ga requires a verification of lawful presence as a condition for students wishing to obtain its top colleges and universities and defines lawful presence in the united states in a manner that is inconsistent with the federal definition it does so to exclude a group of politically unpopular and vulnerable students who hold deferred action pursued to dhaka from its flagship schools the district court committed to groups of errors  denying and dismissing students claim first the quarter only to see concluded that georgia state specific immigrant classification of lawfully present in the united states was not preempted by federal law secondly the court failed to recognize that the students here are similarly situated with respect to lawful presence as other individuals who the state admits to its flagship schools let's talk about preemption first you claim that or think that the dhaka memo from the department of homeland security carries preemptive effect your honor the preemptive effect of deferred action comes from the inherent authority of the executive as recognized by this court in its now sin decision certainly eleven o three which is the most extensive or the most important part of that delegation gives the secretary of homeland security the authority to carry out such acts as deems necessary to carry out her responsibility in enforcing immigration laws so the answer is yes it has preemptive effect yes your honor it has preemptive effect to the extent that the the i any and the inherent power of the executive is what provides the lawful presence that flows from from ok tell me why it is that you believe that memorandum establishes that your clients are lawfully in the united states your honor is it isn't it differed prosecution for lack of a better term that the government is not going to exercise its discretion to initiate removal proceedings against individuals in a certain category your hon lawful presence or rather deferred action has been recognized as a historical practice by the executive that grants to further action to individuals who would otherwise be subject to removal the supreme court the a d c or the reno v arab american anti discrimination matter recognize this historical presence of authorized stay in the united states overseas a spiriting any of the i certainly am not the question is whether or not that deferred action translates into your client's being lawfully in the united states it does your daughter deferred action has been recognized to confer authorized stay or lawful presence by this court in glory which concluded that deferred action is a period of authorized stay in the united states that's what we said in georgia latino alliance was that a person who classified under deferred action status remains permissibly in the united states but that's different than saying that the person is lawfully in the united states for immigration purposes you don't see a difference between those two things your honor lawful presence  is as defined by the federal immigration law i don't have an eighty two for example is a period of authorized a that is authorized by the executive i know but that that section only deals with in eligibility for visas th briefs and as demonstrated by the collateral effects of that grant of lawful presence lawful presence has further meaning that's that's goes beyond admissibility for example individuals who have ability to work in the united states is itself evidence of lawful presence because under eight u s c thirteen twenty four a only lawfully present non citizens are authorized to work similarly your honor the state of georgia itself recognizes that deferred action holders have authorized state in their own driver's license law at forty dash five dash one and so georgia's state specific definition of lawful president misspoke is that your position your crimes position that the doc a memo new additional immigration status you know you are but they didn't have before  no your honor the document no does not confer immigration status which is a distinct classification under the eye and say what the doctor memo does is to channel agency discretion that has is has existed for decades as recognized by the supreme court in the us reno case and by various courts that the agency can give a temporary reprieve of presence to a certain group of individuals so it doesn't change the immigration status it does not change the immigration status of these individuals just like it was back in the merely told days when the when the attorney general paroled people into the united states yes and same idea yes your honor so it is a very they were staying there until process was was issued yes you in their states as an act of the federal executive expressly understand that that but the doctor people are like that is what i'm trying to say absolutely your honor it absolutely like t follow yesterday but it gets to the point of the classification that the state of georgia itself has latched onto in its policy four point one six they don't say lawful status they say lawful presence very explicitly and what lawful present all this  it either does mean something or it doesn't mean something and that doesn't mean you're right or you're wrong and it doesn't predict what we're going to end up doing but you either have to it seems to me i speak only for myself not for my colleagues that's why i asked you at first whether you believed that the dhaka deferred action memo carried preemptive effect in and of itself if you're telling me that your claims would be exactly the same even if that  repealed tomorrow then the document will is out of the case and your clients regardless of what the government said about them would be able to mount the same claims that have today what am i missing your honor first and foremost if the documentary were to go away tomorrow there would still be a claim because our clients have been harmed to this point to the extent that the executive repeal at some point down the line i would be a you're right about that but that would be a different claim in the ones you're bringing here if there was no doc a memo and the document a were repealed immediately tomorrow would you have a preemption claim we would still have a preemption claim with race on what route with respect to deferred action holders that the state of georgia does not admit there's no deferred action anymore because the memo is gone and my hypothetical deferred action is a an umbrella term daca is just a component of wipes out all deferred action and says we'll get to you and we can get to you do you have a preemption point your honor the supreme court has noted the historical use of deferred action  know and nobody's questioning that i'm just if the government decided tomorrow i mean i think it would be a horrible thing given the consequences that would ensue but if the government said tomorrow no deferred action for anybody we're going to move as quickly as expeditiously as we can and if you're not here with legal status at some point we'll get to you it may take us five years it may take us eight years but we're going to get to you you saw a preemption claim at that point your honor we would consider whether or not there was a classification of of immigration here and so that's a different that's a different issue do you have a preemption claim you have two claims here you have a preemption claim and you have an equal protection claim right we haven't even god can claim yet do you still have a preemption claim if deferred action status is wiped out completely tomorrow if there was no such thing as deferred action yes  tomorrow we maintain that we would still have a cause of action for the harm that was endured prior to that going you know we put a legal theory on the harm mr lopez no one doubts that your clients are harmed why don't you think about  during your before rebuttal your honor very quickly with respect to the classification of immigration what the state of georgia done has done has is to redefine lawful presence to mean some combination of lawful status and student aid eligibility which is preempted classification of immigration under t claim which is a clear and manifest congressional purpose that these admissions policies conflict with congress hasn't shown a clear purpose to guarantee deferred action recipients eligibility for admissions to all public universities now this court didn't address the equal protection when you do wouldn't have to go that far if georgia for example and i'm not saying this is the case but it georgia for example tried to come up with a different definition of lawful status they wouldn't have to show what you just said that would be express preemption express preemption based on if the government said anyone who's here with a green card is unlawfully in the united states that would be expressly preempted right i don't i don't think it would be expressly preempted i think it would be preempted under this court's under the supreme court's prior precedents with respect doesn't legal resident doesn't federal immigration law in the code say that someone who is here with lawful permanent resident status the so called green card is lawfully in the united states it's absolutely the case here and i want to express preemption then you can get a state has no business trying to come up with a different definition for immigrants than the federal government does is that right you know that's true that it's not what the state has done here i know i said that at the beginning i said this is not this case but if there was a different definition that georgia adopted for lawful status then you'd have a different issue if the if the state of georgia were trying to change federal immigration classifications for whether someone is lawfully admitted into the country yes that's right ok but here again the touchstone is clear and manifest congressional purpose with respect to  the preemption claim and the plaintiffs in this case have have not shown that in any way they they say three separate sort of theories of preemption regulation of immigration field preemption and conflict preemption and none of those things that they show that clear congressional purpose with respect to alien admissions to universities regulations of immigration are limited to regulations that actually regulate immigration that is the entrance to and stay in the country and whether that is allowed under federal law these policies of course don't do that they apply to only three state universities and there's i think no plausible argument that they're forcing anyone out of out of the state in the way that the contract provision from alabama did in united states or sell them there was a mention in one or maybe both briefs that since the time the lawsuit was filed which universities were included in the board of regents definition had changed is that correct that's relevant more limited number of universities that's right your honor it's now three it's the university of georgia georgia tech and georgia college and state university the other two no longer fall under the definition as for field preemption the plaintiffs have not identified any comprehensive scheme much less any scheme at all that has to do with admissions of aliens to public universities and the same goes with respect to conflict preemption even if you if you look to federal law to the extent that congress has done anything with respect to aliens and universities they've shown a purpose consistent with the policy here in both  ira and also with respect to federal student aid congress has set limits on who is eligible for state or local benefits who is eligible for in state tuition and who is eligible for federal student aid in all of those cases deferred action recipients do not fit those categories of aliens who are eligible for those things so if anything congress has shown a purpose consistent with the purpose of consistent with and not in conflict with these admissions under the i and a not not lawfully in the country who are removable at any time what do you say about the arguments and this doesn't go to whether or not regulations can have preemptive effect but the fact that certain federal regulations seem to speak about the ability to work the ability to obtain driver's licenses in swith some connection to lawful status your honor i'll take those one of the time work authorization does not  any kind of lawful immigration status to the contrary congress has permitted the executive some discretion to decide who is eligible for work authorization but that's without respect to whether or not they have any kind of lawful status and indeed the executive has provided work authorization to certain aliens who have a final order of removal against them what that shows is that work authorization is authorization to work while president but it doesn't necessarily  status and one of those is deferred action but that that in and of itself does not show that deferred action or subpoenas are lawfully in the united states in addition neither of those things even to the extent that congress has afforded the executive some discretion with respect to those particular benefits that doesn't show any kind of clear congressional purpose to guarantee or require eligibility for admission to state universities the supreme court is required a much clearer statement of purpose than those those sorts of things your honour's equal protection was not addressed in the opening argument i'm happy to address it if you have any the last thing i'd say your honor is daca and their argument that doco because there's some kind of executive discretion that congress is afforded through eleven o three i think that's a far cry from the the indication of clear congressional purpose that you need to show that these policies are somehow preempted for one thing again doc is about reprieve from removal the policies do nothing  that is in conflict with or that interferes with removal and for another that kind of broad discretion in and of itself is not something that provides a clear statement of congressional purpose there are no further questions i thank you very quickly with respect to the question posed by judge bork jordan if deferred action were to completely disappear tomorrow then yes we would not have our preemption claim moving on to the  you have to use the hook in order to make a case here no because as long as deferred action exists you need some help right so absolutely your honor with respect to this with respect to the georgia's conflation of status and presence those are two separate terms under the immigration law whether or not it the docket students have status which the cases have recognized is a separate and distinct concept from presence georgia's policy speaks in terms of lawful presence and so therefore it is bound to that definition of lawful presence which is authorized state of the united states this is the court in heat which we rely on in our briefs in the context of college admissions found that the state's attempt to exclude illegal  undocumented persons from their college program that that was a regulation of immigration because it sought to narrow the definition of lawful presence to mean some combination of lawful diff the lawful presence of deferred action holders was a classification of immigration what was key to that determination was the idea that the state's policy as georgia's policy here necessarily embodies an independent judgment by the state as to the presence lawful or otherwise of of a certain non citizen and we submit is that is precisely what georgia has done here could the state of georgia do this for someone who doesn't have doco deferred status you're out of the question is can the state of georgia exclude somebody who has authorized middle exactly the same way that it's doing it now if you're allowed admission into some universities but not some universities which have competitive admission and can't admit everybody who applies as long as that individual has authorized presence and is a cord not my question was different your honor the state of georgia do this for individuals who are in the united states without daca status or deferred action oh individuals who are here without any  present in the united states yes the state of georgia could exclude unlawfully present individuals although to the extent that this is a targeted policy it would raise equal protection concerns i see my time with my only asking about the preemption cl so if if they don't have the sort of status that your clients have the state of georgia could do this without having its regulation preempted by federal law yes your honor your honor we ask that the decision below be reversed and remanded for f