent resident aliens,
refugees, and asylees), the non-citizens have expressed an
intention to permanently remain in the United States and have, at
least preliminarily, been approved to do so by Citizenship and
Immigration Services. They are, therefore, generally referred to
as “permanent aliens” or “immigrant aliens.” Those in the former
category (e.g., tourists traveling on non-immigrant visas and
individuals with pending applications for asylum), however, have
not expressed an intention to permanently remain in the United
States and/or have not obtained preliminary approval to do s o .
Individuals falling into that category are, then, generally known
as “temporary aliens” or “non-immigrant aliens.”
In light of the foregoing, and because they say they are all
either permanent resident aliens or have entered the United
States in refugee status or as asylees, plaintiffs assert that
the Real ID Act neither requires nor authorizes the State to
issue them “temporary drivers’ licenses.” To the extent they
fall within the appropriate categories of immigrant aliens, they
are correct.
But, more to the point, the state’s own administrative
regulations do not purport to authorize the issuance of temporary
5 drivers’ licenses to persons in plaintiffs’ position. Saf-C
1003.04(g) provides that New Hampshire drivers’ licenses shall be
valid for a period of five years or until certain listed
immigration documents expire, whichever occurs first. But, the
referenced immigration documents - visas and Forms I-20 and DS-
2019 - are the type possessed by non-citizens who are authorized
to be in this country only for limited periods (e.g., tourists,
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Fahy v . NH DOS 05-CV-097-SM 06/26/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Sr. M . Regina Fahy, RSM; Haliyamtu Theo Amani; Sarra Ali; Eva Castillo-Turgeon; and Annagreta Swanson, Plaintiffs
v. Civil N o . 05-cv-97-SM Opinion N o . 2006 DNH 074 Commissioner, New Hampshire Department of Safety,
O R D E R
Pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure, plaintiffs move the court to reconsider and/or clarify
its order dated March 2 9 , 2006, granting in part and denying in
part their motion for preliminary and permanent injunctive
relief. The State objects.
Standard of Review
To be entitled to relief under Rule 5 9 , plaintiffs must
point to newly discovered evidence supportive of their position
that was not available to them prior to the court’s order of
March 2 9 . Alternatively, they must demonstrate that the court
based its earlier order on a manifest error of law. See, e.g.,
Landrau-Romero v . Banco Popular de Puerto Rico, 212 F.3d 6 0 7 , 612
(1st Cir. 2000). Plaintiffs may not, however, attempt to press arguments that were not advanced earlier, either in their
petition for injunctive relief or at summary judgment. See,
e.g., Aybar v . Crispin-Reyes, 118 F.3d 1 0 , 16 (1st Cir. 1997)
(“The rule does not provide a vehicle for a party to undo its own
procedural failures, and it certainly does not allow a party to
introduce new evidence or advance arguments that could and should
have been presented to the district court prior to the
judgment.”) (quoting Moro v . Shell Oil Co., 91 F.3d 8 7 2 , 876 (7th
Cir. 1996)). See also Vasapolli v . Rostoff, 39 F.3d 2 7 , 36 (1st
Cir. 1994).
Discussion
In support of their motion, plaintiffs advance four distinct
arguments:
1. The Real ID Act, Pub. L . 109-13 Div. B , Title I I , § 201-207 (May 1 1 , 2005) (“Improved Security for Drivers’ Licenses and Personal Identification Cards”), was passed well after the State enacted the challenged regulations and, therefore, could have had no influence on the State’s drafting and promulgation of those regulations. Thus, say plaintiffs, the State is impermissibly using the Real ID act as an “after-the-fact justification” for the administrative regulations at issue in this case;
2. The New Hampshire legislature may reject implementation of the Real ID Act - legislation to that effect is pending, but has not yet been enacted. S o , say plaintiffs, the court should not have relied on the provisions of the Real ID Act when
2 determining the constitutionality of the challenged state regulations;
3. The State’s practice of engaging in background checks of all persons to whom temporary licenses are issued and/or checking to see whether the names of those individuals appear on any terror watch-lists is unconstitutional; and
4. All plaintiffs are “immigrant aliens” (also known as “resident aliens”) and the Real ID Act does not authorize the State to issue them drivers’ licenses that expire prior to the five year period prescribed by state statute. And, say plaintiffs, the State’s practice of issuing temporary drivers’ licenses to immigrant aliens is unconstitutional.
Plaintiffs’ memorandum (document n o . 57-2) at 2-5.
The first two arguments advanced by plaintiffs are without
merit, but in any event were not advanced in plaintiffs’ motion
for summary judgment and, therefore, cannot be asserted as a
basis for relief under Rule 5 9 . Similarly, plaintiffs’ third
argument - that some aliens are being subjected to background
checks and/or that their names are being checked against terror
watch-lists - was not raised in plaintiffs’ petition for
injunctive relief or their motion for summary judgment.
Accordingly, that argument is also deemed to have been forfeited.
Finally, plaintiffs assert that the State is impermissibly
issuing drivers’ licenses to some aliens that expire prior to the
3 statutorily prescribed five year period. The court did not
specifically address that argument in its earlier order because
it assumed, perhaps erroneously, that it was no longer an issue
as the State was no longer engaged in that practice. But, to the
extent the issue remains unresolved, it is plain that the New
Hampshire Department of Motor Vehicles is not authorized by
federal law, state law, or even its own administrative
regulations, to issue drivers’ licenses that expire in fewer than
five years to certain categories of non-citizens, in which
plaintiffs are included.
As the court noted in its earlier order, the Real ID Act
requires states to issue “temporary drivers’ licenses”1 to five
categories of non-citizens (assuming the state wishes its
licenses to serve as federally-recognized identity documents).
See id. at §§ 202(c)(2)(B) and 202(c)(2)(C)(i). It does not,
however, mandate the issuance of temporary licenses to lawfully
admitted permanent or temporary resident aliens, individuals who
have entered the United States in refugee status, or those who
have applied for asylum status. See id. at § 202(c)(2)(B)(ii)-
(iv). The reason for the different treatment accorded to those
1 The “temporary drivers’ licenses” presently at issue are distinct from the temporary, 45-day, paper driving permits that were discussed in the court’s prior order. The so-called temporary driver’s license is one whose expiration date is tied to the expiration of the alien’s legal status documents, rather than the statutorily prescribed five year expiration date.
4 two general categories of non-citizens is fairly clear: in the
latter category (i.e., temporary and permanent resident aliens,
refugees, and asylees), the non-citizens have expressed an
intention to permanently remain in the United States and have, at
least preliminarily, been approved to do so by Citizenship and
Immigration Services. They are, therefore, generally referred to
as “permanent aliens” or “immigrant aliens.” Those in the former
category (e.g., tourists traveling on non-immigrant visas and
individuals with pending applications for asylum), however, have
not expressed an intention to permanently remain in the United
States and/or have not obtained preliminary approval to do s o .
Individuals falling into that category are, then, generally known
as “temporary aliens” or “non-immigrant aliens.”
In light of the foregoing, and because they say they are all
either permanent resident aliens or have entered the United
States in refugee status or as asylees, plaintiffs assert that
the Real ID Act neither requires nor authorizes the State to
issue them “temporary drivers’ licenses.” To the extent they
fall within the appropriate categories of immigrant aliens, they
are correct.
But, more to the point, the state’s own administrative
regulations do not purport to authorize the issuance of temporary
5 drivers’ licenses to persons in plaintiffs’ position. Saf-C
1003.04(g) provides that New Hampshire drivers’ licenses shall be
valid for a period of five years or until certain listed
immigration documents expire, whichever occurs first. But, the
referenced immigration documents - visas and Forms I-20 and DS-
2019 - are the type possessed by non-citizens who are authorized
to be in this country only for limited periods (e.g., tourists,
students pursuing academic studies in the country for a specific
period of time, temporary immigrant workers, e t c . ) . See also
Saf-C 1002.06.
As the state administrative regulations themselves
contemplate, resident aliens would verify their identity by
presenting a permanent resident card (also known as a “green
card”). See Saf-C 1002.06(a)(3)(a)(1). Persons residing in the
United States as either asylees or refugees would present an I-94
card, which evidences their status as either asylees or refugees.
See Saf-C 1002.06(a)(3)(a)(2). But neither the permanent
resident card nor the I-94 is listed among the immigration
documents to which the expiration of a drivers’ license may be
tied. See Saf-C 1003.04(g). In other words, the Department’s
own regulations do not authorize the issuance of New Hampshire
drivers’ licenses to immigrant aliens which bear an expiration
date linked to the renewal date of their immigration status
6 documents. See generally Appeal of Town of Nottingham, __
N.H.__, 2006 WL 1359972 (May 1 9 , 2006) (“The law of this State is
well settled that an administrative agency must follow its own
rules and regulations. An agency must also comply with the
governing statute, in both letter and spirit, and agency
regulations which contradict the terms of a governing statute
exceed the agency’s authority.”) (citations and internal
punctuation omitted). 2
Immigrant aliens residing in New Hampshire are, like United
States citizens residing in this state, entitled to New Hampshire
drivers’ licenses that expire in the statutorily prescribed five
year period. While it is possible that an alien’s permanent
residency status might be eventually denied, or even revoked, it
2 To the extent the Department of Motor vehicles has been issuing temporary drivers’ licenses to immigrant aliens (including those who are lawfully in the United States as either refugees or asylees) in reliance upon N.H. Rev. Stat. Ann. 263:39-a, such reliance is misplaced. That statute authorizes the DMV to issue temporary drivers’ licenses only to individuals who are “living in New Hampshire on a temporary basis.” While that phrase is not defined in the statute, the court presumes it refers to aliens who have not evidenced an intention to remain in the United States permanently (e.g., tourists traveling on visas, temporary immigrant workers, e t c . ) . Accordingly, it does not include within its scope the various categories of immigrant aliens into which plaintiffs fall.
7 is also possible that a citizen might establish residency in
another state before the five-year period expires. Neither
future possibility warrants issuing a drivers’ license for less
than the period prescribed by the legislature and applicable
regulations.
Conclusion
Neither the Real ID Act nor the challenged state
administrative regulations require (or even authorize) the State
to issue temporary drivers’ licenses t o : (a) aliens lawfully
admitted to the United States for permanent or temporary
residence; (b) those with approved applications for asylum; or
(c) those who have entered the United States in refugee status.
Persons in those categories all intend to permanently remain in
the United States and all have been approved, at least initially,
by Citizenship and Immigration Services to do s o . Consequently,
those plaintiffs who fall into one of those three categories are
entitled to drivers’ licenses that do not expire before the end
of the statutorily prescribed period of five years, barring, of
course, any unusual circumstances that would lawfully warrant a
shorter expiration period.
Plaintiffs’ motion to amend judgment and/or for
clarification (document n o . 57) is granted in part and denied in
8 part. It is granted to the extent plaintiffs seek clarification
of the right of certain categories of non-citizens (i.e.,
“immigrant” or “resident” aliens) to obtain New Hampshire
drivers’ license that expire five years from issuance, as
discussed above. In all other respects, plaintiffs’ motion is
denied.
SO ORDERED.
Steven J . McAuliffe :hief ^Judge
June 2 6 , 2006
cc: Christine C . Wellington, Esq. Stephanie A . Bray, Esq. Nancy J. Smith, Esq.