The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

DRIVER'S LICENSE:

MICHIGAN DEPARTMENT OF STATE:

MICHIGAN VEHICLE CODE:

 Permanent Residency Requirement for Driver's Licenses

Only a resident of Michigan may be issued a Michigan driver's license.  A person who is not a lawful resident of the United States cannot be a resident of this State for purposes of obtaining a driver's license under sections 51a and 303(1)(h) of the Michigan Vehicle Code, MCL 257.51a and MCL 257.303(1)(h).

Opinion No. 7210

December 27, 2007

Honorable Rick Jones
State Representative
The Capitol
Lansing, MI

You ask whether, in light of OAG, 1995-1996, No 6883, p 120 (December 14, 1995) (OAG No 6883), the Michigan Secretary of State is required to issue a driver's license to an illegal alien1 living in Michigan.

When OAG No 6883 was issued, section 303(1)(h)2 of the Michigan Vehicle Code, MCL 257.303(1)(h), prohibited the Secretary of State from issuing a driver's license to "a nonresident." That prohibition was added by 1988 PA 346. The legislative history of 1988 PA 346 was reviewed, and it revealed no indication that this prohibition was directed at illegal aliens. OAG No 6883 at p 120. Additionally, citing Plyler v Doe, 457 US 202, 230; 102 S Ct 2382; 72 L Ed 786 (1982), OAG No 6883 suggested that denying a driver's license to an illegal alien might violate the Equal Protection Clause of the United States Constitution. OAG No 6883 at p 120. OAG No 6883 concluded that the Secretary of State "may not refuse a driver's license to an otherwise qualified person solely because that person is an illegal alien."3 You ask whether this opinion remains valid today.

Recent developments in state and federal law, as well as the changing imperatives of national security since OAG No 6883 was issued, warrant a reexamination of this subject.4

Initially, it is worth observing the truism in modern society that a driver's license does more than evidence an individual's competence to operate a motor vehicle. It is accepted as proof of identity and is routinely used in myriad circumstances, including cashing a check, closing on a loan, gaining employment, and securing access to a commercial airplane. At one time, the federal government assigned social security numbers for certain valid nonwork purposes, including for the purpose of obtaining a state-issued driver's license that required an applicant to provide a social security number as a condition of receiving the license. In 2003, this policy ended. In explaining the rationale behind the policy change, the Social Security Administration cited the problems of fraud and misuse arising from the issuance of social security numbers (SSNs) so that illegal aliens could obtain driver's licenses: "Our experience has revealed that fraud and misuse regarding SSNs for nonwork purposes has been almost exclusively in relation to SSNs issued for driver licensing." 68 Federal Register 55304 (codified at 20 CFR 422.104 effective October 27, 2003).

In light of these implications to state and national security unique to driver's licenses and the potential for fraud resulting from the improper issuance of a driver's license, it is essential that those involved in executing the law issue a driver's license only to persons who are legally entitled to be granted that privilege.5

The requirements to obtain a driver's license are set forth in Chapter 3 of the Michigan Vehicle Code, MCL 257.301-MCL 257.328.6 All persons seeking a driver's license, whether an original or a renewed license, must file an application with the Department of State. MCL 257.307.

Section 303(1)(h), which had required that an applicant be "a resident," has been amended twice since OAG No 6883 was issued. 1996 PA 387 added language to exclude from qualification for a driver's license "a foreign exchange student." Ten years later in 2006 PA 298, the Legislature again amended section 303(1)(h) by adding the words "but not limited to" to emphasize that the exclusion of "nonresidents" is not limited to foreign exchange students but extends to all persons who do not qualify as residents:

(1) The secretary of state shall not[7] issue a license under this act to any of the following persons:

* * *

(h) A nonresident, including, but not limited to, a foreign exchange student. [MCL 257.303(1)(h); emphasis added.]

Section 34 of the Michigan Vehicle Code, MCL 257.34, defines "nonresident" to mean "every person who is not a resident of the state." Section 51a of the Michigan Vehicle Code, MCL 257.51a, defines "resident" as follows:

"Resident" means every person who resides in a settled or permanent home or domicile with the intention of remaining in this state. A person who obtains employment in this state is presumed to have the intention of remaining in this state. This definition shall apply to the provisions of this act only.

Neither the Michigan Court of Appeals nor the Michigan Supreme Court has considered whether an illegal alien may fall within that definition of "resident." The critical question not addressed in OAG No 6883 is whether a "resident" for purposes of the Michigan Vehicle Code must be a permanent resident.8

MCL 257.51a defines a resident as a "person who resides in a settled or permanent home or domicile with the intention of remaining in this state." The terms "domicile" and "residence" ordinarily are synonymous. Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477, 495; 274 NW2d 373 (1979). Similarly, "settled" means "to take up residence." Dictionary.com Unabridged (v 1.1). By using the phrase "settled or permanent home" followed by the phrase "with the intention of remaining in this state," the Legislature stated a clear intent that a "resident" for purposes of the Michigan Vehicle Code must be permanent and not temporary or transient.

This notion of permanence has long been accepted by the courts in other contexts when discussing what constitutes "residence." For example, in Wright v Genesee Circuit Judge, 117 Mich 244, 245; 75 NW 465 (1898), the Court defined "residence" as the "place where one resides; an abode; a dwelling or habitation; especially, a settled or permanent home or domicile." In Beecher v Detroit Common Council, 114 Mich 228, 230; 72 NW 206 (1897), the Court explained that a "temporary abode in a place does not establish a residence there." Based on the specific definition found in section 51a of the Vehicle Code that expressly contemplates permanence and the long-standing recognition in case law that residence entails permanence, it must be concluded that only a permanent resident is eligible to receive a driver's license in Michigan.9

The question then becomes whether an illegal alien may legally be considered a permanent resident of this State.

As a general rule, determining whether a person is a permanent resident involves an analysis of the subjective intent of the individual claiming residency. Moreover, the question is generally one of fact. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165; 530 NW2d 772 (1995). However, when considering questions involving aliens, a different analysis is required.

It is important to recognize that Congress has plenary authority to control immigration and regulate the conduct of aliens in the United States. Harisades v Shaugnessy, 342 US 580; 72 S Ct 512; 96 L Ed 586 (1952). The extent of Congress's exclusive authority concerning immigration matters was explained in Hines v Davidowitz, 312 US 52, 62; 61 S Ct 399; 85 L Ed 581 (1941):

That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article 6 of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. "For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power." [Internal footnotes and citations omitted.]

The principle that federal law is supreme on matters of immigration and alien status was repeated in Takahashi v Fish & Game Comm'n, 334 US 410, 419; 68 S Ct 1138; 92 L Ed 1478 (1948):

The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. [Citation omitted; emphasis added.]

Toll v Moreno, 458 US 1, 10; 102 S Ct 2977; 73 L Ed 2d 563 (1982), illustrates the exclusive authority of the federal government with regard to whether an alien is, or is not, a resident. The Court addressed whether a state could deny residency status to a lawfully admitted alien for the purpose of securing in-state tuition at a state university. Emphasizing the preeminence of the federal government in such matters, the Court concluded that such a state policy was impermissible:10

Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power "[to] establish [a] uniform Rule of Naturalization," U.S. Const., Art. I, � 8, cl. 4, its power "[to] regulate Commerce with foreign Nations", id., cl. 3, and its broad authority over foreign affairs. [Citations omitted.]

Relevant to your question, Congress has created a specific alien status of "lawfully admitted for permanent residence," which is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 USC 1101(a)(20). Congress has also established a set of complex rules that determines the alien's ability to remain in the United States.

One of these provisions, which allowed an alien to petition the United States Attorney General for discretionary relief from an order of deportation, was under review in Loc v Immigration and Naturalization Service, 681 F2d 107, 109 (CA 2, 1982). Under the then existing law, such relief could be granted if the alien had established a lawful domicile in the United States for seven consecutive years. The Court in Loc reasoned that the petitioner established domicile when he established an intent to remain in the United States. However, the Court noted he "established lawful domicile only when his intent to remain was legal under the immigration laws." Since the petitioner had overstayed his visa and was in the country illegally, that period could not count toward the seven-year residency requirement. Similarly, an alien in the country on a student visa that by its terms required that the alien return home after the expiration of the visa "cannot lawfully possess an intent to be domiciled in this country" during the visa period. Brown v Immigration and Naturalization Service, 856 F2d 728, 731 (CA 5, 1988). See also Melian v Immigration and Naturalization Service, 987 F2d 1521, 1525 (CA 11, 1993) ("for an alien's domicile to be considered 'lawful,' he must at least comply with this country's immigration laws"); Castellon-Contreas v Immigration and Naturalization Service, 45 F3d 149, 153 (CA 7, 1995) ("In order to have 'lawful domicile,' then, an alien must have the ability, under the immigration laws, to form the intent to remain in the United States indefinitely. . . . Thus an alien who enters the country illegally cannot have a 'lawful' intent to remain here.")11

Michigan law must be interpreted against that background of federal law when considering questions involving aliens. It would be inconsistent with that body of law to find that a person in this country illegally, who has not secured permanent alien status from the federal government, can be regarded as a permanent resident in Michigan. There is nothing in the language or history of the Michigan Vehicle Code to indicate the Legislature intended to do so.

In an entirely different context, not fraught with national security and false identification concerns, or a statutory definition mandating permanency of residence, the Michigan Court of Appeals allowed illegal aliens to be considered residents. In Cervantes v Farm Bureau General Ins Co of Michigan, 272 Mich App 410, 412; 726 NW2d 73 (2006), the Court examined a provision of the Michigan Insurance Code that allowed recovery of personal protection insurance benefits for injuries sustained in a motor vehicle accident by a person named in the personal protection insurance policy, the person's spouse, and a relative of either who was "domiciled" in the same household. The Court found that an illegal alien could be deemed domiciled in Michigan under that statute. The statute, MCL 500.3114(1), does not contain any express notion of permanency nor did the Court's opinion address the supreme power of the federal government on matters of alien residency. In that context of the Insurance Code, the Court used a general test for "domicile" which required the application of a series of non-exclusive factors, citing Workman, supra. The Court rejected the argument that "an illegal alien cannot be domiciled in the household of a Michigan insured because, being subject to apprehension and deportation, that person can have no intention of remaining within the state," stating that this "would exalt the subjective intent of a person to a determinative status in contravention of Workman, supra." But with regard to the issuance of driver's licenses, it is the terms of the Michigan Vehicle Code, not a series of common law factors, that controls whether an applicant is qualified.

Further limiting the application of its ruling, the Court observed that, even if the illegal aliens in question were not considered to be domiciled in Michigan, they would still receive the insurance benefits, under a different provision of the Insurance Code:

Had we concluded that illegal aliens cannot be "domiciled" in the home of an insured person under MCL 500.3114(1), plaintiffs would still receive those benefits from the insurer of the vehicle that they occupied at the time of the accident under MCL 500.3114(4)(a). See Workman, supra at 493-494. Thus, this is an internecine dispute between Founders, insurer of the Garcia automobile, and Farm Bureau, insurer of the relatives of plaintiffs with whom plaintiffs were allegedly domiciled, regarding which of them has to provide coverage under the provisions of MCL 500.3114. The broader question whether illegal aliens should receive coverage at all is not before us.[12] [Emphasis added.]

The Court stated that the question whether illegal aliens should, or should not, receive personal injury protection benefits should be resolved by the Legislature. Since Cervantes was not addressing a statutory definition of "resident," an identification document with national security implications, or the exclusive authority of the federal government to dictate how an alien can achieve permanent residency status, the opinion is not applicable to your question.

Finally, the concerns expressed in OAG No 6883 that the Equal Protection Clause of the United States Constitution, as interpreted in Plyler v Doe, 457 US 202, 230; 102 S Ct 2382; 72 L Ed 786 (1982), might prevent a state from denying a driver's license to an illegal alien, have been resolved by the federal courts. The United States Court of Appeals for the Sixth Circuit, the circuit in which Michigan is situated, addressed the applicability of Plyler in League of United Latin American Citizens (LULAC) v Bredesen, 500 F3d 523, 527 (CA 6, 2007). Citing Plyler, the Court stated that "[I]llegal aliens are not a suspect class and any differential treatment of them would be subject only to rational basis scrutiny." 500 F3d at 531 n 6. For all of the reasons cited in this opinion, there can be no doubt that a rational basis exists for denying driver's licenses to illegal aliens. Accordingly, OAG No 6883 is superceded by this opinion and should no longer be followed.13

It is my opinion, therefore, that only a resident of Michigan may be issued a Michigan driver's license. A person who is not a lawful resident of the United States cannot be a resident of this State for purposes of obtaining a driver's license under sections 51a and 303(1)(h) of the Michigan Vehicle Code, MCL 257.51a and MCL 257.303(1)(h).
 

MIKE COX
Attorney General

 1 The term "illegal alien" is defined as: "1. a foreigner who has entered or resides in a country unlawfully or without the country's authorization. 2. a foreigner who enters the U.S. without an entry or immigrant visa, esp. a person who crosses the border by avoiding inspection or who overstays the period of time allowed as a visitor, tourist, or businessperson." Dictionary.com Unabridged (v 1.1).

2 Section 303(1)(h) was formerly section 303(m).

 3 The Legislature has not changed the wording of MCL 257.51a since OAG 6883 was issued.

4 This opinion does not address the validity of foreign-issued driver's licenses. For more on this topic, see OAG, 2005-2006, No 7181, p 56 (October 6, 2005). This opinion addresses only whether an illegal alien may obtain a driver's license in Michigan under the specific provisions and definitions set forth in the Michigan Vehicle Code.

5 The question of whether an illegal alien may be issued a Michigan driver's license may be resolved by state legislation proposed in response to the enactment of the REAL ID Act of 2005, 119 Stat 302, 8 USC 1101, et seq. This federal law establishes new regulations for the issuance of state driver's licenses. Under the Act, federal agencies will not accept state-issued driver's licenses as proof of identity if they fail to meet the minimum federal requirements. Among those requirements is that the driver's license applicant prove his or her lawful status in the United States. The rationale providing the impetus for the federal requirement was explained by several members of Congress supporting the legislation. Among their statements were that the REAL ID Act was intended to "address the use of a driver's license as a form of identification to a Federal official such as an airport screener at a domestic airport." (Rep. James F. Sensenbrenner, 151 Cong Rec H 453 (2005)); "this bill prevents terrorists and others from getting driver's licenses by requiring applicants to prove that they are in the country legally. Driver's licenses can be used to board an aircraft, open a bank account and get a job. To preserve our security, we must deny terrorists the ability to obtain this form of identification." (Rep. Lamar S. Smith, 151 Cong Rec H 453 (2005)); and "[n]o longer will we allow terrorists free access to state-issued identity documents as a way to use the tools of our freedom against us." (Rep. Candice S. Miller 151 Cong. Rec. H 453 (2005)).

 6 Throughout this opinion, an operator's or chauffeur's license will be referred to as a "driver's license."

7 The Legislature's use of the words "shall not" in a statute indicates a mandatory and imperative directive. Burton v Reed City Hosp Corp, 471 Mich 745, 752; 691 NW2d 424 (2005).

8 It is worth emphasizing that the definition of "resident" analyzed here "shall apply to the provisions of [the Michigan Vehicle Code] only." MCL 257.51a (emphasis added).

9 For exceptions, see discussion regarding Toll v Moreno, 458 US 1, 10; 102 S Ct 2977; 73 L Ed 2d 563 (1982), infra.

10 In light of Toll and the cases relied on therein, the State may not deny residency status to aliens lawfully admitted into the United States if the terms of their admission allow them to establish a domicile in the United States. Their residency status must be determined in the same fashion as any other person lawfully residing in the State.

11 This concept of requiring that a person must have the legal capacity to form a lawful intent also has a basis in contract law. The Restatement of the Law (Second) Conflict of Laws, � 15 provides that in order to acquire a domicile of choice, the person must have the legal capacity to do so, as well as the physical presence and present intent.

12 MCL 500.3114(4)(a) does not contain any residency requirement for an injured person to recover damages:

(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:

                                (a) The insurer of the owner or registrant of the vehicle occupied.   

13 The analysis set forth in this opinion may not apply under circumstances where a fundamental right is involved. Nor would this opinion necessarily govern in circumstances where permanent residence is not required.