UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sr. M. Regina Fahy, RSM;

Haliyamtu Theo Amani;

Sarra Ali; Eva Castillo-Turgeon;

and Annagreta Swanson,

Plaintiffs

v. Civil No. 05-cv-97-SM

Opinion No. 2006 DNH 074

Commissioner, New Hampshire

Department of Safety,

O R D E R

Pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure, plaintiffs move the court to reconsider and/or clarify

its order dated March 29, 2006, granting in part and denying in

part their motion for preliminary and permanent injunctive

relief. The State objects. 

Standard of Review

To be entitled to relief under Rule 59, plaintiffs must

point to newly discovered evidence supportive of their position

that was not available to them prior to the court’s order of

March 29. Alternatively, they must demonstrate that the court

based its earlier order on a manifest error of law. See, e.g.,

Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 612

(1st Cir. 2000). Plaintiffs may not, however, attempt to press

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arguments that were not advanced earlier, either in their

petition for injunctive relief or at summary judgment. See,

e.g., Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997)

(“The rule does not provide a vehicle for a party to undo its own

procedural failures, and it certainly does not allow a party to

introduce new evidence or advance arguments that could and should

have been presented to the district court prior to the

judgment.”) (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th

Cir. 1996)). See also Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st

Cir. 1994). 

Discussion

In support of their motion, plaintiffs advance four distinct

arguments:

1. The Real ID Act, Pub. L. 109-13 Div. B, Title

II, § 201-207 (May 11, 2005) (“Improved

Security for Drivers’ Licenses and Personal

Identification Cards”), was passed well after

the State enacted the challenged regulations

and, therefore, could have had no influence

on the State’s drafting and promulgation of

those regulations. Thus, say plaintiffs, the

State is impermissibly using the Real ID act

as an “after-the-fact justification” for the

administrative regulations at issue in this

case; 

2. The New Hampshire legislature may reject

implementation of the Real ID Act -

legislation to that effect is pending, but

has not yet been enacted. So, say

plaintiffs, the court should not have relied

on the provisions of the Real ID Act when

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determining the constitutionality of the

challenged state regulations; 

3. The State’s practice of engaging in

background checks of all persons to whom

temporary licenses are issued and/or checking

to see whether the names of those individuals

appear on any terror watch-lists is

unconstitutional; and

4. All plaintiffs are “immigrant aliens” (also

known as “resident aliens”) and the Real ID

Act does not authorize the State to issue

them drivers’ licenses that expire prior to

the five year period prescribed by state

statute. And, say plaintiffs, the State’s

practice of issuing temporary drivers’

licenses to immigrant aliens is

unconstitutional. 

Plaintiffs’ memorandum (document no. 57-2) at 2-5. 

The first two arguments advanced by plaintiffs are without

merit, but in any event were not advanced in plaintiffs’ motion

for summary judgment and, therefore, cannot be asserted as a

basis for relief under Rule 59. Similarly, plaintiffs’ third

argument - that some aliens are being subjected to background

checks and/or that their names are being checked against terror

watch-lists - was not raised in plaintiffs’ petition for

injunctive relief or their motion for summary judgment. 

Accordingly, that argument is also deemed to have been forfeited. 

Finally, plaintiffs assert that the State is impermissibly

issuing drivers’ licenses to some aliens that expire prior to the

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1 The “temporary drivers’ licenses” presently at issue

are distinct from the temporary, 45-day, paper driving permits

that were discussed in the court’s prior order. The so-called

temporary driver’s license is one whose expiration date is tied

to the expiration of the alien’s legal status documents, rather

than the statutorily prescribed five year expiration date. 

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statutorily prescribed five year period. The court did not

specifically address that argument in its earlier order because

it assumed, perhaps erroneously, that it was no longer an issue

as the State was no longer engaged in that practice. But, to the

extent the issue remains unresolved, it is plain that the New

Hampshire Department of Motor Vehicles is not authorized by

federal law, state law, or even its own administrative

regulations, to issue drivers’ licenses that expire in fewer than

five years to certain categories of non-citizens, in which

plaintiffs are included. 

As the court noted in its earlier order, the Real ID Act

requires states to issue “temporary drivers’ licenses” 1 to five

categories of non-citizens (assuming the state wishes its

licenses to serve as federally-recognized identity documents). 

See id. at §§ 202(c)(2)(B) and 202(c)(2)(C)(i). It does not,

however, mandate the issuance of temporary licenses to lawfully

admitted permanent or temporary resident aliens, individuals who

have entered the United States in refugee status, or those who

have applied for asylum status. See id. at § 202(c)(2)(B)(ii)-

(iv). The reason for the different treatment accorded to those

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two general categories of non-citizens is fairly clear: in the

latter category (i.e., temporary and permanent resident aliens,

refugees, and asylees), the non-citizens have expressed an

intention to permanently remain in the United States and have, at

least preliminarily, been approved to do so by Citizenship and

Immigration Services. They are, therefore, generally referred to

as “permanent aliens” or “immigrant aliens.” Those in the former

category (e.g., tourists traveling on non-immigrant visas and

individuals with pending applications for asylum), however, have

not expressed an intention to permanently remain in the United

States and/or have not obtained preliminary approval to do so. 

Individuals falling into that category are, then, generally known

as “temporary aliens” or “non-immigrant aliens.”

In light of the foregoing, and because they say they are all

either permanent resident aliens or have entered the United

States in refugee status or as asylees, plaintiffs assert that

the Real ID Act neither requires nor authorizes the State to

issue them “temporary drivers’ licenses.” To the extent they

fall within the appropriate categories of immigrant aliens, they

are correct. 

But, more to the point, the state’s own administrative

regulations do not purport to authorize the issuance of temporary

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drivers’ licenses to persons in plaintiffs’ position. Saf-C

1003.04(g) provides that New Hampshire drivers’ licenses shall be

valid for a period of five years or until certain listed

immigration documents expire, whichever occurs first. But, the

referenced immigration documents - visas and Forms I-20 and DS2019 - are the type possessed by non-citizens who are authorized

to be in this country only for limited periods (e.g., tourists,

students pursuing academic studies in the country for a specific

period of time, temporary immigrant workers, etc.). See also

Saf-C 1002.06. 

As the state administrative regulations themselves

contemplate, resident aliens would verify their identity by

presenting a permanent resident card (also known as a “green

card”). See Saf-C 1002.06(a)(3)(a)(1). Persons residing in the

United States as either asylees or refugees would present an I-94

card, which evidences their status as either asylees or refugees. 

See Saf-C 1002.06(a)(3)(a)(2). But neither the permanent

resident card nor the I-94 is listed among the immigration

documents to which the expiration of a drivers’ license may be

tied. See Saf-C 1003.04(g). In other words, the Department’s

own regulations do not authorize the issuance of New Hampshire

drivers’ licenses to immigrant aliens which bear an expiration

date linked to the renewal date of their immigration status

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2 To the extent the Department of Motor vehicles has been

issuing temporary drivers’ licenses to immigrant aliens

(including those who are lawfully in the United States as either

refugees or asylees) in reliance upon N.H. Rev. Stat. Ann.

263:39-a, such reliance is misplaced. That statute authorizes

the DMV to issue temporary drivers’ licenses only to individuals

who are “living in New Hampshire on a temporary basis.” While

that phrase is not defined in the statute, the court presumes it

refers to aliens who have not evidenced an intention to remain in

the United States permanently (e.g., tourists traveling on visas,

temporary immigrant workers, etc.). Accordingly, it does not

include within its scope the various categories of immigrant

aliens into which plaintiffs fall. 

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documents. See generally Appeal of Town of Nottingham, __

N.H.__, 2006 WL 1359972 (May 19, 2006) (“The law of this State is

well settled that an administrative agency must follow its own

rules and regulations. An agency must also comply with the

governing statute, in both letter and spirit, and agency

regulations which contradict the terms of a governing statute

exceed the agency’s authority.”) (citations and internal

punctuation omitted).2 

Immigrant aliens residing in New Hampshire are, like United

States citizens residing in this state, entitled to New Hampshire

drivers’ licenses that expire in the statutorily prescribed five

year period. While it is possible that an alien’s permanent

residency status might be eventually denied, or even revoked, it 

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is also possible that a citizen might establish residency in

another state before the five-year period expires. Neither

future possibility warrants issuing a drivers’ license for less

than the period prescribed by the legislature and applicable

regulations.

Conclusion

Neither the Real ID Act nor the challenged state

administrative regulations require (or even authorize) the State

to issue temporary drivers’ licenses to: (a) aliens lawfully

admitted to the United States for permanent or temporary

residence; (b) those with approved applications for asylum; or

(c) those who have entered the United States in refugee status. 

Persons in those categories all intend to permanently remain in

the United States and all have been approved, at least initially,

by Citizenship and Immigration Services to do so. Consequently,

those plaintiffs who fall into one of those three categories are

entitled to drivers’ licenses that do not expire before the end

of the statutorily prescribed period of five years, barring, of

course, any unusual circumstances that would lawfully warrant a

shorter expiration period. 

Plaintiffs’ motion to amend judgment and/or for

clarification (document no. 57) is granted in part and denied in

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part. It is granted to the extent plaintiffs seek clarification

of the right of certain categories of non-citizens (i.e.,

“immigrant” or “resident” aliens) to obtain New Hampshire

drivers’ license that expire five years from issuance, as

discussed above. In all other respects, plaintiffs’ motion is

denied. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 26, 2006

cc: Christine C. Wellington, Esq.

Stephanie A. Bray, Esq.

Nancy J. Smith, Esq.

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