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Erie County Clerk Michael Kearns promised to appeal a federal court decision handed down last week that threw out a challenge to New York's new law allowing undocumented immigrants to obtain driver's licenses.

Kearns' challenge was rejected in a decision handed down by U.S. District Judge Elizabeth Wolford of the Western District of New York. That decision is on track for review in the U.S. Court of Appeals for the Second Circuit.

The appeal comes as Rensselaer County Clerk Frank Merola moved this week, in a separate lawsuit out of Albany, for the so-called Green Light Law to be put on hold before it's set to take effect Dec. 14. Arguments are set for early next month.

Wolford, in her decision tossing the suit from Kearns, declined to evaluate the constitutionality of the law, instead dismissing his challenge because he hadn't convinced her he would suffer any harm from the statute taking effect next month.

Kearns, like Merola, has argued that he would be violating federal law if his office agreed to grant driver's licenses to undocumented immigrants. That could put him at risk of criminal charges from federal prosecutors, Kearns has said.

Wolford wrote in her decision last week that Kearns wouldn't know if he was granting a license to an undocumented individual because the law prevents him and his staff from asking applicants about their immigration status.

"Plaintiff has failed to plausibly allege a scenario in which he personally would be on notice of a substantial risk that an individual was in the United States unlawfully and would nonetheless be required to process that individual's driver's license application," Wolford wrote.

Kearns had also challenged whether the law, approved by the state Legislature earlier this year, improperly conflicted with federal immigration statute. He argued that, because immigration law is within the exclusive jurisdiction of Congress, that the new state law was invalid.

Wolford didn't address the constitutionality of the law in her decision. Kearns, in a message to the press Wednesday morning, said he planned to ask the Second Circuit to reconsider his challenge to the law, with a focus on that issue.

"When I filed this lawsuit, it was based wholly upon the Constitutionality of the law," Kearns said. "The arguments by the State of New York and the decision of the Court denied any consideration about whether the law is constitutional when it shields and harbors illegal immigrants."

The Green Light Law, starting next month, will allow undocumented immigrants—and any other resident of New York—to apply for specialized driver's licenses from their local Department of Motor Vehicles offices.

Those licenses aren't the same as what's already given to current applicants in New York, and couldn't be used to board a plane. The document is only intended to allow individuals to legally drive in New York.

While the law was created to benefit undocumented individuals, applicants for the specalized licenses would not be asked about their immigration status. Kearns has claimed that his office has, at times, become aware of that information anyway.

Kearns has said that, despite the decision from Wolford, his office will not be processing applications for licenses under the Green Light Law. That could mean Gov. Andrew Cuomo could, in the future, remove him from office. Cuomo hasn't said what he'll do in that case.

New York Attorney General Letitia James said in a statement Wednesday that her office has interpreted the law to be constitutional and will continue to defend it. Rather than conflict with federal immigration law, James said, the measure changes the state's vehicle and traffic laws.

"There is no question that vehicle and traffic laws are within the sovereign powers of each individual state, which is why the District of Columbia and 14 other states have already enacted similar laws," James said.

Papers had not been filed to appeal the decision as of Wednesday morning, but Kearns said he plans to do so imminently, according to a spokeswoman.

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