Arizona Dream Act Coalition v. Janice Brewer

Phoenix, AZ, Group, Law COALITION; Plaintiffs- DREAM ACT ARIZONA Appellees. Jacobo; Alejandra Lopez; Christian Martinez;

Ariel Natalia Perez-Galle Draye (argued) Dominic and John Rob- Chavarria; gos; Carla Jose Ricardo Hi IV, ert Lopez, Arizona Attorney General’s nojos, Plaintiffs-Appellees, Office, Phoenix, AZ; Timothy Berg, Sean Hood, Douglas C. Northup, Fenne- P.C., Craig Phoenix, AZ, more for Defen- BREWER, K. Janice Governor of the dants-Appellants. Arizona, capac State of in her official Wilcox, Dale Washington, Ami- D.C. for ity; Halikowski, John S. Director of Immigration cus Curiae Reform Law In- Department Transpor the Arizona stitute. tation, capacity; Stacey in his official Stanton,

K. Powell, Assistant Director Lindsey Washington D.C. for Motor Vehicle Division of the Arizona Amicus Curiae United States of America. Department Transportation, in her PREGERSON, HARRY Before: capacity, Defendants-Appel official BERZON, MARSHA S. and MORGAN B. lants. CHRISTEN, Judges. Circuit No. 15-15307 ORDER Appeals,

United States Court of opinion The court’s April filed on Ninth Circuit. appearing at 818 F.3d 901

Argued July and Submitted 2016), hereby amended. An amended Pasadena, California opinion, including a by Judge concurrence February Filed Berzon, is filed herewith.

Judges Berzon and Christen voted to

deny petition banc, for rehearing en Judge Pregerson so recommended. The full court petition was advised of the rehearing en banc. judge requested A Tumlin (argued),

Karen Shiu-Ming vote on whether to rehear the matter en Cheer, Espíritu, Joaquin, Nicholas Linton major- banc. The matter failed to receive a Preciado, Immigra- and Nora A. National ity of the votes of the nonrecused active Center, CA; Angeles, tion Law Los Tanya judges in favor of en banc consideration. Broder, Immigration National Law Cen- App. Fed. R. P. 35. ter, Oakland, CA; Jorge Martin Castillo Viramontes,

and Victor Mexican American petition rehearing en banc is Legal Fund, Defense Educational Los An- DENIED, petitions and no further for re- CA; geles, Rodkangyil Danjuma, ACLU hearing accepted. will be California, Foundation of Northern San KOZINSKI, Judge Circuit with whom Francisco, CA; Lee Gelernt and Michael O’SCANNLAIN, BYBEE, Judges Circuit Tan, Union, K.T. American Civil Liberties CALLAHAN, BEA join, and N.R. SMITH York, NY; Lyall New James and Daniel J. dissenting rehearing from the denial of en Pochoda, Arizona, Phoenix, AZ; ACLU banc: Wang, Jennifer C. Newell and Cecillia D. American Civil Liberties Union Founda- At presi- the crossroads between two Immigrants’ Rights Project, dents, tion question San we face a fundamental Francisco, CA; Flood, Kelly presidential power. ASU Alumni President Obama ere- theory that memorandum, detour. It’s a sweep- Equal Protection ated, by executive with the Fifth squarely us at odds gives puts that immigration program ing new Circuit, INA recently that “the millions which held action” to of “deferred the benefit re flatly permit [executive] does not the came to the immigrants who illegal aliens as illegal of millions of of sixteen. classification age the States before United thereby make them lawfully present immi- no formal action confers Deferred status; for a host of federal and simply newly eligible a commitment it is gration states, Arizona, many like benefits.” Texas v. United deport. state not to 2015), by unautho- licenses to not issue drivers’ F.3d does aff'd — U.S. -, court, aliens, refuses to issue equally and therefore divided rized (2016) benefi- program’s to the L.Ed.2d 638 drivers’ licenses S.Ct. curiam). theory that makes ciaries. And it’s a (per principle of no mention of the foundational neverthe- Supremacy Does the Clause powers Historic state are preemption law: licenses force Arizona to issue drivers’ less the clear “unless that was preempted not President’s lar- recipients of the to the Congress.” Ari purpose and manifest Congress can no doubt that gesse? There’s States, 567 U.S. zona v. United law; power to do so preempt state (2012) 2492, 2501, 183 L.Ed.2d 351 particularly the field of omitted). (internal quotation approved the Congress But never broad. The program: President deferred-action buckles under the opinion The also initiative after adopted it on his own Con- panel weight ambiguities. of its own pass declined to the gress repeatedly created says repeatedly that Arizona has that would have legislation DREAM not found in “immigration classifications Act— Undeterred, program. a similar authorized n.8; op. at 974 see federal law.” Amended President acted panel the claims that the But Arizona follows also id. 978. “delegated to the authority pursuant is, all law to the letter —that laws through Immigra- the executive branch” by the by Congress signed passed (INA). Act Amend- tion and Naturalization Thus, panel the uses the President. when According panel, to the op. at 972. ed “law,” something quite it means dif- term general the President Congress gave normally from that term ferent what pro- new sprawling to create a in effect holds panel means: law, though even gram preempts are decisions of the President enforcement pro- the same Congress declined to create of the Pres- federal law. Yet the lawfulness gram. panel that the policies is an issue ident’s over backward not to reach. See id. preemption theory is bends puzzling This new explain I am at a loss to how preemp- at 975-77. with the Court’s at odds instead, yet remain on is, cake can be eaten and it cobbled this jurisprudence; tion policies may or Equal plate: Protec- The President’s together 35-year-old out of may may rejected may not be “lawful” and theory It is a that was tion dicta. “law,” court, part see be but nonetheless bemusement the district Brewer, imposes burdens body of “federal law” that Act Coal. v.

Ariz. Dream (D. 2013), sovereign states. only obligations Ariz. on F.Supp.2d panel suggests other reasons panel at the elev- While to be resurrected 3,000-word opinion’s response,1 and buried behind a doubt enth hour preemption, lengthy enigmatic discussion of say panel’s I have little to about "we do not Equal panel nonetheless clear that While this Protection discussion. ultimately Equal Protection issue.” eclipses panel’s decide the excursus terse theory slippery preemption simply isn’t holding licenses illegal from immigrants See, Feldman, happen to be e.g., one of them. Noah Oba- beneficiaries. Several DACA beneficiaries then Ari- sued Wobbly Legal Victory

ma’s Immigra- zona, claiming, among things, other 2016) tion, Bloomberg (Apr. (describing the state’s preempted. was panel’s “precarious,” “tricky” and “funky” reasoning panel agrees, that is “vulnerable to The holding that Arizona’s Court”). “strayed into an Supreme reversal the exclusive domain Congress, INA,

that through delegated the to the executive branch.” op. Amended at 2012, In the summer of the President added); 972 (emphasis see also id. at 968. directed his officers not to remove certain One might think that the panel would illegal immigrants who came to the United present especially strong evidence of con- age States before sixteen. program, The gressional delegation, such express as an Deferred Action for Childhood Arrivals statement all, to that effect. After it’s rare (DACA), any did not clear of the normal enough to find that Congress kept an hurdles; administrative-law the memoran- itself, entire field to much less ceded one announcing dum the program states that it to the executive. And the bar that preemp- no right, immigration “confers substantive tion must clear is both well-established and high: pathway police powers status or to The historic citizenship” because of states preempted “unless that was “[o]nly Congress, acting through its clear and manifest purpose of Congress.” legislative authority, can confer these Arizona, E.g., 2501; Wyeth S.Ct. at Memorandum, rights.” Exercising DHS Levine, 555, 565, 1187, 555 U.S. 129 S.Ct. Prosecutorial Discretion Respect (2009); Medtronic, 173 L.Ed.2d 51 Inc. v. Individuals Who Came to the United Lohr, 470, 485, 518 U.S. Children, States as June 2012. (1996); 135 L.Ed.2d 700 Cipollone Lig responded Arizona with an executive or- Inc., gett Grp., 505 U.S. own, stating, der of its in apparent agree- (1992); 120 L.Ed.2d 407 Rice v. San memorandum, ment with the DACA that ta Fe Corp., Elevator program the new federal “does not and (1947). 91 L.Ed. 1447 cannot confer lawful or authorized status panel showing doesn’t bother that presence upon appli- the unlawful alien Congress evinced “clear and manifest cants.” Ariz. Exec. Order 2012-06. Because purpose” forcing before the states to ac- requires law that applicants for a cept immigration classifications invented proof driver’s license submit that then- entirely by Indeed, pan- President. presence law,” is “authorized under federal preemption analysis el’s only mentions two 28-3153(D) § Ariz. Rev. Stat. INA, —and provisions small of the and this thin “confers no right immigra- substantive [or] statutory evidence cannot possibly carry justified tion status” —Arizona felt heavy with- preemption.2 burden field note, however, op. INA, panel's Amended at I only analysis 969. that 2. The other of the there are serious doubts about the coherence non-precedential Equal in its Protection dis- ju- Court’s cussion, point makes the rather unremarkable See, risprudence applied e.g., to aliens. responsibility the executive branch has Fink, Korab v. executing op. the INA.' See amended J., 2014) (Bybee, concurring) (describing this any way help 966-68. This does not in estab- jurisprudence exceptions as "riddled with Congress lish whether intended the INA to let judicial caveats that make consistent review preempt the executive branch the states. difficult,” alienage sug- classifications gesting approach solely preemp- an based tion). op. response INA Amended at 974-

panel that the refers to DACA. first notes That stay panel great can trawl “period of authorized alien’s General,” beyond depths largest alien of the INA—one of our which the Attorney most statutes —and return with unlawfully present complex is “deemed exactly op. meager suggests op- this catch (quot- Amended at 975 United States.” 1182(a)(9)(B)(ii)). INA posite But the conclusion: The evinces a ing 8 U.S.C. “clear intention not corrected its and manifest” to cede panel opinion has now precisely this field This is explain provision actually this contem- to the executive. ability the Fifth plates to “authorize” conclusion Circuit the executive’s only period stay tiny subset of reached in Texas v. United States. Our sister that even if “previously removed”—and circuit held the Presi- aliens—those not, original opinion policies type ev- dent’s were of the suggested, as its which ery immigrant by covered the Chevron deference was owed—which the class only argu- circuit for the sake statute.3 assumed be ment —such deference would unavail- claim panel’s second is that the expressly able because “the INA and care- REAL Act identifies ID deferred-action fully provides legal designations allowing being present in the immigrants “as Unit- lawfully defined classes of aliens to be during ‘period ed a States of authorized Texas, present.” 809 F.3d at See 179. stay,’ purpose issuing for the state iden- words, spoken other directly the INA has (cita- op. cards.” Amended at 975 tification “flatly to the not permit” issue and does omitted). provision tion This narrow also executive like supplementation the DACA authority proposition can’t for the program. If what panel Id. at 184. the “delegated the to INA the executive relies on a “clear and evinces manifest wholesale authority branch” the executive, purpose” a field to the to cede by declaring immigrants law preempt state imagine it’s hard to what statute doesn’t.4 legal they are not. Nor does this when conflict provision narrow with Arizona’s actually policy: provision says that a Perhaps lack of support daunted state a “may only temporary issue driver’s purports interpret, the statute it temporary license or identification card” to panel Supreme precedent, Court turns limit, immigrants deferred-action not a —a but it fare much better doesn’t here. The

requirement. 2005, ID REAL Act of Pub. primary panel relies, case on which 109-13, 202(c)(2)(C)(i) § L. (emphasis No. Doe, Plyler v. contain some might impressive-sounding added). States enjoy —“ T he no dicta Nevertheless, panel power that this to the respect insists with classification of aliens,” “directly 2382, 102 evidence undermines” Arizona’s 457 U.S. S.Ct. Brewer, Compare period. logic, Dream Act Coal. v. such a In formal the inverse of a Ariz. 901, 2016) conditional cannot be inferred 916 from the con- (adding ditional. op. at 975 amended "at least for 1182(a)(9)(B)”). purposes string §of As the might suggest, letters numbers undeniably 4. And it were even if case that 1182(a)(9)(B) large portion a is not Congress power delegated preemption President, support also INA. This subsection offers no skeptical to the I am that such a for a reason: Even if it second were true that statute constitutional. The would be nondele- immigrant "unlawfully present” gation waiting was if he wings. doctrine is still stayed beyond period approved by generally Trucking the Attor See socs., Whitman v. Am. As General, ney this doesn't mean he would be 149 (2001). "lawfully present” stay beyond if he L.Ed.2d didn’t (1982) grants L.Ed.2d 786 the reasons to control over its drivers’ —but —Arizona’s reject impressive this dicta more still. licenses is well “within the mainstream of put As the district court it it when re- police [the power.” state’s] Id. at Plyler theory buffed the of preemption: S.Ct. 933. “Plyler is not a case.” 945 Indeed, it’s imagine difficult to pre- F.Supp.2d at 1057. Justice Brennan’s 1982 emption case helpful panel less to the than

majority opinion opinion gar- 5-4 —a De Canas. The De Canas majority states nered three individual concurrences and explicitly that it will “not presume that questioned continuously been since Congress, INA, in enacting the intended to publication preemp- once mentions —never oust regulate ... in a tion. at U.S. manner pertinent consistent with 2382.5 laws.” Id. at 96 S.Ct. 933. That un- The panel’s search for support proposition controversial simply raises preemption juris- Court’s actual once question more the the panel works prudence equally misguided. The panel hard to avoid: If Arizona relies on the quotes De Canas v. Bica for proposi- categories INA, drawn but not tion that “[p]ower regulate immigra- branch, those of the why executive isn’t it unquestionably tion is exclusively federal operating consistently with “pertinent fed- power.” op. Amended (quoting eral panel laws”? The says. never U.S. L.Ed.2d 43 (1976)). But panel very the overlooks the Canas, next sentence of De which notes Instead, we’re left the enigmatic with that “the Court has never every held that holding we started with: Arizona “imper- any way enactment which in deals missibly strayed into an exclusive domain

with aliens is a regulation of INA, that Congress, through the delegated per pre-empted.” and thus se 424 U.S. at to the executive branch.” op. Amended at 355, 96 regulation S.Ct. 933. So what’s “a 972. support This conclusion finds no in the immigration” preempted? would be actual text of the INA. It help receives no opinion The De Canas couple tells us a from the Court’s jurispru- sentences later: “essentially It’s a determi- dence. And it is a renegotiation brazen nation of who should or should not be our bargain. federal If accept states must country, admitted into the and the condi- the complete policy classifications of the tions under which a legal may entrant INA every immigration and also Denying remain.” Id. decision driver’s license is President, by made just not tantamount then denying admission to we’ve country.6 found ourselves in a upheld Like the state law world where the Pres- De prevented really Canas —which California ident can preempt state laws with from hiring illegal businesses immi- pen. the stroke of a Branch, wrong

5. The case was also ab initio and is Farmers 726 F.3d 524 Cir. See, 2013), Alabama, e.g., Eugene due to be reconsidered. Vo and United States v. F.3d lokh, Why May ‘Plyler’ Justices 2012) Overrule on easily distinguish — are Aliens, J., Illegal Daily L.A. Nov. at They able for this reason. involved what the Plyler (describing objections and reasons regulation courts held to be an actual of im overruled). why may it be is, migration “a determination of who —that should or should not be admitted into the country, by panel— The more recent cited and the under cases conditions which a Hazleton, City (3d legal may 724 F.3d 297 entrant Lozano remain.” U.S. at 2013), City Villas at Parkside Partners v. 96 S.Ct. 933. by it and reviled those who possess gives us a balance The Constitution are supreme structural rules laws “shall be don’t. and stable where federal Clear land,” delegated powers not against power, of the but which law the bulwark “are reserved to government to the federal vagaries poli- of our with the sudden shifts 2; Const., cl. id. art. VI the states.” U.S. can to find a doctrine that tics. its haste of the political branches amend. X. present, our protect policies together to must act governmént warning: the old circuit should remember clari- gives us state laws. Unison overcome true. May your all dreams come law consists of what federal ty about AMENDED OPINION The vast state law is subordinated. when the sover- the laws of power to set aside by Judge HARRY Opinion by exercised cannot be eign states PREGERSON, Judge: Senior Circuit alone, power his acting President recipients individual Plaintiffs are five Youngstown Sheet & its “lowest ebb.” Cf. action under the Deferred Action deferred 579, 637, 72 Sawyer, 343 U.S. Tube Co. v. (“DACA”)program, Arrivals for Childhood (1952) (Jackson, L.Ed. 1153 DREAM Act Coalition and the Arizona J., concurring).7 (“ADAC”), organization that advances and off power can turn on Presidential young immigrants. interests of DACA President outgoing what our spigot; like are noncitizens who were incoming may undone our has done brought country to this as children. Under judiciary his own. The acting President permitted program, the DACA itself, litigation might years find after peri- in the for some remain United States policy, faced with over a President’s long they meet certain od of time as and a case on the change in administration by federal executive conditions. Authorized verge precedent of mootness.8 And our order, program is administered may long program: outlive the DACA We Security Department of Homeland conflicts find ourselves with new soon Court’s and is consistent with See, between the President and states. government “has ruling that the federal Trump Are on a Colli- e.g., California broad, subject power undoubted over the Immigrants Here Ille- sion Course Over of aliens” and the status Times, 11, 2016; L.A. Nov. Cities gally, Arizona v. United under the Constitution. Fight Trump Immigration, on Vow to 2492, 2498, States, 387, 132 S.Ct. Millions, Times, They Lose N.Y. Even if (2012). L.Ed.2d Nov. In to the creation of the DACA response looming These conflicts should serve as Governor of program, Defendants —the power Executive favors a stark reminder: Arizona; Depart- Arizona the State of the perhaps simply person, the party, the (“ADOT”) Di- Transportation ment of it. That is the forbidden power who wields rector; Director of the those and the Assistant politics, fruit of our irresistible to immigration.poli twilight,” the Obama Administration's 7. We are not in the "zone of Youngstown, split 343 U.S. at Supreme Court 4-4— cies over which the presidential where the distribution joint stay parties filed a motion to the the congressional power Congress is uncertain. proceedings until one month after the merits refusing repeatedly declined to time act— presidential inauguration. Joint Motion to again pass and time to the DREAM Act—so 1:14-cv-00254, (Nov. Stay, Doc. 430 No. flying is solo. President 2016). aren't theoretical. 8. Mootness concerns challenge Texas v. United States — the direct (“INA”), a policy Nationality Vehicle Division—instituted Act

Motor 8 U.S.C. rejected Employment Authoriza- seq. et therefore affirm We the district (“EADs”) Documents DACA tion issued granting court’s order summary judgment under the as recipients program DACA permanent a entry injunction, on presence pur- of authorized proof for policy basis that Arizona’s preempt- obtaining a Plain- pose of driver’s license. ed the exclusive of the feder- permanently Defen- enjoin tiffs seek al government classify noncitizens. See categorically denying from drivers’ dants Weiser United to DACA The district recipients.

licenses 1992) (“[This can affirm court] court ruled that Arizona’s was not court any grounds the district sup- rationally govern- legitimate related to a record.”). ported by the purpose Equal ment and thus violated

Protection Clause of the Fourteenth BACKGROUND FACTUAL granted Amendment. district court Program I. The DACA summary motion for judgment Plaintiffs’ Department On June permanent injunction. De- and entered Security Homeland announced the DACA appealed. fendants program pursuant to the DACA Memoran- agree with the district court that We program, dum. Under the DACA the De- recipients similarly situated to DACA partment Security of Homeland exercises groups of other noncitizens Arizona deems prosecutorial discretion not to seek re- result, eligible drivers’ licenses. As young' moval of immigrants. certain disparate treatment DACA allows program young DACA these immi- Equal well Pro- violate the grants, including ADAC, members of Clause, previous opinion as our in- tection remain in United States peri- for some likely the case. Dream dicated long od of-time as specified meet Brewer, F.3d 1053 Act Coalition conditions. The district court relied on qualify To im- program, when it ground permanent this issued the migrants must have come to the United Applying of consti- injunction. the principle age avoidance, however, States before sixteen and must need not tutional age thirty-one have been under and should not come to rest on issue, plausible, even if it June 2012. See Memorandum from “is Sec- claim possibly Napolitano, quite retary Exercising meritorious” Janet Prose- Plaintiffs, long so alter- as there is a viable Respect cutorial Discretion with to Indi- nate, ground nonconstitutional reach the to Came to the as viduals Who United States 2012). same result. Overstreet v. United Bhd. (June 15, They Children must have Am., & Joiners Union Carpenters Local the living been in the United States at No. F.3d program time the DACA was announced 2005) (citing Corp. Edward J. DeBartolo continuously and must have resided here Bldg. Fla. Coast & Trades Constr. previous years. for at the Id. Gulf least five Council, 568, 576-78, 108 S.Ct. Additionally, DACA-eligible immigrants (1988)). 1392, 99 L.Ed.2d 645 school, graduated have must enrolled school, have a high from obtained General conclude that there We is. certification, or Development Educational Ari-

policy classifies noncitizens based on honorably discharged have been from independent “author- zona’s definition of Id. Forces or Coast authority de- U.S. Armed Guard. presence,” ized classification pose Immigration They public the states under the must not threat to nied satisfactory department to the proof undergo extensive crimi- must safety and in the presence checks. Id. United background applicant’s nal under federal law.” is authorized States DACA, action under granted If deferred 28-3153(D). §Ann. Prior Ariz. Rev. Stat. in the United may remain immigrants Order, ADOT Arizona Executive to the two-year periods. renewable States for federally all issued Policy included 16.1.2 immigra- enjoy no formal satisfactory” appli- that an “proof EADs as status, of Home- Department tion but them to be fed- not consider was “authorized under Security presence land does cant’s in the United States unlawfully present Division eral law.” The Motor Vehicle EADs. to receive federal and allows them in- drivers’ licenses to all therefore issued documentation. dividuals with such Executive Order II. Arizona’s Order, Executive After the Arizona the Governor August On announced that it Motor Vehicle Division Arizona Executive Order Arizona issued EADs issued to DACA accept would not Order”). (“Arizona Ex- Executive 2012-06 Department recipients —coded 2012-06, “Re-Affirming In- ecutive Order (c)(33) proof Security as Homeland —as Response Law In to tent of Arizona in the States is presence that their United Action Deferred Federal Government’s under federal law.” The Motor “authorized A re- (Aug. clear Program” to feder- accept Division continued Vehicle DACA, the Arizona Executive sponse from all other nonciti- ally issued EADs Action that “the Deferred Order states presence, proof of their lawful zens cannot confer lawful does not and program who received de- including individuals presence upon or or authorized status pro- outside of the DACA ferred action at 1. The applicants.” alien Id. unlawful (c)(9) (individu- coded gram applicants announced that Executive Order adjustment of applied who have als Deferred Action or De- issuance of “[t]he (c)(10) (individuals status), have employment authori- ferred Action USCIS removal). unlawfully present applied zation documents for cancellation of any law- upon not confer them aliens does policy again. revised its ADOT not enti- authorized status and does ful or change, this ADOT Director Explaining public benefit.” any tle them to additional testified that Arizona John S. Halikowski agen- Arizona state Id. The Order directed proof presence an EAD as author- views ADOT, cies, opera- to “initiate including only if the EAD ized under federal law statutory changes tional, rule and policy, (1) applicant has formal demonstrates: Deferred Action re- necessary prevent (2) status; immigration applicant beyond obtaining eligibility, cipients from path obtaining formal regardless of any person those available (3) status; sought relief or obtained status, any taxpayer-funded lawful provided pursuant to the INA. expressly identification, in- and state public benefits criteria, began to re- Using these ADOT license.” Id. cluding driver’s that re- applications license fuse driver’s Policy EADs, recipi- only from DACA License lied on III. Arizona’s Driver’s ents, general also from beneficiaries but Arizona Executive Or- implement To enforced de- deferred action and deferred der, its Motor Vehi- officials at ADOT and accept proof of It continued to parture. changes to Arizona’s cle Division initiated purposes of ob- presence authorized drivers’ licenses. Under policy issuing appli- EADs from taining drivers’ licenses law, can receive a applicants Arizona state (c)(9) (c)(10) status. We cants with only they if can “submit driver’s license

965 policy refer to refuses EADs from strated likelihood of success on their recipients policy.” DACA as “Arizona’s claim that policy preempted. was (Christen, J., Id. 1069 concurring). On Preliminary Injunction IV. 22, 2015, January the district grant- court 29, 2012, On November Plaintiffs sued ed Plaintiffs’ motion for summary judg- court, alleg- Defendants federal district ment permanent and entered a injunction. ing policy denying that Arizona’s driv- Brewer, (D. ADAC v. F.Supp.3d 81 795 ers’ licenses to recipients DACA violates 2015) (“ADAC III”). Ariz. affirm We Equal Protection Clause and the Su- district court’s order. premacy Clause of the U.S. Constitution. sought declaratory

Plaintiffs relief and a STANDARD OF REVIEW preliminary injunction prohibiting Defen- enforcing dants from their policy against We review the grant district court’s recipients. May DACA On denial of motions for summary judgment court district ruled that Arizona’s Besinga de novo. v. United 14 F.3d likely Equal violated the Protection Clause (9th 1994). 1356, 1359 Cir. We determine grant but it declined to the preliminary whether there any genuine issues of injunction because Plaintiffs had not material fact and review the district Brewer, irreparable shown harm. v. ADAC application court’s of substantive law. Ger- (D. 2013) F.Supp.2d Ariz. Mont., hart v. Cty., Lake 637 F.3d (“ADAC I”), Brewer, reversed ADAC v. (9th 2011). “may Cir. affirm We (9th 2014) (ADAC I"). 757 F.3d 1053 Cir. I grant summary judgment any granted It also Defendants’ motion to dis ground supported by the record.” Curley Supremacy miss the claim. Clause Id. at v. City Vegas, N. Las 772 F.3d appealed 1077-78. Plaintiffs the district (9th 2014). Cir. preliminary injunction. court’s denial of a We review the district court’s decision to Injunction Permanent V. grant a permanent injunction for abuse of While appeal prelimi- Plaintiffs’ Quinta discretion. La Worldwide v. LLC nary injunction ruling pending, was Plain- Q.R.T.M., C.V., S.A. de 762 F.3d sought permanent injunction tiffs in dis- 2014) (9th Cir. (citing Interstellar Starship trict court on Equal grounds Servs., Ltd. Inc., Epix, 304 F.3d summary judgment. moved Defen- (9th 2002)). questions Cir. We review summary judgment, dants also moved for underlying law the district court’s decision arguing that are not sim- T, de novo. Ting v. AT & 319 F.3d ilarly situated to other noncitizens who are (9th 1126, 1135 Cir. “If the district eligible for drivers’ licenses under Ari- court applied ‘identified and the correct policy. zona’s legal requested,’ rule to the relief we will We reversed the district court’s decision only reverse if the court’s decision ‘result- injunction, on the motion for preliminary ed from a factual finding illogical, that was agreeing with the district court that Ari- implausible, or support without in infer- policy likely zona’s violated the Pro- ences that from drawn the facts tection Clause and holding that Plaintiffs ” Enters., the record.’ Herb Reed LLC v. had established that would suffer ir- Inc., Mgmt., Fla. Entm’t reparable harm as a result of its enforce- 2013) II, (quoting United States ment. See ADAC 757 F.3d at 1064. In a Hinkson, concurring opinion, one member of our F.3d 2009) (en banc)). panel concluded that Plaintiffs also demon-

966 right to obtain regard ated with to their

DISCUSSION II, in Arizona. See ADAC drivers’ licenses Equal Protection I. 1064. The material facts and 757 F.3d at Similarly A. Situated remain the same controlling authority injunction stage. Equal preliminary Protection Clause from the “The that no Thus, commands in all relevant again Fourteenth Amendment hold that any within its ‘deny person shall recipients similarly State sit- respects DACA equal protection of jurisdiction the eligible uated to noncitizens drivers’ laws,’ essentially a direction which policy. Nonethe- licenses under Arizona’s similarly situated should be persons all less, clarity completeness, we ad- v. Cle City alike.” Cleburne treated arguments. once more Defendants’ dress 432, 439, Ctr., 105 Living 473 U.S. burne recipients Defendants assert that DACA (1985) (quoting L.Ed.2d 313 S.Ct. 87 nonciti- similarly are not situated other 202, 216, Doe, 102 457 U.S. S.C t. Plyler v. under eligible zens for drivers’ licenses (1982)). prevail To 72 L.Ed.2d 786 recipients because DACA claim, must plaintiffs applied pro neither received nor for relief similarly that is situated show “that a class INA, any other relief vided disparately.” Christian has been treated Particularly authorized federal statute. S.F., Church, City Cty. Inc. v. & Gospel here, eligi relevant Defendants note (9th 1990), super Cir. categories of noncitizens under ble grounds by other U.S.C. seded on (c)(9) (c)(10) express to relief are tied § 2000e. ly adjustment in the INA: of status found analy- step equal protection first in “The (INA 245; 1255; § § 8 U.S.C. 8 C.F.R. identify the classification of sis is to state’s 274a.12(c)(9)) § and cancellation of remov- Dairies, Country Inc. v. groups.” Classic (INA 1229b; 240A; § § al 8 U.S.C. Bureau, F.2d Milk Control 274a.12(c)(10)), respectively. C.F.R. 1988). groups be com- “The must contrast, Defendants contend that DACA similarly so that prised persons situated recipients’ presence the United States motivating alleged factor discrimi- does not have a connection to federal law City can be identified.” Thornton nation rather reflects the Executive’s discre but Helens, 425 F.3d St. not to enforce the INA. tionary decision instance, In this II, respects disagree. in all continue to See ADAC do not need to be similar We below, eligible who are for driv- Ari- explained other noncitizens 757 F.3d at 1061. As licenses, ers’ but must be similar cognizable making interest in zona has no Ari- respects that are relevant those it has for drivers’ licenses distinction policy. zona’s own interests and its government, The federal not purposes. Hahn, 1, 10, 112

Nordlinger v. states, authority concern- holds exclusive (1992) (“The 2326, 120 L.Ed.2d 1 immigration law. De ing direct matters of Equal Protection does not forbid Clause Bica, Canas v. U.S. simply keeps governmen- It

classifications. (1976), superseded by 47 L.Ed.2d 43 treating tal decisionmakers from different- recognized in grounds statute on other ly persons respects who are all relevant Arizona, The states 132 S.Ct. at 2503-04. added)). (emphasis alike.” deci therefore not make itself, government, that the federal sions previously recipi- We held that DACA made, Plyler, 457 U.S. at categories ents and other of noncitizens Diaz, may rely similarly (citing situ- S.Ct. 2382 Mathews on EADs are

967 478 action” under the INA if qualify U.S. 48 L.Ed.2d un (1976)). immi- encroachment into der set of factors. INA 204(a)(1)(D)(i)(II); making § distinctions be- gration 8 U.S.C. affairs — 1154(a)(1)(D)(i)(II). not groups immigrants § tween of it deems Deferred action is situated, despite to similarly the to available individuals can who make a to treat simi- government’s decision them of showing “exceptional circumstances.” larly seems to its au- 240(e); 1229a(e). exceed § § INA 8 By U.S.C. ne —therefore similarly which thority to decide aliens are cessity, statutory regulato the federal and situated others scheme, ry law, as well as federal case vest words, “similarly purposes. In other the the with very Executive broad discretion analysis situated” must focus on factors of priorities.1 determine enforcement pertinent to the similarity and distinction Congress expressly charged the De- policy, state’s not factors outside the realm of partment Security Homeland with the of its and concern. of responsibility “[e]stablishing national limitation, INA Putting aside the policies pri- enforcement Secretary explicitly authorizes 202(5). § 6 Depart- orities.” U.S.C. Security to en-

Homeland administer and Security regulations ment of Homeland relating to immigration force all laws and describe deferred action as “an act of 103(a)(1); § U.S.C. naturalization. INA 8 govern- administrative convenience to the 1103(a)(1). authority, § it is part As this gives pri- ment which some cases lower Secretary well settled that the can exercise 274a.l2(c)(14). § ority.” C.F.R. 8 Addi- action, prosecutorial a form of deferred tionally, Supreme has made it Court whereby Department discretion agency’s clear that “an decision Security pursue Homeland declines to enforce, or prosecute through whether unlawfully present person removal of a criminal is a process, civil or decision the United States. agency’s generally committed to an abso- Chaney, lute discretion.” Heckler v. 470 provides The INA for de- expressly U.S. L.Ed.2d form of can be ferred action as a relief that (1985). Court has ex- granted at Executive’s For discretion. 237(d)(2); plained Secretary that the has discretion § example, U.S.C. INA stage deferred action each 1227(d)(2), exercise allows noncitizen who has deportation process, and has ac- stay been denied an administrative re- knowledged long history moval deferred the Exec- apply action. Certain “eligible “engaging regular practice in a ... individuals are also for deferred utive discretion, Enforcement, Immigration Department U.S. and Customs Pursuant to this Security predecessor, "Exercising Prosecutorial Discretion Con- of Homeland Immigration Immigration Service with the Civil Enforce- and Naturalization sistent ("INS”), general Agency Appre- for the a series of cate ment Priorities of the established Detention, hension, gorical guide enforcement. For ex and Removal of Aliens” criteria to 17, 2011), (June ample, Operating INS and the Johnson Memo Instructions “highest priority” outlined for officers [enforcement] five criteria to consider identifies discretion, might exercising prosecutorial including represent a threat as noncitizens 103.1(a)(1)(ii); security, age.” security, "advanced O.I. to "national border or tender Morris, safety,” Pasquini public Memorandum from Jeh see also Johnson, 1983). Secretary, Department cut the Discretion can also Charles example, Security, Ap- for the way. on "Policies other Homeland For Morton poses highlighted prehension, Detention Removal of Un- person Memo "whether the concern,” (November 20, public Immigrants” security safety national or documented Director, Morton, John Memorandum from grant decision whether to humani nent to Arizona’s that discretion exercising recipi licenses. Like DACA con them drivers’ simply for its own reasons tarian ents, apply for ad many noncitizens who Anti-Dis v. Am.-Arab Reno venience.” of re 471, justment of status and cancellation Comm., 483- crimination (c)(9) including individuals 936, 142 L.Ed.2d 940 84, 119 S.Ct. moval — never, (c)(10) not, may and n.8; Arizona, EADs — do (1999); id. also see immigration status. See possess formal' (noting principal that “[a] S.Ct. at 1086, Holder, 649 F.3d v. system is Guevara the removal feature of (9th 2011). Cir. by” the Exec- exercised discretion broad States, 106 F.3d

utive); Texas v. United applica- “submission of an Additionally, 1997) (5th (noting the State 661, Cir. the alien’s immi- not connote that tion does the INA concession of Texas’s Thus, merely changed.” gration status limits on the At- substantive “places no does not applying immigration relief commits enforcement torney General immigration signal path a clear to formal discretion”).2 INA to her Holder, 645 de Alcantar v. Vasquez status. 2011) 1097, (quoting they F.3d argument fails because Defendants’ 309, Elrawy, 448 F.3d of EAD- United States distinguish categories attempt to 2006)). Indeed, fre- given how amount to way in a that does not holders denied, “the applications these are adjustment quently difference. Like any relevant end.” may lead to dead status, (c)(9), supposed ‘path’ of remov- and cancellation ADACII, regard, at 1065. In this (c)(10), a form of al, action is deferred (c)(9) (c)(10) EADs Moreover, holding noncitizens in the INA. grounded relief recipients. are no different from DACA discretion de- prosecutorial exercise above, recipients DACA authority con- And as discussed action flows from the ferred ac temporary reprieve Secretary by the have INA. ferred on —deferred INA, by the provided tion — that criteria to ex- provide two Defendants discretion prosecutorial to the pursuant satisfactory EAD they deem an plain when statutorily delegated to the Executive. presence: applicant proof of authorized Therefore, respects, status, in all relevant ap- or the has formal similarly situated to recipients DACA path immigra- to formal plicant is on categories of noncitizens who to ren- other tion Neither criteria suffices status. licenses rely on EADs to obtain drivers’ similarly situated recipients

der DACA policy. any under perti- EAD-holders on basis other Commissioners, INS, Regional from dum for past, Department of Homeland 2. In the INS, Commissioner, "Family McNaiy, granted Gene Security and the INS have deferred Voluntary Departure groups pres- Fairness: Guidelines different of noncitizens action to 1977, Ineligible Spouses Attorney 242.5 for the under 8 CFR ent in the United States. In (Feb. 250,000 Legalized Aliens” stays and Children of granted of removal to General (known Bush directed the In President of certain countries as "Sil- nationals Levi, Letterholders”). grant Attorney deferred enforced No. 76- General va Silva v. 190,000 1977), (N.D. departure Salvadorans. See Immi- Ill. on other C4268 modified Bell, gration Public Law 101- Act of 1990 grounds 605 F.2d 978 sub nom. Silva 29, 1990); (Nov. (7th Cir.1979). https://www.gpo.gov/ the INS instituted the fdsys/pkg/FR-1994-12-06/htm)/94-30088.htm. "Family program Fairness" that deferred granted were de- family And nationals of Liberia deportation members of of 1.5 million September departure until legalized through ferred enforced who were noncitizens gov/humanitarian/ http cis. Immigration Act. Im- Reform and Control See. ://www.us temporary-protected-stalus-deferred-enforced- migration Act of Reform and Control 3359; departure/deferred-enforced-departure. Memoran- Pub. L. No. 100 Stat. probably B. Interest record does not State establish that there rational is a basis for this concern. next in an Protection step Equal analysis applicable Second, is to determine the lev- Defendants Ari- contend that Dairies, scrutiny. Country el of Classic zona’s serves the State’s interest in not ulti- Although F.2d we do preventing making from issue, decide the mately for public false claims assistance. As the view, we remain of the articulated our noted, however, district court Director injunction that Ari- preliminary opinion, Halikowski Assistant Director Stanton rational policy may zona’s well fail even testified that had no basis for believ- So, before, review. need not basis ing that drivers’ licenses could be used to scrutiny applies.3 reach what standard of access state and federal benefits. It follows II, ABAC 757 F.3d at 1065. probably that this concern is not a rational justifying basis policy Arizona’s either. Id. policy “rationally must re- Arizona’s be II, (citing ABAC 757 F.3d at to legitimate to state interest” lated City rational withstand basis review. Third, claim Defendants that Arizona’s of Cleburne, 473 U.S. at 105 3249. S.Ct. policy meant to is reduce the administra- six ratio- On Defendants advance appeal, issuing tive burden drivers’ licenses to policy, nales for Arizona’s none which recipients, only DACA to have to revoke us that un- persuade argument Plaintiffs’ program them once the DACA is terminat- Equal is not at der the Protection Clause ed. court argument The district found this sufficiently strong trigger to the con- least merit, noting lacked this court’s observa- stitutional avoidance doctrine we ultimate- is likely tion that it less will Arizona ly invoke. recip- need to revoke the licenses of DACA (c)(9) holding ients than of noncitizens and

First, argue Defendants (c)(10) EADs, applications because for ad- policy rationally is related to the State’s justment of status or cancellation of re- liability im- that it could face for concern III, routinely moval are denied.4ABAC to properly issuing drivers’ licenses DACA II, F.Supp.3d (citing at 807 ABAC But court recipients. as the district ob- 1066-67). Indeed, F.3d at noncitizens served, depositions Director ADOT (c)(10) already pro- EADs are in removal Director John S. Halikowski and Assistant ceedings, which means are further Stacey Motor Vehicle Division K. deportation are along process in the than yield support did not for this ra- Stanton many recipients. The administra- to DACA tionale. Neither witness was able identi- issuing revoking tive and driv- burden fy any instances which the state faced recipients ers’ for DACA issuing licenses noncitizens licenses liability to issuing and present greater in the coun- than burden not authorized be III, try. F.Supp.3d revoking ABAC at 807. So the drivers’ licenses for noncitizens Plyler, involving alleged 457 U.S. at S.Ct. 3. In cases discrimination view. See against present noncitizens authorized to be Supreme United Court has consistently applied scrutiny to the state strict suggest "later-developed facts” 4. Defendants See, Mauclet, e.g., Nyquist (c)(9) holding action issue. indicate that noncitizens (c)(10) path permanent 53 L.Ed.2d 63 are on the EADs Richardson, (1977); residency. Graham v. U.S. achiev- We are not convinced that (1971). ing (adjustment of sta- L.Ed.2d certain forms of relief removal) targets alleged fact Where discrimination non- tus or cancellation of alters the regularly present, applications who are not be for such relief are citizens authorized to very great applies numbers. Court rational basis re- denied in (c)(9) (c)(10) Certainly, equal justice within the EADs. denial of is still holding constitution.”). prohibition of does not having to do so the likelihood of nonciti- distinguish these two classes Sixth, that Arizona’s Defendants claim (c)(9) (c)(10) zens, applications as rationally to ADOT’s stat- related frequently denied. relief are the state’s utory obligation administer disparate license ADOT’s driver’s statute. Fourth, argue that Defendants pursuant of DACA recipients treatment financial harm avoiding an interest license relies on the the driver’s statute injured in traffic to individuals that federal not author- premise law does recipients. DACA Defendants accidents recipients’ in the presence ize DACA Unit- harmed DACA contend that individuals essentially an ed This rationale is States. may be recourse recipients left without assertion of state’s decide is terminated program when the immigrants’ is author- presence whether removed from and DACA under federal Rather than evalu- ized law. country. applies But this rationale that assertion ating part (c)(9) (c)(10) to individuals with equally analysis, doing so until we defer may find their EADs. These noncitizens ultimate, preemption of our our discussion denied applications immigration relief decision, adopt as ground which we from the quickly and removed ap- part of our constitutional avoidance in country, leaving injured those traffic proach. exposed financial harm. Nev- accidents to discussion, it proceeding Before to that ertheless, Arizona licenses issues drivers’ ADACII, again, once noting, bears see (c)(10) (c)(9) and holding to noncitizens 1067, suggest that the F.3d at record does EADs. policy: reason Arizona’s a an additional Fifth, denying Defendants contend against recipients. animus dogged DACA serves the licenses to DACA very Supreme Court made clear consistently policy. goal applying of ADOT legiti- a that such animus cannot constitute ¿^consistently its own applies But ADOT interest, has cautioned mate state and by denying recipi- to policy licenses DACA against sowing prejudice. the seeds of to holders of providing ents while licenses Evans, 620, 634, 116 Romer v. 517 U.S. (c)(9) (c)(10) simply and EADs. 1620, (1996); see L.Ed.2d 855 way “path” to nonciti- has no know what Cleburne, 464, City also 473 U.S. of any categories of these will eventu- zens (Marshall, J., concurring in the S.Ct. 3249 similar ally recipients appear take. DACA judgment part, dissenting part) and Ari- eligible to individuals under loose, (“Prejudice, easily once let policy with to all the criteria respect zona’s cabined.”). guarantee “The Constitution’s applies on. its ADOT relies ADOT thus very must at mean equality least un immigration with an own classification politically ... desire a that a bare to harm only by denying hand licenses to even group justify unpopular disparate cannot See, recipients. e.g., Yick Wo. v. group.” treatment of that States v. United — 373-74, 356, Hopkins, Windsor, 2675, 118 U.S. 6 S.Ct. -, U.S. 133 S.Ct. (“[I]f (1886) (2013) (citation is 2681, law] 30 L.Ed. [the 186 L.Ed.2d 808 omitted). author applied by public and administered hand,

ity eye unequal an evil and an Preemption II. unjust illegal practically so make as. in similar persons discriminations between do not “decide constitutional We circumstances, rights, questions dispositive to their where nonconstitu- material ground City provides tional is available.” L.A. v. pervasive framework with re- Kern, Cty. gard admission, 581 F.3d removal, pres- 2009) (quoting Clayton, Correa v. ence of aliens. See Chamber Commerce 1977)). 396, 400 U.S. v. preemption Whiting, While 563 U.S. 131 S.Ct. 1968, 1973, (2011) Supremacy derives its force from the 179 L.Ed.2d (quot- Constitution, DeCanas, ing 353, 359, Clause of the “it is treated U.S. at 96 S.Ct. 933); Arizona, (“Fed-

‘statutory’ purposes practice of our 132 S.Ct. at cf. eral governance of deciding statutory claims first to avoid un- and alien status is extensive necessary complex.”). adjudications.” constitutional Prods., Douglas v. Seacoast 431 U.S. Traditionally, federal law preempts state 97 S.Ct. 52 L.Ed.2d 304 (1) law when: Congress expressly includes (1977).5 Given the formidable Equal Pro- (2) provision law; in federal raises, tection concerns policy attempt states “regulat[e] conduct in a turn a preemption analysis as an alter- Congress, field that acting prop- within its resting native to our decision on the authority, er has determined reg- must be so, Doing Clause.6 we conclude (3) ulated governance”; exclusive that Arizona’s encroaches on the law, state law conflicts with federal either exclusive federal to create immi- “compliance because with both federal and gration classifications and so is displaced regulations physical impossibili- is a by the INA. ty” or “state law ‘stands as an obstacle to the accomplishment and execution of the “[p]ower regulate immigration ’ purposes objectives full Congress.” unquestionably exclusively a federal pow Arizona v. United DeCanas, er.” 424 U.S. at 183 L.Ed.2d 351 933. The immigration ju Court’s (2012) (quoting Florida Lime & Avocado risprudence recognizes occupation that the Growers, Paul, 132, Inc. v. 142- 373 U.S. regulatory of a field be “inferred from 143, 1210, (1963), 83 S.Ct. 10 L.Ed.2d 248 of regulation pervasive framework ‘so Davidowitz, 52, 67, v. Hines 312 U.S. ... that Copgress left no room for the ” 399, (1941)). 61 S.Ct. 85 L.Ed. 581 Arizona, supplement States to it.’ 132 (quoting S.Ct. at 2501 Rice v. Santa Fe “The enjoy power respect States no with 218, 230, Corp., Elevator 331 U.S. 67 S.Ct. to the Plyler classification of aliens.” v. (1947)). 1146, Doe, 91 L.Ed. 1447 Supreme 2382, The 457 U.S. 102 72 S.Ct. (1982).

Court has also indicated that the INA Supreme L.Ed.2d 786 Court Though preemption principles 5. appeal are rooted in because did Plaintiffs not the district Clause, Supremacy previ- preemption this court has court’s dismissal of their claim. ously applied principle preemption argument, But at oral defense counsel offered implicate question does not a constitutional provide supplemental briefing on the issue. purposes Separately, constitutional avoidance. See Plaintiffs noted that Defendants Emps. Emps. Hotel & Rest. Int’l Union Nev. argument raised the Take Care for the first Comm'n, (9th Gaming 984 F.2d 1512 appeal argued time ought on it not be 1993) (holding Cir. that Pullman abstention presented considered because it was not preemption was not warranted for claims be Following argument, the district court. oral “preemption cause is not a constitutional is requested parties sup- we and the submitted sue."); Corp. Dairy Knudsen v. Nev. State plemental briefing on both issues. Defendants’ Comm’n, (9th 1982) that, 676 F.2d Cir. supplemental light brief conceded (same). Olympic Pipe the considerations articulated in Seattle, City Line Co. v. 437 F.3d 872 brief, 2006), opening argue 6. may properly preemp- In their Defendants consider preemption properly is not before this court tion in this case. an strayed into exclu- ity, impermissibly it recognized that expressly

has also immigration through the Congress, in the sive domain source of “[fjederal authority INA, branch. unique. delegated to the executive context not of aliens derives” the status regulate of traditional regulate can areas States or network of federal law specific from one impact nonciti- might concern that state sources, including laws, “from various but DeCanas, at 424 U.S. zens. See es power e[t]o Government’s the Federal in- regulations 933. Permissible state S.Ct. Naturalization,’ Rule of uniform [a] tablish objectives federal those that mirror clude regulate Commerce power ‘[t]o ... classi- incorporate immigration federal Nations,’ au- and its broad foreign with at Plyler, fications. 457 U.S. ” foreign affairs.... Toll v. thority over an regulates But a law that S.Ct. 2382. 1, 10, 102 Moreno, S.Ct. 458 U.S. state concern can still area of traditional (1982). prece Supreme Court L.Ed.2d of immi- impermissible regulation effect a clear en that “neither explains dent gration. power croachment on exclusive example, For in Takahashi Fish & with a a clear conflict aliens nor admit Commission, Supreme Court purpose” required Game congressional specific preempt regulation law to state of entitle- for federal observed that state order at 11 immigrants. id. regulations fishing commercial licenses based ment to (internal n.16, quotation conflicted immigration classifications omitted). surprisingly, ... “Not marks “constitutionally derived federal at cases have also been [Supreme Court] regulate immigration.” power limitations the substantial pains to note 410, 419, 68 S.Ct. 92 L.Ed. 1478 making authority of the States upon the (1948). Moreno, In Toll v. alienage.” Id. at upon classifications based preemption principles held that Court 10, 102 policy concerning foreclosed state sure, regulations all To state charges and at a imposition of tuition fees preempted. touching on university immigra- on the basis of Commerce, See Chamber 1, 16-17, 102 S.Ct. tion status. 458 U.S. directly regulate may not 1974. But states (1982). Similarly, L.Ed.2d 563 Whiting, Inc. v. del Sol immigration, Valle municipal ordi- Third Circuit has held 2013), aliens preventing nances unauthorized classify immigra- power aliens imper- renting housing from constituted political to the purposes tion is “committed regulation immigration and missible the Federal Government.” branches of preempted the INA. Lozano were at 102 S.Ct. 2382 Plyler, 457 U.S. (3d Hazleton, 724 F.3d City of Mathews, 426 U.S. at 96 S.Ct. (quoting 2013). Although housing ordi- Cir. 1883). the issuance of prohibits Arizona immigra- directly regulate nances did not anyone who does drivers’ licenses dictating in the sense of who could or tion presence in that his or her proof submit into the United could not be admitted is “authorized under States United that the Third Circuit concluded 28-3153(D), law,” Ariz. Rev. Stat. federal reg- they impermissibly on the “intrude[d] inde- to create its own purports and then residency presence and of aliens ulation under pendent definition of “authorized (emphasis add- in the United States.” Id. law,” that excludes DACA ben- federal one ed). created a new eficiaries. Because Arizona that an Similarly, the Fifth Circuit held adopted when it immigration classification “allowing] state courts to assess eligibil- license ordinance policy regarding its driver’s of a non-eitizen’s legality presence” in Deferred Action program does not and preempted States was United because cannot confer lawful or authorized ... it the door to “open[ed] conflicting state presence upon the unlawful appli- alien rulings question.” and federal on the Villas cants.” Executive Order 2012-06 at 1. The City Partners v. Parkside Farmers Order also announced Arizona’s view that Branch, 2013). 726 F.3d issuance of “[t]he Deferred Action or De- The Fifth decision Circuit’s was based on ferred Action ... to unlawfully [EADs] recognition govern- that federal “[t]he present aliens does not upon confer them power ment alone ... has the classify any (em- lawful or authorized status.” Id. non-citizens.” Id. accord with these de- added). phasis implement Order, To cisions, the Eleventh Circuit held that a ADOT initiated a policy of denying licenses prohibiting recogniz- state law courts from recipients pursuant to Arizona’s ing involving contracts unlawfully present statute, driver’s license which requires preempted thinly aliens was as “a veiled that applicants “submit proof satisfactory attempt regulate immigration under the department to the applicant’s guise of contract law.” See United States v. presence the United States is author- Alabama, 1292-96 ized under law.” Ariz. Rev. Stat. 28-3153(D) added). §Ann. (emphasis involving Cases the allocation of state points Arizona to three justify criteria to resources on the basis of immigration clas- treating EAD recipients differently than frequently equal sifications raise both pro- (c)(9) (c)(10) EADs,7 individuals with tection concerns. Some de- though even the federal government treats applying preemption cisions principles their EADs the same all relevant re- ultimately equal protection have rested on spects. But Arizona’s three criteria —that see, Takahashi, grounds, e.g., status; an applicant: has formal is on a Toll, 92 L.Ed. 1478. In status; path to formal applied or has however, Court noted com- relief expressly provided for in the INA— many mentators’ observations “that cannot be equated with pres- “authorized concerning Court’s decisions alienage clas- ence” under federal law. DACA sifications, Takahashi, such as are better (c)(9) (e)(10) and noncitizens with explained pre-emption than in equal status, EADs all lack formal protection n.16, terms.” 458 U.S. at 11 yet the federal government permits them S.Ct. 2977. to live work in country for an Here, policy ostensibly regu- time, period undefined provided they licenses, lates the issuance of drivers’ ad- comply with certain conditions. mittedly an area of traditional state con- distinguishes thus between Commerce, cern. See Chamber noncitizens based on its own definition of at 1983. necessarily But its “embod- presence,” “authorized one neither independent judgment ies the State’s mirrors nor borrows from the federal im- recipients of [DACA] are not ‘authorized’ migration by classification scheme. And present to be in the United States ‘under ” II, arranging federal classifications in the law.’ ADAC F.3d at 1069 federal (Christen, J., Indeed, way it concurring). prefers, impermissibly Ari- Arizona as- zona Executive Order declared that “the prerogative creating sumes the federal noted, (c)(9) removal, recipients 7. respectively. As have and tion of See 8 C.F.R. (c)(10) 274a.l2(c)(9)-(10). documents noncitizens who have applied adjustment of status and cancella- action or deferred recipients of deferred according to classifications immigration argue departure, Defendants in an “ex enforced thereby engaging design,8 own II, properly relied on state- that brieolage,” ADAC regulatory ercise of Citizenship and Immi- (Christen, J., by the U.S. concur ments F.3d at 1072 clear that de- enjoy that “make gration that Service despite the fact “States ring), not confer a lawful ferred action does to the classification respect power no These statements immigration status.” aliens,” at Plyler, 457 U.S. from a local form of an email take the 2382. Citizenship Immigration and Service U.S. of aliens this case involves classes That Community response Relations Officer has, matter of discre- as a the Executive email, from ADOT. inquiry to an category for tion, priority in a low placed recipients notes that DACA the officer weigh- consideration is a further removal should for work authorization applying validity policy. of Arizona’s ing against the category and not category fill in “C33” emphasized that Court has “C14,” regular category which is the sys- feature of the removal principal “[a] action. deferred exercised the broad discretion tem is Arizona, nothing to further De- This email does immigration officials.” The officer’s state- argument. fendants’ specifically the Court has at 2499. And way that federal law suggests ment in no federal statutes contem- recognized that classifications. supports Arizona’s novel the discretion of plate protect did, if from a local And even it email making Branch when determi- Executive Services Citizenship Immigration concerning deferred action. See U.S. nations law,” nor is not a source of “federal Reno, 119 S.Ct. 936. Officer government’s statement of the statutory into removal an official The discretion built suggests auxiliary position.9 procedures

regulations regarding presence INA, indeed, directly undermines particularly States are aliens the United pur- novel classifications. For Arizona’s statutory the overall federal intrusive on determining admissibility poses of immigration scheme. admitted lawfully other than those aliens residence, the INA states any permanent statute point federal Unable present in- that if an alien is the United justifies classifying regulation (e)(10) (c)(9) stay beyond “period authorized EADs as States dividuals with being excluding by Attorney General” or without present while authorized to ture, our conclusion that Arizona’s scheme continual insistence that Ari- 8. Defendants’ impermissibly immigration classifica- preempted creates policy is not because zona's depen- not found in federal law is not program of law” re- tions lacks "the force vitality upon of the DACA dent the continued misunderstanding flects a program. question. Preemption gladiatorial is not a pits contest the DACA Memorandum II, argued that a against policy. opin- In ADAC Defendants also Arizona's Nor does this Questions” "Frequently Asked section of the rely DACA Memorandum for its ion on the Citizenship Immigration Services policy preempted U.S. conclusion that Arizona’s Rather, Congressional Ser- and a Research law. is Website demonstrated that Ari- preempted by supremacy of federal au- vice Memorandum support in federal thority zona’s classification found under the INA to create Indeed, law. See 757 F.3d at 1073. We understand categories. because Arizona's novel argu- have abandoned these just DACA Defendants to classification scheme includes not not, regular But even if had neither recipients de- ments. but also of federal law. depar- source is a definitive statement action and deferred enforced ferred alien alien paroled, lacking permanent or the is “deemed resident admitted status in the unlawfully present joining United from the state bar. 419 F.3d States,” purposes least of But the Louisiana Su 1182(a)(9)(B). 212(a)(9)(B)(ii); § preme § INA Court did not create a novel immi 1182(a)(9)(B)(ii) (emphases gration § add- classification Arizona U.S.C. as does here.

ed). Rather, regulations imple- permissibly The administrative it borrowed from ex INA, classifications, menting isting this section of to which federal distinguishing deference, owe establish deferred “those aliens permanent who have attained recipients action do not accrue “unlawful resident status in United States” from of those presence” purposes calculating when who have not. Id. (quoting In re (La. Bourke, they may 2002)). to the seek admission United 819 So.2d 214.14(d)(8); § States. C.F.R. C.F.R. Defendants also argue of sections 1100.35(b)(2). recipients § such Because granting INA states pro- discretion to provisionally present being without ad- are public aliens, vide benefits to certain in- stay mitted or their must be con- paroled, cluding recipients, deferred action suggest Attorney “authorized Gen- sidered that Congress occupy “has not intended to eral,” this purposes of statute. INA precludes a field so vast that it all state 1182(a)(9)(B). 212(a)(9)(B)(ii); § § 8 U.S.C. regulations upon that touch immigration.” Act, §§ The REAL ID amended See 8 1622. But which U.S.C. we do not INA, conclude that Congress preempted further undermines Arizona’s inter- all presence.” regulations upon of REAL state that touch pretation immigra- “authorized B, tion. policy preempted ID Act of L. No. div. Arizona’s Pub. be- cause, ID Act which determining 119 Stat. 231. The Real amend- aliens shall be benefit, eligible to receive a provide ments that states issue a state created immigration card to new classifications driver’s license identification independent on its view of can based who is persons who demonstrate present authorized law to be under federal stay in United States.” [to] “authorized 202(c)(2)(C)(i)-(ii). United States. § Persons with “ap- Id.

proved deferred action status” are ex- no foundation Defendants offer for an being present in pressly identified as law that interpretation of federal classifies “period of during States author- United (c)(9) (c)(10) individuals with EADs as stay,” issuing ized for the purpose having “authorized but presence,” DACA 202(c)(2)(B)(viii), identification cards. Id. recipients pres- no authorized having as (C)(ii). statutory point We to these defini- denying ence. policy Arizona’s drivers’ not examples all-encompassing tions as based on licenses DACA congressionally decisions about authorized presence” own notion “authorized may remain in the United but authority the exclusive preempted government examples of the federal under government federal the INA to exercising its exclusive to classi- classify noncitizens.

fy immigrants. Constitutionality III. Despite departure from Arizona’s clear Program classifications, Defen- policy decline to rule on the constitutionali- argue is not a We

dants ty as the immigration.” program, of the DACA issue is regulation “back-door court; only our They properly Louisiana before compare it to the policy ques- is in upheld Circuit in lawfulness of Arizona’s Court the Fifth Webb, tion. prohibited any LeClerc v. which Se- sources, Department of Homeland however, the note, the discussion

We decisions about curity must make difficult of Defen- pertinent both quite above Despite prioritize for removal. whom to undergirding arguments primary dants’ not protestations, have Defendants’ constitutionality of challenge to the their Department of Homeland shown that the First, ar- Defendants program. the DACA responsi- Security comply failed to with power, has no inde- that the Executive gue permit it to the extent its resources bilities the to enact DACA Congress, pendent so.11 to do discussed, the But as we have program. reason, nothing case is like For that this that confer provisions replete INA is York, a case relied City v. New Train the Executive discretion on prosecutorial Defendants, Supreme the by which upon priorities. enforcement its own to establish directing presi affirmed an order Court parties gener- Third section II. supra, money al spend dential administration exercise of this may not contest the ally by Congress projects. for certain located D., discretion, v. Richard see Linda R.S. 35, 40, 43 L.Ed.2d 420 U.S. 95 S.Ct. 614, 619, 93 S.Ct. 410 U.S. (1975). Here, contrast, Department by (1973), including in the immi- L.Ed.2d 536 Congress has of Justice asserts Sure-Tan, context, Inc. v. gration see to remove all sufficient funds appropriated NLRB, 467 U.S. aliens, and sev 11.3 million undocumented (1984).10 81 L.Ed.2d adopted have prior administrations eral Second, DACA, prioritize Defendants contend which programs, like n.2. “The supra to remove. See amounts to wholesale noncitizens program DACA investigate, power to decide when provisions, the INA’s which suspension of of the lies at the core prosecute, when to obligation President’s in turn violates the faithful exe duty to see to the Executive’s faithfully that the Laws to “take Care ” Cmty. Creative cution of the laws.... (“the II, § art. executed.” U.S. Const. Pierce, Non-Violence Clause”). But, according to an Take Care (D.C. 1986); Arpaio v. Oba see Department amicus brief filed (D.C. 11, 18 ma, 797 F.3d Justice, of Homeland Se Department noted, only funding annually Further, Supreme to remove curity has as we have history million of the acknowledged hundred thousand of the 11.3 has a few Court regular practice in a living engaging in the United Executive undocumented aliens enforcing discretion prosecutorial limited re- Constrained these States. Indeed, Department brief pass Develop- 11. of Justice’s Congress’s failure Relief, ment, Education Alien Minors reports that the administration has removed ("DREAM”) illegitima- signal the Act does not approximately 2.4 million noncitizens from cy program. DACA Court country a number the from 2009 to bill is not admonished that an unenacted government "unprecedented.” Priori- states is Congressional indicator of intent. a reliable tizing proceedings nonciti- those removal FCC, See Red Lion Broad. Co. represent a threat to "national secu- zens who n.11, 1794, 23 L.Ed.2d 371 public safety,” rity, security, and border Moreover, (1969). the DREAM Act and the Johnson, Memorandum from Jeh Charles interchangeable poli program are not Security, Secretary, Department of Homeland they provide forms of because different cies Apprehension, Detention on "Policies for the (i.e., grant Act would have relief the DREAM Immigrants” Removal of Undocumented residency lead to ed that could conditional 20, 2014), (November fairly be de- cannot residency, pro permanent whereas the DACA abdicating agency’s responsibil- scribed as limited, temporary gram a more defer offers ities. removal). ral of Reno, (1) n.8,

INA. See 525 U.S. at 483-84 & it has suffered an irreparable (“To (2) 119 S.Ct. 936 a ameliorate harsh and injury; that remedies available at outcome, unjust the INS decline to law, monetary such as damages, are in- proceedings, institute proceed- terminate adequate compensate for that injury; ings, or decline to execute a final order of (3) that, considering the balance of hard- deportation. This commendable exercise in ships between plaintiff and defen- discretion, desig- administrative ... is now dant, a remedy in equity warranted; nated as deferred action.” (quoting 6 C. (4) and public interest would Gordon, Mailman, Yale-Loehr, S. & S. Im- not be by permanent disserved a injunc- migration Law and Procedure 72.03 tion. (1998))). history “gen- [2][h] This includes Monsanto Farms, Co. v. Geertson Seed non-enforcement, eral policy” such as de- 139, 141, 561 U.S. 130 S.Ct. granted ferred action foreign students (2010) L.Ed.2d 461 (quoting eBay Inc. v. Katrina, by affected Hurricane U.S. Citi- L.L.C., MercExchange, zenship Immigration Services, and Interim (2006)). 164 L.Ed.2d 641 Foreign Certain Academic Stu- Relief for Plaintiffs proven have that they suffer Adversely dents by Hurricane Affected irreparable injury as a result of Arizona’s Questions Frequently Katrina: Asked policy, and that remedies available at law (Nov. (FAQ) 25, 2005), at 1 and deferred inadequate to compensate them for action for certain widows and widowers of In injury. particular, Plaintiffs have citizens, U.S. Memorandum for Field demonstrated that their inability to obtain Leadership, U.S. Citizenship Immigra- Services, drivers’ licenses Neufeld, professional tion limits their from Donald Acting opportunities. Arizona, Director, it Associate takes an Citizenship U.S. aver- Services, Immigration age of over four Regard- long “Guidance times as to commute ing Surviving Spouses of by public Deceased U.S. to work transit than it does Citizens (Sept. and Their Children” at 1 driving, public transportation is not 2009).12 available most localities. One ADAC member had to full days miss of work so that, end,

We reiterate that she could take her son to his doctors’ policy preempted not because the DACA appointments by bus. Another ADAC program valid, is or is not but because the member finishes work midnight after but policy usurps of the federal the buses workplace stop running her government immigrant to create classifica- p.m. noted, at 9 And as tions. the district court another Plaintiff graphic designer is a Injunction IV. Permanent inability whose to obtain a driver’s license clients, caused her to Before a court decline work from may grant permanent injunction, plaintiff satisfy yet must four- while another Plaintiff pursue wants to test, factor demonstrating: a career as an Emergency Medical Techni- ruling 12. The recent recipients' in Texas v. United eligibility public DAPA for certain 2015) petition 809 F.3d 134 cert. benefits such as drivers’ licenses and work - Texas, granted sub nom. United States authorization. Id. at 149. The court concluded -, U.S. (2015) (mem.), 193 L.Ed.2d 788 likely that the states were to succeed on their inapposite is also to Defen- procedural and substantive claims under the There, dants' constitutional claims. several Act, expressly Administrative Procedure challenged states the Deferred Par- Action for declined to reach the Take Care Clause issue. ents of Americans and Lawful Permanent n.3, Id. at 146 & ("DAPA”), program including Residents equi- interest and the balance public to do so because the unable dan but is requires driver’s of a department fire the violation “preventing] local ties favor III, ADAC employment. license for rights.” constitutional Melendres party’s F.Supp.3d at 809. 2012) 990, 1002 Arpaio, 695 F.3d (citation omitted). li- inability to obtain drivers’

Plaintiffs’ jobs, pursuing new them censes hinders careers, work, advancing their attending CONCLUSION opportunities. developing business signif- harm and They financial thus suffer sum, recipients that DACA we find And we have costs. opportunity icant in all relevant re- similarly are situated found, nature of irreparable previously eligible for to other noncitizens spects by Plaintiffs’ injury is exacerbated this policy. Arizona’s licenses under drivers’ sta- fragile socioeconomic young age rely on EADs And Arizona’s refusal II, at 1068. 757 F.3d Setbacks tus. ADAC purposes of es- from DACA significant can early in their careers have for drivers’ licenses tablishing eligibility professions. future on Plaintiffs’ impacts violate the well one’s opportunity pursue of Id. This loss governmental rational for lack of a Clause irreparable profession constitutes chosen justifying the distinction relied interest v. Nat’l Bar Enyart harm. Conference of Invoking the constitutional avoid- upon.. (9th Exam’rs, Inc., F.3d doctrine, construe the INA as ance 2011); Dist. Ct. see also Chalk U.S. Cir. of Arizona’s classifica- occupying the field Cal., F.2d 709-10 Dist. Cent. of 1988) (holding plaintiffs regard to whether tion of noncitizens with satisfying job created law, transfer to a less by is authorized federal presence their irrepara- constituted injury emotional states from preempting and as therefore harm). harm tradi- irreparable is ble Since very categorization in own engaging their is tionally as harm for which there defined denying immigrants purpose for the adequate legal remedy, such as no licenses. Plaintiffs some of them drivers’ Rent-A-Ctr., Inc. v. damages, see award of irreparable shown that suffer have Rental, Canyon Appliance Television & policy Arizona’s and that reme- harm from 1991), Inc., 944 F.2d compensate inadequate dies at law are shown that remedies Plaintiffs have also for that harm. Plaintiffs have also shown inadequate compen- law are available at remedy equity a in is warranted and sate them. public interest would not be dis- that the that, Plaintiffs have also demonstrated by injunction. permanent served a hardships, considering after the balance AFFIRM the Accordingly, we district and that remedy equity in is warranted not be disserved in fa- public grant summary judgment interest would court’s by injunction. We conclude permanent also AFFIRM the vor of Plaintiffs. We preempted that Arizona’s is fed- policy entering permanent district court’s order clear that it would not be eral law. “[I]t enjoins policy injunction that interest to al- equitable public’s under the DACA denying the EADs issued requirements violate the low the state to satisfactory proof of author- program as law, are no especially when there under federal law in the presence ized del adequate remedies available.” Valle States. United Arizona, Sol, (quoting at 1029 732 F.3d omitted). 366) (alterations AFFIRMED. BERZON, Judge, Circuit Concurring e.g., U.S.C.

light of the Dissent from the denial of (IV) § 1154(a)(1)(D)(i)(II), (indicating that rehearing en Banc: certain applicants visa “eligible for de action and authorization”); ferred work id. join

I panel opinion in full. I write 1182(a)(9)(B)(ii) (providing pur that for explain concurrence to further our holding poses of determining inadmissibility, un in light of the dissent from denial of re- presence lawful any includes time an hearing en banc. alien present “is in the United States after the I emphasize write first to that the “law” expiration of period stay authorized preemptive power that has over Arizona’s Attorney General”); 1227(d)(2) § id. Congress’ conferral of exclusive (indicating that certain applicants visa authority on the executive branch to defer are denied an stay administrative of re removal of legal individuals who lack sta- apply removal, moval can for “a stay of tus and to authorize them to work while action, deferred or a continuance or abey temporarily permitted to remain. Further- ance of removal proceedings”); §id. 1229b more, highlight I write that preemp- (giving Attorney General the discretion ultimately tion issues decided this case to cancel removal for certain inadmissable can be equal viewed as embedded aliens, or removable including those protection analysis, given the historical admitted); were lawfully never conceptual id. overlap equal pro- between 1324a(h)(3) § (defining tection preemption concerns in cases “unauthorized alien” for involving immigrants. purposes employment state laws that affect of as an equal The serious alien protection “lawfully concerns who is neither admitted for by raised Arizona’s bolster our pre- permanent residence” nor “authorized to emption holding, which was reached in a by be so employed [statute] principle careful exercise of the General”); consti- Attorney 2005, REAL ID Act of tutional avoidance. B, Pub. L. No. div. 202(c)(2)(B)(viii), § (C)(ii), 231, 119 Stat. I. (indicating persons that “ap with panel opinion clear, As the makes it is proved present deferred action status” are authority specifically conferred on the during “period the United States Attorney Immigration General stay” purposes authorized issuing (“INA”), Nationality § Act 8 U.S.C. 1101 state drivers’ licenses and identification seq., et regulations, and the associated 274a.12(c)(14) (indicat cards); 8 C.F.R. body is the preempts of federal law that ing that an “alien who granted has been policy, any particular not exer- action, deferred an act of administrative INA, cise of authority. executive The government convenience to the which gives implemented by regulations, authorized af- priority” may some cases lower granted firmatively permits the Attorney General upon application work authorization and a to decide whether undocumented immi- showing necessity). of economic grants should be removed from the coun- provisions, others, These among various when, try and they and also whether make clear that Congress has expressly should stay be authorized to and to work if General, Attorney authorized the at his immediately are not to be removed. discretion, officially to defer removal of Contrary to the Dissent from the denial of status, (“Dissent”), legal thereby individuals who lack rehearing en banc this confer- temporarily authorizing stay, ral of not “only limited to two their and to provisions small of the INA.” authorize Dissent such individuals to work while in this case are Ari- concerns raised to remain.1 See protection permitted temporarily than distinct. And be- 387, overlapping rather v. United 567 U.S. zona so, that al- (2012) I am convinced cause that 2506, 2492, L.Ed.2d 351 S.Ct. equal decide the though wisely did not (“[T]he to the is entrusted process removal issue, necessary it to de- Government.”). were protection of the Federal discretion held that I would have question cide the granted plain- Attorney General The equal protection violation. there was an and fur- deferred action tiffs in this case preemption con Equal protection employment au- them with federal nished intertwined in cases long have been cerns Arizona’s denial thorization documents.2 classify immi dealing state laws recipients rests licenses to DACA drivers’ Doe, 202, 102 Plyler v. grants. 457 U.S. is presence their premise on the (1982); Nyquist 72 L.Ed.2d law,” even under “authorized Mauclet, 432 U.S. 97 S.Ct. has decid- government the federal though Richardson, (1977); Graham L.Ed.2d 63 otherwise, dele- exercising powers ed 1848, 29 L.Ed.2d 534 403 U.S. has, by Congress. it gated to (1971); Takahashi, 410, 68 S.Ct. 334 U.S. therefore, area deci- intruded into an 1478; Truax, 92 L.Ed. gov- to the federal sionmaking entrusted also 131; see Jenny- 60 L.Ed. ernment.3 Preempting Equal Condon, Brooke II. Immigrants?, 73 Wash. & Protection for (2016); Levi, David F. Lee L. Rev. holding re- Critically, our Treatment Aliens: Note, a careful exercise of constitutional flects Protection?, Preemption Equal 31 Stan. avoidance, equal pro- on the serious based (1979). L. Rev. 1069 policy. raised tection concerns Mauclet, Nyquist v. preemp- Although example, rest our decision on For goals that one of its equal state asserted grounds, tion law country gram, whether based on administrative Authorizing in the 1. someone to work presence. scope executive's re- necessarily concepts authorize their or the of the to Court, Compare in Takahashi v. Fish & Game sponsibility to enforce federal laws. 410, 416, Commission, (Arizona S.Ct. 334 U.S. 68 plaintiff at is a Texas id. 149. 1138, (1948), stated that "[t]he 92 L.Ed. 1478 litigation, v. United States which does raise deny of an to aliens Instead, assertion ongoing.). such issues and is earning law- opportunity of a livelihood when authority to treat some un- has asserted the fully would be tanta- admitted to the state with deferred status documented individuals right deny mount to the assertion of differently federal work authorization abode, ordinary for in them entrance and dispensa- the same federal from others with they cannot live where cannot cases validity of that treat- tions. It is the differential Raich, 33, (quoting Truax v. 239 U.S. work.” this case. ment that is at the heart of 42, 7, (1915)). L.Ed. 131 36 S.Ct. 60 Authorizing an alien to obverse is also true: upon driver's license statute turns 3.Arizona's authorizing country necessarily in the work presence immigrant's is "author- whether an him to remain. pres- ized under federal law” not whether specifically in the sense of ence is "lawful” points at treats this 2. I that the note Dissent Ann. by statute. See Ariz. Rev. Stat. condoned parallel v. United case as to Texas 28-3153(D). turned on the If the statute 2015), equally F.3d 134 aff'd not, does, latter, Arizona could as it issue -, court, S.Ct. divided - U.S. many undocumented individuals licenses to (2016) curiam). (per It de- 195 L.Ed.2d 638 but have been who do not have lawful status cidedly is not. Arizona raised in the district granted in removal work authorization while challenge affirmative to the Deferred court no ("DACA”) op. pro- proceedings. See Amended 968. Action for Childhood Arrivals excluding certain classes of aliens from emphasized distribution in immigration eligibility pro- for in-state tuition was to preemption cases.4

vide incentives for aliens to naturalize. 432 A. at 2120. In holding

U.S. S.Ct. Equal law violated the The primacy of federal immigration law Clause, purpose the Court found that state first informs the equal protection analysis “not a permissible one for State” because when we determining are whether “[c]ontrol over and naturaliza- groups being classified “similarly are situ- tion exclusively is entrusted to the Federal panel states, ated.” As the opinion Government, and a power State has no to prevents Protection Clause gov- interfere.” Id. at 97 S.Ct. 2120. Similar- ernment “treating from differently persons Richardson, inly Graham another deci- who are in all respects relevant alike.” sion that equal protection rested on Hahn, Nordlinger 1, 10, 505 U.S. “[sjtate grounds, provided the Court (1992) S.Ct. 120 L.Ed.2d 1 (emphasis residency requirements alien that either added). respects” “Relevant only are those deny welfare benefits to noncitizens or respects that goals relate to the of the longtime condition them on residency, challenged state law. equate with the assertion of a right, [state] Classifications adopted by states “must policy, deny inconsistent with federal upon ground rest some of difference hav- entrance and abode. Since such laws en ing a fair and substantial relation to the croach upon power, they exclusive federal object legislation, persons so that all constitutionally impermissible.” similarly circumstanced shall be treated U.S. S.Ct. 1848. Takahashi v. Reed, 71, 76, alike.” Reed v. Fish and Game Commission likewise held (1971) 30 L.Ed.2d 225 (quoting impose laws which discrimina “[s]tate Royster F.S. Guano Virginia, Co. v. tory upon burdens the entrance or resi U.S. 64 L.Ed. 989 lawfully dence of aliens within the United (1920)). Accordingly, adopt a federal States conflict constitutionally with [the] immigration classification power regulate derived federal “as a criterion immigra tion.” discriminatory 334 U.S. at for its own policy, the State must demonstrate that the classification is in overlap evident these cases be- reasonably adapted purposes to the equal tween for protection preemption the which the state Plyler, desires to use it.” analyses where state laws that affect immi- (internal 226, at U.S. 102 S.Ct. 2382 grants are at issue is no accident. As the omitted) quotation marks and citations equal protection analysis panel in the opin- (emphasis original). in purposes Those do illustrates, ion both “similarly the situated” properly not making include decisions “legitimate inquiries state interest” re- country, about who should remain in this quired equal protection analysis for neces- removed, sarily who should be or what are the incorporate recognition pre- eminent, exclusive, although stay not conditions of for those temporarily matters, role in immigration the same role authorized to be here. ("[T]he Supreme Because concerns are embed- Court has reinforced the by equal protection ded in and addressed principle government that the federal has ex- regarding decisions state laws that affect im- responsibility regulation clusive for the migrants, equal protection decisions like immigration, through equal pro- as much Doe, 202, Plyler v. jurisprudence through pre- tection as it has preemp- 72 L.Ed.2d are relevant to our decisions.”). emption Condon, holding. supra pp. tion at 83 Richardson, B. in example, Gmha/m

For equal protection on down the Court struck next in the Preemption themes surface law that denied welfare a state grounds analysis in the examina- equal protection the Court to non-citizens whom benefits legitimate state interests. A state tion of similarly respects in all rel- found situated only legitimate equal protec- interest to the state welfare law: non-citizens evant purposes tion when it lies within an area of taxes, into could be called the armed paid authority. concern within the state’s When state, forces, thereby and worked the immigration, the the state law touches on the economic wel- contributing to state’s legitimate ambit of state concern is con- at fare. 403 U.S. 91 S.Ct. 1848. by government’s pre- strained the federal “indistinguish- groups of residents were immi- power directly regulate eminent they except respect with to whether able is, gration to decide who will —that country.” citizens this Id. are or are not admitted, remain, who and who will groups at 1848. The two were be removed. not, course, similarly situated in the Doe, Plyler “[although stated in it As is, they to whether respect latter as —that normally legitimate part is a routine and citizens. And that difference entailed were the business of the Federal Government to many distinctions between the embedded classify alien and to basis of status citizens, including non-citizens and account the character of the rela- take into vote, juries, right to to serve on and to tionship between the alien and this coun- country if engaged remain in the even rarely relevant try, only are such matters But criminal activities. the citizen/non-citi- by a at legislation State.” 457 U.S. zen distinction was the one (internal quotation marks 102 S.Ct. 2382 not a justify, declaring had to basis omitted). Consistently and citations similarly re- groups two situated with view, explained this Mathews v. Diaz gard receiving welfare benefits. category “a division a State of the Similarly, immigration-related dis- persons are not citizens of that State plaintiffs tinction between the and other subcategories into of United States citizens immigrants undocumented has no role apparent justification, has no and aliens “similarly junc- this case at the situated” whereas, comparable classification Rather, pertinent comparisons ture.5 Federal Government is a routine and nor- stage requirements this concern the other mally legitimate part of its business.” 426 obtaining ap- drivers’ licenses—-Are the U.S. 48 L.Ed.2d 478 they plicants enough? pass old Can (1976). they pass driving written test? Can reason, For this Court has driving test? Have violated laws in long recognized power that federal over past, by driving without a license or immigration legitimate constrains a state’s immigration-related while drunk? The clas- classifying in immi- groups interests of justify sification is the one the state must grants differently from one another and stage equal protection analy- at the next of sis, disadvantaging groups then one of the so plain- not the measure of whether the Raich, In at similarly classified. Truax v. 239 U.S. tiffs are otherwise situated with regard obtaining example, to the Court drivers’ licenses. panel opinion point, immigration status differences 5. The makes this basic which stressed briefly. op. goes at It Amended 966-67. then plaintiffs other aliens. between the completeness on for to answer the state's sim- op. Amended at 966-68. terms, ilarly argument situated on its own protection analyses admonished “reasonable classification in the immigration implies legiti- action consistent with the panel’s equal context that protection state, mate interests of the and it will not analysis proffered evaluated the state in- disputed that these cannot be so broad- terests said to rationally justify the denial ly conceived as to into bring hostility them of drivers’ the plaintiffs. licenses to And it to exclusive Federal Truax in- power.” in light rejected this that we any state an equal protection challenge, by volved an justification for the classification in state into lawfully alien admitted the United law that suggested an intent to preclude or to an required Arizona law that discourage plaintiffs from remaining a employers majority certain to hire working though even gov- qualified workers who were electors or ernment allowed them to do so. For the native-born United States citizens. Id. at reason, rejected any justification same we rejected 36 S.Ct. 7. Truax the argu- that turned on immigration status distinc- prioritization ment the state’s of citi- tions with no connection to state-drivers’- justified employment zens for was (such lieense-related concerns as the dis- power state’s “to reasonable make classifi- holding tinction between aliens work au- in to legislating promote cations thorization while in removal proceedings health, morals, safety, and welfare of those recipients holding and DACA work author- jurisdiction,” within its the state because ization in process but not being authority lacked “the deal with that to at removed). op. 968-69, 970, Amended at the legislation which is aimed.” Id. at 972. We then concluded that the remaining 7; Takahashi, see also rationales provided simply are not (noting at S.Ct. 1138 “tenuous- op. reasonable. Amended 968-70. that it power ness state’s claim has short, preeminent federal role in single out to and ban its lawful alien inhab- immigration not only matters thus under- ... itants from vocation following simply lies our ultimate holding, but Congress some put groups because directly equal protection also informs the special classifications in exercise of its analysis. Given the constraints on a state’s wholly distinguishable powers broad and legitimate in classifying groups interests naturalization.”). over could, view, immigrants, my have assuredly authority have States do rejection rested our the challenged Ari- employment, just as regulate have zona statute on a simply rational basis authority regulate the distribution of (without equal protection analysis reaching authority drivers’ licenses. The state lack- question whether more stringent Truax, here, ing authority is the applies). standard review Were it neces- justify discrimination as to areas within sary to reach I question, would have power grounds beyond state held Arizona’s application its drivers’ authority exclusively state because within equal license statute denial of invalid government. the federal protection recipients, to DACA as com- reasons, protection For these equal anal- pared other undocumented individuals laws, ysis regard with Ari- like provide to whom Arizona does drivers’ li- zona’s, that some disadvantage aliens com- op. censes. See Amended at 968-71. pared necessarily incorporates others past equal Dissent brushes these distribution-of-authority concerns that di- concerns, regarding them rectly parallel protection in as an pre- those encountered “excursus,” in analyses. light suggesting and even emption It of this over overlap century between of preemption equal equal protection jurispru-

984 regula- regarding

dence 1915, tions, with Truax beginning State WASHINGTON State n.l, 982 Dissent 980 n.5 overturned. Minnesota, Plaintiffs-Appellees, methodology' careful But panel’s —-a analysis strength of a constitutional of the v. turning challenge, to an alternative before TRUMP, of the Donald J. President definitely deciding that consti- that avoids al., States; et Defendants- United pedi- long one with a question tutional —is Appellants. See, judicial grounded restraint. gree, Davis, 678, 690- e.g., Zadvydas v. No. 17-35105 2491, L.Ed.2d 653 (2001); Corp. v. Fla. Edward J. DeBartolo of Appeals, United States Court Council, Bldg. & Const. Trades Coast Gulf Circuit. Ninth U.S. (1988).6 pan- To L.Ed.2d 645 criticize February Filed vacuum, analysis in a el’s recognition

little the constitutional it, underlying is tanta- avoidance rationale five floors lopping mount to off first building story declaring a ten and then ORDER truncated, is building, that the thus unsta- ble. THOMAS, Judge: Chief Again, fully panel opin I in the concur represented United States addition, view, my as we held in ion. intends to the Court that President preliminary injunction appeal, Executive and has issue new Order Brewer, Dream Act Coalition urged the to “hold consideration Court 2014), dis case until the President issues trict as the for the final court held basis new Order.” has further The United States injunction, Arizona Dream Act Coalition represented it will inform the Court (D. Brewer, F.Supp.3d Ariz. any developments. new 2015), equal protection challenge and, if needed independently valid En banc before this Court proceedings it, justify reach would our conclusion that stayed further of this pending Order Arizona’s denial of drivers’ licenses to Court. cannot stand. Am., Carpenters This & court has observed that DeBartolo United.Bhd. Joiners statutory only holding "[a]fter reached a con- Local Union No. F.3d sidering length, deciding, but not at some arguments.” [constitutional] Overstreet v.

Case Details

Case Name: Arizona Dream Act Coalition v. Janice Brewer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 2, 2017

Citation: 855 F.3d 957

Docket Number: 15-15307

Court Abbreviation: 9th Cir.