Attorneys for a truck driver who is suing the Federal Motor Carrier Safety Administration over its non-domiciled CDL rule will attempt to demonstrate that the regulation is “arbitrary, capricious or otherwise contrary to law.”

FMCSA’s non-domiciled CDL rule, which took effect on March 16, aimed to take about 200,000 CDL holders off the road. Under the rule, an Employment Authorization Document is no longer enough to obtain a non-domiciled CDL. Additionally, asylum seekers, asylees, refugees and Deferred Action for Childhood Arrivals (DACA) recipients are ineligible.

Jorge Rivera Lujan, a DACA recipient who has been in the U.S. since he was 2 years old and a truck driver for the past 11 years, argues that the rule’s decision to revoke his CDL is not rooted in safety. On March 20, attorneys for the Public Citizen Litigation Group, American Federation of State, County and Municipal Employees and the American Federation of Teachers filed the statement of issues to be raised with the U.S. Court of Appeals for the District of Columbia Circuit.

Allison Zieve, director of the Public Citizen Litigation Group, told Land Line on March 23 that the plaintiffs are waiting for the court to rule on its motion to stay and to issue a briefing schedule.

During a House hearing earlier this month, Public Citizen attorney Wendy Liu testified that the U.S. Department of Transportation has no data showing that non-citizens cause more crashes than U.S. citizens.

However, the U.S. Department of Transportation says the rule is critical to highway safety.

While U.S. CDL applicants are subject to strict checks for past violations, such as DUI, reckless driving or at-fault crashes, the DOT argues that states have issued non-domiciled CDLs without conducting background checks.

“Petitioners’ contrary arguments rest primarily on a misunderstanding of the rule’s rationale,” attorneys for FMCSA wrote in a response to the court filed on March 16. “The rule does not assert that there is a direct link between immigration status and a driver’s ability to safely operate a commercial motor vehicle … Instead, the salient point is that state licensing authorities do not (and cannot) assess with the same degree of confidence a non-domiciled applicant’s safety because individuals domiciled outside a given state but seeking a CDL – a category almost entirely comprised of non-domiciled aliens – tend to have driving histories outside the reach of U.S. state-level agencies. It is well within the agency’s regulatory ambit to decide that credentialing individuals whose driving history is largely or entirely unknown does not provide an appropriate margin of safety, at least absent alternative vetting measures like those available to non-domiciliaries who remain eligible for CDLs.” LL