ATLANTA - A Mexican citizen who has been living in Georgia is challenging as unconstitutional the state law that requires driver's licenses, arguing that it discriminates against undocumented immigrants and creates an incentive for law enforcement officers to racially profile.
The state Supreme Court will hear arguments in the case Monday.
According to court documents, in January 2010, Officer David Cesar with the Gwinnett County Police Department pulled over a van driven by Fernando Castillo-Solis after determining from a computer check that the vehicle's registration had been suspended.
Castillo-Solis is represented by Gainesville attorney Arturo Corso.
When Cesar discovered Castillo-Solis was also driving without a license, he issued two citations, and in August 2010, the State filed a two-count accusation against Castillo-Solis, charging him with No Valid Driver's License and Failure to Register Vehicle.
Castillo-Solis then filed motions to suppress the evidence and void or "quash" the No License statute as unconstitutional. At a hearing on the motion, the parties agreed that Castillo-Solis was a citizen of Mexico who had been living in Georgia for 10 years.
The state called an attorney as a witness who testified that undocumented immigrants who encounter U.S. Immigration and Customs Enforcement through the 287(g) program are subject to deportation. She also testified that an undocumented immigrant can be deported for driving without a driver's license. The 287(g) program is a joint federal and state program that allows local law enforcement agencies to partner with ICE to receive delegated authority for immigration enforcement within their jurisdictions.
In Georgia, Cobb, Gwinnett, Hall and Whitfield counties' sheriffs' offices, as well as the Georgia Department of Public Safety, have 287(g) agreements with ICE. In September 2010, the trial court denied Castillo-Solis' motion to suppress the evidence and find the statute unconstitutional. Prior to trial on the charges, Castillo-Solis now appeals to the state Supreme Court.
His attorney argues that the trial court erred in denying the motion.
He argues that 2008 amendments to the No License statute, which increased penalties and required fingerprinting upon conviction, along with the 287(g) program at the Gwinnett jail "work in concert to create a discriminatory scheme to target undocumented immigrants for arrest and deportation from the U.S."
The attorney argues the statute, Official Code of Georgia § 40-5-20, is unconstitutional because it contains a "retroactive amnesty provision" for Georgia citizens only, which constitutes an "irrevocable special privilege" that is prohibited by the Georgia Constitution. Under the statute, it is a crime to drive without a Georgia driver's license after being a resident for 30 days. However, if a Georgia citizen commits this crime but obtains a license prior to trial, the statute says "he or she shall not be guilty.
" As an undocumented immigrant, Castillo-Solis may not ever obtain a license. Therefore, he is denied the right to defend his cause, his attorney argues. The No License statute violates his due process and equal protection rights by denying him a right to a fair trial through the denial of a defense as a result of his not being able to obtain a Georgia driver's license prior to trial. "[U]ndocumented aliens are denied this absolute defense when they are denied the right to obtain a Georgia license prior to trial," the attorney argues in briefs.
"This was the very purpose of the new law