RALEIGH — As previously reported in the North State Journal, the N.C. Secretary of State’s office confirmed and defended the certification of illegal aliens as notaries public. A 2012 presidential executive order called Deferred Action for Childhood Arrivals (DACA), grants certain qualified illegal aliens a temporary reprieve from deportation, as well as an employment authorization card from the Department of Homeland Security (DHS), but according to the order, does not grant legal residency status required to be a notary.In emails obtained by NSJ, State Auditor Beth Wood (D) defended Marshall’s policy in response to video of a North Carolina DACA recipient describing how she was licensed as a notary despite her non-legal status.
“NCGS 10B-5(b)(3) requires legal residency to become a notary,” Wood notes in her response. “However, Bernal v. Fainter (U.S. supreme court case from 1984) prohibits state commissioning officials from requiring U.S. citizenship to be a notary.”
“Applicants for Commission as a notary must disclose under oath whether they are a U.S. citizen when they apply and IF THEY ARE NOT: They must produce evidence of legal residency in the U.S. in order to be commissioned as a Notary in N.C….”
According to Wood, proof of legal residence includes permanent residency cards (commonly known as a “green” card), student visa or an employment authorization card issued by the U.S. Government.
However, Homeland Security employment authorization cards are categorized for different programs designated by special codes, DACA being one of them. Notwithstanding the position of Homeland Security that such DACA related documents do not provide lawful status or residency, use of similar employment authorization cards across programs may be blinding the State to the apparent legal conflict.A similar question posed to the N.C. Attorney General’s Office in 2014 by former Rep. Marcus Brandon (D-Greensboro) regarding DACA students and in-state tuition sheds more light on the legal divergence. In response to the inquiry, special deputies to Attorney General Roy Cooper (D), stated that DACA grants neither legal residence for the purposes of in-state tuition or obtainment of professional licenses from the State.”…federal statute, 8 U.S.C. § 1621, restricts an undocumented immigrant’s eligibility to obtain a professional license,” states the Attorney General’s advisement.
“The general rule is that aliens-individuals who have immigrated to the United States from another country-are not eligible to receive any State or local public benefit. 8 U.S.C. § 162l(a). “Public benefit” is defined as “any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government.”
The Attorney General states this can only be changed through the legislative process.
“However, North Carolina has not enacted legislation to provide for the issuance of professional licenses to undocumented individuals,” states the Attorney General’s letter.It is unclear if such legislative changes to reconcile current law and agency policies would be palatable to the likely Republican majorities of the N.C. General Assembly when the 2017 session commences.
Democrat and 20 year incumbent, Elaine Marshall, faces businessman Republican challenger Mike LaPaglia in the race for N.C. Secretary of State.