STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6883

December 14, 1995

STATE, DEPARTMENT OF:

Ability of an illegal alien to obtain a Michigan driver's license

The Department of State may not refuse a driver's license to an otherwise qualified person solely because that person is an illegal alien under the Immigration and Nationality Act of 1952.

Honorable Candice Miller

Secretary of State

Department of State

Lansing, Michigan

Your predecessor in office has asked if the Department of State may refuse a driver's license to an otherwise qualified person solely because that person is an illegal alien under the Immigration and Nationality Act of 1952, 8 USC 1101 et seq.

The requirements for obtaining a Michigan driver's license are contained in the Michigan Vehicle Code (the Code), 1949 PA 300, MCL 257.1 et seq; MSA 9.1801 et seq. In 1968 PA 106, the Legislature added section 51a to the Code, defining the word "resident" for purposes of the Code as follows:

Section 303(m) of the Code prohibits the Secretary of State from issuing a driver's license to a "nonresident." ⁽¹⁾ This prohibition was added to the Code by 1988 PA 346, as part of a package of bills dealing with truck safety to bring Michigan in compliance with the then Commercial Motor Vehicle Safety Act of 1986, 49 USC 2701 et seq. House Legislative Analysis, SB 700, November 4, 1988. A review of the legislative history of SB 700, which became 1988 PA 346, including the analyses of the various substitutes considered in both Houses, reveals no indication that this prohibition was directed at illegal aliens.

In the Code the Legislature has not required that a person be a lawful resident of the United States under the Immigration and Nationality Act of 1952 to receive a driver's license. Nor has the Legislature enacted any prohibition that a driver's license shall not be issued to an illegal alien.

There is nothing in the federal Immigration and Nationality Act of 1952 that precludes an illegal alien from becoming a resident of a state. Next, we turn to the controlling case law.

In Plyler v Doe, 457 US 202, 230; 102 S Ct 2382; 72 L Ed 2d 786 (1982), the United States Supreme Court held that the denial of free public education to illegal alien children violated the Equal Protection Clause of the Fourteenth Amendment. In reaching that result, the Court enunciated three important legal principles:

In Cabral v State Bd of Control, 112 Cal App 3d 1012, 1015-1017; 169 Cal Rptr 604 (1980), the court held that an illegal alien was a "resident of California" for the purpose of a crime victim compensation statute. The court rejected an administrative regulation that limited state residency under the California statute to persons that were lawful residents of the United States, because the regulation imposed a requirement that was not in the statute.

The Arizona Supreme Court followed Plyler v Doe, supra, in requiring a county to reimburse a private hospital for medical services rendered to an illegal alien under an Arizona statute limiting reimbursement to indigent county residents. The court held that illegal aliens could acquire residence in the county. St. Joseph's Hospital v Maricopa County, 142 Ariz 94; 688 P2d 986, 992 (1984).

In summary, neither federal nor Michigan statutes preclude an illegal alien from establishing residence in Michigan. The courts have consistently ruled that illegal aliens, who are persons protected from arbitrary state action by the Equal Protection Clause of the Fourteenth Amendment, may meet state residency standards.

It is my opinion, therefore, that the Department of State may not refuse a driver's license to an otherwise qualified person solely because that person is an illegal alien under the Immigration and Nationality Act of 1952.

Frank J. Kelley

Attorney General