Va. AG rules on federal work permit issue

Jessica M. Karmasek Nov. 17, 2010, 1:24pm


RICHMOND, Va. (Legal Newsline) -- The Virginia Department of Motor Vehicles is not required to accept federal work permit cards as proof of "lawful status" in the United States when it comes to issuing a driver's license, driving permit or ID card.

According to an opinion by Virginia Attorney General Ken Cuccinelli, filed on Monday, the DMV has authority "to accept or to refuse to accept" an Employment Authorization Document, standing alone, as "documentary evidence of lawful status."

The opinion was issued in response to a request from Virginia DMV Commissioner Richard Holcomb.

In September, the DMV changed its policy to remove the federal government's I-766 permit from the list of documents that can be used to demonstrate "proof of legal presence."

The Aug. 1 death of Sister Denise Mosier, 66, was the "catalyst" for the change, the agency said at the time.

Carlos A. Martinelly-Montano, 23, is accused of swerving into the path of a vehicle carrying Mosier and two other nuns on their way to a retreat in Prince William County.

Martinelly-Montano, who had entered the United States illegally at age 8 with his parents, had been awaiting a deportation hearing after convictions for drunken driving in 2007 and 2008, according to The Washington Post.

In January 2009, the man received a federal employment authorization card from the Department of Homeland Security and used it to obtain a Virginia ID card.

Martinelly-Montano, who has been indicted on involuntary manslaughter and drunken driving charges in connection with the August accident, did not have a valid driver's license at the time of the crash, the Post reported.

Virginia law requires applicants for drivers' licenses, permits and ID cards to prove that they are lawfully present in the United States, but doesn't spell out which documents establish a "lawful presence."

Cuccinelli's opinion concludes that the DMV has the authority and the discretion to decide which documents are OK.

In the attorney general's opinion, the DMV "is not authorized to take any steps with regard to an individual who has been issued a driver's license, permit or ID card... but who has subsequently become subject to removal or deportation proceedings, other than to require that individual, when application for a renewal, duplicate or reissue of the driver's license, permit or ID card is made to the Department, to again provide documentary evidence of lawful status, provided that the Department has been notified by a government agency that the individual is not legally in the United States."

Cuccinelli also wrote that the agency does not have the authority to cancel a driver's license, permit or ID card once it is issued, "even if the individual has been deported."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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