Arizona Dream Act Coalition v. Janice Brewer ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA DREAM ACT COALITION; No. 13-16248
JESUS CASTRO-MARTINEZ;
CHRISTIAN JACOBO; ALEJANDRA D.C. No.
LOPEZ; ARIEL MARTINEZ; NATALIA 2:12-cv-02546-
PEREZ-GALLEGOS, DGC
Plaintiffs-Appellants,
v. OPINION
JANICE K. BREWER, Governor of the
State of Arizona, in her official
capacity; JOHN S. HALIKOWSKI,
Director of the Arizona Department
of Transportation, in his official
capacity; STACEY K. STANTON,
Assistant Director of the Motor
Vehicle Division of the Arizona
Department of Transportation, in her
official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
December 3, 2013—Pasadena, California
2 ARIZONA DREAM ACT COALITION V. BREWER
Filed July 7, 2014
Before: Harry Pregerson, Marsha S. Berzon,
and Morgan Christen, Circuit Judges.
Opinion by Judge Pregerson;
Concurrence by Judge Christen
SUMMARY*
Civil Rights
The panel reversed the district court’s denial of a motion
for a preliminary injunction and remanded in an action
challenging an Arizona policy which prohibits recipients of
the federal program called the “Deferred Action for
Childhood Arrivals” from obtaining driver’s licenses by using
Employment Authorization Documents as proof of their
authorized presence in the United States.
The Deferred Action for Childhood Arrivals (DACA)
program authorizes certain immigrants, who came without
permission to the United States as children, to remain in the
United States. The panel stated that although on the current
record, it was unable to resolve whether plaintiffs had
established a likelihood of success on the merits of their
preemption claim, plaintiffs had shown that they were likely
to succeed on the merits of their equal protection claim. The
panel held that even applying a rational basis of review, it
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARIZONA DREAM ACT COALITION V. BREWER 3
could identify no legitimate state interest that was rationally
related to defendants’ decision to treat DACA recipients
disparately from other noncitizens who were permitted to use
their Employment Authorization Documents as proof of their
authorized presence in the United States when applying for
driver’s licenses.
The panel further held that plaintiffs had shown that they
were likely to suffer irreparable harm unless defendants’
policy was enjoined, and that both the balance of equities and
the public interest favored an injunction. The panel remanded
with instructions that the district court enter a preliminary
injunction prohibiting defendants from enforcing any policy
by which the Arizona Department of Transportation refuses
to accept plaintiffs’ Employment Authorization Documents,
issued to plaintiffs under DACA, as proof that plaintiffs are
authorized under federal law to be present in the United
States.
Joining in the majority opinion and concurring as to Part
II.A, Judge Christen stated that she agreed that plaintiffs
demonstrated a likelihood of success on the merits of their
equal protection claim. Judge Christen further agreed that
plaintiffs had shown a likelihood of irreparable injury, and
satisfied the other prerequisites for injunctive relief. She
wrote separately to express her view that plaintiffs had also
demonstrated a likelihood of success on their preemption
claim because Arizona’s policy regulates immigration by
creating a new classification of alien status.
4 ARIZONA DREAM ACT COALITION V. BREWER
COUNSEL
Victor Viramontes (argued) and Jorge M. Castillo, Mexican
American Legal Defense and Educational Fund, Los Angeles,
California; Jennifer Chang Newell, Cecillia D. Wang, Araceli
Martínez, Michael Tan, and R. Orion Danjuma, American
Civil Liberties Union Foundation Immigrants’ Rights Project,
San Francisco, California; Linton Joaquin, Karen C. Tumlin,
Shiu-Ming Cheer, Nora A. Preciado, and Nicholás Espíritu,
National Immigration Law Center, Los Angeles, California;
Daniel J. Pochoda, Kelly J. Flood, and James Duff Lyall,
ACLU Foundation of Arizona, Phoenix, Arizona, for
Plaintiffs-Appellants.
Timothy Berg (argued), Douglas C. Northup, and Sean T.
Hood, Fennemore Craig, P.C., Phoenix, Arizona; Joseph
Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix,
Arizona, for Defendants-Appellees.
Lawrence J. Joseph, Washington, D.C., for Amicus Curiae
Eagle Forum Education & Legal Defense Fund.
OPINION
PREGERSON, Circuit Judge:
The federal government has enacted a program called
“Deferred Action for Childhood Arrivals” (“DACA”), which
authorizes certain immigrants who came to the United States
as children, without permission, to remain in the United
States. In response, Arizona officials — Defendants here —
implemented a policy that prevents DACA recipients from
obtaining Arizona driver’s licenses.
ARIZONA DREAM ACT COALITION V. BREWER 5
Plaintiffs — five individual DACA recipients living in
Arizona, plus an organization promoting the interests of
young immigrants — sought a preliminary injunction
prohibiting Defendants from enforcing their policy, arguing
that the policy violates the Equal Protection Clause and is
preempted. The district court found that Defendants’ policy
deprives Plaintiffs of driver’s licenses for no rational reason,
and thus violates the Equal Protection Clause. The district
court nonetheless denied the preliminary injunction, because
it found Plaintiffs were not likely to suffer irreparable harm
from this constitutional violation.
We agree that Plaintiffs have demonstrated a likelihood
of success on the merits of their equal protection claim. And
contrary to the district court’s conclusion, we hold that
Plaintiffs are likely to suffer irreparable harm unless
Defendants’ policy is enjoined. The remaining injunction
factors — the public interest and the balance of the equities
— also tip in Plaintiffs’ favor. We therefore reverse the
district court’s denial of a preliminary injunction. We
remand for entry of a preliminary injunction prohibiting
Defendants from enforcing its policy by which the Arizona
Department of Transportation refuses to accept Plaintiffs’
Employment Authorization Documents, issued to Plaintiffs
under DACA, for purposes of obtaining an Arizona driver’s
license.
BACKGROUND
Deferred Action for Childhood Arrivals
Many immigrants come to the United States as children,
without permission, and subsequently remain in this country
as they mature into adults. The Secretary of Homeland
6 ARIZONA DREAM ACT COALITION V. BREWER
Security has determined that our nation’s immigration laws
were not designed “to remove productive young people to
countries where they may not have lived or even speak the
language” — particularly when “many of these young people
have already contributed to our country in significant ways.”
Memorandum from Janet Napolitano, Sec’y of Homeland
Sec., on Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children (June
15, 2012). On June 15, 2012, the Secretary announced that
her Department would begin exercising prosecutorial
discretion in immigration cases involving these young people.
Specifically, the Department of Homeland Security (DHS)
would offer “certain young people who were brought to this
country as children and know only this country as home” a
form of deferred action, which would allow them to remain
present in the United States without fear of removal. This
policy came to be known as “Deferred Action for Childhood
Arrivals,” or “DACA.”
To be eligible for DACA, immigrants must have come to
the United States before the age of sixteen and have been
under thirty-one years old as of June 15, 2012; they must
have been living in the United States when DACA was
announced and have continuously resided in the United States
for at least the previous five years; and they must have
graduated from high school, or obtained a GED, or have been
honorably discharged from the United States Armed Forces
or the Coast Guard, or be currently enrolled in school.
Additionally, they must not pose any threat to public safety:
anyone who has been convicted of multiple misdemeanors, a
single significant misdemeanor, or any felony offense is
ineligible for DACA.
ARIZONA DREAM ACT COALITION V. BREWER 7
Like recipients of other forms of deferred action, DACA
recipients enjoy no formal immigration status. Nevertheless,
DACA recipients are permitted by DHS to remain in the
United States for a renewable two-year period. DHS
considers DACA recipients not to be unlawfully present in
the United States because their deferred action is a period of
stay authorized by the Attorney General. See 8 U.S.C.
§ 1182(a)(9)(B)(ii); 8 C.F.R. 214.14(d)(3); U.S. Immigration
and Naturalization Servs., Adjudicator’s Field Manual Ch.
40.9.2(b)(3)(J). DACA recipients are also eligible to receive
Employment Authorization Documents, allowing them to
work in the United States. Indeed, would-be DACA
recipients are required to apply for employment authorization
when they apply for DACA.
Arizona Law and Defendants’ Policy
Arizona law prohibits the Arizona Department of
Transportation from issuing driver’s licenses to anyone “who
does not submit proof satisfactory to the department that the
applicant’s presence in the United States is authorized under
federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D). Arizona
does not further define “presence . . . authorized under federal
law,” except through an Arizona Department of
Transportation policy listing the documents it accepts as
establishing authorized presence. Ariz. Dep’t of Transp.
Policy 16.1.2. Until August 2012, that policy listed all
Employment Authorization Documents issued by the federal
government as sufficient to establish “that the applicant’s
presence in the United States is authorized under federal law”
within the meaning of this Arizona statute.
On August 15, 2012 — the same day the federal
government’s DACA policy took effect — Arizona Governor
8 ARIZONA DREAM ACT COALITION V. BREWER
Janice Brewer issued an executive order. Executive Order
2012-06, “Re-Affirming Intent of Arizona Law In Response
to the Federal Government’s Deferred Action Program,”
(Aug. 15, 2012). The executive order warned that, under
DACA, the federal government “plan[ned] to issue
employment authorization documents to certain unlawfully
present aliens . . . .” The order directed state agencies to
prevent DACA recipients from becoming eligible for any
“state identification, including a driver’s license.” Governor
Brewer later explained that her executive order was designed
to ensure that there would be “no driver licenses for illegal
people.” In Governor Brewer’s words, DACA recipients “are
here illegally and unlawfully in the state of Arizona . . . . The
Obama amnesty plan doesn’t make them legally here.”
Pursuant to Governor Brewer’s executive order, the
Arizona Department of Transportation’s Motor Vehicle
Division revised its relevant policy to ensure that DACA
recipients would not become eligible for Arizona driver’s
licenses. Specifically, the Motor Vehicle Division announced
that it would not accept Employment Authorization
Documents issued to DACA recipients — identified by the
category code (c)(33) — as proof “that the applicant’s
presence in the United States is authorized under federal
law,” pursuant to Ariz. Rev. Stat. Ann. § 28-3153(D). At the
time, the Motor Vehicle Division continued to accept all other
federally issued Employment Authorization Documents as
proof of lawful presence.
The Present Case
Plaintiffs are five individual DACA recipients (all of
whom reside in Arizona) and the Arizona DREAM Act
Coalition, an organization that seeks to promote the interests
ARIZONA DREAM ACT COALITION V. BREWER 9
of young immigrants. All five individual Plaintiffs possess
Employment Authorization Documents issued under DACA.
Thus, all five individual Plaintiffs are prevented from
obtaining Arizona driver’s licenses under Defendants’ policy.
Together, Defendants are responsible for implementing
and enforcing the policy by which Plaintiffs are unable to
obtain Arizona driver’s licenses. Plaintiffs sued Defendants
in the U.S. District Court for the District of Arizona.
Plaintiffs alleged that Defendants’ policy violates the Equal
Protection Clause and the Supremacy Clause of the U.S.
Constitution, and sought (inter alia) a preliminary injunction
prohibiting defendants from enforcing their policy.
The district court denied Plaintiffs’ motion for a
preliminary injunction. The district court agreed that
Plaintiffs had established a likelihood of success on their
equal protection claim, but it concluded that Plaintiffs had not
shown a likelihood of irreparable harm. The district court
also concluded that Plaintiffs had not shown a likelihood of
success on their preemption claim, and that neither the public
interest nor the balance of the equities strongly favored either
side. Plaintiffs appealed.
Revision of Defendants’ Policy
While Plaintiffs’ appeal was pending, Defendants revised
their policy. Under Defendants’ revised policy, the Motor
Vehicle Division still refuses to accept Employment
Authorization Documents with category code (c)(33) — i.e.,
Employment Authorization Documents issued under DACA
— as proof of authorized presence. Now, however, the
Motor Vehicle Division also refuses to accept Employment
Authorization Documents with category codes (c)(14) (issued
10 ARIZONA DREAM ACT COALITION V. BREWER
to recipients of other forms of deferred action, see 8 C.F.R.
§ 274a.12(c)(14)) and (a)(11) (issued to recipients of deferred
enforced departure, see 8 C.F.R. § 274a.12(a)(11)).
Defendants contend that, as revised, their policy does not
violate the Equal Protection Clause.
JURISDICTION
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
STANDARD OF REVIEW
We review the district court’s denial of a preliminary
injunction for abuse of discretion. Sw. Voter Registration
Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)
(en banc). “A court abuses its discretion when it applies an
incorrect legal rule or relies upon a factual finding that is
illogical, implausible, or without support in inference that
may be drawn from the record.” Valle del Sol Inc. v. Whiting,
732 F.3d 1006, 1014 (9th Cir. 2013) (internal quotation marks
and alterations omitted).
DISCUSSION
“A plaintiff seeking a preliminary injunction must
establish that he [or she] is likely to succeed on the merits,
that he [or she] is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his [or her] favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). Plaintiffs here have made all four of these
showings.
ARIZONA DREAM ACT COALITION V. BREWER 11
Before we discuss the Winter factors, however, we must
decide whether Plaintiffs’ requested injunction is mandatory
or prohibitory.
I. Type of Injunction Sought
Defendants argue that Plaintiffs’ requested injunction is
mandatory, and thus subject to a heightened burden of proof.
Defendants are mistaken.
“A mandatory injunction orders a responsible party to
take action,” while “[a] prohibitory injunction prohibits a
party from taking action and preserves the status quo pending
a determination of the action on the merits.” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d
873, 878–79 (9th Cir. 2009) (internal quotation marks and
alteration omitted). The relevant status quo is that “between
the parties pending a resolution of a case on the merits.”
McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.
2012). As this language from McCormack suggests, the
“status quo” refers to the legally relevant relationship
between the parties before the controversy arose. See id. at
1020.
Here, Plaintiffs contest the enforceability of Defendants’
new policy. The status quo before Defendants’ revised their
policy in response to DACA was that Plaintiffs were subject
to a legal regime under which all holders of federal
Employment Authorization Documents were eligible for
Arizona driver’s licenses. By revising their policy in
response to DACA, Defendants affirmatively changed this
status quo.
12 ARIZONA DREAM ACT COALITION V. BREWER
The district court erred in defining the status quo ante
litem as a situation in which “Defendants did not issue
driver’s licenses to Plaintiffs.” Plaintiffs do not challenge
any particular refusal to grant driver’s licenses to them as
individuals. Instead, Plaintiffs challenge the Arizona
Department of Transportation’s driver’s license eligibility
standards, in general. The result of an injunction here may be
that, under state law, Arizona will ultimately provide driver’s
licenses to DACA recipients. But an injunction will not
“order[]” Defendants to take this step. See Marlyn
Nutraceuticals, 571 F.3d at 879.
Likewise, it does not matter that DACA recipients only
became eligible for Employment Authorization Documents
pursuant to a new federal policy, or that Defendants timed
their new policy to come into effect before Plaintiffs could
obtain Employment Authorization Documents. An action by
a third party (here, the federal government) that will not be
affected by this litigation cannot define the status quo
between the parties.
Plaintiffs’ requested preliminary injunction is not
mandatory. Instead, like other injunctions that prohibit
enforcement of a new law or policy, Plaintiffs’ requested
injunction is prohibitory. See, e.g., Bay Area Addiction
Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725,
727–30, 732 n.13 (9th Cir. 1999).
II. Likelihood of Success on the Merits
A. Preemption Claim
“A fundamental principle of the Constitution is that
Congress has the power to preempt state law.” Crosby v.
ARIZONA DREAM ACT COALITION V. BREWER 13
Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)
(citing, inter alia, U.S. Const., art. VI, cl. 2; Gibbons v.
Ogden, 9 Wheat. 1 (1824)). Under this principle, “state law
is naturally preempted to the extent of any conflict with a
federal statute.” Id. State law is conflict-preempted when it
is impossible to comply with both state law and federal law.
See, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142–43 (1963). Additionally, even if it is
possible to comply with both state and federal law, state law
is conflict-preempted whenever it “stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.” Arizona v. United States, 132 S. Ct.
2492, 2501 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52,
67 (1941)).
Plaintiffs argue that Defendants’ policy is conflict-
preempted because it interferes with Congress’s intent that
the Executive Branch possess discretion to determine when
noncitizens may work in the United States. While we are
unable to resolve this issue conclusively on the record now
before us, we agree that Plaintiffs’ conflict-preemption theory
is plausible.
Congress has given the Executive Branch broad discretion
to determine when noncitizens may work in the United
States.1 See, e.g., 8 U.S.C. § 1324a(h)(3) (defining
“unauthorized alien,” for employment purposes, as an alien
who is neither a lawful permanent resident nor “authorized to
be . . . employed by this chapter or by the Attorney General”);
8 U.S.C. § 1324a(h)(1) (providing that Attorney General is
1
Conversely, determining when noncitizens may work is not within the
states’ traditional police power. See Truax v. Raich, 239 U.S. 33, 42
(1915).
14 ARIZONA DREAM ACT COALITION V. BREWER
responsible for certifying aliens’ right to work in the United
States); 8 U.S.C. § 1324a(b)(1)(C)(ii) (providing that a
document is valid as evidence of employment authorization
if “the Attorney General finds [it], by regulation, to be
acceptable” for that purpose); see also 8 U.S.C. § 1103(g)(2)
(authorizing Attorney General to “perform such other acts as
the Attorney General determines to be necessary” to enforce
the nation’s immigration laws); 8 C.F.R. § 274a.12
(establishing classes of noncitizens authorized to work in the
United States). Exercising this discretion, the Executive
Branch has determined that deferred action recipients —
including DACA recipients — are ordinarily authorized to
work in the United States. 8 C.F.R. § 274a.12(c)(14). In fact,
DACA recipients are required to apply for employment
authorization, in keeping with the Executive’s intention that
DACA recipients remain “productive” members of society.
Plaintiffs’ conflict preemption argument is that although
Congress has given the Executive discretion to determine
when noncitizens may work in the United States, and the
Executive has determined that DACA recipients may —
indeed, should — work in the United States, Defendants’
policy obstructs many DACA recipients’ ability to work in
Arizona. By ensuring that DACA recipients are unable to
drive, Plaintiffs maintain, Defendants’ policy severely
curtails DACA recipients’ ability to work.
As a practical matter, the ability to drive may be a virtual
necessity for people who want to work in Arizona. The
record shows that more than eighty-seven percent of
Arizona’s workforce commutes to work by car. (By contrast,
only about two percent of Arizonans commute to work using
public transportation.) Indeed, with one exception, the
individual Plaintiffs in this case — like the vast majority of
ARIZONA DREAM ACT COALITION V. BREWER 15
working Arizonans — rely on cars in commuting to work.2
And beyond the need for transportation, the link between
driver’s licenses and the ability to work is heightened by the
fact that some jobs — including jobs for which two Plaintiffs
wished to apply — require driver’s licenses as a condition of
hire. If Plaintiffs can ultimately show adequate proof of the
link between driver’s licenses and the ability to work in
Arizona, we agree that Defendants’ policy would be conflict-
preempted.
It does not matter that Defendants’ policy does not
formally prohibit DACA recipients from working.
“[P]reemption analysis must contemplate the practical result
of the state law, not just the means that a state utilizes to
accomplish the goal.” United States v. Alabama, 691 F.3d
1269, 1296 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022(2013). In considering whether a state law is conflict-
preempted, “we ‘consider the relationship between state and
federal laws as they are interpreted and applied, not merely as
they are written.’” Ting v. AT&T, 319 F.3d 1126, 1137 (9th
Cir. 2003) (quoting Jones v. Rath Packing Co., 430 U.S. 519,
526 (1977)). If the practical result of the application of
Defendants’ policy is that DACA recipients in Arizona are
generally obstructed from working — despite the Executive’s
determination, backed by a delegation of Congressional
authority, that DACA recipients throughout the United States
may work — then Defendants’ policy is preempted.
2
One Plaintiff does not commute to work by car only because she does
not work at all: her lack of a driver’s license prevents her from pursuing
employment. Another Plaintiff is compelled to spend four hours each day
commuting via public transportation because he is unable to obtain a
driver’s license. Previously, this same Plaintiff relied on a third party to
drive him to and from work each day. The remaining three individual
Plaintiffs all commute to work by car.
16 ARIZONA DREAM ACT COALITION V. BREWER
Likewise, it does not matter that DACA recipients in
Arizona may drive to work illegally, without possessing valid
Arizona driver’s licenses. “[P]re-emption cases ordinarily
assume compliance with the state-law duty in question.”
Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 882
(2000) (emphasis omitted). State law is preempted whenever
its application would frustrate the objectives and purposes of
Congress, even if the state law’s own application is frustrated
by individuals’ noncompliance.
If, on the merits, Plaintiffs submit adequate proof that
Defendants’ policy interferes with the DHS Secretary’s
directive that DACA recipients be permitted (and, indeed,
encouraged) to work, they will, in turn, show that
Defendants’ policy interferes with Congress’s intention that
the Executive determine when noncitizens may work in the
United States. In this way, Defendants’ policy would “stand[
] as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Arizona, 132 S.
Ct. at 2501.
We need not rely on Plaintiffs’ preemption claim,
however, in determining whether Plaintiffs have established
a likelihood of success on the merits of their challenge to
Defendants’ policy. As we next explain — and as the district
court held — Plaintiffs have established a likelihood of
success on the merits of their Equal Protection Clause claim.3
3
We need not, and do not, reach Plaintiffs’ other preemption arguments
at this preliminary stage in the litigation. The fact that we do not reach
Plaintiffs’ other preemption arguments, however, does not mean that
Judges Pregerson and Berzon disagree with Judge Christen’s thoughtful
and persuasive concurrence. On the contrary, for the reasons Judge
Christen notes, see Concurring Opinion at 35 n.7, Plaintiffs may well
succeed on their argument that Defendants’ policy is conflict-preempted
ARIZONA DREAM ACT COALITION V. BREWER 17
As we also conclude that the other requisites for injunctive
relief are met, we must reverse the district court’s denial of a
preliminary injunction whether or not the record on Plaintiffs’
work authorization conflict preemption theory is now
adequate to establish a likelihood of success on that theory.
B. Equal Protection Claim
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing
Plyler v. Doe, 457 U.S. 202, 216 (1982)). Plaintiffs may
prevail on their equal protection claim by showing “that a
class that is similarly situated has been treated disparately.”
Christian Gospel Church, Inc. v. City and Cnty. of San
Francisco, 896 F.2d 1221, 1225 (9th Cir. 1990).
“The first step in equal protection analysis is to identify
the state’s classification of groups.” Country Classic Dairies,
Inc. v. Milk Control Bureau, 847 F.2d 593, 596 (9th Cir.
1988). “The groups must be comprised of similarly situated
persons so that the factor motivating the alleged
discrimination can be identified.” Thornton v. City of St.
Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). The groups
in that it conflicts with the federal understanding that DACA recipients
enjoy “authorized” presence in the United States. Additionally, Judges
Pregerson and Berzon might well agree with Judge Christen’s insightful
field preemption analysis, if Judges Pregerson and Berzon were convinced
that Plaintiffs had raised this variety of preemption argument as a ground
for preliminary relief.
18 ARIZONA DREAM ACT COALITION V. BREWER
need not be similar in all respects, but they must be similar in
those respects relevant to the Defendants’ policy. See
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
We agree with the district court that DACA recipients are
similarly situated to other categories of noncitizens who may
use Employment Authorization Documents to obtain driver’s
licenses in Arizona. Even under Defendants’ revised policy,
Arizona issues driver’s licenses to noncitizens holding
Employment Authorization Documents with category codes
(c)(9) and (c)(10). These (c)(9) and (c)(10) Employment
Authorization Documents are issued to noncitizens who have
applied for adjustment of status and cancellation of removal,
respectively. See 8 C.F.R. § 274a.12(c)(9)–(10). As the
district court held, these noncitizens are likely similarly
situated to DACA recipients.
Defendants look to the statutory and regulatory
availability of immigration relief for the (c)(9) and (c)(10)
groups as a point of distinction. But individuals with (c)(10)
employment authorization, for example, are not in the United
States pursuant to any statutory provision while their
applications are pending. With regard to adjustment of status,
we have noted that “the submission of an application does not
connote that the alien’s immigration status has changed, as
the very real possibility exists that the INS will deny the
alien’s application altogether.” Vasquez de Alcantar v.
Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (quoting United
States v. Elrawy, 448 F.3d 309, 313 (5th Cir. 2006)).
In sum, like DACA recipients, many noncitizens who
have applied for adjustment of status and cancellation of
removal possess no formal lawful immigration status, and
may never obtain any. See Guevara v. Holder, 649 F.3d
ARIZONA DREAM ACT COALITION V. BREWER 19
1086, 1095 (9th Cir. 2011). Like DACA recipients,
noncitizens who have applied for adjustment of status and
cancellation of removal often have little hope of obtaining
formal immigration status in the foreseeable future. Indeed,
those with (c)(10) documents are already in removal
proceedings, while many DACA recipients are not —
suggesting that individuals in the (c)(10) category are more,
not less, likely to be removed in the near future than are
DACA recipients. In the relevant respects, then, noncitizens
with (c)(9) and (c)(10) employment authorization documents
are similarly situated to DACA recipients.
Unlike DACA recipients, however, noncitizens holding
(c)(9) and (c)(10) Employment Authorization Documents
may use those documents when applying for Arizona driver’s
licenses to prove — to the satisfaction of the Arizona
Department of Transportation — that their presence in the
United States is authorized under federal law. As the district
court found, these two groups of noncitizens account for more
than sixty-six percent of applicants who obtained Arizona
driver’s licenses using Employment Authorization
Documents during the past seven years. Although DACA
recipients are similarly situated to noncitizens holding (c)(9)
and (c)(10) Employment Authorization Documents, they have
been treated disparately.
Having concluded that Defendants’ revised policy targets
DACA recipients for disparate treatment, as compared to
other persons who are similarly situated, we would ordinarily
determine which standard of scrutiny to apply to Defendants’
policy. See, e.g., Country Classic Dairies, 847 F.2d at 596.
Here, however, we need not decide what standard of scrutiny
applies to Defendants’ policy: as the district court concluded,
20 ARIZONA DREAM ACT COALITION V. BREWER
Defendants’ policy is likely to fail even rational basis
review.4
To survive rational basis review, Defendants’ disparate
treatment of DACA recipients must be “rationally related to
a legitimate state interest.” City of Cleburne, 473 U.S. at 440.
Even considering the revisions to Defendants’ policy, we can
identify no legitimate state interest that is rationally related to
Defendants’ decision to treat DACA recipients disparately
from noncitizens holding (c)(9) and (c)(10) Employment
Authorization Documents. Defendants suggest that it is
rational to accept (c)(9) and (c)(10) Employment
Authorization Documents as proof that the holder’s “presence
. . . is authorized under federal law,” Ariz. Rev. Stat. Ann.
§ 28-3153(D), because persons with (c)(9) and (c)(10)
documents “[are] on a path to lawful status,” while DACA
recipients are not. As an initial matter, we are unconvinced
that Defendants have defined “a path to lawful status” in a
meaningful way. After all, noncitizens’ applications for
adjustment of status or cancellation of removal are often
denied, so the supposed “path” may lead to a dead end. But
even if we were to accept the premise of Defendants’
argument, we would still reject the conclusion. Defendants’
policy must be rationally related to a legitimate state interest
in treating noncitizens holding (c)(9) and (c)(10) Employment
4
Though we need not decide what standard of scrutiny to apply here, we
note that the Supreme Court has consistently required the application of
strict scrutiny to state action that discriminates against noncitizens
authorized to be present in the United States. See Nyquist v. Mauclet,
432 U.S. 1 (1977); Graham v. Richardson, 403 U.S. 365 (1971);
Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948). Conversely,
alienage-based discrimination is subject to rational basis review only when
the aliens targeted by that discrimination are “presen[t] in this country in
violation of federal law.” Plyler v. Doe, 457 U.S. 202, 223 (1982).
ARIZONA DREAM ACT COALITION V. BREWER 21
Authorization Documents as authorized to be present in the
United States under federal law, while refusing to so treat
Plaintiffs.
We discern no rational relationship between Defendants’
policy and a legitimate state interest. Instead, in purporting
to distinguish between these categories, Arizona assumes for
itself the federal prerogative of classifying noncitizens —
despite the fact that “[t]he States enjoy no power with respect
to the classification of aliens.” Plyler, 457 U.S. at 225.
Unless there is some basis in federal law for viewing
(c)(9) and (c)(10) Employment Authorization recipients as
having federally authorized presence that DACA recipients
lack, Arizona’s attempt at rationalizing this discrimination
fails. See id. We can see no such basis: we see no reason
why Employment Authorization Documents held by (c)(9)
and (c)(10) noncitizens demonstrate federally authorized
presence, while DACA recipients’ Employment
Authorization Documents do not. Defendants assert that
“unlike deferred action recipients, [Employment
Authorization Document] holders with all other codes either
have lawful status, are on a path to lawful status, or have an
[Employment Authorization Document] that is tied to relief
provided for under the [Immigration and Nationality Act].”
But Employment Authorization Documents merely “tied” to
the potential for relief do not indicate that the document
holder has current federally authorized presence, as Arizona
law expressly requires. Ariz. Rev. Stat. Ann. § 28-3153(D).
Nor is it apparent why, if Employment Authorization
Documents held by (c)(9) and (c)(10) noncitizens do establish
that their bearers are currently authorized to be present in the
United States, the same is not true of Plaintiffs’ Employment
22 ARIZONA DREAM ACT COALITION V. BREWER
Authorization Documents. Until (c)(9) and (c)(10)
noncitizens receive the relief that they have applied for, they
are authorized to be present in the United States in the same
sense that DACA recipients are authorized to be here: in both
cases, the federal government has allowed noncitizens to
remain in the United States, has pledged not to remove them
during the designated period, and has authorized them to
work in this country. Defendants’ “enjoy no power with
respect to the classification of aliens,” Plyler, 457 U.S. at
225, so their attempt to distinguish between these noncitizens
on the basis of an immigration classification that has no basis
in federal law is not likely to withstand equal protection
scrutiny.
Defendants advance four other justifications for their
policy, all of which were also raised in — and rejected by —
the district court. These additional justifications purport to
rely on Defendants’ judgment as to the wisdom of granting
driver’s licenses to DACA recipients, to explain Defendants’
differential treatment of otherwise equivalent federal
immigration classifications.
We agree with the district court that Defendants’ other
justifications for their policy are unlikely to survive rational
basis review. The granting or withholding of driver’s licenses
is tangential to the classification before us. Defendants’
“rel[iance] on a classification” — the classification of DACA
recipients as federally unauthorized and noncitizens with
(c)(9) and (c)(10) Employment Authorization Documents as
federally authorized — “whose relationship to an asserted
goal” — limiting access to driver’s licenses — “is so
attenuated as to render the distinction arbitrary or irrational,”
is not likely to withstand rational basis review. City of
Cleburne, 473 U.S. at 446.
ARIZONA DREAM ACT COALITION V. BREWER 23
First, Defendants suggest that issuing driver’s licenses to
DACA recipients might expose the Arizona Department of
Transportation to legal liability “for issuing driver’s licenses
to 80,000 unauthorized immigrants.” As the district court
noted, however, “this concern has not been borne out by the
numbers”: as of February 14, 2013, only 14,938 Arizona
residents had applied for DACA. (Meanwhile, between 2005
and 2012, Arizona issued approximately 47,500 driver’s
licenses to holders of non-DACA Employment Authorization
Documents.) Also, as the district court noted, Defendants are
unable to identify instances in which the Arizona Department
of Transportation has faced liability for issuing licenses to
noncitizens not authorized to be present in the United States.
Second, Defendants suggest that issuing driver’s licenses
to DACA recipients might allow DACA recipients to access
state and federal benefits to which they are not entitled. As
the district court observed, however, Defendant Halikowski
(Director of the Arizona Department of Transportation) and
Defendant Stanton (Assistant Director for the Motor Vehicle
Division) testified that they had no basis whatsoever for
believing that a driver’s license alone could be used to
establish eligibility for such benefits. It follows that
Defendants have no rational basis for any such belief.
Third, Defendants suggest that the DACA program might
be canceled, requiring Arizona to revoke DACA recipients’
driver’s licenses.5 If anything, however, it is less likely that
5
In the same vein, Defendants argue for the first time on appeal that
their policy avoids “unduly burdening [the Arizona Department of
Transportation] with processing an extremely large number of license
applications from groups that are not lawfully authorized to be in the
United States . . . .” As noted, the numbers do not bear out this fear,
24 ARIZONA DREAM ACT COALITION V. BREWER
Arizona will need to revoke DACA recipients’ driver’s
licenses, compared to driver’s licenses issued to noncitizens
holding (c)(9) and (c)(10) Employment Authorization
Documents. While Defendants’ concern for DACA’s
longevity is purely speculative, applications for adjustment of
status or cancellation of removal are routinely denied.
Fourth, Defendants suggest that DACA recipients may
have their authorized presence revoked at any time, and
thereafter may be quickly removed from the United States,
leaving those they may have injured in automobile accidents
with no financial recourse. Here too, however, Defendants’
professed concern applies with equal force to noncitizens
holding (c)(9) and (c)(10) Employment Authorization
Documents. Noncitizens who have applied for adjustment of
status or cancellation of removal may find their applications
denied at any time, and thereafter may be quickly removed
from the United States, leaving those they may have injured
in automobile accidents with no financial recourse.
Nevertheless, Defendants’ policy allows noncitizens holding
(c)(9) and (c)(10) Employment Authorization Documents to
obtain driver’s licenses, while prohibiting DACA recipients
from doing the same.6
especially when compared to the non-DACA holders of Employment
Authorization Documents who have received licenses.
6
Indeed, Defendants’ professed concern applies to practically every
driver that Arizona now licenses. Any driver — regardless of his or her
citizenship or immigration status — could flee Arizona after an
automobile accident, in an effort to avoid financial responsibility for that
accident.
To mitigate this risk, Arizona already requires every driver to carry
proof of financial responsibility, such as car insurance. See Ariz. Rev.
ARIZONA DREAM ACT COALITION V. BREWER 25
The record does suggest one additional reason for
Defendants’ policy, but that reason does not establish that
Defendants’ classification of DACA recipients is rationally
related to a legitimate state interest. Defendants’ policy
appears intended to express animus toward DACA recipients
themselves, in part because of the federal government’s
policy toward them. Such animus, however, is not a
legitimate state interest. “If the constitutional conception of
‘equal protection of the laws’ means anything, it must at the
very least mean that a bare desire to harm a politically
unpopular group cannot constitute a legitimate governmental
interest.” Romer v. Evans, 517 U.S. 620, 634 (1996)
(alterations and ellipsis omitted; emphasis in original).
In short, we agree with the district court that Plaintiffs
demonstrated a likelihood of success on their equal protection
claim. The subsequent revision of Defendants’ policy does
not undermine this conclusion. The current policy continues
to permit the use of Employment Authorization Documents
as proof of authorized presence for two sizeable groups of
noncitizens similarly situated to DACA recipients. The
district court relied, in part, on that comparison in concluding
that the Defendants’ policy likely violates the Equal
Protection Clause. We agree that comparison remains apt,
the partial change in policy notwithstanding.
In short, Defendants’ policy remains likely to violate the
Equal Protection Clause.
Stat. Ann. § 28-4135. In light of this financial responsibility requirement,
we are skeptical of Defendants’ suggestion that DACA recipients’
removal would leave accident victims without financial recourse.
26 ARIZONA DREAM ACT COALITION V. BREWER
III. Likelihood of Irreparable Harm
Plaintiffs have also shown that, in the absence of a
preliminary injunction, they are likely to suffer irreparable
harm.
Irreparable harm is traditionally defined as harm for
which there is no adequate legal remedy, such as an award of
damages. See Rent-A-Ctr., Inc. v. Canyon Television &
Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
Because intangible injuries generally lack an adequate legal
remedy, “intangible injuries [may] qualify as irreparable
harm.” Id.Plaintiffs in this case have produced ample evidence that
Defendants’ policy causes them to suffer irreparable harm.
In particular, Plaintiffs’ inability to obtain driver’s licenses
likely causes them irreparable harm by limiting their
professional opportunities. Plaintiffs’ ability to drive is
integral to their ability to work — after all, eighty-seven
percent of Arizona workers commute to work by car. It is
unsurprising, then, that Plaintiffs’ inability to obtain driver’s
licenses has hurt their ability to advance their careers.
Plaintiffs’ lack of driver’s licenses has prevented them from
applying for desirable entry-level jobs, and from remaining
in good jobs where they faced possible promotion. Likewise,
one Plaintiff — who owns his own business — has been
unable to expand his business to new customers who do not
live near his home. Plaintiffs’ lack of driver’s licenses has,
in short, diminished their opportunity to pursue their chosen
professions. This “loss of opportunity to pursue [Plaintiffs’]
chosen profession[s]” constitutes irreparable harm. Enyart v.
Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165
ARIZONA DREAM ACT COALITION V. BREWER 27
(9th Cir. 2011); see also Chalk v. U.S. Dist. Ct., 840 F.2d 701,
709–10 (9th Cir. 1988).
The irreparable nature of Plaintiffs’ injury is heightened
by Plaintiffs’ young age and fragile socioeconomic position.
Setbacks early in their careers are likely to haunt Plaintiffs for
the rest of their lives. Thus, “a delay, even if only a few
months, pending trial represents . . . productive time
irretrievably lost” to these young Plaintiffs. Chalk, 840 F.2d
at 710. Plaintiffs’ entire careers may be constrained by
professional opportunities they are denied today.
We are unpersuaded by Defendants’ argument that
Plaintiffs’ ability to drive illegally means they cannot suffer
harm from their inability to obtain driver’s licenses. Laws are
not irrelevant simply because they may be disobeyed. There
can be no serious dispute that Defendants’ policy hinders
Plaintiffs’ ability to drive, and that this (in turn) hinders
Plaintiffs’ ability to work and engage in other everyday
activities.
No award of damages can compensate Plaintiffs’ for the
myriad personal and professional harms caused by their
inability to obtain driver’s licenses. Thus, Plaintiffs are likely
to suffer irreparable harm in the absence of an injunction.
In arriving at a contrary conclusion, the district court
applied the wrong legal standard. The district court required
Plaintiffs to show that the harm they suffered in the absence
of an injunction was “extreme or very serious,” and not
merely that this harm was irreparable. The district court
required this “extreme” level of harm because it incorrectly
believed Plaintiffs’ requested injunction was mandatory.
Plaintiffs’ requested injunction is, in fact, prohibitory. See
28 ARIZONA DREAM ACT COALITION V. BREWER
supra, Part I. In this light, the district court erred by
attempting to evaluate the severity of the harm to Plaintiffs,
rather than simply determining whether the harm to Plaintiffs
was irreparable.
When the correct legal standard is applied, the record
makes clear that Plaintiffs are likely to suffer irreparable
harm unless Defendants’ policy is enjoined.
IV. Other Injunction Factors
Finally, by establishing a likelihood that Defendants’
policy violates the U.S. Constitution, Plaintiffs have also
established that both the public interest and the balance of the
equities favor a preliminary injunction. “[I]t is clear that it
would not be equitable or in the public’s interest to allow the
state . . . to violate the requirements of federal law, especially
when there are no adequate remedies available.” Valle del
Sol, 732 F.3d at 1029 (alteration and ellipsis in original). On
the contrary, the public interest and the balance of the equities
favor “prevent[ing] the violation of a party’s constitutional
rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2012).
CONCLUSION
Plaintiffs have shown that they are likely to succeed on
the merits of their equal protection claim, that they are likely
to suffer irreparable harm unless Defendants’ policy is
enjoined, and that both the balance of the equities and the
public interest favor an injunction. Thus, we REVERSE the
district court’s denial of a preliminary injunction. We
REMAND with instructions to enter a preliminary injunction
prohibiting Defendants from enforcing any policy by which
ARIZONA DREAM ACT COALITION V. BREWER 29
the Arizona Department of Transportation refuses to accept
Plaintiffs’ Employment Authorization Documents, issued to
Plaintiffs under DACA, as proof that Plaintiffs are authorized
under federal law to be present in the United States.
REVERSED and REMANDED.
CHRISTEN, Circuit Judge, joining the majority opinion and
concurring as to Part II.A:
For the reasons explained in Judge Pregerson’s opinion,
I agree plaintiffs have demonstrated a likelihood of success
on the merits of their equal protection claim. I further agree
they have shown a likelihood of irreparable injury, and have
satisfied the other prerequisites for injunctive relief. I write
separately to express my view that plaintiffs have also
demonstrated a likelihood of success on their preemption
claim because Arizona’s policy regulates immigration by
creating a new classification of alien status. Arizona
prohibits the issuance of driver’s licenses to anyone who does
not submit proof that his or her presence in the United States
is “authorized under federal law,” yet Arizona’s newly-
crafted definition of “authorized presence” is unmoored from
and unsupported by federal law. When it adopted its new
policy regarding driver’s license eligibility, Arizona did not
merely borrow a federal immigration classification; it created
a new one. By doing so, Arizona ventured into an area—the
creation of immigration classifications—that is the exclusive
domain of the federal government.
* * *
30 ARIZONA DREAM ACT COALITION V. BREWER
“[T]he ‘power to regulate immigration is unquestionably
. . . a federal power.’” Chamber of Commerce of U.S. v.
Whiting, 131 S. Ct. 1968, 1974 (2011) (quoting De Canas v.
Bica, 424 U.S. 351, 354 (1976)). Though not all state
regulations touching on immigration are preempted, id., states
may not directly regulate immigration, Valle del Sol Inc. v.
Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied,
134 S. Ct. 1876 (2014).
Arizona’s policy does not expressly dictate who may be
present in the United States; it ostensibly regulates who can
get a state driver’s license. But the policy embodies the
State’s independent judgment that recipients of Deferred
Action for Childhood Arrivals (DACA) are not “authorized”
to be present in the United States “under federal law.” Ariz.
Rev. Stat. Ann. § 28-3153(D) (emphasis added). Interpreting
this statutory language and, by necessity, federal law, the
governor of Arizona announced in Executive Order 2012-06,
that: “the Deferred Action program does not and cannot
confer lawful or authorized status or presence” (emphasis
added). The Executive Order also announced the view that
“[t]he issuance of Deferred Action or Deferred Action . . .
employment authorization documents to unlawfully present
aliens does not confer upon them any lawful or authorized
status” (emphasis added).
In accord with the Executive Order, Arizona revised its
driver’s license policy in response to the announcement of the
federal DACA program. Arizona’s revised policy reflects its
position that beneficiaries of three types of relief from
removal—DACA, regular deferred action, and deferred
enforced departure—all lack authorized presence under
federal law. On appeal, defendants forthrightly acknowledge
that this determination does not follow directly from any
ARIZONA DREAM ACT COALITION V. BREWER 31
particular federal law, but only from Arizona’s separate
interpretation of the federal immigration scheme. According
to this interpretation: “DACA, regular deferred action, and
deferred enforced departure have no basis in [federal] statute
or regulation but rather reflect the federal executive’s
discretionary decision not to enforce federal law.”1
Paradoxically, Arizona classifies as “authorized” two
other groups of aliens that similarly lack lawful immigration
status under federal law—recipients of (c)(9) and (c)(10)
employment authorization documents—because, defendants
claim, these groups are on a “path to legal status.”2 The terms
“deferred action,” “deferred enforced departure,” and “lawful
immigration status” all expressly appear in federal law. See,
e.g., 8 U.S.C. § 1227(d)(2) (deferred action); 8 C.F.R.
§ 1245.9(g)(4) (deferred enforced departure); 8 C.F.R.
§ 245.1(d)(1) (lawful immigration status). But no federal law
expressly articulates or even implies the distinct concept of a
“path to legal status.” This novel gloss on the federal
immigration scheme underlies Arizona’s sub-classification of
aliens lacking lawful status into two new groups, one of
which it deems authorized to be present, and the other it
deems “not authorized.”
Plaintiffs argue that Arizona’s policy is preempted by the
United States Constitution as an impermissible regulation of
1
The existence of this discretion is recognized in both the United States
Code and the Code of Federal Regulations. See, e.g., 8 U.S.C.
§ 1154(a)(1)(D)(i)(II), (VI); 8 U.S.C. § 1227(d)(2); 8 C.F.R.
§ 245a.2(b)(5).
2
As our opinion notes, recipients of (c)(9) and (c)(10) documents are
noncitizens who have applied for adjustment of status and cancellation of
removal, respectively. See 8 C.F.R. § 274a.12(c)(9)–(10).
32 ARIZONA DREAM ACT COALITION V. BREWER
immigration status. They claim that the Constitution reserves
regulation of immigration to the federal government.3
Plaintiffs point to language from the Supreme Court’s
decision in De Canas suggesting that a direct state regulation
of immigration would be “constitutionally proscribed.”
424 U.S. at 356; see id. at 352–56; cf. Toll v. Moreno,
458 U.S. 1, 10 (1982) (“[T]he preeminent role of the Federal
Government with respect to the regulation of aliens. . . .
derives from various sources, including the Federal
Government’s power ‘[t]o establish [a] uniform Rule of
Naturalization,’ U.S. Const., Art. I, § 8, cl. 4, its power ‘[t]o
regulate Commerce with foreign Nations,’ id., cl. 3, and its
broad authority over foreign affairs.”). De Canas described
“a regulation of immigration” as “essentially a determination
of who should or should not be admitted into the country, and
the conditions under which a legal entrant may remain.”
424 U.S. at 355. In Whiting, the Court cited De Canas and
reaffirmed that regulation of immigration is a federal power.
131 S. Ct. at 1974. Even more recently, the Court in Arizona
v. United States recognized that “[t]he federal power to
determine immigration policy is well settled.” 132 S. Ct.
2492, 2498 (2012).
It is unnecessary in this case to resolve whether a
regulation of immigration is preempted under the
Constitution or merely by statutory law. Even if such a
regulation would not be directly preempted by the
3
Arizona mischaracterizes plaintiffs’ position as being that “any state
law touching on immigration is constitutionally preempted.” But plaintiffs
recognize that the mere “fact that aliens are the subject of a state statute
does not render it a regulation of immigration.” See De Canas, 424 U.S.
at 355.
ARIZONA DREAM ACT COALITION V. BREWER 33
Constitution,4 it would still be subject to preemption based on
“[t]he comprehensiveness of the [Immigration &
Naturalization Act (INA)] scheme for regulation of
immigration and naturalization.”5 De Canas, 424 U.S. at 359;
see Whiting, 131 S. Ct. at 1973; see also Clare Huntington,
The Constitutional Dimension of Immigration Federalism, 61
Vand. L. Rev. 787, 852 (2008) (arguing that “federal
exclusivity in the admission and removal of non-citizens is
better understood to rest on ordinary statutory preemption”).
The Supreme Court’s immigration jurisprudence
recognizes that the occupation of a regulatory field may be
“inferred from a framework of regulation ‘so pervasive . . .
that Congress left no room for the States to supplement it.’”
Arizona, 132 S. Ct. at 2501 (quoting Rice v. Sante Fe
Elevator Corp., 331 U.S. 218, 230 (1947)). The Supreme
Court has indicated that the INA provides a pervasive
framework with regard to the admission, removal, and
presence of aliens. See Whiting, 131 S. Ct. at 1973 (quoting
De Canas, 424 U.S. at 353, 359); cf. Arizona, 132 S. Ct. at
2499 (“Federal governance of immigration and alien status is
extensive and complex.”). “The States enjoy no power with
respect to the classification of aliens.” Plyler v. Doe,
457 U.S. 202, 225 (1982). The Court continues to recognize
that determinations regarding the presence of aliens in the
4
I express no view on this question.
5
But see Valle del Sol Inc., 732 F.3d at 1023 (stating in dicta that “direct
regulation of immigration” is “constitutionally proscribed”).
34 ARIZONA DREAM ACT COALITION V. BREWER
United States “must be made with one voice.”6 Arizona, 132
S. Ct. at 2506–07.
Defendants counter that the State is free to adopt federal
classifications in regulations concerning state matters, such as
driver’s licenses. But this raises the question whether this is
all Arizona’s new policy does, or whether it really amounts
to an “additional or auxiliary regulation[]” of alien status.
See Arizona, 132 S. Ct. at 2502 (quoting Hines v. Davidowitz,
6
The panel majority and I have different views of the scope of the
arguments plaintiffs raised in support of their motion for a preliminary
injunction. There is no doubt that plaintiffs’ memorandum in support of
their motion unambiguously argued Arizona’s policy is an impermissible
regulation of immigration that intrudes upon the exclusive federal power
to classify aliens for purposes of admission, removal, and presence.
District Court Docket No. 30. Plaintiffs did expressly disavow that they
are “asserting that the federal government has occupied the field of
regulation of driver’s licenses.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss,
District Court Docket No. 91 at 8 n.6 (emphasis added). But the
“regulation of immigration” argument addressed here is completely
different, and plaintiffs raised it point-blank. The district court considered
the argument at length, and rejected it. That plaintiffs did not frame their
“regulation of immigration” argument specifically in terms of statutory
preemption is consistent with their position that it is well established the
Constitution directly preempts state regulation of immigration. My
conclusion that plaintiffs’ argument is likely to succeed is not based
strictly on a statutory field preemption analysis. Rather, because this
appeal should be resolved on the narrowest grounds available, it is not
necessary to decide, at the preliminary injunction stage, whether the
proper basis for preemption of Arizona’s policy is statutory or
constitutional. This prudential consideration does not mean I address a
different argument from the one plaintiffs raised; plaintiffs expressly
argued to the district court that Arizona’s policy amounts to a regulation
of immigration. Because the argument was “raised sufficiently for the
trial court to rule on it,” it was not waived. Whittaker Corp. v. Execuair
Corp., 953 F.2d 510, 515 (9th Cir. 1992) (citation and internal quotation
marks omitted).
ARIZONA DREAM ACT COALITION V. BREWER 35
312 U.S. 52, 66–67 (1941)). Defendants contend that the
State may employ its concept of a “path to status” to arrange
existing federal classifications into its own definition of
“authorized presence,” so long as this definition does not
stand “in direct conflict with formal immigration statuses and
classifications that the INA expressly created.” But the
classifications in federal immigration law are not Lego pieces
that the State may shape into new patterns in an exercise of
regulatory bricolage. “Where Congress occupies an entire
field, . . . even complementary state regulation is
impermissible.”7 Id.Even a law ostensibly addressing a traditional subject of
state concern, like driver’s licenses, may effect an
impermissible regulation of immigration. This conclusion is
consistent with Supreme Court precedent and decisions from
other jurisdictions. In Toll, for example, the Court held that
preemption principles applied to a state policy concerning the
imposition of tuition charges and fees at a state university on
the basis of immigration status. 458 U.S. at 16–17. Also, the
Third Circuit recently held that municipal laws preventing
unauthorized aliens from renting housing constituted an
7
That this case involves classes of aliens the Executive has permitted to
remain in the country pursuant to its discretion is a further consideration
weighing against allowing a complementary state regulation of
immigration here. The Supreme Court has emphasized that “[a] principal
feature of the removal system is the broad discretion exercised by
immigration officials.” Arizona, 132 S. Ct. at 2499. And the Court has
specifically recognized that federal statutes contemplate and protect the
discretion of the Executive Branch when making determinations
concerning deferred action. See Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 484–86 (1999). The discretion that is built into
statutory removal procedures suggests that auxiliary state regulations
regarding the presence of aliens in the United States would be particularly
intrusive on the overall federal statutory immigration scheme.
36 ARIZONA DREAM ACT COALITION V. BREWER
impermissible regulation of immigration and were field
preempted by the INA. Lozano v. City of Hazleton, 724 F.3d
297, 317 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).
Though these housing laws did not directly dictate who
should or should not be admitted to this country, the Third
Circuit concluded that they nonetheless “intrude[d] on the
regulation of residency and presence of aliens in the United
States.” Id. (emphasis added). Similarly, the Fifth Circuit
recently held that an ordinance “allow[ing] state courts to
assess the legality of a non-citizen’s presence” in the United
States was preempted because it “open[ed] the door to
conflicting state and federal rulings on the question.” Villas
at Parkside Partners v. City of Farmers Branch, 726 F.3d
524, 536 (5th Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).
The Fifth Circuit’s decision was based on its recognition that
“[t]he federal government alone . . . has the power to classify
non-citizens.” Id. Here, the practical effects of Arizona’s
policy most directly relate to the regulation of state driver’s
licenses, but this does not shield the policy from preemption
if the policy also functions as a regulation of immigration,
i.e., a separate determination of alien status. See United
States v. Alabama, 691 F.3d 1269, 1292–96 (11th Cir. 2012),
cert. denied, 133 S. Ct. 2022 (2013) (holding that a state law
prohibiting courts from recognizing contracts involving
unlawfully present aliens was preempted as “a thinly veiled
attempt to regulate immigration under the guise of contract
law”).
Defendants are conspicuously unable to point to any
federal statute or regulation that justifies classifying
applicants for adjustment of status and cancellation of
removal as authorized to be present, while excluding
recipients of deferred action or deferred enforced departure.
All of these groups similarly lack formal immigration status
ARIZONA DREAM ACT COALITION V. BREWER 37
but are allowed to live and work in the country for a period of
time by the federal government. Lacking a specific
foundation in federal statutory or regulatory law, defendants
cite other sources to show that Arizona’s definition of
“authorized presence” at least tracks the federal scheme, but
these efforts are equally unpersuasive.
First, defendants point to the “Frequently Asked
Questions” (FAQ) section of the website for the United States
Citizenship and Immigration Services. The answer to one of
the questions states that although DACA recipients “do not
accrue unlawful presence (for admissibility purposes) during
the period of deferred action, deferred action does not confer
any lawful status.” But the position articulated on this
website is entirely consistent with the Executive’s
discretionary authority to defer prosecution of some
individuals without changing their formal immigration status.
The “answer” in the FAQ section lends no support to Arizona
because the terms “presence” and “status” are terms of art in
the scheme of federal immigration law, and they are not
necessarily interchangeable. See Chaudhry v. Holder,
705 F.3d 289, 291 (7th Cir. 2013) (“The Board [of
Immigration Appeals has] acknowledged that ‘unlawful
presence’ and ‘unlawful status’ are distinct concepts.”);
Dhuka v. Holder, 716 F.3d 149, 154–59 (5th Cir. 2013)
(accepting the Board’s distinction between presence and
status and rejecting argument that an authorized stay pursuant
to 8 U.S.C. § 1182(a)(9)(B)(ii) is equivalent to lawful status).
More fundamentally, of course, it cannot be disputed that the
FAQ section of a federal website is not a source of “federal
law,” nor would an interpretation announced there be subject
to deference by a court.
38 ARIZONA DREAM ACT COALITION V. BREWER
Defendants also point to a Congressional Research
Service Memorandum remarking that “[m]any observers
characterize foreign nationals with relief from removal who
obtain temporary work authorizations as ‘quasi-legal’
unauthorized migrants.” The Memorandum states that such
persons “may be considered ‘lawfully present’ for some very
narrow purposes under the INA . . . but are otherwise
unlawfully present.” But the Memorandum cites no statutory
or regulatory provision in support of this statement, and a
research memorandum, like a website, is not federal law. It
should also be noted that if Arizona were actually relying on
the Memorandum’s purported classification of “quasi-legal”
unauthorized migrants, Arizona would not have made driver’s
licenses accessible to noncitizens with (c)(9) and (c)(10) work
authorizations, because these noncitizens would also appear
to fall under the purported “quasi-legal” classification.8
Not only does Arizona’s classification of aliens with
authorized presence lack a specific anchor in federal law, but
the primary federal law concerning the status of aliens, the
INA, points away from Arizona’s interpretation. For
purposes of determining the admissibility of aliens other than
those lawfully admitted for permanent residence, the INA
states that if an alien is present in the United States beyond a
“period of stay authorized by the Attorney General” or
without being admitted or paroled, the alien is “deemed to be
unlawfully present in the United States.” 8 U.S.C.
§ 1182(a)(9)(B)(ii) (emphases added). The administrative
regulations implementing this section of the INA, to which
8
Under the classification suggested by the Memorandum, recipients of
(c)(9) and (c)(10) authorizations are, like DACA recipients, “foreign
nationals with relief from removal who obtain temporary work
authorizations.”
ARIZONA DREAM ACT COALITION V. BREWER 39
we owe deference, establish that deferred action recipients do
not accrue “unlawful presence” under § 1182(a)(9)(B) for
purposes of calculating when they may seek admission to the
United States. 8 C.F.R. § 214.14(d)(3), 28 C.F.R.
§ 1100.35(b)(2). Because such recipients are present without
being admitted or paroled, their stay must be considered
“authorized by the Attorney General,” at least for purposes of
§ 1182(a)(9)(B).9
Defendants argue that the INA’s definition of “unlawful
presence” applies only “for the narrow purpose of stopping
the accrual of unlawful presence used to calculate future bars
to admissibility.” They claim that, under the federal
immigration scheme, DACA recipients may be “authorized”
for some purposes but not others.10 From there, defendants
assert that Arizona “could separately and validly determine
DACA recipients do not have authorized or lawful presence
for purposes of Arizona’s driver’s license statute, without
running afoul of any federal immigration laws” (emphasis
added). But as discussed, where Congress has created a
9
Another federal statute, the REAL ID Act, is also consistent with the
INA’s definition of “unlawful presence.” REAL ID Act of 2005, Pub. L.
No. 109-13, div. B, 119 Stat. 231. This law provides that states may issue
a driver’s license or identification card to persons who can demonstrate an
“authorized stay in the United States.” Id. § 202(c)(2)(C)(i)–(ii). Persons
with “approved deferred action status” are expressly identified as being
present in the United States during a “period of authorized stay,” for the
purpose of issuing state identification cards. Id. § 202(c)(2)(B)(viii),
(C)(ii). The REAL ID Act further weighs against Arizona’s efforts to
justify its classification under federal law.
10
For example, Arizona notes that a Department of Health and Human
Services regulation has carved out DACA recipients from the definition
of “lawful presence” for purposes of eligibility for certain benefits under
the Affordable Care Act. 45 C.F.R. § 152.2(8).
40 ARIZONA DREAM ACT COALITION V. BREWER
pervasive regulatory scheme, such as for the classification of
alien status, a state may not “supplement” federal law.
Arizona, 132 S. Ct. at 2501.
In sum, defendants offer no plausible foundation for an
interpretation of federal law that classifies individuals with
(c)(9) and (c)(10) work authorization documents as having
“authorized presence,” but not DACA recipients. At the
same time, defendants ignore the use of the terms
“authorized” and “presence” in the INA, the statute that
provides the most comprehensive scheme relating to the
admissibility and status of aliens. See Whiting, 131 S. Ct. at
1973. Finally, defendants appear to have conflated the
statutory terms “presence” and “status,” while also applying
them inconsistently.
Plaintiffs are therefore likely to succeed in their argument
that Arizona’s policy for issuing driver’s licenses is an
impermissible regulation of immigration status because the
policy relies on Arizona’s separate and unsupported
determination of who is authorized to be present in the United
States under federal law. It is unnecessary at this stage to
decide whether the appropriate basis for the preemption of
state regulation of immigration lies in the federal constitution
or in the comprehensive statutory scheme for the
determination of alien status. Our panel is only called upon
to gauge whether plaintiffs are entitled to preliminary
injunctive relief. Because the Supreme Court has consistently
cautioned that the regulation of immigration is an exclusively
federal function, and because plaintiffs have persistently and
persuasively argued that Arizona’s revised policy creates a
new classification of alien status, I conclude that plaintiffs are
entitled to preliminary injunctive relief under this theory.