I Jennifer Chang Newell* Cecilia D. Wang*
2 Michael Tan*t R. Orion Danjuma*t
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
4 IMMIGRANTS' RIGHTS PROJECT 39 Drmmn Street
5 San Francisco, CA 94111 T: (415) 343-0770
6 jnewell@aclu.org
cwang@aclu. org 7 mtan@aclu. org
odanjwna@. org
8 Linton Joaquin*
9 Karen C. Tumlin* Shiu-Ming Cheer*
10 NATIONAL IMMIGRATION LAW CENTER
11 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 900 10
12 T: (213) 639-3900 joaquin@nilc.org
13 twnlin@nilc. org cheer@nilc.org
14
Attorneysfor Plaintifft 15

Victor Viramontes* Nicholas Espiritu* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCf;TIONAL FUND 634 S. Spring Street, 11 Floor Los Angeles, CA 90014 T: (213) 629-2512 vviramontes@maldeforg nespiritu@maldef org
Daniel J. Pochoda (Bar No. 021979) ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 23 5 Phoenix, AZ 85014 T: (602) 650-1854 dpochoda@acluaz. org
Additional Co-Counsel on Subsequent Pages

16

UNITED STATES DISTRICT COURT

17

FOR THE DISTRICT OF ARIZONA

18 ARIZONA DREAM ACT COALITION; JESUS CASTRO-MARTINEZ;
19 CHRISTIAN JACOBO; ALEJANDRA
20 LOPEZ; ARIEL MARTINEZ; and NATALIA PEREZ-GALLEGOS,

CASE NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CLASS ACTION

21

Plaintiffs,

v. 22 JANICEK. BREWER, Governor of the State

23 of Arizona, in her official capacity; JOHN S.

HALIKOWSKI, Director ofthe Arizona 24 Department of Transportation, in his official

25 capacity; and STACEY K. STANTON, Assistant Director of the Motor Vehicle

26 Division ofthe Arizona Department of

Transportation, in her official capacity,

27

Defendants.

28

1 Additional Co-Counsel

2
Tanya Broder* 3 NATIONAL IMMIGRATION LAW
CENT§R 4 405 14 Street, Suite 1400
Oaldand, CA 94612 5 T: (510) 663-8282
Broder@nilc.org
6

7 Marty Harper (Bar No. 003416) Thomas K. Irvine (Bar No. 006365)
8 AndrewS. Jacob (Bar No. 022516) POLSINELLI SHUGHART PC
9 One East Washington, Suite 1200
10 Phoenix, AZ 85004 T: 602.650.2096
11 mharper@polsinelli. com

12

tirvine@polsinelli.com ajacob@polsinelli. com

13

Kelly J. Flood (Bar No. 019772) James Duff Lyall (Bar No. 330045)** ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 T: (602) 650-1854 kjlood@acluaz. org j lyall@acluaz. org
Lee Gelernt* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' ~GHTS PROJECT 125 Broad St., 18' Floor New York, NY 10004 T: (212) 549-2660 lgelernt@aclu. org

14 *Pro hac vice application forthcoming **Admittedpursuant to Ariz. Sup. Ct. R. 38(/)
15 f Admitted in New York

16

Attorneysfor Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

I

INTRODUCTION

2

1. This class action lawsuit challenges Arizona Executive Order 2012-061 and

3

Arizona's practice of denying driver's licenses to immigrant youth whom the federal
4

5 government has authorized to remain in the United States under the Deferred Action for

6 Childhood Arrivals ("DACA") program. Defendants' practice violates the Supremacy
7 Clause and the Equal Protection Clause of the United States Constitution.
8
2. This action is brought by the Arizona DREAM Act Coalition and several
9
10 Individual Plaintiffs, who are young immigrants who were brought to the United States at

11 an early age by their families in hope that they could have a better life in the United States.
12 They have overcome many obstacles and worked diligently in order to succeed in school,
13
to help their families, and to enrich their communities with their individual abilities. 14
15 These young immigrants are commonly known as "DREAMers" based on proposed

16 federal legislation, the Development, Relief, and Education for Alien Minors ("DREAM")
17 Act. 18
3. As the President of the United States has recognized, these young immigrants 19 20 "are Americans in their heart, in their minds, in every single way but one: on paper."2 He

21 explained, "it makes no sense" to deport "[t]hese []young people who study in our
22 schools, they play in our neighborhoods, they're friends with our kids, they pledge 23
allegiance to our flag. "3 24

25

26

1 A true and correct copy of Arizona Executive Order 2012-06 is attached as Exhibi~ 1.

27

-President Barack Obama, Remarks on Immigration Refonn, 2012 DAILY CaMP. PRES. Doc. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-

201200483/pdf/DCPD-201200483.pdf.

28

3 !d.

I

1

4. On June 15, 2012, the Secretary of the United States Department ofHome1and

2 Security ("DHS") announced the new DACA program of administrative immigration relief
3
for young i1mnigrants who came to the United States as children and are present in the 4

5 country without a fonnal immigration status. The DACA program was established to

6 allow these young immigrants to remain in the United States without fear of deportation

7 for a specified, renewable period, and thus continue to contribute to American society.
8
5. Under DACA, certain DREAMers are eligible to obtain "deferred action" from
9
10 the federal government upon meeting specific criteria such as the attainment of a high

11 school diploma and passing a rigorous background check including the absence of a

12 criminal record. Deferred action is a mechanism used by the federal government to
13
prevent the removal of a noncitizen who would otherwise be subject to deportation, and to 14
15 allow the noncitizen to remain in the United States for a specified period of time. Persons

16 granted deferred action under DACA may stay in the United States for a renewable period

17 of two years, are shielded from removal proceedings during that time, and may be granted

18 federal employment authorization and a Social Security Number.
19

20

6. The Individual Plaintiffs and the class they propose to represent are young

21 immigrants residing in Arizona who have been granted defen·ed action, or will be,

22 pursuant to the DACA program, and have (or will have) employment authorization and a
23
Social Security Number. It is estimated that there are 1.76 million DACA-eligible youth 24
25 in the United States and approximately 80,000 residing in Arizona.

26

7. All DACA grantees in Arizona are being denied the opportunity to obtain a

27 driver's license pursuant to Defendants' unlawful policies and practices. On August 15,
28

2

1 2012- the first day DHS began accepting DACA applications- Defendant and Arizona
2 Governor JaniceK. Brewer issued Executive Order 2012-06, which states: "the Deferred
3
4 Action program does not and cannot confer lawful or authorized status or presence upon
5 the unlawful alien applicants." The Order directs state agencies to take necessary steps to

6 "prevent Deferred Action recipients from obtaining eligibility ... for any ... state
7 identification, including a driver's license."
8
8. As stated by Defendant Brewer, the Executive Order makes clear that there will
9
10 be "no drivers [sic] licenses for illegal people,"4and in her opinion, "[t]he Obama amnesty

11 plan doesn't make them legally here."5 Defendant Brewer's Executive Order reflects her

12 apparent disagreement with the federal government's decision to allow young inunigrants
13
who qualif'y under the DACA program to remain in the United States.
14

15

9. Prior to Defendant Brewer's Executive Order 2012-06, the Motor Vehicle

16 Division ("MVD") of the Arizona Department of Transportation ("ADOT") issued
17 driver's licenses to all noncitizens granted deferred action who were otherwise qualified. 18
The MVD routinely accepted federal employment authorization documents, including 19
20 those presented by noncitizens with deferred action, as evidence of authorized presence in

21 the United States, and it routinely issued driver's licenses to persons presenting such 22

23 4 Arizona Channel12 News Video, Why Did Brewer Issue "Dreamer" Order?

24 (Aug. 15, 2012) (video documenting remarks by Defendant Brewer), available at

http://www.azcentral.com/video/#/Why+did+Brewer+issue+%27dreamer%27+order%3F/

25 1787777903001.

26

5 Fox News Latino. Jan Brewer Bars IDs, Benefits for Undocumented Immigrants in Arizona (Aug. 16, 2012), available at

27

http://latino.foxnews.com/1atino/politics/20 12/08/16/brewer-blocks-id-benefits- for-
undocu\Pented-immigrants/#ixzz2BKUMfgjM~

28

. A true and correct copy of Arizona Motor Vehicle Division Policy 16.1.4(8) is attached as Exhibit 2.

3

1 documents who were otherwise qualified for a license, including noncitizens with deferred

2 action.
3
10. 4

The MVD implemented Executive Order 2012-06 on September 18, 2012 by

5 revising its policies to bar the acceptance of the employment authorization documents of

6 DACA recipients as evidence of authorized presence in the United States to establish

7 eligibility for driver's licenses. See MVD Policy 16.1.4(S).6 The MVD continues to
8
accept employment authorization documents from all other noncitizens, including
9
10 noncitizens who are recipients of deferred action other than DACA recipients.

11

11. Arizona's practice of denying driver's licenses to DACA recipients seeks to

12 negate the federal government's decision to authorize DACA-eligible DREAMers to
13
remain in the United States, interferes with the goals and function of the DACA program, 14
15 and harms and unlawfully discriminates against Individual Plaintiffs and all other similarly

16 situated individuals residing in Arizona.

17

12. As a result of their deferred action status, Individual Plaintiffs are (or will be)

18 authorized by the federal government to be present in the United States for a renewable
19

20 period of two years, and are (or will be) federally authorized to work. Despite this federal

21 authorization, under Defendants' unlawful practice Individual Plaintiffs and others like

22 them who are granted DACA are deemed "unauthorized" by the State of Arizona. As a
23 result Individual Plaintiffs are unable to obtain licenses to drive in Arizona despite being
24
25 otherwise eligible for such licenses, making it difficult, if not impossible, for them to

26 accomplish essential aspects of daily life, such as going to the grocery store, attending

27
6 A true and correct copy of Arizona Motor Vehicle Division Policy 16.1.4(S) is attached 28 as Exhibit 2.

4

1 church, bringing their children or younger siblings to medical appointments or to school,
2 attending school, and maintaining or obtaining productive employment.
3
13. Defendants' practice of denying licenses to DACA grantees violates the
4
5 Supremacy Clause of the United States Constitution because it is preempted by federal

6 immigration law and the federal government's exclusive authority to regulate immigration.

7

14. Defendants' practice also violates the Fourteenth Amendment Equal Protection

8
Clause because it denies driver's licenses to DACA recipients without any valid
9

10 justification, including even a rational basis.

11

15. Plaintiffs therefore bring the instant action for permanent injunctive and

12 declaratory relief from Arizona's unlawful practice.

13
JURISDICTION AND VENUE 14

15

16. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343

16 over Plaintiffs' claims under the U.S. Constitution. The Court has authority to grant
17 declaratory relief under 28 U.S.C. §§ 2201 and 2202. 18
17. Venue is proper in this district under 28 U.S.C. § 139l(b). All Defendants are
19
20 sued in their official capacity and their official places of business are all located within this

21 District. All of the events giving rise to this Complaint occurred within this District.

22

23

PARTIES

24 Plaintiffs
25 18. The Arizona DREAM Act Coalition ("ADAC") is an immigrant youth-led
26 organization whose mission is to promote the educational success of immigrant youth,
27
28 increase civic engagement and community service, and advocate for the passage of the

5

I DREAM Act at the national level. Since 2009, ADAC has focused its organizing and 2 advocacy efforts on increasing voter participation in Arizona's Latino community,
3
4 integrating immigrant youth in Arizona's educational system and economy to the fullest 5 extent possible, and advocating for immigrant rights. ADAC has an active statewide
6 membership of several hundred individuals, including over 30 core volunteers, and works 7 in coalition with seven chapter organizations. Arizona's decision to deny driver's
8
licenses to DACA grantees has adversely impacted both ADAC and its members. Most
9
10 of ADAC's members are DACA recipients who have been issued Social Security
11 Numbers and are authorized to work in the country, or have applications for DACA and 12 work authorization pending. As a result ofArizona's denial of driver's licenses, many of
13
14 ADAC's members are unable to drive legally in Arizona, making it difficult or impossible 15 for them to function nonnally in the community -including getting to and from work and
16 school, taking children to school or to the doctor, and obtaining employment. 17 Additionally, Arizona's decision impedes ADAC's ability to carry out its mission, as
18
ADAC has been forced to divert its limited resources from its primary advocacy projects
19
20 in order to assist impacted individuals, such as responding to inquiries and requests for
21 assistance. Because ADAC members are unable to obtain driver's licenses, transporting 22 members and supporters to events, including meetings in other regions of Arizona and
23
out-of-state conferences, is more costly and limits members' participation. ADAC 24 25 regularly draws new members from these events, but is forced to limit its attendance
26 because of members' inability to drive, which restricts the growth and functioning of the
27
28
6

1 organization. ADAC recently acquired a vehicle, but is largely unable to use it because
2 ofArizona's denial of driver's licenses to DACA grantees.
3
19. Jesus Castro-Martinez is a 26-year-old resident of Phoenix who came to the 4 5 United States at age 15 from Mexico and has lived in Arizona since that time. On October

6 3, 2012, he was granted deferred action under the DACA program, and shortly thereafter

7 received an employment authorization document ("EAD") and Social Security Number.
8 Mr. Castro has a fiancee who is a U.S. citizen, and a brother and sister who are lawful
9
10 permanent residents. He received his associate degree from Scottsdale Community

11 College in 2010 and hopes to return to school to continue his studies and become an

12 interior designer. Mr. Castro currently works at a spa in North Scottsdale. Because his
13
work may require driving, he may be prevented from taking a promotion or even lose his 14
15 job because he is ineligible for a driver's license. In October 2012, Mr. Castro attempted

16 to apply for an Arizona driver's license at the MVD office in Scottsdale. MVD officials

17 informed him that because his EAD was obtained through the DACA program, it could
18
not establish his authorized presence in the United States, and that he was therefore 19
20 ineligible for a driver's license.

21

20. Christian Jacobo is a 19-year-old resident of Phoenix who came to the United

22 States from Mexico when he was 12 years old and has lived in Arizona since that time.
23
On October 2, 2012, he was granted deferred action under the DACA program, and 24
25 subsequently received an EAD and Social Security Number. Mr. Jacobo currently lives

26 with his sister and her family. He obtained his General Education Development ("GED")

27 certificate from La Joya Community High School in Avondale, Arizona, and hopes 28

7

1 eventually to earn his bachelor's degree and become a physical therapist or chiropractor. 2 Mr. Jacobo needs a driver's license in order to earn a living, among other reasons. In
3
4 October 2012, Mr. Castro attempted to apply for an Arizona driver's license at an MVD 5 office in Phoenix. MVD officials infonned him that because his EAD was obtained
6 through the DACA program, it could not establish his authorized presence in the United 7 States, and that he was therefore ineligible for a driver's license.
8
21. Alejandra Lopez, now 19 years old, has grown up virtually her entire life in the
9
10 United States. She is originally fi·om Mexico, but has been in the United States since she
11 was four years old. Ms. Lopez graduated from high school in Arizona, and considers 12 Arizona her home. She is maiTied to a U.S. Citizen and has a U.S. citizen child. She is a
13
primary caregiver for her young child as well as for her two U.S. citizen brothers who are 14 15 four and 15 years old, respectively. In October 2012, she was granted defetTed action
16 under the DACA program. On October 9, 2012, she received an EAD, and on October 15, 17 2012, she received a Social Security Number. On October !3, 2012 Ms. Lopez went to
18
her local MVD to apply for a driver's license. The MVD staff person looked at her EAD
19
20 and told her that she was not eligible for a license. Ms. Lopez understands that Executive
21 Order 2012-06 precludes her from using her EAD to get a license. As a mother and 22 caregiver, Ms. Lopez needs an Arizona driver's license for multiple reasons, such as to
23
drive her brothers to and from school and manage various household eiTands, including 24 25 getting groceries or taking her child to the doctor. Because her husband works at night, he
26 is often unavailable to give Ms. Lopez rides she needs. Not having a driver's license has
27 also impeded her ability to fmd employment. Ms. Lopez was offered an interview for a 28
8

1 customer service job in Tempe but was forced to turn it down due to the fact that she

2
would be unable to commute to work without a driver's license. In addition, she needs a 3
driver's license to use as a secure fonn of identification. 4

5

22. Ariel Martinez is an 18-year-old resident of Youngtown, Arizona. He came to

6 the United States from Mexico when he was four years old. He has lived in Arizona since
7 then and is currently a student at Glendale Community College in Glendale, Arizona. He
8 aspires to attend the Conservatory of Recording Arts and Sciences in order to pursue a
9
10 career in the recording business. On October 15, 2012, Mr. Martinez was granted deferred

11 action under the DACA program. Around October 17, 2012, he received an EAD, and
12 around October 19,2012, he received a Social Security Number. Defendants' policy 13
imposes a significant hardship on Mr. Martinez's ability to get to his college classes and 14
15 sports activities, which include coaching high school soccer. Mr. Martinez understands

16 that Executive Order 2012-06 precludes him from obtaining a license.

17

23. Natalia Perez-Gallegos is 18 years old, and resides in Phoenix, Arizona. Ms.

18

Perez-Gallegos came to the United States from Mexico when she was five years old. In 19

20 October 2012, she was granted deferred action under the DACA program and received her

21 EAD and her Social Security Number. Ms. Perez-Gallegos attended Glendale Community
22 College and Estrella Mountain Community College, where she completed a year of
23 nursing pre-requisites, and intends to go back to school to complete her Associate Degree
24
25 in registered nursing. After Ms. Perez-Gallegos received her EAD and Social Security

26 Number she began working as a medical assistant, and she is planning to go back to school
27 in January 2013. Ms. Perez-Gallegos is concerned that she will not be able to get back and 28

9

I fmih from school and work without a driver's license. In October 2012, after receiving
2 DACA status, Ms. Perez-Gallegos attempted to apply for an Arizona driver's license at the
3
4 MVD offices in Avondale and on 51st Street in Phoenix, Arizona. At both locations she
5 was told by MVD officials that, because her EAD was obtained through the DACA

6 program, she was ineligible for a driver's license.

7

II

8
II
9

10 Defendants

11

24. At all times relevant to this action, Defendant JaniceK. Brewer has been the

12 Governor of the State of Arizona. Defendant Brewer issued the Executive Order being
13
challenged in this case. Defendant Brewer is sued in her official capacity. 14

15

25. At all times relevant to this action, Defendant JohnS. Halikowslti has been the

16 Director of ADOT, which is the agency with authority to license drivers and enforce motor
17 vehicle statutes. Ariz. Rev. Stat. § 28-332(B). As Director, Defendant Halikowski "is 18
responsible for the administration ofthe department" and has the authority to adopt rules
19
20 he deems necessary to carry out ADOT's responsibilities. Ariz. Rev. Stat. § 28-331; see

21 also Ariz. Rev. Stat. § 28-366. Defendant Halikowski is sued in his official capacity.

22

26. At all times relevant to this action, Defendant Stacey K. Stanton has been the

23

Assistant Director of the MVD, which is a division of the ADOT. See Ariz. Rev. Stat. § 24

25 28-332(C). MVD is the division of the ADOT charged with responsibility for licensing

26 drivers. Defendant Stanton is responsible for the administration of all Motor Vehicle
27 Departments in the state of Arizona. Defendant Stanton issued policies implementing 28

10

1 Executive Order 2012-06 and instructing that employment authorization documents issued
2 to DACA recipients may not be used to establish eligibility for an Arizona driver's license.
3
4 See MVD Policy 16.1.4(S) (rev. Sept. 18, 2012). Defendant Stanton is sued in her official
5 capacity.

6

II

7

II

8

9

10

BACKGROUND

11 Deferred Action

12

27. Deferred action is a longstanding form of prosecutorial discretion in which the

13

14 federal government decides, based on humanitarian or other reasons, to refrain from

15 seeking an individual noncitizen's removal and to authorize her continued presence in the

16 United States. A grant of deferred action indicates that the noncitizen's presence in the
17 United States is known to the federal government, and that the federal government has 18 19 made a discretionary determination, based on a review of the individual's case, not to
20 remove her but rather to allow her to remain in the United States during a specified period.

21

28. Moreover, recipients of deferred action are eligible to receive employment

22 authorization under federal law upon a showing of economic necessity. See 8 C.F.R. §
23
274a.12(c)(14). 24

25

29. The Secretary of Homeland Security's authority to grant deferred action to

26 otherwise removable noncitizens derives from her statutory authority over "administration
27 and enforcement" of the Immigration and Nationality Act ("INA"), including the power to 28

11

1 "perform such ... acts as [s]he deems necessary for carrying out [her] authority." 8
2 U.S.C. §§ 1103(a)(l), 1103(a)(3). That discretion granted by Congress includes the
3
4 discretion to "decide whether it makes sense to pursue removal at all." Arizona v. United
5 States, 132 S. Ct. 2492, 2499 (2012). Deferred action is simply one example of the federal

6 government's exercise of the discretionary authority granted by Congress in immigration

7 matters. Indeed, Congress repeatedly has recognized in the INA and other legislation that
8
9 the Executive Branch has discretion to grant deferred action under the immigration laws.

10

30. For decades, the federal government has used deferred action to authorize

11 numerous groups of immigrants to live and work in the United States for a temporary
12 period. Deferred action has been made available to certain victims of human trafficking
13
14 and sexual exploitation; to certain relatives of victims of terrorism; to surviving family
15 members of a legal permanent resident member of the anned forces; to spouses and

16 children of U.S. citizens or lawful permanent residents who are survivors of domestic
17 violence; to certain surviving spouses of U.S. citizens; to foreign students affected by
18
Hurricane Katrina; and to applicants for certain types of visas. In addition, federal 19
20 immigration authorities may grant deferred action on an individual basis, including, for

21 example, to a person whose continued presence is desired by law enforcement for an

22 ongoing investigation.

23

24

31. Immigrant youth brought to the country as children are thus only the most recent

25 beneficiaries of deferred action.

26

32. The rationale for the DACA program is consistent with the federal

27 govemment's longstanding use of deferred action to permit noncitizens to remain in the 28

12

1 country. In announcing the DACA program, the DHS Secretary explained that "[o]ur
2 Nation's immigration laws .... are not designed to be blindly enforced without
3
consideration given to the individual circumstances of each case. Nor are they designed to
4
5 remove productive young people to countries where they may not have lived or even speak

6 the language. Indeed, many ofthese young people have already contributed to our country

7 in significant ways."7
8
33. Similarly, the President stated that the federal government decided to make 9
10 deferred action available to DREAMers because "it makes no sense ... to expel these

11 young people who want to staff our labs or start new businesses or defend our country."8
12 He explained, these individuals are "talented young people, who, for all intents and 13
purposes, are Americans- they've been raised as Americans, understand themselves to be 14 15 part of this country."

16

34. The DACA program is intended "to lift the shadow of deportation from these

17 young people" and "to mend our Nation's immigration policy to make it more fair, more
18 efficient, and more just."9
19

20

35. Under DACA, young immigrants who entered the United States as children and

21 who meet educational and residency requirements may apply for deferred action.

22 Noncitizens are eligible for DACA if they: a) were under the age of 31 as of June 15, 23

24

7 Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with 25 Respect to Individuals Who Came to the United States as Children 2 (June 15, 2012),

26

available at http://www.dhs.gov/xlibrary/assets/s 1-exercising-prosecutorial-discretionindividrais-who-came-to-us-as-children.pdf.

President Barack Obama, Remarks on Immigration Reform, 2012 DAILY CaMP.

27 PRES. Doc. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-

20 1200483/pdf!DCPD-201200483 .pdf.

28

9 Id.

13

1 2012; b) came to the United States before reaching their 16th birthday; c) have
2 continuously resided in the United States since June 15, 2007, up to the present time; d)
3 4 were physically present in the United States on June 15,2012, and at the time of making
5 the request for consideration of deferred action with United States Citizenship and

6 Immigration Services ("USCIS"); e) entered without inspection before June 15, 2012, or
7 had an expired lawful immigration status as ofJune 15, 2012; f) are currently in school,
8
9 have graduated or obtained a certificate of completion from high school, have obtained a
10 GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed

11 Forces of the United States; and g) have not been convicted of a felony, significant

12 misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to
13
national security or public safety.10 14

15

36. The DACA application process includes extensive criminal background checks.

16 Under the DACA program, deferred action is available for a period of two years, subject to

17 renewal, and applicants who are approved may obtain work authorization, and if such 18
authorization is granted, a Social Security Number. 11 19

20

37. The federal goverrunent routinely grants work authorization to deferred action

21 recipients, including DACA recipients. Noncitizens granted work authorization are issued
22 federal employment authorization documents or EADs, such as I-766 cards. 23

24

25

10 USCIS, Consideration of Deferred Action for Childhood Arrivals Process (Sept. 14,

26 2012), available at

http://www.uscis.gov/portal/site/uscis/menuitem.eb Id4c2a3 e5b9ac89243c6a7543f6d Ia/?vgnextch

27 annel=3a4dbc4b0449931 OVgnVCMI 00000082ca60aRCRD&vgnextoid=3a4dbc4b0449931 OVgn

VCMl 00000082ca60aRCRD.

28

II See z"d.

14

1

38. Noncitizens granted deferred action pursuant to the DACA program are thus

2 authorized to be present in the United States during the two-year deferred action period,
3
and during any extensions ofthe grant. 4

5

39. DACA recipients are likewise lawfully present during the deferred action

6 period. USCIS has explained that under the DACA program, "[i]fyour case is defen·ed,
7 you will not accrue unlawful presence during the period of deferred action."12 According
8
to USCIS, "an individual whose case is deferred will not be considered to be accruing
9
10 unlawful presence in the United States during the period deferred action is in effect."13

11

40. As of November 15, 2012, immigrant youth had filed nearly 300,000 DACA

12 applications with USCIS, including over 11,000 applications from Arizona residents.
13
Although the vast majority of those applications are still in process, USCIS has granted 14

15 deferred action to at least 53,273 individuals nationwide pursuant to the DACA program. 14

16 17 Arizona Driver's License Practice

18

41. Both before and after the federal government armounced that immigrant youth

19 who came to the country as children would be eligible for deferred action under the DACA
20 program, Arizona law provided that an applicant for an instruction pennit, driver's license,
21
22 or identification card must submit proof that the applicant's "presence in the United States

23

24

25

12 Jd. at Q5.

13 Jd. at Q1; see also id. at Q6.

26

14 USCIS, Deferred Action for Childhood Arrivals Process (Aug. 15- Nov. 15,

2012) available at

27 http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/lmmigration%20For

28 ms%20Data/Static_files/20 12-1116%20DACA%20Monthly%20Report.pdf

15

1 is authorized under federal law." Ariz. Rev. Stat.§§ 28-3153(D), 28-3158(C), 28-
2 3165(F).
3
42. Specifically, Ariz. Rev. Stat.§ 28-3153(D) provides that "[n]otwithstanding any 4
5 other law, the department shall not issue to or renew a driver license or nonoperating

6 identification license for a person who does not submit proofsatisfactmy to the
7 department that the applicant's presence in the United States is authorized under federal
8
law." Id. § 28-3153(D) (emphasis added). The statute further provides that the ADOT
9
10 shall establish procedures for "[v]erification that the applicant's presence in the United

11 States is authorized under federal law." Id. § 28-3153(D)(l).

12

43. The policy of the MVD prior to the announcement of the DACA program was

13
that an employment authorization document was sufficient to prove that an applicant's 14

15 presence was "authorized under federal law." See MVD, Primary and Secondary Fonns of

16 Acceptable Documentation (rev. Nov. 30, 2010). Because deferred action recipients are
17 eligible for employment authorization under federal law, see 8 C.F.R. § 274a.l2(c)(l4), 18
Defendants routinely issued driver's licenses to deferred action recipients, as well as other
19
20 noncitizens submitting EA.Ds as proof of "authorized" presence. Thus, under Defendants'

21 previous policy, DACA recipients would have been able to meet the "authorized" presence
22 requirement by submitting their employment authorization documents. 23
44. However, on August 15, 2012 -the very same day USCIS began accepting 24 25 DACA applications- Defendant Brewer issued Executive Order 2012-06, instructing state

26 agencies to take necessary steps to "prevent Deferred Action recipients from obtaining

27 eligibility, ... for any ... state identification, including a driver's license." See Arizona 28

16

1 Executive Order 2012-06. According to its title, the Executive Order purports to "Re-

2 affirm [the] Intent of Arizona Law In Response to the Federal Government's Deferred
3
Action Program." I d. 4

5

45. The Executive Order states that "Arizona Revised Statutes 28-3153 prohibits the

6 ADOT from issuing a drivers [sic] license or nonoperating identification license unless an
7 applicant submits proof satisfactory to ADOT that the applicant's presence in the United
8
States is authorized under federal law." I d. The Executive Order further states that "the
9
10 Deferred Action program does not and cannot confer lawful or authorized status or

11 presence upon the unlawful alien applicants" and that "[t]he issuance of Deferred Action
12 or Deferred Action USCIS employment authorization documents to unlawfully present
13
aliens does not confer upon them any lawful or authorized status." I d. The Executive 14
15 Order thus provides that deferred action recipients are unable to meet the "authorized"

16 presence requirement for driver's licenses and identification.

17

46. In a public statement made the same day the Executive Order was issued,

18 Defendant Brewer stated that the Executive Order was intended to clarifY that there would
19

20 be "no drivers [sic] licenses for illegal people."15 Defendant Brewer stated: "They are here

21 illegally and unlawfully in the state of Arizona and it's already been determined that
22 you're not allowed to have a driver's license if you are here illegally."16 23

24

25

15 Arizona Channell2 News Video, Why Did Brewer Issue 'Dreamer' Order?

(Aug. 15, 2012), available at

26 http://www.azcentral.com!video/#/Why+did+Brewer+issue+%27dreamer%27+order%3FI

1787777903001, (video documenting remarks by Defendant Brewer).

27

16 Jan Brewer Bars IDs, Benefits for Undocumented Immigrants in Arizona, Fox

News Latino (Aug. 16, 2012),

28 http://latino.foxnews.com/latino/politics/2012/08/16/brewer-blocks-id-benefits-for-

17

1

47. To implement the Executive Order's directive, the Arizona MVD revised its

2 policy regarding acceptance of employment authorization documents as proof of
3 authorized presence. Under the new policy, employment authorization documents
4

5 presented by DACA recipients will not be accepted as proof of authorized presence for a

6 driver's license or identification card. See MVD Policy 16.1.4(S) (rev. Sept. 18, 2012).
7 However, for all other recipients of deferred action (i.e., other than DACA beneficiaries),
8
employment authorization documents will continue to be accepted as proof of authorized 9
10 status. See MVD, Primary and Secondary Fonns of Acceptable Documentation (rev. Sept.

11 18, 2012).

12

48. Arizona's practice of denying driver's licenses to DACA recipients is an outlier

13 in the 50 states. The rules in an overwhelming majority of states make all deferred action
14

15 recipients with employment authorization and Social Security Numbers eligible for

16 driver's licenses. Indeed, Plaintiffs are aware of only two other states, apart from Arizona,
17 that have announced an intent to preclude DACA recipients from eligibility for a driver's 18
license. 19

20 Defendant's Policy Harms Plaintiffs

21

22

49. Defendants' policy of denying driver's licenses to DACA recipients, including

23 Plaintiffs, pursuant to Executive Order 2012-06 and its implementing policies, is currently

24 in effect. Defendants are applying Executive Order 2012-06 to deny driver's licenses to
25 DACA recipients, including Plaintiffs.
26

27

28 undocumented-inunigrants/.

18

1

50. As a result, Defendants, acting under the color of state law, are violating

2 Plaintiffs' rights under the U.S. Constitution by continuing to enforce Arizona's practice
3
4 of denying driver's licenses to DACA recipients, including Plaintiffs.

5

51. Moreover, Defendants' practice of denying driver's licenses to DACA

6 recipients imposes onerous restrictions on the daily lives ofthe Individual Plaintiffs and
7 members of Plaintiff ADAC.
8
52. The ability to drive is, in most areas ofthe United States, a necessity of modem
9
10 life. Driving is essential to the ability to work, particularly in Arizona. U.S. Census

11 Bureau statistics indicate that over 87 percent of Arizonans and over 86 percent of workers
12 nationwide commute to work by car. In contrast, only two percent of all Arizonan workers
13
and five percent of workers nationwide commute to work by public transportation. 14
15 Denying driver's licenses to DACA recipients in Arizona severely frustrates their ability to

16 obtain employment and achieve economic self-sufficiency. Indeed, the necessity of
17 driving to a place of employment and/or school is so important that Arizona provides 18
licenses in a diverse range of circumstances. For example, Arizona provides a restricted
19
20 license allowing such use of a motor vehicle to many individuals who are otherwise denied

21 the right to operate a motor vehicle. See, e.g., Ariz. Rev. Stat. § 28-4145(A) (driving
22 restriction based on lack of insurance verification).
23
53. Arizona also allows those convicted of driving under the influence to do so if 24 25 their vehicle has an ignition interlock device. !d. § 28-1402.

26

54. Defendants' actions and practices are causing substantial irreparable harm to

27 Individual Plaintiffs and to ADAC's members. Because they are not licensed to drive, 28

19

I they are, inter alia, prevented from being able to drive legally in order to go to work,
2 school, church, medical appointments; to take their children or younger siblings to school
3
4 or medical appointments; to take on employment requiring a driver's license; and to
5 conduct many basic activities of everyday life. In order to manage these basic activities of

6 daily life, Individual Plaintiffs and ADAC's members are forced to rely on rides from
7 others, or risk criminal penalties and fines by driving without a license. Individual
8
Plaintiffs and ADAC's members are also harmed by having an unconstitutional policy
9
10 enforced against them.

11

55. In addition, Defendants' unlawful practice harms ADAC's ability to carry out

12 its mission and forces it to divert resources to efforts from its primary advocacy projects in
13
order to assist members who are adversely affected by the inability to obtain a driver's
14

15 license. Defendants' practice also harms both ADAC as an organization and its individual

16 members by limiting the ability of ADAC's members to travel to events related to
17 ADAC's mission and making such travel more costly.
18
56. Thus, wrongful denial of a driver's license to Individual Plaintiffs and ADAC's
19
20 members causes irreparable harm. Such harm is irreparable because no reasonable remedy

21 can make a person whole after they have been denied a license for a period oftime.

22

57. If Executive Order 2012-06 and related practices are not enjoined, Plaintiffs will

23

continue to suffer irreparable injury and continue to be hampered in conducting these basic
24

25 activities of everyday life.

26

58. There is an actual and substantial controversy between Plaintiffs and

27 Defendants. 28

20

1

59. Plaintiffs have no plain, speedy, and adequate remedy at law against Executive

2 Order 2012-06 and related practices other than the relief requested in this Complaint.

3

4

60. By enforcing Executive Order 2012-06 to deny driver's licenses to Plaintiffs,

5 Defendants are denying Plaintiffs rights secured to them under the U.S. Constitution and

6 laws.

7

61. Plaintiffs are entitled to a declaration that Executive Order 2012-06 and its

8

9 implementing policies are unconstitutional as applied to deny driver's licenses to DACA

10 recipients, and to a preliminary and permanent injunction enjoining Defendants from so

11 denying such licenses.
12
13 Defendants' Policy is Preempted By Federal Law

14

62. Article VI, clause 2, of the United States Constitution, known as the Supremacy

15
Clause, provides: "This Constitution, and the Laws of the United States which shall be 16

17 made in Pursuance thereof; and all Treaties made, or which shall be made, under the

18 Autl10rity of the United States, shall be the supreme Law of the Land; and the Judges in

19 every State shall be bound thereby, any Thing in the Constitution or Laws of any State to

20 the Contrary notwithstanding."
21

22

63. Pursuant to the Supremacy Clause, federal law preempts state regulation of any

23 area over which Congress has expressly or impliedly exercised exclusive authority or

24 which is constitutionally reserved to the federal government.
25
64. The federal government has sole and exclusive power to regulate immigration. 26 27 The federal govermnent's exclusive power over immigration matters is inherent in the
28 nation's sovereignty, and derives from the U.S. Constitution's grant to the federal

21

1 government of the power to "establish an uniform Rule of Naturalization," id. art. I, § 8,
2 cl. 4, and to "regulate Commerce with foreign Nations," id. art. I, § 8, cl. 3.
3
65. As part of its immigration power, the federal government has exclusive
4
5 authority to enact and to enforce regulations concerning which noncitizens to admit,

6 exclude, remove, or allow to remain in the United States. The federal government also has
7 exclusive authority over the terms and conditions of a noncitizen's stay in the United
8
States. Further, the federal government has exclusive authority to classifY noncitizens,
9
10 which includes determining the categories of noncitizens who are granted federal

11 authorization to remain in the United States. In contrast, state governments have none of
12 these powers.
13
66. Pursuant to its powers, the federal government has established a comprehensive
14
15 system of laws, regulations, procedures, and administrative agencies that detennine,

16 subject to judicial review, whether and under what conditions a noncitizen may enter and

17 live in the United States, when a noncitizen may be subject to removal, and when a

18
noncitizen may be eligible for relief from removal, either temporarily or pennanently.
19

20

67. In the INA, 8 U.S.C. §1101, et seq., Congress has delegated to the federal

21 Executive broad discretion over the manner of the execution of the immigration laws,
22 including the manner of their enforcement. That discretion includes the discretion to 23
decide not to pursue the removal of a noncitizen who may be removable and to authorize 24 25 such persons to remain in the United States. One way in which the Executive exercises its

26 discretionary authority is by granting noncitizens "deferred action," which allows them to

27 remain in the United States for a period of time. 28

22

1

68. Under the federal immigration system, defe1Ted action recipients, including

2 DACA grantees, are authorized to remain in the United States for the period ofthe
3
4 deferred action grant. Deferred action recipients, including DACA grantees, who are

5 granted employment authorization are authorized not only to reside in the United States

6 but to work here. Deferred action recipients, including DACA grantees, are present in the
7 United States with legal authorization and are not unlawfully present. 8
69. Executive Order 2012-06 and its implementing policies impermissibly regulate
9
10 immigration by, inter alia, creating a new, state-based classification of noncitizens that

11 treats DACA recipients as though they were unauthorized and unlawfully present.

12

70. Executive Order 2012-06 and its implementing policies, by denying driver's

13

licenses and state-issued identification cards, further impennissibly regulate immigration
14

15 because, inter alia, they impose immigration-related burdens and penalties on noncitizens

16 whose presence in the United States is authorized by the federal govermnent, and in a
17 manner not contemplated by federal law. 18
71. Executive Order 2012-06 and its implementing policies denying DACA 19
20 recipients driver's licenses conflicts with, frustrates, and serves as an obstacle to federal

21 immigration law, goals, and policies of authorizing DACA recipients to live and work in
22 the United States, to come out of the shadows, and to participate as full members of our
23
nation's communities.
24

25 Defendants' Policy Violates Equal Protection

26

72. The Defendants' decision to single out and deny driver's licenses to individuals

27 granted deferred action under the DACA program while granting licenses to all other
28

23

1 individuals granted deferred action or other fonns of temporary authorization to remain in
2 the United States does not rationally further any state goal. Instead, the singling out of
3
DACA grantees appears to reflect disagreement with President Obama's DACA policy, an 4
5 intent to target these noncitizens on the basis oftheir alienage or immigration status, and a

6 rejection of their federally authorized presence.

7

73. Executive Order 2012-06 states that the purpose for denying driver's licenses to

8

individuals granted deferred action is to prevent "unlawfully present aliens" from
9

10 "inappropriately gaining access to taxpayer funded benefits and state identification" and to

11 save money for the state. These alleged state purposes are not a valid justification for the
12 Executive Order.
13
74. As set forth above, persons granted deferred action are not unlawfully present. 14 15 Rather, they have been granted authorization to remain in the United States by federal

16 immigration officials for a certain time period, and are eligible to apply to work in the
17 United States. 18
75. The state's claim that denying driver's licenses to individuals granted defen·ed
19
20 action is necessary to save the state money is not rational. Denying driver's licenses to

21 any group of individuals would save on administrative costs. There is no valid
22 justification for singling out DACA grantees on cost grounds.
23
76. In fact, Arizona charges application fees for driver's licenses which at a
24
25 minimum serves to defray processing costs. For example, if each of the estimated of

26 80,000 individuals eligible for DACA in Arizona were granted DACA and applied for

27

28

24

1 driver's licenses, Arizona could accrue $2 million from the $25 application fee for driver's

2 licenses charged to individuals under the age of 40.

3

4

77. Ensuring that all drivers can obtain validly issued driver's licenses promotes

5 public safety for numerous reasons. For example, it ensures that drivers in a state are

6 trained and tested on the state's traffic laws. As a further example, it facilitates access to
7 insurance that can protect all drivers in case of an accident. In addition, it helps ensure
8
that police can accurately identifY individuals that they stop and that all drivers in Arizona
9
10 are accountable for their driving records.

11

12 CLASS ACTION ALLEGATIONS

13

14

78. The Individual Plaintiffs bring this action on behalf of themselves and all others

15 similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The

16 class, as proposed by Plaintiffs, consists of all persons residing in Arizona who are, or will
17 be granted deferred action, employment authorization, and a Social Security Number as a 18
result of the DACA program and who are, or will be, ineligible for an Arizona driver's
19
20 license as a result of Executive Order 2012-06 and related practices.

21

79. The requirements ofFederal Rules of Civil Procedure 23(a) and 23(b)(2) are

22 met here, in that the class is so numerous that joinder of all class members is
23 impracticable. Indeed, an estimated 80,000 DACA-eligible youth live in Arizona alone.
24

25

80. There are questions oflaw and fact common to all class members including:

26 whether Executive Order 2012-06, as implemented, violates the Supremacy Clause and the
27 Equal Protection Clause of the U.S. Constitution.· 28

25

1

81. The claims of the Individual Plaintiffs are typical ofthe proposed class. The

2 Individual Plaintiffs are all ineligible for an Arizona driver's license as a result of
3 4 Executive Order 2012-06 and implementing policies, which bar DACA recipients from

5 establishing authorized presence in the United States based on their employment

6 authorization documents.

7

82. All of the Individual Plaintiffs will fairly and adequately represent the interests

8

of all members of the proposed class, and seek relief on behalf of the class as a whole, and
9

10 have no interests antagonistic to other members of the class. The Individual Plaintiffs are

11 also represented by pro bono counsel, including the ACLU Foundation Immigrants'
12 Rights Project, the Mexican American Legal Defense and Educational Fund, the National 13
Immigration Law Center, the ACLU of Arizona, and Polsinelli Shughart PC, who
14
15 collectively have extensive experience in class action litigation, including litigation

16 regarding the rights of immigrants and constitutional law.

17

83. Finally, Defendants have acted and will act on grounds generally applicable to

18
the class in enforcing Executive Order 2012-06, thereby making final injunctive relief
19

20 appropriate with respect to the class as a whole.

21

FIRST CLAIM FOR RELIEF 22 (Supremacy Clause, Article VI, Clause 2, of the United States Constitution; 42 U.S.C.

23

§ 1983)

24

84. Plaintiffs re-allege and incorporate all of the allegations contained in the

25 previous paragraphs of this complaint as though fully set forth herein. 26
85. The Supremacy Clause, Article VI, Clause 2, ofthe U.S. Constitution, mandates
27
28 that federal law preempts state law in any area over which Congress expressly or impliedly

26

I has reserved exclusive authority or which is constitutionally reserved to the federal

2 government, including where state law conflicts or interferes with federal law.

3

4

86. In classifying DACA recipients as ineligible for driver's licenses and

5 unauthorized to be present in the United States, Executive Order 2012-06 and its

6 implementing polices are preempted by federal law for multiple reasons.

7

87. Executive Order 2012-06 and its implementing policies are preempted because

8

9 they are an impennissible state regulation of inunigration. Through Executive Order

10 2012-06 and its implementing policies, Arizona has created its own state classification of

11 noncitizens whose presence in the United States is "authorized," and erroneously classified
12 DACA recipients as lacking federal authorization to remain in the United States.
13
Arizona's creation of its own immigration classification impermissibly intrudes on the
14
15 federal government's exclusive authority to regulate immigration, and therefore violates

16 the Supremacy Clause.

17

88. Executive Order 2012-06 and its implementing policies are further preempted

18

19 because they conflict with, frustrate, and serve as an obstacle to federal immigration law,

20 goals, and policies. Arizona's misclassification ofDACA recipients as not being

21 "authorized" to be present in the United States directly and fundamentally conflicts with
22 federal law, in violation of the Supremacy Clause.
23
89. Executive Order 2012-06 and its implementing policies are also preempted
24
25 because, inter alia, they impose immigration-related burdens and penalties on noncitizens

26 whose presence in the United States is authorized by the federal government, in violation 27 of the Supremacy Clause.
28

27

1

90. Because Executive Order 2012-06 and its implementing policies are preempted

2 by federal law, they violate the Supremacy Clause.

3

4

91. Further, for all of the same reasons described above, Ariz. Rev. Stat. §§ 28-

5 3153(D), 28-3158(C), and 28-3165(F) are similarly preempted by federal law and

6 unconstitutional to the extent they compel Executive Order 2012-06 and its implementing

7 policies.

8

9

92. The foregoing allegations are repeated and incorporated as though fully set forth

10 herein.

11

12

SECOND CLAIM FOR RELIEF

13 (Equal Protection Clause, Fourteenth Amendment to the U.S. Constitution; 42 U.S.C.

14

§ 1983)

15

93. The Fourteenth Amendment to the U.S. Constitution provides that "[n]o State

16 shall ... deny to any person within its jurisdiction the equal protection of the laws."

17

94. Because Arizona's Executive Order 2012-06 and related policies and practices

18

19 bar individuals granted deferred action under the DACA program from receiving state

20 driver's licenses, they violate the Equal Protection Clause ofthe Fourteenth Amendment.

21

95. Executive Order 2012-06 constitutes impermissible discrimination by state

22 officers and officials against certain noncitizens on the basis of alienage and deprives them
23 24 of equal protection ofthe laws within the meaning of the Fourteenth Amendment to the

25 U.S. Constitution.

26

96. Defendants cannot establish that Executive Order 2012-06 and related policies

27 and practices have any valid justification, including even a rational basis. 28

28

I

97. Plaintiffs move for relief on this claim directly under the Constitution and as an

2 action seeking redress of the deprivation of statutory rights under the color of state law,
3
also under 42 U.S.C. § 1983. 4

5

6

PRAYER FOR RELIEF

7 WHEREFORE, Plaintiffs pray for the following relief:

8

9

A. A preliminary and pennanent injunction enjoining Defendants, their officials,

10

agents, employees, assigns, and all persons acting in concert or participating with

11

them from implementing or enforcing the state's illegal policy and practice of

12

denying driver's licenses to Deferred Action for Childhood Arrivals grantees;

13

14

B. A declaration pursuant to 28 U.S.C. §§ 2201 and 2202 that Arizona's policy and

15

practice of denying driver's licenses to Deferred Action for Childhood Arrivals

16

grantees is unlawful and invalid;

17

c. An order awarding Plaintiffs costs of suit, and reasonable attorneys' fees and

18

expenses pursuant to 42 U.S.C. § 1988 and any other applicable law; 19

20

II

21

II

22

II

23

24

25

26

27

28

29

1

D. Such other and further relief as the Court deems equitable, just, and proper.

2

3 Dated this 29th day of November, 2012

4

Linton Joaquin Karen C. Tumlin

5

Shiu Ming Cheer NATIONAL IMMIGRATION LAW

6

CENTER 3435 Wilshire Boulevard, Suite 2850

7

Los Angeles, CA 90010 T: (213) 639-3900

8

F: (213) 639-3911 Joaquin@nilc.org

9

Tumlin@nilc. org Cheer@nilc. org

By Is/ AndrewS. Jacob
Marty Harper Thomas K. Irvine AndrewS. Jacob POLSINELLI SHUGHART PC One East Washington, Suite 1200 Phoenix, AZ 85004 T: (602) 650.2096 F: (602) 264.7033 mharper@polsinelli.com tirvine@polsinelli. com ajacob@polsinelli. com

10

11

Victor Viramontes Nicholas Espiritu

12

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL

13

FUND 634 S. Spring Street, 11th Floor

14

Los Angeles, CA 900 14 T: (213) 629-2512

15

F: (213) 629-0266 vviramontes@MALDEF.org

16 nespiritu@MALDEF.org

17 Tanya Broder

18

NATIONAL IMMIGRATION LAW CENT§R

19

405 14 Street, Suite 1400 Oaldand, CA 94612

20

T: (510) 663-8282 F: (510) 663-2028

21 Broder@nilc.org

22

Daniel J. Pochoda Kelly J. Flood

23

James DuffLyall ACLU FOUNDATION OF ARIZONA

24

3707 North 7th Street, Suite 235 Phoenix, AZ 85014

25

T: (602) 650-1854 F: (602) 650-1376

26

dpochodalaJ,acluaz.org liflood@aCluaz. org

27 j lyall@jacluaz. org

Jennifer Chang Newell CecilliaD. Wang Michael Tan R. Orion Danjuma AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drmmn Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 jnewell@aclu.org cwang@aclu. org mtan@aclu. org odanjuma@aclu.org
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' tNGHTS PROJECT 125 Broad St., 18 Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu. org

28

Attorneysfor Plaintifft

30

 
 Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 1 of 38

1 Jennifer Chang Newell* Cecilia D. Wang*
2 Michael Tan* R. Orion Danjuma*†
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
4 IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street
5 San Francisco, CA 94111 T: (415) 343-0770
6 jnewell@aclu.org cwang@aclu.org
7 mtan@aclu.org odanjuma.org
8 Linton Joaquin*
9 Karen C. Tumlin* Shiu-Ming Cheer*
10 NATIONAL IMMIGRATION LAW CENTER
11 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010
12 T: (213) 639-3900 joaquin@nilc.org
13 tumlin@nilc.org cheer@nilc.org
14 Attorneys for Plaintiffs
15

Victor Viramontes* Nicholás Espíritu* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 T: (213) 629-2512 vviramontes@maldef.org nespiritu@maldef.org
Daniel J. Pochoda (Bar No. 021979) ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 T: (602) 650-1854 dpochoda@acluaz.org
Additional Co-Counsel on Subsequent Pages

16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 17

18

ARIZONA DREAM ACT COALITION; CASE NO. 02:12-cv-02546-DGC-PHX et al.,

19

Plaintiffs,

20

vs.

21 JANICE K. BREWER; et al. , Defendants.
22

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

23

24

25

26

27

28

2837665.4

i

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 2 of 38

1 Additional Co-Counsel

2

3

Tanya Broder* NATIONAL IMMIGRATION LAW

4 CENTER 405 14th Street, Suite 1400
5 Oakland, CA 94612

6 T: (510) 663-8282 broder@nilc.org

7

Kelly J. Flood (Bar No. 019772) James Duff Lyall (Bar No. 330045)** ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 T: (602) 650-1854 kflood@acluaz.org jlyall@acluaz.org

8 Marty Harper (Bar No. 003416)

9 Thomas K. Irvine (Bar No. 006365) Andrew S. Jacob (Bar No. 022516)
10 POLSINELLI SHUGHART PC

11

One East Washington, Suite 1200 Phoenix, AZ 85004

12 T: (602) 650-2096

13

mharper@polsinelli.com tirvine@polsinelli.com

14 ajacob@polsinelli.com

Lee Gelernt* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 lgelernt@aclu.org

15

16

*Pro hac vice **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

17 † Admitted in New York 18

Attorneys for Plaintiffs

19

20

21

22

23

24

25

26

27

28

2837665.4

ii

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 3 of 38

1

TABLE OF CONTENTS

2 I. INTRODUCTION .................................................................................................. 1

3 II. BACKGROUND .................................................................................................... 2

4

A. Deferred Action. ............................................................................................ 2

5 B. Arizona Provisions on Driver’s License Eligibility. ..................................... 3
6

7 III. ARGUMENT.......................................................................................................... 6

8

A. Defendants’ policy violates the Supremacy Clause. ..................................... 6

9

1. Under the federal immigration system, persons granted deferred

10

action are present with federal authorization........................................ 7

11

2. Arizona’s misclassification of DACA recipients as

“unauthorized” is preempted because it impermissibly attempts

12

to regulate immigration and conflicts with federal law...................... 12

13

B. Defendants’ policy violates Equal Protection. ............................................ 17

14

1. Arizona is denying driver’s licenses to DACA recipients while

15

granting driver’s licenses to similarly situated noncitizens................ 17

16 2. Discrimination against DACA recipients is subject to strict or

17

heightened scrutiny. ............................................................................ 18

18

3. Defendants’ driver’s license policy does not even pass rational

19

basis review......................................................................................... 22

20

C. The Court should grant preliminary injunctive relief.................................. 25

21

1. Plaintiffs and their members will suffer irreparable harm if the

22

Court does not grant an injunction...................................................... 25

23

2. The balance of equities tips sharply in Plaintiffs’ favor. .................... 28

24

3. The preliminary injunction will serve the public interest................... 28

25 IV. CONCLUSION .................................................................................................... 29 26

27

28

2837665.4

iii

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 4 of 38

1

TABLE OF AUTHORITIES

2 Cases

3 Alliance of the Wild Rockies v. Cottrell, 4 632 F.3d 1127 (9th Cir. 2011) ......................................................................................... 6

5

Arizona v. United States, __ U.S. __, 132 S. Ct. 2492 (2012) ........................................................................ passim

6 Armendariz v. Penman, 7 75 F.3d 1311 (9th Cir. 1996) ......................................................................................... 22

8 Bell v. Burson,

9 402 U.S. 535 (1971)................................................................................................. 16, 26

10

Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011)............................................................................ 29

11 Chalk v. United States Dist. Court,

12 840 F.2d 701 (9th Cir. 1988) ................................................................................... 27, 28

13 Clark v. Jeter,

14 486 U.S. 456 (1988)....................................................................................................... 22

15

Clark v. Martinez, 543 U.S. 371 (2005); ..................................................................................................... 11

16 Cleburne v. Cleburne Living Ctr., Inc.,

17 473 U.S. 432 (1985)....................................................................................................... 22

18 Dandamudi v. Tisch,

19 686 F.3d 66 (2d Cir. 2012) ................................................................................ 19, 20, 22

20

DeCanas v. Bica, 424 U.S. 351 (1976)............................................................................................. 6, 12, 14

21 Dept. Agriculture v. Moreno,

22 413 US 528 (1973)......................................................................................................... 22

23 Diaz v. Brewer,

24 656 F.3d 1008 (9th Cir. 2012) ....................................................................................... 23

25

Elkins v. Moreno, 435 U.S. 647 (1978)....................................................................................................... 15

26 Enyart v. Nat’l Conference of Bar Examiners, Inc.,

27 630 F.3d 1153 (9th Cir. 2011) ....................................................................................... 25

28

2837665.4

iv

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 5 of 38

1 Equal Access Educ. v. Merten,

2 305 F. Supp. 2d 585 (E.D. Va. 2004) ...................................................................... 13, 14

3

Fair Hous. of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) ......................................................................................... 27

4 FCC v. Beach Communications, Inc.,

5 508 U.S. 307 (1993)....................................................................................................... 23

6 Ga. Latino Alliance for Human Rights v. Governor of Ga.,

7 691 F.3d 1250 (11th Cir. 2012) ....................................................................................... 9

8

Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012)..................................................................... 20, 21

9 Graham v. Richardson,

10 403 U.S. 365 (1971)........................................................................................... 18, 19, 20

11 Heller v. Doe,

12 509 U.S. 312 (1993)....................................................................................................... 22

13

High Tech Gays v. Defense Ind. Sec. Clearance Off., 895 F.2d 563 (9th Cir. 1990) ......................................................................................... 21

14 Hispanic Interest Coal. of Ala. v. Bentley,

15 No. 5:11–CV–2484–SLB, 2011 WL 5516953 (N.D. Ala. Sept. 28, 2011)............... 9, 14

16 In re Monreal-Aguinana,

17 23 I&N Dec. 56 (BIA 2001)............................................................................................ 8

18

Kinney v. Int’l Union of Operating Eng’rs, Loc. 150, 994 F.2d 1271 (7th Cir. 1993) ....................................................................................... 25

19 Klein v. City of Laguna Beach,

20 381 F. App’x 723 (9th Cir. 2010).................................................................................... 6

21 League of United Latin Am. Citizens v. Bredesen,

22 500 F.3d 523 (6th Cir. 2007) ......................................................................................... 20

23

League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) .......................................................................... 13, 14

24 LeClerc v. Webb,

25 419 F.3d 405 (5th Cir. 2005) ......................................................................................... 20

26 Ligon v. City of New York, 27 No: 12 CIV 2274 SAS, 2012 WL 3597066 (S.D.N.Y. Aug. 21, 2012) ........................ 26

28

Lozano v. Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007)............................................................................ 21

2837665.4

v

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 6 of 38

1 Mathews v. Lucas,

2 427 U.S. 495 (1976)....................................................................................................... 20

3

Matter of Pena-Diaz, 20 I&N Dec. 841 (BIA 1994).......................................................................................... 8

4 Matter of Quintero,

5 18 I&N Dec. 348 (BIA 1982).......................................................................................... 8

6 Miller v. Anckaitis,

7 436 F.2d 115 (3d Cir. 1970) .................................................................................... 16, 26

8

Miller v. Ca. Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993) ......................................................................................... 28

9 Mills v. District of Columbia,

10 571 F.3d 1304 (D.C. Cir. 2009)..................................................................................... 26

11 Monterey Mech. Co. v. Wilson,

12 125 F.3d 702 (9th Cir. 1997) ......................................................................................... 25

13

Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)....................................................................................................... 25

14 Nat’l Ctr. For Immigrants’ Rights, Inc. v. INS,

15 743 F.2d 1365 (9th Cir. 1984) ....................................................................................... 28

16 Nat'l Fair Hous. Alliance v. A.G. Spanos Const., Inc.,

17 542 F. Supp. 2d 1054 (N.D. Cal. 2008)......................................................................... 27

18

Nyquist v. Mauclet, 432 U.S. 1 (1977).................................................................................................... passim

19 O’Brien v. Town of Caledonia,

20 748 F.2d 403 (7th Cir. 1984) ......................................................................................... 29

21 Perry v. Brown,

22 671 F.3d 1052 (9th Cir. 2012) ....................................................................................... 23

23

Plyler v. Doe, 457 U.S. 202 (1982)........................................................................................... 13, 19, 20

24 Pruitt v. Cheney,

25 963 F.2d 1160 (9th Cir. 1992) ....................................................................................... 23

26 Reed v. Reed,

27 404 U.S. 71 (1971)......................................................................................................... 22

28

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)......................................................................................................... 8

2837665.4

vi

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 7 of 38

1 Romer v. Evans,

2 517 U.S. 620 (1996)................................................................................................. 22, 23

3

Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002) ......................................................................................... 29

4 Sierra Forest Legacy v. Rey,

5 577 F.3d 1015 (9th Cir. 2009) ......................................................................................... 6

6 Textile Unlimited, Inc. v. A. BMH & Co.,

7 240 F.3d 781 (9th Cir. 2001) ........................................................................................... 6

8

Toll v. Moreno, 458 U.S. 1 (1982)..................................................................................................... 14, 21

9 Truax v. Raich,

10 239 U.S. 33 (1915)......................................................................................................... 12

11 United States v. Alabama,

12 691 F.3d 1269 (11th Cir. 2012) ....................................................................................... 8

13

United States v. Virginia, 518 U.S. 515 (1996)....................................................................................................... 22

14 Villas at Parkside Partners v. City of Farmers Branch,

15 577 F. Supp. 2d 858 (N.D. Tex. 2008) .......................................................................... 25

16 Windsor v. United States,

17 699 F.3d 169 (2d Cir. 2012) .......................................................................................... 20

18

Winters v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)....................................................................................................... 6, 25

19 Wooley v. Maynard,

20 430 U.S. 705 (1977)....................................................................................................... 26

21 Wright v. Incline Village Gen. Improvement Dist.,

22 665 F.3d 1128 (9th Cir. 2011) ....................................................................................... 22

23

Zadvydas v. Davis, 533 U.S. 678 (2001)....................................................................................................... 11

24 Statutes
25 49 U.S.C. § 30301 ............................................................................................................... 9

26 8 U.S.C. § 1103 ................................................................................................................... 7

27 8 U.S.C. § 1158 ................................................................................................................. 11
28 8 U.S.C. § 1182 ................................................................................................................. 10

2837665.4

vii

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 8 of 38

1 8 U.S.C. § 1254a................................................................................................................ 11
2 8 U.S.C. § 1255 ................................................................................................................. 11
3 A.R.S. § 28-3153 ........................................................................................................ passim 4 A.R.S. § 28-3158 ................................................................................................................. 3 5 A.R.S. § 28-3165 ................................................................................................................. 3 6 A.R.S. § 28-336 ................................................................................................................... 9 7
Regulations 8 28 C.F.R. § 1100.35....................................................................................................... 8, 10 9 45 C.F.R. § 152.2................................................................................................................. 9 10 6 C.F.R. § 37.1..................................................................................................................... 9 11 6 C.F.R. § 37.3..................................................................................................................... 9 12
8 C.F.R. § 1.3..................................................................................................................... 11 13
8 C.F.R. § 2.1....................................................................................................................... 7 14
8 C.F.R. § 208.7................................................................................................................. 11 15
8 C.F.R. § 214.14............................................................................................................... 10 16
8 C.F.R. § 274a.12(c) .................................................................................................. 10, 18 17 18 Other
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, 161-62 (1980)... 21 19
20
21
22
23
24
25
26
27
28

2837665.4

viii

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 9 of 38

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Plaintiffs respectfully move this Court to enjoin Defendants from unlawfully

4 denying them and their members Arizona driver’s licenses. Plaintiffs and their members

5 are young immigrants residing in Arizona who arrived in the United States as children,

6 have lived here for years, and have overcome innumerable obstacles to pursue an

7 education, support their families, and succeed in their lives. In light of the humanitarian

8 factors and strong equities in their favor, Plaintiffs and their members have been granted

9 deferred action under the federal government’s Deferred Action for Childhood Arrivals

10 (“DACA”) program, and have thus received federal authorization to live and work in the

11 United States for a renewable two-year period. Yet despite federal action authorizing

12 their presence, Defendants have deemed Plaintiffs and their members categorically

13 ineligible for driver’s licenses, see Ranahan Decl., Ex. A (Executive Order 2012-06), thus

14 making it essentially impossible for individuals who live in Arizona to avail themselves

15 of the benefits of the DACA program in their state.

16

Defendants assert that Plaintiffs are ineligible for driver’s licenses because youth

17 granted deferred action under DACA are not “authorized” to be present in the United

18 States. This assertion is wholly erroneous and Defendants’ driver’s license policy is

19 preempted by federal immigration law, and violates the Supremacy Clause. Defendants’

20 policy impermissibly applies a state-law classification to DACA recipients and places the

21 State of Arizona in conflict with federal immigration law and policy.

22

Arizona’s policy also violates the Fourteenth Amendment Equal Protection Clause

23 because it makes DACA recipients who obtain work authorization documents ineligible

24 for driver’s licenses when similarly situated individuals – including all other individuals

25 granted deferred action – remain eligible for licenses and continue to receive them.

26

Defendants’ illegal policy causes Plaintiffs and their members irreparable harm and

27 interferes with their ability to meet their daily needs, such as attending school or work,

28 driving their children or loved ones to school or medical appointments, or going to the

1
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 10 of 38

1 grocery store. Because Plaintiffs are likely to succeed on the merits of their claims, and

2 because they satisfy the remaining injunction factors, Plaintiffs seek a preliminary

3 injunction barring Defendants’ unlawful driver’s license policy while the merits of their

4 claims are finally determined.

5 II. BACKGROUND

6

A. Deferred Action.

7

Deferred action is a longstanding form of prosecutorial discretion in which the

8 federal government decides, often based on humanitarian reasons, to refrain from seeking

9 a noncitizen’s removal and to authorize her continued presence in the United States. See,

10 e.g., Yale-Loehr Decl. ¶ 5. Individuals granted deferred action are eligible to obtain

11 employment authorization, 8 C.F.R. § 274a.12(c)(14), and a Social Security Number.

12 See, e.g., Ranahan Decl., Ex. B (Social Security Administration, Social Security Number

13 – Deferred Action for Childhood Arrivals).

14

For over four decades, the federal government has used deferred action to authorize

15 numerous groups of immigrants to live and work in the United States for a temporary and

16 renewable period. See Yale-Loehr Decl. ¶¶ 8-9. Deferred action has been made available

17 to victims of human trafficking and sexual exploitation; to relatives of victims of

18 terrorism; to surviving family members of a lawful permanent resident member of the

19 armed forces; to spouses and children of U.S. citizens or lawful permanent residents who

20 are survivors of domestic violence; to surviving spouses of U.S. citizens; to foreign

21 students affected by Hurricane Katrina; and to applicants for certain types of visas. See

22 Yale-Loehr Decl. ¶¶ 13-19. In addition, the federal government may grant deferred action

23 on an individual basis: for example, where the person’s continued presence is desired by

24 law enforcement for an ongoing investigation. See Cooper Decl. ¶¶ 17-19.

25

Most recently, on June 15, 2012, the Secretary of the U.S. Department of Homeland

26 Security (“DHS”) announced that certain youth present in the United States without

27 immigration status would be eligible to obtain deferred action if they meet specified

28 criteria. See Ranahan Decl., Ex. C (Janet Napolitano, Memo. on Exercising Prosecutorial

2
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 11 of 38

1 Discretion with Respect to Individuals Who Came to the United States as Children, June

2 15, 2012, at 2-3 (hereinafter “Napolitano Memo.”)). Individuals granted deferred action

3 under DACA are permitted to remain in the United States for a renewable period of two

4 years; are shielded from removal proceedings during that time; are required to apply for

5 federal employment authorization; and may apply for a Social Security Number. Id.

6 DACA recipients, like all other recipients of deferred action, are authorized to be present

7 in the United States during the deferred action period. See Cooper Decl. ¶¶ 24-27; Yale-

8 Loehr Decl. ¶¶ 24, 32.

9

To apply for deferred action under DACA, young immigrants who entered the

10 United States as children must meet several educational and residency requirements,

11 submit an application to the federal government, undergo extensive criminal background

12 checks, and establish that their individual circumstances justify a grant. See Ranahan

13 Decl., Ex. C (Napolitano Memo. at 1); Ranahan Decl., Ex. D (USCIS, Consideration of

14 Deferred Action for Childhood Arrivals Process (Sept. 12, 2012)).1

15

B. Arizona Provisions on Driver’s License Eligibility.

16

Both before and after the announcement of the DACA program, Arizona law

17 required an applicant for an instruction permit, driver’s license, or identification card to

18 submit proof that her “presence in the United States is authorized under federal law.”

19 A.R.S. §§ 28-3153(D), 28-3158 (C), 28-3165 (F). Specifically, A.R.S. § 28-3153(D)

20

21

1 Noncitizens are eligible for DACA if they: a) were under the age of 31 as of June

22 15, 2012; b) came to the United States before reaching their 16th birthday; c) have

continuously resided in the country from June 15, 2007 to the present; d) were physically 23 present in the country on June 15, 2012, and at the time of making the request for

24 deferred action; e) entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012; f) are currently in school, have graduated

25 or obtained a certificate of completion from high school, have obtained a general

26

education development (“GED”) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and g) have not been convicted of

27 a felony, significant misdemeanor, or three or more other misdemeanors, and do not

otherwise pose a threat to national security or public safety. Ranahan Decl., Ex. C 28 (Napolitano Memo. at 2).

3
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 12 of 38

1 provides that “the [Arizona Department of Transportation (“ADOT”)] shall not issue to

2 or renew a driver license or nonoperating identification license for a person who does not

3 submit proof satisfactory to the department that the applicant’s presence in the United

4 States is authorized under federal law.” A.R.S. § 28-3153(D) (emphasis added). The

5 statute further provides that ADOT shall make rules for “[v]erification that the

6 applicant’s presence in the United States is authorized under federal law.” Id. at § 28-

7 3153(D)(1).

8

The policy of the Arizona Motor Vehicles Division (“MVD”) prior to the

9 announcement of the DACA program was that an employment authorization document

10 (“EAD”) or card was sufficient to prove that an applicant’s presence was “authorized

11 under federal law.” See Pochoda Decl., Ex. C (Arizona MVD, Primary and Secondary

12 Forms of Acceptable Documentation (rev. Nov. 30, 2010)). Deferred action recipients

13 who obtained federal employment authorization were able to meet the “authorized”

14 presence requirement by submitting their EADs. See Jeffries Decl. ¶ 11. Thus, Plaintiffs

15 and other DACA beneficiaries would have been able to meet the “authorized presence”

16 requirement under the previous state policy and obtain Arizona driver’s licenses by

17 submitting their EADs.

18

However, on August 15, 2012 – the first day the federal government began

19 accepting DACA applications – Defendant Brewer issued Executive Order 2012-06,

20 instructing state agencies to take necessary steps to “prevent Deferred Action recipients

21 from obtaining eligibility . . . for any . . . state identification, including a driver’s license.”

22 See Ranahan Decl., Ex. A (Executive Order 2012-06). The Executive Order purports to

23 “Re-affirm[] [the] Intent of Arizona Law in Response to the Federal Government’s

24 Deferred Action Program[.]” Id.

25

The Executive Order explains that “Arizona Revised Statutes 28-3153 prohibits

26 [ADOT] from issuing a drivers [sic] license or nonoperating identification license unless

27 an applicant submits proof satisfactory to ADOT that the applicant’s presence in the

28 United States is authorized under federal law[.]” Id. The Executive Order further opines

4
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 13 of 38

1 that “the Deferred Action program does not and cannot confer lawful or authorized status

2 or presence upon the unlawful alien applicants” and that “[t]he issuance of Deferred

3 Action or Deferred Action USCIS employment authorization documents to unlawfully

4 present aliens does not confer upon them any lawful or authorized status[.]” Id. The

5 Executive Order thus concludes that deferred action recipients are unable to meet the

6 “authorized” presence requirement for driver’s licenses and identification.

7

In a public statement made the same day she issued the Executive Order, Defendant

8 Brewer explained that the Order was intended to clarify that there would be “no drivers

9 [sic] licenses for illegal people.” Ranahan Decl., Ex. E (Terry Greene Sterling, The Daily

10 Beast, Gov. Jan Brewer Battles Obama’s DREAM Directive in Arizona (Aug. 17,

11 2012)).2 Defendant Brewer stated: “They are here illegally and unlawfully in the state of

12 Arizona, and it’s already been determined that you’re not allowed to have a driver’s

13 license if you are here illegally.” See Ranahan Decl., Ex. F (Fox News Latino, Jan

14 Brewer Bars IDs, Benefits for Undocumented Immigrants in Arizona (Aug. 16, 2012)).

15 She further stated, “The Obama amnesty plan doesn’t make them legally here.” Id.

16

To implement the Executive Order, the Arizona MVD revised its policy regarding

17 acceptance of EADs as proof of authorized presence. The new policy expressly excludes

18 EADs resulting from the DACA program from a long list of acceptable evidence of

19 authorized presence for applying for a driver’s license or identification card. See Pochoda

20 Decl., Ex. D (Arizona MVD Policy 16.1.4(S) (rev. Sept. 18, 2012)). However, for all

21 other recipients of deferred action (i.e. other than DACA beneficiaries), and, indeed, all

22 other classes of noncitizens, EADs will continue to be accepted as proof of authorized

23 status. See Pochoda Decl., Ex. E (Arizona MVD, Primary and Secondary Forms of

24 Acceptable Documentation (rev. Sept. 18, 2012)). These other classes of noncitizens

25

26

27 2 See also, e.g., Ranahan Decl. ¶ 5 (Arizona Channel 12 News Video, Why did
28 Brewer issue “dreamer” order? (Aug. 15, 2012)).

5
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 14 of 38

1 remain eligible for driver’s licenses and continue to receive them. See Jeffries Decl. ¶¶ 7-

2 11.

3 III. ARGUMENT

4

Plaintiffs are entitled to a preliminary injunction to suspend enforcement of

5 Executive Order 2012-06 and its implementing policies. A preliminary injunction should

6 ordinarily be granted when the moving party establishes: (1) a likelihood of success on

7 the merits; (2) that he or she is likely to suffer irreparable harm in the absence of

8 preliminary relief; (3) that the balance of equities tips in his or her favor; and (4) that an

9 injunction is in the public interest. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th

10 Cir. 2009) (citing Winters v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20

11 (2008)). “The same standard applies regardless of whether the movant seeks to maintain

12 the status quo or to halt an ongoing deprivation of rights.” Klein v. City of Laguna Beach,

13 381 F. App’x 723, 725 (9th Cir. 2010) (citing Textile Unlimited, Inc. v. A. BMH & Co.,

14 240 F.3d 781, 786 (9th Cir. 2001)). However, where “the balance of hardships tips

15 sharply in the plaintiff’s favor,” the plaintiff need only “demonstrate[] . . . that serious

16 questions going to the merits were raised” to justify an injunction. Alliance of the Wild

17 Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citation omitted). Plaintiffs

18 meet these elements here under either standard.

19

A. Defendants’ policy violates the Supremacy Clause.

20

Plaintiffs are likely to succeed on the merits of their preemption claim. In the

21 immigration context, state action is “per se pre-empted” if it amounts to a regulation of

22 immigration because the Constitution grants that power exclusively to the federal

23 government. DeCanas v. Bica, 424 U.S. 351, 355 (1976). In addition, state action may be

24 expressly or impliedly preempted by federal law. See, e.g., Arizona v. United States, __

25 U.S. __, 132 S. Ct. 2492, 2500-01 (2012). Here, Arizona’s driver’s license policy is per

26 se preempted as a regulation of immigration and impliedly preempted because it conflicts

27 with federal law. While Arizona law expressly conditions the issuance of drivers’

28 licenses on proof that “the applicant’s presence in the United States is authorized under

6
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 15 of 38

1 federal law,” A.R.S. § 28-3153(D), Executive Order 2012-06 states that “the Deferred

2 Action program does not and cannot confer lawful or authorized status or presence upon

3 the unlawful alien applicants,” and thereby renders DACA recipients ineligible for

4 driver’s licenses. Yet numerous authorities confirm that under federal immigration law,

5 deferred action provides federal authorization to remain in the United States. Thus,

6 Executive Order 2012-06 violates the Supremacy Clause because its classification of

7 DACA recipients as “unauthorized” to be present in the United States amounts to a state-

8 created immigration classification that impermissibly intrudes upon the federal

9 government’s exclusive power to regulate immigration and conflicts with federal law.

10 1. Under the federal immigration system, persons granted deferred

11

action are present with federal authorization.

12

As set forth below, deferred action is by federal definition a grant of authorization

13 to be present in the United States. Both the Board of Immigration Appeals (“BIA”) and

14 the federal courts have long recognized that deferred action grants authorization to

15 remain in the country. Likewise, Congress has specifically provided, in the context of

16 legislation concerning federally recognized driver’s licenses, that deferred action is a

17 period of authorized stay. In addition, DHS regulations make clear that noncitizens

18 granted deferred action are authorized to be present in the United States.

19

As an initial matter, the Secretary of Homeland Security’s authority to grant

20 deferred action to otherwise removable noncitizens derives from her statutory authority

21 over “administration and enforcement” of the Immigration and Nationality Act (“INA”),

22 including the power to “perform such . . . acts as [s]he deems necessary for carrying out

23 [her] authority.” 8 U.S.C. §§ 1103(a)(1), 1103(a)(2); see also 8 C.F.R. § 2.1. As the

24 Supreme Court explained in Arizona, “[a] principal feature of [Congress’s] removal

25 system is the broad discretion exercised by immigration officials.” 132 S. Ct. at 2499.

26 Significantly, the discretion granted by Congress includes the discretion to decide not to

27 pursue the removal of a noncitizen, and to authorize such persons to remain in the United

28 States. See id. (“[f]ederal officials” have discretion to “decide whether it makes sense to

7
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 16 of 38

1 pursue removal at all”); United States v. Alabama, 691 F.3d 1269, 1295 (11th Cir. 2012)

2 (“It is [] obvious from the statutory scheme that Congress intends the Executive Branch

3 to retain discretion over expulsion decisions and applications for relief.”). Deferred action

4 is simply one manifestation of the general discretionary authority that Congress has

5 granted to the Executive in immigration matters. See Yale-Loehr Decl. ¶¶ 6-7.

6

The federal government’s granting of deferred action unambiguously provides the

7 noncitizen with authorization to remain in the United States. Indeed, that is the very point

8 of deferred action: it is a decision by the federal government to allow an otherwise

9 removable noncitizen to remain for a specified period. See, e.g., Cooper Decl. ¶¶ 27, 37;

10 Ranahan Decl., Ex. G (USCIS Ombudsman, Deferred Action: Recommendations to

11 Improve Transparency and Consistency in the USCIS Process, 2 (July 11, 2011)) (“A

12 grant of deferred action indicates that . . . the named individual may remain,

13 provisionally, in the United States.”). Deferred action status indicates that the

14 noncitizen’s presence in the country is known to the federal government, and that the

15 government has made a formal determination not to remove him, and to allow him to

16 remain, during the period of the deferred action grant. See, e.g., Cooper Decl. ¶ 18; Reno

17 v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (“Approval of

18 deferred action status means that . . . no action will thereafter be taken to proceed against

19 an apparently deportable alien”); see also, e.g., 28 C.F.R. § 1100.35(b) (explaining, in the

20 context of trafficking victims, that deferred action is a “mechanism to ensure the aliens’s

21 continued presence in the United States”).

22

Thus, the BIA has long held that “deferred action status is . . . permission to remain

23 in this country.” Matter of Quintero, 18 I&N Dec. 348, 349 (BIA 1982); see also, e.g.,

24 Matter of Pena-Diaz, 20 I&N Dec. 841, 846 (BIA 1994) (deferred action status

25 “affirmatively permit[s] the alien to remain”) (emphasis added); accord In re Monreal-

26 Aguinana, 23 I&N Dec. 56, 62 n.3 (BIA 2001). Federal courts have similarly recognized

27 that deferred action reflects authorization or permission to remain in the United States.

28 See, e.g., Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250,

8
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 17 of 38

1 1258-59 (11th Cir. 2012) (a noncitizen “currently classified under ‘deferred action’ status

2 . . . remains permissibly in the United States” “[a]s a result of this status”); Hispanic

3 Interest Coal. of Ala. v. Bentley, No. 5:11–CV–2484–SLB, 2011 WL 5516953, at *20

4 n.11 (N.D. Ala. Sept. 28, 2011), vacated as moot, 691 F.3d 1236 (11th Cir. 2012)

5 (noncitizens granted deferred action are persons “whom the federal government has

6 authorized to remain in the United States”).

7

This conclusion is confirmed by Congress’s treatment of deferred action. Congress

8 has specifically indicated that “approved deferred action status” constitutes “a period of

9 . . . authorized stay in the United States” for the purpose of issuing driver’s licenses that

10 are valid as federal identification. REAL ID Act, 49 U.S.C. § 30301 note, Sec.

11 202(c)(2)(B)(viii),(C)(ii) (providing that complying states may issue a temporary driver’s

12 license to persons with “approved deferred action status” for “the period of time of the

13 applicant’s authorized stay in the United States”). Thus, federal law expressly defines

14 “lawful status” for driver’s license purposes to include “approved deferred action status.”

15 49 U.S.C. § 30301 note, Sec. 202(c)(2)(B)(viii); see also 6 C.F.R. § 37.3 (same).3

16 Notably, Congress made no distinction between individuals or groups granted deferred

17 action in deeming them to be “authorized” for the purpose of issuing driver’s licenses.4

18

19

3 To be sure, states are free to choose, as Arizona has, not to comply with the REAL ID Act’s heightened security standards. See, e.g., 6 C.F.R. § 37.1 (explaining that the

20 REAL ID requirements “apply to States . . . that choose to issue [federally valid] driver’s licenses and identification cards”) (emphasis added); A.R.S. § 28-336 (prohibiting REAL
21 ID implementation in Arizona). States also may opt not to verify immigration status as a

22 condition of issuing driver’s licenses and provide licenses to undocumented immigrants. See 49 U.S.C. § 30301 note, Sec. 202(d)(11); 6 C.F.R. § 37.71. However, where (as here)
23 the state chooses to condition licenses on “authorized” presence, it is preempted from

24

defining “authorized” presence in a manner that conflicts with its treatment under federal law. See § III.A.2, infra.

25

4 In the narrow instances when a federal agency intends for DACA recipients to be

26 treated differently from other deferred action recipients, it has explicitly so specified. See, e.g., 45 C.F.R. § 152.2(4)(vi) (Department of Health and Human Services regulation
27 implementing the Affordable Care Act providing that “[a]n individual with deferred

28 action under [DACA] . . . shall not be considered to be lawfully present with respect to” eligibility for certain health care coverage).

9
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 18 of 38

1

Likewise, numerous immigration regulations confirm that DHS treats deferred

2 action as authorization to remain in the United States. Under DHS regulations,

3 noncitizens with deferred action are eligible for employment authorization, and the

4 agency regularly grants such authorization. The granting of work authorization to

5 deferred action recipients reinforces that DHS permits them to be present in the United

6 States, for they can only work in the United States if they are present here. See 8 C.F.R. §

7 274a.12(c)(14).

8

In addition, DHS specifically considers deferred action recipients to be present

9 pursuant to a “period of stay authorized by the Attorney General,” and thus not

10 “unlawfully present,” for the purposes of the bars on re-admission of certain noncitizens

11 under 8 U.S.C. § 1182 (a)(9)(B). See, e.g., Ranahan Decl., Ex. H (Memorandum of

12 Donald Neufeld, Acting Assoc. Dir., USCIS, Consolidation of Guidance Concerning

13 Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the

14 Act, May 2009, at 6-7, 42 (hereinafter “Neufeld Memo.”)). Although the INA does not

15 contain a general definition of “unlawful presence,” the INA does use the term “unlawful

16 presence” for the purpose of setting out the circumstances in which certain previously

17 unlawfully present noncitizens who depart the United States and then seek re-admission

18 are barred from re-entry.5 Deferred action recipients are not “unlawfully present” under

19 this definition. See, e.g., id. (Neufeld Memo. at 6-7, 42); accord 8 C.F.R. § 214.14(d)(3);

20 28 C.F.R. § 1100.35(b)(2). Thus, USCIS has explained that under the DACA program,

21 “an individual whose case is deferred will not be considered to be accruing unlawful

22 presence in the United States during the period deferred action is in effect.” Ranahan

23 Decl., Ex. I (USCIS, Frequently Asked Questions, Consideration of Deferred Action for

24 Childhood Arrivals Process, Q1 (Sept. 14, 2012)); see also id. at Q5, Q6.

25

26

5 Section 1182(a)(9)(B) provides that noncitizens who have been unlawfully present

27 for at least 180 days, departed the United States, and then sought re-admission are

inadmissible to the United States for a period of either three years or ten years depending 28 on the length of the unlawful presence. 8 U.S.C. § 1182(a)(9)(B).

10
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 19 of 38

1

Similarly, DHS regulations explain for the purposes of determining eligibility for

2 Title II Social Security benefits an “alien[] currently in deferred action status” is an alien

3 “lawfully present” and “permitted to remain in” the United States. 8 C.F.R. §

4 1.3(a)(4)(iv).

5

Although deferred action does not confer a formal “immigration status,”6 under the

6 federal immigration system, an individual’s lack of a formal immigration status does not

7 mean that his presence in the United States is not authorized. See Cooper Decl. ¶ 23;

8 Yale-Loehr Decl. ¶ 22. Indeed, numerous categories of persons lacking immigration

9 status are nonetheless authorized by the federal government to be present in the United

10 States. See Cooper Decl. ¶ 26; Yale-Loehr Decl. ¶ 24-31. Such persons include not only

11 DACA recipients and other individuals granted deferred action, but also persons who

12 have pending applications to adjust to a lawful status pursuant to the Violence Against

13 Women Act (“VAWA”), see 8 U.S.C. § 1255(i), (m); certain applicants for asylum, see 8

14 U.S.C. § 1158(d)(2); 8 C.F.R. § 208.7(a)(1); persons who are applying for “temporary

15 protected status” under 8 U.S.C. § 1254a; and persons with final orders of removal who

16 cannot be removed from the United States. See Clark v. Martinez, 543 U.S. 371 (2005);

17 Zadvydas v. Davis, 533 U.S. 678 (2001).

18

In sum, recipients of deferred action – including those under the DACA program –

19 are clearly authorized by the federal government to remain in the United States during the

20 period of the deferred action grant.

21

//

22

//

23

//

24

25

26

6 “Immigration status” is a specialized term referring to federal immigration

27 classifications involving noncitizens temporarily admitted as “nonimmigrants,”

permanently admitted as “immigrants,” and certain other limited classifications 28 established under federal law, such as temporary protected status. Cooper Decl. ¶ 25.

11
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 20 of 38

1

2

2. Arizona’s misclassification of DACA recipients as “unauthorized” is preempted because it impermissibly attempts to regulate

3

immigration and conflicts with federal law.

4

Arizona has conditioned its driver’s licenses on whether applicants can prove that

5 their “presence in the United States is authorized under federal law.” A.R.S. § 28-

6 3153(D). However, rather than deferring to federal categories and classifications with

7 respect to the DACA program, Executive Order 2012-06 decrees that DACA “does not

8 and cannot confer lawful or authorized status or presence upon the unlawful alien

9 applicants,” and that DACA recipients are therefore ineligible “for any . . . state

10 identification, including a driver’s license.” Ranahan Decl., Ex. A (Executive Order

11 2012-06). In deeming DACA recipients “unauthorized” to be present in the United States

12 and thus ineligible for driver’s licenses, Executive Order 2012-06 and its implementing

13 policies are wholly inconsistent with federal law and are preempted for at least two

14 independent reasons.

15

First, Arizona impermissibly intrudes on the federal government’s exclusive power

16 to regulate immigration by taking the power to create alien classifications into its own

17 hands. It is well-established that the Constitution gives the federal government sole and

18 exclusive power to regulate immigration. DeCanas, 424 U.S. at 354; Truax v. Raich, 239

19 U.S. 33, 42 (1915). See also, e.g., Arizona, 132 S.Ct. at 2498. State or local law that

20 regulates immigration is “per se pre-empted by this constitutional power, whether latent

21 or exercised.” DeCanas, 424 U.S. at 355.

22

In particular, the power to classify aliens is a core component of the federal

23 government’s exclusive power. As the Supreme Court explained in Plyler v. Doe,

24

This [classification] power “is committe d to the political branches of the

25

Federal Government.” Although it is “a routine and normally legitimate part” of the busi ness of the Federal Gover nment to classify on the basis of alien

26

status, and to “take into account the ch aracter of the relationship between the

27

alien and this country,” only rarely are such matters relevant to legislation by a State.

28

12
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 21 of 38

1 457 U.S. 202, 225 (1982) (internal citations omitted) (quoting Mathews v. Diaz, 426 U.S.

2 67, 80-81, 84-85 (1976)). Accordingly, “[t]he States enjoy no power with respect to the

3 classification of aliens.” Id. See also id. at 219 n.19; Toll v. Moreno, 458 U.S. 1, 10

4 (1982) (noting “the substantial limitations upon the authority of the States in making

5 classifications based upon alienage.”); Nyquist v. Mauclet, 432 U.S. 1, 7 n.8 (1977)

6 (“Congress, as an aspect of its broad power over immigration and naturalization, enjoys

7 rights to distinguish among aliens that are not shared by the States.”). At most, states

8 may, in some circumstances, “borrow the federal classification,” Plyler, 457 U.S. at 226,

9 or “follow the federal direction,” but “[n]o State may independently exercise” the power

10 to classify aliens. Id. at 219 n.19; see also id. at 225 (“The States enjoy no power with

11 respect to the classification of aliens.”); accord Equal Access Educ. v. Merten, 305 F.

12 Supp. 2d 585, 602-03 (E.D. Va. 2004).

13

Here, Arizona has created its own classification of noncitizens that are “authorized”

14 under federal law and deemed DACA grantees unauthorized. Although Arizona law uses

15 federal terminology (“presence . . . authorized under federal law,” A.R.S. § 28-3153(D)),

16 the Executive Order establishes a state classification of authorized presence that

17 contradicts the federal treatment of DACA grantees. Thus, Arizona’s classification

18 scheme is preempted because it usurps the exclusive federal power to classify noncitizens

19 and therefore amounts to a regulation of immigration. See, e.g., Equal Access Educ., 305

20 F. Supp. 2d at 603 (explaining that restrictions on postsecondary admission “would

21 amount to a regulation of immigration” if state officials “failed to adopt federal

22 immigration standards . . . and instead . . . either implicitly or explicitly developed their

23 own, different standards”).

24

Federal courts have found state classifications constitutionally preempted under

25 analogous circumstances. For example, in League of United Latin Am. Citizens v. Wilson,

26 908 F. Supp. 755 (C.D. Cal. 1995), the Court held that California’s Proposition 187 was

27 an impermissible regulation of immigration because it created a classification system for

28 public benefits purposes that was not “tied to federal standards,” id. at 772, but rather “an

13
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 22 of 38

1 entirely independent set of criteria by which to classify individuals based on immigration

2 status.” Id. at 769-70. Similarly, in Bentley, the court concluded that section 8 of

3 Alabama’s H.B. 56 was preempted because it impermissibly created a state definition of

4 “lawful presence” for purposes of admission to public higher education that excluded

5 numerous categories of noncitizens who were in fact lawfully present under federal law

6 — including deferred action recipients. 2011 WL 5516953, at *23. Here Arizona also has

7 sought to regulate immigration impermissibly by creating its own idiosyncratic

8 classification of immigrants whose presence is “authorized under federal law,” and by

9 improperly excluding DACA recipients from its definition.

10

Second, Arizona’s policy is conflict preempted because it defines “authorized”

11 presence in a manner that is inconsistent with federal immigration law and that

12 undermines federal discretion and control over immigration matters. The Supreme Court

13 has held that a state law conflicts with federal law where, inter alia, it “stands as an

14 obstacle to the accomplishment and execution of the full purposes and objectives of

15 Congress.” DeCanas, 424 U.S at 363 (internal punctuation and citations omitted). See

16 also, e.g., Arizona, 132 S.Ct. at 2501. That is precisely the situation here.

17

Having chosen to condition eligibility for driver’s licenses on federally “authorized”

18 presence, Arizona may not define such presence in a manner inconsistent with federal

19 law. See, e.g., DeCanas, 424 U.S. at 364-65 (remanding on conflict preemption grounds,

20 but suggesting that a state classification of noncitizens eligible for work that conflicts

21 with federal law would be preempted); Equal Access Educ., 305 F. Supp. 2d at 608

22 (holding that state-created standards “to determine an applicant’s immigration status”

23 constitute “a classification system in conflict with federal immigration laws”).

24

Thus, the Supreme Court has held that a state is preempted from imposing a penalty

25 on certain noncitizens granted federal authorization to be in the United States based upon

26 a state-law determination of the noncitizen’s immigration status that is at odds with the

27 federal authorization. In Toll v. Moreno, for example, the Supreme Court held preempted

28 a state policy denying “in-state” status to a certain category of noncitizens, “G-4 aliens,”

14
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 23 of 38

1 for the purposes of resident tuition at public colleges. 458 U.S. 1, 17 (1982). The Court

2 explained that although “[f]or many . . . nonimmigrant categories, Congress has

3 precluded the covered alien from establishing domicile in the United States[,]” Congress

4 had placed no such restrictions on G-4 aliens. Id. at 13-14 (citing Elkins v. Moreno, 435

5 U.S. 647 (1978)). Thus, “[i]n light of Congress’ explicit decision not to bar G-4 aliens

6 from acquiring domicile, the state’s decision to deny ‘in-state’ [tuition] status to G-4

7 aliens, solely on account of the . . . alien’s federal immigration status” was preempted. Id.

8 at 14. Toll illustrates that state attempts, like Executive Order 2012-06, to categorize

9 classes of noncitizens in a manner inconsistent with federal law violate the Supremacy

10 Clause.

11

In addition, Arizona’s approach frustrates Congress’ intent that DHS exercise

12 discretion in the enforcement of the INA and have the ability to take into account

13 competing national concerns and changing circumstances at home and abroad in making

14 decisions about which noncitizens should be permitted to remain in the United States. See

15 Cooper Decl. ¶ 35-36; see also Arizona, 132 S.Ct. at 2499 (emphasizing that “[d]iscretion

16 in the enforcement of immigration law embraces immediate human concerns,” and

17 “[s]ome discretionary decisions involve policy choices that bear on this Nation’s

18 international relations”). When, in the exercise of its lawful authority granted by

19 Congress, DHS authorizes a category of otherwise removable noncitizens to remain in

20 the country, a state may not demonstrate its disagreement with the federal government’s

21 approach by deeming those same noncitizens unauthorized. See Cooper Decl. ¶ 37; cf.

22 Arizona, 132 S. Ct. at 2506 (holding that when “state officers . . . decide whether an alien

23 should be detained for being removable, . . . [it] violates the principle that the removal

24 process is entrusted to the discretion of the federal government”).

25

Arizona’s denial of driver’s licenses to DACA recipients also impermissibly

26 undermines the federal goal of permitting these individuals to remain and work in the

27 United States, and to be full, contributing members of society. See Cooper Decl. ¶ 37. An

28 important federal rationale for the DACA program is to recognize the many contributions

15
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 24 of 38

1 made by these young immigrants, and to facilitate their ability to contribute to our

2 economy through their ingenuity and labor. See, e.g., Ranahan Decl., Ex. J (Remarks by

3 the President on Immigration (June 15, 2012) (“[I]t makes no sense … to expel these

4 young people who want to staff our labs, or start new businesses, or defend our

5 country.”)); id. (“[T]hese young people are going to make extraordinary contributions,

6 and are already making contributions to our society.”); Ranahan Decl., Ex. C (Napolitano

7 Memo. at 2 (“many of these young people have already contributed to our country in

8 significant ways.”)). But the denial of driver’s licenses to individuals such as Plaintiffs

9 makes their daily lives extremely difficult, undermining their ability to do everything

10 from finding employment to furthering their education, providing for their children, and

11 meeting needs as basic as going to the grocery store. See § III.C.1, infra.

12

The conflict between Arizona’s policy and federal objectives is particularly sharp

13 since federal law makes deferred action grantees eligible for employment authorization –

14 and, as courts have long recognized, the ability to work is often dependent on the ability

15 to drive. See, e.g., Bell v. Burson, 402 U.S. 535, 539 (1971) (noting that “possession [of a

16 driver’s license] may become essential in the pursuit of a livelihood”); Miller v.

17 Anckaitis, 436 F.2d 115, 120 (3d Cir. 1970) (“use of an automobile [is] an actual

18 necessity for virtually everyone who must work for a living”). The fact that over 87

19 percent of Arizonans commute to work by car further demonstrates that a driver’s license

20 is critical to an individual’s ability to work in the state.7

21

In sum, by defining “authorized” presence to exclude DACA recipients, Executive

22 Order 2012-06 impermissibly regulates immigration by creating the state’s own

23 immigration classification, and fundamentally conflicts with federal law and federal

24 goals. The federal government has made a clear policy choice by exercising its discretion

25 over immigration enforcement. The state’s apparent disagreement with the federal

26

27 7 See, e.g., Ranahan Decl., Ex. K (U.S. Census Bureau, Selected Economic
28 Characteristics, 2011 American Community Survey 1 Year Estimates).

16
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 25 of 38

1 government’s decision to grant deferred action to immigrant youth is no justification for

2 undermining the federal decision. See Arizona, 132 S. Ct. at 2510 (emphasizing that “the

3 State may not pursue policies that undermine federal law”).

4

B. Defendants’ policy violates Equal Protection.

5

Plaintiffs also are likely to prevail on the merits of their Equal Protection claim.

6 Defendants provide driver’s licenses to all noncitizens granted EADs, including deferred

7 action recipients, except for those whose deferred action and EADs are granted under the

8 DACA program. As discussed below, because Defendants’ policy is an alienage

9 classification that discriminates against a group of noncitizens authorized to remain in the

10 United States, Plaintiffs are entitled to strict scrutiny or, at the very least, heightened

11 scrutiny. However, this Court need not determine precisely what level of scrutiny applies

12 because Defendants’ policy fails even a rational basis review. As shown below, Arizona’s

13 policy treats DACA recipients differently from similarly situated noncitizens without any

14 permissible justification.

15 1. Arizona is denying driver’s licenses to DACA recipients while

16

granting driver’s licenses to similarly situated noncitizens.

17

In denying driver’s licenses to DACA grantees, Defendants are now singling out

18 and discriminating against DACA grantees despite Arizona’s longstanding policy of

19 allowing other noncitizens granted deferred action to submit their EADs as proof of

20 authorized presence and obtain licenses. These similarly situated recipients of deferred

21 action have included survivors of domestic violence who have filed a VAWA self-

22 petition, and victims of serious crimes who have applied for U nonimmigrant status. See

23 Cooper Decl. ¶¶ 34-34; Yale-Loehr Decl. ¶¶ 13-19. Indeed, Arizona makes temporary

24 driver’s licenses available to many similar groups of noncitizens who demonstrate

25 authorized presence in the country by presenting an EAD, including those who lack a

26 formal immigration status. See Pochoda Decl., Ex. F (Type F License Chart); Jeffries

27

28

17
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 26 of 38

1 Decl. ¶¶ 7-12.8 The number of such individuals is not insubstantial. Between 2005 and

2 2012, applicants presented EADs as proof of authorized presence to obtain an Arizona

3 driver’s license an estimated 47,500 times. See Pochoda Decl., Ex. G. Under Arizona’s

4 current policy, every noncitizen who has received an EAD can present his EAD as proof

5 of authorized status and is therefore eligible for a driver’s license – with the single

6 exception of DACA recipients. As explained below, there is no valid justification – under

7 any standard of review – for treating DACA recipients differently from such similarly

8 situated noncitizens.

9 2. Discrimination against DACA recipients is subject to strict or

10

heightened scrutiny.

11

Although the Court need not reach this question because Defendants’ policy lacks

12 even a rational basis, Plaintiffs note that classifications singling out DACA recipients are

13 properly reviewed under strict, or – at the very least – heightened, scrutiny.

14

It is well established that state classifications based on alienage are subject to strict

15 scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971) (“classifications based on

16 alienage, like those based on nationality or race, are inherently suspect and subject to

17 close judicial scrutiny”); Nyquist, 432 U.S. at 7 (same). The Supreme Court has

18 repeatedly found that “[a]liens as a class are a prime example of a discrete and insular

19 minority, [and] the power of a state to apply its laws exclusively to its alien inhabitants as

20 a class is confined within narrow limits.” Graham, 403 U.S. at 372.

21

22

8 These include noncitizens paroled into the country without a formal immigration

status, 8 C.F.R. § 274a.12(c)(11); noncitizens who lack a formal immigration status, but 23 are applying for temporary protected status, id. § 274a.12(c)(19); noncitizens who lack a

24 formal immigration status but have a pending application for asylum, withholding of removal, id. § 274a.12(c)(8), or adjustment of status, id. § 274a.12(c)(9); noncitizens

25 granted deferred enforced departure, id. § 274a.12(a)(11); noncitizens granted temporary

26

protected status, id. § 274a.12(a)(12); noncitizens with a pending application for suspension of deportation or cancellation of removal, id. § 274a.12(c)(10); noncitizens

27 ordered removed, but granted withholding of removal or relief under the Convention

Against Torture, id. § 274a.12(a)(10); and noncitizens who have been ordered removed, 28 but permitted to remain in the country under an order of supervision, id. § 274a.12(c)(18).

18
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 27 of 38

1

By denying Arizona driver’s licenses only to individuals granted deferred action

2 and work authorization under DACA, Defendants are discriminating based on alienage.

3 The sole basis for the exclusion is DACA recipients’ immigration category rather than

4 any substantive qualification for an Arizona driver’s license. This is a quintessential

5 classification based on alienage. The fact that Arizona is discriminating among classes of

6 noncitizens does not make its policies any less of an alienage classification. Rather, what

7 matters is that Arizona’s driver license policy is “directed at aliens and . . . only aliens are

8 harmed by it.” Nyquist, 432 U.S. at 9; see also id. at 7 (applying strict scrutiny to a New

9 York law prohibiting certain lawful permanent residents from receiving state financial aid

10 for higher education); Graham, 403 U.S. at 368-70 (same, for an Arizona law denying

11 disability benefits to lawful permanent residents who had not resided in the state for 15

12 years).

13

Although the Supreme Court has held that undocumented immigrants are not a

14 “suspect class,” see Plyler, 457 U.S. at 219-20, n.19, that rule does not apply to

15 noncitizens like DACA grantees, who are authorized to live in the United States. See

16 § III.A.1, supra. As the Second Circuit recently explained in Dandamudi v. Tisch,

17 although laws discriminating against “people who reside in the United States without

18 authorization” are subject to a lesser level of scrutiny, that limited exception does not

19 apply to noncitizens “who have been granted the legal right to live and work in the

20 United States.” 686 F.3d 66, 72, 74 (2d Cir. 2012).9 Thus, Dandamudi applied strict

21 scrutiny to a New York rule prohibiting nonimmigrant visa holders who had obtained

22 state pharmacist licenses from renewing those licenses. Id. at 69.10 Although the Ninth

23

24

9 Notably, undocumented immigrants are the only group of noncitizens whom the

Supreme Court has excluded from strict scrutiny. See Dandamudi, 686 F.3d at 70

25 (reviewing Supreme Court case law). The only other exception the Supreme Court has

26

created to the “general principle that alienage is a suspect classification” is for laws that “exclude aliens from political and government functions.” Id. at 73. That exception is not

27 applicable here.

28

10 The Second Circuit rejected the suggestion of the Fifth and Sixth Circuits that

strict scrutiny applies only to discrimination against lawful permanent residents.

19
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 28 of 38

1 Circuit has yet to address this precise question, Supreme Court precedent makes clear that

2 state classifications, like the one at issue here, that discriminate against individuals

3 granted federal authorization to remain in the country warrant the strict scrutiny generally

4 applied to alienage discrimination. See Graham, 403 U.S. at 372; Nyquist, 432 U.S. at 7.

5

At minimum, Plaintiffs are entitled to the heightened scrutiny that courts have

6 found warranted for certain state classifications that are not inherently suspect. See

7 Plyler, 457 U.S. at 223-24 (applying heightened scrutiny to Texas’s denial of access to

8 public education to undocumented children); Mathews v. Lucas, 427 U.S. 495, 505

9 (1976) (same, to state discrimination against children with unmarried parents); Windsor

10 v. United States, 699 F.3d 169, 185 (2d Cir. 2012), cert. granted, 12-307, 2012 WL

11 4009654 (U.S. Dec. 7, 2012) (same, to discrimination against same-sex couples);

12 Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 985-990 (N.D.

13 Cal. 2012) (same).

14

Notably, in Plyler, the Supreme Court applied heightened scrutiny to Texas’ efforts

15 to restrict public education to undocumented children who were brought to the country by

16 their parents. 457 U.S. at 223-24. The Court in Plyler found that undocumented children

17 “can affect neither their parents’ conduct [in bringing them to this country], nor their own

18 [immigration] status.” Plyler, 457 U.S. at 220. Targeting a child for a parent’s perceived

19 misdeeds “does not comport with fundamental conceptions of justice.” Id. Here, the

20 Arizona policy at issue should be subject to stricter review, as Arizona is discriminating

21 against a class of noncitizen youth whom the federal government has specifically

22 authorized to live and work in the United States.

23

Courts in the Ninth Circuit apply heightened review to classifications that are not

24 inherently suspect when the targeted group has: (1) “suffered a history of discrimination”;

25 (2) “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a

26

27 Dandamudi, 686 F.3d at 75-76 (rejecting LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005)
28 and League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007)).

20
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 29 of 38

1 discrete group”; and (3) “shows that they are a minority or politically powerless.” High

2 Tech Gays v. Defense Ind. Sec. Clearance Off., 895 F.2d 563, 573 (9th Cir. 1990). DACA

3 grantees easily satisfy this standard. First, these immigrant youth have faced, and

4 continue to face discrimination. See, e.g., Lozano v. Hazelton, 496 F. Supp. 2d 477, 509-

5 10 (M.D. Pa. 2007) (granting plaintiffs’ request to proceed anonymously after noting

6 “climate of fear and hostility” around those supporting perceived as undocumented

7 immigrants or supporting immigrants’ rights); see also John Hart Ely, Democracy and

8 Distrust: A Theory of Judicial Review 161-62 (1980) (contending that, because

9 noncitizens cannot vote and have suffered a history of discrimination, immigrants

10 constitute a discrete and insular minority deserving of special protection by the courts).

11 Second, these individuals share distinguishing characteristics that define them as a

12 discrete group, easily subject to discrimination. In this case, the EADs provided to

13 individuals granted DACA have an identifiable code – “(c)(33)” – that allows Defendants

14 to single them out from other individuals granted deferred action, and to deny them

15 driver’s licenses on this basis alone. See, e.g., Martinez Decl., Ex. 1. Finally, as

16 individuals only recently granted federal authorization to live and work in the United

17 States, and who cannot vote, DACA grantees are politically powerless. See Toll, 458 U.S.

18 at 23 (Blackmun, J., concurring) (“[T]he fact that aliens constitutionally may be – and

19 generally are – formally and completely barred from participating in the process of self-

20 government makes particularly profound the need for searching judicial review of

21 classifications grounded on alienage.”); see also Golinski, 824 F. Supp. 2d at 989

22 (concluding that lesbians and gays should be considered politically powerless despite

23 some legislative gains because of their “basic inability to bring about an end to

24 discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent

25 undesirable outcomes on fundamental matters that directly impact their lives”). For these

26 reasons, heightened review is appropriate.

27

In order to withstand strict scrutiny, Defendants must establish that their policy is

28 narrowly tailored to meet a compelling governmental interest. See Wright v. Incline

21
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 30 of 38

1 Village Gen. Improvement Dist., 665 F.3d 1128, 1141 (9th Cir. 2011) (“When applying

2 strict scrutiny, we ask whether the [challenged policy] is narrowly tailored to serve a

3 compelling governmental interest) (internal quotations omitted); see also Dandamudi,

4 686 F.3d 66 (to withstand strict scrutiny, state policy must be “narrowly tailored to

5 further a compelling government interest”). Under heightened scrutiny, Defendants must

6 show that their challenged policy is “substantially related to an important government

7 objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). In making this showing Defendants

8 may only refer to the “actual [governmental] purpose, not rationalizations for actions in

9 fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996).

10 Defendants cannot meet either of these tests. However, this Court need not decide

11 precisely which standard of review is applicable because, as shown below, Defendants’

12 policy is wholly irrational and cannot even withstand rational basis review.

13

3. Defendants’ driver’s license policy does not even pass rational basis

14

review.

15

The rational basis standard requires that a classification “be reasonable, not

16 arbitrary, and must rest upon some ground of difference having a fair and substantial

17 relation to the object of the legislation, so that all persons similarly circumstanced shall

18 be treated alike.” Reed v. Reed, 404 U.S. 71, 75-76 (1971) (citations omitted); accord

19 Armendariz v. Penman, 75 F.3d 1311, 1326-27 (9th Cir. 1996) (en banc) (citations

20 omitted) (“The State may not rely on a classification whose relationship to an asserted

21 goal is so attenuated as to render the distinction arbitrary or irrational.”). As the Supreme

22 Court held in Heller v. Doe, “the standard of rationality . . . must find some footing in the

23 realities of the subject addressed by the legislation.” 509 U.S. 312, 319-320 (1993).

24 Importantly, “[a] bare … desire to harm a politically unpopular group cannot constitute a

25 legitimate governmental interest.” Romer v. Evans, 517 U.S. 620, 634-35 (1996) (quoting

26 Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)); accord Cleburne v. Cleburne

27 Living Ctr., Inc., 473 U.S. 432, 446-47 (1985). Put another way, under the rational basis

28 standard, a law is invalid if it lacks any factual or legal basis. FCC v. Beach

22
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 31 of 38

1 Communications, Inc., 508 U.S. 307, 313 (1993); cf. Diaz v. Brewer, 656 F.3d 1008,

2 1012, 1014-15 (9th Cir. 2012), reh’g en banc denied, 676 F.3d 823 (9th Cir. 2012),

3 petition for cert. filed (U.S. Jul. 2, 2012) (No. 12-23) (affirming a preliminary injunction

4 against an Arizona law terminating health care benefits of state employees’ same-sex

5 partners where the record could not sustain Arizona’s proffered interests). Moreover,

6 once plaintiffs present some evidence showing that discrimination against a particular

7 group motivated the passage of defendant’s challenged policy, the Ninth Circuit has

8 required defendants to “establish on the record that its policy had a rational basis” See

9 Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1992).

10

Arizona’s categorical denial of driver’s licenses to persons granted deferred action

11 and EADs under DACA treats similarly situated individuals differently without any

12 legitimate basis. As discussed, under Defendants’ policy, all noncitizens granted deferred

13 action and EADs are eligible for driver’s licenses, except for DACA recipients.

14 Defendants also issue licenses to numerous other categories of similarly situated

15 noncitizens who submit an EAD as proof of authorized presence. See § II.B., supra;

16 Yale-Loehr Decl. ¶¶ 25-32; Jeffries Decl. ¶¶ 7-12. When a state chooses to provide a

17 state benefit, the state “may not do so in an arbitrary or discriminatory manner that

18 adversely affects particular groups that may be unpopular.” Diaz, 656 F.3d at 1013-14.

19 Arizona’s selective restriction creates the “inevitable inference that the disadvantage

20 imposed is born of animosity toward the class of persons affected.” Perry v. Brown, 671

21 F.3d 1052, 1088 (9th Cir. 2012) (quoting Romer, 517 U.S. at 634).

22

Indeed, Governor Brewer’s statements regarding Executive Order 2012-06 makes

23 clear that Arizona’s policy was motivated by an illegitimate intent to defy federal

24 immigration policy and to discriminate against a disfavored group. Immediately after

25 President Obama announced the DACA program, Governor Brewer denounced the

26 program as “backdoor amnesty” and “desperate political pandering by a president

27

28

23
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 32 of 38

1 desperate to shore up his political base” and “pandering to a certain population.”11

2 Subsequently, on the day she issued Executive Order 2012-06, Governor Brewer

3 explained in statements to the media that the Executive Order was necessary to make

4 clear there would be “no drivers [sic] licenses for illegal people.”12 Such political

5 disagreement with federal immigration law and policy is not a legitimate basis for the

6 state to target and exclude a disfavored group from its programs. See, e.g., Nyquist, 432

7 U.S. at 10 (state’s immigration-based justification is “not a permissible one for a State

8 [because] [c]ontrol over immigration and naturalization is entrusted exclusively to the

9 Federal Government, and a State has no power to interfere”).

10

Further, although the Executive Order cites federal immigration classifications as a

11 justification for denying state identification documents, as set forth above, federal law

12 does not support this restriction. See § III.A.1, supra. Like all other noncitizens granted

13 deferred action, DACA grantees are authorized to remain in the country and can obtain

14 EADs and a Social Security Number. Under the federal immigration system, deferred

15 action has the same purpose and the same effect for all recipients – to prevent removal

16 and allow the noncitizen to remain. See Cooper Decl. ¶¶ 33-34; Yale-Loehr Decl. ¶ 19.

17 Moreover, Congress specifically considered whether noncitizens granted deferred action

18 should be excluded from federally recognized driver’s licenses and determined, under

19 even the heightened security standards of the REAL ID Act, that individuals granted

20 deferred action grantees would be eligible for these licenses. See § III.A.1, supra. Yet

21 individuals granted deferred action under DACA are uniquely barred from eligibility by

22 Arizona’s policy.

23

Finally, Defendants’ vague assertion that providing state benefits to DACA

24 recipients “will have significant and lasting impacts on the Arizona budget” lacks any

25

26

11 Ranahan Decl. ¶ 12 (Brewer: Obama immigration ‘outrageous,’ CNN, (June 15,

2012) (video)).

27

12 Ranahan Decl. ¶ 13 (Brewer Bans Benefits for Undocumented Immigrants, Fox 28 News (August 15, 2012) (video)).

24
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 33 of 38

1 factual basis. Ranahan Decl., Ex A (Executive Order 2012-06). Indeed, there is no

2 evidence in the public record that its policy would rationally save the state funds, or that

3 the cost of licensing DACA grantees would be more than minimal or cost-neutral. As a

4 result, Arizona’s policy fails under even rational basis review.

5

C. The Court should grant preliminary injunctive relief.

6

1. Plaintiffs and their members will suffer irreparable harm if the

7

Court does not grant an injunction.

8

As a result of Defendants’ denial of driver’s licenses to DACA recipients, Plaintiffs,

9 Plaintiffs’ members, and proposed class members suffer numerous irreparable harms, and

10 will continue to suffer them if the Executive Order is not enjoined. Winters, 129 S. Ct. at

11 375 (injunction appropriate where irreparable harm “likely”). See, e.g., Lopez Decl. ¶¶ 5-

12 7; Jacobo Decl. ¶¶ 7-10; Martinez Decl. ¶¶ 5-7; Perez-Gallegos Decl. ¶¶ 6-8; Castro-

13 Martinez Decl. ¶¶ 6-8; Matuz Decl. ¶¶ 7-11.

14

First, being subjected to an unconstitutional state action such as Arizona’s driver’s

15 license policy constitutes irreparable injury. See Monterey Mech. Co. v. Wilson, 125 F.3d

16 702, 715 (9th Cir. 1997) (“an alleged constitutional infringement will often alone

17 constitute irreparable harm”). This principle applies to Supremacy Clause violations as

18 well as other constitutional violations. See e.g., Morales v. Trans World Airlines, Inc.,

19 504 U.S. 374, 381 (1992); Villas at Parkside Partners v. City of Farmers Branch, 577 F.

20 Supp. 2d 858, 878 (N.D. Tex. 2008).

21

Second, the denial of driver’s licenses causes irreparable injury by hindering

22 Plaintiffs’ and class members’ efforts to find and maintain stable employment, develop

23 their resumes, and begin their careers. See Enyart v. Nat’l Conference of Bar Examiners,

24 Inc., 630 F.3d 1153, 1166 (9th Cir. 2011) (denial of bar admission caused irreparable

25 harm to individual prevented from beginning her legal career); see also Kinney v. Int’l

26 Union of Operating Eng’rs, Loc. 150, 994 F.2d 1271, 1279 (7th Cir. 1993) (personal

27 costs of being unnecessarily unemployed is irreparable harm). The courts have long

28 recognized that “possession [of a driver’s license] may become essential in the pursuit of

25
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 34 of 38

1 a livelihood.” Bell, 402 U.S. at 539; see also Miller, 436 F.2d at 120 (“use of an

2 automobile [is] an actual necessity for virtually everyone who must work for a living”).

3 The ability to drive is a necessity not only for Plaintiffs, but for the overwhelming

4 majority of Arizona workers. U.S. Census Bureau statistics indicate that over 87 percent

5 of Arizonans commute to work by car and only two percent of all Arizonan workers

6 commute to work by public transportation.13

7

Here, denying driver’s licenses to Plaintiffs and Plaintiffs’ members severely

8 frustrates their ability to work, advance their careers, and achieve economic self-

9 sufficiency. For example, Plaintiff Lopez had to turn down a job interview because she

10 would have been unable to commute to the job without a driver’s license. Lopez Decl. ¶7.

11 Ms. Perez-Gallegos is afraid she will not be able to maintain her job in the medical field

12 and pursue her nursing degree without the ability to drive between school and work.

13 Perez-Gallegos Decl. ¶¶ 7-8. Mr. Castro-Martinez fears he will not be able to get a

14 promotion at his job unless he is able to drive. Castro-Martinez Decl. ¶ 6. For Mr. Jacobo,

15 the inability to obtain a license imposes financial and practical strains on his business and

16 livelihood. Jacobo Decl. ¶ 7.

17

Third, the inability to drive legally imposes onerous restrictions on the daily lives of

18 the Individual Plaintiffs and of ADAC’s members by restricting their ability to assist their

19 families with child care, health needs, and other necessities of daily life. See Wooley v.

20 Maynard, 430 U.S. 705, 712 (1977) (holding that plaintiffs had demonstrated harms

21 sufficient to justify injunctive relief where threat of prosecution impeded ability to

22 perform the ordinary tasks of daily life requiring an automobile); Mills v. Dist. of

23 Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (finding irreparable injury where

24 citizens’ right to drive was unconstitutionally limited); Ligon v. City of New York, No: 12

25 CIV 2274 SAS, 2012 WL 3597066 (S.D.N.Y. Aug. 21, 2012) (holding preliminary

26

27 13 Ranahan Decl., Ex. K (U.S. Census Bureau, Selected Economic Characteristics,
28 2011 American Community Survey 1 Year Estimates).

26
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 35 of 38

1 injunction was warranted where plaintiffs’ daily lives are being disrupted by police

2 harassment). For example, Ms. Lopez is the primary caretaker of her child and two minor

3 siblings; she needs to drive to take her child to doctor’s appointments and her siblings to

4 school. Lopez Decl. ¶ 5. See also Jacobo Decl. ¶ 9 (stating that he wants to be able to

5 help family members by providing transportation).

6

Fourth, the continued discrimination will cause Plaintiffs and their members

7 emotional and psychological harm because it creates the perception that they are inferior.

8 See, e.g., Ranahan Decl., Ex. E (Gov. Jan Brewer Battles Obama’s DREAM Directive in

9 Arizona (reporting Defendant Brewer’s statement that there will be “no drivers licenses

10 [sic] for illegal people”)); Chalk v. United States Dist. Court, 840 F.2d 701, 709 (9th Cir.

11 1988) (collecting cases holding that discrimination that creates emotional and

12 psychological harms can constitute irreparable injury). For example, Mr. Castro-Martinez

13 has testified that Defendants’ discrimination against DACA recipients has “had a huge

14 impact on [him] mentally” because “[i]t’s terrible to be the target of discrimination.”

15 Castro-Martinez Decl. ¶ 8.

16

Finally, ADAC is suffering irreparable harm due to the reallocation of its

17 organizational resources to address the impact of Arizona’s policy on its membership.

18 The vast majority of ADAC’s members are recipients of DACA or are DACA-eligible.

19 Matuz Decl. ¶ 6. Arizona’s policy is impeding ADAC’s ability to carry out its mission

20 because it has forced ADAC to expend resources dealing with the logistics of

21 transporting its members, rather than focusing on the organization’s core goals of

22 improving community education and civic participation. This has caused ADAC to lose

23 opportunities to strengthen outreach and expand its membership. Matuz Decl. ¶ 9. The

24 diversion of resources and frustration of its core mission represent irreparable and

25 continuing injuries to ADAC. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th

26 Cir. 2002); Nat'l Fair Hous. Alliance v. A.G. Spanos Const., Inc., 542 F. Supp. 2d 1054,

27 1066 (N.D. Cal. 2008).

28

27
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 36 of 38

1

2. The balance of equities tips sharply in Plaintiffs’ favor.

2

The harm to Plaintiffs from denying a preliminary injunction strongly outweighs the

3 harm to Defendants from granting the motion. As described above, barring access to

4 driver’s licenses severely hinders Plaintiffs’ ability to work and to function as fully

5 participating members of society, and causes a diversion of ADAC’s resources. See

6 § III.C.1, supra. In comparison, any hardship to Defendants from a preliminary

7 injunction would be minimal. Under its previous policy, Arizona issued driver’s licenses

8 to all deferred action recipients without distinction. Moreover, it continues issuing

9 driver’s licenses to numerous deferred action recipients and other noncitizens with EADs.

10 See § II.B, supra. It is not a substantial hardship for Arizona to continue its prior

11 approach in the face of a constitutionally suspect policy. Indeed, courts frequently find

12 that the equities favor an injunction to preserve the status quo – here, the Arizona MVD

13 policy in place before Executive Order 2012-06. See, e.g., Chalk, 840 F.2d at 704 (“The

14 basic function of a preliminary injunction is to preserve the status quo pending a

15 determination of the action on the merits.”); Nat’l Ctr. For Immigrants’ Rights, Inc. v.

16 INS, 743 F.2d 1365, 1368 (9th Cir. 1984). Thus, the equities tip sharply in favor of the

17 grant of a preliminary injunction.

18

3. The preliminary injunction will serve the public interest.

19

The public’s interest is firmly aligned with that of the Plaintiffs. See Miller v. Ca.

20 Pac. Med. Ctr., 991 F.2d 536, 540 (9th Cir. 1993); vacated on other grounds, 19 F.3d

21 449 (9th Cir. 1994) (public interest encompasses general welfare). A preliminary

22 injunction supports the public interest by permitting DACA recipients to participate

23 meaningfully in the state’s communities and to contribute to Arizona as a whole. Driver’s

24 licenses allow DACA grantees access to work and educational opportunities, and help

25 them contribute to the economy and provide for their families – as the federal

26 government has intended the DACA program to do. See Ranahan Decl., Ex. J (Remarks

27 by the President on Immigration (noting that permitting economic participation by

28 DACA eligible youth is the “right thing to do for our economy”)).

28
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 37 of 38

1

Furthermore, “it is always in the public interest to prevent the violation of a party’s

2 constitutional rights.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th

3 Cir. 2002) (internal quotation marks and citation omitted); see also Buquer v. City of

4 Indianapolis, 797 F. Supp. 2d 905, 925 (S.D. Ind. 2011) (“‘the public has a strong interest

5 in the vindication of an individual’s constitutional rights . . . .’” (quoting O’Brien v. Town

6 of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984)). As described above, Arizona’s driver’s

7 license policy is preempted by federal law and violates equal protection. For these

8 reasons, the public interest weighs in favor of a preliminary injunction.

9 IV. CONCLUSION

10

For all of the foregoing reasons, Defendants’ policy of denying driver’s licenses to

11 individuals granted employment authorization documents under the DACA program

12 should be preliminarily enjoined.

13

Dated this 14th day of December, 2012.

14

Respectfully submitted,

15

16

/s/Jennifer Chang Newell

AMERICAN CIVIL LIBERTIES UNION

17

FOUNDATION IMMIGRANTS’ RIGHTS

18

PROJECT

19

/s/Linton Joaquin

NATIONAL IMMIGRATION LAW

20

CENTER

21

/s/ Nicholás Espíritu

22

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND

23

/s/Daniel Pochoda

24

ACLU FOUNDATION OF ARIZONA

25

/s/Marty Harper

26

POLSINELLI SHUGHART PC

27

Attorneys for Plaintiffs

28

29
2837665.4

Case 2:12-cv-02546-DGC Document 30 Filed 12/14/12 Page 38 of 38

1

2

CERTIFICATE OF SERVICE

3 I hereby certify that on this 14th day of December 2012, I electronically transmitted
4 the foregoing document to the U.S. District Court Clerk’s Office by using the ECF 5 System for filing and transmittal.

6

7

By: /s/ Andrew S. Jacob

Andrew S. Jacob 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30
2837665.4

 
 Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 1 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

FENNEMORE CRAIG, P.C. Douglas C. Northup (No. 013987) Timothy Berg (No. 004170) Sean T. Hood (No. 022789) 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: dnorthup@fclaw.com Email: tberg@fclaw.com Email: shood@fclaw.com Attorneys for Defendants Governor Janice K. Brewer, John S. Halikowski, and Stacey K. Stanton Joseph Sciarrotta, Jr. (No. 017481) Office of Governor Janice K. Brewer 1700 West Washington St., 9th Floor Phoenix, AZ 85012-2913 Telephone: (602) 542-1586 Email: jsciarrotta@az.gov Co-Counsel for Defendant Governor Janice K. Brewer

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Arizona Dream Act Coalition; Jesus Castro-Martinez; Christian Jacobo; Alejandra Lopez; Ariel Martinez; and Natalia Perez-Gallegos,
Plaintiffs, v. 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; and Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity,

No. CV-12-02546-PHX-DGC
DEFENDANTS’ MOTION TO DISMISS COUNTS ONE AND TWO
OF PLAINTIFFS’ COMPLAINT PURSUANT TO RULE 12(B)(6) AND, IN THE ALTERNATIVE, MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFFS’ EQUAL PROTECTION
CLAIM (COUNT TWO) (Oral Argument Requested)

Defendants.

I. INTRODUCTION Plaintiffs seek to invalidate an executive order issued by Arizona Governor Janice
Brewer and a policy adopted by ADOT Director John Halikowski on the grounds that: (1)

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 2 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

the order and policy are preempted by the federal regime that regulates immigration; and (2) the order and policy deny Plaintiffs equal protection of the laws. It is important to focus on the implications of Plaintiffs’ legal challenges here. Plaintiffs in effect argue that, by virtue of Secretary Janet Napolitano’s decision to grant deferred action status to a massive group of persons who are concededly in this country illegally, the State of Arizona is deprived of its long-standing authority to regulate the issuance of driver’s licenses under state law. Taken to its logical conclusion, Plaintiffs’ claims would result in wholesale preemption of state driver’s licensing laws and would require each and every state to issue licenses to all DACA recipients, without regard to the statutory requirements or public policy of that state or the burdens imposed on the state.
Further, Plaintiffs’ preemption and equal protection claims would create serious and unforeseeable consequences for state programs dealing with all other sorts of benefits such as welfare and healthcare. This is particularly ironic because, as explained below, the federal government itself has singled out this class of illegal immigrants for exactly the sort of differential treatment Plaintiffs challenge here.
Under well-settled precedent, no federal law or regulation preempts Arizona’s authority to determine to whom it will issue driver’s licenses. Similarly, Plaintiffs fail to state a claim for Defendants’ purported violation of the Equal Protection Clause. Even if they did, well-established equal protection jurisprudence only requires a rational basis for the policy decision not to issue driver’s licenses to DACA recipients. Applying this standard, the order and the policy clearly pass constitutional muster and the Court should enter judgment for Defendants. II. BACKGROUND
In June 2012, the Department of Homeland Security (“DHS”) made an administrative policy choice to defer removal of certain illegal aliens who were brought to the United States before the age of sixteen (hereinafter, the “DACA Program”). DHS has expressly acknowledged that the DACA Program does not grant any substantive rights and that only Congress can create substantive immigration reform. In fact, Congress has
-2-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 3 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

repeatedly failed to pass federal immigration legislation to grant legal status to these very individuals.
Some 80,000 potential DACA recipients live in Arizona. After DHS’s announcement of the DACA Program, Arizona Governor Janice Brewer (“Governor Brewer”) issued Executive Order 2012-06 (the “Executive Order”). The Executive Order directed state agencies to conduct a full statutory, rulemaking, and policy analysis to prevent DACA recipients—who remain without legally authorized immigration status— from obtaining eligibility for any state or public benefit, including an Arizona driver’s license, to which they were not entitled. Compl., ¶ 3.
The Arizona Department of Transportation (“ADOT”) and its director, Defendant Halikowski (“Director Halikowski”), who possesses a statutory grant of discretionary authority to administer and enforce Arizona’s driver’s license statute, reviewed and revised existing policy and procedures. ADOT determined that it would not accept employment authorization documents (“EADs”) obtained by DACA recipients as proof satisfactory to ADOT that their presence was authorized under federal law.
Plaintiffs sued Defendants for declaratory and injunctive relief, arguing that the Executive Order and ADOT’s policy violate the Supremacy Clause of the United Stated Constitution and the Equal Protection Clause of the Fourteenth Amendment. Defendants move to dismiss both of Plaintiffs’ claims under Federal Rules of Civil Procedure, Rule 12(b)(6). Alternatively, Defendants move for summary judgment on Plaintiffs’ Equal Protection Clause claim. Defendants support that motion with the concurrently filed Separate Statement of Facts.
A. Congressional Authority to Regulate and Classify Aliens Is Embodied in the Immigration and Nationality Act.
Congress has broad powers, both enumerated and implied, to regulate immigration. See generally Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). The Immigration and Nationality Act (INA) is a comprehensive federal statutory scheme for regulation of immigration and naturalization. De Canas v. Bica, 424
-3-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 4 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

U.S. 351, 353 (1976). Embodied in the INA is the objective of deterring unauthorized immigration. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 903 (1984). The INA creates different classifications of aliens depending on their admissibility and the lawfulness of their presence. See 8 U.S.C. § 1227. Admissibility is defined as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). Aliens who are not lawfully admitted to the United States are subject to deportation and other penalties. See 8 U.S.C. §§ 1227, 1324d.
B. Deferred Action has no Statutory Basis But Is an Act of Administrative Choice to Temporarily Defer Removal of an Unlawful Alien.

The Secretary of Homeland Security, Janet Napolitano, is charged with the

administration and enforcement of the INA and all other laws relating to the immigration

and naturalization of aliens. 8 U.S.C. § 1103(a). U.S. Citizenship and Immigration

Services (“USCIS”) is the DHS agency that oversees lawful immigration to the United States.1 U.S. Immigration and Customs Enforcement (“ICE”) is the principal investigative arm of DHS.2

DHS and these agencies exercise a form of prosecutorial discretion in determining

whether or not to enforce the INA to seek removal of an individual who is not lawfully

admitted to the United States. As defined by the former Immigration and Naturalization

Service (INS) in 2000, prosecutorial discretion is “the authority that every law

enforcement agency has to decide whether to exercise its enforcement powers against someone.”3 This discretion cannot regularize someone’s immigration status or grant a

1 http://www.uscis.gov/aboutus, attached as Appendix A1. For the Court’s convenience, Defendants have attached an Appendix containing material that Defendants cite from governmental documents. The Court may take judicial notice of such information without converting a motion to dismiss into a motion for summary judgment and Defendants request the Court do so pursuant to Fed. R. Evid. 201. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

2 See http://www.ice.gov/about/overview, attached as Appendix A2.

3 See U.S. Department of Justice, Immigration Naturalization Service Fact Sheet,

“Prosecutorial

Discretion

Guidelines,”

(Nov.

28,

2000),

http://iwp.legalmomentum.org/reference/additional-materials/immigration/enforcement-

detention-and-criminal-justice/government-documents/c_6-

-4-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 5 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

benefit that an alien is not legally entitled to receive.4 Prosecutorial discretion does not create any substantive or procedural rights.5 Prosecutorial discretion “does not apply to

affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given.”6

One form of prosecutorial discretion available to DHS is “deferred action,” which

has been defined as an “informal administrative stay of deportation.” Lennon v. INS, 527

F.2d 187, 191 & n.7 (2d Cir. 1975) (discussing “nonpriority status,” the prior name for

deferred action); see also Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (construing nonpriority status as a program of administrative convenience).7 Employment

authorization regulations classify deferred action as “an act of administrative convenience

to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).

There is no express statutory authorization for deferred action. Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 484 (1999).

Deferred action is meant to be exercised on an individualized case-by-case basis.

See id at 484, n.8. Deferred action is distinguished from statutory exceptions to removal because it is an exception based on policy and not law.8 Deferred action confers no protection or benefit on an alien and no alien has the right to deferred action.9 Deferred

27DOJ2000ProsDiscretionGuideOVW3-31-09.pdf, attached as Appendix A3.

4 Id.

5 See John Morton, Director of U.S. Immigration and Customs Enforcement, “Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency

for the Apprehension, Detention, and Removal of Aliens,” (June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf,

attached as Appendix A4, at p. 6.

6 See Memorandum from Doris Meissner, Commissioner of Immigration and

Naturalization Service, on Exercising Prosecutorial Discretion (Nov. 17, 2000), http://www.legalactioncenter.org/sites/default/files/docs/lac/Meissner-2000-memo.pdf.,

attached as Appendix A5.

7 Plaintiffs’ Complaint defines deferred action as “a longstanding form of prosecutorial discretion . . . to refrain from seeking an individual noncitizen’s removal . . . based on a review of the individual’s case.” Compl., ¶ 28.

8

USCIS

Adjudicator’s

Field

Manual

(“AFM”),

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-38.html#0-0-0212, pertinent portions of which are attached as Appendix A6, at Chapter 40.9.2 (b)(3).

9 U.S. Immigration & Customs Enforcement, Office of Detention and Removal

-5-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 6 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

action does not preclude DHS from commencing removal proceedings at any time against an alien.10
C. DHS Secretary Napolitano Reaffirms Before Congress the Limited Scope of Deferred Action.

During a March 9, 2011 congressional hearing, Senator Charles Grassley questioned Secretary Napolitano about a memorandum a staff member at USCIS drafted that contained a discussion about prosecutorial discretion and deferred action in particular.11 During that hearing, Secretary Napolitano confirmed deferred action is a limited discretionary action exercised on a case-by-case basis that cannot be used to defer removal of an entire class of aliens:
Senator Grassley: . . . I have a draft copy of the memo written February 26, 2010, that was intended for you Madam Secretary. Did you at any time since you became Secretary review memos or proposals that describe administrative options such as deferred action or parole to get around Congress’ inaction on the immigration reform bill? And some of these memos—or this memo referred to efforts that we are not getting anything done on immigration in the Congress, so maybe we ought to take some action through the executive branch. Secretary Napolitano: Well, I can understand the Senator’s concern there. All I can say is, Senator, we have been very clear. We are not going to give deferred action to large groups as opposed to on a case-by-case basis, which is what I believe the statute permits . . . . --Senator Grassley: Well, I think that you do correctly state that the law does allow on a case-by-case basis, but the impression you get from these memos that we receive is that Congress was not acting, we need to do something to make a massive amount of people that came here illegally to make them legal. And that gets way beyond a case-by-case basis if you are talking about, you know, I do not know how many people, but it sounds to me like

Operations, Detention and Removal Operations Policy and Procedure Manual (March 2006) (“DRO Policy Manual”), AILA InfoNet Doc. 09100571 (Posted 10/05/09), available at http://search.aila.org by entering the document number, the pertinent portions of which are attached as Appendix A7, at § 20.9(a).

10 Id. at § 20.9(a).

11 Department of Homeland Security Oversight: Hearing before the S. Comm. on the

Judiciary, S. HRG, 112-99, 112th Cong. (March 9, 2011) (testimony of Janet Napolitano,

Secretary, U.S. Department of Homeland Security), pp. 32-33,

http://www.gpo.gov/fdsys/pkg/CHRG-112shrg68104/content-detail.html,

pertinent

portions of which are attached as Appendix A8.

-6-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 7 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

thousands of people. Let me ask this last point. Would you commit to providing me by the end of this week with statistics that we have asked for about the number of deferred actions and paroles granted since you became secretary? Secretary Napolitano: Well, I think if I might, let me—I have some. As you say, we can do deferred action on a case-by-case basis. The law permits that, and it is usually for compelling humanitarian concerns, and those are done. Now, in fiscal year 2010, we removed over 395,000 aliens. We exercised deferred action in fewer than 900 cases, which was actually fewer deferred actions than were granted in the years prior to that.12
On August 18, 2011, Secretary Napolitano wrote a letter to Senator Harry Reid on President Obama’s behalf in response to a letter regarding the Obama Administration’s immigration enforcement policies and the DREAM Act.13 In that letter, Secretary Napolitano reiterated what she had said in her congressional testimony. She stated that DHS would implement prosecutorial discretion to focus the administration’s resources on high priority cases, but confirmed that prosecutorial discretion would “not provide categorical relief for any group.”14
D. Contrary to her Congressional Testimony, Secretary Napolitano Orders Deferred Action for an Entire Class of Unauthorized Immigrants.
The DREAM Act is the name commonly given to proposed legislation that would give certain illegal immigrants who were brought here illegally before a certain age the opportunity to earn legal status. Compl., ¶ 2. The DREAM Act has repeatedly failed to receive Congress’s approval. Taken up by Congress in 2006, 2007, 2009, and 2010, the legislation has been rejected each time, with the most recent rejection in December 2010.15 See Removal Clarification Act of 2010, H.R. 5281, 111th Cong. (2010).
Nevertheless, on June 15, 2012, Secretary Napolitano issued a memorandum
12 Appendix A8, pp. 32-33. 13 August 18, 2011 letter from Secretary Janet Napolitano to the Honorable Harry Reid, http://democrats.senate.gov/uploads/2011/08/11_8949_Reid_Dream_Act_response_08.18. 11.pdf, attached as Appendix A9. 14 Id., p. 2. 15 Congress considered another version of the DREAM Act in 2011, but did not take any major action. See Development, Relief, and Education for Alien Minors Act of 2011, S. 952, 112th Cong. (2011).
-7-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 8 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

(“DACA Memo”) announcing the DACA Program to the directors of the U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the Acting Commissioner of U.S. Customs and Border Protection. Compl., ¶ 4. Unlike individualized prosecutorial discretion, The DACA Memo ordered DHS to exercise prosecutorial discretion to grant “deferred action” to temporarily defer removal of an entire class of illegal immigrants, provided they meet certain criteria. Id., ¶ 5.
The DACA Memo stated that such measures “were necessary to ensure that [DHS’s] enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.”16 The DACA Memo concluded:

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

This memorandum confers no substantive right, immigration status or

pathway to citizenship. Only the Congress, acting through its legislative

authority, can confer these rights. It remains for the executive branch,

however, to set forth policy framework of the existing law.

Ifohravtehedonexeesrocihseereo.1f7 discretion

within

the

E. DACA Grants Deferred Action on an Unprecedented Magnitude and Scale.

It is estimated that there are 1.76 million DACA-eligible illegal immigrants in the United States and approximately 80,000 residing in Arizona. Compl., ¶ 7. As of November 15, 2012, illegal immigrant youth had filed nearly 300,000 DACA applications with USCIS, including over 11,000 applications from Arizona residents. Id., ¶ 41. As of November 15, 2012, most of those applications were still in process but USCIS had granted deferred action to at least 53,273 individuals nationwide pursuant to the DACA program. Id.

16 A copy of the DACA Memo is provided at Appendix A10. Because this document is central to the allegations in Plaintiffs’ Complaint, the Court may consider it for purposes of the motion to dismiss and assume its contents are true. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). 17 See Appendix A10, p.5.

-8-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 9 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

USCIS’s latest statistics, published since Plaintiffs filed their Complaint, demonstrate that, as of December 13, 2012, USCIS has accepted 355,889 DACA applications at an average of 4,433 requests a day.18 Of those requests, 157,151 are under review and 102,965 have been approved.19 As of December 13, 2012, the number of DACA applications in Arizona had risen to 12,924.20 Therefore, the 1,850 (12,92411,074) DACA applications filed in Arizona alone between November 15, 2012 and December 13, 2012 constitute nearly twice the total amount of the 900 grants of deferred action that Secretary Napolitano testified before Congress were given by DHS on a nationwide basis during 2010.21
F. Defendants Determine DACA Recipients Are Not Entitled to an Arizona Driver’s License.

Arizona’s driver licensing laws provide, in pertinent part, that: Notwithstanding any other law, the department shall not issue to or renew a driver license or nonoperating identification license for a person who does not submit proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law.

A.R.S. § 28-3153(D) (emphasis added). The statute requires authorized presence in order to obtain a driver’s license because possession of an Arizona driver’s license demonstrates legal presence under other Arizona statutes and, therefore, can provide access to federal and state benefits in Arizona. See A.R.S. §§ 1-501, 1-502; SOF, ¶ 23. Under federal and state law, illegal immigrants are not entitled to such benefits. 8 U.S.C. § 1621; A.R.S. §§ 1-501, 1-502.

18 See “Deferred Action for Childhood Arrivals Process” (USCIS DACA December 2012

Statistics),

http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/

Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA%20MonthlyDE

C%20Report%20PDF.pdf, attached as Appendix A11.

19 Appendix A11. Of the 367,903 DACA applications received, 12,014 were rejected at intake. Id. It is not known how many of these were rejected for formalistic deficiencies and are subject to re-filing, or whether an application can be substantively rejected at filing before a case comes under review.

20 Appendix A11

21 Compare Appendix A8 with Appendix A11; See also Compl., ¶ 41.

-9-

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 10 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

1. ADOT Analyzes the Impact the Scope of the DACA Program Might Have on Arizona.
After the June 15, 2012 DACA Memo, but before the Executive Order, Director Halikowski and his advisors began reviewing what impact the DACA Program might have on ADOT’s enforcement and administration of Arizona’s driver’s license laws. SOF, ¶ 11. At the time, the Director saw news articles that stated DHS had said that it was up to the States to determine whether or not to issue driver’s licenses to DACA recipients. SOF, ¶ 12. Indeed, the Associated Press cited DHS as stating “that each state could determine whether to issue licenses or extend other benefits to young immigrants who qualify for the deferred status.” SOF, ¶ 13. DHS Spokesman Peter Boogaard, in a news article that addressed Governor Brewer’s Executive Order and the present dispute, specifically stated that DHS “doesn’t comment on state specific matters.” SOF, ¶ 14.
The purpose of ADOT’s review was to determine whether ADOT should implement any internal policy or procedure changes as a result of the DACA Program. SOF, ¶ 25. Director Halikowksi had several concerns that indicated an updated policy might be necessary. SOF, ¶ 16. First, he was concerned that persons subject to the DACA Program did not have authorized presence under federal law. SOF, ¶ 17. As 80,000 DACA eligible illegal immigrants live in Arizona, Director Halikowski was concerned that ADOT might face liability for issuing 80,000 driver’s licenses to illegal immigrants, or from not cancelling those driver’s licenses quickly enough, if their presence was not actually authorized. SOF, ¶¶ 18-19. The Director knew that ADOT has had to defend itself before from lawsuits arising from the alleged improper issuance of driver’s licenses. SOF, ¶ 20.
Second, granting driver’s licenses to DACA recipients could lead to wide-scale and improper access to certain federal and state public benefits. SOF, ¶ 21. Director Halikowski understood that DHS had stated the DACA Program did not confer any substantive benefits to the illegal aliens who obtained deferred action under that program. SOF, ¶ 22. Yet, possession of an Arizona driver’s license can provide access to federal
- 10 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 11 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

and state benefits in Arizona, and illegal immigrants are not entitled to such benefits. SOF, ¶ 23. The Director was therefore concerned that giving Arizona driver’s licenses to DACA recipients could allow up to 80,000 individuals to access certain federal and state benefits to which, as illegal immigrants, they were not entitled. SOF, ¶ 24.
Third, the DACA Program could be revoked at any time and ADOT would then have to cancel the licenses it had given to DACA recipients. SOF, ¶ 25. However, ADOT would not be able to force those recipients to surrender those licenses and would not be able to unravel any access to public benefits that these driver’s licenses had afforded. SOF, ¶ 26.
Fourth, even if the DACA Program was lawful, the Director understood that deferred action confers no protection or benefit on an illegal immigrant and does not preclude DHS from commencing removal proceedings at any time. SOF, ¶ 27. If DACA is revoked and its recipients become subject to immediate deportation and/or are removed from the United States, the Director was concerned those individuals might not be financially responsible for property damage or personal injury they caused in automobile accidents while driving with a license. SOF, ¶ 28.
2. Governor Brewer Reaffirms Arizona’s Stated Intent to Limit Access to Public Benefits.
On August 15, 2012, Governor Brewer issued the Executive Order to reaffirm the intent of Arizona law in response to the DACA Program. It stated, inter alia:22
 8 U.S.C. § 1622 authorizes states to determine eligibility for any state public benefits for most classes of aliens, including aliens with deferred action.
 A.R.S. § 28-3153 prohibits ADOT from issuing a driver’s license unless the applicant submits proof satisfactory to ADOT that the applicant’s presence is authorized under federal law.
 The federal executive’s DACA policy and the resulting federal paperwork issued could result in unlawfully present aliens inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers who enacted laws expressly restricting access to taxpayer funded benefits and state identification.
22 Plaintiffs attached a copy of the Executive Order as Exhibit 1 to their Complaint.
- 11 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 12 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

 Allowing more than an estimated 80,000 DACA recipients improper access to state or local public benefits “will have significant and lasting impacts on the Arizona budget, its health case system and additional public benefits that Arizona taxpayers fund.”
The Executive Order directed state agencies to review existing policies and make necessary changes to prevent DACA recipients from obtaining eligibility for any taxpayer-funded public benefits and state identification, including a driver’s license.23
G. The Federal Government Distinguishes DACA Recipients to Prevent Unintended Access to Public Benefits.
Shortly after Governor Brewer issued the Executive Order, the federal government also addressed the unintended impact that the DACA Program’s widespread grant of deferred action might have on access to public benefits. Just as ADOT did, the federal government distinguished DACA recipients from other deferred action recipients.
On August 28, 2012, the Health and Human Services Department (“HHS”) implemented an emergency regulatory action to explicitly carve out DACA recipients from the definition of who is considered “lawfully present” for purposes of the Patient Protection and Affordable Care Act, Public Law 111-148, and the Health Care and Education Reconciliation Act, Public Law 111-152 (collectively “ACA”).24 Section 1201 of the ACA prohibits health insurance issuers from denying coverage or inflating rates based on pre-existing conditions.25 On July 30, 2010, the Secretary of HHS issued an interim final regulation (“IFR”) to establish a temporary high-risk health insurance pool program until ACA § 1201 takes effect in January, 2014.26
The IFR defined persons eligible to participate in this program (known as the 23 See Compl, Ex. 1. 24 Department of Health and Human Services, “Pre-Existing Condition Insurance Plan Program,” 77 Fed. Reg. 52614 (Aug. 30, 2012) (codified at 45 C.F.R. § 152.2(8)) (emphasis added), http://www.gpo.gov/fdsys/pkg/FR-2012-08-30/pdf/2012-21519.pdf. For the Court’s convenience, copies of HHS’s regulatory change that excluded DACA from the definition of lawful presence and 45 C.F.R. 152.2 are attached as Appendix A12. 25 Id. 26 Department of Health and Human Services, “Pre-Existing Condition Insurance Plan Program,” 75 Fed. Reg. 45014 (Jul. 30, 2010) (codified at 45 C.F.R.152).
- 12 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 13 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

“PCIP”) as “citizen[s] or national[s] of the United States or lawfully present in the United States.”27 The IFR defined “lawfully present” as having a similar meaning as that given to “lawfully residing” in Medicaid and the Children’s Health Insurance Program (“CHIP”).28

Noncitizens “currently in deferred action status” are included among those aliens who fall within the definition of “lawfully present” for purposes of the PCIP.29

Significantly, HHS added the following exception in the IFR to exclude DACA

recipients from individuals considered “lawfully present” for purposes of the PCIP:

(8) Exception: An individual with deferred action under the Department of

Homeland Security’s deferred action for childhood arrivals process, as

described in the Secretary of Homeland Security’s June 15, 2012

memorandum, shall not be any of the above categories

considered to in paragraphs

be lawfully (1) through

p(7r)esoefntthwisitdhefriensiptieocnt.t3o0

The rational for HHS’s regulatory amendment was that:

As DHS has explained, the DACA process is designed to ensure that governmental resources for the removal of individuals are focused on high priority cases . . . . Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP, HHS has determined that these benefits should not be extended as a result of DHS deferred action under DACA.31

HHS amended its definition of “lawfully present” in the PCIP interim final rule “so
that the PCIP program interim final rule [did] not inadvertently expand the scope of the DACA process.”32 HHS implemented its amendment on an emergency basis, effective
immediately and without notice and comment, because public interest required “that
[HHS] provide clarity with respect to eligibility for this new and unforeseen group of
individuals as soon as possible, before anyone with deferred action under the DACA process applies to enroll in the PCIP program.”33
27 See Appendix A12, at 77 Fed. Reg. 52615. 28 Id. 29 See Appendix A12, at 45 C.F.R. § 152.2(4)(vi). 30 See Appendix A12 at Fed. Reg. 52616; 45 C.F.R. § 152.2(8) (emphasis added). 31 Id. at Fed. Reg. 52615 (emphasis added). 32 Id. 33 Id. at Fed. Reg. 52616.

- 13 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 14 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

Concurrent with the regulatory amendment to the ACA interim final rule, HHS issued an August 28, 2012 letter to state health officials and Medicaid directors.34 This letter also amended the definition of “lawfully present” for purposes of Medicaid and CHIP eligibility to exclude DACA recipients. That letter referred back to a previous July 1, 2010 letter which had included “aliens currently in deferred action status” among those considered “lawfully present.”35 The August 28, 2012 letter restated the policy reasons set forth in the HHS regulatory amendment and concluded “individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP.”36
H. Like HHS and USCIS, ADOT Distinguishes DACA Recipients from Recipients of Regular Deferred Action.
As discussed, ADOT had already started reviewing what, if any, changes it needed to make in response to the DACA Program prior to the issuance of the Executive Order. SOF, ¶¶ 11, 15. ADOT continued this review. SOF, ¶ 29. In the past, ADOT has accepted federally accepted employment authorization documents (EADs) as evidence of aliens’ authorized presence in the United States. Compl., ¶ 9; SOF, ¶ 30.
EADs fall into three categories. The first two categories are for aliens authorized to accept employment incident to lawful immigration and aliens authorized for employment with a specific employer incident to status. See 8 C.F.R. § 274a.12(a), (b). A third category exists for aliens who are not entitled to employment as a matter of right. Approval for such employment falls within the discretion of USCIS. See 8 C.F.R. § 274a.13(a)(1). Employment authorization in this “residual category” is for aliens “who may or may not have any legal status” and can be terminated at any time. Garcia v.
34 Center for Medicaid & CHIP Services, Re: “Individuals with Deferred Action for Childhood Arrivals,” (SHO # 12-002) (August 28, 2012), http://www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO-12-002.pdf, attached hereto as Appendix A13. 35 See Center for Medicaid & CHIP Services, Re: “Medicaid and CHIP Coverage of Lawfully Residing Children and Pregnant Women,” (SHO # 10-006) (July 1, 2010), http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/sho10006.pdf, attached hereto as Appendix A14, at pp. 4, 11. 36 Appendix A13, p. 1.
- 14 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 15 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

Holder, 659 F.3d 1261, 1270 (9th Cir. 2011). Illegal immigrants under deferred action fall into this category. See 8 C.F.R. § 274a.12(c)(14).
Before implementation of the DACA Program, some of the EADs ADOT accepted may have been issued under 8 C.F.R. 274a.12(c)(14) to people who received grants of regular deferred action (i.e., not pursuant to DACA). SOF, ¶ 30. Until very recently, ADOT was not aware that it was issuing driver’s licenses based on EADs that had been issued to aliens who had received deferred action but who had no actual authorized immigration status. SOF, ¶ 31. ADOT expects to discover that it gave a very limited amount of driver’s licenses to such regular deferred action recipients in past years. SOF, ¶ 32.
During its review of internal policies that ADOT conducted because of the DACA Program and the Executive Order, ADOT sought advice from the local USCIS office. SOF, ¶ 33. ADOT learned that USCIS expressly distinguishes DACA from regular deferred action with regard to applications for EADs. SOF, ¶ 34.
USCIS form I-765, identified as an Application for Employment Authorization, must be filed by aliens seeking EADs. To determine EAD eligibility, USCIS requires that the alien identify the category in which that alien is eligible for employment and then fill in that category.37 In response to its inquiry, ADOT received an email on October 10, 2012 from local USCIS Community Relations Officer, Marianna Paredes, which stated:
PLEASE NOTE: The eligibility category for work authorizations under Deferred Action for Childhood Arrivals is NOT the same eligibility category as work authorizations under regular deferred action. Page 5 of the current I-765 instructions indicate that people requesting work authorization as part of Deferred Action for Childhood Arrivals should fill in “C33” in question 16 of the Form I-765. (Do NOT use C14 as this is the category for regular deferred action.)
SOF, ¶ 35 (emphasis in original). In response to the Director’s significant concerns set forth above, and upon
37 Instructions for I-765, Application for Employment Authorization, http://www.uscis.gov/files/form/i-765instr.pdf, attached hereto as Appendix A15, at p.1.
- 15 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 16 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

determination that USCIS itself was distinguishing DACA from regular deferred action, ADOT revised Policy 16.1.4 which addressed establishing authorized presence for purposes of Arizona’s driver’s license statute. SOF, ¶ 36. In the policy (“ADOT’s Policy”), ADOT created a distinction between EADs obtained by DACA recipients and other EADs. SOF, ¶ 37.
As noted above, the DACA Program affected ADOT interests in a manner that prior grants of regular deferred action did not. SOF, ¶ 38. ADOT’s Policy determined that a driver’s license applicant who submitted an EAD granted pursuant to category (c)(33) did not submit proof satisfactory to ADOT, under A.R.S. § 28-3153(D), that the applicant’s presence was authorized under federal law. SOF, ¶ 39. Recently, and in specific regard to this lawsuit, DHS spokesman Peter Boogaard provided support for ADOT’s policy determination when he stated in a news article that “[DHS’s] decision not to try to deport some people does not actually authorize them to be in the United States.” SOF, ¶ 40. III. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Plaintiffs’ obligation to provide the “grounds of [their] entitlement to relief requires more than labels and conclusions, [or] a formulaic recitation of the elements of the cause of action . . . .” Id. (internal alterations and quotation marks omitted).
The factual allegations, assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.
- 16 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 17 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

Id. To state a valid claim, a complaint must contain either direct or inferential allegations respecting all material elements to sustain recovery under some viable legal theory. Id. at 562. Moreover, the Court need not “accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of evidence in support of the nonmoving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). IV. PLAINTIFFS’ COMPLAINT DOES NOT SUFFICIENTLY STATE A
CLAIM FOR VIOLATION OF THE SUPREMACY CLAUSE.
The Supremacy Clause gives Congress the power to preempt state law, either expressly or impliedly. U.S. Const., Art. VI, cl. 2; Arizona v. United States, 132 S. Ct. 2492, 2500-01 (2012). Congress may expressly preempt state law by including an explicit preemption provision in a statute. Id. Alternatively, preemption of a state law may be implied through field preemption or conflict preemption. Id. at 2501. Field preemption occurs when Congress intends to occupy an entire regulatory field leaving no room for state lawmaking in that area. Id. Conflict preemption occurs when Congress has not evidenced an intention to occupy an entire area, but a state law still conflicts with a federal law. Id.
To balance preemption with the principles of federalism, there are two important cornerstones of preemption jurisprudence. First, “the purpose of Congress is the ultimate
- 17 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 18 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). Second, “in all pre-emption cases . . . [the court] start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id.; see also Chicanos Por La Causa, Inc. v, Napolitano, 544 F.3d 976, 983 (9th Cir. 2008).
Plaintiffs’ Complaint fails to plead that the Executive Order and ADOT’s Policy are expressly or impliedly preempted by federal law. They fail to allege that an express preemption provision enacted by Congress applies and they cannot sufficiently allege that the Executive Order or ADOT’s Policy—both of which are solely directed at the regulation of state-issued driver’s licenses—regulate the field of “immigration” or otherwise conflict with federal law.
A. The DACA Program Is Not Federal Law for Preemption Purposes. Plaintiffs argue that the Executive Order and ADOT’s Policy are preempted by the objectives and purposes of the DACA Program itself, as opposed to federal statute enacted by Congress. See Compl., ¶ 71. Plaintiffs’ novel position relies on the incorrect assumption that the DACA Program is a form of federal agency action sufficient to preempt state law, which it is not. The DACA Program is not a federal statute enacted by Congress. Although state laws may also be preempted by federal agency regulations, a federal executive agency’s action may only preempt state law if (1) the agency intended the action to have some preemptive effect; and (2) the agency’s preemptive action was within the scope of the authority Congress delegated to the agency. See Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1208 (9th Cir. 2009). Importantly, a court reviewing the preemptive effect of a federal agency’s actions “does not focus on Congress’ intent to supersede state law because a pre-emptive regulation’s force does not depend on express congressional authorization to displace state law.” Id. (internal quotation marks and alterations omitted). Moreover, the agency’s action should not have a preemptive effect if “it appears from the statute or its legislative history that the accommodation is not one that Congress would
- 18 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 19 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

have sanctioned.” Id. As an initial matter, the DACA Program is not a codified federal regulation.
Instead, it is an administrative policy choice by DHS to direct its agents to exercise prosecutorial discretion on a massive, unprecedented scale and defer removal of DACA recipients. Even assuming the DACA Program had the same preemptive scope as a federal regulation (which it does not), it was not intended to preempt state action such as the Executive Order and ADOT’s Policy and was not issued clearly within the scope of congressionally delegated authority.
1. The DACA Program Is Not Federal Law Intended to Preempt State Law.

Nothing in the DACA Memo itself suggests that it is intended to preempt state law

directed at the issuance of driver’s licenses to DACA recipients. Cf. AT&T Commc’ns of

Cal., Inc. v. Pac-West Telecomm, Inc., 651 F.3d 980, 991 (9th Cir. 2011) (recognizing that

the analysis of whether an agency intended to preempt certain state laws begins with a review of the agency’s choice of language in the regulation at issue). In fact, in the

DACA Memo, Secretary Napolitano characterized the DACA Program as an executive

policy choice, not law:

[The DACA Program] confers no substantive right, immigration status or

pathway to citizenship. Only the Congress, acting through its legislative

authority, can confer these rights. It remains for the executive branch,

however, to set forth policy framework of the existing law.

Ifohravtehedonexeesrocihseereo.3f8 discretion

within

the

The DACA Program, a “policy” characterized by the federal agency itself as not

conferring any “substantive right,” does not evidence any intent by DHS to preempt state

laws on issuing driver’s licenses to DACA recipients.

Furthermore, the conclusion that DHS did not intend the DACA Program to have any preemptive effect is reinforced by President Obama’s general policy directive to

executive agencies that warns against the unbridled use of agency preemption. On May

38 See Appendix A10, p.3.

- 19 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 20 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

20, 2009, President Obama issued a memorandum to the heads of executive departments and agencies that stated, in part, “the general policy of my Administration [is] that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.”39 President Obama’s memorandum demonstrates that federal agency preemption of state law, such as the effect of the DACA Program argued by Plaintiffs, should not be assumed or intended without a clear legal basis. No such basis is present here, and there can be no finding of preemption.
2. Implementation of the DACA Program Was Not Clearly Within the Scope of Congress’s Delegated Authority to DHS.
Congress statutorily delegated the “administration and enforcement” of the INA to the Secretary of Homeland Security. 8 U.S.C. § 1103(a)(1). Secretary Napolitano herself acknowledged to Congress that any statutory authority to defer action on a case-by-case basis did not encompass authority to defer removal of a large group of people. See Appendix A8 (Testimony of Secretary Napolitano) (“All I can say is, Senator, we have been very clear. We are not going to give deferred action to large groups as opposed to on a case-by-case basis, which is what I believe the statute permits.”). If Congress’s delegated authority were meant to allow the Secretary of Homeland Security to implement broad-reaching policies that precluded the deportation of large groups of illegal aliens and thereby confer authorized status, the Secretary could unilaterally create immigration law, even when it was contrary to Congress’s enunciated positions.
For these reasons, the DACA Program does not preempt state law, and Plaintiffs’ claims that the Executive Order and ADOT’s Policy are preempted by the terms of the DACA Program fail to state a claim for relief. Moreover, as discussed below, established Supreme Court precedent demonstrates that the DACA Program cannot be found to
39 See May 20, 2009 Memorandum for the Heads of Executive Departments and Agencies; Subject: Preemption, http://www.whitehouse.gov/the_press_office/PresidentialMemorandum-Regarding-Preemption, attached hereto as Appendix A16.
- 20 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 21 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

preempt the Executive Order and ADOT’s Policy. B. Plaintiffs Cannot Allege that the Executive Order and ADOT’s Policy Are Preempted by Any Express Preemption Provision.
Express preemption occurs only when Congress “withdraw[s] specified powers from the States by enacting a statute containing an express preemption provision.” Arizona, 132 S. Ct. at 2500-01. A finding of express preemption requires that a federal law explicitly command that a certain topic forming the basis for a state law be displaced. Lozano v. City of Hazelton, 496 F. Supp. 2d 477, 518-19 (M.D. Pa. 2007), vacated on other grounds, 620 F.3d 170 (3d Cir. 2010). Plaintiffs do not, and cannot, allege that the DACA Program, or any federal law, includes a provision explicitly preempting regulation of state-issued driver’s licenses.
C. Plaintiffs Fail to Sufficiently Allege that the Executive Order or ADOT’s Policy Regulate a Preempted Field.
Field preemption occurs when a congressional legislative scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Thus, “the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona, 132 S. Ct. at 2501. Plaintiffs do not allege the existence of any act of Congress that demonstrates Congress’s intention to preempt the field of regulation of driver’s licenses. They cannot do so, as the issuance of driver’s licenses is a clear traditional state police power.40 40 Although Congress has indicated its interest in being involved in creating minimum standards for identification to be utilized for federal purposes, through the enactment of the REAL ID Act, the language of the REAL ID Act recognizes that it is the states’ roles to regulate and issue driver’s licenses to their residents. See 49 U.S.C. § 30301, et seq. Congress’s acknowledgement that the issuance of driver’s licenses is a power left to the states is highly indicative of the lack of preemption in this area. See Wyeth, 555 U.S. at 576 (“The case for federal preemption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.”) (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67 (1989)).
- 21 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 22 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

In an attempt to allege field preemption, Plaintiffs contend that the Executive Order and ADOT’s Policy violate the Supremacy Clause, not by regulating state-issued driver’s licenses, but instead by impermissibly regulating the field of “immigration.” Compl., ¶¶ 13, 69-70. Plaintiffs’ claim for field preemption fails as a matter of law because the Executive Order and ADOT’s Policy are not directed at immigration status or regulating immigration—i.e., who should remain or not remain in the United States.
1. The Executive Order and ADOT’s Policy Do Not Create Immigration Classifications.
Although the field of “immigration” is within the exclusive governance of Congress, see Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968, 1974 (2011), the field of immigration for preemption purposes is limited to situations where the states attempt to regulate the status, admission, or condition of aliens and immigrants remaining in the United States.
In De Canas, 424 U.S. at 352, legal immigrant farm workers in California sued labor contractors for violation of a California statute prohibiting employers from knowingly employing an illegal alien. The Court addressed whether the California statute was preempted under the Supremacy Clause and explained the application of Supremacy Clause preemption to the field of “immigration”:
Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised. . . . [T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.
Id. at 354-55 (internal quotation marks and citations omitted) (emphasis added). The Court added that “even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve.” Id. at 355.
- 22 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 23 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

The De Canas Court recognized that states possess broad authority under their police powers to regulate the employment relationship to protect workers within the State and that the INA did not preempt the statute. Specifically, the Court explained:
[W]e will not presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship covered by [California’s statute] in a manner consistent with pertinent federal laws. Only a demonstration that complete ouster of state power—including state power to promulgate laws not in conflict with federal laws—was “the clear and manifest purpose of Congress” would justify that conclusion.
Id. at 357-58. Federal courts have regularly cited to De Canas as a basis for refusing to find
preemption. See, e.g., Keller v. City of Fremont, 853 F. Supp. 2d 959, 972 (D. Neb. 2012) (holding that a city ordinance requiring tenants to obtain an occupancy license which required evidence of lawful status is not preempted because Congress has only preempted “what, where, when, and how aliens or immigrants may enter and must leave the country”); Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 601 (E.D. Va. 2004) (granting motion to dismiss Supremacy Clause claim that state law denying postsecondary admission to illegal aliens was preempted).
Plaintiffs mischaracterize the Executive Order in an attempt to plead field preemption by arguing that the Order “creat[es] a new, state-based classification of noncitizens that treats DACA recipients as though they were unauthorized and unlawfully present.” Compl., ¶ 69. However, similar to the California statute in De Canas, the Executive Order does not make a determination as to alien status. Instead, the Order expressly adopts the classifications of the DACA Program. Based on the federal administrative classification of DACA recipients as illegal aliens who have been granted a temporary reprieve from deportation, the Executive Order and ADOT’s Policy simply clarify Arizona’s position precluding DACA recipients from using EADs to obtain driver’s licenses or state identification.
Importantly, when a state law incorporates immigration classifications adopted by the federal government, courts are extremely cautious in finding the existence of field
- 23 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 24 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

preemption. In a very similar case, John Doe No. 1 v. Georgia Department of Public Safety, 147 F. Supp. 2d 1369 (N.D. Ga. 2001), the State of Georgia had passed a law that “no person shall be considered a resident for purposes of this chapter unless such person is either a United States citizen or an alien with legal authorization from the U.S. Immigration and Naturalization Service.” Id. at 1372 (citing O.C.G.A. § 40-5-15(15)). In that case, the plaintiff presented the exact same argument as do Plaintiffs here—namely that the Georgia statute was preempted as an impermissible regulation of the field of immigration. Id. at 1375. The court cited to De Canas and held that “Plaintiff's argument that the Georgia driver's license statute is a substantial burden upon national immigration policy is totally without merit. The Georgia statutes mirror federal objectives by denying Georgia driver's licenses to those who are in this country illegally according to federal law.” Id. at 1376.
2. The Regulation of State-Issued Driver’s Licenses Is Not an Attempt to Regulate the Field of Immigration.
Not only do Plaintiffs allege that the Executive Order creates immigration classifications (which it does not) they also claim that the Executive Order and ADOT’s Policy are field preempted because the denial of driver’s licenses to DACA recipients “impose[s] immigration-related burdens and penalties . . . not contemplated by federal law.” Compl., ¶ 70.41
Plaintiffs’ allegation fails as a matter of law. Federal courts have already held that state laws prohibiting the issuance of state-issued driver’s licenses to illegal aliens are not preempted as an impermissible regulation of the field of immigration. See John Doe No. 1, 147 F. Supp. 2d at 1376. Furthermore, a state law that attempts to regulate an area that is traditionally in the state’s police power does not constitute a regulation of
41 If Plaintiffs were correct, and the Executive Order and ADOT’s Policy were impermissible regulations of the field of immigration solely because they impose “immigration-related burdens and penalties” then, by extension, any state law that references an immigration classification would be subject to field preemption. As is clear from De Canas, that is not the law.
- 24 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 25 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

“immigration.” See De Canas, 424 U.S. at 356. Because the regulation of driver’s licensing is well within a state’s traditional police power, see, e.g., United States v. Thurman, 316 F. App’x 599, 602 (9th Cir. 2009); Coleman v. Watts, 40 F.3d 255, 262 (8th Cir. 1994); United States v. Snyder, 852 F.2d 471, 475 (9th Cir. 1988), the Executive Order and ADOT’s Policy are not a regulation of “immigration” for preemption purposes under any set of facts alleged by Plaintiffs.
Although Plaintiffs attempt to limit their field preemption claim to state laws prohibiting the issuance of driver’s licenses to individuals who do not have lawful presence in the United States, the Court should focus on the breadth of the effect of their claim. Essentially, if, as Plaintiffs claim, the Executive Order and ADOT’s Policy are field preempted as impermissible regulations of the field of immigration, then any state statute governing the regulation of driver’s licenses for DACA recipients—regardless of the specific language of the statute or whether the statute authorizes or precludes the issuance of driver’s licenses—would also be preempted. Cf. Arizona, 132 S. Ct. at 2502 (finding that, “[w]here Congress occupies an entire field, . . . even complementary state regulation is impermissible [because] [f]ield preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards”). This cannot be correct because, as discussed supra, the regulation of state-issued driver’s licenses has long been recognized as a traditional state power.
D. Plaintiffs Cannot Allege that the Executive Order and ADOT’s Policy Conflict with Federal Law.
Even when Congress has not explicitly preempted an area or otherwise intended to occupy a preempted field, state laws can still be preempted if they “conflict” with federal law. Conflict preemption occurs in two instances: (1) where compliance with both federal and state regulations is a physical impossibility”; and (2) “where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 132 S. Ct. at 2501 (internal citations and quotation marks omitted) (emphasis added). Plaintiffs are unable to show that the Executive Order
- 25 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 26 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

and ADOT’s Policy conflict with any purpose and objective of Congress. 1. Compliance with the Executive Order, ADOT’s Policy, and the DACA Program Is Not a Physical Impossibility.
Plaintiffs do not, and cannot, allege that it is impossible to comply with the Executive Order and ADOT’s Policy while also complying with federal immigration laws and the DACA Program. There is no provision in the INA or any other federal immigration-related law that requires a state to issue driver’s licenses or state identification cards to any particular group of immigrants. Additionally, nothing in the DACA Program authorizes DACA recipients to obtain driver’s licenses. Furthermore, nothing in the Executive Order or ADOT’s Policy makes it physically impossible for DACA recipients to reside in Arizona, temporarily avoid the fear of deportation, or obtain temporary authorization for employment in Arizona.
2. The Executive Order and ADOT’s Policy Do Not Conflict with Federal Law.
According to Plaintiffs, conflict preemption applies because “[d]enying driver’s licenses to DACA recipients in Arizona severely frustrates their ability to obtain employment and achieve economic self-sufficiency.” Compl., ¶ 52. However, because Plaintiffs cannot meet the high threshold necessary for a finding of conflict preemption, they have failed to state a claim for relief.
The Supreme Court has concluded that “a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Whiting, 131 S. Ct. at 1985 (quoting Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 110 (1992)); see also Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1009 (9th Cir. 2007) (“Tension between federal and state law is not enough to establish conflict preemption.”); Ariz. Contractors Ass’n, Inc. v. Napolitano, Nos. CV07-1355, CV07-1684, 2007 WL 4570303, at *8 (D. Ariz. Dec. 21, 2007) (“A mere difference between state and federal law is not conflict.”). In fact, a state law is generally only an impermissible “obstacle” to the “purposes and objectives” of a federal law “[i]f the purpose of the act cannot otherwise be
- 26 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 27 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

accomplished[,] if its operation within its chosen field else must be frustrated[,] and its provisions be refused their natural effect . . . .” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)). Furthermore, an analysis of conflict preemption “does not justify a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives; such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law.” Whiting, 131 S. Ct. at 1985.
Plaintiffs’ Complaint does not allege an actual conflict. Plaintiffs themselves acknowledge that the limited purposes of the DACA Program is to allow certain illegal immigrants to (1) “stay in the United States for a renewable period of two years,” (2) be “shielded from removal proceedings during that time,” and (3) “be granted federal employment authorization and a Social Security Number.” Compl., ¶ 6. The Executive Order and ADOT’s Policy do not prevent the accomplishment of any of these purposes.
As noted before, Plaintiffs contend that the Executive Order and ADOT’s Policy are obstacles to achieving employment by DACA recipients because it is “difficult, if not impossible” for Plaintiffs to maintain or obtain productive employment without having a driver’s license. Compl., ¶ 12. This argument, even if true, does not meet the high threshold for conflict preemption. The denial of a single form of transportation, i.e. the privilege to drive a car, is not an “obstacle” to any federal law and does prevent the implementation of the DACA policy. Thus, there is no legal basis for the court to take the extraordinary step and find that that the DACA policy preempts state law. Cf. Miller v. Reed, 176 F.3d 1202, 1205-06 (9th Cir. 1999) (finding that burdens on a single mode of transportation do not rise to the level of a violation of a constitutional right); Monarch Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir. 1972) (“A rich man can choose to drive a limousine; a poor man may have to walk. The poor man’s lack of choice in his mode of travel may be unfortunate, but it is not unconstitutional.”). Because the Executive Order and ADOT’s Policy do not conflict with the DACA Program, the Court should dismiss the claim with prejudice.
- 27 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 28 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

V. THE EXECUTIVE ORDER AND ADOT’S POLICY DO NOT VIOLATE THE EQUAL PROTECTION CLAUSE.
The Equal Protection Clause prohibits states from “denying to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. When those who are similarly situated are treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being “treated alike, under like circumstances and conditions.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)).
Before the Court conducts an Equal Protection analysis, it must first decide whether the individual Plaintiffs, and the class they purport to represent, are similarly situated to other aliens that have obtained Arizona driver’s licenses by submitting federal employment authorization documents (EADs). See, e.g., United States v. Armstrong, 517 U.S. 456, 470 (1996); Christian Gospel Church, Inc. v. City and Cnty. of San Francisco, 896 F.2d 1221, 1225 (9th Cir. 1990). Only if the Court determines that DACA recipients are similarly situated to other aliens who have been issued EADs does the Court determine whether Defendants’ separate classification of DACA recipients is rationally related to a legitimate state interest. Heller v. Doe, 509 U.S. 312, 319-20 (1993).
The basis of Plaintiffs’ Equal Protection Clause claim is that ADOT has previously granted licenses to other individuals granted deferred action or other forms of temporary authorization to remain in the United States but has distinguished DACA recipients from those other applicants. See Compl., ¶ 73. Defendants agree that ADOT has previously issued such licenses on a very limited basis. DACA recipients, however, are not similarly situated to other recipients of deferred action or other forms of temporary authorization. Even if they are similarly situated, Defendants have a strong state interest that is rationally related to their decision to distinguish DACA recipients. /// ///
- 28 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 29 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

A. The Federal Government Has Determined that DACA Recipients Are Not Similarly Situated to Recipients of Regular Deferred Action.
Perhaps the most compelling reason why Defendants’ actions do not violate the Equal Protection Clause is that two agencies of the federal government have also distinguished DACA from regular grants of deferred action.
1. HHS Determined that DACA Recipients Were Not Lawfully Present for Purposes of Benefits Eligibility under the Affordable Care Act.
As discussed above, the federal Department of Health and Human Services (HHS) made an emergency regulatory change to an interim final rule that addressed eligibility for certain benefits related to the Affordable Care Act. The definition of “lawful presence” for purposes of those eligible for those benefits included noncitizens “currently in deferred action status.”42 Around the same time as Governor Brewer issued the Executive Order, HHS issued a federal regulation on an emergency basis to distinguish DACA from other grants of deferred action and to exclude DACA recipients from the classes of aliens considered to be “lawfully present” for such benefits. 43 Conversely, recipients of regular grants of deferred action are still considered “lawfully present.”44 HHS also directed state agencies to make the same distinction of DACA recipients for Medicaid benefits.45 The actions of HHS demonstrate the federal government itself does not consider DACA recipients to be similarly situated to recipients of regular deferred action for purposes of benefits eligibility.
2. USCIS Has Determined that DACA Recipients Are Not Similarly Situated to Recipients of Regular Deferred Action.
Section 8 C.F.R. § 274a.12 of the Code of Federal Regulations governs employment authorization for aliens. Those aliens authorized to accept employment
42 See Appendix A12, at 45 C.F.R. § 152.2(4)(vi); Appendix A14, pp. 4, 11. 43 See Appendix A12 at Fed. Reg. 52616; 45 C.F.R. § 152.2(8). 44 Id., at 45 C.F.R. § 152.2(4)(vi). 45 See Appendix A13.
- 29 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 30 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

incident to status pursuant to some statutory or regulatory reference, and aliens authorized for employment with a specific employer incident to status, are authorized to accept employment as a matter of right. See 8 C.F.R. § 274a.12(a), (b). Conversely, deferred action is part of a category of aliens who do not get employment as a matter of right. 8 C.F.R. § 274a.12(c). Instead, approval for such employment falls within the discretion of USCIS. See 8 C.F.R. § 274a.13(a)(1). Employment authorization in this “residual category” is for aliens “who may or may not have any legal status” and can be terminated at any time. Garcia, 659 F.3d at 1270.
Although 8 C.F.R. § 274a.12(c) does not distinguish between DACA and regular deferred action, USCIS has chosen to distinguish DACA from regular deferred action. As discussed, aliens seeking EADs must file USCIS form I-765. In order to determine EAD eligibility, USCIS requires that the alien identify the category in which that alien is eligible for employment and then fill in that category. USCIS created a new and separate category for DACA. Whereas regular deferred action recipients check their category as C14, DACA recipients must check their category as C33.46 The actions of USCIS demonstrate that this federal agency, which is part of DHS, also does not consider DACA recipients to be similarly situated to recipients of regular deferred action.
3. The DACA Program Is Nothing Like Regular Deferred Action. There is a very good reason for the federal government and the State of Arizona to determine that DACA recipients are not similarly situated to recipients of regular deferred action. DACA is very different from other grants of deferred action, both substantively and in its scope of application.47
46 See Appendix A15, p. 5. 47 It is also important to note that even regular deferred action is different from other grants of temporary authorization that are specific to a statute or an enumerated federal power. For example, Section 244 of the INA provides that the Attorney General may designate nations or any foreign state (or a part of such foreign state) as deserving of Temporary Protected Status (TPS). See 8 U.S.C. § 1254a. Similarly Deferred Enforced Departure (DED), a temporary, discretionary, administrative stay of removal granted to aliens from designated countries, which is separate and different from DACA or other deferred action, “emanates from the President’s constitutional powers to conduct foreign relations.” See AFM, Appendix A6, at Chapter 38.2. Conversely, deferred action is an
- 30 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 31 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

a. DACA Orders Deferred Action on an Unprecedented Scale.

As discussed above, the scope of the DACA Program makes it very different from regular grants of deferred action, which historically have only been given on a limited and individualized case-by-case basis. Secretary Napolitano testified that DHS did not have the power to grant deferred action to an entire class of individuals and that only 900 grants of deferred action were given during all of 2010. Despite this testimony, the DACA Program makes deferred action possible for over 1.7 million individuals. Over 350,000 such individuals have submitted applications for deferred action in the six months since the program started. Of those applications, 157,151 are under review and 102,965 have been approved as of December 13, 2012. Over 12,000 applications have already been submitted in Arizona. The DACA Program provides for deferred action on a previously unintended and unprecedented scope.
b. The DACA Program Is Substantively Different from Prior Grants of Deferred Action.

DHS has occasionally provided the potential for deferred action to entire classes. Such classes have been created incident to some type of statutory relief or in anticipation of a pending regulatory or statutory change. These classes include:

 Deferred action eligibility for a surviving alien spouse, child or parent of a permanent resident member of the armed forces under § 1703 of the National Defense Authorization Act for FY 2004, Pub. L. No. 108-136, 117 Stat. 1392, 1693.

 Deferred action eligibility for certain individuals applying for immigration benefits under the Violence Against Women Act under 8 U.S.C. § 1154(a)(1)(D)(i)(II).

 Deferred action eligibility during interim relief for certain U visa applicants.



Notice of deferred action eligibility during interim students affected by Hurricane Katrina, published in

trheelieffedtoeraclerrteaginistfeor.r4e8ign

act of administrative choice which has no statutory or regulatory basis and which is not

subject to judicial review. See Reno, 525 U.S. at 484.

48 USCIS Press Release, “USCIS Announces Interim Relief for Foreign Students Adversely

Impacted

by

Hurricane

Katrina”

(Nov.

25,

2005)

- 31 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 32 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

 Deferred action eligibility to widows and children of U.S. citizens while legislation to grant them statutory relief was under consideration by Congress.49
DACA is distinguishable from these classes, not only by its incomparable scope, but because DACA does not arise incident to statutory or regulatory relief. In fact, the only relationship the DACA Program has to any form of statutory relief is that it directly conflicts with Congress’s repeated refusal to pass the DREAM Act.
Such substantive differences, and the staggering scope of the relief granted to Plaintiffs and the class they purport to represent, demonstrates that two federal agencies (HHS and USCIS) and the State of Arizona were correct to determine that DACA recipients are not similarly situated to recipients of other types of deferred action or temporary authorizations to remain in the United States. Because Plaintiffs are not similarly situated to these classes that have formerly obtained driver’s licenses by submitting EADs, the Court need not proceed any further with its Equal Protection Clause analysis and it should dismiss Count Two of Plaintiffs’ Complaint. See Christian Gospel Church, Inc., 896 F.2d at 1225.
B. Rational Basis Review Applies if the Court Chooses to Conduct an Equal Protection Analysis.
Should the Court determine that Plaintiffs do meet their threshold burden of demonstrating they are similarly situated to recipients of regular grants of deferred action, it must determine the level of review it applies to the Executive Order and ADOT’s Policy. Legislative classifications that disadvantage a “suspect class” or that tread upon the exercise of a “fundamental right” are reviewed under the strict scrutiny standard. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985). If the state classification does not involve a suspect class or a fundamental right, the classification is
http://www.uscis.gov/files/pressrelease/F1Student_11_25_05_PR.pdf, attached as Appendix A17. 49Memorandum from Donald Neufeld, Subject: “Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children,” (June 15, 2009), http://www.uscis.gov/USCIS/Laws/Memoranda/2009/June%202009/surviving-spousesdeferred-action-guidance.pdf, attached as Appendix A18.
- 32 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 33 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

reviewed under the rational basis standard. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). 1. The Matter Does Not Involve a Fundamental Right.
Plaintiffs do not allege that Defendants have violated any specific “fundamental right.” They contend, however, that the Executive Order and ADOT’s Policy “deny driver’s licenses to Plaintiffs . . . rights secured to them under the U.S. Constitution and laws.” Compl., ¶ 61. Plaintiffs cannot demonstrate that any of their fundamental rights have been violated.
First, it is well-established that there is no constitutional right to a driver’s license. See, e.g., Miller, 176 F.3d at 1204 (no “fundamental right to drive”; without a driver’s license, the plaintiff is denied only “a single mode of transportation—in a car driven by himself”); Raper v. Lucey, 488 F.2d 748, 751 (1st Cir. 1973) (“[W]e may take it as settled that . . . a right [to a driver’s license] . . . does not exist.”); Harris v. Singh, No. 12-476, 2012 WL 5467856, at *4 (W.D. Pa. Oct. 23, 2012) (“[A] person does not have a constitutional right to a driver’s license.”).
Second, Defendants’ actions do not infringe on the fundamental right to interstate travel because they do not affect: (1) the right of a citizen of one State to enter and to leave another State; (2) the right to be treated as a welcome visitor when temporarily present in the second State; or (3) for travelers who elect to become permanent residents, the right to be treated like other citizens of that State. See Saenz v. Roe, 526 U.S. 489, 500 (1999).
Third, the constitutionally-protected right to travel does not embody a right to a driver’s license or to any particular mode of transportation. In John Doe No. 1, the court considered whether denying a driver’s license to those who lacked authorization from the federal government affected an illegal alien’s fundamental right to travel. 147 F. Supp. 2d at 1370. Id. The court concluded that, even if illegal aliens had a fundamental right to travel (which the court did not believe they did), the Georgia statute did not infringe on this right by adding certain limitations to driver’s licenses because “the denial of a single mode of transportation does not rise to the level of a violation of the fundamental right to
- 33 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 34 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

interstate travel.” Id. at 1375; see also McGhee v. McCall, No. 1:10-CV-333, 2010 WL 2163818, at *2 (W.D. Mich. Apr. 19, 2010) (“State driver’s license laws impose only an ‘incidental and negligible’ burden on the exercise of right to travel, a burden insufficient to implicate denial of the right.”).
2. Plaintiffs Are Not a “Suspect Class.” “[T]he fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification.” Mathews v. Diaz, 426 U.S. 67, 78 (1976). Although Equal Protection jurisprudence has applied strict scrutiny to certain laws that discriminate against congressionally authorized classes of aliens, illegal aliens are not a suspect class. Alcaraz v. Block, 746 F.2d 593, 605 (9th Cir. 1984). C. Defendants’ Decision Not to Issue Driver’s Licenses to DACA
Recipients Has a Rational Basis.
ADOT’s decision not to issue driver’s licenses to DACA recipients complies with the Equal Protection Clause because there is a rational relationship between the difference in treatment and some legitimate governmental purpose. See Heller, 509 U.S. at 319-20. Importantly, “rational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” and as such, there is a strong presumption of validity when a state law or policy is analyzed under rational basis review. Id. at 319 (internal citation and quotation marks omitted). In fact, a defendant is not required to employ the best means of achieving the legitimate state interest. Id. at 321. The Equal Protection Clause only requires that Defendants reasonably believed that the means chosen would promote the purpose. W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668 (1981). “As long as the classificatory scheme chosen . . . rationally advances a reasonable and identifiable governmental objective, [the Court] must disregard the existence of other methods of allocation that [it] perhaps would have preferred.” Schweiker v. Wilson, 450 U.S. 221, 235 (1981).
- 34 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 35 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

Plaintiffs incorrectly attempt to place the burden on Defendants to justify their actions. See Compl., ¶ 97 (“Defendants cannot establish that Executive Order 2012-06 and related policies and practices have any valid justification, including even a rational basis.”). Defendants, however, have no obligation to “articulate at any time the purpose or rationale supporting its classification” or to produce any evidence to sustain the rationality of its actions. Heller, 509 U.S. at 320. (“A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”).50 Rather, it is Plaintiffs’ burden to negate each and every conceivable basis which might support the Executive Order and ADOT’s Policy. Id.
Here, Defendants’ determination that DACA recipients are not entitled to driver’s licenses under A.R.S. § 28-3153(D) must survive review when the federal government has distinguished DACA from regular deferred action for the exact same reasons as the State of Arizona. HHS relied on DHS’s own language to determine that, because DACA conferred no substantive rights but was designed to ease the strain on DHS’s resources, DACA recipients were not “lawfully present” for purposes of eligibility to certain benefits under the Affordable Health Care Act and Medicare.
Defendants likewise determined that, because the purposes behind the DACA program have nothing to do with benefits eligibility, DACA recipients do not have authorized presence and, therefore, should not obtain the benefit of an Arizona driver’s licenses, or the access a driver’s license provides to certain public benefits. Given the scope of the DACA Program and the size of the class of potential DACA recipients in Arizona, Defendants’ distinction between EADs issued under the DACA Program and other EADs is rationally related to Arizona’s strong state interest in: (1) avoiding the risk
50 Under this standard, the Court can dismiss Plaintiffs’ Equal Protection Claim under Rule 12(b)(6) because Defendants do not need to submit evidence to support the rational basis behind their classification of DACA recipients. Notwithstanding, Defendants have submitted the Declaration of Director Halikowski, attached to Defendants’ Separate Statement of Facts, to explain Defendants’ actions in order to move on the alternative basis that summary judgment is warranted on Plaintiffs’ Equal Protection Claim as a matter of law.
- 35 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 36 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

of potential liability for the State and ADOT; (2) reducing the risk that driver’s licenses provide improper access to public benefits, (3) unduly burdening ADOT with being required to process an extremely large number of applications for licenses from a group that is not lawfully authorized to be in the State, or having to revoke those licenses if the DACA program itself is revoked; and (4) avoiding the risk that DACA recipients might not be financially responsible for property damage or personal injury caused by automobile accidents should the DACA Program become revoked and those individuals become subject to immediate deportation and/or are removed from the United States.
Defendants’ actions cannot be a violation of the Equal Protection Clause when the federal government itself has made the same distinction for similar expressed legitimate and substantial governmental interests. Judgment in Defendants’ favor is warranted on Plaintiffs’ Equal Protection Claim.
1. ADOT Faces Potential Liability for Issuance of 80,000 Licenses if DACA Recipients’ Presence is Not Authorized under Federal Law.
As discussed, DACA is substantively different than regular deferred action and different in the unprecedented scope of its application. Director Halikowski was concerned that ADOT might face liability for issuing 80,000 driver’s licenses to illegal immigrants, or from not cancelling those driver’s licenses quickly enough, if their presence is not actually authorized under federal law. The State of Arizona has a history of defending itself from lawsuits arising from the alleged improper issuance of driver's licenses. See e.g., Evenstad v. State, 178 Ariz. 578, 585, 875 P.2d 811, 818 (App. 1993) (holding that ADOT may be held liable for the issuance of driver’s licenses); see also State v. Superior Court, 140 Ariz. 365, 681 P.2d 1384 (1984) (wrongful death suit against State for issuing a driver’s license to a driver with disabilities); Oleszczuk v. State, 124 Ariz. 373, 604 P.2d 637 (1979) (same). The Director’s concern was therefore legitimate.
2. Issuing Driver’s Licenses to DACA Recipients Could Lead to Wide-scale and Improper Access to Certain Federal and State Public Benefits.
Possession of an Arizona driver’s license is a form of identification that can enable
- 36 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 37 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

its holder to access federal and state public benefits. In Arizona, an applicant for a state or

local public benefit can submit an Arizona driver license issued after 1996 to demonstrate

lawful presence and benefits eligibility. A.R.S. § 1-502. Likewise, an applicant for a

federal public benefit requiring participants “to be citizens of the United States, legal

residents of the United States or otherwise lawfully present in the United States” must

submit documentation demonstrating lawful presence in the United States. See A.R.S. §

1-501. An Arizona driver license issued after 1996 meets this standard. Id. These

statutory requirements comport with federal legislation. Under the Federal Welfare

Reform Act, illegal immigrants are generally not eligible for state or local public benefits.

See 8 U.S.C. § 1621.

The Executive Order plainly states the legitimate state interest in ensuring DACA

recipients do not improperly gain access to state benefits to which they are not entitled.

The DACA Memo affirms that a grant of deferred action under the DACA Program did

not provide any right to substantive benefits. See Appendix A10 (“This memorandum

confers no substantive right.”). Giving driver’s licenses to DACA recipients risks such

individuals improperly using those driver’s licenses to obtain public benefits to which

they are not entitled.

Prior to DACA, ADOT accepted EADs as evidence of authorized presence in the

United States. ADOT has only recently become aware that some quantity of those EADs

might have been submitted by individuals granted regular deferred action. ADOT is

currently determining exactly how many drivers licenses were issued to deferred action

recipients who provided an EAD as the sole evidence of authorized presence.

Defendants expect to find that ADOT gave a very limited amount of driver’s

licenses to regular deferred action recipients in past years. SOF, ¶ 32. Only 900 grants of

deferred action were given nationwide during 2010. Arizona makes up 2.1% of the United States population.51 Therefore, using these numbers as a rough estimate, only 19

51 See U.S. Census Bureau, “Table 1, Estimates of Resident Population, Population

Change, Percent Distribution, and Population Density for the United States, States, and

Puerto

Rico:

April

1,

2010

to

July

1,

2012,”

- 37 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 38 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

of the 900 grants of deferred action in 2010 occurred in Arizona. Even if each of those 19 obtained EADs with no other lawful immigration status conferred by Congress and applied for a driver’s license, the total amount is very insignificant.52
Conversely, 80,000 individuals in Arizona are eligible to DACA relief. If those individuals obtained drivers licenses, the risk of wholesale improper access to public benefits would be enormous. Giving 80,000 non-entitled individuals access to public benefits would be contrary to federal and state law and would constitute an unimaginable drain on Arizona’s tax base and the administrative resources necessary to verify benefits were not illegally being provided.
3. ADOT Faces Significant Consequences from Issuing Driver’s Licenses if the DACA Program is Subsequently Revoked.
In addition to the risk of increased improper access to public benefits on a magnitude never before seen, Director Halikowski had additional strong state interests in mind when he made the policy determination, pursuant to his statutory authority that ADOT would not accept EADs given to DACA recipients as evidence of authorized presence under federal law. ICE’s Detention and Removal Operations Policy and Procedure Manual provides that deferred action confers no protection or benefit on an alien and does not preclude DHS from commencing removal proceedings at any time against an alien.53
In addition to facing the burden of issuing up to an additional 80,000 licenses in a
http://www.census.gov/popest/data/maps/12maps.html, attached as Appendix A19. 52 Defendants concede this statistical analysis is not thoroughly scientific. An alternative way to make the estimation would be to look at the percentage of DACA applications that have so far come from Arizona. Of the 355,889 DACA applications received to date, 12,924 arose in Arizona. Therefore, individuals in Arizona make up 3.63% of the DACA applicants. Using these statistics to determine the percentage of the 900 nationwide deferred action grants that might have occurred in Arizona in 2010 would give a total of 33. Although these statistics analyses may not be entirely scientific, the underlying principle is obvious. There is a huge difference between the prior issuance of driver’s license to 19 or 33 regular deferred action recipients in Arizona and the issuance of 80,000 driver’s licenses to Arizona DACA recipients. 53 See Appendix A7 at §20.9(a).
- 38 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 39 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

short period of time, Director Halikowski faced the unpalatable possibility of issuing licenses to 80,000 individuals whose temporary reprieve from removal proceedings could be revoked at any time. If Congress were to act to invalidate the DACA program or adopt a program for dealing with this group of illegal aliens that differs substantially from the DACA Program, ADOT will be faced with the serious problem of dealing with licenses issued under the program.
Although ADOT could cancel pre-existing Arizona driver’s licenses that had been issued to DACA recipients, ADOT would have no practical and meaningful way to require recipients to actually surrender them. It would also be impossible to unwind the access to public benefits that ADOT’s issuance of driver’s licenses had already created.
Most important, if DACA is revoked and its recipients become subject to immediate deportation and/or are removed from the United States, there exists the likelihood they will not be financially responsible for any property damage or personal injury they caused in automobile accidents while driving with a license. This concern alone has been found to be a legitimate state interest in not issuing driver’s licenses to illegal immigrants under rational basis review. See John Doe No. 1, 147 F. Supp. 2d at 1376 (“The State has a legitimate interest in restricting Georgia driver’s licenses to those who are citizens or legal residents because of the concern that persons subject to immediate deportation will not be financially responsible for property damage or personal injury due to automobile accidents.”); Sanchez v. State, 692 N.W.2d 812, 818 (Iowa 2005) (recognizing the State of Iowa’s same proffered legitimate interest in regulating driver’s licenses for illegal aliens).
For the reasons stated above, Defendants’ classification of DACA recipients as different from other EAD holders (even those under regular deferred action) is rationally related to several substantial state interests. Judgment is therefore warranted as a matter of law for Defendants on Plaintiffs’ Equal Protection Clause Claim. /// ///
- 39 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 40 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

VI. THE COURT SHOULD ACCORD DEFERENCE TO ADOT’S INTERPRETATION OF ARIZONA’S DRIVER’S LICENSE STATUTE TO EXCLUDE DACA RECIPIENTS. Defendant Halikowski has broad statutory discretion to administer and enforce
Arizona’s transportation laws and exercise any duties or powers he deems necessary to carry out the efficient operation of ADOT. See A.R.S. §§ 28-311; 28-363; SOF, ¶ 10. Arizona’s driver’s license statute gives ADOT the specific discretion to decide what proof is sufficient to establish authorized presence under law. See A.R.S. § 28-3153(D) (applicant must submit proof satisfactory to the department) (emphasis added).54 The Court must give substantial deference to a state agency’s interpretation of a statute that agency administers. See Franklin Mem’l Hosp. v. Harvey, 532 F. Supp. 2d 204, 209 (D. Me. 2008) (collecting and discussing U.S. circuit court cases that afforded substantial deference). Such an interpretation cannot be set aside “unless it is arbitrary, capricious, an abuse of discretion, or otherwise not supported by law.” Enter. Leasing Co. v. Metro. Airports Comm’n, 250 F.3d 1215, 1223 (8th Cir. 2001).
Many of Plaintiffs’ allegations center not on Defendants’ classification of DACA recipients as different from other EAD holders, but on whether Defendants may reasonably interpret Arizona’s driver’s license statute to exclude DACA recipients. See, e.g., Compl., ¶¶ 39-40 (alleging that DACA recipients are authorized to be present during the two year deferred action period and are likewise lawfully present); ¶ 46 (“the Executive Order thus provides that deferred action recipients are unable to meet the ‘authorized’ presence requirement for driver’s licenses and identification.”). Whether ADOT’s interpretation of the term “authorized presence under federal law” is consistent with that term as used in an Arizona statute is not an issue of whether the Defendants’ actions comply with the Equal Protection Clause or whether their decisions are preempted
54 Taken to its logical conclusion, this plain language alone gives ADOT the discretion to determine that, although any EAD was formerly sufficient proof to establish authorized presence, DACA EADs are not sufficient proof due to the huge difference DACA and regular deferred action. Notably, USCIS also decided to make the same distinction when it created a new category to distinguish DACA from regular deferred action on the I-765 form which deals with applications for EADs. See Appendix A15, page 5.
- 40 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 41 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

by federal law. They are issues of whether Defendants have complied with State law, and Plaintiffs have brought no such claim before this Court.
A. Defendants May Reasonably Determine that DACA Does Not Grant “Authorized” or “Lawful” Presence under Federal Law.”
To support their allegation that DACA recipients are “lawfully present” during deferred action, Plaintiffs rely on the USCIS statement that under the DACA Program, “if your case is deferred, you will not accrue unlawful presence during the period of deferred action.” Compl., ¶ 40. Plaintiffs’ argument is flatly rejected by the USCIS Adjudicator’s Field Manual (“AFM”)55 which expressly states “the fact the alien does not accrue unlawful presence does not mean that the alien’s presence in the United States is actually lawful.”56 Moreover, a DHS spokesperson, Peter Boogaard, recently confirmed, in specific reference to this lawsuit, that DHS’s decision not to try to deport some people does not actually “authorize” them to be in the United States. SOF, ¶ 40. If DHS itself has said that deferred action and DACA does not lead to authorized or lawful presence, then the State of Arizona can reasonably made the same determination with regard to driver’s license eligibility.
B. Defendants May Reasonably Determine the DACA Program Does Not “Arise Under Federal Law.”
Plaintiffs allege that Secretary Napolitano’s authority to grant deferred action to otherwise removable noncitizens derives from her statutory authority over administration and enforcement of the INA. Compl., ¶ 30 (internal citations omitted). Even if DHS’s administrative choice to exercise “prosecutorial discretion” not to enforce the nation’s immigration laws comes from the INA and therefore arises “under federal law,” such prosecutorial discretion exists and is intended for individualized application on a case-by55 The AFM is “a comprehensive ‘how to’ manual detailing policies and procedures for all aspects of [USCIS’s] Adjudications Program. The AFM is intended to be used [by USCIS adjudicators] in conjunction with other reference material such as the Immigration and Nationality Act and Title 8 of the Code of Federal Regulations.” AFM, Appendix A6, at Chapter 1.1. 56 Id., at Chapter 40.9.2(a)(2) (emphasis added).
- 41 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 42 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

case basis. As discussed supra, Secretary Napolitano herself testified before Congress that her authority to grant deferred action does not extend to granting deferred action to an entire class. If it did, she could refuse to enforce any immigration laws and thereby create her own immigration policy and laws simply through the use of prosecutorial discretion. It is therefore reasonable for Defendants to similarly determine that the DACA Program, in Senator Grassley’s words, goes “way beyond”57 the concept of regular deferred action and does not “arise under federal law.” VII. CONCLUSION
The Court should enter an order dismissing Plaintiffs’ claims for violation of the Supremacy Clause with prejudice. Those claims do not, and cannot, state a claim upon which relief may be granted. The Court should also enter an order dismissing Plaintiffs’ Equal Protection Claim for the same reasons, or, in the alternative, granting Defendants judgment on Plaintiffs’ Equal Protection Claim because the record reveals no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law.
DATED this 9th day of January, 2013. FENNEMORE CRAIG, P.C.
By s/ Douglas C. Northup Douglas C. Northup Timothy Berg Sean T. Hood Attorneys for Defendants Governor Janice K. Brewer, John S. Halikowski and Stacey K. Stanton - and Joseph Sciarrotta, Jr. Office of Governor Janice K. Brewer Co-Counsel for Defendant Governor Janice K. Brewer

57 See Appendix A8, p. 32.

- 42 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 43 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

CERTIFICATE OF SERVICE I hereby certify that on January 9, 2013, I electronically transmitted the attached document to the Clerk’s Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:
Jennifer Chang Newell Cecillia D. Wang Michael Tan R. Orion Danjuma American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Email: jnewell@aclu.org Email: cwang@aclu.org Email: mtan@aclu.org Email: odanjuma@aclu.org Lee Gelernt American Civil Liberties Union Foundation Immigrants’ Rights Project 125 Broad St., 18th Floor New York, NY 1004 Email: lgelernt@aclu.org Daniel J. Pochoda Kelly J. Flood James Duff Lyall ACLU Foundation of Arizona 3707 N. Seventh St., Suite 235 Phoenix, AZ 85014 Email: dpochoda@acluaz.org Email: kflood@acluaz.org Email: jlyall@acluaz.org Linton Joaquin Karen C. Tumlin Shiu-Ming Cheer National Immigration Law Center 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 Email: joaquin@nilc.org Email: tumlin@nilc.org Email: cheer@nilc.org Tanya Broder National Immigration Law Center 405 Fourteenth St., Suite 1400 Oakland, CA 94612 Email: Broder@nilc.org
- 43 -

Case 2:12-cv-02546-DGC Document 58 Filed 01/14/13 Page 44 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C. P H OE N IX

7840656

Victor Viramontes

Nicholas Espiritu

M63e4xSic.aSnpArimngerSitcraenetL, e1g1athl

Defense Floor

and

Educational

Fund

Los Angeles, CA 90014

Email: vviramontes@maldef.org

Email: nespiritu@maldef.org

Marty Harper Thomas K. Irvine Andrew S. Jacob Polsinelli Shughart P.C. One E. Washington St., Suite 1200 Phoenix, AZ 85004 Email: mharper@polsinelli.com Email: tirvine@polsinelli.com Email: ajacob@polsinelli.com

s/ Nikki Nolund Legal Secretary Fennemore Craig, P.C.

- 44 -

 
 Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 1 of 40

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ARIZONA DREAM ACT COALITION; JESUS CASTRO-MARTINEZ; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS,
Plaintiffs-Appellants,

No. 13-16248
D.C. No. 2:12-cv-02546-
DGC

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 2 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 3 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 4 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 5 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 6 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 7 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 8 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 9 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 10 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 11 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 12 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 13 of 40

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 conflictpreempted 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).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 14 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 15 of 40

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 conflictpreempted.
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 conflictpreempted, “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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 16 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 17 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 18 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 19 of 40

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,

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 20 of 40

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).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 21 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 22 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 23 of 40

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,

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 24 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 25 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 26 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 27 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 28 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 29 of 40

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 newlycrafted 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.
* * *

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 30 of 40

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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 31 of 40

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).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 32 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 33 of 40

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”).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 34 of 40

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).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 35 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 36 of 40

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) (emphasis added). 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

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 37 of 40

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.

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 38 of 40

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.”

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 39 of 40

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).

Case: 13-16248 07/07/2014

ID: 9157043 DktEntry: 62-1 Page: 40 of 40

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.

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9

Arizona Dream Act Coalition; Jesus CastroMartinez; Christian Jacobo; Alejandro Lopez;

10 Ariel Martinez; and Natalia Perez-Gallagos,

No. CV12-02546 PHX DGC

11

Plaintiffs,

12

13 v.

ORDER

14 Janice K. Brewer, Governor of the State of Arizona, in her official capacity; John S.
15 Halikowski, Director of the Arizona Department
16 of Transportation, in his official capacity; and Stacey K. Stanton, Assistant Director of the Motor
17 Vehicle Division of the Arizona Department of
18 Transportation, in her official capacity,

19 Defenda

nts.

20

This case concerns the constitutionality of th e State of Arizona’s denial of driver’s

21 licenses to persons c ommonly known as “DR EAMers.”1 On June 15, 2012, Janet

22 Napolitano, Secretary of the Department of Homeland Security (“DHS”), announced the

23 Deferred Action for Childhood Arrivals (“ DACA”) pr ogram, whic h pr ovides deferred

24 action f or a period of two years to certain e ligible DREAMers (hereafter referred to as

25

26

1 Plaintiffs generally refer to themse lves as “DREAMers” based on proposed federal legislation known as the Developm ent, Relief, and Education for Alien Minors

27

Act (the “DREAM Act”). Doc. 1, ¶ 2. The DR EAM Act w ould grant l egal status to certain undocumented young adults. Congress has consid ered the DREAM Act several

28

times, but no version has been e nacted. See, e.g. , DREA M Act of 2011, S. 952, H.R. 1842, 112t h Cong. (2011); DR EAM Act of 20 10, H.R . 6497, S. 3 962, S. 3963, 111th

Cong. (2010); DREAM Act of 2007, S. 774, 110th Cong. (2007).

1 “DACA recipients”). Defe rred action constitutes a disc retionary decision by law

2 enforcement authorities to defer legal action that would remove an individual from th e

3 country. The DACA program also provides that DACA reci pients may work during the

4 period of deferred action and may obtain employment authorization documents, generally

5 known as “EADs,” from the United States

Citizenship and Imm igration Ser vices

6 (“USCIS”).

7

Arizona la w pr ovides that the A rizona Department of Transportation (“A DOT”)

8 “shall not i ssue to or r enew a driver license . . . for a person w ho does not s ubmit proof

9 satisfactory to t he de partment that the app licant’s presence in the United States is

10 authorized under federal law.” A.R.S. § 28-3153(D). Before th e announcement of the

11 DACA program, the Mot or Vehicle Division (“MVD”) of ADOT accepted all federally-

12 issued EADs as sufficient ev idence that a person’s presence in the United States was

13 authorized under feder al law, and therefore gran ted driver’s licenses to such i ndividuals.

14 After announcement of the DAC A progra m, MVD r evised its policy to provi de that

15 EADs issued to DACA recipi ents do not constitute sufficien t evidence. MVD continues

16 to accept all other EADs, including those i ssued to persons who have received other

17 forms of deferred action.

18

Plaintiffs are the Arizona Dream Act Coalition (“ADAC”), an immigrant youth-

19 led com munity orga nization, and five indivi dual DACA recipients. They allege that

20 Defendants’ driver’s license poli cy vi olates the S upremacy and the Equal Protection

21 Clauses of the United States Constitution. Pl aintiffs have filed a motion for preliminary

22 injunction (Doc. 29), and Defe ndants have filed a motion to dismiss (Doc. 58). The

23 motions ar e fully briefed, and the Court he ard oral ar gument on March 22, 2013. For

24 reasons stated below, t he Court concludes that Plaintiffs have not shown a likelihood of

25 success on the m erits of their Suprem acy Cl ause claim . Plaintiffs have show n a

26 likelihood of success on the merits of their equal protection claim, but the Court finds that

27 they have not s hown a likelih ood of irrepa rable injur y an d have not other wise m et the

28 high burden for a mandatory injunction. The Court accor dingly will deny Plaintiffs’

- 2 -

1 motion for a preliminary injunction and grant Defendants’ motion to dismiss in part.

2

BACKGROUND

3 I. Deferred Action and DACA.

4

The federa l gover nment has broad and plenary powers over the subject of

5 immigration and t he s tatus of aliens. Arizona v. U nited States , 132 S. Ct. 2492, 2498

6 (2012); see also U.S. Const. art. I, § 8, cl. 4. Through the I mmigration and Nationality

7 Act (“INA”), 8 U.S.C. § 1101, et seq ., Congress has created a com plex and detailed

8 federal immigration scheme governing the conditions under which a foreign national may

9 be admitted to and remain in the United States, see, e. g., id. §§ 1181, 1 182, 1184, and

10 providing for the removal and de portation of aliens not lawfu lly admitted to this country,

11 see, e.g., id. §§ 1225, 1227, 122 8, 1229, 1231. See generally Unit ed States v. Arizona ,

12 703 F. Supp. 2d 980, 987-88 (D. Ariz. 2 010) (des cribing the federal immigratio n

13 scheme). The INA charges the Secretary of Homeland Security w ith the administratio n

14 and enforcement of all laws relating to i mmigration a nd nat uralization. 8 U.S.C .

15 § 1103(a)(1). Under this dele gation of authority, the S ecretary may exercise a form of

16 prosecutorial discretion and deci de not to pu rsue the r emoval of a person unlawfull y in

17 the United States. This exerci se of prosecut orial discreti on is comm only referred to as

18 deferred action. See Reno v. Am.-Arab Anti-Discrimination C omm., 525 U.S. 471, 483-

19 84 & n. 8 (1999) (re cognizing the practice of “deferred action” where the Executive

20 exercises discretion and declines to institu te proceedings, term inate proceedings, or 21 execute a final order of deportation for humanitarian reasons or its own convenience).2

22

On June 15, 2012, Secretary Napolitano issued a memorand um announcing that

23

24

2 Deferred action status can be granted fo r a number of reason s. Fo r ex ample, deferred action status can be granted t o undoc umented aliens w ho are wit nesses in a

25

criminal case, permitting them to remain and work in the United States until they testify at trial, after which they will be removed. Doc. 30 at 10 (citing Doc. 32, ¶¶ 17-19);

26

Doc. 32, ¶ 28; Doc. 83-1, ¶ 27. Other exa mples include “ victims of hum an trafficking and sexual exploitation”; “relatives of victim s of terrorism ”; “surviving family members

27

of a lawful perm anent resident m ember of the arm ed forces”; “s pouses and children of U.S. citizens or lawful permanent resident s who are survivors of domestic violence”;

28

“surviving spouses of U.S. c itizens”; “foreign students affe cted by Hurricane Katrina”; and “applicants for certain t ypes of visas.” Doc. 30 at 10 (citing Doc. 40, ¶¶ 13-19);

Doc. 32, ¶¶ 19, 28; Doc. 83-1, ¶¶ 25-38. See generally Doc. 86-2 at 67-79, 82-85.

- 3 -

1 certain young persons not lawfully present in the United States will be eligible to obtain

2 deferred action if they meet specified criteri a under the newly ins tituted DACA program.

3 Doc. 1, ¶¶ 4-5; Doc. 38-3. El igible persons must show that they (1) came to the United

4 States under the age of 16; (2) continuously resided in t he United States for at least five

5 years preceding the date of the memorandum and were present in the United States on the

6 date of the memorandum; (3) currently attend school, have graduated from high school or

7 obtained a general education developm ent cer tificate, or are an honora bly discharge d

8 veteran of the Coast Guar d or Arm ed For ces of the United Stat es; (4) have not been

9 convicted of a felony offense, a signi ficant misdemeanor, multiple misdemean or

10 offenses, or other wise pose a t hreat to nationa l security or public safety; and (5) are not

11 older tha n 30. D oc. 38- 3 at 2. Eligible persons receive deferred action f or two years,

12 subject to renewal, and may obtain an EAD for the period of the deferred action.

13 Doc. 38-3 at 4; see also 8 C.F.R. § 274a.12(c)(14). The Napolitano memorandum makes

14 clear that it “confers no substantive right, immigration status or pathway to citizenship[,]”

15 and that “[o] nly the Congress, acting through its legislative authority, can confer these

16 rights.” Id. An estimated 1.76 million persons are eligible for DACA, with

17 approximately 80,000 residing in Arizona. Doc. 1, ¶ 6.

18 II. Defendants’ Driver’s License Policy.

19

As note d above, A. R.S. § 28-3153(D) provi des that non-citizens may obtai n

20 Arizona driver’s licenses by pres enting proof that their presen ce in the United States is

21 authorized by federal law. MVD policies identify the documentati on deemed sufficient

22 to show federal authorization. See Doc. 34-3. Before the polic y change at issue in this

23 case, MVD accepted EADs as satisf actory evidence. Doc. 1, ¶ 9; Doc. 34-3; Doc. 60-1

24 at 12- 15, ¶ 25; Doc. 83- 5, ¶ 3. Between 2005 and 2012 , MV D issued a pproximately

25 47,500 driver’s licenses to persons who submitted EADs to prove their lawful presence in 26 the United States. Doc. 30 at 26 (citing Doc. 34-7 at 1-5).3

27

28

3 Defendants report that “after rem oving the duplicate records” (D oc. 83-5, ¶ 14), the number is actually 38,831 (Doc. 90 at 23, n. 34). Elsewhere, Defendant s subm it a

news article stating that a review of MVD records “found more th an 68,000 instances

- 4 -

1

The announcement of the DA CA program prompted ADOT Director John S.

2 Halikowski to review the pr ogram’s potentia l im pact on A DOT’s adm inistration of the

3 State’s driver’s license laws. Doc. 60-1 at 12- 15, ¶ ¶ 5, 7. Halikows ki and Assistant

4 Director Stacey K. Stanton were aware that DA CA recipients with EADs were eligible to 5 receive driver’s licenses under MVD’s th en-existing policy (D oc. 99-1 at 247-51 4), and

6 Halikowski’s declaration states that he had a num ber of concerns about the DA CA

7 program (Doc. 60-1 at 12-15, ¶¶ 8-20).

8

After Director Halikows ki initiated th e A DOT policy revie w, but bef ore the

9 review had reached a conclusi on, Governor Brewer issued Executive Order 2012-06 on

10 August 15, 2012 (the “Executive Order”). The Executive Order concluded that “issuance

11 of Deferred Action or Deferre d Action US CIS employment au thorization documents to

12 unlawfully present aliens does not confer upon them any lawf ul or authorized status and

13 does not entitle them to any additional public be nefit.” Doc. 1-1 at 2. The Executive

14 Order directed state agencies to “conduct a full statutory, rule-making and policy analysis

15 and . . . initiate operational, policy, rule and statutory changes necessary to prevent

16 Deferred Action recipients from obtaining eligibility, beyond those available to any

17 person regardless of lawful status, for an y taxpayer-funded public benefits and state

18 identification, including a driver’s license[.]” Id. Governor Brewer stated that the

19 Executive Order was necessary to make clear there would be “no drivers [sic] licenses for

20 illegal people.” Doc. 38, ¶ 13. On September 17, 2012, MVD formally revised its policy

21 to conform to the Governor’s order. Doc. 1, ¶ 10; Doc. 1-2.

22

23

24

25

since 2005 where MVD issued an Arizona driver’s license or state ID card to someone with a federal ‘employment auth orization card.’” Doc. 60- 1 at 29. For purposes of this

26 order, the Court will use 47,500 as a reasonable approximation.

27

4 Some citations in t his order are to doc uments lodged by the parties under seal to protect information claimed to be confi dential. The C ourt has issued an order directing

28

the parties to resolve their disagreements on what portions of the record should be sealed, and to submit a stipulation to the Court. Th e Court has decided not to await resolution of

that matter before issuing this order.

- 5 -

1

MOTION FOR PRELIMINARY INJUNCTION

2 I. Legal Standard.

3

“A preliminary injunction is an extraordinary remedy never awarded as a matter of

4 right.” Winter v. Natur al Res. Def. Council, Inc. , 555 U.S. 7, 24 ( 2008) (citation

5 omitted). To obtain a preliminar y injunction, a plaintiff must show “that he is likely to

6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of

7 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

8 the public interest.” Id. at 20; see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d

9 1127, 1135 (9th Cir. 2011).

10

Preliminary injunctions can be prohi bitory or mandatory. Prohibitory injunctions

11 “preserve the status quo between the parties pending a resolution of a case on the merits.”

12 McCormack v. Hiedeman , 694 F.3d 1004, 1019 (9th Ci r. 2012) (citation omitted).

13 Mandatory injunctions go well be yond maintaining the status quo a nd order responsible

14 parties “to take action.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

15 F.3d 873, 879 (9th Cir. 2009) (quotation marks and citati ons omitted). Because they

16 impose affirmative obligations on parties at the ver y beginning of a case and before full

17 discovery or a trial on the merits, mandatory injunctions require a hi gher level of pr oof

18 than prohibitory injunctions. They are “particularly disf avored,” not granted unl ess

19 “extreme or very serious damage will result,” and “not issued in doubtful cases.” Park

20 Village Apt. Tenants Ass’n v. Mortimer Howar d Trust , 636 F.3d 1150, 1160 (9th Cir.

21 2011) (quoting Marlyn Nutraceuticals , 571 F.3d a t 879); see also D ahl v. HEM

22 Pharmaceuticals Corp. , 7 F.3d 1399, 1403 (9th Cir. 19 93) (“‘mandatory preliminary

23 relief’ is subject to heightened scrutiny and s hould not be issued unl ess the facts and law

24 clearly favor the moving party.”).

25

Plaintiffs ask the Court to enjoin De fendants from conti nuing t o apply their

26 DACA-specific driver’s license policy, an injunction that would result in Plaintiffs

27 receiving driver’s licenses when they present EADs and othe rwise qualify for licenses.

28 The parties disagree on w hether such an inj unction would be prohibitory or m andatory.

- 6 -

1 Plaintiffs claim that it is pr ohibitory because it merely seeks to prohibit Defendants from

2 applying an unconstitutional po licy. Defendants argue that it is mandatory because it

3 would require them to take actio n they have not taken in the past – issuing driver’s

4 licenses to Plaintiffs and member of their class.

5

The Court finds that the requested injunc tion is m andatory. As the Ninth Circuit

6 has explained, the test for whether an injunction is prohibitory or mandatory can be found

7 in its effect on the “status quo a nte litem,” which means “‘the last, uncont ested status

8 which preceded the pendi ng controversy.’” Marlyn Nutraceuticals , 571 F. 3d at 879

9 (quoting Regents of t he U niv. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 514 (9th Cir.

10 1984)). The status quo referred to, of cours e, is the status quo between the parties to the

11 lawsuit. As the Ninth Circuit has noted, a pr ohibitory injunction “pre serve[s] the sta tus

12 quo between the parties pending a resolution of a case on the merits.” McCormack, 694

13 F.3d at 1019 (emphasis added); see also Stanley, 13 F.3d at 1320 (examining relationship

14 between parties to decide whether injunction was prohibitory or mandatory).

15

The last uncontested s tatus betwe en the parties to this case was that Defendants

16 did not issue driver’s licenses to Plaintiffs. Although it is true that Defendants previously

17 accepted EADs as sufficient proof for issuing licenses to other individuals, that prior

18 circumstance did not exist between the parties to this case. Before implementation of the

19 DACA program and issuance of the Exec utive Order ( which occurred on the same date,

20 August 15, 2012), De fendants had never issued licenses to Plaintiffs and Plaintiffs had

21 never sought them. The requested injunction would change this “status quo ante litem.”

22 Defendants woul d be required to issue driver’s licenses to Plaintiffs and other DACA

23 recipients who subm it EADs obtained under the DAC A program. Such a change in t he

24 preexisting status quo constitutes a mandatory injunction, and the Co urt therefore will

25 apply the heightened requirements for such injunctions.

26 II. Likelihood of Success on the Supremacy Clause Claim (Count One).

27

“The Supremacy Clause pr ovides a clear rule that federal law ‘shall be the

28 supreme Law of the Land; and the Judges in every State shall be bound thereby, anything

- 7 -

1 in the Constitution or Laws of any Stat e to the Contrary notwithstanding.’” Arizona, 132

2 S. Ct. at 2500 (quoti ng U. S. Const. art. V I, cl. 2). U nder this rule, “Congress has the

3 power to preempt state law.” Crosby v. Nat’l Foreign Trade Council , 530 U.S. 363, 372

4 (2000). The preemption doctrine consists of three well-recognized classes: express, field,

5 and c onflict preem ption. Arizona, 132 S. Ct. at 2500-01. Express preem ption occurs

6 when Congress “wit hdraws sp ecified powers from the States by enacting a statute

7 containing an express preem ption provision.” Id. at 2501 (citing Chamber of Commerce

8 of U.S. v. Whiting , 131 S. Ct. 1968, 1974-75 (2011)). Field preemption precludes states

9 “from regulating conduct in a field that Cong ress, acting within its proper authority, has

10 determined m ust be regulated by its exclusive governance.” Id. (citing Glade v. N at’l

11 Solid Wastes Mgmt. Ass’n , 505 U.S. 88, 115 (1992)). Conflic t preemption occurs “where

12 ‘compliance with both federal and state regulations is a physical impossibility,’ Florida

13 Lime & Avocado Gr owers, Inc. v. Paul , 373 U.S. 132, 142-43 (1963), and in those

14 instances where the challenged state law ‘stands as an obst acle to the accomplishment

15 and execution of the full purposes and objectives of C ongress,’ Hines v. Davidowitz, 312

16 U.S. 52, 61 (1941).” Id.

17

Plaintiffs do not rely on e xpress pree mption and say they do not rely on f ield

18 preemption. Plaintiffs instead ar gue that the Arizona policy is “ per se preem pted” and

19 conflict preempted. The Court finds both arguments to be legally incorrect.

20

A. Per Se Preemption.

21

Plaintiffs argue that Defenda nts’ polic y a mounts to a regulation of im migration

22 and is per se pre-empted under De Canas v. Bica , 424 U.S. 351 ( 1976), and other

23 Supreme Court decisions. Plaint iffs focus sp ecifically on the State’s act of “classifying”

24 aliens – sa ying that some aliens get dri ver’s licenses and ot hers do not – and argue that

25 such classification by a state is preempted by the fe deral gove rnment’s sole right to

26 classify aliens. As the Court noted a bove, however, the tra ditionally recognized

27 categories of preemption are express, field, and conflict. Arizona, 132 S. Ct. at 2500-01.

28 Per se preemption is not included in the list. Pl aintiffs seem to be crafting a specialized

- 8 -

1 kind of pre emption that applies onl y in im migration cases and forbids any state law or

2 action that can be construed as a “classific ation” of a liens. The Suprem e Court cases

3 cited by Plaintiffs do not support this specialized argument.

4

De Canas involved a challenge to a Californi a law that prohibited employers from

5 knowingly employing “an alie n who is not entitled to lawful res idence in the United

6 States if such employment woul d ha ve an adverse effect on lawful resident wor kers.”

7 424 U.S. at 352. The Suprem e Court declined to invalidate the law, and i n the process

8 reached three conclusions: (1) The Constitu tion does not so restrict the field of

9 immigration regulation as to prohibit any state law that deals with aliens, id. at 355-56;

10 (2) Congress has not so occupied the field of im migration regulation as to preclude all

11 state regulation, id. a t 357- 58; a nd (3) deciding wh ether the California law conflicted

12 with federal im migration law required c onstruction of the California statute and

13 implementing regulations, a matter that should be addressed in the first instance by the

14 California courts, id. at 363-65. The case w as remanded to the California courts for this

15 purpose. Id. at 365. Thus, contr ary to Plaintiffs’ suggestion, De Canas did not adopt a

16 per se pree mption r ule and di d not hold that a ll state classifications of immigrants are

17 preempted by federal l aw. To the contra ry, the Supreme Court stated that it “has never

18 held that every state enactment whic h in any wa y de als with aliens is a regulation of

19 immigration and thus per se pre-empted by this constitutio nal power, whether latent or

20 exercised.” Id. at 355 (emphasis added).

21 Plaintiffs

cite Plyler v. Doe , 457 U.S. 202 ( 1982), in support of their per se

22 preemption argum ent, but Plyler is not a preem ption case. It was decided on e qual

23 protection grounds and never considered whet her the Texas law at issue (barring illegal

24 alien children from attending public schools) wa s preempted by federal law. Indee d, the

25 majority opinion in Plyler does not even mention the word “preemption.” Id. at 205-230.

26 Plyler does say that “States enjoy no power with respect to the classification of aliens”

27 and that “[t]his power is committed to the po litical branches of the Federal Government,”

28 but these comments appear in the Co urt’s equal protection analysis. Id. at 225 (quotation

- 9 -

1 marks and citations omitted). The Court cannot conclude th at they were intended to

2 establish a kind of per se preemption based on classification.

3 Plaintiffs

cite Toll v. Moreno, 458 U.S. 1 (1982), for the same proposition, but Toll

4 is not a per se preemption case. Toll is a conflict preemption case. The majority opinion

5 never m entions per se preemption. Id. at 3-19. Toll held that a Ma ryland law which

6 barred nonimmigrant aliens with G-4 visas from obtaining domi cile and paying in-state

7 tuition conflicted with actions of Congress which permitted the aliens to obtain domicile

8 and other f inancial be nefits. Id. at 13-17. The Court will a ddress Plaintiffs’ conflict

9 preemption argument below.

10 Plaintiffs

cite Nyquist v. Maucl et, 432 U. S. 1 ( 1977), but Nyquist is not a

11 preemption case. Like Plyler, it was decided on equal protection grounds. Id. at 12. The

12 case never uses the word “preemption,” much less “per se preemption.”

13

For these reasons, the Court fi nds no support for Plaintiffs’ per se preemption

14 argument in the Supreme Court cases they c ite. Those cases do not adopt a specialized

15 form of per se preemption for im migration cases as Plaintiffs suggest. Nor does the

16 Court find Plaintiffs’ citation to several district court cases helpful.

17

The district court in League of United Latin Am erican Citizens v. Wilson , 908 F.

18 Supp. 755 (C.D. Cal. 1995), invalidated several provisions of a California initiative that

19 required state officials and others to determine whether persons were in the United States

20 legally, report them to federal authorities if th ey were not, and advi se the individuals of

21 their obligation to leave the Country, id. a t 763- 64. Wilson based its holding on De

22 Canas, which it read as holding, as a first of three tests, that any state law which

23 regulated immigration is preem pted. Id. at 768. Wilson went on to hol d that any state

24 law that required state officials to classify aliens in a m anner independent of federal law

25 constitutes a regulation of immi gration and is preempted un der this “first test.” Id. at

26 770. The Court does not agree with Wilson’s reading of De Canas. The first holding in

27 De Canas was that the Constitution does not create a federal-onl y field of i mmigration

28 which the States can never i nvade. 424 U. S. at 355. The Court did not adopt the rule

- 10 -

1 applied by Wilson – that any state law whic h regulates immigration by classifying aliens

2 is preempted. For the same reason, the C ourt is not persuaded by the other district court

3 cases cited by Plaintiffs, each of which adopts the incorrect Wilson reading of De Canas.

4 See Equal Access Educ. v. Merten , 305 F. Supp. 2d 58 5 (E.D. Va. 2004); Villas at

5 Parkside Partners v. City of Farmers Branch , 577 F. Supp. 2d 8 58 (N.D. Tex. 2008);

6 Hispanic I nterest Coal. of Ala. v. Bentley , No. 5:11-CV-2482-S LB, 2011 WL 5516953

7 (N.D. Ala. Sept. 28, 2011).

8

The Supreme Court’s recent decision in Arizona v. United States, 132 S. Ct. 2492

9 (2012), supports the Court’s understanding of preem ption la w. In a ddressing the

10 constitutionality of Arizona’s S.B. 1070, a law that sought to encourage and enhance state

11 enforcement of immigration laws, the Supreme Court never mentioned per se preemption

12 or the “classification” analysis that Wilson claims to have found i n De Canas. Instead,

13 the Supre me Court addressed the three trad itional categories of preem ption – express,

14 field, and conflict ( id. at 2500-01) – and held that on e Arizona provision was invalid

15 under field preemption and two were invalid under conflict preemption. Id. at 2501-07.

16

In summary, the Court finds Plaintiffs’ per se preemption argument to be legally

17 incorrect. The argument finds no support in relevant Suprem e Court cases, appears to be

18 inconsistent with traditional preemption anal ysis, and relies on district court cases the 19 Court finds unpersuasive.5

20 B.

Conflict Preemption.

21

Plaintiffs initially appeared to argue th at Arizona’s policy wa s preempted because

22 it conflicted with Secretary Napolitano’s discretionary decision to grant deferred status to

23 those who qualify under the DACA program. Pl aintiffs identified several ways in which

24 the Arizona policy conflicted with the purpose s of the DA CA program, arguing t hat the

25 policy “im permissibly undermines the federa l goal of permitting [ DACA recipients] to

26 remain and work in the United States, and to be full, contri buting members of society.”

27

28

5 Plaintiffs’ per se preemption argument at times sounds close to field preemption, but Plaintiffs state that they are not making a field preemption argument (Doc. 91 at 17 n.

6), a fact confirmed by Plaintiffs’ counsel at oral argument (Doc. 111 at 19:6-20:18).

- 11 -

1 Doc. 30 a t 23. In response to this ar gument, Defenda nts argue d that Secretary

2 Napolitano’s memorandum could have no preemptive effect. Defendants are correct.

3

The memorandum does not have the force of law. Although t he Supreme Court

4 has recognized that federal agency regulati ons “ with the f orce of law” c an preem pt

5 conflicting state requirements, Wyeth, 555 U.S. at 576, f ederal regulations have the force

6 of law only whe n t hey prescribe substa ntive rules and are prom ulgated through

7 congressionally-mandated proce dures such as notice-and-com ment rulem aking. See

8 River Runners for Wil derness v. Martin , 593 F.3d 1064, 1071 (9th Cir. 2010) (citing

9 United States v. Fifty-Three (53) Eclectus Parrots , 685 F.2d 1131, 1136 (9th Cir. 1982)).

10 Secretary Napolitano’s memorandum does not pu rport to establish s ubstantive rules (in

11 fact, it says that it does not create substan tive rights) and it was not prom ulgated through

12 any formal procedure. As a result, the me morandum does not ha ve the f orce of law a nd

13 cannot preempt state law or policy.

14

Perhaps as a result of this reality, Pl aintiffs clarified their conflict preemption

15 argument i n t heir repl y m emorandum, assertin g that the Arizona policy “conflicts with

16 Congress’s decision to grant discretion to th e Executive Branch to enforce the

17 immigration laws[.]” Doc. 99 at 15 (em phasis in origi nal). Unfortunately for Plaintiffs,

18 this preemption argument also fails. Conflic t preemption exists when a state law o r

19 policy “stands as an obstacle to the accomp lishment and e xecution of the full purposes

20 and objectives of Congress.” Arizona, 132 S. Ct. at 2501. The “purpose of Congress is

21 the ultimate touchstone[.]” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quotation

22 marks and citations omitted). Plaintiffs ha ve identified no purpo se of Congress with

23 which the Arizona driver’s license policy conflicts.

24

Plaintiffs characterize Defendants’ driver’s license policy as an attempt to decide

25 “that DACA recipients are not authorized to be present” in the United States, an attempt

26 that “undermines Congress’ inte nt that the federal governme nt alone have discretion to

27 make these decisions.” D oc. 99 a t 16 (em phasis in original). Th e Court does not agree,

28 however, that the Arizona policy constitutes an attempt to decide which aliens may

- 12 -

1 remain in the United States. The policy concer ns driver’s licenses. Unlike the Arizona

2 policy that was found to be conflict-preempted in Arizona, the driver’s license policy

3 does not concer n the arrest, prosecution, or removal of aliens from the State or the

4 Nation. The C ourt cannot find that issuance or denial of driver’ s licenses “stands as an

5 obstacle to the accomplishment and executi on of the full purposes and objectives of

6 Congress” in delegating immigration authority to DHS. See Hines, 312 U.S. at 67.

7

Plaintiffs argue t hat Defenda nts’ driv er’s license poli cy underm ines C ongress’s

8 intent that t he federal governm ent decide w ho can work in the United States. Plaintiffs’

9 submit that Defendant s’ policy stands as an obstacle to this federal objective because

10 driving is frequently necessary to work. But Plaintiffs cite no authority to show that work

11 was one of the objectives Congress had in mind when it delegated immigration authority

12 to DHS. And to the extent Plaintiffs rely on the purposes of the DACA program, they are

13 looking to a nonbinding policy of a federal ag ency, not the i ntent of C ongress which is

14 the touchstone of conflict preemption analysis. What is mo re, the Court certainly cannot

15 impute the intentions of the DAC A program to Congress when Congress itself has

16 declined repeatedly to enact legislation that would acco mplish the goals of the DACA

17 program. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011).

18

In short, D efendants have ide ntified no congressional intent that is frustrated by

19 Arizona’s driver’s license policy. They certainly have not identified the kinds o f

20 conflicts that have le d the S upreme Court t o find c onflict preem ption i n cases such as

21 Arizona, 132 S. Ct. at 2503- 07, and Toll, 458 U.S. at 12- 15. As a result, the Court

22 concludes that Plaintiffs cannot succeed on the merits of their Supremacy Clause claim.

23 III. Likelihood of Success on the Equal Protection Claim (Count Two).

24

A. Plaintiffs Are Similarly Situated.

25

To prevail on their equal pr otection claim, Plaintiffs “must make a showing that a

26 class that is similarly situated has been treated disparately.” Christian Gos pel Church,

27 Inc. v. City and Cnty. of S. F., 896 F.2d 1221, 1225-2 6 (9th Cir. 1990). “T he first step in

28 equal prote ction anal ysis is to identify the state’s cl assification of groups.” Country

- 13 -

1 Classic Dairies, Inc. v. State of Mont ., D ep’t of Commerce Milk Control Bureau ,

2 847 F.2d 593, 596 ( 9th Cir. 1988). “The gr oups must be comprised of similarly situated

3 persons s o that the factor motivating the a lleged discrim ination can be identified.”

4 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2012).

5

Plaintiffs argue that DACA recipients are similarly situated to other noncitizens

6 holding EADs who are eligible to obtain drive r’s licenses in Arizona. Defendants argue

7 that DACA recipients are not similarly situ ated to ot her EAD holders, incl uding ot her

8 deferred action recipients, because these other noncitizens are classified differently under

9 federal immigration law. Defendants point to USCIS’s creation of a new EAD category

10 code for DACA recipients. USCIS’s form I-765 instructs DACA re cipients to enter

11 “(c)(33),” whereas other form s of deferred action are cate gorized unde r “(c)(14). ”

12 Defendants also note that the Departm ent of Health and Hum an Services (“DHHS”) has

13 determined that DACA recipients are not “law fully present” for purpo ses of health care

14 benefits conferred on other defer red acti on recipients, 45 C.F.R. § 152.2(8), and argue

15 that this determination shows that even th e federal government distinguishes the DA CA

16 program from other forms of deferred action.

17

Plaintiffs argue that these distinctions are not relevant to t he issue of w hether

18 DACA recipients are similarly situated fo r purposes of Defendants’ driver’s license

19 policy. The Court is inclined to agree with Plaintiffs. The question is not whet her

20 DACA recipients are identical in every resp ect to othe r deferred action recipients, but

21 whether they are the same in respects relevant to the driver’s license policy.

See

22 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid

23 classifications. It sim ply keeps governm ental decisionm akers from treating different ly

24 persons w ho are i n al l relevant r espects al ike.”). Def endants ha ve ide ntified nothing

25 about t he (c)(33) cat egory c ode to s uggest that DACA recipients are somehow less

26 authorized to be present in the United States than are othe r deferred action recipients.

27 Nor have Defenda nts shown t hat the DH HS po licy is based on DA CA recipients bei ng

28 less authorized. All deferred action recipien ts are permitted to remain in the country

- 14 -

1 without removal for a tem porary period of time, and the EADs held by those recipients

2 appear to be valid onl y for a tem porary period. See 8 C.F.R. § 274a. 12(c)(14) (“USCIS

3 . . . may establish a specific validity period for an [ EAD]” for “[a] n alien who has been

4 granted deferred action”). Moreover, Defendants issued driver’s licenses to all applicants

5 submitting an EAD as pr oof of “authorized presence” before the DACA program was

6 implemented. Doc. 60-1 at 12-15, ¶¶ 25-26.

7

Defendants argue that DAC A recipients are different because other form s of

8 deferred action arise “incident t o som e type of statutory relief or in antici pation of a

9 pending regulatory or statutory change.” Doc. 85 at 21; see also Doc. 108 at 2. Plaintiffs

10 vigorously dispute that deferred action recipients other than DACA grantees are on a path

11 to form al im migration status, noting t hat de ferred action often is gr anted t o persons in

12 active immigration re moval proc eedings or to other pe rsons with no hope of a form al

13 legal immigration status such as witnesse s paroled into the Un ited States pending

14 completion of a criminal trial, after which they will be re moved. Defenda nts have not

15 provided an effective response to these arguments. See Doc. 86-2 at 71.

16

Defendants prepared a chart to show that “the vast majority of driver’s licenses

17 issued to EAD holders were issued to aliens who had actual or pending lawful

18 immigration status and w ho are not remotely similarly situated to Plaintiffs.” Doc. 85 at

19 23-24. But the chart, based on a statistical sample, shows that ten of the persons sampled

20 held a (c)(14) categor y c ode, had no form al im migration st atus or a pat hway t o obtain

21 formal status, did not have a classification or status authorized by statute or regulation,

22 and yet received driver’s licenses from the S tate. Doc. 83-6 at 7. Defendants argue that

23 these ten licenses constitute only 1.3% of the lic enses issued to persons in the statistical

24 sample, apparently suggesting that this relati vely small percentage means Plaintiffs have

25 not bee n tr eated differently. Pl aintiffs di spute t he c hart, arguing that m any deferre d

26 action recipients listed in other columns of th e chart also lack formal immigration status

27 or any m eaningful hope of s uch statu s. B ut ev en if D efendants’ chart is accepted as

28 correct, 1.3% of licenses issu ed to EAD holders over the la st seven years is not an

- 15 -

1 insignificant num ber. It equates to m ore th an 600 deferred action recipients who ha ve 2 been granted driver’s licenses on the basis of EADs.6

3

Plaintiffs also argue that they are similarly situated to persons issued licenses on

4 the basis of an EAD with (c )(9) and (c)(10) category codes. The (c)(9) code is for

5 applicants for adjus tment of status, the (c)(10) for applicants for suspension of

6 deportation and cance llation of rem oval. 8 C.F.R. §§ 274a.12(c)(9), (c)(10). Many of

7 these individuals have no f ormal immigration status and little hope of one, and yet they

8 amount to 66.4% of the people granted licenses during the last seven years on the basis of

9 EADs. Doc. 85 at 24.

10

Given the fact that (c)(9) and (c)(10) co des do not nec essarily reflect indivi duals

11 with any significant likelihood of receiving form al immigration status, and t he fact that

12 more than 600 similarly situated people app ear to have received driver’s licenses during

13 the last seven years, the Court concludes

that Plaintiffs are likely to succeed in

14 establishing that DACA recipients are simila rly situated to persons who ha ve obtained a

15 driver’s license in the past using EADs.

16

B. Level of Scrutiny.

17

The Court must next determine the level of scrutiny to be applied under the e qual

18 protection analysis. Freeman v. City of Santa Ana , 68 F.3d 1180, 1187 (9th Cir. 1995)

19 (quotation marks and citations omitted). Plaintiffs argue th at (1) Defendants’ driver’s

20 license policy is based on aliena ge and subje ct to strict scrutiny; (2) if not, the policy is

21 subject to heightened scruti ny; and ( 3) if not, Defendants ’ policy cannot survive even

22 rational basis review. Defendants’ argue for rational basis scrutiny.

23

1. Strict Scrutiny.

24

The Supre me Court has stated that “class ifications based on al ienage . . . are

25 inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson , 403

26 U.S. 365, 372 ( 1971) (“Aliens as a class are a prime example of a ‘discrete and ins ular’

27 minority for whom such heightened judicial solicitude is appropriate.” (citation omitted)).

28 6 1.3% of 47,500 equals 618.

- 16 -

1 Graham struck down Arizona a nd Pennsyl vania la ws that denied public assistance to

2 legal resident aliens or to resident alie ns who did not m eet a durational residency

3 requirement. Id. at 367- 68, 379-80. The s tates s ought to favor c itizens and long-term

4 residents in their expe nditure of limited resources, but the Court found the classifications

5 to be “inherently sus pect,” expl aining t hat the states’ cost-savings justification “is

6 particularly inappropri ate and unreasonable when the discrim inated class consists of

7 aliens.” Id. at 376. Underlying th e Court’s holding was its focus on the s imilarities

8 between legal resident aliens and citizens: “Aliens like citizens pay taxes and may be

9 called into the armed forces. . . . [A]liens may live within a state fo r many years, work in

10 the state an d contribute to the eco nomic growth of the state.” Id. (quotation marks and

11 citations omitted).

12

Two years later, the Supreme Court reaffirm ed its holding that aliens are a suspect

13 class when it struck down a C onnecticut rule that deni ed bar a dmission to le gal resident

14 aliens. In re Griffiths , 413 U. S. 717, 718-19, 729 (1973). Griffiths also noted that

15 “[r]esident aliens, like citizens, pay taxes, support the economy, serve in the Armed

16 Forces, and contribute in myriad other ways to our society.” Id. at 722. The Court found

17 that limiting the practice of law to citizens di d not serve the state’ s interest in “assur[ing]

18 the requisite qualifications of per sons licensed to practice law,” and that the “wholesale

19 ban” was not justified on “the possibility that some resident aliens are unsuited to the

20 practice of law[.]” Id. at 722-25.

21 In

Nyquist v. Mauclet , 432 U. S. 1 (1977), l egal resident aliens ch allenged a New

22 York law that conditione d eligibility for postsecondary educa tion financial assistance on

23 residency and citizenship. Id. at 2-6. The citizenship requirement was satisfied if the

24 applicant was a citizen, had a pplied to becom e a citizen, or, if not qualified t o apply f or

25 citizenship, submitted a statement affirming intent to apply for citizenship as soon as the

26 applicant was qualified. Id. at 3-4. In finding that the law im permissibly discriminated

27 on the basis of alienage, the Supreme Cour t again described the similarities between

28 citizens and lawful resident aliens: “Residen t aliens are obligated to pay their full share

- 17 -

1 of the taxes that support the assistance progr ams. . . . And although an alien m ay be

2 barred from full involvement in the political ar ena, he may play a role perhaps even a

3 leadership role in other areas of import to the community.” Id. at 12.

4

The Supreme Court reached a di fferent conclusion with respec t to undocumented

5 aliens. In Plyler v. Doe, 457 U.S. 202 (1982), the Court held that “[u]ndocumented aliens

6 cannot be treated as a suspect cl ass because their presence in this country in violation of

7 federal law is not a ‘constitutional irrelevancy.’” Id. at 223. Plyler considered the

8 constitutionality of a Texas law that denied undoc umented alien children a free public

9 school education. Id. at 205. The C ourt explained t hat “undoc umented st atus is not

10 irrelevant to any proper legislative goal. Nor is undocumented st atus an absolutely

11 immutable characteristic since it is the product of conscious, indeed unlawful action.” Id.

12 at 220.

13

In summary, the Supreme C ourt has applied strict scrutiny to classifications

14 affecting lawful reside nt aliens, but not t o classifications affecting undocum ented aliens.

15 This case falls somewhere between those two groups. Plaintiffs are undocumented aliens

16 who have been grante d deferred status for a period of two year s. Their status is not the

17 result of a statute or federal regul ation, but stems solely from an exercise of prosecutorial

18 discretion. Unlike the aliens in Graham, Griffiths, and Nyquist, Plaintiffs have not

19 historically been lawfully em ployed, and in general t hey have not paid i ncome taxes or 20 served in the military.7 Even DHHS classifies DACA recipients as not “lawfully present”

21

22

7 The C ourt acknowledges that som e undocumented aliens pa y income taxes, and some serve in the military. See Travis Loller, Many Illegal Im migrants Pay Up at T ax

23

Time, USA TODAY, Apr. 11, 2008, http://u satoday30.usatoday.com/money/perfi/taxes/ 2008-04-10-immigrantstaxes_N.htm; see also President Barack Ob ama, Remarks by the

24

President on Immigra tion (June 15, 2012), available at http://www.whitehouse.gov/thepress-office/2012/06/15/remarks-president-immigration (“I’ve got a young pe rson who is

25

serving in our military, protecti ng us and our freedom . The notion that in some ways we would treat them as expendable makes no sense); Tracey Jan, Shift Leads to Confusion on

26

Status Within Military , B OSTON GLOBE, J une 23, 2012, http:// www.bostonglobe.com/ ews/politics/2012/06/22/president-obama-mitt-romney-aim-help-illegal-servicemembers-

27

who-shouldn-uniform/FAW5x8g0wvB1gaHNAjiXbO/story.html (regarding the DACA eligibility criteria for honorably discharged veterans of the Coast Guard or Armed Forces

28

of the United States, “‘Unless the current law we re to be cha nged, or an indi vidual were declared by the services to be vital to the national interest , the services are not permitted

to enlist illegal im migrants,’ said a Department of Defens e spoke sperson, w ho did not

- 18 -

1 for pur poses of certain benefits. Plaintiffs in some respects are li ke the undocumented

2 aliens in Plyler, whom the Court described as enjoying an “inchoate federal permission to

3 remain,” 457 U. S. a t 226, but ther e are material distinctions from the

Plyler

4 undocumented aliens as well. As a result of the DACA program, Plaintiffs may receiv e

5 EADs and Social Security numbers, work lawfully, and pay income taxes. In an effort to

6 decide w hat level of scrutiny to afford Pl aintiffs, the Court finds helpful guidance in

7 several court of appeals decisions.

8 In

LeClerc v. Webb , 419 F.3d 405 ( 5th Cir. 2005 ), the Fifth Circuit applied

9 rational basis scrutiny to a Loui siana rule that prohibited a liens temporarily admitted to

10 the United States (referred to in t he opini on as “nonim migrant aliens”) from sitting for

11 the state’s bar examination – only citizens or permanent re sident aliens could become

12 lawyers. The court started w ith the premise that “the Supreme Court has re viewed with

13 strict scrutiny onl y state laws affec ting permanent resident aliens.” Id. at 415. In cases

14 concerning illegal aliens, the children of illegal aliens, or nonimmigrant aliens, LeClerc

15 noted that the Supreme Court “has eith er foregone Equal Protection a nalysis, see Toll v.

16 Moreno, 458 U.S. 1 (1982) (noni mmigrant G-4 aliens); De Canas v. Bica , 424 U.S. 351

17 (1976) (illegal aliens), or has applied a modified rational basis review, see Plyler v. Doe ,

18 457 U.S. 202 (1982) (child ren of illegal aliens).” Id. at 416. LeClerc thus read the

19 Supreme Court’s precedent as requiring strict scrutiny onl y when the state law alienage

20 classification “t[akes a] position seem ingly inconsistent with the congressional

21 determination to admit the alien to permanent residence. ” Id. at 417 (e mphasis in

22 original) (quoting Foley v. Connelie, 435 U.S. 291, 295 (1978)).

23

LeClerc noted that unlike “resident aliens [who ] are similarity si tuated to citizens

24 in their economic, social, and civic

(as opposed to political) conditions[,]”

25 “[n]onimmigrant aliens’ status is far more constricted[.]” Id. at 418. “Based on the

26 aggregate factual and legal distinctions between re sident alie ns and nonim migrant

27

28

know why Obama had included m ilitary service as a condition. An official with th e Department of H omeland Security acknowle dged that ‘few, if any, individuals fall into

this category’ that Obama referred to last week.”).

- 19 -

1 aliens,” LeClerc explained, “ we conclude that alth ough aliens are a suspect class in

2 general, they are not homogeneous and prec edent does not support the proposition that

3 nonimmigrant aliens are a suspec t class entitled to have stat e legislative classifications

4 concerning them subjected to strict scrutiny.” Id. at 419. “B y process of elim ination,

5 rational ba sis review m ust be the appr opriate standard for evaluating state law

6 classifications affecting nonimmigrant aliens.” Id. at 420.

7

LeClerc was followed in League of United Latin Amer ican Citizens (LULAC) v.

8 Bredesen, 500 F.3d 523 (6th Cir. 2007).

LULAC concerned a Tennessee law that

9 conditioned issuance of a driver’s license on proof of citizenship or lawful permanent

10 resident status. Id. at 526. Plaintiffs were lawful temporary aliens, not lawful permanent

11 aliens. Plaintiffs cited Nyquist in support of t heir argument that strict scrutiny applied to

12 any classification affecting lawful aliens. Id. at 531. The Si xth Circuit distinguishe d

13 Nyquist because the plaintiffs there were la wful permanent resident aliens. Id. at 532-33.

14 Adopting LeClerc’s lengthy discussion about “why lawf ul temporary resident aliens, or

15 ‘nonimmigrant aliens,’ are not entitled to th e same protection as lawful permanent

16 resident aliens,” LULAC concluded that “[b]ecause the instant classif ication does not

17 result in discriminatory harm to members o f a suspect class, it is s ubject only to rational

18 basis scrutiny.” Id. at 533.

19

The Second Circ uit reached the opposite co nclusion in Dandamudi v. Tisch , 686

20 F.3d 66 (2d Cir. 2012), whic h involved a challenge to a New York law that limited

21 pharmacist licenses to citizens and la wful perm anent resident aliens. Id. at 69. The

22 plaintiffs were nonim migrant aliens holdi ng two kinds of tem porary worker visas. The

23 court applied strict scrutiny because “a state statute that discriminates against aliens who

24 have been lawfully admitted to reside and work in the United States shou ld be viewed in

25 the same light under the Equal Protection Cl ause as one whic h discrim inates against

26 aliens who enjoy the right to reside here permanently.” Id. at 70. The court reviewed the

27 Supreme Court cases discussed above and conc luded that “the Supreme Court recognizes

28 aliens generally as a discre te and insular minority[.]” Id. at 75. The court refused to

- 20 -

1 construct an exception to the Graham rule based on t he “transience” of nonim migrant

2 aliens as compared to lawful perm anent resident aliens. Id. at 78-79. The court also

3 noted that “federal law permits many aliens with [these two kinds of tem porary worker

4 visas] to maintain their temp orary w orker authorization f or a period greater than s ix

5 years. All plaintiffs in this case, for exam ple, have been legally authorized to reside and

6 work in the United States for more than six years.” Id. at 71 (emphasis in original). The

7 court further observed that “[a] great number of these professionals remain in the United

8 States for much longer than six years and many ultimat ely apply for, and obtain,

9 permanent residence. These practicalities are not irrelevant. They demonstrate that there

10 is little or no distinction be tween [lawful permanent reside nt aliens] and the lawfully

11 admitted nonimmigrant plaintiffs here.” Id. at 78. Accordi ngly, the court di stinguished

12 LeClerc and LULAC on the ground that “[t]he aliens at issue here are ‘transient’ in name

13 only.” Id.

14

The Court finds the re asoning in LeClerc and LULAC persuasive. Plyler makes

15 clear that strict scrutiny does not apply to all classes of a liens, and the decisions of t he

16 Fifth and S ixth Circuits reasonably conclude that the rationale of Graham, Griffiths, and

17 Nyquist applies to lawful resident aliens who ar e like citizens in most material respects.

18 Dandamudi also conc erned aliens who w ere fact ually similar to lawful perm anent

19 residents. Plaintiffs selectively quote from Dandamudi and argue that the decision

20 supports the application of strict scrutiny to classifications directed at persons “who ha ve

21 been granted the legal right to reside and w ork in the U nited States,” 686 F.3d at 72, but

22 the Dandamudi plaintiffs each had a n off icial visa , not m erely a tem porary gra nt of

23 deferred action. Dandamudi does not support Plaintiffs’ claim for strict scrutiny. DACA

24 recipients are more like th e undocumented aliens in Plyler and the tem porary aliens in

25 LULAC and LeClerc than the visa holders in Dandamudi or the perm anent residents in

26 Graham, Griffiths, and Nyquist. Accordingly, Plaintiffs have not establi shed that

27 Defendants’ policy is subject to strict scrutiny.

28

- 21 -

1

2. Intermediate Scrutiny.

2

Plaintiffs alternatively argue that DACA recipients constitute a quasi-suspect class

3 warranting heightened scruti ny. P laintiffs rely on High Tech Gays v. Defense Industrial

4 Security Clearance Office , 895 F .2d 563 (9th Cir. 1990), wh ich held that heightene d

5 scrutiny applies to plaintiffs who (1) have suffered a history of discrimination; (2) exhibit

6 obvious, immutable, or distinguishing characteristics that define them as a discrete group;

7 and (3) show that they are a mi nority or politically powerless. Id. at 573. The C ourt

8 cannot conclude that Plaintiffs are likely to qualify for heightened scrutiny under this test.

9

Plaintiffs contend that they constitute a discrete group with obvious, immutable, or

10 distinguishing characteristics because they have been provide d EADs with the unique

11 (c)(33) category code. But the Court is not persuaded that this cat egory code constitutes

12 the same kind of distinguis hing characteristic as gender or illegitimacy. See Lockhart v.

13 McCree, 476 U.S. 162, 175 (1986) (n oting that “race, gender, or ethnic background” ar e

14 examples of immutable characteris tics). And the Supreme Court in Plyler held that the

15 plaintiffs’ undocumented status is not “an abso lutely immutable charac teristic since it is

16 the product of conscious, indeed unlawful, action.” 457 U.S. at 220. In addition, because

17 individuals identified by the (c)(33) categor y code have been i n existence only since the

18 recent start of the DACA prog ram, Plaintiffs likely cannot show that such individuals

19 have suffered a history of discrimination.

20

Plaintiffs argue that they are politically powerless because they have been granted

21 federal authorization to live and work in the United States, but still cannot vote.

22 Accepting this argument would ignore the po litical realities of the national immigration

23 scheme and the fact that the law, not discri mination, denies them the right t o vote. See

24 Foley, 435 U.S. at 295 (“It w ould be ina ppropriate, however, to r equire every statutory

25 exclusion of aliens to clear the high hur dle of strict scru tiny, because to do s o w ould

26 ‘obliterate all the distinctions between citizens and aliens, and thus depreciate the historic

27 values of citizenship.’” (quoting Nyquist, 432 U.S. at 14 (Burge r, C.J., dissenting))). Nor

28 can the Court conclude that pe rsons unable to vote are necessa rily politically powerless.

- 22 -

1 In City of Clebur ne v. Cl eburne Living Ce nter, Inc., 473 U. S. 432 (1985), the Supreme

2 Court held that the mentally disabled, including the severely disabled, were not politically

3 powerless because they had th e ability to “attract the atte ntion of the lawmakers.” Id. at

4 445; see also High Tech Gays , 895 F.2d at 574. The DA CA program itself attests to th e

5 fact that Plaintiffs have attracted the attention of policymakers in the federal government.

6

Plaintiffs also cite Plyler as an intermediate scrutiny ca se and argue that the Court

7 should apply its rationale. Plyler, however, is an anomaly. It does not apply intermediate

8 scrutiny. See 457 U.S. at 217-18 n. 16 (discussing but not applying intermediate scrutiny

9 review). Plyler appears to apply a hybrid f orm of review, stating that the Texas law in

10 question “can hardly be considered rational unless it furthers some substantial goal of the

11 State.” Id. at 224 (e mphasis added). H owever one characterizes this unus ual standard,

12 the Court cannot agree that it applies here. Plyler emphasized two facts as justifying its

13 higher level of re view: (1) the age of the undocumented children (id. at 223 (“[the law]

14 imposes a lifetime hardship on a discrete class of children not accountable for their

15 disabling status”)), and (2) the importance of education to those children and the entire

16 nation ( id. at 221 (“education has a f undamental role in m aintaining the fabric of our

17 society”)). Unlike the class of undocumented children in Plyler, DACA recipients, and

18 specifically Plaintiffs in this putative class action, are older – between 18 and 26. Doc. 1,

19 ¶¶ 19-23. Because of their age, Plaintiffs are not like the young children in Plyler whose

20 compliance with the law was entirely dependent on the conduct of parents who decided to

21 enter the United States illegally and remain here in viola tion of the law. And unlike

22 education, a driver’s license does not provide “the basic tools by which individuals might

23 lead economically productive lives to the benefit of us all.” Id. at 221. Plaintiffs have

24 not argue d – nor could they – that a drive r’s lic ense has the same signific ance to an

25 individual or society as a primary school education.

26

The Court concludes t hat Plaintiffs have not shown that they are likely to qualify

27 for heightened scrutiny.

28

- 23 -

1

3. Rational Basis Scrutiny.

2

“Under traditional rational basis analysis, a state law classification that ‘neither

3 burdens a fundamental right nor targets a suspect class’ will be upheld ‘so long as it bears

4 a rational relation to some legitimate end.’” LeClerc, 419 F.3d at 421 ( emphasis in

5 original) (quoting Vacco v. Quill , 521 U.S. 793, 799 (1997). But “even the standard of

6 rationality . . . must find some footing in the realities of the subject addressed by the

7 legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993).

8

Cases have varied in their application of the rational basis test. Many appl y the

9 test in a highly deferential manner, upho lding the challenged law “if there is any

10 reasonably conceivable state of facts that could pr ovide a ra tional basis for the

11 classification.’” Id. at 320 (quot ing F.C.C. v. Beach C ommc’ns, Inc., 508 U. S. 307, 313

12 (1993)). This approach reflects “deference to legislative policy decisions” and a

13 reluctance of courts “to judge the wisdom, fairness, logic or desirability of those

14 choices.” LeClerc, 419 F.3d at 421.

15

Other cases have applied a m ore rigorous form of rational basis scrutiny. This

16 analysis looks, at least initially, to the actua l reasons for the challenged classification and

17 asks whether they are rationally related

to a legitimate governmental objective.

18 Examples of this m ore active review include Supr eme Court cases such as U.S.

19 Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne

20 Living Center, Inc. , 473 U.S. 432 (1985), a nd Romer v. Evans , 517 U.S. 620 (1996).

21 These cases have applied the rational basis test in a more rigorous manner than the highly

22 deferential cases, and yet ha ve done s o without a nnouncing a new level of re view,

23 without acknowledging th at they were depar ting from traditional rational basis analysis,

24 and without identifying the principles to be used in determining whether a more active o r

25 a more deferential version of the rational basis test should be applied.

26 In

Moreno, the Supre me Court a pplied rational basis review to a n amendment of

27 the Food Stamp Act of 1964 that denied be nefits to any household whose m embers were

28 not all related to each other. The Supreme Court found that “[t]he challenged statutory

- 24 -

1 classification (households of related persons versus households c ontaining one or mor e

2 unrelated persons) is clearly irrelevant to the stated purposes of the Act.” 413 U.S. at

3 534. The Court exa mined the amendment’s legislative history t o determine whether the

4 challenged classification rationally furthered some other legitimate governmental interest.

5 Id. The Court concluded that the legislative history “indicate[d] that that amendment was

6 intended to preve nt socalled ‘hippies’ and ‘ hippie communes’ from participating in the

7 food stamp program,” and found that “[t]he challenged classification clearly cannot be

8 sustained by reference to this congressional purpose.” Id. “For if the constitutional

9 conception of ‘equal protection of the laws’ means anythi ng, it m ust at the very least

10 mean that a bare congressional desire to harm a politically u npopular group cannot

11 constitute a legitimate governmental interest.” Id. at 534. The Court considered the

12 Government’s argument that the amendment was rationally related to the legitimate

13 interest “in minimizin g fraud in the admi nistration of the food stam p program ,” but

14 determined that the existence of other provisi ons within the Act that were intended to

15 prevent those same abuses “casts considerab le doubt upon the prop osition that the . . .

16 amendment could rationally have been intended to prevent those very same abuses.” Id.

17 at 535-37. The Court concl uded by noting that “[t]raditi onal equal protection anal ysis

18 does not re quire that every cla ssification be draw n wit h precise ‘m athematical nicety.’

19 But the classification here in issue is not onl y ‘im precise’, it is wholl y without any

20 rational basis.” Id. at 538.

21 In

Cleburne, the Supreme Court used rational ba sis review to invalidate a zoning

22 ordinance that required a special perm it fo r the operation of a hom e for the m entally

23 disabled. The Court noted that under rational basis review “[ t]he State may not rely on a

24 classification whose relationship to an assert ed goal is so attenuated as to render the

25 distinction arbitrary or irrati onal.” 473 U. S. at 446. Th e Court considered whether the

26 city had a legitimate interest in requiring a permit for the home while freely permitting

27 other care and multiple -dwelling facilities. Id. at 447-48. The Co urt found that any

28 difference between a group hom e for the ment ally disabled and other multiple-dwelling

- 25 -

1 facilities was not legitimate because the menta lly disabled group home did not “pose any

2 special threat to the city’s legitimate interests[.]” Id. at 448. The city argue d that the

3 special permit requirement was necessary because of the negative attitude of homeowners

4 located near the propos ed facility, but the Supreme Court he ld that “[p]rivate biases may

5 be outside the reach of the la w, but the law cannot, directly or indirectly, gi ve them

6 effect.” Id. at 448 (quoting Palmore v. Sidoti , 466 U.S. 429, 433 ( 1984)). The city also

7 argued that nearby juni or high school students might harass the facility’s occupants, but

8 the Court found this concern ba sed on “ undifferentiated fears.” Id. at 449. The C ourt

9 dismissed several othe r proffered grounds fo r the per mit requirement, finding t hat none

10 of them bore a rationa l relationship to a legit imate governmental interest. Id. at 449- 50.

11 The C ourt conclude d “that requiring the per mit in this case appears to us to rest on an

12 irrational prejudice against the mentally retarded[.]” Id. at 450.

13 In

Romer, the Supreme Court found that a Co lorado voter initiative that repealed

14 laws prohibiting discrimination based on sexual orient ation failed rational basis review.

15 The Court noted “that laws of the kind now before us raise the inevitable inference that

16 the disadvantage imposed is born of animosity toward the class of persons affected.” 517

17 U.S. at 634. The Court found t hat “[t] he breadth of the amendmen t is so far removed

18 from these particular justifications that we find it im possible to cr edit them. We cannot

19 say that [the initiative] is directed to any iden tifiable purpose or discrete objective. It is a

20 status-based enactment divorced from any factual context from which we could discern a

21 relationship to legitimate state in terests; it is a classification of persons undertaken for its

22 own sake, something the Equal Protection Clause does not permit.” Id. at 635.

23

A recent example of more rigor ous rational basis review is Diaz v. Brewer , 656

24 F.3d 1008 (9th Cir. 2011). Diaz affirmed a district court’ s order that preliminarily

25 enjoined Arizona from terminat ing the healthcare bene fits of state em ployees’ same-sex

26 partners. Id. at 1010. The Nint h Circuit found t he district court’s order “cons istent with

27 long standing equal protection jurisprudence holding that ‘some objectives, such as a bare

28 . . . desire to harm a politic ally unpopular group, are not legitimate interests.’” Id. at

- 26 -

1 1015 (quoting Lawrence v. Texas, 539 U.S. 558, 58 0 (2003) (O’Connor, J., concurring)).

2 The Ni nth Circuit f ound that “t he district court properly rejected the state’s claimed

3 legislative justification because the record established that the statute was not rationally

4 related to furthering such interests.” Id. at 1015.

5

In each of these cases, courts appear to have identified what they understood to be

6 the actual reason for the classification, to have found that reason im permissible, and

7 therefore to have found that the classif ication failed the rational basis test. Whether they

8 reflect private biases, negative attitudes toward s certain classes of persons, or some other

9 perceived illegitimate basis, classifications arising from improper motives appear to draw

10 a more active level of review. The Court finds this ki nd of rational basis review to be

11 problematic. The rational basis test has lo ng been viewed as reflecting the deference

12 courts should afford to the po licy-making branches of govern ment. The Court also finds

13 this m ore rigor ous ra tional basi s review, with its lack of guidi ng princi ples, to be

14 dangerously susceptible to i nvoking a judge ’s own poli cy pr eferences. These concerns

15 notwithstanding, the Supreme Court and Ninth Circuit plainly have applied a more active

16 rational basis review in some cases, and th ose cases co nstitute precedent binding on this

17 Court. When the Court considers what appe ars to be the actual reason for Arizona’s

18 driver’s license policy, it concludes that th e policy is likely to in voke, and fail, such

19 rational basis scrutiny.

20

C. Application of Rational Basis Review.

21

On June 15, 2012, the day Secretary Napolitano announced the DACA program,

22 Arizona G overnor Br ewer publi cly de nounced the program as “backdoor amnesty,”

23 “desperate political pandering by a president desperate to shore up his political base,” and

24 “pandering to a certain populatio n.” Doc. 38, ¶ 12. Althou gh the evidence shows that

25 ADOT thereafter undertook a review of its driv er’s license policy in light of t he DACA

26 program, that review had not reached a c onclusion as of A ugust 15, 2012, t he da y t he

27 federal government began accepting DACA applications and the day on which Governor

28 Brewer issued her Executive Order. Direct or Halikowski testified that ADOT had not

- 27 -

1 changed its policy as of A ugust 15th and w as still “in the process of com ing up with a

2 recommendation.” Doc. 86-4 at 97-98; see also Doc. 60-1 at 12-15, ¶¶ 21-24.

3

The Governor, however, had made her deci sion. S he issued the Executive Order

4 directing State agencies to deny DACA re cipients “any taxpayer-funded public benefits

5 and state identification, includi ng a driver’s license[.]” Do c. 1- 1. G overnor Brewer

6 explained that the Executive Order was nece ssary to m ake clear there would be “no

7 drivers [sic] licenses for illegal people.” Doc. 38, ¶ 13.

8

Once the Executive Order ha d been issued, ADOT had no discretion to reach a

9 different conclusion. The State’s chief execu tive had spoken and had directed the State’s

10 executive agencies, includi ng ADOT, to ensure that no DACA recipients obtain driver’s

11 licenses. Doc. 1-1. Eight days later, on August 23, 2012, A DOT m anagers m et to

12 discuss the scope of the policy t hey should adopt – w hether to deny dri ver’s licenses to

13 DACA recipients alone, to all applicants who lack legal status in this country, or to all

14 applicants who lack legal status under an act of Congress. Doc. 86-4 at 185- 87; Doc. 99-

15 1 at 262-63. Participants in the meeting noted that the second and third alternatives might

16 be “[m]ore defensible in court” (Doc. 99-1 at 263), but ultimately adopted the first – only

17 DACA recipients w ould be denie d driver’s licenses. It appear s that participants in this

18 meeting did not know that the EADs issued to DACA recipients wo uld bear a different

19 code than those issued to other deferred action recipients. Doc. 86-4 at 186. Nor did they

20 know that DH HS would deny certain federal health benefits to DA CA re cipients, an

21 action that was not taken until several days later. Doc. 58-1 at 105-107, 111-12.

22

ADOT’s new policy became e ffective on September 17, 2012. It provided that an

23 EAD presented by a DACA recipient “is not acceptable” docum entation for a driver’s

24 license. Doc. 34-4 at 4. ADOT continued, however, to accept EADs from others.

25

This record suggests th at the State’s policy was ad opted at the direction of

26 Governor Brewer be cause she disagree d with the Obama Administration’s DACA

27 program. The Governor strongly criticized the program as “backdoor amnesty” and

28 political “pandering” (Doc. 38 , ¶ 12), and her comments rela ted to the Executive Order

- 28 -

1 show that she disagree d with the federal g overnment’s conclusion that DA CA recipients

2 are now authorized by federal law to be pr esent in the country, referring to them as

3 “illegal people.” Doc. 38, ¶ 13.

4

The Court recognizes that a governor ma y legitimately disagree with the federal

5 government on policy and politic al matters, and certainly ha s the right to voice those

6 disagreements. But the Court cannot conclude that such views constitute a rational basis

7 for treating similarly situated people differently with respect to driver’s licenses. To

8 satisfy the rational basis test, the basis must not only be rational, it must also be related to

9 the government classification at issue – in this case, denial of driver’s licenses to some

10 deferred action recipients but not others. See Moreno, 413 U.S. at 533 (the “classification

11 itself” mu st be “rationally related to a legitimate governmental interest”).

The

12 Governor’s disagreement with the DACA progr am may be a rational political or policy

13 view in t he broad se nse – reasona ble pe ople certainly can dis agree on a n issue as

14 complex and difficult as imm igration – but it pr ovides no justificati on for saying that a n

15 Arizona driver’s license may be issued to one person who has been permitted to remain

16 temporarily in the c ountry on def erred action st atus – s ay for a n individual humanitarian

17 reason – while another person who has been perm itted to remain temp orarily in the

18 country on deferred action status under the DA CA program is denied a license. Both

19 individuals have bee n grante d deferred ac tion status through federal prosecutorial

20 discretion, both have been granted that status temporarily, both are eligible to work while 21 here, and both may be issued EADs. 8 The Governor’s political disagreement with the

22 DACA pr ogram as “backdoor a mnesty” does not change the fact that both indi viduals

23 have been allowed by the federal government to live and work here, nor does it identify a

24 reason that one of the indivi duals presents less of a driver’s -license-related risk to the

25 State. Thus, although som e m ight view t he Governor’s stated re asons for i ssuing t he

26

27

8 Wor k aut horization and t he issuance of an EAD is not automatic for DACA

28

recipients or persons receiving other form s of deferred action. Both must apply separately for wor k authorization and are e ligible onl y if they can establish “econom ic

necessity for employment.” 8 C.F.R. § 274a.12(c)(14); Doc. 90-3 at 31, 42.

- 29 -

1 Executive Order as rational, it is not related to the policy considerations that underlie the 2 issuance of driver’s licenses and therefore does not satisfy the rational basis test.9

3

Defendants ha ve suggested several ot her rational bases for their policy:

4 (1) DACA recipients m ay not ha ve aut horized presence under federal law, and A DOT

5 therefore could face liability for issuing up to 80,000 driver’s licenses to illegal

6 immigrants or f or not cancelling t hose licenses quickly enough if the DACA program is

7 subsequently determined to be unlawful; (2) issuing driver’s licenses to DACA recipients

8 could allow those i ndividuals t o access federa l and s tate benefits to which they are not

9 entitled; (3) the DACA program could be revoked at any time and ADOT would have to

10 then cancel the licenses that had already been issued to DACA recipients; and (4) if

11 DACA wa s revoked or if DHS com menced removal proceedings against any D ACA

12 recipient, as it could at any time, then the DACA recipient would be subject to immediate

13 deportation or removal and that individual could escape financial responsibility for

14 property damage or personal injury caused in automobile accidents. Doc. 60-1 at 12-15,

15 ¶¶ 8-20. The C ourt is not pe rsuaded that any of t hese su ggested justifications would

16 survive active rational basis review.

17

As their first justification, Defendant s argue t hat they had uncertainty about

18 whether DACA recipients have an authorized presence in the United States under federal

19 law and were concerned they mi ght face liability if they issu ed licenses to unauthorized

20 persons. But DACA recipients are issued EA Ds by the fede ral gover nment, and

21 Defendants previousl y and routinely accept ed all EADs as sufficient evidence of

22 authorized presence. Doc. 60-1 at 12-15, ¶¶ 25-26. Defendants di d not previously

23 inquire into the meaning of EAD categorizati on codes or whether a particular kind of

24 EAD holder had lawf ul status or a pathwa y to lawful status. See generally Doc. 60-1 at

25

26

9 Plaintiffs argue that the Governor’s statements also evin ce hostility to DACA

27

recipients and ot her i llegal aliens. The Cour t nee d not, and doe s not, go s o far as t o ascribe such an intent to the Governor. The Governor’s strong disagreement with the

28

DACA program was clearly stated and provi des a sufficient basis for concludi ng that an active form of rational basis review is likely in this case, and that the Arizona policy

probably will not survive such review.

- 30 -

1 12-15, ¶¶ 25- 26; D oc. 83- 5, ¶¶ 2-6. This policy c hanged on Sept ember 17, 2012, but

2 only with respect to D ACA recipients – the y alone were denied driver’s licenses on the

3 basis of EADs. This fact strongly suggests th at the sufficiency of EADs to prove lawful 4 presence was not the reason for the State’s action.10

5

Moreover, when asked in their depositions about the risk of state liability for

6 issuing dri ver’s licen ses, ADOT Director Halikowski and Ass istant Director Stanton

7 could not identify in stances where ADOT faced liab ility for issuing licenses to

8 individuals who lac ked authorized presence. Doc. 99 at 25. Hali kowski provided only

9 one example of potential state liability – when ADOT had improperly issued a driver’s

10 license to a person c onvicted of drivi ng u nder t he influence of alcohol (D oc. 86-4 at

11 113:18–115:20), an instance quite unrelated to the prospect of issuing a license to a

12 person presenting a federally-issued EAD as proof of la wful presence under f ederal law.

13 Stanton could not provide any examples. Doc. 86-4 at 25:16–26:2.

14

In describing this justification and others, Defendants note that they were facing as

15 many as 80,000 driver’s license requests from DACA recipients, but this concern has not

16 been borne out by the numbers. Between 2005 and 2012 , MVD issued approximately

17 47,500 driver’s licenses on the basis of EADs. Doc. 34-7 at 4-5. The prospect of issuing

18 driver’s licenses to an estim ated 80, 000 DA CA eligi ble pe rsons l iving in Ar izona m ay

19 have raised initial concerns, but as of February 14, 2013, only 14,938 Arizona residents

20 have applied for the DACA program. Doc. 91-5 at 65. Any concern about the size of the

21 DACA program in Arizona would no longer appear to be a legitimate rationale for

22 distinguishing DACA recipients from other deferred action grantees.

23

As a second justification, Defendants express concern that issuing driver’s licenses

24 to DACA recipients could lead to imprope r access to federal and state benefits. But

25 Director Halikowski and Assistant Director St anton testified that that they had no basis

26

27

10 N or can the C ourt conclude t hat D ACA recipients’ (c)(33) c ategory code provided a legitimate ba sis for the State to d oubt that they were la wfully present. The

28

Executive Order was issued on August 15, the ADOT policy was fo rmally changed on September 17, and De fendants did not learn about the new (c)(33) category code until

October 10, 2012. See Doc. 60-1, at 12-15, ¶ 30.

- 31 -

1 for believing that a driver’s lic ense alone c ould be used to establish eligibility for s uch

2 benefits. Doc. 99 at 26. Both testified that they did not know whether a driver’s license

3 would entitle a person to receive public bene fits. Doc. 86-4 at 117:11–119:6; Doc. 86-4

4 at 38:10–39:10. Moreover, beca use Defendants issue different license types, such as

5 temporary Type F licenses, it wo uld appear that Defendants and others could distinguish

6 a person’s eligibility to obtain public be nefits on the face of a license. See Doc. 86-4 at

7 41:10-42:11 (stating that MVD issues Type F licenses with shorter than regular

8 expiration dates “for duration of stay based on credentials that are presented” and that the

9 nature of the Type F license is apparent on its face).

10

Defendants’ third justification is that the DA CA pr ogram m ight be canceled,

11 requiring the State to revoke driver’s licen ses issued to DACA recipients. But the

12 depositions of Director Halikowski, Assist ant Director Stanton, and MV D Operations

13 Director Charles Saillant show a general lack of knowledge re garding a revocation

14 process. Doc. 86-4 at 120:8–122:4; Doc. 86- 4 at 164:17-22; D oc. 86- 4 at 27:5–29: 13.

15 Moreover, many aliens eligible to obtai n a driver’s license under Defendants’ current

16 policy may be removed or deported while they have a valid Arizona driver’s license, and

17 yet this fact has not caused Defendants to deny them licenses.

18

Defendants’ fourt h justific ation is that DACA recipien ts m ay have their status

19 revoked at any tim e and m ay be rem oved quickly fr om the country, leaving those they

20 have injured in accidents with no financial recourse. But th is same concern exists with

21 respect to other deferred action r ecipients whose status may be re voked at any tim e, and

22 yet Defendants continue to issue them driver’s licenses.

23

In sum mary, the C ourt conclude s that Defenda nts’ distinction between D ACA

24 recipients and ot her deferred action recipients is likely to fail rational basis review. The

25 Court is not saying that the Cons titution requir es the State of Arizona to grant driver’s

26 licenses to all noncitizens or to all individual s on deferred action status . But if the State

27 chooses to confer lic enses to some indivi duals with deferred action status, it m ay not

28 deny it to others without a ratio nal basis for t he distinction. See Diaz, 656 F.3d at 1013

- 32 -

1 (“when a s tate choose s to provide such be nefits, it m ay not do s o in a n arbitrary or

2 discriminatory manner that adversely affects particular groups that may be unpopular.”).

3 IV. Likelihood of Irreparable Harm.

4

Generally, courts of equity should not act when the moving party “will not suffer

5 irreparable injury if denied equitable relief.” Younger v. Harris , 401 U.S . 37, 43- 44

6 (1971). Plaintiffs have the burd en to establish that, absent a preliminary injunction, there

7 is a likelihood – not just a possibility – that they will suffer irreparable harm. See Winter,

8 555 U.S. at 21- 23. As the Supreme C ourt has e xplained, “[t]he key w ord i n t his

9 consideration is irreparable. Mere injuries, however substantial, in terms of money, time

10 and energy necessarily expended in the absence of a stay, are not enough. The possibility

11 that adequate compensatory or other corrective relief will be available at a later date, in

12 the ordinary course of litigation, weighs heav ily against a claim of irreparable harm.”

13 Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original) (citation omitted).

14 Moreover, when seeking a manda tory injunction, as Plainti ffs do here, an even greater

15 showing of injury is required. Mandatory injunctions are “not granted unless extreme or

16 very serious damage will result.” Park Village, 636 F.3d at 1160.

17

Plaintiffs argue that they will suffer the following irreparable harms in the absence

18 of a preliminary injunction: (1 ) deprivation of constitutional ri ghts; (2) denial of driver’s

19 licenses, which hinders Plaintiffs’ efforts to find and maintain stable employment,

20 develop their resum es, and begi n their care ers; (3) emotional and psyc hological har m

21 caused by continued discrim ination; and (4 ) reallocation of A DAC’s organizationa l

22 resources. The Court will address each category of harm separately.

23

A. Constitution al Violation.

24

Plaintiffs argue that being subjecte d to unconstitutional state action constitutes

25 irreparable injury, but this is too broad a statement. To be su re, some constitutional

26 violations virtually always cause irrepara ble harm . The Suprem e Court ha s held, for

27 example, that “[t]he loss of First Am endment freedom s, for even m inimal periods of

28 time, unquestionably constitute s irreparable injury.” Elrod v. Bur ns, 427 U.S. 347, 373

- 33 -

1 (1976). But Plaintiffs have no t provided legal support for the proposition that all equal

2 protection violations cause irreparable harm.

3

The Ele venth Circuit has held that an e qual pr otection vi olation alone i s not

4 enough to show irreparable harm. See Ne. Fla. Chapter of the Ass’n of Gen. C ontractors

5 of Am. v. City of Jacksonville , 896 F.2d 1283, 1285-86 (11t h Cir. 1990) (“No authority

6 from the Supreme Court or the Eleventh Circuit has been c ited to us f or the propositi on

7 that the irreparable injury needed for a pr eliminary injunction can properl y be presum ed

8 from a substantially likely equal protection viol ation.”). Instead, courts m ust look at the

9 injury caused by the discriminatory act and decide whe ther that injury is irreparable. Id.

10 The Ninth Circuit has declined to address this holdi ng. See Associated Gen. Contractors

11 of Cal., Inc. v. Coal. For Econ. Equity , 950 F. 2d 1401, 1412 n. 9 (9th Cir.1991). In

12 Monterey Mechanical Co. v. Wilson , 125 F .3d 702, 715 ( 9th Cir . 1997), however, the

13 Ninth Circuit recognized that money damages might not re medy unconstitutional

14 discrimination, but re manded t he case for furt her evidence rather th an holding that an

15 equal protection violation should be presumed to cause irreparable harm.

16

The C ourt concl udes that it cannot pres ume a likelihood of i rreparable harm

17 merely fro m the fact that Plaintiffs are li kely to succeed on the me rits of their equal

18 protection claim. The nature of the inju ry they will suffer fro m being denied equal

19 protection must be examined. Only if that injury is irre parable will injunctive relief be

20 warranted. This conclusion is reinforced by recent cases th at have em phasized the need

21 for an actual showing of irreparable injury. In Flexible Lifeline Systems, Inc. v. Precision

22 Lift, Inc. , 654 F. 3d 989, 995 (9t h Cir. 2011), the Ninth Circuit found that two recent

23 Supreme Court decisions, eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388

24 (2006), and Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 ( 2008),

25 precluded a presumption of irreparable harm in copyright cases. eBay had rejected such a

26 presumption in patent cases, and Winter had found the Nint h Ci rcuit’s granting of a

27 preliminary injunction on the mere “possibility” of irreparable harm to be too lenient. In

28 Flexible Lifeline , the Ninth Circuit stated that “[i]f our past standard, whic h required a

- 34 -

1 plaintiff to demonstrate at least a possibility of irreparable harm, is ‘too lenient,’ then

2 surely a standar d which presumes irreparable harm without requiring any showing at all

3 is also ‘too lenient.’” 654 F.3d at 9 97. These cases do no t concern constitutional

4 violations, but t hey do reem phasize the im portance of irreparable harm as an essential

5 element of injunctive relief.

6

B. Denial of Driver’s Licenses.

7

Plaintiffs argue that denial of driver’s licenses hinders their employment prospects

8 and imposes onerous restrictions on t heir daily lives because driving “is a necessity . . .

9 for the overwhelming majo rity of Arizona[ns].” Doc. 30 at 33-34. The five indi vidual

10 Plaintiffs assert that without licenses they fear they will not be able to maintain or acquire

11 employment (Doc. 30 at 34 (citin g Doc. 33, ¶ 6; Doc. 35, ¶ 7; Doc 36, ¶ 7) and cannot

12 drive their children t o doct or’s appointment s and attend to other family responsi bilities

13 (Doc. 30 at 35 (citing Doc. 35, ¶ 9; Doc. 36, ¶5)).

14

These same indivi dual Plaintiffs have acknowledged, however, that they either

15 drive or have readily available alternative means of transportation. One Plaintiff testified

16 that she drove herself to her lawyer’s offi ce for her deposition in th is case, drives her

17 sister’s car to work Monday through Friday of each week, has been driving for about four

18 years, and intends to conti nue driving to w ork and school in the f uture. Doc . 85-5 at 7-

19 10. Another Plaintiff testified that she dri ves her mother’s car six da ys a week, has bee n

20 driving since age 17, and drives herself to college and wor k. Doc. 85-7 at 3-8. Anothe r

21 Plaintiff testified that he owns a car and drove to work daily for seve ral years. Doc. 85-3

22 at 3-8. He stopped dri ving after he receiv ed his DACA permit because he does not want

23 to get in trouble. Id. at 8. Anot her Plaintiff owns a vehicle and drives dail y. Doc. 85-6

24 at 7-8. The final Plaintiff testified that s he drives from time to tim e, she or her husba nd

25 drives their children to the doctor’s office, her father sometimes drives her, and she never

26 has taken the bus and does not know the location of the neares t bus st op to her house.

27 Doc. 85-4 at 4-7. Given t his testim ony, the Court cannot concl ude t hat Pl aintiffs are

28

- 35 -

1 suffering irreparable harm from being unable to drive as a result of Defendants’ policy.11

2

Although one Plaintiff has stopped driv ing because of the DACA program and

3 instead commutes a significant di stance to work by light ra il and bus, t hat inconvenience

4 does not constitute irreparable injury. As noted above, “[m]ere injuries, however

5 substantial, in terms of m oney, time and energy neces sarily expended in the absence of

6 [an injunction], are not enough.” Sampson, 415 U.S. at 90. Nor do they constitute the

7 “extreme o r very serious damage” re quired for a m andatory injunction. Park Village ,

8 636 F.3d at 1160.

9

C. Emotional Harm.

10

Plaintiffs argue that c ontinued denial of dri ver’s lic enses creates the perception

11 that Plaintiffs are inferior and res ults in emotional and psychological harm. As evi dence

12 of this discriminatory impact, Plaintiffs poi nt to the declaration and deposition testimony

13 of a single individual Plaintiff: “I feel discriminated when I went to the MVD to get a

14 driver’s license, and when they told me that I cannot get a driver’s license because of the

15 group of my category, but other group people can get it, so I felt discriminated and it was

16 not fair for m e.” Doc. 96- 1 at 109: 22-110:1. The Plaintiff provide d this further

17 description in a declaration: “I was crushe d w hen I found out I coul dn’t get a license.

18 Along with putting my job in jeopardy, it’s had a huge impact on me mentally. Governor

19 Brewer is treating m e and people like m e differently just because we’re Dreamers, even

20 though we have t he same rights to live and work he re as everyone else. When I got my

21 work permit, I was excited that I would finally be able t o get a license. My brother and

22 sister both used their work permits to obtain driver’s lic enses while their green card

23

24

11 During discovery in this case, Plaintiffs asked the Court to preclude Defendants

25

from inquiring into how Plaintiffs were able to drive, obtain jobs, and e ngage in sim ilar activities without valid Arizona driver’s licenses. The Court agreed to bar such inquiries,

26

but in exchange precluded Plaintiffs from arguing that they are irreparably harmed either by being forced to engage in illegal activities or by fear of prosecution for engaging in

27

such activities. Doc. 76. The Court reas oned that if Defendants cannot inquire into allegedly illegal activities, then Plaintiffs can not use those activities to prove their case.

28

As a result of this limitation, arrived at to protect Plaintiffs from possible incrimination while pres erving Defendants’ ability to re spond to their claims, the Court will no t

consider whether Plaintiffs’ fear of prosecution constitutes irreparable harm.

- 36 -

1 applications were pending. But because I’m a DACA recipi ent, it wasn’t the same for 2 me. It’s terrible to be the target of discrimination.” Doc. 33, ¶ 8.12

3 Plaintiffs

cite Chalk v. United States District Court Central District of Califor nia,

4 840 F.2d 701 (9th Ci r. 1988), to support thei r claim that this emot ional injury constitutes

5 irreparable harm. In Chalk, t he plaintiff was transferred from a classroom teaching

6 position to an administrative position after he was diagnosed with AIDS. Id. at 703. The

7 district court found that the alternative job placement eliminated a ny irreparable injury,

8 but the Ni nth Circuit disagreed: “C halk’s origi nal e mployment was teaching hearing-

9 impaired children in a small- classroom setting, a job for which he de veloped special

10 skills beyond those normally required to become a teacher. His closeness to his students

11 and his participation in their liv es is a source of trem endous personal satisfaction and j oy

12 to him and of benefit to them. The altern ative work t o w hich he is now assigned is

13 preparing grant proposals. This job is ‘distasteful’ to Chalk, involves no student contact,

14 and does not utilize his skills, training or experience. Such non-monetary deprivation is a

15 substantial injury which the court was required to consider.” Id. at 709.

16

Surely not every em otional effect constit utes an irreparable injury sufficient to

17 justify the extraordinary reme dy of prelim inary injunct ive relief, and the Court cannot

18 conclude that the evidence of emotional harm presented by Pl aintiffs in this case is

19 comparable to the harm described in Chalk. The emotional effect of being denie d a

20 driver’s license simply is no t the same as lo sing a job for which one has obtained special

21 training and experience, and the accom panying separation from special-needs children t o

22 whom the plaintiff ha d bec ome attached and whom he was uni quely qualified to help.

23 Moreover, the fact that Plaintiffs have presented evi dence from only one of the nam ed

24 Plaintiffs on this subject cal ls into question whether the emotional harm s described are

25

26

12 Plaintiffs expa nd thi s argum ent in th eir re ply brief to incl ude em otional and psychological harm stemming from fear of be ing stopped a nd ticketed for not ha ving a

27

driver’s license. Doc. 99 at 36-38. In a ddition to the discover y limitation described in the previous footnote, the Cour t will not consider this argum ent because it was raised for

28

the first time in a reply brief. See Bach v. Forever Living Prods. U.S., Inc., 473 F. Supp. 2d 1110, 1122 n. 6 (W.D. Wash. 2007); Gadda v. State Bar of Cal., 511 F.3d 933, 937

n. 2 (9th Cir. 2007).

- 37 -

1 shared by other members of th e Plaintiff class. Finally, th e evidence does not s how the

2 “extreme or very serious damage” required for mandatory injunctive relief. Park Village,

3 636 F.3d at 1160.

4

D. ADAC’s Organizational Resource Reallocation.

5

Plaintiffs argue that ADAC suffers irrepa rable harm because it has been force d to

6 reallocate its organiza tional resources to “dea l[] with the logistics of transporting its

7 members, rather than focusing on the orga nization’s core goals of im proving community

8 education and civic participation.” Doc. 30 at 35. Plaintiffs clarify this argument in their

9 reply brief, asserting that “from the m oment the state announced its policy, ADAC

10 leadership has spent no fewer than four hours a week, and up to fifteen hours a week,

11 every week, answering members’ questions and put ting on w orkshops t o help the m

12 understand Arizona’s policy and its implications.” Doc. 99 at 38.

13

ADAC apparently believes that its respons e to the Arizona policy is part of its

14 mission and purpose; otherwise, it would not pr ovide the services described. The C ourt

15 has difficulty concluding that ADAC is suffering irreparable harm when it is fulfilling its

16 mandate – assisting those who seek to obtain the benefits of the proposed Dream Act and

17 the DACA program. Moreover, injuries of “money, time and energy necessarily

18 expended in the absence of [an injunction], are not enough.” Sampson, 415 U.S. at 90.

19 Nor do they amount to “extrem e or very se rious dam age.” Park Village , 636 F.3d at 20 1160.13

21

In summary, the C ourt concludes that Plaint iffs have not established that they are

22 likely to suffer irreparable injury in the abs ence of a prelim inary injunction. Nor have

23

24

13 Plaintiffs cite Fair Housing of Marin v. Combs , 285 F. 3d 899, 905 ( 9th Cir. 2002), Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,

25

943 (9th Cir. 2011), El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 748 (9th C ir. 1991), and Havens v. Realty Corp. v. Coleman, 455

26

U.S. 363, 379 (1982), in sup port of the argument that ADAC will suffer irreparable harm from the frustration of its organization’s goals in the absence of a preliminary injunction.

27

Doc. 30 at 35; Doc. 99 at 39. But these cases dealt with or ganizational standi ng, not irreparable harm to an or ganization. Id. Plaintiffs also cite National Fair Housing

28

Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054, 1066 (N.D. Cal. 2008), but that case dealt with the sufficiency of an injunctive relief claim at the motion to

dismiss phase.

- 38 -

1 they shown the even higher level of injury required for a mandatory injunction.

2 V. Balance of Equities and the Public Interest.

3

In decidi ng whether to grant a prelim inary injunction, “courts must balance the

4 competing claims of injury an d must consider the effect on each party of the granting or

5 withholding of the requested relief. . . . [And] should pay particular regard for the public

6 consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at

7 24 (quotation marks and citations omitted).

8

The Court concludes that the balance of equities does not strongly favor either

9 side. Plaintiffs undoubte dly are harm ed to som e degree by Defenda nts’ apparent

10 violation of their equal protection rights, but, as noted, all of the indivi dual Plaintiffs

11 drive or ha ve drive n, all are ab le to travel to school and work, and Plaintiffs have not

12 shown a likelihood of irreparable harm. Defendants might be inconvenienced by an order

13 requiring them to issue driver’s licenses to Plaintiffs and t heir class, but Defenda nts 14 appear to issue licenses to similarly situated individuals without serious difficulties.14

15

The Court also concludes that public po licy does not s trongly favor either side.

16 Public policy surely disfavors violations of equal protection, but it also favors som e

17 deference to the political branches of government.

18

MOTION TO DISMISS

19 I. Legal Standard.

20

When analyzing a complain t for failure to state a cl aim to relief under Rule

21 12(b)(6), the well-pled factual allegations are taken as true and c onstrued in the light

22 most favorable to the nonm oving party. Cousins v. Lockyer , 568 F.3d 1063, 1067 ( 9th

23 Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the

24 assumption of truth, Ashcroft v. Iqbal , 556 U.S. 662, 680 ( 2009), and therefore are

25 insufficient to defeat a motion to di smiss f or failure t o state a cl aim, In re Cutera Sec.

26

27

14 The Ni nth Circ uit’s “serious questions” test also does not s upport issui ng a

28

preliminary injunction. Althou gh serious que stions going to the merits have been raised by Plaintiffs’ equal protection claim, the balance of hardsh ips does not tip sharpl y in

Plaintiffs favor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

- 39 -

1 Litig., 610 F.3d 1103, 1108 ( 9th Cir. 2010) . To a void a Rule 12(b)(6) dis missal, the

2 complaint must plead enou gh facts to sta te a cl aim to relief that is plausible on its face.

3 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Th is plausibility standard “is not

4 akin to a ‘probability requirement,’ but it asks for more than a sh eer possibility that a

5 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

6 556).

7 II. Discussion.

8

Defendants m ove to dism iss Plaintiffs ’ Suprem acy Clause and equal pr otection

9 claims, and in the alternative move for summary judgment on the equal pr otection claim.

10 Having found that Plaintiffs have show n a likelihood of success on t he m erits of their

11 equal protection claim, the Court cannot conclude that Plaintiffs have failed t o state such

12 a claim. Nor will the Court convert the moti on to dismiss to one for summary judgment.

13 Only lim ited discovery has occurred thus far, and Plaintiffs have requested Rule 56(d)

14 relief. Doc. 91 at 44-51.

15

As to the Supremacy Clause claim, even under the lenient Ru le 12(b)(6) standard,

16 the claim is not based on a cognizable legal theory. The parties’ legal arguments on the

17 motion to dismiss mirror their legal argum ents on the m otion for preliminary injunction.

18 As the Court concluded above, Plaintiffs’ per se preemption claim is legally incorrect and

19 their conflict preem ption claim – based on a conflict between Arizona’s driver’s license

20 policy and Congress’s enactment of the INA – is not legally viable.

21

IT IS ORDERED:

22

1. Plaintiffs’ motion for preliminary injunction (Doc. 29) is denied.

23

2. Defendants’ motion to dismiss (Doc. 58) is granted in part and denied in

24

part. Count one is dismissed; Count two survives.

25

3. The Court will set a hearing to schedule the remainder of this case.

26

Dated this 16th day of May, 2013.

27

28

- 40 -

 
 Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 1 of 36

1 Jennifer Chang Newell* Araceli Martinez-Olguin*

2 Michael Tan*

AMERICAN CIVIL LIBERTIES UNION 3 FOUNDATION

4 IMMIGRANTS' RIGHTS PROJECT

39 Drumm Street

5 San Francisco, CA 94111

6

T: (415} 343-0770 jnewell@aclu. org

7 Linton Joaquin* Karen C. Tumlin*
8 Shiu-Ming Cheer* 9 NATIONAL IMMIGRATION LAW
CENTER

Victor Viramontes* Jorge M. Castillo* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 T: (213) 629-2512 wiramontes@maldef.org

10 3435 Wilshire Boulevard, Suite 2850

Daniel J. Pochoda (BarNo. 021979)

11 Los Angeles, CA 90010 T: (213) 639-3900

Kelly J. Flood (Bar No. 019772) James DuffLyall (Bar No. 330045)**

12 joaquin@nilc.org

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

13 Attorneysfor Plaintiffs

Phoenix, AZ 85014

14 Additional Counsel On Subsequent Pages T: (602) 650-1854

dpochoda@acluaz. org

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE DISTRICT OF ARIZONA

17 ARIZONA DREAM ACT COALITION; JESUS CASTRO-

CASE NO. 02:12-cv-02546-DGC-PHX

18 MARTINEZ; CHRISTIAN JACOBO; COMPLAINT FOR DECLARATORY

ALEJANDRA LOPEZ; ARIEL 19 MARTINEZ; NATALIA PEREZ-

AND INJUNCTIVE RELIEF

20 GALLEGOS; CARLA CHAVARRIA;

and JOSE RICARDO HINOJOS

21

Plaintiffs,

22

v.

JANICEK. BREWER, Governor ofthe

23 State ofArizona, in her official capacity;

24 JOHN S. HALIKOWSKI, Director ofthe Arizona Department ofTransportation, in

25 his official capacity; and STACEY K.

STANTON, Assistant Director ofthe 26 Motor Vehicle Division of the Arizona

27 Department of Transportation, in her

official capacity,

28

Defendants.

1

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 2 of 36

1 Additional Co-Counsel
2 Cecillia D. Wang*
R. Orion Danjuma*
3 AMERICAN CIVIL LIBERTIES UNION 4 FOUNDATION
IMMIGRANTS' RIGHTS PROJECT 5 39 Drumm Street 6 San Francisco, CA 94111
T: (415) 343-0770 7 cwang@aclu.org
amartinez-olguin@aclu.org 8 mtan@aclu.org 9 odanjuma@aclu.org

Nora A. Preciado* Nicholas Espiritu* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010 T: (213) 639-3900 tumlin@nilc.org cheer@nilc.org preciado@nilc.org espiritu@nilc.org

10 Tanya Broder
II NATIONAL IMMIGRATION LAW CENTER
12 405 14th Street, Suite 401 Oakland, CA 94612
13 T: (510) 663-8282 14 broder@nilc.org

15

16

*Pro hac vice **Admittedpursuant to Ariz. Sup. Ct. R.

17 38(1)

Lee Gelemt* AMERICAN CIVIL LffiERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 lgelernt@aclu.org

18

Attorneysfor Plaintiffs

19

20

21

22

23

24

25

26

27

28

2

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 3 of 36

1

INTRODUCTION

2

1. This lawsuit challenges Arizona Executive Order 2012-061 and

3 Arizona's practice of denying driver's licenses to immigrant youth whom the federal

4 government has authorized to remain in the United States under the Deferred Action for

5 Childhood Arrivals ("DACA") program. Defendants' practice violates the Supremacy

6 Clause and the Equal Protection Clause ofthe United States Constitution.

7 2. This action is brought by the Arizona DREAM Act Coalition ("ADAC") and

8 several Individual Plaintiffs, who are young immigrants who were brought to the United

9 States at an early age by their families in hope that they could have a better life in the

10 United States. They have overcome many obstacles and worked diligently in order to

11 succeed in school, to help their families, and to enrich their communities with their

12 individual abilities. These young immigrants are commonly known as "DREAMers"

13 based on proposed federal legislation, the Development, Relief, and Education for Alien

14 Minors ("DREAM") Act.

15

3. As the President ofthe United States has recognized, these young immigrants

16 "are Americans in their heart, in their minds, in every single way but one: on paper."2 He

17 explained, "it makes no sense" to deport "[t]hese Dyoung people who study in our

18 schools, they play in our neighborhoods, they're friends with our kids, they pledge 19 allegiance to our flag."3

20 4. On June 15,2012, the Secretary of the United States Department ofHomeland

21 Security ("DHS") announced the new DACA program of administrative immigration

22 relief for young immigrants who came to the United States as children and are present in

23

24

1 A true and correct copy of Arizona Executive Order 2012-06 is attached as

Exhibit 1.

25

2 President Barack Obama, Remarks on Immigration Reform, 2012 DAILY COMP.

26 PRES. Doc. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-

20 1200483/pd:f/DCPD-201200483 .pdf. 27

28

3

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 4 of 36
1 the country without a formal immigration status. The DACA program was established to 2 allow these young immigrants to remain in the United States without fear of deportation 3 for a specified, renewable period, and thus continue to contribute to American society. 4 5. Under DACA, certain DREAMers are eligible to obtain "deferred action" from 5 the federal government upon meeting specific criteria such as the attainment of a high 6 school diploma and passing a rigorous background check including the absence of a 7 criminal record. Deferred action is a mechanism used by the federal government to 8 prevent the removal of a noncitizen who would otherwise be subject to deportation, and 9 to allow the noncitizen to remain in the United States for a specified period of time. 10 Persons granted deferred action under DACA may stay in the United States for a 11 renewable period of two years, are shielded from removal proceedings during that time, 12 and may be granted federal employment authorization and a Social Security Number. 13 6. The Individual Plaintiffs and numerous ADAC members are young immigrants 14 residing in Arizona who have been granted deferred action pursuant to the DACA 15 program, and have employment authorization and a Social Security Number. It is 16 estimated that there are 1.76 million DACA-eligible youth in the United States and 17 approximately 80,000 residing in Arizona. 18 7. The Individual Plaintiffs and ADAC members with DACA, like all DACA 19 grantees in Arizona, are being denied the opportunity to obtain a driver's license pursuant 20 to Defendants' unlawful policies and practices. On August 15,2012- the first day DHS 21 began accepting DACA applications- Defendant and Arizona Governor JaniceK. 22 Brewer issued Executive Order 2012-06, which states: ''the Deferred Action program 23 does not and cannot confer lawful or authorized status or presence upon the unlawful 24 alien applicants." The Order directs state agencies to take necessary steps to "prevent 25 Deferred Action recipients from obtaining eligibility ... for any ... state identification, 26 including a driver's license." 27 28
4

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 5 of 36

1 8. As stated by Defendant Brewer, the Executive Order makes clear that there

2 will be "no drivers [sic] licenses for illegal people,',4 and in her opinion, "[t]he Obama 3 amnesty plan doesn't make them legally here."5 Defendant Brewer's Executive Order

4 reflects her apparent disagreement with the federal government's decision to allow young

5 immigrants who qualify under the DACA program to remain in the United States.

6 9. Prior to Defendant Brewer's Executive Order 2012-06, the Motor Vehicle

7 Division ("MVD") of the Arizona Department of Transportation ("ADOT") issued

8 driver's licenses to all noncitizens granted deferred action who were otherwise qualified.

9 The MVD routinely accepted federal employment authorization documents, including

10 those presented by noncitizens with deferred action, as evidence of authorized presence

11 in the United States, and it routinely issued driver's licenses to persons presenting such

12 documents who were otherwise qualified for a license, including noncitizens with

13 deferred action.

14 10. The MVD implemented Executive Order 2012-06 on September 17,2012, by

15 revising its policies to bar the acceptance of the employment authorization documents of

16 DACA recipients as evidence ofauthorized presence in the United States to establish 17 eligibility for driver's licenses. See MVD Policy 16.1.4(S).6 The MVD continues to

18 accept employment authorization documents from all other noncitizens, including

19 noncitizens who are recipients ofdeferred action other than DACA recipients.

20

21

4 Arizona Channel12 News Video, Why Did Brewer Issue "Dreamer" Order? (Aug.

22 15, 2012) (video documenting remarks by Defendant Brewer), available at

http://www.azcentral.com/video/#/Why+did+Brewer+issue+%27dreamer0/o27+order0/o3F 23 /1787777903001.

24

5 Fox News Latino, Jan Brewer Bars IDs, Benefits for Undocumented Immigrants

25

in Arizona (Aug. 16, 2012), available at http://latino.foxnews.com/latino/politics/20 12/08/16/brewer-blocks-id-benefits-for-

26 undocumented-immigrants/#ixzz2BKUMfgjM.

27

6 A true and correct copy of Arizona Motor Vehicle Division Policy 16.1.4(S) is

attached as Exhibit 2

28

5

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 6 of 36

1 11. Arizona's practice of denying driver's licenses to DACA recipients seeks to

2 negate the federal government's decision to authorize DACA-eligible DREAMers to

3 remain in the United States, interferes with the goals and function of the DACA program,

4 and harms and unlawfully discriminates against Individual Plaintiffs and ADAC

5 members with DACA.

6

12. As a result oftheir deferred action status, Individual Plaintiffs and many

7 ADAC members are authorized by the federal government to be present in the United

8 States for a renewable period oftwo years, and are federally authorized to work. Despite

9 this federal authorization, under Defendants' unlawful practice Individual Plaintiffs and

10 ADAC members with DACA are deemed ''unauthorized" by the State of Arizona. As a

11 result Individual Plaintiffs and many ADAC members are unable to obtain licenses to

12 drive in Arizona despite being otherwise eligible for such licenses, making it difficult, if

13 not impossible, for them to accomplish essential aspects ofdaily life, such as going to the

14 grocery store, attending church, bringing their children or younger siblings to medical

15 appointments or to school, attending school, and maintaining or obtaining productive

16 employment.

17

13. Defendants' practice of denying licenses to DACA grantees violates the

18 Supremacy Clause of the United States Constitution because it is preempted by federal

19 immigration law and the federal government's exclusive authority to regulate

20 immigration.

21

14. Defendants' practice also violates the Fourteenth Amendment Equal Protection

22 Clause because it denies driver's licenses to DACA recipients without any valid

23 justification, including even a rational basis.

24 15. Plaintiffs therefore bring the instant action for permanent injunctive and

25 declaratory relief from Arizona's unlawful practice.

26

27

28

6

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 7 of 36

1

JURISDICTION AND VENUE

2 16. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343

3 over Plaintiffs' claims under the U.S. Constitution. The Court has authority to grant

4 declaratory relief under 28 U.S.C. §§ 2201 and 2202.

5

17. Venue is proper in this district under 28 U.S.C. § 139l(b). All Defendants are

6 sued in their official capacity and their official places of business are all located within

7 this District. All ofthe events giving rise to this Complaint occurred within this District.

8

9

PARTIES

10

11 Plaintiffs

12

18. The Arizona DREAM Act Coalition is an immigrant youth-led organization

13 whose mission is to promote the educational success of immigrant youth, increase civic

14 engagement and community service, and advocate for the passage of the DREAM Act at

15 the national level. Since 2009, ADAC has focused its organizing and advocacy efforts

16 on increasing voter participation in Arizona's Latino community, integrating immigrant

17 youth in Arizona's educational system and economy to the fullest extent possible, and

18 advocating for immigrant rights. ADAC has an active statewide membership of several

19 hundred individuals, including over 30 core volunteers, and works in coalition with

20 seven chapter organizations. Arizona's decision to deny driver's licenses to DACA

21 grantees has adversely impacted both ADAC and its members. Most of ADAC's

22 members are DACA recipients who have been issued Social Security Numbers and are

23 authorized to work in the country, or have applications for DACA and work

24 authorization pending. As a result of Arizona's denial of driver's licenses, many of

25 ADAC's members are unable to drive legally in Arizona, making it difficult or

26 impossible for them to function normally in the community - including getting to and

27 from work and school, taking children to school or to the doctor, and obtaining

28 employment. Additionally, Arizona's decision impedes ADAC's ability to carry out its

7

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 8 of 36
1 mission, as ADAC has been forced to divert its limited resources from its primary 2 advocacy projects in order to assist impacted individuals, such as responding to inquiries 3 and requests for assistance. Because ADAC members are unable to obtain driver's 4 licenses, transporting members and supporters to events, including meetings in other 5 regions ofArizona and out-of-state conferences, is more costly and limits members' 6 participation. ADAC regularly draws new members from these events, but is forced to 7 limit its attendance because ofmembers' inability to drive, which restricts the growth 8 and functioning ofthe organization. ADAC owns a vehicle, but is largely unable to use 9 it because of Arizona's denial of driver's licenses to DACA grantees. 10 19. Jesus Castro-Martinez is a 27-year-old resident ofPhoenix who came to the 11 United States at age 15 from Mexico and has lived in Arizona since that time. On 12 October 3, 2012, he was granted deferred action under the DACA program, and shortly 13 thereafter received an employment authorization document ("EAD") and Social Security 14 Number. Mr. Castro has married a U.S. citizen and has a brother and sister who are 15 lawful permanent residents. He received his associate degree from Scottsdale 16 Community College in 2010 and hopes to return to school to continue his studies and 17 become an interior designer. The lack of a driver's license has significantly restricted 18 Mr. Castro's ability to get to work as well as his eligibility for promotions. In October 19 2012, Mr. Castro attempted to apply for an Arizona driver's license at the MVD office in 20 Scottsdale. MVD officials informed him that because his EAD was obtained through the 21 DACA program, it could not establish his authorized presence in the United States, and 22 that he was therefore ineligible for a driver's license. 23 20. Christian Jacobo is a 20-year-old resident ofPhoenix who came to the United 24 States from Mexico when he was 12 years old and has lived in Arizona since that time. 25 On October 2, 2012, he was granted deferred action under the DACA program, and 26 subsequently received an EAD and Social Security Number. Mr. Jacobo currently lives 27 with his sister and her family. He obtained his General Education Development ("GED") 28 certificate from La Joya Community High School in Avondale, Arizona, and hopes
8

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 9 of 36
1 eventually to earn his bachelor's degree and become a physical therapist or chiropractor. 2 Mr. Jacobo needs a driver's license in order to earn a living, among other reasons. In 3 October 2012, Mr. Jacobo attempted to apply for an Arizona driver's license at an MVD 4 office in Phoenix. MVD officials informed him that because his EAD was obtained 5 through the DACA program, it could not establish his authorized presence in the United 6 States, and that he was therefore ineligible for a driver's license. 7 21. Alejandra Lopez, now 20 years old, has grown up virtually her entire life in 8 the United States. She is originally from Mexico, but has been in the United States since 9 she was four years old. Ms. Lopez graduated from high school in Arizona, and considers 10 Arizona her home. She is married to a U.S. Citizen and has a U.S. citizen child. She is a 11 primary caregiver for her young child as well as for her two U.S. citizen brothers who are 12 four and 15 years old, respectively. In October 2012, she was granted deferred action 13 under the DACA program. On October 9, 2012, she received an EAD, and on October 14 15,2012, she received a Social Security Number. On October 13,2012 Ms. Lopez went 15 to her local MVD to apply for a driver's license. The MVD staffperson looked at her 16 EAD and told her that she was not eligible for a license. Ms. Lopez understands that 17 Arizona's policies preclude her from using her EAD to get a license. Ms. Lopez needs an 18 Arizona driver's license for multiple reasons, such as to get to and from her job, drive her 19 brothers to and from school and manage various household errands, including getting 20 groceries or taking her child to the doctor. Because her husband works at night, he is 21 often unavailable to give Ms. Lopez rides she needs. Not having a driver's license has 22 made it more difficult for her to find employment. Among other examples, Ms. Lopez 23 was offered an interview for a customer service job in Tempe but was forced to tum it 24 down due to the fact that she would be unable to commute to work without a driver's 25 license. In addition, she needs a driver's license to use as a secure form ofidentification. 26 22. Ariel Martinez is a 19-year-old resident ofYoungtown, Arizona. He came to 27 the United States from Mexico when he was four years old. He has lived in Arizona 28 since then and is currently a student at Glendale Community College in Glendale,
9

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 10 of 36
1 Arizona. He aspires to attend the Conservatory ofRecording Arts and Sciences in order 2 to pursue a career in the recording business. On October 15,2012, Mr. Martinez was 3 granted deferred action under the DACA program. Around October 17, 2012, he 4 received an EAD, and around October 19,2012, he received a Social Security Number. 5 Defendants' policy imposes a significant hardship on Mr. Martinez's ability to get to his 6 college classes and sports activities, which include coaching high school soccer. Mr. 7 Martinez understands that Arizona's policies preclude him from obtaining a license. 8 23. Natalia Perez-Gallegos is 23 years old and resides in Phoenix, Arizona. Ms. 9 Perez-Gallegos came to the United States from Mexico when she was five years old. In 10 October 2012, she was granted deferred action under the DACA program and received 11 her EAD and her Social Security Number. Ms. Perez-Gallegos attended Glendale 12 Community College and Estrella Mountain Community College, where she completed a 13 year of nursing pre-requisites, and intends to go back to school to complete her Associate 14 Degree in registered nursing. After Ms. Perez-Gallegos received her EAD and Social 15 Security Number she began working as a medical assistant. Ms. Perez-Gallegos is 16 concerned that she will not be able to get back and forth from school and work without a 17 driver's license. In October 2012, after receiving DACA status, Ms. Perez-Gallegos 18 attempted to apply for an Arizona driver's license at the MVD offices in Avondale and 19 on 51st Street in Phoenix, Arizona. At both locations she was told by MVD officials that, 20 because her EAD was obtained through the DACA program, she was ineligible for a 21 driver's license. 22 24. Carla Chavarria is 20 years old and resides in Phoenix, Arizona. Several 23 months ago, she was granted deferred action under the DACA program and has received 24 an EAD and Social Security Number. At present, she works as a graphic designer. Ms. 25 Chavarria previously attended community college and is now enrolled in another college 26 program. Ms. Chavarria understands that Arizona's policies preclude her from obtaining 27 a driver's license. Without access to a driver's license, she must travel to work by bus. 28 Her commute typically takes approximately four hours round trip and she must allow
10

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 11 of 36

1 additional time to accommodate public transportation delays and unreliability in service.

2 Ms. Chavarria needs a license to drive to clients who are inaccessible by public

3 transportation or in remote locations that would require lengthy commutes. She has also

4 been unable to apply to jobs which require a driver's license. Ms. Chavarria has had

5 difficulty renting textbooks for college coursework because the student bookstore

6 requires a driver's license in order to open a rental account, and she has been unable to

7 establish a rental account on that basis.

8 25. Jose Ricardo ffinojos is 23 years old and resides in Douglas, Arizona. In

9 March 2013 he was granted deferred action under the DACA program and has received

10 an EAD and Social Security Number. At present, he works in Douglas and is enrolled to

11 take college courses needed for professional certification. Mr. Hinojos understands that

12 Arizona's policies preclude him from obtaining a driver's license. He would seek to

13 obtain a driver's license but for this policy. Without access to a driver's license, he has

14 difficulty traveling to work and to class, and is reliant on an irregular mix ofwalking,

15 receiving rides when available, or riding his bicycle. He is also burdened by his inability

16 to contribute to his family because ofhis inability to drive. His ability to pursue his

17 career aspirations are significantly limited by his inability to obtain a driver's license.

18

19 Defendants

20

21

26. At all times relevant to this action, Defendant JaniceK. Brewer has been the

22 Governor ofthe State of Arizona. Defendant Brewer issued the Executive Order being

23 challenged in this case. Defendant Brewer is sued in her official capacity.

24 27. At all times relevant to this action, Defendant JohnS. Halikowski has been

25 the Director ofADOT, which is the agency with authority to license drivers and enforce

26 motor vehicle statutes. Ariz. Rev. Stat.§ 28-332(B). As Director, Defendant Halikowski

27 "is responsible for the administration of the department" and has the authority to adopt

28 rules he deems necessary to carry out ADOT's responsibilities. Ariz. Rev. Stat.§ 28-

11

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 12 of 36

1 331; see also Ariz. Rev. Stat. § 28-366. Defendant Halikowski is sued in his official

2 capacity.

3 28. At all times relevant to this action, Defendant Stacey K. Stanton has been the

4 Assistant Director of the MVD, which is a division ofthe ADOT. See Ariz. Rev. Stat.§

5 28-332(C). MVD is the division of the ADOT charged with responsibility for licensing

6 drivers. Defendant Stanton is responsible for the administration of all Motor Vehicle

7 Departments in the state of Arizona. Defendant Stanton issued policies implementing

8 Executive Order 2012-06 and instructing that employment authorization documents

9 issued to DACA recipients may not be used to establish eligibility for an Arizona driver's

10 license. See MVD Policy 16.1.4(S) (rev. Sept. 18, 2012). Defendant Stanton is sued in

11 her official capacity.

12

13

BACKGROUND

14

15 Deferred Action

16

17 29. Deferred action is a longstanding form ofprosecutorial discretion in which the

18 federal government decides, based on humanitarian or other reasons, to refrain from

19 seeking an individual noncitizen's removal and to authorize her continued presence in the

20 United States. A grant of deferred action indicates that the noncitizen's presence in the

21 United States is known to the federal government, and that the federal government has

22 made a discretionary determination, based on a review of the individual's case, not to

23 remove her but rather to allow her to remain in the United States during a specified

24 period.

25 30. Moreover, recipients of deferred action are eligible to receive employment

26 authorization under federal law upon a showing of economic necessity. See 8 C.F.R. §

27 274a.12(c)(14).

28

12

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 13 of 36
1 31. The Secretary of Homeland Security's authority to grant deferred action to 2 otherwise removable noncitizens derives from her statutory authority over 3 "administration and enforcement" of the Immigration and Nationality Act ("INA"), 4 including the power to ''perform such ... acts as [s]he deems necessary for carrying out 5 [her] authority." 8 U.S.C. §§ 1103(a)(1), 1103(a)(3). That discretion granted by 6 Congress includes the discretion to "decide whether it makes sense to pursue removal at 7 all." Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). Deferred action is simply 8 one example ofthe federal government's exercise of the discretionary authority granted 9 by Congress in immigration matters. Indeed, Congress repeatedly has recognized in the 10 INA and other legislation that the Executive Branch has discretion to grant deferred 11 action under the immigration laws. 12 32. For decades, the federal government has used deferred action to authorize 13 numerous groups of immigrants to live and work in the United States for a temporary 14 period. Deferred action has been made available to certain victims ofhuman trafficking 15 and sexual exploitation; to certain relatives ofvictims ofterrorism; to surviving family 16 members ofa legal permanent resident member of the armed forces; to spouses and 17 children ofU.S. citizens or lawful permanent residents who are survivors of domestic 18 violence; to certain surviving spouses of U.S. citizens; to foreign students affected by 19 Hurricane Katrina; and to applicants for certain types ofvisas. In addition, federal 20 immigration authorities may grant deferred action on an individual basis, including, for 21 example, to a person whose continued presence is desired by law enforcement for an 22 ongoing investigation. 23 33. Immigrant youth brought to the country as children are thus only the most 24 recent beneficiaries of deferred action. 25 34. The rationale for the DACA program is consistent with the federal 26 government's longstanding use of deferred action to permit noncitizens to remain in the 27 country. In announcing the DACA program, the DHS Secretary explained that "[o]ur 28 Nation's immigration laws .... are not designed to be blindly enforced without
13

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 14 of 36

1 consideration given to the individual circumstances of each case. Nor are they designed

2 to remove productive young people to countries where they may not have lived or even

3 speak the language. Indeed, many ofthese young people have already contributed to our 4 country in significant ways."7

5 35. Similarly, the President stated that the federal government decided to make

6 deferred action available to DREAMers because "it makes no sense ... to expel these 7 young people who want to staff our labs or start new businesses or defend our country."8

8 He explained, these individuals are "talented young people, who, for all intents and

9 purposes, are Americans - they've been raised as Americans, understand themselves to

10 be part ofthis country."

11 36. The DACA program is intended ''to lift the shadow of deportation from these

12 young people" and ''to mend our Nation's immigration policy to make it more fair, more 13 efficient, and more just."9

14 37. Under DACA, young immigrants who entered the United States as children

15 and who meet educational and residency requirements may apply for deferred action.

16 Noncitizens are eligible for DACA if they: a) were under the age of31 as ofJune 15,

17 2012; b) came to the United States before reaching their 16th birthday; c) have

18 continuously resided in the United States since June 15, 2007, up to the present time; d)

19 were physically present in the United States on June 15, 2012, and at the time ofmaking

20 the request for consideration ofdeferred action with United States Citizenship and

21 Immigration Services ("USCIS"); e) entered without inspection before June 15, 2012, or

22 7 Janet Napolitano, Memorandum on Exercising Prosecutorial Discretion with
23 Respect to Individuals Who Came to the United States as Children 2 (June 15, 2012),

24 available at http://www.dhs.gov/xlibrary/assets/s!-exercising-prosecutorial-discretion-

individuals-who-came-to-us-as-children.pdf.

25

8 President Barack Obama, Remarks on Immigration Reform, 2012 DAILY COMP.

26 PRES. Doc. 1 (June 15, 2012), available at http://www.gpo.gov/fdsys/pkg!DCPD-

20 1200483/pd:f/DCPD-201200483 .pdf. 27

28

14

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 15 of 36

1 had an expired lawful immigration status as of June 15, 2012; f) are currently in school,

2 have graduated or obtained a certificate ofcompletion from high school, have obtained a

3 GED certificate, or are an honorably discharged veteran ofthe Coast Guard or Armed

4 Forces ofthe United States; and g) have not been convicted ofa felony, significant

5 misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to 6 national security or public safety.10

7 38. The DACA application process includes extensive criminal background

8 checks. Under the DACA program, deferred action is available for a period oftwo years,

9 subject to renewal, and applicants who are approved may obtain work authorization, and 10 if such authorization is granted, a Social Security Number.11

11 39. The federal government routinely grants work authorization to deferred action

12 recipients, including DACA recipients. Noncitizens granted work authorization are

13 issued federal employment authorization documents or EADs, such as 1-766 cards.

14 40. Noncitizens granted deferred action pursuant to the DACA program are both

15 authorized to be present and lawfully present in the United States during the two-year

16 deferred action period, and during any extensions ofthe grant. As the federal

17 government has expressly confrrmed, "[a]n individual who has received deferred action is

18 authorized by the Department ofHomeland Security (DHS) to be present in the United

19 States, and is therefore considered by DHS to be lawfully present during the period 20 deferred action is in effect."12 USCIS has also explained that under the DACA program,

21 "[i]f action on your case is deferred, you will not accrue unlawful presence during the

22

23

10 USCIS, Consideration of Deferred Action for Childhood Arrivals Process (Jan.

24 18, 2013), available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6dl a/?

25 vgnextchannel=3a4dbc4b0449931OVgnVCMl00000082ca60aRCRD&vgnextoid=3a4db

26 c4b0449931OVgnVCMl 00000082ca60aRCRD

11 jCJ'ee z"d.

27

12 Id. at Ql.

28

15

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 16 of 36

1 period ofdeferred action."13 According to USCIS, "an individual whose case is deferred

2 is not considered to be unlawfully present during the period in which deferred action is in 3 effect."14

4 41. Furthermore, USCIS has confirmed that "[t]he relief an individual receives

5 pursuant to the deferred action for childhood arrivals process is identical for immigration

6 purposes to the relief obtained by any person who receives deferred action as an act of 7 prosecutorial discretion."15

8 42. As of May 31, 2013, immigrant youth had filed over 500,000 DACA

9 applications with USCIS, including over 18,000 applications from Arizona residents.

10 Although large numbers ofthose applications are still in process, USCIS has granted

11 deferred action to approximately 365,000 individuals nationwide and 14,000 individuals 12 in Arizona pursuant to the DACA program.16

13

14 Arizona Driver's License Practice

15

16 43. Both before and after the federal government announced that immigrant youth

17 who came to the country as children would be eligible for deferred action under the

18 DACA program, Arizona law provided that an applicant for an instruction permit,

19 driver's license, or identification card must submit proof that the applicant's ''presence in

20 the United States is authorized under federal law." Ariz. Rev. Stat.§§ 28-3153(D), 28-

21 3158(C), 28-3165(F).

22

23

13 ld. at Q5.

24

14 Id. at Ql; see also id. at Q6.

25

15 Id. at Q7.

26

16 USCIS, Deferred Action for Childhood Arrivals Process (June 2013) available at

27 http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studiesllmmigration%20For

ms%20Data/All%20Form%20Types/DACA/DACA-13-6.pdf.

28

16

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 17 of 36
1 44. Specifically, Ariz. Rev. Stat.§ 28-3153(D) provides that "[n]otwithstanding 2 any other law, the department shall not issue to or renew a driver license or nonoperating 3 identification license for a person who does not submit proofsatisfactory to the 4 department that the applicant's presence in the United States is authorized underfederal 5 law." Id. § 28-3153(D) (emphasis added). The statute further provides that the ADOT 6 shall establish procedures for "[v]erification that the applicant's presence in the United 7 States is authorized under federal law." ld. § 28-3153(D)(1). 8 45. The policy ofthe MVD prior to the announcement ofthe DACA program was 9 that an employment authorization document was sufficient to prove that an applicant's 10 presence was "authorized under federal law." See MVD, Primary and Secondary Forms 11 ofAcceptable Documentation (rev. Nov. 30, 2010). Because deferred action recipients 12 are eligible for employment authorization under federal law, see 8 C.F.R. § 13 274a.l2(c)(14), Defendants routinely issued driver's licenses to deferred action 14 recipients, as well as other noncitizens submitting EADs as proof of"authorized" 15 presence. Thus, under Defendants' previous policy, DACA recipients would have been 16 able to meet the "authorized" presence requirement by submitting their employment 17 authorization documents. 18 46. However, on August 15, 2012 -the very same day USCIS began accepting 19 DACA applications- Defendant Brewer issued Executive Order 2012-06, instructing 20 state agencies to take necessary steps to "prevent Deferred Action recipients from 21 obtaining eligibility, ... for any ... state identification, including a driver's license." See 22 Arizona Executive Order 2012-06. According to its title, the Executive Order purports to 23 "Re-affmn [the] Intent ofArizona Law In Response to the Federal Government's 24 Deferred Action Program." I d. 25 47. The Executive Order states that "Arizona Revised Statutes 28-3153 prohibits 26 the ADOT from issuing a drivers [sic] license or nonoperating identification license 27 unless an applicant submits proof satisfactory to ADOT that the applicant's presence in 28 the United States is authorized under federal law." ld. The Executive Order further
17

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 18 of 36

1 states that ''the Deferred Action program does not and cannot confer lawful or authorized

2 status or presence upon the unlawful alien applicants" and that "[t]he issuance of

3 Deferred Action or Deferred Action USCIS employment authorization documents to

4 unlawfully present aliens does not confer upon them any lawful or authorized status." Id.

5 The Executive Order thus provides that deferred action recipients are unable to meet the

6 "authorized" presence requirement for driver's licenses and identification.

7

48. In a public statement made the same day the Executive Order was issued,

8 Defendant Brewer stated that the Executive Order was intended to clarify that there 9 would be "no drivers [sic] licenses for illegal people." 17 Defendant Brewer stated: "They

10 are here illegally and unlawfully in the state ofArizona and it's already been determined 11 that you're not allowed to have a driver's license if you are here illegally."18

12

49. To implement the Executive Order's directive, the Arizona MVD revised its

13 policy regarding acceptance of employment authorization documents as proof of

14 authorized presence. Under the new policy, employment authorization documents

15 presented by DACA recipients will not be accepted as proofof authorized presence for a

16 driver's license or identification card. See MVD Policy 16.1.4(S) (rev. Sept. 18, 2012).

17 However, for all other recipients ofdeferred action (i.e., other than DACA beneficiaries),

18 employment authorization documents will continue to be accepted as proof of authorized

19 status. See MVD, Primary and Secondary Forms ofAcceptable Documentation (rev.

20 Sept. 18, 2012).

21

22

23

17 Arizona Channel12 News Video, Why Did Brewer Issue 'Dreamer' Order?

(Aug. 15, 2012), available at

24 http://www.azcentral.com/video/#/Why+did+Brewer+issue+%27dreamer'/o27+order'/o3F

25 /1787777903001, (video documenting remarks by Defendant Brewer). 18 Jan Brewer Bars IDs, Benefits for Undocumented Immigrants in Arizona, Fox
26 News Latino (Aug. 16, 2012),

27 http://latino.foxnews.com/latino/politics/2012/08/16/brewer-blocks-id-benefits-for-

undocumented-immigrants/. 28

18

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 19 of 36
1 50. Arizona's practice of denying driver's licenses to DACA recipients is an 2 outlier in the 50 states. The rules in an overwhelming majority of states make all 3 deferred action recipients with employment authorization and Social Security Numbers 4 eligible for driver's licenses. Indeed, Plaintiffs are aware of only one other state, apart 5 from Arizona, that precludes DACA recipients from eligibility for a driver's license. 6 7 Defendant's Policy Harms Plaintiffs 8 9 51. Defendants' policy of denying driver's licenses to DACA recipients, including 10 Plaintiffs, pursuant to Executive Order 2012-06 and its implementing policies, is 11 currently in effect. Defendants are applying Executive Order 2012-06 to deny driver's 12 licenses to DACA recipients, including Plaintiffs. 13 52. As a result, Defendants, acting under the color of state law, are violating 14 Plaintiffs' rights under the U.S. Constitution by continuing to enforce Arizona's practice 15 of denying driver's licenses to DACA recipients, including Plaintiffs. 16 53. Moreover, Defendants' practice ofdenying driver's licenses to DACA 17 recipients imposes onerous restrictions on the daily lives ofthe Individual Plaintiffs and 18 members ofADAC with DACA. 19 54. The ability to drive is, in most areas of the United States, a necessity of modern 20 life. Driving is essential to the ability to work, particularly in Arizona. U.S. Census 21 Bureau statistics indicate that over 87 percent of Arizonans and over 86 percent of 22 workers nationwide commute to work by car. In contrast, only two percent of all 23 Arizonan workers and five percent of workers nationwide commute to work by public 24 transportation. Denying driver's licenses to DACA recipients in Arizona severely 25 frustrates their ability to obtain employment and achieve economic self-sufficiency. 26 Indeed, the necessity of driving to a place of employment and/or school is so important 27 that Arizona provides licenses in a diverse range of circumstances. For example, Arizona 28 provides a restricted license allowing such use of a motor vehicle to many individuals
19

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 20 of 36
1 who are otherwise denied the right to operate a motor vehicle. See, e.g., Ariz. Rev. Stat. 2 § 28-4145(A) (driving restriction based on lack of insurance verification). 3 55. Arizona also allows those convicted of driving under the influence to do so if 4 their vehicle has an ignition interlock device. Id. § 28-1402. 5 56. Defendants' actions and practices are causing substantial irreparable harm to 6 Individual Plaintiffs and to ADAC members with DACA. Because they are not licensed 7 to drive, they are, inter alia, prevented from being able to drive legally in order to go to 8 work, school, church, medical appointments; to take their children or younger siblings to 9 school or medical appointments; to take on employment requiring a driver's license; and 10 to conduct many basic activities of everyday life. In order to manage these basic 11 activities ofdaily life, Individual Plaintiffs and ADAC members with DACA are forced 12 to rely on rides from others, or risk criminal penalties and fines by driving without a 13 license. Individual Plaintiffs and ADAC members with DACA are also harmed by 14 having an unconstitutional policy enforced against them and from the stigma, 15 discrimination, and emotional harm they face as a result ofthe policy. 16 57. In addition, Defendants' unlawful practice harms ADAC's ability to carry out 17 its mission and forces it to divert resources to efforts from its primary advocacy projects 18 in order to assist members who are adversely affected by the inability to obtain a driver's 19 license. Defendants' practice also harms both ADAC as an organization and its 20 individual members by limiting the ability ofADAC's members to travel to events 21 related to ADAC's mission and making such travel more costly. 22 58. Thus, wrongful denial of a driver's license to Individual Plaintiffs and ADAC 23 members with DACA causes irreparable harm. Such harm is irreparable because no 24 available remedy can make a person whole after they have been denied a license for a 25 period oftime. 26 59. IfExecutive Order 2012-06 and related practices are not enjoined, Plaintiffs 27 will continue to suffer irreparable injury and continue to be hampered in conducting these 28 basic activities of everyday life.
20

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 21 of 36

1 60. There is an actual and substantial controversy between Plaintiffs and

2 Defendants.

3 61. Plaintiffs have no plain, speedy, and adequate remedy at law against Executive

4 Order 2012-06 and related practices other than the reliefrequested in this Complaint.

5 62. By enforcing Executive Order 2012-06 to deny driver's licenses to Plaintiffs,

6 Defendants are denying Plaintiffs rights secured to them under the U.S. Constitution and

7 laws.

8 63. Plaintiffs are entitled to a declaration that Executive Order 2012-06 and its

9 implementing policies are unconstitutional as applied to deny driver's licenses to DACA

10 recipients, and to a preliminary and permanent injunction enjoining Defendants from so

11 denying such licenses.

12

13 Defendants' Policy is Preempted By Federal Law 14

15 64. Article VI, clause 2, of the United States Constitution, known as the

16 Supremacy Clause, provides: "This Constitution, and the Laws ofthe United States

17 which shall be made in Pursuance thereof; and all Treaties made, or which shall be made,

18 under the Authority of the United States, shall be the supreme Law of the Land; and the

19 Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of

20 any State to the Contrary notwithstanding."

21

65. Pursuant to the Supremacy Clause, federal law preempts state regulation of any

22 area over which Congress has expressly or impliedly exercised exclusive authority or

23 which is constitutionally reserved to the federal government.

24 66. The federal government has sole and exclusive power to regulate immigration.

25 The federal government's exclusive power over immigration matters is inherent in the

26 nation's sovereignty, and derives from the U.S. Constitution's grant to the federal

27 government of the power to "establish an uniform Rule ofNaturalization," id. art. I, § 8,

28 cl. 4, and to "regulate Commerce with foreign Nations," id. art. I,§ 8, cl. 3.
21

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 22 of 36
1 67. As part of its immigration power, the federal government has exclusive 2 authority to enact and to enforce regulations concerning which noncitizens to admit, 3 exclude, remove, or allow to remain in the United States. The federal government also 4 has exclusive authority over the terms and conditions of a noncitizen's stay in the United 5 States. Further, the federal government has exclusive authority to classify noncitizens, 6 which includes determining the categories of noncitizens who are granted federal 7 authorization to remain in the United States. In contrast, state governments have none of 8 these powers. 9 68. Pursuant to its powers, the federal government has established a 10 comprehensive system of laws, regulations, procedures, and administrative agencies that 11 determine, subject to judicial review, whether and under what conditions a noncitizen 12 may enter and live in the United States, when a noncitizen may be subject to removal, 13 and when a noncitizen may be eligible for relief from removal, either temporarily or 14 permanently. 15 69. In the INA, 8 U.S.C. §1101, et seq., Congress has delegated to the federal 16 Executive broad discretion over the manner ofthe execution ofthe immigration laws, 17 including the manner oftheir enforcement. That discretion includes the discretion to 18 decide not to pursue the removal ofa noncitizen who may be removable and to authorize 19 such persons to remain in the United States. One way in which the Executive exercises 20 its discretionary authority is by granting noncitizens "deferred action," which allows 21 them to remain in the United States for a period oftime. 22 70. Under the federal immigration system, deferred action recipients, including 23 DACA grantees, are authorized to remain in the United States for the period of the 24 deferred action grant. Deferred action recipients, including DACA grantees, who are 25 granted employment authorization are authorized not only to reside in the United States 26 but to work here. Deferred action recipients, including DACA grantees, are present in the 27 United States with legal authorization and are not unlawfully present.
28
22

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 23 of 36
1 71. Executive Order 2012-06 and its implementing policies impermissibly regulate 2 immigration by, inter alia, creating a new, state-based classification of noncitizens that 3 treats DACA recipients as though they were unauthorized and unlawfully present. 4 72. Executive Order 2012-06 and its implementing policies, by denying driver's 5 licenses and state-issued identification cards, further impermissibly regulate immigration 6 because, inter alia, they impose immigration-related burdens and penalties on noncitizens 7 whose presence in the United States is authorized by the federal government, and in a 8 manner not contemplated by federal law. 9 73. Executive Order 2012-06 and its implementing policies denying DACA 10 recipients driver's licenses conflicts with, frustrates, and serves as an obstacle to federal 11 immigration law, goals, and policies of authorizing DACA recipients to live and work in 12 the United States, to come out of the shadows, and to participate as full members of our 13 nation's communities. 14 15 Defendants' Policy Violates Equal Protection 16 17 74. Defendants' decision discriminates against DACA recipients by singling out 18 and denying driver's licenses to individuals granted deferred action under the DACA 19 program while granting licenses to all other individuals granted deferred action or other 20 forms of temporary authorization to remain in the United States. This discrimination 21 does not rationally further any legitimate state interest. Instead, the singling out of 22 DACA grantees appears to reflect disagreement with President Obama's DACA policy, 23 an intent to target these noncitizens on the basis oftheir alienage or immigration status, 24 and a rejection oftheir federally authorized presence. 25 75. Executive Order 2012-06 states that the purpose for denying driver's licenses 26 to individuals granted deferred action is to prevent ''unlawfully present aliens" from 27 "inappropriately gaining access to taxpayer funded benefits and state identification" and
28
23

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 24 of 36

1 to save money for the state. These alleged state purposes are not a valid justification for

2 the Executive Order.

3 76. As set forth above, persons granted deferred action are not unlawfully present.

4 Rather, they have been granted authorization to remain in the United States by federal

5 immigration officials for a certain time period, and are eligible to apply to work in the

6 United States.

7 77. The state's claim that denying driver's licenses to individuals granted deferred

8 action is necessary to save the state money is not rational. Denying driver's licenses to

9 any group of individuals would save on administrative costs. There is no valid

10 justification for singling out DACA grantees on cost grounds.

11 78. In fact, Arizona charges application fees for driver's licenses, which at a

12 minimum serves to defray processing costs. For example, ifeach ofthe estimated 80,000

13 individuals eligible for DACA in Arizona were granted DACA and applied for driver's

14 licenses, Arizona could accrue $2 million from the $25 application fee for driver's

15 licenses charged to individuals under the age of 40.

16 79. Ensuring that all drivers can obtain validly issued driver's licenses promotes

17 public safety for numerous reasons. For example, it ensures that drivers in a state are

18 trained and tested on the state's traffic laws. As a further example, it facilitates access to

19 insurance that can protect all drivers in case of an accident. In addition, it helps ensure

20 that police can accurately identify individuals that they stop and that all drivers in

21 Arizona are accountable for their driving records.

22

23

FIRST CLAIM FOR RELIEF

24 (Supremacy Clause, Article VI, Clause 2, of the United States Constitution; 42

25

u.s.c. § 1983)

26

27 80. Plaintiffs re-allege and incorporate all ofthe allegations contained in the

28 previous paragraphs of this complaint as though fully set forth herein.

24

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 25 of 36

1 81. The Supremacy Clause, Article VI, Clause 2, ofthe U.S. Constitution,

2 mandates that federal law preempts state law in any area over which Congress expressly

3 or impliedly has reserved exclusive authority or which is constitutionally reserved to the

4 federal government, including where state law conflicts or interferes with federal law.

5 82. In classifying DACA recipients as ineligible for driver's licenses and

6 unauthorized to be present in the United States, Executive Order 2012-06 and its

7 implementing polices are preempted by federal law for multiple reasons.

8 83. Executive Order 2012-06 and its implementing policies are preempted because

9 they are an impermissible state regulation of immigration. Through Executive Order

10 2012-06 and its implementing policies, Arizona has created its own state classification of

11 noncitizens whose presence in the United States is "authorized," and erroneously

12 classified DACA recipients as lacking federal authorization to remain in the United

13 States. Arizona's creation of its own immigration classification impermissibly intrudes

14 on the federal government's exclusive authority to regulate immigration, and therefore

15 violates the Supremacy Clause.

16 84. Executive Order 2012-06 and its implementing policies are further preempted

17 because they conflict with, frustrate, and serve as an obstacle to federal immigration law,

18 goals, and policies. Arizona's misclassification ofDACA recipients as not being

19 "authorized" to be present in the United States directly and fundamentally conflicts with

20 federal law, in violation ofthe Supremacy Clause.

21

85. Executive Order 2012-06 and its implementing policies are also preempted

22 because, inter alia, they impose immigration-related burdens and penalties on noncitizens

23 whose presence in the United States is authorized by the federal government, in violation

24 ofthe Supremacy Clause.

25 86. Because Executive Order 2012-06 and its implementing policies are preempted

26 by federal law, they violate the Supremacy Clause.

27 87. Further, for all ofthe same reasons described above, Ariz. Rev. Stat.§§ 28-

28 3153(0), 28-3158(C), and 28-3165(F) are similarly preempted by federal law and 25

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 26 of 36

1 unconstitutional to the extent they compel Executive Order 2012-06 and its implementing

2 policies.

3 88. The foregoing allegations are repeated and incorporated as though fully set

4 forth herein.

5

6

SECOND CLAIM FOR RELIEF

7

8 (Equal Protection Clause, Fourteenth Amendment to the U.S. Constitution; 42

9

u.s.c. § 1983)

10

11

89. The Fourteenth Amendment to the U.S. Constitution provides that "[n]o State

12 shall ... deny to any person within its jurisdiction the equal protection ofthe laws."

13 90. Because Arizona's Executive Order 2012-06 and related policies and practices

14 bar individuals granted deferred action under the DACA program from receiving state

15 driver's licenses, they violate the Equal Protection Clause ofthe Fourteenth Amendment.

16 91. Executive Order 2012-06 constitutes impermissible discrimination by state

17 officers and officials against certain noncitizens on the basis ofalienage and deprives

18 them of equal protection of the laws within the meaning ofthe Fourteenth Amendment to

19 the U.S. Constitution.

20 92. Arizona's Executive Order and related policies permit noncitizens who are

21 similarly situated to DACA recipients to establish eligibility for driver's licenses yet

22 discriminate against DACA recipients by barring their eligibility for driver's licenses.

23 Defendants cannot establish that Executive Order 2012-06 and related policies and

24 practices have any valid justification, including even a rational basis.

25 93. Plaintiffs move for relief on this claim directly under the Constitution and as an

26 action seeking redress ofthe deprivation of statutory rights under the color of state law,

27 also under 42 U.S.C. § 1983.
28

26

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 27 of 36

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs pray for the following relief:

3 A. A preliminary and permanent injunction enjoining Defendants, their officials,

4

agents, employees, assigns, and all persons acting in concert or participating with

5

them from implementing or enforcing the state’s illegal policy and practice of

6

denying driver’s licenses to Deferred Action for Childhood Arrivals grantees;

7 B. A declaration pursuant to 28 U.S.C. §§ 2201 and 2202 that Arizona’s policy and

8

practice of denying driver’s licenses to Deferred Action for Childhood Arrivals

9

grantees is unlawful and invalid;

10 C. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and

11

expenses pursuant to 42 U.S.C. § 1988 and any other applicable law;

12 D. Such other and further relief as the Court deems equitable, just, and proper.

13 Dated: September 17, 2013

Respectfully submitted,

14

15

/s/Jennifer Chang Newell

AMERICAN CIVIL LIBERTIES

16

UNION FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT 17

18

/s/Karen C. Tumlin

NATIONAL IMMIGRATION LAW

19

CENTER

20 /s/Victor Viramontes

21

MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL

22

FUND

23

/s/Daniel J. Pochoda

24

ACLU FOUNDATION OF

25

ARIZONA

26 Counsel for Plaintiffs
27

28

27

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 28 of 36

1

CERTIFICATE OF SERVICE

2

I hereby certify that on September 17, 2013, I electronically transmitted the

3 attached document to the Clerk’s Office using the ECF System for filing and transmittal

4 of a Notice of Electronic Filing to the following CM/ECF Registrants:

5

Douglas C. Northup Timothy Berg

6

Sean T. Hood Fennemore Craig, P.C.

7

dnorthup@fclaw.com tberg@fclaw.com

8

shood@fclaw.com

9

Attorneys for Defendants Governor Janice K. Brewer,

10

JohnS. Halikowski and Stacey K. Stanton

11

Joseph Sciarrotta, Jr.

12

Office of Governor Janice K. Brewer jsciarrotta@az.gov

13

Co-Counsel for DefendantGovernor Janice K. Brewer

14

15 /s/Gloria A. Torres 16

17

18

19

20

21

22

23

24

25

26

27

28 28

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 29 of 36
EXHIBIT 1

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 30 of 36
Executive Order 2012-06
Re-Affirming Intent of Arizona Law In Response to the Federal Government's Deferred Action Program
WHEREAS, United States Citizenship and Immigration Services (USCIS) plans to issue employment authorization documents to certain unlawfully present aliens who are granted Deferred Action under federal immigration laws; and
WHEREAS, the USCIS has confirmed that the Defened Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants; and
WHEREAS, unless otherwise made available under applicable law, 8 United States Code § 1621 provides that aliens unlawfully present in the United States are not eligible for any state or local public benefit- as defined in both federal and Arizona law; and
WHEREAS, 8 United States Code § 1622 authorizes states to determine eligibility for any state public benefits for most classes of aliens, including unlawfully present aliens with Deferred Action; and
WHEREAS, the Deferred Action program is purportedly an act of prosecutorial discretion and the program does not provide for any additional public benefit to unlawfully present aliens beyond the delayed enforcement of United States immigration laws and the possible provision of employment authorization; and
WHEREAS, Arizona Revised Statutes § 1-501 and § 1-502 limit access to public benefits to persons demonstrating lawful presence in the United States; and
WHEREAS, Arizona Revised Statutes § 28-3153 prohibits the Arizona Department of Transportation (ADOT) from issuing a drivers license or nonoperating identification license unless an applicant submits proof satisfactory to ADOT that the applicant's presence in the United States is authorized under federal law; and
WHEREAS, the federal executive's policy of Deferred Action and the resulting federal paperwork issued could result in some unlawfully present aliens inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers w ho enacted laws expressly restricting access to taxpayer funded benefits and state identification; and
WHEREAS, allowing more than an estimated 80,000 Deferred Action recipients improper access to state or local public benefits, including state issued identification, by presenting a USCIS employment authorization document that does not evidence lawful, authorized status or presence will have significant and lasting impacts on the Arizona budget, its health care system and additional public benefits that A rizona taxpayers fund.
NOW THEREFORE, I, Janice K. Brewer, Governor of the State of Arizona, by virtue of the authority vested in me by the Constitution and laws ofthe State of Arizona, do hereby order and direct as follows:
1. The issuance of Deferred Action or Deferred Action USCIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit.
2. State agencies that provide public benefits, as defmed in 8 United States Code § 1621 shall conduct a full statutory, rule-making and policy analysis and, to the extent not prohibited by state or federal law, initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver's license, so that the intent of Arizona voters and lawmakers who enacted laws expressly restricting access to taxpayer funded benefits and state identification are enforced.

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 31 of 36
Executive Order 201 2-06 Page 2 of2
3. All state agencies that confer taxpayer-funded public benefits and state issued identification shall undergo emergency rule making to address this issue if necessary. IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Arizona.
GOVERNOR DONE at the Capitol in Phoenix on th is l51h day of August in the Year Two Thousand Twelve and of the Independence of the United States of America the Two Hundred and ThirtySeventh .
ATTEST: ~
SECRETARY OF STATE

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 32 of 36
EXHIBIT2

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 33 of 36

~
/.\DOT

Motor Vehicle Mail Drop 530M Division PO Box 2100
Phoenix AZ 85001

POLICY
16.1.4

ESTABLISHING AUTHORIZED PRESENCE

Summary of Changes

Policy Sections A, B, 0 and S were revised.

Purpose

To provide guidelines for the Customer Service Representative (CSR) to use when establishing authorized presence and, when applicable, issuing a Type F (limited) license.

Policy

to A. Arizo#a Revised Statut~s (A~R.S.) § 28-3 I53(D) provid~~thai the Motor Vehj~Je Division {MVD) shal}l1otissue or renew a driv~flice~se or nonojieratirig identificatioriJ iCense for a

pefso&who de>es riot submit p[qof s~tisfrictoryto MVD that thei applicant' s pre.~~nce in the

UI.lited. St~tes \is authorized· under federal law. MVD is required to .detennirie that each

~ppJic~t1tmeetsthe requirement~ Ofthe Ja~. .

. .... ...

. . ·.·.·.· .·. . . . .

.

B. MVP feserves the right t o r~view, consider and request additional infonnation and
d()cl1meritation in making determimitions regal'd1ijg authorized presence;

C. The CSR shall ensure that the customer meets authorized presence requirements (when applicable) and that the documentation presented is genuine and in proper form .

D. The customer must present proof ofauthorized presence when applying for: • An original Arizona license
• The renewal ofa limited Arizona license • The renewal of an extended Arizona license when there is no database record showing
the customer's previous establishment of authorized presence • The reinstatement of any license

Exception:

An individual who wishes to reinstate his or her driving privilege only (person is not applying for an Arizona license, either original or renewal) is not required to provide proof of authorized presence and would pay reinstatement fees only.

E. A database record of an extended Arizona driver license, commercial driver license, identification license, or instruction pennit is acceptable proof of authorized presence.

F. Authorized presence requirements tlo not apply to the following transactions: • Requests for a duplicate or update of any license, regardless ofthe license issue date • Renewal of an extended license, under the circumstances provided in Section D, above • Title and/or registration transactions

G. To prove authorized presence, the customer must present at least one primary form of identification, see Policy 16.1.2 Acceptable Documentation. All documents must be in

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 34 of 36
ESTABLISHING AUTHORIZED PRESENCE Page 2 of4
English and either an original or copy certified by the issuing agency. Depending on the primary form of identification presented, additional documentation may be required.
H. A foreign passport (must be accompanied by a valid I-94 or an admissions stamp), Canadian driver license or Canadian birth certificate may be accepted as proof of the customer's authorized presence in the U.S. However, any other document issued by a foreign government (or agency) shall not be accepted for the purpose of proving authorized presence.
I. A limited (Type F) license is issued to a customer who is applying for an identification license or Class D, G, or M driver license (or instruction permit) and whose period of authorized presence is for a limited period of time; as determined by the primary form of identification and any supporting documentation that is presented at the time of application, see the Authorized Presence Document/License Expiration Date Chart and/or Customer Characteristics-USCIS Class Matrix.
J. Prior to the issuance of a Type F license, the customer must meet all applicable eligibility and identity requirements, see the appropriate Driver and Identification License Issuance Screening policies.
K. Pursuant to A.R.S. § 28-3002, a customer requesting an original (or renewing a) license must pay the applicable license fee, see Policy 16.1.6 Driver and Identification License Fees.
L. Prior to the issuance of the Type F license, Customer Service supervisors or their designees shall verify and approve the customer's documentation. This includes documentation for Type F customers that present a verifiable Social Security Number/Card with their foreign documents. The CSR shall photocopy all approved source documents presented for the purpose of establishing name, date of birth, and authorized presence. The photocopied source documents, once processed (reviewed, verified, and accepted), are filmed to serve as evidence of the public filing of the licensing transaction, see Policy 5.1 .3 Film Imaging Preparation 1. This does not apply to Type F duplicates/updates that do not require proof of authorized presence. 2. The Technical Support Unit cannot verify or approve authorized presence documentation, or issue a Type F license. 3. Authorized Third Party Providers are not authorized to issue Type F licenses.
M. The Type F license expiration date shall coincide with the customer's assigned authorized presence expiration date (as shown on the primary form of identification or supporting documentation (e.g., I-20, I-797, DS-2019, etc.), unless an indefinite status or duration of status (DIS) has been granted.
Note: To determine the license expiration date when the authorized presence documentation does not display a specific expiration date or simply states DI S, see the Authorized Presence Document/License Expiration Date Chart and/or Customer Characteristics-USCIS Class MatTix.
N. Prior to the Customer Service supervisor or their designees issuing the Type F license (delivering to camera), the CSR shall enter the applicable Customer Characteristic onto the Customer Record. Once added to the Customer Record the characteristic remains valid until expired. Customer Service supervisors and their designees are authorized to delete a

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 35 of 36

ESTABLISHING AUTHORIZED PRESENCE Page 3 of4
characteristic that was entered in error. When a characteristic cannot be deleted, the supervisor or designee will "expire" the characteristic and enter an explanation in the Customer Characteristic transaction comment section.
0. Except as provided in Section S, upon application for a Type F license, a customer who presents a USCIS Employment Authorization Card (I-688B or 1-766) must also provide his or her Social Security Number (SSN), see Policy 2.1.8 Social Security Online Verification CSSOLV). The Customer Characteristics-Users Class Matrix provides information on additional Type F customers required to provide aSSN.
P. A Type F licensee, who is requesting that the name on his or her license be changed, must first change his or her name with the Social Security Administration, as applicable, before applying for the new license, see Policy 16.1.3 Establishing Name and Date ofBirth.
Q. Pursuant to A.R.S. § 28-3153, the CSR may issue a temporary Type F license (Class D, G, or M) pending verification of the customer's lawful presence in the U.S. To be eligible, the customer must submit a valid Notice of Action, form I-797, or other acceptable immigration or citizenship document and a fee of$10. The temporary license: • Is a hard copy license • Is valid for a maximum duration of 1 year at a time

Exception:

With the approval of the Director's designee, alternative methods of status verification, including consultation with users, may be used to issue a temporary Type F license.

R. USCIS may assign a classification or status that prohibits the issuance of an Arizona license, see the Customer Characteristics-USClS Class Matrix for information in regards to the various USCIS classification statuses and the Division's established expiration dates. A
' customer whose authorized presence document indicates any one of the following USCIS classification statuses is not eligible for any class or type Arizona license: • C-1 Alien in transit directly through U.S. • C-1 D Combined Transit and Crewman VISA • C-2 Alien in transit to UN headquarters • C-3 Foreign government official, members of immediate family, attendant, servant, or personal employee in transit • D-1 Crewmember departing on same vessel of arrival • D-2 Crewmember departing by means other than vessel ofarrival

a. users s . A customer presenting

gQY1JQYm:~llt )}~thorization Document (I~688A, I-688B, I-

766)resulting from a Deferfe-~fAction Childhoodj\rri\,-al is not acceptable.

T. The Division will not issue a license or permit (extended, limited, or temporary) when the customer presents documentation (may include a license) that does not appear to be legitimate or acceptable. CSRs, Customer Service supervisors, or designees shall follow the instructions provided in Policy 18.2.6 Suspected Fraudulent Identitv and/or Documentation when they suspect that the customer may not be the person identified by the documentation or the documentation does not appear to be legitimate.

Case 2:12-cv-02546-DGC Document 173 Filed 09/17/13 Page 36 of 36
ESTABLISHJNG AUTHORIZED PRESENCE Page 4 of4 U . The U.S. Department of State Diplomatic Motor Vehicles Division has the sole authority to
issue driver licenses, vehicle registrations, and titles for foreign missions and foreign mission members. States may not issue, and foreign mission or mission members may not legally apply for or receive a state driver license, motor vehicle title, registration and license plate in violation of limitations and conditions imposed by the Department of State, (this does not include Honorary Consuls). Visit the Department of State's Diplomatic Motor Vehicles Division website at "~<VWW.state.gov/ofm/dmv/.
Division Director
Authority: USC 8, A.R.S. §§ 28-3002, 28-3153, 28-3157, 28-3158, 28-3164, 28-3165, R17-4409 and Executive Order 2012-06 Procedure/Steps: Screening, Customer Characteristics, Customer Characteristics (MDCHAR)

 
 Case 2:12-cv-02546-DGC Document 295 Filed 12/18/14 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Arizona Dream Act Coalition, et al.,

No. CV-12-02546-PHX-DGC

10

Plaintiffs,

PRELIMINARY INJUNCTION

11 v.

12 Janice K. Brewer, et al.,

13

Defendants.

14

In response to Plaintiffs’ motion for a preliminary injunction, the Court entered an

15 order finding that Plaintiffs were likely to succeed on the merits of their equal protection

16 claim, but also finding that Plaintiffs had not shown a likelihood of irreparable harm.

17 Doc. 114. The Ninth Circuit Court of Appeals reversed and ordered the Court to enter

18 the preliminary injunction. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir.

19 2014). The Ninth Circuit’s mandate has now been received by the Court. Doc. 294.

20

The Court accordingly holds that Plaintiffs are likely to succeed on the merits of

21 their claim that Defendants’ policy and practice of denying driver’s licenses and state

22 identification cards to Deferred Action for Childhood Arrivals (“DACA”) recipients

23 violates the Equal Protection Clause of the Fourteenth Amendment to the United States

24 Constitution. Plaintiffs have also shown that they likely will suffer irreparable harm in

25 the absence of preliminary relief, that the balance of equities tips in their favor, and that a

26 preliminary injunction is in the public interest. Waiver of the bond requirement is

27 appropriate because Plaintiffs are suing to vindicate constitutional rights under 42 U.S.C.

28 § 1983 and because of Plaintiffs’ limited resources.

Case 2:12-cv-02546-DGC Document 295 Filed 12/18/14 Page 2 of 2

1

IT IS ORDERED:

2

1. Plaintiffs’ motion for a preliminary injunction (Doc. 29) is granted.

3

2. Until further order of this Court, Defendants and their officials, agents, and

4

employees, and all persons acting in concert or participating with them, are

5

enjoined from enforcing any policy or practice by which the Arizona

6

Department of Transportation refuses to accept Employment Authorization

7

Documents, issued under DACA, as proof that the document holders are

8

authorized under federal law to be present in the United States for purposes

9

of obtaining a driver’s license or state identification card.1

10

3. To enable Defendants time to provide the necessary communications to

11

their officers and employees, this order shall become effective on

12

December 22, 2014.

13

Entered this 18th day of December, 2015.

14

15

16

17

18

19

1 The parties disagree on whether the Court should enter an injunction that applies

20

to all DACA recipients, as opposed to applying merely to the named plaintiffs in this action. Docs. 288, 290. The Ninth Circuit has held that a preliminary injunction should

21

be limited to individual plaintiffs unless the court has certified a class. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1985). The Ninth Circuit has also held, however, that an

22

injunction is not overbroad because it extends benefits to persons other than those before the Court – even if this is not a class action – “if such breadth is necessary to give

23

prevailing parties the relief to which they are entitled.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996). Because Plaintiff Dream Act

24

Coalition seeks relief on behalf of its members, the Court concludes that the preliminary injunction should apply to all DACA recipients. Requiring state officials at driver’s

25

license windows to distinguish between DACA recipients who are members of the Coalition and those who are not is impractical, and granting an injunction only with

26

respect to the named plaintiffs would not grant the Coalition the relief it seeks on behalf of its members. In addition, the instruction from the Ninth Circuit in this case is to

27

“prohibit[] Defendants from enforcing any policy by which the Arizona Department of Transportation refuses to accept Plaintiffs’ Employment Authorization Documents,

28

issued to Plaintiffs under DACA[.].” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (emphasis added). This preliminary injunction prohibits

enforcement of the policy.

- 2 -

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Arizona Dream Act Coalition; Jesus CastroMartinez; Christian Jacobo; Alejandro Lopez;
10 Ariel Martinez; Natalia Perez-Gallagos; Carla 11 Chavarria; and Jose Ricardo Hinojos,

No. CV12-02546 PHX DGC

12 13 v.

Plaintiffs,

ORDER AND PERMANENT INJUUNCTION

14 Janice K. Brewer, Governor of the State of
15 Arizona, in her official capacity; John S.
16 Halikowski, Director of the Arizona Department of Transportation, in his official capacity; and
17 Stacey K. Stanton, Assistant Director of the Motor
18 Vehicle Division of the Arizona Department of Transportation, in her official capacity,
19

20

Defendants.

21

This case concerns the constitutionality of the State of Arizona’s denial of driver’s

22 licenses to persons commonly known as “DREAMers.”1 On June 15, 2012, the Secretary

23 of the Department of Homeland Security (“DHS”) announced the Deferred Action for

24 Childhood Arrivals (“DACA”) program, which provides deferred action for a period of

25

26

1 Plaintiffs generally refer to themselves as “DREAMers” based on proposed federal legislation known as the Development, Relief, and Education for Alien Minors

27

Act (the “DREAM Act”). Doc. 1, ¶ 2. The DREAM Act would grant legal status to certain undocumented young adults. Congress has considered the DREAM Act several

28

times, but no version has been enacted. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011); DREAM Act of 2010, H.R. 6497, S. 3962, S. 3963, 111th

Cong. (2010); DREAM Act of 2007, S. 774, 110th Cong. (2007).

1 two years to certain eligible DREAMers (referred to here as “DACA recipients”).

2 Deferred action constitutes a discretionary decision by law enforcement authorities to

3 defer legal action that would remove an individual from the country. The DACA

4 program provides that DACA recipients may work during the period of deferred action

5 and may obtain employment authorization documents, generally known as “EADs,” from

6 the United States Citizenship and Immigration Services (“USCIS”).

7

Under Arizona law, the Arizona Department of Transportation (“ADOT”) “shall

8 not issue to or renew a driver license . . . for a person who does not submit proof

9 satisfactory to the department that the applicant’s presence in the United States is

10 authorized under federal law.” A.R.S. § 28-3153(D). Before the announcement of the

11 DACA program, the Motor Vehicle Division (“MVD”) of ADOT accepted all federally-

12 issued EADs as sufficient evidence that a person’s presence in the United States was

13 authorized under federal law, and therefore granted driver’s licenses to these individuals.

14 After announcement of the DACA program, MVD revised its policy to provide that

15 EADs issued to DACA recipients did not constitute sufficient evidence of authorized

16 presence, even though the MVD continued to accept all other EADs, including those

17 issued to persons who had received other forms of deferred action. MVD later revised its

18 policy so that two other categories of deferred action recipients – those with (a)(11) and

19 (c)(14) deferrals – could not use EADs to obtain driver’s licenses.

20

Plaintiffs are the Arizona Dream Act Coalition (the “Coalition”), which is an

21 immigrant youth-led community organization, and six individual DACA recipients. They

22 allege that Defendants’ driver’s license policy violates the Equal Protection Clause of the 23 United States Constitution.2 Plaintiffs sought a preliminary injunction barring

24 Defendants from enforcing their policy. Doc. 29. The Court found that Defendants were

25 likely to succeed on the merits of their equal protection claim, but that they had not

26 shown a likelihood of irreparable harm sufficient to justify preliminary injunctive relief.

27

28

2 Plaintiffs also claim that Defendant’s policy is preempted by federal law. See

Doc. 1. The Court granted Defendants’ motion to dismiss this claim. Doc. 114.

- 2 -

1 Doc. 114. The Ninth Circuit reversed, Arizona Dream Act Coalition v. Brewer, 757 F.3d

2 1053 (9th Cir. 2014) (“ADAC”), and the Court entered a preliminary injunction on

3 remand. Doc. 295.

4

The parties have filed and briefed motions for summary judgment. Docs. 247,

5 251, 259-2, 261, 267-1, 273, 278-1. At the Court’s request, the parties also filed

6 memoranda addressing the effect of ADAC on the merits of this case. Docs. 287, 289.

7 The Court heard oral argument on January 7, 2015. For the reasons that follow, the Court

8 will grant summary judgment to Plaintiffs and enter a permanent injunction.

9

BACKGROUND

10 I. Deferred Action and DACA.

11

The federal government has broad and plenary powers over the subject of

12 immigration and the status of aliens. Arizona v. United States, 132 S. Ct. 2492, 2498

13 (2012); see also U.S. Const. art. I, § 8, cl. 4. Through the Immigration and Nationality

14 Act (“INA”), 8 U.S.C. § 1101, et seq., Congress has created a complex and detailed

15 federal immigration scheme governing the conditions under which foreign nationals may

16 be admitted to and remain in the United States, see, e.g., id. §§ 1181, 1182, 1184, and

17 providing for the removal and deportation of aliens not lawfully admitted to this country,

18 see, e.g., id. §§ 1225, 1227-29, 1231. See generally United States v. Arizona, 703 F.

19 Supp. 2d 980, 987-88 (D. Ariz. 2010) (describing the federal immigration scheme). The

20 INA charges the Secretary of Homeland Security with the administration and

21 enforcement of all laws relating to immigration and naturalization. 8 U.S.C.

22 § 1103(a)(1). Under this delegation of authority, the Secretary may exercise a form of

23 prosecutorial discretion and decide not to pursue the removal of a person unlawfully in

24 the United States. This exercise of prosecutorial discretion is commonly referred to as

25 deferred action. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-

26 84 & n.8 (1999) (recognizing the practice of “deferred action” where the Executive

27 exercises discretion and declines to institute proceedings for deportation).

28

On June 15, 2012, the DHS Secretary issued a memorandum announcing that

- 3 -

1 certain young persons not lawfully present in the United States will be eligible to obtain

2 deferred action if they meet specified criteria under the newly instituted DACA program.

3 Doc. 259-5 at 131-33. Eligible persons must show that they (1) came to the United States

4 under the age of 16; (2) continuously resided in the United States for at least five years

5 preceding the date of the memorandum and were present in the United States on the date

6 of the memorandum; (3) currently attend school, have graduated from high school or

7 obtained a general education development certificate, or have been honorably discharged

8 from the Coast Guard or Armed Forces of the United States; (4) have not been convicted

9 of a felony offense, a significant misdemeanor, multiple misdemeanor offenses, or

10 otherwise pose a threat to national security or public safety; and (5) are not older than 30.

11 See id. at 131-33, 208-13. Eligible persons could receive deferred action for two years,

12 subject to renewal, and could obtain an EAD for the period of the deferred action. Id. at

13 132-33. The DHS memorandum makes clear that it “confers no substantive right,

14 immigration status or pathway to citizenship[,]” and that “[o]nly the Congress, acting

15 through its legislative authority, can confer these rights.” Id. at 133.

16 II. Defendants’ Driver’s License Policy.

17

As noted above, A.R.S. § 28-3153(D) states that non-citizens may obtain Arizona

18 driver’s licenses by presenting proof that their presence in the United States is authorized

19 under federal law. MVD policies identify the documentation deemed sufficient to show

20 federal authorization. See Doc. 259-6 at 13. Before DACA, MVD accepted EADs as

21 satisfactory evidence. Doc. 259-3, ¶ 31; Doc. 267-2, ¶ 31. Between 2005 and 2012,

22 MVD issued tens of thousands of driver’s licenses to persons who submitted EADs to

23 prove their lawful presence in the United States. Doc. 259-6 at 8-11.

24

The announcement of the DACA program prompted ADOT Director John S.

25 Halikowski to review the program’s potential impact on ADOT’s administration of the

26 State’s driver’s license laws. Doc. 248-1 at 48. After Director Halikowski initiated the

27 ADOT policy review, but before the review had been concluded, Governor Brewer issued

28 Executive Order 2012-06 on August 15, 2012 (the “Executive Order”). Doc. 259-5 at

- 4 -

1 231-32. The Executive Order concluded that “issuance of Deferred Action or Deferred

2 Action USCIS employment authorization documents to unlawfully present aliens does

3 not confer upon them any lawful or authorized status and does not entitle them to any

4 additional public benefit.” Id. The Executive Order directed state agencies to “conduct a

5 full statutory, rule-making and policy analysis and . . . initiate operational, policy, rule

6 and statutory changes necessary to prevent Deferred Action recipients from obtaining

7 eligibility, beyond those available to any person regardless of lawful status, for any

8 taxpayer-funded public benefits and state identification, including a driver’s license[.]”

9 Id. On September 17, 2012, ADOT formally revised its policy to conform to the

10 Governor’s order. Id. at 254-57.

11 III. 2013 Revision.

12

After the 2012 revision and during the pendency of this lawsuit, Director

13 Halikowski continued to review ADOT’s driver’s license policy. See Doc. 248, ¶¶ 28-33.

14 He was concerned about possible inconsistencies in ADOT’s treatment of EAD holders.

15 See Doc. 248-1 at 65-67. To resolve these inconsistencies, ADOT developed three

16 criteria for determining which EADs would be deemed sufficient proof that the EAD

17 holder had authorized presence under federal law. Id. Under these criteria, an EAD is

18 sufficient proof of authorized presence if the EAD demonstrates: “(1) that the applicant

19 has formal immigration status, (2) that the applicant is on a path to obtaining a formal

20 immigration status, or (3) that the relief sought or obtained is expressly provided for in

21 the INA.” Doc. 248, ¶ 31 (citing Doc. 248-1 at 67). Applying these criteria, ADOT

22 revised its policy on September 16, 2013. Doc. 172-1 at 3-6. The newly revised policy

23 continued to deny driver’s licenses to DACA recipients, who have EADs with a category

24 code of (c)(33). Id. at 6. The revised policy also refused to accept EADs with a category

25 code of (c)(14), which are issued to recipients of other forms of deferred action, and

26 (a)(11), which are issued to recipients of deferred enforced departure. Id.; see also 8 CFR

27 § 274a.12 (listing category codes of EAD holders). The revised policy continued to

28 accept EADs with other category codes as sufficient proof of authorized presence under

- 5 -

1 federal law. See Doc. 172-1 at 6. Defendants argue that, as revised, the 2013 policy does

2 not violate the Equal Protection Clause. Doc. 247. The Ninth Circuit considered the

3 revised policy and found, at the preliminary injunction stage, a likelihood that the policy

4 violates the Equal Protection Clause. ADAC, 757 F.3d at 1063-67.

5 IV. Present Position of Case.

6

Plaintiffs and Defendants have filed motions for summary judgment. Docs. 247,

7 251. Defendants’ motion rests entirely on their argument that DACA recipients are not

8 similarly situated to other EAD holders who may obtain driver’s licenses under Arizona’s

9 revised policy. Plaintiffs’ motion argues that DACA recipients are similarly situated to

10 other EAD holders who may obtain driver’s licenses. Plaintiffs also argue that although a

11 heightened scrutiny should apply to Arizona’s denial of driver’s licenses to DACA

12 recipients, Defendants’ driver’s license policy fails under any standard of review.

13 Plaintiffs seek summary judgment in their favor and a permanent injunction.

14

The parties filed and briefed these motions before the Ninth Circuit had ruled on

15 Plaintiffs’ motion for a preliminary injunction. Although the Ninth Circuit’s DACA

16 decision does not control the outcome of the motions for summary judgment where new

17 facts or evidence are presented, it does control questions of law:

18

[T]he district court should abide by ‘the general rule’ that our decisions at

19

the preliminary injunction phase do not constitute the law of the case. Any

of our conclusions on pure issues of law, however, are binding. The district

20

court must apply this law to the facts anew with consideration of the

21

evidence presented in the merits phase.

22 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of

23 Agr., 499 F.3d 1108, 1114 (9th Cir. 2007) (citations omitted); see also S. Oregon Barter

24 Fair v. Jackson Cnty., Oregon, 372 F.3d 1128, 1136 (9th Cir. 2004).

25

MOTIONS FOR SUMMARY JUDGMENT

26 I. Plaintiffs Are Similarly Situated.

27

To prevail on their equal protection claim, Plaintiffs “must make a showing that a

28 class that is similarly situated has been treated disparately.” Christian Gospel Church,

- 6 -

1 Inc. v. City and Cnty. of S.F., 896 F.2d 1221, 1225-26 (9th Cir. 1990). “The first step in

2 equal protection analysis is to identify the state’s classification of groups.” Country

3 Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau,

4 847 F.2d 593, 596 (9th Cir. 1988). “The groups must be comprised of similarly situated

5 persons so that the factor motivating the alleged discrimination can be identified.”

6 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2012). The question is not

7 whether DACA recipients are identical in every respect to other noncitizens who are

8 eligible for a driver’s license, but whether they are the same in respects relevant to the

9 driver’s license policy. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal

10 Protection Clause does not forbid classifications. It simply keeps governmental 11 decisionmakers from treating differently persons who are in all relevant respects alike.”).3

12

Defendants’ policy initially prevented only DACA recipients from receiving

13 driver’s licenses. All other holders of EADs, including other deferred action recipients,

14 could use their EADs to obtain licenses. Defendants subsequently amended their policy

15 to bar two additional classes of EAD holders from receiving driver’s licenses – persons in

16 the (c)(14) category who had also received deferred action, albeit for reasons other than

17 the DACA program, and persons in the (a)(11) category who had received deferred

18 enforced departures. See Doc. 172-1 at 6; see also 8 CFR § 274a.12.

19

Defendants argue that DACA recipients are not similarly situated to the remaining

20 EAD holders who are entitled to obtain driver’s licenses because those persons either

21 have lawful status in the United States, are on a path to lawful status, or have EADs that

22

3 Plaintiffs argue that the Equal Protection Clause does not require the Court to 23 find that DACA recipients are similarly situated to other EAD holders who are eligible to

24

receive driver’s licenses. Doc. 261 at 20. It is true that identification of a “similarly situated class” is not always a requirement in Equal Protection cases. For example, in

25

cases challenging statutes on the basis of their discriminatory purpose the Supreme Court has not discussed the “similarly situated” requirement. See, e.g., Pers. Adm’r of Mass. v.

26

Feeney, 442 U.S. 256 (1979); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); see also Giovanna Shay, Similarly Situated, 18 Geo. Mason L. Rev.

27

581, 598 (2011) (noting that the ‘similarly situated’ requirement “has never been viewed by the U.S. Supreme Court as a threshold hurdle to obtaining equal protection review on

28

the merits”). The Court need not decide whether these cases control Plaintiffs’ challenge, however, because the Court finds that DACA recipients are similarly situated to other

EAD holders who are eligible to receive driver’s licenses.

- 7 -

1 are tied to relief provided under the INA. Doc. 247 at 10-14. Defendants also argue that

2 DACA recipients are not similarly situated because their authorization to stay – unlike

3 the authorization of other EAD holders who may obtain a driver’s license – is the result

4 of prosecutorial discretion. Id.

5

The Court does not agree. DACA recipients have been authorized by the federal

6 government to remain in the United States for two years and have been granted the right

7 to work through the issuance of EADs. Other noncitizens are in similar positions. For

8 example, applicants for adjustment of status receive a (c)(9) code and applicants for

9 suspension of deportation and cancellation of removal receive a (c)(10) code. 8 C.F.R.

10 §§ 274a.12(c)(9)-(10). These persons have not been granted citizenship or lawful

11 residence, but they have been permitted to remain and work in the United States while

12 their applications are considered. These individuals may present their EADs to ADOT

13 and obtain driver’s licenses, while DACA recipients cannot. It is not a material

14 difference that DACA recipients receive their authorization from an act of prosecutorial

15 discretion and other EAD holders receive their authorization through a statutory

16 provision. The fact remains that they all receive a form of authorization, and documents

17 entitling them to work, from the federal government.

18

The Ninth Circuit provided this explanation about (c)(9) and (c)(10) recipients,

19 with which the Court agrees:

20

DACA recipients are similarly situated to other categories of noncitizens

21

who may use [EADs] to obtain driver’s licenses in Arizona. Even under

Defendants’ revised policy, Arizona issues driver’s licenses to noncitizens

22

holding [EADs] with category codes (c)(9) and (c)(10). These (c)(9) and

23

(c)(10) [EADs] are issued to noncitizens who have applied for adjustment

of status and cancellation of removal, respectively. See 8 C.F.R.

24

§ 274a.12(c)(9)-(10). . . .

25 Defendants look to the statutory and regulatory availability of immigration

26

relief for the (c)(9) and (c)(10) groups as a point of distinction. But

27

individuals with (c)(10) employment authorization, for example, are not in

the United States pursuant to any statutory provision while their

28

applications are pending. With regard to adjustment of status, we have

- 8 -

1

noted that “the submission of an application does not connote that the

2

alien’s immigration status has changed, as the very real possibility exists

that the INS will deny the alien’s application altogether.” Vasquez de

3

Alcantar v. Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (quoting United

4

States v. Elrawy, 448 F.3d 309, 313 (5th Cir. 2006)).

5

In sum, like DACA recipients, many noncitizens who have applied for

6

adjustment of status and cancellation of removal possess no formal lawful immigration status, and may never obtain any. See Guevara v. Holder, 649

7

F.3d 1086, 1095 (9th Cir. 2011). Like DACA recipients, noncitizens who

have applied for adjustment of status and cancellation of removal often

8

have little hope of obtaining formal immigration status in the foreseeable

9

future. Indeed, those with (c)(10) documents are already in removal

proceedings, while many DACA recipients are not – suggesting that

10

individuals in the (c)(10) category are more, not less, likely to be removed

11

in the near future than are DACA recipients. In the relevant respects, then,

noncitizens with (c)(9) and (c)(10) employment authorization documents

12

are similarly situated to DACA recipients.

13 Unlike DACA recipients, however, noncitizens holding (c)(9) and (c)(10)

14

[EADs] may use those documents when applying for Arizona driver’s

15

licenses to prove — to the satisfaction of the Arizona Department of

Transportation — that their presence in the United States is authorized

16

under federal law. As the district court found, these two groups of

17

noncitizens account for more than sixty-six percent of applicants who obtained Arizona driver’s licenses using [EADs] during the past seven

18

years. Although DACA recipients are similarly situated to noncitizens

19

holding (c)(9) and (c)(10) [EADs], they have been treated disparately.

20 ADAC, 757 F.3d at 1064.4

21

Other categories of noncitizens who receive driver’s licenses under Defendants’

22 current policy are also similarly situated to DACA recipients. For example, individuals

23 who receive a discretionary grant of parole are authorized to be present in the United

24 States and are eligible for EADs (coded (c)(11)) although they lack formal immigration

25 status, are not necessarily eligible for obtaining such a status, and are not even considered

26

4 Defendants argue that the Ninth Circuit’s decision is not binding at this summary 27 judgment stage. Defendants also argue, however, that Plaintiffs’ “similarly situated”

28

claim “fails as a matter of law.” Doc. 273 at 11; see also Doc. 269 at 2. Defendants thus concede that the “similarly situated” issue in this case is a question of law, on which the

Ninth Circuit’s decision does control. Ranchers Cattlemen, 499 F.3d at 1114.

- 9 -

1 admitted. See 8 U.S.C. § 1182(d)(5)(A). Parolees lack any avenue for obtaining lawful

2 immigration status, and yet they may obtain an Arizona driver’s license on the basis of 3 their EADs.5

4

Defendants argue that DACA recipients are still in the country illegally because

5 the Secretary of DHS lacked the authority to grant them deferred status. Doc. 247 at 12-

6 14. Defendants rely on a district court decision in Crane v. Napolitano, No. 3:12-cv-

7 03247-O, 2013 WL 1744422 (N.D. Tex. Apr. 23, 2013). In Crane, immigration

8 enforcement agents argued that the DACA program forced them to violate 8 U.S.C.

9 § 1225, which requires immigration officers to initiate removal proceedings when they

10 determine that “an alien seeking admission is not clearly and beyond a doubt entitled to

11 be admitted.” Id. at *5. In response to the plaintiffs’ motion for a preliminary injunction,

12 the district court addressed whether the plaintiffs were likely to succeed on the merits of

13 their claim that the DACA program conflicts with § 1225 by forbidding immigration

14 officers from initiating removal proceedings against certain unauthorized aliens. Id. at

15 *13. Although the district court found that the plaintiffs were likely to succeed on this

16 claim, it did not grant a preliminary injunction because of concerns over whether it had

17 subject matter jurisdiction. Id. at *19. After additional briefing, the court dismissed the

18 case for lack of subject-matter jurisdiction. See Crane v. Napolitano, No. 3:12-CV-

19 03247-O, 2013 WL 8211660 (N.D. Tex. July 31, 2013).

20

Crane did not hold the DACA program invalid. It concluded that the plaintiffs

21 were likely to succeed on the merits of their DACA-related arguments, but then found

22 that it lacked subject matter jurisdiction to address the issue at all. Crane is less than

23 dictum from a fellow district court – it is a preliminary conclusion from a court that

24

5 The relevant statute on the status of parolees provides: “The Attorney General 25 may, . . . in his discretion parole into the United States temporarily under such conditions

26

as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such

27

parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall . . . have been served the alien shall forthwith return or be

28

returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the

United States.” 8 U.S.C. § 1182(d)(5)(A).

- 10 -

1 lacked subject matter jurisdiction to reach even a preliminary conclusion. Furthermore,

2 Crane’s holding was limited to a finding that the DHS lacked the “discretion to refuse to

3 initiate removal proceedings when the requirements of Section 1225(b)(2)(A) are

4 satisfied.” Crane, 2013 WL 1744422, at *13. Defendants do not address whether the

5 requirements of that section are satisfied by any Plaintiffs in this case. Finally, although

6 Crane preliminarily concluded that DHS was required to initiate removal proceedings

7 against DACA recipients, it also expressly noted that DHS could then exercise its

8 discretion to terminate the proceedings and permit the unauthorized aliens to remain in

9 the United States. See id. at *24.

10

Other authorities have recognized that noncitizens on deferred action status are

11 lawfully permitted to remain in the United States. See, e.g., Ga. Latino Alliance for

12 Human Rights v. Governor of Ga., 691 F.3d 1250, 1258-59 (11th Cir. 2012) (a noncitizen

13 “currently classified under ‘deferred action’ status . . . remains permissibly in the United

14 States”); In re Pena-Diaz, 20 I.&N. Dec. 841, 846 (B.I.A. 1994) (deferred action status

15 “affirmatively permit[s] the alien to remain”); 8 C.F.R. § 1.3(a)(4)(vi) (persons “currently

16 in deferred action status” are “permitted to remain in” and are “lawfully present in the

17 United States”).

18

The Court concludes that DACA recipients are similarly situated in all relevant

19 respects to noncitizens who are permitted by the State to obtain driver’s licenses on the

20 basis of EADs. DACA recipients are treated differently for purposes of equal protection.

21 II. Level of Scrutiny.

22

Although it implied that strict scrutiny should apply (757 F.3d at 1065 n.4), the

23 Ninth Circuit in ADAC elected not to address the level of scrutiny applicable to

24 Defendants’ driver’s license policy: “we need not decide what standard of scrutiny

25 applies to Defendants’ policy: as the district court concluded, Defendants’ policy is likely

26 to fail even rational basis review.” ADAC, 757 F.3d at 1065 (citation omitted). The

27 Ninth Circuit went on to assess whether “Defendants’ disparate treatment of DACA

28 recipients [was] ‘rationally related to a legitimate state interest.’” Id. (citation omitted).

- 11 -

1 The Ninth Circuit did not state that it was applying a more rigorous form of rational basis

2 of review, as had this Court in its preliminary injunction decision. See Doc. 114 at 24-27.

3

The Ninth Circuit examined each of the justifications proffered by Defendants in

4 support of their policy, considered whether the justifications were supported by evidence

5 or consistent with Defendants’ other actions, and found “no legitimate state interest that

6 is rationally related to Defendants’ decision to treat DACA recipients disparately from

7 noncitizens holding (c)(9) and (c)(10) [EADs].” 757 F.3d at 1065-67. This form of

8 rational basis review appears to be more rigorous than the traditional approach, under

9 which “a classification . . . is accorded a strong presumption of validity. . . . [A]

10 classification ‘must be upheld against equal protection challenge if there is any

11 reasonably conceivable state of facts that could provide a rational basis for the

12 classification.’” Heller v. Doe, 509 U.S. 312, 319-20 (1993) (emphasis added; citations

13 omitted). Because the rigorousness of equal protection review is a question of law, the

14 Court feels bound to apply the form of rational basis scrutiny applied in ADAC. See 15 Ranchers Cattlemen, 499 F.3d at 1114.6

16 III. Application.

17

Defendants rely on four rational bases for their policy: (1) DACA recipients may

18 not have authorized presence under federal law, and ADOT therefore could face liability

19 for issuing up to 80,000 driver’s licenses to unauthorized aliens or for not cancelling

20 those licenses quickly enough if the DACA program is subsequently determined to be

21 unlawful; (2) issuing driver’s licenses to DACA recipients could allow those individuals

22

6 In ruling on the preliminary injunction, this Court applied a more rigorous form 23 of rational basis review after concluding that the reason for Defendants’ policy was

24

Governor Brewer’s political disagreement with the Obama Administration’s DACA program. See Doc. 114 at 24-28. Defendants have now presented evidence that the State

25

may have adopted the new policy for a different reason – ADOT’s conclusion that DACA recipients do not have authorized presence under federal law. See Docs. 270-3 at 50;

26

270-4 at 59, 93. Although this evidence might create a question of fact as to why Defendants adopted their policy, that reason appears to be irrelevant under the Ninth

27

Circuit’s rational basis scrutiny. ADAC did not base the rigorousness of its review on Defendants’ reason for adopting the policy. 757 F.3d at 1065. Defendants’ evidence on

28

this issue, therefore, does not preclude summary judgment. See Fed. R. Civ. P. 56(a) (summary judgment is warranted if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law”) (emphasis added).

- 12 -

1 to access federal and state benefits to which they are not entitled; (3) ADOT could be

2 burdened by having to process a large number of driver’s licenses for DACA recipients

3 and then cancel those licenses if DACA were revoked; and (4) if DACA were revoked or

4 if DHS commenced removal proceedings against any DACA recipient, as it could at any

5 time, then the DACA recipient would be subject to immediate deportation or removal and

6 that individual could escape financial responsibility for property damage or personal

7 injury caused in automobile accidents. Doc. 269 at 17-20. The Ninth Circuit considered

8 each of these justifications and found that none of them satisfies rational basis review. 9 757 F.3d at 1066-67.7

10

As their first justification, Defendants argue that they had uncertainty about

11 whether DACA recipients have an authorized presence in the United States under federal

12 law and were concerned that they might face liability if they issued licenses to

13 unauthorized persons. Doc. 269 at 18. In their depositions, however, ADOT Director

14 Halikowski and Assistant Director Stanton could identify no instances where ADOT

15 faced liability for issuing licenses to individuals who lacked authorized presence.

16 Docs. 259-3, ¶¶ 152-53; 270, ¶¶ 152-53. Halikowski provided only one example of

17 potential state liability – when ADOT had improperly issued a driver’s license to a person

18 convicted of driving under the influence of alcohol (Doc. 270, ¶ 152; Doc. 270-4 at 62) –

19 an instance quite unrelated to the prospect of issuing a license to a person presenting a

20 federally-issued EAD as proof of lawful presence under federal law. Stanton could

21 provide no examples. Doc. 259-6 at 298. Thus, the evidence does not support

22 Defendants’ first justification. See ADAC, 757 F.3d at 1066.

23

Second, Defendants express concern that issuing driver’s licenses to DACA

24 recipients could lead to improper access to federal and state benefits. But as the Ninth

25

26

7 Defendants present no new evidence in support of these justifications, arguing

27

instead that a “government actor need not have specific evidence to validate a reasonable concern for the purposes of rational basis analysis.” Doc. 270, ¶ 176; see also id., ¶¶ 152,

28

160-161, 171, 177-78. As noted above, however, the ADAC did not apply this deferential level of review. Because Defendants have presented no new evidence on these

justifications, the decision in ADAC controls. See Ranchers Cattlemen, 499 F.3d at 1114.

- 13 -

1 Circuit recognized, “Defendant Halikowski . . . and Defendant Stanton . . . testified that

2 they had no basis whatsoever for believing that a driver’s license alone could be used to

3 establish eligibility for such benefits. It follows that Defendants have no rational basis

4 for any such belief.” Id. at 1066 (emphasis in original); see also Doc. 259-6 at 262, 302.

5 Furthermore, although Defendants no longer issue driver’s licenses to (a)(11) and (c)(14)

6 EAD holders, they have made no attempt to revoke licenses previously issued to these

7 types of EAD holders. Doc. 259-6 at 283, 316.

8

Third, Defendants assert that because the DACA program might be canceled,

9 ADOT might be burdened by having to process a large number of driver’s licenses for

10 DACA recipients and then cancel those licenses. But the depositions of Halikowski and

11 Stanton show a general lack of knowledge regarding any revocation process. See

12 Doc. 254-2 at 266, 300-01. Also, as the Ninth Circuit recognized, “it is less likely that

13 Arizona will need to revoke DACA recipients’ driver’s licenses, compared to driver’s

14 licenses issued to noncitizens holding (c)(9) and (c)(10) [EADs]. While Defendants’

15 concern for DACA’s longevity is purely speculative, applications for adjustment of status

16 or cancellation of removal are routinely denied.” ADAC, 757 F.3d at 1066-67 (emphasis

17 in original).

18

Fourth, Defendants argue that DACA recipients may have their status revoked at

19 any time and may be removed quickly from the country, leaving those they have injured

20 in accidents with no financial recourse. The Ninth Circuit responded:

21

Here too, however, Defendants’ professed concern applies with equal force

to noncitizens holding (c)(9) and (c)(10) [EADs]. Noncitizens who have

22

applied for adjustment of status or cancellation of removal may find their

applications denied at any time, and thereafter may be quickly removed

23

from the United States, leaving those they may have injured in automobile

accidents with no financial recourse. Nevertheless, Defendants’ policy

24

allows noncitizens holding (c)(9) and (c)(10) [EADs] to obtain driver’s

licenses, while prohibiting DACA recipients from doing the same.

25

26 ADAC, 757 F.3d at 1067. If Defendants were genuinely concerned about persons being

27 removed from the country and leaving those injured in accidents without financial

28 recourse, they would not allow (c)(9) and (c)(10) EAD holders to obtain driver’s licenses.

- 14 -

1

Although not directly argued, Defendants have suggested two additional rational

2 bases for their policy. Defendants argue that their concern about “consistent application

3 of ADOT policy” provides a rational basis. See Docs. 269 at 19-20; 270, ¶ 151. They

4 point to ADOT’s three criteria for determining whether an EAD is sufficient proof of

5 authorized presence – criteria that supposedly treat equally those who have formal

6 immigration status, are on a path to obtaining formal immigration status, or who receive

7 relief expressly provided for in the INA. Doc. 248, ¶ 31. But the same policy grants

8 driver’s licenses to (c)(9) and (c)(10) applicants even though they do not appear to satisfy

9 these requirements. As the Ninth Circuit noted in ADAC, “we are unconvinced that

10 Defendants have defined a ‘path to lawful status’ in any meaningful way. After all,

11 noncitizens’ applications for adjustment of status or cancellation of removal [(c)(9) and

12 (c)(10) holders] are often denied, so the supposed ‘path’ may lead to a dead end.” 757

13 F.3d at 1065.

14

Defendants also argue that their driver’s license policy is “rationally related to

15 ADOT’s statutory obligation in administering A.R.S. § 28-3153(D).” Doc. 269 at 17.

16 But as noted above, Defendants’ granting of driver’s licenses to (c)(9) and (c)(10)

17 applicants who present EADs does not appear to be more consistent with § 28-3153(D) –

18 which requires that the applicant’s presence be authorized by federal law – than granting

19 of licenses to similarly situated DACA recipients who presents EADs.

20

In summary, the Court concludes that Defendants’ distinction between DACA

21 recipients and other EAD holders does not satisfy rational basis review. While

22 Defendants have articulated concerns that may be legitimate state interests, they have not

23 shown that the exclusion of DACA recipients is rationally related to those interests. The

24 Court is not saying that the Constitution requires the State of Arizona to grant driver’s

25 licenses to all noncitizens. But if the State chooses to confer licenses on some individuals

26 who have been temporarily authorized to stay by the federal government, it may not deny

27 them to similarly situated individuals without a rational basis for the distinction.

28

- 15 -

1

REQUEST FOR A PERMANENT INJUNCTION

2 I. Legal Standard.

3

An injunction is “an extraordinary remedy never awarded as of right.” Winter v.

4 Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a

5 permanent injunction must show “(1) that it has suffered an irreparable injury; (2) that

6 remedies available at law, such as monetary damages, are inadequate to compensate for

7 that injury; (3) that, considering the balance of hardships between the plaintiff and

8 defendant, a remedy in equity is warranted; and (4) that the public interest would not be

9 disserved by a permanent injunction.” eBay Inc. v. MercExchange, LLC., 547 U.S. 388,

10 391 (2006). “While ‘[t]he decision to grant or deny permanent injunctive relief is an act

11 of equitable discretion by the district court,’ the ‘traditional principles of equity’ demand

12 a fair weighing of the factors listed above, taking into account the unique circumstances

13 of each case.” La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 880

14 (9th Cir. 2014) (quoting eBay, 547 U.S. at 391, 394).

15 II. Irreparable Harm and Adequacy of Legal Remedies.

16

A. Harm to Individual Plaintiffs.

17

The Ninth Circuit found that the individual Plaintiffs are suffering irreparable

18 harm as a result of Defendants’ policy:

19

Plaintiffs in this case have produced ample evidence that Defendants’

policy causes them to suffer irreparable harm. In particular, Plaintiffs’

20

inability to obtain driver’s licenses likely causes them irreparable harm by

limiting their professional opportunities. Plaintiffs’ ability to drive is

21

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’

22

inability to obtain driver’s licenses has hurt their ability to advance their

careers. Plaintiffs’ lack of driver’s licenses has prevented them from

23

applying for desirable entry-level jobs, and from remaining in good jobs

where they faced possible promotion. Likewise, one Plaintiff – who owns

24

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

25

licenses has, in short, diminished their opportunity to pursue their chosen

professions. This “loss of opportunity to pursue [Plaintiffs’] chosen

26

profession[s]” constitutes irreparable harm.

27 ADAC, 757 F.3d at 1068.

28

In their summary judgment briefing, Plaintiffs have presented uncontradicted

- 16 -

1 evidence that their inability to obtain a driver’s license has caused a “loss of opportunity

2 to pursue [their] chosen profession.” Id. One Plaintiff is a self-employed graphic

3 designer. Doc. 259-6 at 333. Because she is unable to obtain a driver’s license, she relies

4 on public transportation. Doc. 259-7 at 421. Using public transportation instead of a car

5 causes her to spend roughly the same amount of time working on her clients’ projects as

6 she does travelling to meet those clients. Doc. 259-6 at 334. Plaintiff’s inability to drive

7 has forced her to decline work from clients. Id. at 342-45; Doc. 259-7 at 423. Another

8 Plaintiff is interested in becoming an Emergency Medical Technician. Doc. 259-7 at 34.

9 He has been unable to pursue this career because the local fire department requires a

10 driver’s license for employment. Id. at 35. A third Plaintiff turned down a job

11 opportunity partly because she was unable to drive with a driver’s license. Id. at 155-56.

12 Other Plaintiffs have been unable to pursue new jobs or develop business opportunities

13 because of their inability to drive. See, e.g., Doc. 259-3, ¶¶ 264-77.

14

The Court finds that the denial of driver’s licenses has caused Plaintiffs irreparable

15 harm. Although Defendants dispute the extent and details of Plaintiffs’ harm (Doc. 269

16 at 25-31), they have not shown that there is a genuine issue as to whether the individual

17 Plaintiffs have lost employment opportunities. The Court finds that monetary damages

18 cannot fully compensate Plaintiffs for their harm and that legal remedies are inadequate.

19 See Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 840 F.2d 701, 709 (9th Cir. 1988)

20 (finding that an alternate job that did not use plaintiff’s “skills, training or experience

21 [was a] non-monetary deprivation” and a “substantial injury”).

22

B. Harm to Coalition Members.

23

The Arizona Dream Act Coalition has brought suit both on its own behalf and on

24 behalf of its members. Doc. 173, ¶ 18. The Coalition claims that Defendants’ policy has

25 irreparably harmed its members by depriving them of employment opportunities. Doc.

26 259-2 at 37-38. The Court agrees. One Coalition member currently works in a

27 temporary position. Doc. 259-7 at 3. She has been unable to acquire a permanent

28 position at her place of work because such a position requires a driver’s license. Id.

- 17 -

1 Another member works as a nutritionist, although she has been trained as a diet

2 technician. Id. at 199-202, 225-26. She was not able to pursue a job opportunity as a diet

3 technician because her employer required that she have a driver’s license. Id. at 236-37.

4 As with the individual plaintiffs, the Coalition has shown that Defendants’ policy has

5 caused its members to lose opportunities to pursue their chosen professions. The Court

6 finds this to be an irreparable harm that is not compensable by legal remedies. ADAC, 7 757 F.3d at 1068.8

8 III. Balance of Hardships and the Public Interest.

9

In deciding whether to grant a permanent injunction, “courts must balance the

10 competing claims of injury and must consider the effect on each party of the granting or

11 withholding of the requested relief. . . [and] should pay particular regard for the public

12 consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at

13 24 (quotation marks and citations omitted); see Amoco Prod. Co. v. Vill. of Gambell,

14 Alaska, 480 U.S. 531, 546 n.12 (1987) (finding that the standards for a permanent

15 injunction are “essentially the same” as for a preliminary injunction). Addressing these

16 factors, the Ninth Circuit held:

17

[B]y establishing a likelihood that Defendants’ policy violates the U.S.

18

Constitution, Plaintiffs have also established that both the public interest

and the balance of the equities favor a preliminary injunction. It is clear

19

that it would not be equitable or in the public’s interest to allow the state to

20

violate the requirements of federal law, especially when there are no

adequate remedies available. On the contrary, the public interest and the

21

balance of the equities favor prevent[ing] the violation of a party’s

22

constitutional rights.

23 ADAC, 757 F.3d at 1069 (quotation marks and citations omitted).

24

The Court agrees. The government “cannot suffer harm from an injunction that

25 merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.

26

27

8 Because of this conclusion, the Court finds it unnecessary to address whether the

28

Coalition as an organization has suffered irreparable harm to its organizational mission. See Doc. 259-2 at 38 (citing Valle del Sol v. Whiting, 732 F.3d 1006, 1029 (9th Cir.

2013)).

- 18 -

1 2013). And the public has little interest in Defendants’ continuing a policy that violates

2 the Equal Protection Clause.

3 IV. Scope of Injunction.

4

The parties disagree on whether the Court should enter an injunction that applies

5 to all DACA recipients, as opposed to applying merely to the named plaintiffs in this

6 action. Docs. 288, 290. The Ninth Circuit has held that an injunction should be limited

7 to the named plaintiffs unless the court has certified a class. Zepeda v. I.N.S., 753 F.2d

8 719, 727-28 & n.1 (9th Cir. 1983). The Ninth Circuit has also held, however, that an

9 injunction is not overbroad because it extends benefits to persons other than those before

10 the Court “if such breadth is necessary to give prevailing parties the relief to which they

11 are entitled.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th

12 Cir. 1996) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)). Because

13 the Coalition seeks relief on behalf of its members, the Court concludes that the

14 permanent injunction should apply to all DACA recipients. Requiring state officials at

15 driver’s license windows to distinguish between DACA recipients who are members of

16 the Coalition and those who are not is impractical, and granting an injunction only with

17 respect to the named plaintiffs would not grant the Coalition the relief it seeks on behalf

18 of its members.

19

IT IS ORDERED:

20

1. Plaintiffs’ motion for summary judgment and a permanent injunction

21

(Doc. 251) is granted.

22

2. Defendants’ motion for summary judgment (Doc. 247) is denied.

23

3. Defendants and their officials, agents, and employees, and all persons

24

acting in concert or participating with them, are permanently enjoined from

25

enforcing any policy or practice by which the Arizona Department of

26

Transportation refuses to accept Employment Authorization Documents,

27

issued under DACA, as proof that the document holders are authorized

28

under federal law to be present in the United States for purposes of

- 19 -

1

obtaining a driver’s license or state identification card.

2

4. The Clerk is directed to terminate this action.

3

Dated this 22nd day of January, 2015.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 20 -

 
 October 22, 2013
Molly C. Dwyer Clerk of the Court UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 95 Seventh Street San Francisco, CA 94103-1526
Re: Arizona DREAM Act Coalition v. Brewer, No. 13-16248
Dear Ms. Dwyer:
Pursuant to F.R.A.P. 28(j), Appellants respectfully submit this Court’s October 8, 2013, decision holding Arizona’s A.R.S. § 13-2929 preempted by federal law, and affirming the preliminary injunction against it. Valle del Sol v. Whiting, No. 12-17152 (Exhibit A). Valle confirms that Appellants have established irreparable harm, and that Arizona’s denial of driver’s licenses to recipients of Deferred Action for Childhood Arrivals (“DACA”) is preempted.
First, Valle’s holding that the “ongoing harms to [Plaintiffs’] organizational missions” constituted irreparable harm demonstrates the district court’s error in failing to find that the frustration of the Organizational Appellant’s mission establishes irreparable harm. Ex. A at 44; see also id. at 21 (describing harms); cf. Dkt. # 15 (“Br.”) 58-62; Dkt # 32.1 (“Reply”) 29-31. Similarly, Valle reinforces that “an alleged constitutional infringement will often alone constitute irreparable harm.” Ex. A at 44 (internal quotation omitted); cf. Br. 42-45; Reply 17-20.
Second, Valle’s conflict preemption holding is relevant to this appeal. Valle held § 13-2929 conflict preempted because it divested federal authorities of power conferred exclusively to them by Congress and “g[ave] state courts ... power ... unconstrained by how federal courts have interpreted ... [federal immigration law].” Ex. A at 39-40. This “improperly place[d] in the hands of state officials the nation’s immigration policy, and strip[ped] federal officials of the authority and discretion necessary in managing foreign affairs.” Id. at 42. The Court, in highlighting the extent of the conflict, noted Arizona misclassifies DACA recipients as “unlawfully present aliens ... despite the fact that the federal government has chosen to allow them to stay, and work in the country.” Id. at 42 n.20; cf. Br. 14-19; Reply 3-7. Thus, Valle makes clear that Appellees’ misclassification of DACA recipients and idiosyncratic interpretation of federal immigration law undermines the federal executive’s authority to authorize the presence of otherwise removable non-citizens. Br. 24-29; Reply 7-10.

Molly C. Dwyer Clerk of the Court – US Court of Appeals - Ninth Circuit October 22, 2013 Page 2
Finally, Valle further demonstrates the district court’s error in dismissing Appellants’ “constitutional preemption” arguments. See Ex. A at 29-30 (recognizing in addition to express, field, and conflict preemption, “any direct regulation of immigration ... is constitutionally proscribed”); cf. Br. 32-35; Reply 10-14.
Sincerely,
Nicholás Espíritu NATIONAL IMMIGRATION LAW CENTER Attorney for Plaintiffs-Appellants
NE:sm

EXHIBIT A
OPINION Valle del Sol v. Whiting, Case No. 12-17152

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 1 of 46

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VALLE DEL SOL INCORPORATED; COALICION DE DERECHOS HUMANOS; UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION; BORDER ACTION NETWORK; JIM SHEE; UNKNOWN PARTY, Named as Jane Doe #3 in Amended Complaint; JOHN DOE #1, proceeding under pseudonym; LUZ SANTIAGO; ARIZONA SOUTH ASIANS FOR SAFE FAMILIES; JAPANESE AMERICAN CITIZENS LEAGUE; LOCAL 5 SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHSIDE PRESBYTERIAN CHURCH; TONATIERRA COMMUNITY DEVELOPMENT INSTITUTE; C.M., a minor; ASIAN CHAMBER OF COMMERCE OF ARIZONA; SERVICE EMPLOYEES INTERNATIONAL UNION; ARIZONA HISPANIC CHAMBER OF COMMERCE; PEDRO ESPINOZA; MAURA CASTILLO; JOSE ANGEL VARGAS,
Plaintiffs-Appellees,

No. 12-17152 D.C. No.
2:10-cv-01061SRB
OPINION

v.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 2 of 46

2

VALLE DEL SOL V. WHITING

MICHAEL B. WHITING; EDWARD G. RHEINHEIMER; DAISY FLORES, Gila County Attorney, in her official capacity; RICHARD M. ROMLEY, Maricopa County Attorney, in his official capacity; MATTHEW J. SMITH, Mohave County Attorney, in his official capacity; BRADLEY CARLYON, Navajo County Attorney, in his official capacity; SAM VEDERMAN, La Paz County Attorney, in his official capacity; KENNY ANGLE, Graham County Attorney, in his official capacity; DEREK D. RAPIER, Greenlee County Attorney, in his official capacity; DAVID W. ROZEMA, Esq., Coconino County Attorney, in his official capacity; BARBARA LAWALL, Pima County Attorney, in her official capacity; JAMES P. WALSH, Pinal County Attorney, in his official capacity; GEORGE SILVA, Santa Cruz County Attorney, in his official capacity; SHEILA S. POLK, Yavapai County Attorney, in her official capacity; JON R. SMITH, Yuma County Attorney in his official capacity; JOSEPH DEDMAN, JR., Apache County Sheriff, in his official capacity; BILL PRIBIL, Coconino County Sheriff, in his official capacity; ROD ROTHROCK,

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 3 of 46

VALLE DEL SOL V. WHITING

3

Chief Deputy; JOHN R. ARMER, Gila County Sheriff, in his official Capacity; PRESTON J. ALLRED, Graham County Sheriff, in his official capacity; STEVEN N. TUCKER, Greenlee County Sheriff, in his official capacity; DONALD LOWERY, La Paz County Sheriff, in his official capacity; JOSEPH M. ARPAIO, Maricopa County Sheriff, in his official capacity; TOM SHEAHAN, Mohave County Sheriff, in his official capacity; KELLY CLARK, Navajo County Sheriff, in his official capacity; CLARENCE W. DUPNIK, Pima County Sheriff, in his official capacity; PAUL R. BABEU, Pinal County Sheriff, in his official capacity; TONY ESTRADA, Santa Cruz County Sheriff, in his official capacity; STEVE WAUGH, Yavapai County Sheriff, in his official capacity; RALPH OGDEN, Yuma County Sheriff, in his official capacity,
Defendants,
and
STATE OF ARIZONA; JANICE K. BREWER, Intervenor-Defendants – Appellants.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 4 of 46

4

VALLE DEL SOL V. WHITING

Appeal from the United States District Court for the District of Arizona
Susan R. Bolton, District Judge, Presiding

Argued and Submitted April 2, 2013—San Francisco, California

Filed October 8, 2013

Before: John T. Noonan, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY*

Civil Rights
The panel affirmed the district court’s grant of a preliminary injunction in an action challenging Arizona Revised Statutes § 13-2929, which attempts to criminalize the harboring and transporting of unauthorized aliens within the state of Arizona.
The panel first held that an individual plaintiff, pastor Luz Santiago, and the organizational plaintiffs had standing to challenge Ariz. Rev. Stat. § 13-2929. The panel determined that Santiago had established a credible threat of prosecution
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 5 of 46

VALLE DEL SOL V. WHITING

5

and that the organizational plaintiffs had shown that their missions had been frustrated and their resources diverted as a result of § 13-2929.

The panel held that the statute as written was void for vagueness under the Due Process Clause because one of its key elements—being “in violation of a criminal offense”—was unintelligible. The panel further held that the provision which attempted to criminalize the harboring and transporting of unauthorized aliens, however it was interpreted, was preempted by federal law and thus invalid under the Supremacy Clause. The panel concluded that the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction.

Concurring in part and dissenting in part, Judge Bea stated that he concurred with the majority regarding standing and the void for vagueness doctrine, as well as its holding that the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction. Judge Bea dissented from Part III of the majority opinion, stating that because this case was resolved on other grounds, namely vagueness, the court should not have reached the preemption issue.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 6 of 46

6

VALLE DEL SOL V. WHITING

COUNSEL

Kelly A. Kszywienski (argued), John J. Bouma and Robert A. Henry, Snell & Wilmer L.L.P, Phoenix, Arizona; Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix, Arizona; Thomas C. Horne, Michael Tryon and Evan Hiller, Office of the Attorney General for the State of Arizona, Phoenix, Arizona, for Intervenor-Defendants–Appellants.

Omar C. Jadwat (argued) and Dror Ladin, American Civil Liberties Union, New York, New York; Thomas A. Saenz, Victor Viramontes and Nicholás Espiritu, Mexican American Legal Defense and Educational Fund, Los Angeles, California; Linton Joaquin, Karen C. Tumlin, Nora A. Preciado, Melissa S. Keaney and Alvaro M. Huerta, National Immigration Law Center, Los Angeles, California; Nina Perales, Mexican American Legal Defense and Educational Fund, San Antonio, Texas; Cecillia D. Wang, American Civil Liberties Union, San Francisco, California; Chris Newman and Jessica Karp, National Day Labor Organizing Network, Los Angeles, California; Justin Cox, American Civil Liberties Union, Atlanta, Georgia; Laboni Hoq, Maya Roy and Carmina Ocampo, Asian Pacific American Legal Center, Los Angeles, California; Daniel J. Pochoda, James Duff Lyall and Kelly Joyce Flood, ACLU Foundation of Arizona, Phoenix, Arizona; Marita Etcubañez and Jessica Chia, Asian American Justice Center, Washington, D.C.; Stephen P. Berzon and Jonathan Weissglass, Altshuler Berzon LLP, San Francisco, California; Aaron Leiderman, Munger, Tolles & Olson LLP, San Francisco, California; Daniel R. Ortega, Ortega Law Firm, P.C., Phoenix, Arizona; Bradley S. Phillips, Joseph J. Ybarra, Benjamin J. Maro, Lika C. Miyake and Margaret G. Ziegler, Munger, Tolles & Olson LLP, Los Angeles, California, for Plaintiffs-Appellees.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 7 of 46

VALLE DEL SOL V. WHITING

7

Mark B. Stern (argued), Stuart F. Delery, John S. Leonardo, Beth S. Brinkmann, Michael P. Abate, Benjamin M. Schultz, Daniel Tenny and Jeffrey E. Sandberg, United States Department of Justice, Washington, D.C., for Amicus Curiae United States of America.

Lawrence J. Joseph, Washington, D.C, for Amicus Curiae Eagle Forum Education & Legal Defense Fund.

Michael M. Hethmon and Garrett Roe, Immigration Reform Law Institute, Washington, D.C.; Kris W. Kobach, Kobach Law, LLC, Kansas City, Kansas, for Amicus Curiae Immigration Reform Law Institute.

Stephen Nickelsburg, Carla Gorniak and Erin Louise Palmer, Clifford Chance US LLP, Washington, D.C.; Henry L. Solano, Wilson Elser Moskowitz Edelman & Dicker, Denver, Colorado, for Amicus Curiae United Mexican States.

OPINION
PAEZ, Circuit Judge:
Plaintiffs challenge Arizona Revised Statutes § 13-2929, which attempts to criminalize the harboring and transporting of unauthorized aliens within the state of Arizona.1 The

1 We use the term “unauthorized aliens” to refer to aliens who have entered or are present in the United States in violation of federal immigration law. This is the same convention that Arizona uses through out its briefs on appeal. The plaintiffs use the term “unauthorized immigrant,” but, as the Third Circuit noted in Lozano v. City of Hazelton,

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 8 of 46

8

VALLE DEL SOL V. WHITING

district court granted the plaintiffs’ motion for a preliminary injunction with respect to this provision on the basis that § 13-2929 is preempted by federal law. Arizona appealed. We conclude that the statute as written is void for vagueness under the Due Process Clause because one of its key elements—being “in violation of a criminal offense”—is unintelligible. We also find that the provision, however it is interpreted, is preempted by federal law and thus invalid under the Supremacy Clause. Therefore, we affirm the district court’s grant of a preliminary injunction.

BACKGROUND

This case arises from the extensive litigation regarding Arizona’s 2010 Senate Bill 1070 (“S.B. 1070”). S.B. 1070, which is comprised of a variety of immigration-related provisions, was passed in response to the growing presence of unauthorized aliens in Arizona. The stated purpose of S.B. 1070 is “to make attrition through enforcement the public policy of all state and government agencies in Arizona.” S.B. 1070 § 1. It does so by creating “a variety of immigration-related state offenses and defin[ing] the immigration-enforcement authority of Arizona’s state and local law enforcement officers.” United States v. Arizona, 641 F.3d 339, 344 (9th Cir. 2011), aff’d in part, rev’d in part, 132 S. Ct. 2492 (2012).

The subject of this appeal is Ariz. Rev. Stat. § 13-2929, which was contained in section 5 of S.B. 1070. Section 13-

No. 07-3531, 2013 WL 3855549 at *1 n.1 (3d. Cir. July 26, 2013), in the context of a statute such as § 13-2929 the term “alien” is more precise.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 9 of 46

VALLE DEL SOL V. WHITING

9

2929 attempts to criminalize2 transporting, concealing, harboring, or attempting to transport, conceal, or harbor an unauthorized alien, at least under certain circumstances. It also seeks to criminalize inducing or encouraging an unauthorized alien to come to or reside in Arizona. The full relevant text of the provision is reproduced here:

A. It is unlawful for a person who is in violation of a criminal offense to:

1. Transport or move or attempt to transport or move an alien in this state, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

2. Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

3. Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such

2 As will be discussed in more detail, infra, the statute as written fails to clearly criminalize any conduct.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 10 of 46

10

VALLE DEL SOL V. WHITING

coming to, entering or residing in this state is or will be in violation of law.

Ariz. Rev. Stat. § 13-2929(A). A violation of § 13-2929 is a class one misdemeanor carrying a fine of at least one thousand dollars. § 13-2929(F). A violation involving “ten or more illegal aliens” is a class 6 felony carrying a minimum fine of one thousand dollars for each alien involved. Id. The only exemptions to the statute are for child protective service workers, first responders, ambulance attendants, and emergency medical technicians acting in their official capacities. § 13-2929(E).

In order to place this appeal in context, we review some of the procedural history of the relevant litigation surrounding S.B. 1070. Before S.B. 1070 went into effect, both the private plaintiffs in the instant case and the United States, separately, filed suit challenging various provisions of the bill. As a result of that litigation, the district court preliminarily enjoined four provisions of S.B. 1070—sections 2(B), 3, 5(C), and 6—on preemption grounds. United States v. Arizona, 703 F. Supp. 2d 980, 987 (D. Ariz. 2010). The United States also challenged the provision that is the subject of this appeal, Ariz. Rev. Stat. § 13-2929, not on the basis of preemption, but on the grounds that it was an improper regulation of immigration and violated the Dormant Commerce Clause. The district court rejected this challenge to § 13-2929. Id. at 1003–04. Therefore, § 13-2929 went into effect on July 29, 2010.

Arizona appealed the district court’s preliminary injunction. We affirmed, concluding that the provisions were preempted by federal immigration law. Arizona, 641 F.3d at 366. The Supreme Court affirmed our decision with respect

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 11 of 46

VALLE DEL SOL V. WHITING

11

to sections 3, 5(C), and 6, concluding that those three provisions were preempted by federal law. United States v. Arizona, 132 S. Ct. 2492, 2510 (2012). With respect to section 2(B), the Supreme Court reversed, concluding that the provision may be interpreted by the Arizona courts in a manner that survives constitutional scrutiny. Id. It left open the possibility of further preemption and constitutional challenges to section 2(B) as interpreted and applied. Id.

After the Supreme Court’s decision in Arizona, the plaintiffs in this case renewed their motion for a preliminary injunction against section 2(B) of S.B. 10703 and Ariz. Rev. Stat. § 13-2929. The district court denied the plaintiffs’ motion with respect to section 2(B), relying on the reasoning provided by the Supreme Court in Arizona, which it interpreted as providing “clear direction . . . that [s]ubsection 2(B) cannot be challenged further on its face before the law takes effect.” The plaintiffs voluntarily dismissed their appeal of that ruling.

The plaintiffs’ challenge to § 13-2929 differs from the United States’ prior challenge because it is based on field and conflict preemption. The district court granted the preliminary injunction against § 13-2929, finding it both field and conflict preempted by federal immigration law. Arizona now appeals that ruling arguing that the plaintiffs do not have standing to challenge § 13-2929, and, if they do, they cannot

3 The plaintiffs in this case sought a preliminary injunction enjoining enforcement of section 2(B) on the basis of Equal Protection and Fourth Amendment challenges to the provision, not brought by the United States in its case, which focused solely on preemption. The plaintiffs also argued that the record in this case, substantially more developed than the record in Arizona, sufficiently established preemption notwithstanding the Supreme Court’s decision in Arizona.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 12 of 46

12

VALLE DEL SOL V. WHITING

demonstrate a likelihood of success on the merits or the other non-merits elements required for injunctive relief.

STANDARD OF REVIEW

We review de novo questions of Article III justiciability, including standing. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).

We review the district court’s grant of a preliminary injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). A court abuses it 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.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009).

ANALYSIS

I. STANDING

On appeal, Arizona argues that neither the individual plaintiff, Luz Santiago, nor the organizational plaintiffs have standing to challenge § 13-2929. Since the question of constitutional standing “is not subject to waiver,” we must first “ensure that [a] plaintiff has Article III standing.” Catholic League for Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1065 (9th Cir. 2010) (internal quotation marks omitted).

In order to demonstrate standing to seek injunctive relief under Article III,

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 13 of 46

VALLE DEL SOL V. WHITING

13

a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). We need only conclude that one of the plaintiffs has standing in order to consider the merits of the plaintiffs’ claim. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943–44 (9th Cir. 2011). Nonetheless, we conclude that both Luz Santiago, the individual plaintiff, and the organizational plaintiffs have standing to challenge § 13-2929.

A. Individual Standing of Luz Santiago

Luz Santiago is a pastor of a church in Mesa, Arizona, whose congregation is eighty percent unauthorized aliens.4 She “provides transportation and shelter to members of her congregation,” including those who are unauthorized aliens, on a daily basis. In particular, she alleges that she often drives congregants to school, court, and doctor’s appointments. Importantly, she “provides shelter to persons who seek sanctuary in her church.” In light of these activities, Santiago alleges that she fears prosecution under § 13-2929. In denying Arizona’s motion to dismiss, the

4 The facts about Santiago’s congregation and her activities within the church are drawn from the allegations in the complaint. Arizona does not contest the validity of any of Santiago’s factual allegations.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 14 of 46

14

VALLE DEL SOL V. WHITING

district court concluded that “Santiago’s allegations are sufficient to demonstrate a reasonable likelihood that [Ariz. Rev. Stat.] § 13-2929 could be enforced against her.” We agree and therefore hold that Santiago has standing to challenge § 13-2929.

It is well-established that, although a plaintiff “must demonstrate a realistic danger of sustaining a direct injury as a result of a statute’s operation or enforcement,” a plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief.” Babbitt v. United Farm Workers, 444 U.S. 289, 298 (1979) (internal quotation marks omitted). Thus, Santiago need not await prosecution to challenge § 13-2929. Id. (“[I]t is not necessary that [the plaintiff] first expose himself to actual arrest or a prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.”) (internal quotation marks omitted). “[I]t is ‘sufficient for standing purposes that the plaintiff intends to engage in a ‘course of conduct arguably affected with a constitutional interest’ and that there is a credible threat that the provision will be invoked against the plaintiff.’” Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2002) (quoting Babbitt, 442 U.S. at 298)).

Santiago has established a credible threat of prosecution
under this statute, which she challenges on constitutional grounds.5 She alleges that she provides, and plans to continue

5 Arizona argues that Santiago does not have standing because she has not been prosecuted, or directly threatened with prosecution, by authorities in the past two years. But as discussed above, plaintiffs do not have to await prosecution to challenge unconstitutional statutes. In Thomas v.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 15 of 46

VALLE DEL SOL V. WHITING

15

to provide, shelter and transportation to her congregants, most of whom are unauthorized aliens, on a daily basis. Her actions, therefore, “fall within the plain language of [§ 132929’s] prohibitions on transporting [and] harboring . . . undocumented immigrants.” Ga. Latino Alliance for Human Rights v. Gov. of Georgia, 691 F.3d 1250, 1258 (11th Cir. 2012) (holding that an immigration attorney providing services to unauthorized aliens had individual standing to bring a pre-enforcement challenge to a practically identical provision in Georgia) [hereinafter GLAHR]. Because the injury alleged—a credible threat of prosecution under § 132929—is clearly traceable to § 13-2929, and can be redressed through an injunction enjoining enforcement of that provision, Santiago has standing to challenge it. Id. at 1260 (“Each injury is directly traceable to the passage of H.B. 87 [the cognate Georgia law] and would be redressed by enjoining each provision.”).

Anchorage Equal Rights Commission, we held that we consider, as one of the factors in “evaluating the genuineness of a claimed threat of prosecution,” “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings.” 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). But we have never held that a specific threat is necessary to demonstrate standing. See Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003) (“The district court’s decision implied that absent a threat or at least a warning that California might prosecute CPLC for its publications, CPLC could not possibly have suffered an injury-in-fact sufficient to give it standing. . . . Our ruling in Thomas did not purport to overrule years of Ninth Circuit and Supreme Court precedent recognizing the validity of pre-enforcement challenges to statutes infringing upon constitutional rights.”); see also Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988) (“The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.”); Babbit, 442 U.S. at 302 (finding standing where the plaintiff’s “fear of criminal prosecution . . . is not imaginary or wholly speculative” even though the penalty “has not yet been applied and may never be applied”).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 16 of 46

16

VALLE DEL SOL V. WHITING

Arizona argues that Santiago has not established a credible threat of prosecution for two reasons. First, Arizona argues that § 13-2929 only punishes the transportation or harboring of unauthorized aliens where the individual is committing some other predicate criminal offense, and Santiago has not alleged an intent to commit any other criminal offense. For the reasons discussed below, infra at section II, we do not believe that the text of the statute that supposedly imposes this requirement—“in violation of a criminal offense”—has any substantive content that would make prosecution of Santiago any less likely. For the purposes of our standing analysis, however, we use the interpretation asserted by Arizona because it appears to be the interpretation that Arizona law enforcement, which is charged with enforcing the law, has adopted.6 If Santiago has alleged a likelihood of violating § 13-2929 as interpreted by Arizona law enforcement, then she has alleged a credible threat of prosecution.

Thus, even assuming the statute includes a predicate criminal offense requirement, Santiago has still alleged a credible threat of prosecution. First, in violating § 13-2929, Santiago will likely also be violating the federal harboring statute, 8 U.S.C. § 1324, which also criminalizes the harboring and transporting of unauthorized aliens with

6 See Arizona Peace Officer Standards & Training Board, Support Law Enforcement and Safe Neighborhood Act Training Course 29 (“[B]efore I go to the first section let me just tell you that all three sections of the statute have a preliminary requirement. The person who is the suspect in the case, who you are focused on, has to be in violation of a criminal law at the time that they commit one of these three additional offenses [listed in Ariz. Rev. Stat. § 13-2929].”).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 17 of 46

VALLE DEL SOL V. WHITING

17

practically identical provisions.7 Notably, Arizona does not contend that a violation of the federal harboring statute would not satisfy the predicate criminal offense element. Second, the breadth of the supposed predicate criminal offense provision, which includes a violation of any federal or state statute, defeats any claim that the provision narrows the scope of the law sufficiently to deprive Santiago of standing. In GLAHR, the Eleventh Circuit addressed an identical provision in a similar statute and found the predicate criminal provision too broad to have any constitutionally significant effect on the likelihood of prosecution: “We do not agree with the State officers that the probability of an officer’s finding of probable cause for any violation of state or federal law is comparable to the likelihood of the ‘sequence of individually improbable events’ held to be speculative in Lyons.” 691 F.3d at 1259 (quoting Fla. State Conference of the NAACP v. Browning, 522 F.3d 1153, 1162 (11th Cir. 2008)). We agree with the Eleventh Circuit.

Second, Arizona argues that Santiago has not alleged an intent to violate § 13-2929 (or 8 U.S.C. § 1324 for purposes of the predicate criminal offense element) because she has not alleged an “inten[t] to assist [any] alien in violating the federal immigration laws.” Arizona contends that the text in § 13-2929 (which mirrors 8 U.S.C. § 1324) that criminalizes transporting an unauthorized alien “in furtherance of the illegal presence of the alien in the United States” and the harboring of an unauthorized alien “from detection” clearly imposes a requirement that the individual actually intend to help the alien violate the federal immigration laws. We disagree.

7 Section 1324 only differs from § 13-2929 in two ways, discussed infra, neither of which would apply Santiago’s alleged activities.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 18 of 46

18

VALLE DEL SOL V. WHITING

Section 13-2929 does not clearly include an intent requirement with respect to the “furtherance of illegal presence” or shielding “from detection” elements of the crime. The statute could be read to prohibit providing shelter that shields an alien from detection by immigration officials or transporting an alien in a manner that furthers his illegal presence regardless of the individual’s intent. This is a reasonable reading of the statute since the statute includes a knowledge requirement with respect to the alien’s immigration status. See Ariz. Rev. Stat. § 13-2929(A) (criminalizing these acts only if the person “knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of the law”). The Arizona legislature clearly knew how to include a scienter requirement but chose not to phrase the statute to impose a “purposefully” mens rea requirement with respect to the “in furtherance of the illegal presence” or “from detection” elements.8 Thus, an individual who knowingly or recklessly provides transportation and shelter to unauthorized aliens, as Santiago does, can allege a credible threat of prosecution under § 13-2929 without alleging a specific intent to assist an unauthorized alien in violating the federal immigration laws.9

8 Although Arizona opines that the statute will be interpreted to impose such a requirement, there is no evidence that this is anything more than a litigation position. Arizona has not produced any evidence that Arizona law enforcement or Arizona courts have interpreted or will interpret the provision in this manner.
9 Arizona attempts to bolster its intent argument by referencing cases where federal courts have interpreted the text of 8 U.S.C. § 1324 to require an intent to assist aliens in violating the federal immigration laws. See United States v. You, 382 F.3d 958, 966 (9th Cir. 2004) (approving a jury instruction that requires the jury to find that the defendant acted with

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 19 of 46

VALLE DEL SOL V. WHITING

19

In any event, even if the statute does include an intent requirement, Santiago’s statement that she “provides shelter to persons who seek sanctuary in her church” would be sufficient to allege that she intends to shield those persons from detection.10 For the foregoing reasons, Santiago has standing to challenge § 13-2929.

“the purpose of avoiding [the aliens’] detection by immigration authorities”). The Arizona state courts are not, however, bound by federal interpretations of federal law when interpreting their own state harboring provision. Nor is the federal interpretation adopted in You entirely stable. In United States v. Costello, the federal government argued that “harboring” under 8 U.S.C. § 1324 should be defined broadly to include a defendant who has allowed her boyfriend, an unauthorized alien, to live with her. 666 F.3d 1040 (7th Cir. 2012). The government argued that “harboring” simply meant “to house a person.” Id. at 1043. While the Seventh Circuit ultimately determined that the statute should require more, it cited to several other cases that have defined harboring more broadly to include simple sheltering. Id. at 1049–50 (citing United States v. Acosta de Evans, 531 F.2d 428, 430 (9th Cir. 1976) (“We believe that [the purpose of the statute] is best effectuated by construing ‘harbor’ to mean ‘afford shelter to’ and so hold.”); United States v. Kim, 193 F.3d 567, 573–74 (2d Cir. 1999)).
Given the foregoing, there is a reasonable probability that Arizona law enforcement and courts will interpret both the federal and state statutes broadly and find that an individual violates § 13-2929 whenever she knowingly or recklessly affords shelter to or transports an unauthorized alien.
10 Sanctuary is commonly defined as a “place of refuge or asylum.” Sanctuary, The American Heritage Dictionary, http://www.ahdictionary.com/word/search.html?q=sanctuary (last visited Sept. 21, 2013).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 20 of 46

20

VALLE DEL SOL V. WHITING

B. Organizational Standing

We also hold that the organizational plaintiffs have standing to challenge § 13-2929. An organization has “direct standing to sue [when] it show[s] a drain on its resources from both a diversion of its resources and frustration of its mission.” Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). An organization “cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all. It must instead show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).

Southside Presbyterian Church (“Southside”), Border Action Network (“BAN”), and Arizona South Asians for Safe Families (“ASASF”) have established standing under this standard. The declaration provided by Southside’s pastor establishes that (1) the church runs a homeless program and “Samaritans” program, both of which offer transportation and shelter to unauthorized aliens, and therefore reasonably fears that its volunteers will be deterred from participating in light of § 13-2929’s prohibitions and (2) it will be required to divert resources to educate its members and counteract this frustration of its mission. Likewise, BAN’s executive director’s declaration establishes that, as part of its regular activities, its staff buses members, many of whom are unauthorized aliens, to various organizational functions. Therefore, BAN reasonably fears that its staff will be subject to investigation or prosecution under the statute and may be

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 21 of 46

VALLE DEL SOL V. WHITING

21

deterred from conducting these functions, which would frustrate its organizational mission. Moreover, because of BAN’s members’ overwhelming concerns about the effects and requirements of S.B. 1070, BAN has been forced to divert staff and resources to educating their members about the law. Finally, ASASF’s answers to defendant’s interrogatories show that it too has had to divert resources to educational programs to address its members’ and volunteers’ concerns about the law’s effect.

We conclude that the organizational plaintiffs have clearly shown that S.B. 1070, and § 13-2929 in particular, has “perceptibly impaired” their ability to carry out their missions. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); see also Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (“[A]t the preliminary injunction stage, a plaintiff must make a ‘clear showing’ of his injury in fact.”). Many of the organizational plaintiffs’ core activities involve the transportation and/or provision of shelter to unauthorized aliens, and they have diverted their resources to address their constituents’ concerns about the impact of § 13-2929. Despite Arizona’s arguments that the organizational plaintiffs’ statements of injury are too vague to sustain standing, we have found organizational standing on the basis of similar organizational affirmations of harm.11 See Fair

11 Arizona also argues that the organizations’ 2010 declarations can no longer support a finding of standing because they are outdated. But as the Court explained in Davis v. Fed. Election Comm’n, “[w]hile the proof required to establish standing increases as the suit proceeds . . . the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” 445 U.S. 727, 734 (2008). Therefore, it is entirely appropriate for us to consider the 2010 declarations in determining whether the organizational plaintiffs had the requisite stake in the case when they filed

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 22 of 46

22

VALLE DEL SOL V. WHITING

Hous. Council of San Fernando Valley, 666 F.3d at 1219 (finding standing at the preliminary injunction stage based on FHC’s statements that it “investigated Roommate’s alleged violations and, in response, started new education and outreach campaigns targeted at discriminatory roommate advertising”); see also Smith v. Pac. Props & Dev. Corp., 348 F.3d 1097, 1105 (9th Cir. 2004) (finding standing where an organization alleged that “in order to monitor the violations and educate the public regarding the discrimination, [it] has had . . . to divert its scarce resources from other efforts . . . to benefit the disabled community in other ways”). Because the organizational plaintiffs have shown that their missions have been frustrated and their resources diverted as a result of § 13-2929, they have standing to challenge it.

their claim. Although Arizona is correct that “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed,” that inquiry goes to mootness rather than standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Services, 528 U.S. 167, 190–92 (2000) (discussing the important distinction between standing and mootness). A case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (internal quotation marks omitted); see also San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th Cir. 2002) (“To establish mootness, a defendant must show that the court cannot order any effective relief. Defendants claiming mootness must satisfy a heavy burden of persuasion.” (internal citations and quotation marks omitted)). Arizona has not shown, or attempted to show, that this court could not order any effective relief. Therefore, its claims regarding plaintiffs’ current stake in the case as opposed to their stake at the time of filing are misplaced.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 23 of 46

VALLE DEL SOL V. WHITING

23

II. VAGUENESS

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” United States v. Backlund, 689 F.3d 986, 996 (9th Cir. 2012) (quoting United States v. Kim, 449 F.3d 933, 941 (9th Cir. 2006) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972))) (internal quotation marks omitted). A statute is void for vagueness if it “fails to give a ‘person of ordinary intelligence a reasonable opportunity to know what is prohibited.’” Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011) (quoting Grayned, 408 U.S. at 108); see also United States v. Williams, 553 U.S. 285, 304 (2008). Where a statute imposes criminal sanctions, “a more demanding standard of scrutiny applies.” Id. at 712 (internal quotation marks omitted); see also United States v. Harris, 705 F.3d 929, 932 (9th Cir. 2013) (“For statutes . . . involving criminal sanctions the requirement for clarity is enhanced.” (internal quotation marks omitted) (alteration in original)).

Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.12

12 The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us. Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990); see also U.S. Nat’l Bank of Oregon v. Ind. Ins. Agents of Am., Inc.,

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 24 of 46

24

VALLE DEL SOL V. WHITING

An “offense” is defined by the Arizona criminal code as:

[C]onduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.

Ariz. Rev. Stat. § 13-105. This accords with the common usage of the word “offense” to mean “a breach of a law or rule; an illegal act.” Offense, Oxford U.S. English Dictionary, http://oxforddictionaries.com/definition/ american_english /offense (last visited Sept. 16, 2013). Black’s Law Dictionary defines both “offense” and “criminal offense” as “a violation of the law.” Offense, Black’s Law Dictionary (9th ed. 2009). In sum, an offense is an action (or, sometimes, inaction).13 And one cannot violate, or be in violation of, an action. One can only violate an object, such as a law or an agreement. See Violate, Oxford U.S. English

508 U.S. 439, 447 (1993) (stating that a court can rule on an antecedent issue even if “the parties fail to identify and brief [it]”).
13 Although the Arizona criminal code does not define “criminal offense” generally, the code does define “criminal offense” for purposes of the crime victims’ rights chapter of the code. Ariz. Rev. Stat. tit. 13, ch. 40. The definition—“conduct that gives a peace officer or prosecutor probable cause to believe that a felony, a misdemeanor, a petty offense or a violation of a criminal ordinance has occurred”—is also framed in terms of conduct. Ariz. Rev. Stat. § 13-4401.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 25 of 46

VALLE DEL SOL V. WHITING

25

Dictionary, http://oxforddictionaries.com/definition/ american_english/violate (defining four different meanings of the verb “violate,” depending on the type of object—either a “rule or formal agreement,” “someone’s peace, privacy, or rights,” “something sacred,” or “someone”).

“In violation of an offense,” an element of § 13-2929, thus translates to “in violation of a violation of the law,” which is, of course, nonsensical. While “[s]tatutes need not be written with ‘mathematical’ precision,” “they must be intelligible.” Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000), amended 247 F.3d 903 (9th Cir. 2000) and amended 260 F.3d 1159 (9th Cir. 2001). The “violation of an offense” element of § 13-2929, which has no discernible meaning, simply cannot meet this test.

“Outside the First Amendment context, a plaintiff alleging facial vagueness must show that the enactment is impermissibly vague in all its applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (internal quotation marks omitted). Therefore, a statute is only facially void for vagueness if it “is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’” Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). “Such a provision simply has no core.” Vill. of Hoffman Estates, 455 U.S. at 495 n.7 (emphasis in original); see e.g., Forbes, 236 F.3d at 1012 (concluding that the undefined terms “experimentation,” “investigation,” and “routine” in the statute were so ambiguous that the statute did not “establish any ‘core’ of unquestionably prohibited activities”). Section

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 26 of 46

26

VALLE DEL SOL V. WHITING

13-2929 is exactly the type of statute that has “no core.” Id. The element of being “in violation of a criminal offense” is not simply an “imprecise but comprehensible normative standard” but rather an incomprehensible element that provides “no standard of conduct . . . at all.” Id. Therefore, we hold that the statute is unconstitutionally vague. On this basis, we affirm the district court’s injunction. Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1159 (9th Cir. 2011) (“We may affirm the district court on any ground supported by the record.”).

Arizona makes no claim that “in violation of a criminal offense” makes any sense as written. Nonetheless, Arizona argues that we should substitute the phrase “in violation of a law or statute” for “in violation of a criminal offense” because this is the “common understanding” of the latter phrase. But there is no common understanding of the strange phrase “in violation of an offense.”14 There is only a common

14 Arizona attempts to establish this “common understanding” by referring to a few cases across the circuits that it argues use the phrase “violation of an offense.” But, as Arizona acknowledges, these cases generally cross-reference a particular enumerated offense or set of offenses. See, e.g., Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733, 743 (10th Cir. 2007) (“If a person under arrest for violation of an offense enumerated in the Motor Vehicle Code . . . .” (quoting N.M. Stat. Ann. § 66-8-111(A)). While the language in these off-handed cases is still grammatically incorrect, the cross-references to specific statutorily created offenses make clear the courts’ meaning in each of these cases. The statute here provides no similar cross-reference. It does not, for example, say “in violation of a criminal offense enumerated in the Arizona criminal code.”
Even if these cases were not distinguishable on this ground, we doubt that the use of this incomprehensible phrase by a few courts across the

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 27 of 46

VALLE DEL SOL V. WHITING

27

understanding of the words “violation” and “offense,” and those meanings applied to this phrase create a nonsensical result.

In the alternative, Arizona argues that we should interpret the statute as they suggest because it is a possible limiting construction that would save the statute. But the cases Arizona relies upon are inapposite. They are cases where the state provided a reasonable narrowing construction to statutory language amenable to several interpretations. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 617 (1973) (“The State Personnel Board, however, has construed [§] 818’s explicit approval of ‘private’ political expression to include virtually any expression not within the context of active partisan political campaigning, and the State’s Attorney General, in plain terms, has interpreted [§] 818 as prohibiting ‘clearly partisan political activity’ only.”); Law Students Research Council v. Wadmond, 401 U.S. 154 (1971) (accepting the state authorities’ limited construction of the terms “form of the government of the United States,” “belief,” and “loyalty” in approving a rule governing admission to the New York State bar).

Here, Arizona asks us not to adopt a narrowing construction, but rather to replace a nonsensical statutory element with a different element. Rewriting the statute is a job for the Arizona legislature, if it is so inclined, and not for this court. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 249 (1989); see also Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998) (“Although we must consider the City’s limiting construction of the ordinance, we are not

years would be sufficient to give notice of this element’s meaning to the “person of ordinary intelligence.” Hunt, 638 F.3d at 712.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 28 of 46

28

VALLE DEL SOL V. WHITING

required to insert missing terms into the statute or adopt an interpretation precluded by the plain language of the ordinance.”). The Arizona legislature knows how to write a statute requiring the commission of a predicate criminal offense and could have done so here. See, e.g., Ariz. Rev. Stat. § 13-1508(A) (“A person commits burglary in the first degree if such person or an accomplice violates the provisions of either § 13-1506 or 13-1507 and knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony.”) (emphasis added); Ariz. Rev. Stat. § 13-2323(B) (“A person commits assisting a human smuggling organization by committing any felony offense, whether completed or preparatory, at the direction of or in association with any human smuggling organization.”) (emphasis added).

“[A]ny narrowing construction of a state statute adopted by a federal court must be a reasonable and readily apparent gloss on the language.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 925 (9th Cir. 2004). Exchanging the words “a criminal offense” for the words “a law or statute” is not a “readily apparent gloss” on the statute’s language.15 As currently drafted, the statute is

15 In considering Arizona’s proposed revision to the statute, “we are especially mindful of our uncomfortable position as a federal court construing a state statute.” Planned Parenthood of Idaho, Inc., 376 F.3d at 932. “When federal courts rely on a ‘readily apparent’ constitutional interpretation, plaintiffs receive sufficient protection from unconstitutional application of the statute, as it is quite likely nonparty prosecutors and state courts will apply the same interpretation. Where federal courts apply a strained statutory construction, however, the state courts and non-party prosecutors, not bound by a federal court’s reading of a state statute, are free to, and likely to, reject the interpretation and convict violators of the statute’s plain meaning. The result is inadequate relief from

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 29 of 46

VALLE DEL SOL V. WHITING

29

incomprehensible to a person of ordinary intelligence and is therefore void for vagueness.

III. PREEMPTION

Even were we to accept Arizona’s proposed interpretation of § 13-2929, we conclude that the statute is also preempted by federal law. See United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (“Panels often confront cases raising multiple issues that could be dispositive, yet they find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases. Or, panels will occasionally find it appropriate to offer alternative rationales for the results they reach.”). Our analysis is guided by the Supreme Court’s most recent discussion of preemption principles in Arizona, 132 S. Ct. at 2492, and the three out-of circuit decisions finding nearly identical provisions in Alabama, Georgia, and South Carolina preempted by federal law. Therefore, we also affirm the district court’s order on this additional ground.

A. Guiding Preemption Principles

The preemption doctrine stems from the Supremacy Clause. It is a “fundamental principle of the Constitution [] that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). There are “three classes of preemption”: express preemption, field preemption and conflict preemption. United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012). “The first,

unconstitutional prosecution for plaintiffs who do not or cannot sue every conceivable state prosecutor who could institute proceedings against them.” Id.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 30 of 46

30

VALLE DEL SOL V. WHITING

express preemption, arises when the text of a federal statute explicitly manifests Congress’s intent to displace state law.” Id.; see also Arizona, 132 S. Ct. at 2500–01. Under the second, field preemption, “the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona, 132 S. Ct. at 2501. Field preemption can be “inferred from a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Third, “even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.” Crosby, 530 U.S. at 372. Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Id. Courts find impossibility preemption “where it is impossible for a private party to comply with both state and federal law.” Id. Courts will find obstacle preemption where the challenged state law “stands ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Arizona, 132 S. Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Finally, any direct regulation of immigration—“which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain”—is constitutionally proscribed because the “[p]ower to regulate immigration is unquestionably exclusive federal power.” DeCanas v. Bica, 424 U.S. 351, 354–55 (1976).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 31 of 46

VALLE DEL SOL V. WHITING

31

Analysis of a preemption claim “must be guided by two cornerstones of [the Supreme Court’s] jurisprudence. First, ‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’ Second, ‘[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the states have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) (internal quotation marks and citations omitted) (alterations in original). But see United States v. Locke, 529 U.S. 89, 108 (2000) (“[A]n assumption of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence.” (internal quotation marks omitted)).

B. § 13-2929 is Field Preempted

As discussed above, field preemption can be inferred either where there is a regulatory framework “so pervasive . . . that Congress left no room for the States to supplement it” or where the “federal interest [is] so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Arizona, 132 S. Ct. at 2501. As the Supreme Court reiterated in Arizona, the federal government has “broad, undoubted power over the subject of immigration and the status of aliens.” Id. at 2498. This authority rests in part on the federal government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, but also rests significantly on “its inherent power as a sovereign to control and conduct relations with foreign relations.” Id. Federal control over immigration

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 32 of 46

32

VALLE DEL SOL V. WHITING

policy is integral to the federal government’s ability to manage foreign relations:

Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.

Id. (citations omitted). In light of this federal interest, “[f]ederal governance of immigration and alien status is extensive and complex.” Id. at 2499. It is within this context that § 13-2929 must be analyzed.

In Arizona, the Court held that section 3 of S.B. 1070 was field preempted. It held that the federal plan for alien registration—which includes requirements for registration, fingerprints, change of address reporting, and carrying proof of registration and provides penalties for failure to register—was a “single integrated and all-embracing system,” designed as a “harmonious whole,” with “a full set of standards . . . including the punishment for noncompliance.” 132 S. Ct. at 2501–02. Thus, it concluded that the federal government “occupie[s] the field of alien registration” and

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 33 of 46

VALLE DEL SOL V. WHITING

33

“even complementary state regulation is impermissible.” Id. at 2502.

Section 13-2929 attempts to regulate conduct—the transportation and/or harboring of unauthorized aliens—that the federal scheme also addresses. Federal law, as set forth in 8 U.S.C. § 1324 prohibits a nearly identical set of activities as § 13-2929. Section 1324 provides, in relevant part:

Any person who—

. . .

(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 34 of 46

34

VALLE DEL SOL V. WHITING

that such coming to, entry, or residence is or will be in violation of law; or

. . .

shall be punished as provided in subparagraph (B).

Id. § 1324 (a)(1)(A). The remainder of § 1324 outlines a detailed set of graduated punishments for violations, § 1324(a)(1(B)(i)–(iv), (a)(2)(A)–(B), (a)(3)(A), (a)(4), (b), prescribes special evidentiary rules, § 1324(b)(3), (d), and mandates the creation of an educational program on the penalties for harboring aliens, § 1324(3).

Section 1324 is also part of a larger federal scheme of criminal sanctions for those who facilitate the unlawful entry, residence, or movement of aliens within the United States. See 8 U.S.C. § 1323 (penalizing transportation companies and persons for bringing aliens to the United States without valid passports and necessary visas or taking consideration contingent upon an alien’s admission to the United States); § 1327 (penalizing those who aid or assist certain inadmissible aliens to enter the country); § 1328 (penalizing those who import aliens for immoral purposes). Aliens themselves may also be criminally prosecuted for unlawful entry or reentry into the United States. Id. § 1325 (penalizing improper entry); § 1326 (penalizing unauthorized reentry following removal).

Thus, the scheme governing the crimes associated with the movement of unauthorized aliens in the United States, like the registration scheme addressed in Arizona (and Hines), provides “a full set of standards” designed to work as a

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 35 of 46

VALLE DEL SOL V. WHITING

35

“harmonious whole.” 132 S. Ct. at 2501.16 A version of § 1324 has been part of our “extensive and complex,” Arizona, 132 S. Ct. at 2499, federal immigration scheme for over a century. United States v. Sanchez-Vargas, 878 F.2d 1163, 1168 (9th Cir. 1989). Its slow evolution over time demonstrates Congress’s intentional calibration of the appropriate breadth of the law and severity of the punishment. Id. at 1168–70. As we explained in Sanchez-Vargas, the current version of § 1324 “now presents a single comprehensive ‘definition’ of the federal crime of alien

16 Arizona argues that Gonzales v. Peoria, 722 F.2d 468 (9th Cir. 1983), already resolved the question of whether federal law on harboring unauthorized aliens is field preemptive. But Arizona is incorrect. Gonzales addressed a distinct question from the one raised here. It considered whether the criminal immigration statutes preempted local law enforcement arrests for violations of those federal statutes. Within that context, we wrote:
[T]his case does not concern that broad scheme [of removal regulation], but only a narrow and distinct element of it—the regulation of criminal immigration activity by aliens. The statutes relating to that element are few in number and relatively simple in their terms. They are not, and could not be, supported by a complex administrative structure. It therefore cannot be inferred that the federal government has occupied the field of criminal immigration enforcement.
Id. at 475. The foregoing analysis makes perfect sense within the context of determining the authority of local law enforcement officers to arrest for violations of the federal criminal immigration statutes. The federal criminal immigration statutes rarely address the question of arrests and the section that does explicitly allows for local law enforcement arrests. Thus, the federal government did not occupy the field with respect to arrests for violations of these statutes. Gonzales says nothing about whether the statutory scheme is comprehensive with respect to the substantive prohibitions of the federal criminal immigration statutes.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 36 of 46

36

VALLE DEL SOL V. WHITING

smuggling—one which tracks smuggling and related activities from their earliest manifestations (inducing illegal entry and bringing in aliens) to continued operation and presence within the United States (transporting and harboring or concealing aliens).” Id. at 1169.

Moreover, in developing the scheme for prohibiting and penalizing the harboring of aliens, Congress specifically considered the appropriate level of involvement for the states. Section 1324(c) allows state and local law enforcement officials to make arrests for violations of § 1324. Congress did not, however, grant states the authority to prosecute § 1324 violations, but instead vested that power exclusively in the federal authorities. See 8 U.S.C. § 1329; 18 U.S.C. § 3231; see also GLAHR, 691 F.3d at 1258, 1264. Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.” GLAHR, 691 F.3d at 1264.

The Third, Fourth, and Eleventh Circuits, in cases addressing similar statutes,17 all recently concluded that the

17 The Georgia law in GLAHR was virtually indistinguishable from the provision challenged in this appeal. GLAHR, 691 F.3d at 1263. The Alabama and South Carolina laws were very similar but arguably broader because they did not include the “violation of a criminal offense” element. United States v. South Carolina, 720 F.3d 518, 523 (4th Cir. 2013); Alabama, 691 F.3d at 1277. However, as discussed, this element is incomprehensible and, even under Arizona’s interpretation, the element is illusory because a simultaneous violation of the federal harboring law could suffice.
The City of Hazleton’s ordinance in the Third Circuit case made it “unlawful for any person or business or entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 37 of 46

VALLE DEL SOL V. WHITING

37

federal scheme on harboring is comprehensive and field preemptive. Lozano, 2013 WL 3855549 at *14–15; South Carolina, 720 F.3d at 531–32; Alabama, 691 F.3d at 1288; GLAHR, 691 F.3d at 1267. Based on the foregoing—the comprehensive nature of § 1324, its place within the INA’s larger structure governing the movement and harboring of aliens, and § 1324(c)’s explicit but limited provision for state involvement—the Eleventh Circuit concluded that the INA demonstrates an “overwhelmingly dominant federal interest in the field.” GLAHR, 691 F.3d at 1264. Because Congress has dominated the field and “adopted a calibrated framework within the INA to address this issue,” the Eleventh Circuit held that any “state’s attempt to intrude into this area is prohibited.” Id.; see also Alabama, 691 F.3d at 1286 (“Like the Georgia law at issue in GLAHR, we similarly conclude that Alabama is prohibited from enacting concurrent state legislation in this field of federal concern.”).

The Fourth Circuit came to the same conclusion. South Carolina, 720 F.3d at 531 (“Sections 4(B) and (D) [South Carolina’s challenged harboring and transportation provisions] of the Act are field preempted because the vast array of federal laws and regulations on this subject is ‘so pervasive . . . that Congress left no room for the States to supplement it.’” (quoting Arizona, 132 S. Ct. at 2501)). Unsurprisingly, in addressing a law outlawing renting housing to unauthorized aliens, the Third Circuit concurred: “We agree with the Eleventh Circuit and other courts that have held that ‘the federal government has clearly expressed

in the United States in violation of law.” Lozano, 2013 WL 3855549 at *12. “‘Harboring’ is broadly defined to include ‘let[ting], leas[ing], or rent[ing] a dwelling unit to an illegal alien.’” Id. (quoting The Illegal Immigration Relief Act Ordinance § 5A(1)) (alterations in original).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 38 of 46

38

VALLE DEL SOL V. WHITING

more than a ‘peripheral concern’ with the entry, movement, and residence of aliens within the United States and the breadth of these laws illustrates an overwhelming dominant federal interest in the field.’” Lozano, 2013 WL 3855549 at *14 (quoting GLAHR, 691 F.3d at 1264).18 We also agree.

C. Section 13-2929 is Conflict Preempted

A statute is conflict preempted where it “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Arizona, 132 S. Ct. at 2501 (quoting Hines, 312 U.S. at 67). We conclude that § 132929 is conflict preempted because, although it shares some similar goals with 8 U.S.C. § 1324, it “interfere[s] with the careful balance struck by Congress with respect to” the harboring of unauthorized aliens. Arizona, 132 S. Ct. at 2505. As Arizona reiterated, “a ‘[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.’” Id. (quoting Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971)); see also American Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003)

18 See also Garrett v. Escondido, 465 F. Supp. 2d 1043, 1056 (S. D. Cal. 2006) (finding that a harboring provision that prohibited leasing or renting housing to unauthorized aliens raises “serious concerns in regards to field preemption” based on 8 U.S.C. § 1324). But see Keller v. City of Fremont, 719 F.3d 932 (8th Cir. 2013) (“We find nothing in an anti-harboring prohibition contained in one sub-part of one subsection of 8 U.S.C. § 1324 that establishes a ‘framework of regulation so pervasive . . . that Congress left no room for the States to supplement it,’ or evinces ‘a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” (quoting Arizona, 132 S. Ct. at 2501)). In Keller, a divided panel upheld a housing ordinance similar to the one challenged in Lozano. For the all the reasons discussed above, we, along with the Third, Fourth, and Eleventh Circuits, disagree with Keller’s analysis.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 39 of 46

VALLE DEL SOL V. WHITING

39

(finding conflict preemption where the state sought “to use an iron fist where the President ha[d] consistently chosen kid gloves”); Crosby, 530 U.S. at 379 n.14 (“Identity of ends does not end our analysis of preemption.”).

First, the provision of additional and different state penalties under § 13-2929 for harboring unauthorized aliens disrupts “the congressional calibration of force.” Crosby, 530 U.S. at 380. Like the additional and distinct penalties section 3 imposed in Arizona, “[t]his state framework of sanctions creates a conflict with the plan Congress put in place.” 132 S. Ct. at 2503; see also GLAHR, 691 F.3d at 1267 (“The end result of section 7 is to layer additional penalties atop federal law in direct opposition to the Court’s direction in Crosby.”).

Second, § 13-2929 conflicts with the federal scheme by divesting federal authorities of the exclusive power to prosecute these crimes. As discussed above, the current federal scheme reserves prosecutorial power, and thus discretion, over harboring violations to federal prosecutors. By allowing state prosecution of the same activities in state court, Arizona has conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration enforcement priorities. In other words, “the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Arizona, 132 S. Ct. at 2503; see also GLAHR, 691 F.3d at 1265 (“The terms of section 7, however, are not conditioned on respect for the federal concerns or the priorities that Congress has explicitly granted executive agencies the authority to

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 40 of 46

40

VALLE DEL SOL V. WHITING

establish.”); Alabama, 691 F.3d at 1287 (same). Section 132929 also gives state courts the power to interpret it, unconstrained by how federal courts have interpreted the scope of 8 U.S.C. § 1324.

As the Eleventh Circuit explained:

[I]nterpretation of [state harboring] crimes by state courts and enforcement by state prosecutors unconstrained by federal law threaten the uniform application of the INA. . . . Given the federal primacy in the field of enforcing prohibitions on the transportation, harboring, and inducement of unlawfully present aliens, the prospect of fifty individual attempts to regulate immigrationrelated matters cautions against permitting states to intrude into this area of dominant federal concern.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 41 of 46

VALLE DEL SOL V. WHITING

41

GLAHR, 691 F.3d at 1266;19 see also Arizona, 132 S. Ct. at 2501 (“If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, ‘diminish[ing] the [Federal Government]’s control over enforcement’ and ‘detract[ing] from the integrated scheme of regulation created by Congress.’” (quoting Wisconsin Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 288–89 (1986))); see also Villas at Parkside Partners v. City of Farmers Branch, No. 10-10751, 2013 WL 3791664 at *5 (5th Cir. July 22, 2013) (concluding that an ordinance criminalizing renting housing to unauthorized

19 Arizona contends that the Eleventh Circuit erred in concluding that the federal courts have exclusive jurisdiction to “interpret the boundaries of federal law.” GLAHR, 691 F.3d at 1265. Arizona seemingly argues that its state courts have concurrent jurisdiction over prosecutions under 8 U.S.C. § 1324. But that proposition is clearly foreclosed by 18 U.S.C. § 3231, which grants federal district courts exclusive jurisdiction over federal crimes.
Although Arizona failed to so argue in its brief, the better argument is presented by amicus. State courts do have concurrent jurisdiction over civil RICO claims, which can include violations of 8 U.S.C. § 1324. Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (“[S]tate courts have concurrent jurisdiction over civil RICO claims.”); 18 U.S.C. § 1961(1)(F) (including violations of § 1324 in the definition of “racketeering activity”). But even this argument misses the mark. By passing a state statute criminalizing harboring, Arizona has vested its courts with the power to define the breadth and scope of its own prohibition on harboring unauthorized aliens, an area of important federal concern, unconstrained by federal priorities. Thus, although the text of the state and federal statutes is similar, Arizona’s scheme may significantly differ in practice from the federal scheme and thus disrupt the uniformity of the federal scheme. A state court has concurrent jurisdiction over a civil RICO claim concerning a violation of 8 U.S.C. § 1324. But the federal courts remain the ultimate arbiters of the meaning of § 1324. The federal courts are not the ultimate arbiters of the meaning of Arizona’s harboring statute. Therein lies the difference.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 42 of 46

42

VALLE DEL SOL V. WHITING

aliens is conflict preempted because it “giv[es] state officials authority to act as immigration officers outside the ‘limited circumstances specified’ by federal law” and “‘interfer[es] with the careful balance struck by Congress’ with respect to the harboring of non-citizens here contrary to law” (quoting Arizona, 132 S. Ct. at 2505–06)).20 In sum, § 13-2929, as interpreted by Arizona, “create[s] an obstacle to the smooth functioning of federal immigration law, improperly place[s] in the hands of state officials the nation’s immigration policy, and strip[s] federal officials of the authority and discretion necessary in managing foreign affairs.” South Carolina, 720 F.3d at 531.

The Arizona statute also conflicts with the federal scheme by criminalizing conduct not covered by the federal harboring provision. First, Congress explicitly provided a safe harbor in § 1324 for certain religious activities. 8 U.S.C. § 1324(a)(1)(C). The Arizona law provides no such safe harbor. Therefore, individuals could be prosecuted for conduct that Congress specifically sought to protect through the exemption. By seeking to punish conduct that Congress chose not to punish, the Arizona statute clearly poses an

20 Indeed, the likelihood of differing enforcement priorities is far from speculative. Under a current executive order, Arizona’s state policy is to consider young people without official permanent legal status, but who have been granted deferred action status by the federal government under the Deferred Action for Childhood Arrivals initiative, to be “unlawfully present aliens.” Executive Order 2012-06, “Re-Affirming Intent of Arizona Law in Response to the Federal Government’s Deferred Action Program,” (Aug. 15, 2012), available at http://azgovernor.gov/ dms/upload/EO_081512_2012-06.pdf. If the state applies this policy to its enforcement of § 13-2929, it would authorize the prosecution of those who transport or provide shelter to these young people despite the fact that the federal government has chosen to allow them to stay, and work, in the country.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 43 of 46

VALLE DEL SOL V. WHITING

43

obstacle to the accomplishment of the “full purposes and objectives of Congress,” Arizona, 132 S. Ct. at 2501, one of which was to protect certain religious activities from prosecution.

Second, § 13-2929(A)(3) criminalizes encouraging or inducing an alien to come to or reside in Arizona. Section 1324 criminalizes encouraging or inducing an alien to come to or reside in the United States but it does not penalize encouraging or inducing aliens, already in the United States, to travel from state to state or into any particular state. Therefore, § 13-2929 sweeps more broadly than its federal counterpart by adding a new category of prohibited activities. In doing so, it disrupts the uniformity of the federal scheme because some harboring activities involving unauthorized aliens are now punishable in Arizona but not elsewhere. Thus, in addition to disrupting the uniformity of enforcement by federal authorities, § 13-2929 disrupts the substantive uniformity of the harboring scheme. It does not “closely track[ § 1324] in all material respects.” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1981 (2011).

For the foregoing reasons, even were we to adopt Arizona’s interpretation of § 13-2929, it is conflict preempted by federal law.

IV . Non-Merits Factors

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 44 of 46

44

VALLE DEL SOL V. WHITING

For the reasons discussed in section II and III, we conclude that the plaintiffs are likely to succeed on the merits. The district court did not abuse its discretion in its analysis of the other non-merits factors. As discussed in section I, Santiago has demonstrated a credible threat of prosecution under the statute and the organizational plaintiffs have shown ongoing harms to their organizational missions as a result of the statute. Thus, the plaintiffs have established a likelihood of irreparable harm. See GLAHR, 691 F.3d at 1269 (finding a likelihood of irreparable harm because plaintiffs were “under the threat of state prosecution for crimes that conflict with federal law”); see also Arizona, 641 F.3d at 366 (“We have ‘stated that an alleged constitutional infringement will often alone constitute irreparable harm.’” (quoting Assoc. Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991))).

“‘[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.” Arizona, 641 F.3d at 366 (quoting Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009) vacated and remanded on other grounds sub nom. Douglas v. Indep. Living Ctr. Of S. Cal., Inc., 123 S. Ct. 1204 (2012) ). Therefore, the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction.

CONCLUSION

We hold that the individual plaintiff and organizational plaintiffs have standing to challenge Ariz. Rev. Stat. § 132929. We further hold that § 13-2929 is void for vagueness

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 45 of 46

VALLE DEL SOL V. WHITING

45

and, in the alternative, preempted by federal law. The district court’s partial grant of plaintiffs’ motion for a preliminary injunction is AFFIRMED.

BEA, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority opinion’s holdings regarding standing and the void for vagueness doctrine, as well as its holding that “the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction.” Op. at 44. I write separately to address Part III of the majority’s opinion, from which I respectfully dissent. Because this case is resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue. See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009) aff’d sub nom. Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) (“Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ [other] challenges to the Act . . . .”).1 And the “cardinal principle of
1 The Plaintiffs in Video Software Dealers filed suit seeking to invalidate a California statute, “which imposed restrictions and a labeling requirement on the sale or rental of ‘violent video games’ to minors, on the grounds that the Act violate[d] rights guaranteed by the First and Fourteenth Amendments.” Video Software Dealers, 556 F.3d at 953. The district court granted Plaintiffs’ motion for summary judgment, invalidating the Act based on the Free Speech Clause and declining to address Plaintiffs’ vagueness and Equal Protection arguments. Id. at 956. On appeal, the Ninth Circuit affirmed the district court’s grant of summary judgment to the Plaintiffs based on their Free Speech claim. Id. at 953. Because the court resolved the case based on the Free Speech Clause, it declined to address the Plaintiffs’ additional constitutional claims. Id.

Case: 12-17152 10/08/2013

ID: 8812749 DktEntry: 115-1 Page: 46 of 46

46

VALLE DEL SOL V. WHITING

judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment), cited in Morse v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring in the judgment in part and dissenting in part).

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
AUG 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ARIZONA DREAM ACT COALITION; JESUS CASTRO-MARTINEZ; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS,

No. 13-16248
D.C. No. 2:12-cv-02546-DGC District of Arizona, Phoenix

Plaintiffs - Appellants, v.

ORDER

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.

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges. The United States’ motion for extension of time to file an invitation brief is
GRANTED. Any such brief shall be filed no later than September 30, 2014.

 
 Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-1, Page 1 of 2

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
FEB 02 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS,

No. 15-15307
D.C. No. 2:12-cv-02546-DGC District of Arizona, Phoenix

Plaintiffs-Appellees,

ORDER

v.

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-Appellants.

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
The court’s opinion filed on April 5, 2016, appearing at 818 F.3d 901 (9th Cir. 2016), is hereby amended. An amended opinion, including a concurrence by Judge Berzon, is filed herewith.

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-1, Page 2 of 2
Judges Berzon and Christen voted to deny the petition for rehearing en banc, and Judge Pregerson so recommended.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED, and no further petitions for rehearing will be accepted.
2

FILED Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 1 of 12

FEB 02 2017

Arizona Dream Act Coal. v. Brewer, No. 15-15307

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

Circuit Judge KOZINSKI, with whom Circuit Judges O’SCANNLAIN,

BYBEE, CALLAHAN, BEA and N.R. SMITH join, dissenting from the denial of

rehearing en banc:

At the crossroads between two presidents, we face a fundamental question of presidential power. President Obama created, by executive memorandum, a sweeping new immigration program that gives the benefit of “deferred action” to millions of illegal immigrants who came to the United States before the age of sixteen. Deferred action confers no formal immigration status; it is simply a commitment not to deport. Arizona, like many states, does not issue drivers’ licenses to unauthorized aliens, and therefore refuses to issue drivers’ licenses to the program’s beneficiaries.
Does the Supremacy Clause nevertheless force Arizona to issue drivers’ licenses to the recipients of the President’s largesse? There’s no doubt that Congress can preempt state law; its power to do so in the field of immigration is particularly broad. But Congress never approved the deferred-action program: The President adopted it on his own initiative after Congress repeatedly declined to pass the DREAM Act—legislation that would have authorized a similar program. Undeterred, the panel claims that the President acted pursuant to authority “delegated to the executive branch” through the Immigration and Naturalization

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 2 of 12
page 2 Act (INA). Amended op. at 27. According to the panel, Congress gave the President the general authority to create a sprawling new program that preempts state law, even though Congress declined to create the same program.
This puzzling new preemption theory is at odds with the Supreme Court’s preemption jurisprudence; it is, instead, cobbled together out of 35-year-old Equal Protection dicta. It is a theory that was rejected with bemusement by the district court, see Ariz. Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049, 1057 (D. Ariz. 2013), only to be resurrected by the panel at the eleventh hour and buried behind a 3,000-word Equal Protection detour. It’s a theory that puts us squarely at odds with the Fifth Circuit, which held recently that “the INA flatly does not permit the [executive] reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits.” Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271, 2272 (2016) (per curiam). And it’s a theory that makes no mention of the foundational principle of preemption law: Historic state powers are not preempted “unless that was the clear and manifest purpose of Congress.” Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (internal quotation omitted).
The opinion also buckles under the weight of its own ambiguities. The

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 3 of 12
page 3 panel says repeatedly that Arizona has created “immigration classifications not found in federal law.” Amended op. at 30 n.8; see also id. at 35, 42. But Arizona follows federal law to the letter—that is, all laws passed by Congress and signed by the President. Thus, when the panel uses the term “law,” it means something quite different from what that term normally means: The panel in effect holds that the enforcement decisions of the President are federal law. Yet the lawfulness of the President’s policies is an issue that the panel bends over backward not to reach. See id. at 35–39. I am at a loss to explain how this cake can be eaten and yet remain on the plate: The President’s policies may or may not be “lawful” and may or may not be “law,” but are nonetheless part of the body of “federal law” that imposes burdens and obligations on the sovereign states. While the panel suggests other reasons to doubt Arizona’s response,1 the opinion’s slippery preemption theory simply isn’t one of them. See, e.g., Noah Feldman, Obama’s Wobbly Legal
1 I have little to say about the panel’s lengthy Equal Protection discussion. While this Equal Protection excursus eclipses the panel’s terse and enigmatic discussion of preemption, the panel is nonetheless clear that “we do not ultimately decide the Equal Protection issue.” Amended op. at 18. I note, however, that there are serious doubts about the coherence of the Supreme Court’s Equal Protection jurisprudence as applied to aliens. See, e.g., Korab v. Fink, 797 F.3d 572, 585 (9th Cir. 2014) (Bybee, J., concurring) (describing this jurisprudence as “riddled with exceptions and caveats that make consistent judicial review of alienage classifications difficult,” and suggesting an approach based solely on preemption).

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 4 of 12

page 4 Victory on Immigration, Bloomberg (Apr. 6, 2016) (describing the panel’s “precarious,” “tricky” and “funky” reasoning that is “vulnerable to reversal by the Supreme Court”).

*

*

*

In the summer of 2012, the President directed his officers not to remove

certain illegal immigrants who came to the United States before age sixteen. The

program, Deferred Action for Childhood Arrivals (DACA), did not clear any of the

normal administrative-law hurdles; the memorandum announcing the program

states that it “confers no substantive right, immigration status or pathway to

citizenship” because “[o]nly the Congress, acting through its legislative authority,

can confer these rights.” DHS Memorandum, Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United States as Children, June 15,

2012.

Arizona responded with an executive order of its own, stating, in apparent

agreement with the DACA memorandum, that the new federal program “does not

and cannot confer lawful or authorized status or presence upon the unlawful alien

applicants.” Ariz. Exec. Order 2012-06. Because Arizona law requires that

applicants for a driver’s license submit proof that their presence is “authorized

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 5 of 12
page 5 under federal law,” Ariz. Rev. Stat. § 28-3153(D)—and DACA “confers no substantive right [or] immigration status”—Arizona felt justified withholding licenses from illegal immigrants who happen to be DACA beneficiaries. Several DACA beneficiaries then sued Arizona, claiming, among other things, that the state’s policy was preempted.
The panel agrees, holding that Arizona’s policy “strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch.” Amended op. at 27 (emphasis added); see also id. at 17. One might think that the panel would present especially strong evidence of congressional delegation, such as an express statement to that effect. After all, it’s rare enough to find that Congress has kept an entire field to itself, much less ceded one to the executive. And the bar that preemption must clear is both well-established and high: The historic police powers of states are not preempted “unless that was the clear and manifest purpose of Congress.” E.g., Arizona, 132 S. Ct. at 2501; Wyeth v. Levine, 555 U.S. 555, 565 (2009); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
The panel doesn’t bother showing that Congress evinced a “clear and manifest purpose” before forcing the states to accept immigration classifications

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 6 of 12
page 6 invented entirely by the President. Indeed, the panel’s preemption analysis
mentions only two small provisions of the INA, and this thin statutory evidence cannot possibly carry the heavy burden of field preemption.2 The panel first notes
that the INA refers to an alien’s “period of stay authorized by the Attorney
General,” beyond which the alien is “deemed to be unlawfully present in the
United States.” Amended op. at 33 (quoting 8 U.S.C. § 1182(a)(9)(B)(ii)). But the
panel has now corrected its opinion to explain that this provision actually
contemplates the executive’s ability to “authorize” a period of stay only for a tiny
subset of aliens—those “previously removed”—and not, as its original opinion suggested, every class of immigrant covered by the statute.3
The panel’s second claim is that the REAL ID Act identifies deferred-action
2 The panel’s only other analysis of the INA, in its non-precedential Equal Protection discussion, makes the rather unremarkable point that the executive branch has responsibility for executing the INA. See amended op. at 13–16. This does not in any way help establish whether Congress intended the INA to let the executive branch preempt the states.
3 Compare Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 916 (9th Cir. 2016) with amended op. at 33 (adding “at least for purposes of § 1182(a)(9)(B)”). As the string of letters and numbers might suggest, § 1182(a)(9)(B) is not a large portion of the INA. This subsection also offers no support for a second reason: Even if it were true that an immigrant was “unlawfully present” if he stayed beyond a period approved by the Attorney General, this doesn’t mean he would be “lawfully present” if he didn’t stay beyond such a period. In formal logic, the inverse of a conditional cannot be inferred from the conditional.

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 7 of 12
page 7 immigrants “as being present in the United States during a ‘period of authorized stay,’ for the purpose of issuing state identification cards.” Amended op. at 34 (citation omitted). This narrow provision also can’t be authority for the proposition that the INA “delegated to the executive branch” the wholesale authority to preempt state law by declaring immigrants legal when they are not. Nor does this narrow provision conflict with Arizona’s policy: The provision actually says that a state “may only issue a temporary driver’s license or temporary identification card” to deferred-action immigrants—a limit, not a requirement. REAL ID Act of 2005, Pub. L. No. 109–13, § 202(c)(2)(C)(i) (emphasis added).
Nevertheless, the panel insists that this evidence “directly undermines” Arizona’s response to DACA. Amended op. at 33. That the panel can trawl the great depths of the INA—one of our largest and most complex statutes—and return with this meager catch suggests exactly the opposite conclusion: The INA evinces a “clear and manifest” intention not to cede this field to the executive. This is precisely the conclusion that the Fifth Circuit reached in Texas v. United States. Our sister circuit held that even if the President’s policies were of the type to which Chevron deference was owed—which the circuit assumed only for the sake of argument—such deference would be unavailable because “the INA expressly and carefully provides legal designations allowing defined classes of aliens to be

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 8 of 12

page 8 lawfully present.” See Texas, 809 F.3d at 179. In other words, the INA has spoken directly to the issue and “flatly does not permit” executive supplementation like the DACA program. Id. at 184. If what the panel relies on evinces a “clear and manifest purpose” to cede a field to the executive, it’s hard to imagine what statute doesn’t.4

*

*

*

Perhaps daunted by the lack of support in the statute it purports to interpret,

the panel turns to Supreme Court precedent, but it doesn’t fare much better here.

The primary case on which the panel relies, Plyler v. Doe, might contain some

impressive-sounding dicta—“The States enjoy no power with respect to the

classification of aliens,” 457 U.S. 202, 225 (1982)—but the reasons to reject this

dicta are more impressive still. As the district court put it when it rebuffed the

Plyler theory of preemption: “Plyler is not a preemption case.” 945 F. Supp. 2d at

1057. Justice Brennan’s 1982 majority opinion—a 5-4 opinion that garnered three

individual concurrences and has been questioned continuously since

4 And even if it were undeniably the case that Congress delegated the power of preemption to the President, I am skeptical that such a statute would be constitutional. The nondelegation doctrine is still waiting in the wings. See generally Whitman v. Am. Trucking Assocs., 531 U.S. 457 (2001).

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 9 of 12

publication—never once mentions preemption. See 457 U.S. at 205–30.5

page 9

The panel’s search for support in the Supreme Court’s actual preemption

jurisprudence is equally misguided. The panel quotes De Canas v. Bica for the

proposition that the “[p]ower to regulate immigration is unquestionably exclusively

a federal power.” Amended op. at 24 (quoting 424 U.S. 351, 354 (1976)). But the

panel overlooks the very next sentence of De Canas, which notes that “the Court

has never held that every state enactment which in any way deals with aliens is a

regulation of immigration and thus per se pre-empted.” 424 U.S. at 355. So

what’s “a regulation of immigration” that would be preempted? The De Canas

opinion tells us a couple of sentences later: It’s “essentially a determination of

who should or should not be admitted into the country, and the conditions under

which a legal entrant may remain.” Id. Denying a driver’s license is not

tantamount to denying admission to the country.6 Like the state law upheld in De

5 The case was also wrong ab initio and is due to be reconsidered. See, e.g., Eugene Volokh, Why Justices May Overrule ‘Plyler’ on Illegal Aliens, L.A. Daily J., Nov. 28, 1994, at 6 (describing objections to Plyler and reasons why it may be overruled).
6 The more recent cases cited by the panel—Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013), and United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012)—are easily distinguishable for this reason. They involved what the courts held to be an actual regulation of immigration—that is, “a determination of
(continued...)

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 10 of 12

Canas—which prevented California businesses from hiring illegal

page 10

immigrants—Arizona’s control over its drivers’ licenses is well “within the

mainstream of [the state’s] police power.” Id. at 356.

Indeed, it’s difficult to imagine a preemption case less helpful to the panel

than De Canas. The De Canas majority states explicitly that it will “not presume

that Congress, in enacting the INA, intended to oust state authority to regulate . . .

in a manner consistent with pertinent federal laws.” Id. at 357. That

uncontroversial proposition simply raises once more the question the panel works

hard to avoid: If Arizona relies on the categories drawn by the INA, but not those

of the executive branch, why isn’t it operating consistently with “pertinent federal

laws”? The panel never says.

*

*

*

Instead, we’re left with the enigmatic holding we started with: Arizona

“impermissibly strayed into an exclusive domain that Congress, through the INA,

delegated to the executive branch.” Amended op. at 27. This conclusion finds no

support in the actual text of the INA. It receives no help from the Court’s

6(...continued) 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.

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 11 of 12
page 11 preemption jurisprudence. And it is a brazen renegotiation of our federal bargain. If states must accept the complete policy classifications of the INA and also every immigration decision made by the President, then we’ve just found ourselves in a world where the President really can preempt state laws with the stroke of a pen.
The Constitution gives us a balance where federal laws “shall be the supreme law of the land,” but powers not delegated to the federal government “are reserved to the states.” U.S. Const., art. VI cl. 2; id. amend. X. The political branches of the federal government must act together to overcome state laws. Unison gives us clarity about what federal law consists of and when state law is subordinated. The vast power to set aside the laws of the sovereign states cannot be exercised by the President acting alone, with his power at its “lowest ebb.” Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).7
Presidential power can turn on and off like a spigot; what our outgoing President has done may be undone by our incoming President acting on his own. The judiciary might find itself, after years of litigation over a President’s policy,
7 We are not in the “zone of twilight,” Youngstown, 343 U.S. at 637, where the distribution of presidential and congressional power is uncertain. Congress has repeatedly declined to act—refusing time and time again to pass the DREAM Act—so the President is flying solo.

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-2, Page 12 of 12
page 12 faced with a change in administration and a case on the verge of mootness.8 And our precedent may long outlive the DACA program: We may soon find ourselves with new conflicts between the President and the states. See, e.g., California and Trump Are on a Collision Course Over Immigrants Here Illegally, L.A. Times, Nov. 11, 2016; Cities Vow to Fight Trump on Immigration, Even if They Lose Millions, N.Y. Times, Nov. 27, 2016.
These looming conflicts should serve as a stark reminder: Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true.
8 Mootness concerns aren’t theoretical. In Texas v. United States—the direct challenge to the Obama Administration’s immigration policies over which the Supreme Court split 4-4—the parties filed a joint motion to stay the merits proceedings until one month after the presidential inauguration. See Joint Motion to Stay, No. 1:14-cv-00254, Doc. 430 (Nov. 18, 2016).

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 1 of 44
FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

FEB 02 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS,

No. 15-15307 D.C. No. 2:12-cv-02546-DGC
AMENDED OPINION

Plaintiffs - Appellees,
v.
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 - Appellants.

Appeal from the United States District Court for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted July 16, 2015 Pasadena, California

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 2 of 44
Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges.
Opinion by Judge Harry Pregerson, Senior Circuit Judge: Plaintiffs are five individual recipients of deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program, and the Arizona DREAM Act Coalition (“ADAC”), an organization that advances the interests of young immigrants. DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court’s ruling that the federal government “has broad, undoubted power over the subject of immigration and the status of aliens” under the Constitution. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). In response to the creation of the DACA program, Defendants—the Governor of the State of Arizona; the Arizona Department of Transportation (“ADOT”) Director; and the Assistant Director of the Motor Vehicle Division—instituted a policy that rejected the Employment Authorization Documents (“EADs”) issued to DACA recipients under the DACA program as
2

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 3 of 44
proof of authorized presence for the purpose of obtaining a driver’s license. Plaintiffs seek permanently to enjoin Defendants from categorically denying drivers’ licenses to DACA recipients. The district court ruled that Arizona’s policy was not rationally related to a legitimate government purpose and thus violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted Plaintiffs’ motion for summary judgment and entered a permanent injunction. Defendants appealed.
We agree with the district court that DACA recipients are similarly situated to other groups of noncitizens Arizona deems eligible for drivers’ licenses. As a result, Arizona’s disparate treatment of DACA recipients may well violate the Equal Protection Clause, as our previous opinion indicated is likely the case. Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014). The district court relied on this ground when it issued the permanent injunction. Applying the principle of constitutional avoidance, however, we need not and should not come to rest on the Equal Protection issue, even if it “is a plausible, and quite possibly meritorious” claim for Plaintiffs, so long as there is a viable alternate, nonconstitutional ground to reach the same result. Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1211
3

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 4 of 44
(9th Cir. 2005) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 576–78 (1988)).
We conclude that there is. Arizona’s policy classifies noncitizens based on Arizona’s independent definition of “authorized presence,” classification authority denied the states under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. We therefore affirm the district court’s order granting summary judgment and entry of a permanent injunction, on the basis that Arizona’s policy is preempted by the exclusive authority of the federal government to classify noncitizens. See Weiser v. United States, 959 F.2d 146, 147 (9th Cir. 1992) (“[This court] can affirm the district court on any grounds supported by the record.”).
FACTUAL BACKGROUND I. The DACA Program
On June 15, 2012, the Department of Homeland Security announced the DACA program pursuant to the DACA Memorandum. Under the DACA program, the Department of Homeland Security exercises its prosecutorial discretion not to seek removal of certain young immigrants. The DACA program allows these young immigrants, including members of ADAC, to remain in the United States for some period of time as long as they meet specified conditions.
4

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 5 of 44
To qualify for the DACA program, immigrants must have come to the United States before the age of sixteen and must have been under the age of thirtyone by June 15, 2012. See Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). They must have been living in the United States at the time the DACA program was announced and must have continuously resided here for at least the previous five years. Id. Additionally, DACA-eligible immigrants must be enrolled in school, have graduated from high school, have obtained a General Educational Development certification, or have been honorably discharged from the U.S. Armed Forces or Coast Guard. Id. They must not pose a threat to public safety and must undergo extensive criminal background checks. Id.
If granted deferred action under DACA, immigrants may remain in the United States for renewable two-year periods. DACA recipients enjoy no formal immigration status, but the Department of Homeland Security does not consider them to be unlawfully present in the United States and allows them to receive federal EADs. II. Arizona’s Executive Order
5

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 6 of 44
On August 15, 2012, the Governor of Arizona issued Arizona Executive Order 2012–06 (“Arizona Executive Order”). Executive Order 2012–06, “ReAffirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program” (Aug. 15, 2012). A clear response to DACA, the Arizona Executive Order states that “the Deferred Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants.” Id. at 1. The Arizona Executive Order announced that “[t]he issuance of Deferred Action or Deferred Action USCIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit.” Id. The Order directed Arizona state agencies, including ADOT, to “initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver’s license.” Id. III. Arizona’s Driver’s License Policy
To implement the Arizona Executive Order, officials at ADOT and its Motor Vehicle Division initiated changes to Arizona’s policy for issuing drivers’ licenses. Under Arizona state law, applicants can receive a driver’s license only if they can
6

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 7 of 44
“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). Prior to the Arizona Executive Order, ADOT Policy 16.1.2 included all federally issued EADs as “proof satisfactory” that an applicant’s presence was “authorized under federal law.” The Motor Vehicle Division therefore issued drivers’ licenses to all individuals with such documentation.
After the Arizona Executive Order, the Motor Vehicle Division announced that it would not accept EADs issued to DACA recipients—coded by the Department of Homeland Security as (c)(33)—as proof that their presence in the United States is “authorized under federal law.” The Motor Vehicle Division continued to accept federally issued EADs from all other noncitizens as proof of their lawful presence, including individuals who received deferred action outside of the DACA program and applicants coded (c)(9) (individuals who have applied for adjustment of status), and (c)(10) (individuals who have applied for cancellation of removal).
In 2013, ADOT revised its policy again. Explaining this change, ADOT Director John S. Halikowski testified that Arizona views an EAD as proof of presence authorized under federal law only if the EAD demonstrates: (1) the applicant has formal immigration status; (2) the applicant is on a path to obtaining
7

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 8 of 44
formal immigration status; or (3) the relief sought or obtained is expressly provided pursuant to the INA. Using these criteria, ADOT began to refuse driver’s license applications that relied on EADs, not only from DACA recipients, but also from beneficiaries of general deferred action and deferred enforced departure. It continued to accept as proof of authorized presence for purposes of obtaining drivers’ licenses EADs from applicants with (c)(9) and (c)(10) status. We refer to the policy that refuses EADs from DACA recipients as “Arizona’s policy.” IV. Preliminary Injunction
On November 29, 2012, Plaintiffs sued Defendants in federal district court, alleging that Arizona’s policy of denying drivers’ licenses to DACA recipients violates the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution. Plaintiffs sought declaratory relief and a preliminary injunction prohibiting Defendants from enforcing their policy against DACA recipients. On May 16, 2013, the district court ruled that Arizona’s policy likely violated the Equal Protection Clause but it declined to grant the preliminary injunction because Plaintiffs had not shown irreparable harm. ADAC v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013) (“ADAC I”), reversed by ADAC v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (“ADAC II”). It also granted Defendants’ motion to dismiss the Supremacy
8

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 9 of 44
Clause claim. Id. at 1077–78. Plaintiffs appealed the district court’s denial of a preliminary injunction. V. Permanent Injunction
While Plaintiffs’ appeal of the preliminary injunction ruling was pending, Plaintiffs sought a permanent injunction in district court on Equal Protection grounds and moved for summary judgment. Defendants also moved for summary judgment, arguing that DACA recipients are not similarly situated to other noncitizens who are eligible for drivers’ licenses under Arizona’s policy.
We reversed the district court’s decision on the motion for preliminary injunction, agreeing with the district court that Arizona’s policy likely violated the Equal Protection Clause and holding that Plaintiffs had established that they would suffer irreparable harm as a result of its enforcement. See ADAC II, 757 F.3d at 1064. In a concurring opinion, one member of our panel concluded that Plaintiffs also demonstrated a likelihood of success on their claim that Arizona’s policy was preempted. Id. at 1069 (Christen, J., concurring). On January 22, 2015, the district court granted Plaintiffs’ motion for summary judgment and entered a permanent injunction. ADAC v. Brewer, 81 F. Supp. 3d 795 (D. Ariz. 2015) (“ADAC III”). We affirm the district court’s order.
STANDARD OF REVIEW
9

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 10 of 44
We review the district court’s grant or denial of motions for summary judgment de novo. Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994). We determine whether there are any genuine issues of material fact and review the district court’s application of substantive law. Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2011). We “may affirm a grant of summary judgment on any ground supported by the record.” Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014).
We review the district court’s decision to grant a permanent injunction for abuse of discretion. La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014) (citing Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 941 (9th Cir. 2002)). We review questions of law underlying the district court’s decision de novo. See Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003). “If the district court ‘identified and applied the correct legal rule to the relief requested,’ we will reverse only if the court’s decision ‘resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.’” Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
DISCUSSION
10

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 11 of 44
I. Equal Protection A. Similarly Situated “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) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To prevail on an Equal Protection claim, plaintiffs must show “that a class that is similarly situated has been treated disparately.” Christian Gospel Church, Inc. v. City & Cty. of S.F., 896 F.2d 1221, 1225 (9th Cir. 1990), superseded on other grounds by 42 U.S.C. § 2000e.
“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). In this instance, DACA recipients do not need to be similar in all respects to other noncitizens who are eligible for drivers’ licenses, but they must be similar in those respects that are relevant to Arizona’s own interests and its policy. See Nordlinger
11

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 12 of 44
v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” (emphasis added)).
We previously held that DACA recipients and other categories of noncitizens who may rely on EADs are similarly situated with regard to their right to obtain drivers’ licenses in Arizona. See ADAC II, 757 F.3d at 1064. The material facts and controlling authority remain the same from the preliminary injunction stage. Thus, we again hold that in all relevant respects DACA recipients are similarly situated to noncitizens eligible for drivers’ licenses under Arizona’s policy. Nonetheless, for clarity and completeness, we address once more Defendants’ arguments.
Defendants assert that DACA recipients are not similarly situated to other noncitizens eligible for drivers’ licenses under Arizona’s policy because DACA recipients neither received nor applied for relief provided by the INA, or any other relief authorized by federal statute. Particularly relevant here, Defendants note that eligible noncitizens under the categories of (c)(9) and (c)(10) are tied to relief expressly found in the INA: adjustment of status (INA § 245; 8 U.S.C. § 1255; 8 C.F.R. § 274a.12(c)(9)) and cancellation of removal (INA § 240A; 8 U.S.C. § 1229b; 8 C.F.R. § 274a.12(c)(10)), respectively. In contrast, Defendants contend
12

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 13 of 44
that DACA recipients’ presence in the United States does not have a connection to federal law but rather reflects the Executive’s discretionary decision not to enforce the INA.
We continue to disagree. See ADAC II, 757 F.3d at 1061. As explained below, Arizona has no cognizable interest in making the distinction it has for drivers’ licenses purposes. The federal government, not the states, holds exclusive authority concerning direct matters of immigration law. DeCanas v. Bica, 424 U.S. 351, 354 (1976), superseded by statute on other grounds as recognized in Arizona, 132 S. Ct. at 2503–04. The states therefore may not make immigration decisions that the federal government, itself, has not made, Plyler, 457 U.S. at 225 (citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Arizona’s encroachment into immigration affairs—making distinctions between groups of immigrants it deems not to be similarly situated, despite the federal government’s decision to treat them similarly—therefore seems to exceed its authority to decide which aliens are similarly situated to others for Equal Protection purposes. In other words, the “similarly situated” analysis must focus on factors of similarity and distinction pertinent to the state’s policy, not factors outside the realm of its authority and concern.
13

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 14 of 44
Putting aside that limitation, the INA explicitly authorizes the Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization. INA § 103(a)(1); 8 U.S.C. § 1103(a)(1). As part of this authority, it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.
The INA expressly provides for deferred action as a form of relief that can be granted at the Executive’s discretion. For example, INA § 237(d)(2); 8 U.S.C. § 1227(d)(2), allows a noncitizen who has been denied an administrative stay of removal to apply for deferred action. Certain individuals are also “eligible for deferred action” under the INA if they qualify under a set of factors. See INA § 204(a)(1)(D)(i)(II); 8 U.S.C. § 1154(a)(1)(D)(i)(II). Deferred action is available to individuals who can make a showing of “exceptional circumstances.” INA § 240(e); 8 U.S.C. § 1229a(e). By necessity, the federal statutory and regulatory scheme, as well as federal case law, vest the Executive with very broad discretion to determine enforcement priorities.1
1 Pursuant to this discretion, the Department of Homeland Security and its predecessor, the Immigration and Naturalization Service (“INS”), established a series of general categorical criteria to guide enforcement. For example, the 1978 INS Operating Instructions outlined five criteria for officers to consider in
(continued...) 14

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 15 of 44
Congress expressly charged the Department of Homeland Security with the
responsibility of “[e]stablishing national immigration enforcement policies and
priorities.” 6 U.S.C. § 202(5). The Department of Homeland Security regulations
describe deferred action as “an act of administrative convenience to the
government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).
Additionally, the Supreme Court has made it clear that “an agency’s decision not to
prosecute or enforce, whether through civil or criminal process, is a decision
generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470
U.S. 821, 831 (1985). The Supreme Court has explained that the Secretary has
discretion to exercise deferred action at each stage of the deportation process, and
has acknowledged the long history of the Executive “engaging in a regular practice
1(...continued) exercising prosecutorial discretion, including “advanced or tender age.” O.I. 103.1(a)(1)(ii); see also Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983). Discretion can also cut the other way. For example, the 2011 Morton Memo highlighted “whether the person poses national security or public safety concern,” Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), and the 2014 Johnson Memo identifies the “highest [enforcement] priority” as noncitizens who might represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (November 20, 2014).
15

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 16 of 44
. . . of exercising that discretion for humanitarian reasons or simply for its own
convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
483–84 (1999); see also id. n.8; Arizona, 132 S. Ct. at 2499 (noting that “[a]
principal feature of the removal system is the broad discretion exercised by” the
Executive); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (noting the
State of Texas’s concession that the INA “places no substantive limits on the
Attorney General and commits enforcement of the INA to her discretion”).2
Defendants’ argument fails because they attempt to distinguish categories of
EAD-holders in a way that does not amount to any relevant difference. Like
2 In the past, the Department of Homeland Security and the INS have granted deferred action to different groups of noncitizens present in the United States. In 1977, the Attorney General granted stays of removal to 250,000 nationals of certain countries (known as “Silva Letterholders”). Silva v. Levi, No. 76-C4268 (N.D. Ill. 1977), modified on other grounds sub nom. Silva v. Bell, 605 F.2d 978 (7th Cir.1979). In 1990, the INS instituted the “Family Fairness” program that deferred the deportation of 1.5 million family members of noncitizens who were legalized through the Immigration Reform and Control Act. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, “Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens” (Feb. 2, 1990). In 1992, President Bush directed the Attorney General to grant deferred enforced departure to 190,000 Salvadorans. See Immigration Act of 1990 § 303, Public Law 101-649 (Nov. 29, 1990); https://www.gpo.gov/fdsys/pkg/FR1994-12-06/html/94-30088.htm. And nationals of Liberia were granted deferred enforced departure until September 30, 2016, http://www.uscis.gov/humanitarian/ temporary-protected-status-deferred-enforced-departure/deferred-enforced-departu re.
16

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 17 of 44
adjustment of status, (c)(9), and cancellation of removal, (c)(10), deferred action is a form of relief grounded in the INA. Moreover, the exercise of prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by the INA.
Defendants provide two criteria to explain when they deem an EAD satisfactory proof of authorized presence: the applicant has formal immigration status, or the applicant is on the path to formal immigration status. Neither criteria suffices to render DACA recipients not similarly situated to other EAD-holders on any basis pertinent to Arizona’s decision whether to grant them drivers’ licenses. Like DACA recipients, many noncitizens who apply for adjustment of status and cancellation of removal—including individuals with (c)(9) and (c)(10) EADs—do not, and may never, possess formal immigration status. See Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir. 2011).
Additionally, “submission of an application does not connote that the alien’s immigration status has changed.” Thus, merely applying for immigration relief does not signal a clear path to formal immigration status. 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)). Indeed, given how frequently these applications are denied, “the supposed ‘path’ may lead to a dead end.” ADAC II, 757 F.3d at
17

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 18 of 44
1065. In this regard, noncitizens holding (c)(9) and (c)(10) EADs are no different from DACA recipients. And as discussed above, DACA recipients have a temporary reprieve—deferred action—that is provided for by the INA, pursuant to the prosecutorial discretion statutorily delegated to the Executive.
Therefore, in all relevant respects, DACA recipients are similarly situated to other categories of noncitizens who may rely on EADs to obtain drivers’ licenses under Arizona’s policy.
B. State Interest The next step in an Equal Protection analysis is to determine the applicable level of scrutiny. Country Classic Dairies, 847 F.2d at 596. Although we do not ultimately decide the Equal Protection issue, we remain of the view, articulated in our preliminary injunction opinion, that Arizona’s policy may well fail even rational basis review. So, as before, we need not reach what standard of scrutiny applies.3 See ADAC II, 757 F.3d at 1065.
3 In cases involving alleged discrimination against noncitizens authorized to be present in the United States, the Supreme Court has consistently applied strict scrutiny to the state action at issue. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Graham v. Richardson, 403 U.S. 365, 372 (1971). Where the alleged discrimination targets noncitizens who are not authorized to be present, the Supreme Court applies rational basis review. See Plyler, 457 U.S. at 223–24.
18

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 19 of 44
Arizona’s policy must be “rationally related to a legitimate state interest” to withstand rational basis review. City of Cleburne, 473 U.S. at 440. On appeal, Defendants advance six rationales for Arizona’s policy, none of which persuade us that Plaintiffs’ argument under the Equal Protection Clause is not at least sufficiently strong to trigger the constitutional avoidance doctrine we ultimately invoke.
First, Defendants argue that Arizona’s policy is rationally related to the State’s concern that it could face liability for improperly issuing drivers’ licenses to DACA recipients. But as the district court observed, the depositions of ADOT Director John S. Halikowski and Assistant Director of the Motor Vehicle Division Stacey K. Stanton did not yield support for this rationale. Neither witness was able to identify any instances in which the state faced liability for issuing licenses to noncitizens not authorized to be present in the country. ADAC III, 81 F. Supp. 3d at 807. So the record probably does not establish that there is a rational basis for this concern.
Second, Defendants contend that Arizona’s policy serves the State’s interest in preventing DACA recipients from making false claims for public assistance. As the district court noted, however, Director Halikowski and Assistant Director Stanton testified that they had no basis for believing that drivers’ licenses could be
19

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 20 of 44
used to access state and federal benefits. It follows that this concern is probably not a rational basis justifying Arizona’s policy either. Id. (citing ADAC II, 757 F.3d at 1066).
Third, Defendants claim that Arizona’s policy is meant to reduce the administrative burden of issuing drivers’ licenses to DACA recipients, only to have to revoke them once the DACA program is terminated. The district court found this argument lacked merit, noting this court’s observation that it is less likely that Arizona will need to revoke the licenses of DACA recipients than of noncitizens holding (c)(9) and (c)(10) EADs, because applications for adjustment of status or cancellation of removal are routinely denied.4 ADAC III, 81 F. Supp. 3d at 807 (citing ADAC II, 757 F.3d at 1066–67). Indeed, noncitizens with (c)(10) EADs are already in removal proceedings, which means they are further along in the deportation process than are many DACA recipients. The administrative burden of issuing and revoking drivers’ licenses for DACA recipients is not greater than the burden of issuing and revoking drivers’ licenses for noncitizens holding (c)(9) and (c)(10) EADs. Certainly, the likelihood of having to do so does not distinguish
4 Defendants suggest “later-developed facts” indicate that noncitizens holding (c)(9) and (c)(10) EADs are on the path to permanent residency. We are not convinced that achieving certain forms of relief (adjustment of status or cancellation of removal) alters the fact that applications for such relief are regularly denied in very great numbers.
20

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 21 of 44
these two classes of noncitizens, as (c)(9) and (c)(10) applications for relief are frequently denied.
Fourth, Defendants argue that Arizona has an interest in avoiding financial harm to individuals who may be injured in traffic accidents by DACA recipients. Defendants contend that individuals harmed by DACA recipients may be left without recourse when the DACA program is terminated and DACA recipients are removed from the country. But this rationale applies equally to individuals with (c)(9) and (c)(10) EADs. These noncitizens may find their applications for immigration relief denied and may be quickly removed from the country, leaving those injured in traffic accidents exposed to financial harm. Nevertheless, Arizona issues drivers’ licenses to noncitizens holding (c)(9) and (c)(10) EADs.
Fifth, Defendants contend that denying licenses to DACA recipients serves the goal of consistently applying ADOT policy. But ADOT inconsistently applies its own policy by denying licenses to DACA recipients while providing licenses to holders of (c)(9) and (c)(10) EADs. Arizona simply has no way to know what “path” noncitizens in any of these categories will eventually take. DACA recipients appear similar to individuals who are eligible under Arizona’s policy with respect to all the criteria ADOT relies on. ADOT thus applies its own immigration classification with an uneven hand by denying licenses only to DACA
21

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 22 of 44
recipients. See, e.g., Yick Wo. v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[I]f [the law] is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”).
Sixth, Defendants claim that Arizona’s policy is rationally related to ADOT’s statutory obligation to administer the state’s driver’s license statute. ADOT’s disparate treatment of DACA recipients pursuant to the driver’s license statute relies on the premise that federal law does not authorize DACA recipients’ presence in the United States. This rationale is essentially an assertion of the state’s authority to decide whether immigrants’ presence is authorized under federal law. Rather than evaluating that assertion as part of the Equal Protection analysis, we defer doing so until our discussion of our ultimate, preemption ground for decision, which we adopt as part of our constitutional avoidance approach.
Before proceeding to that discussion, it bears noting, once again, see ADAC II, 757 F.3d at 1067, that the record does suggest an additional reason for Arizona’s policy: a dogged animus against DACA recipients. The Supreme Court has made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice. See Romer v. Evans, 517
22

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 23 of 44
U.S. 620, 634 (1996); see also City of Cleburne, 473 U.S. at 464 (Marshall, J., concurring in the judgment in part, and dissenting in part) (“Prejudice, once let loose, is not easily cabined.”). “The Constitution’s guarantee of equality must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group.” United States v. Windsor, 133 S. Ct. 2675, 2681 (2013) (citation omitted). II. Preemption
We do not “decide federal constitutional questions where a dispositive nonconstitutional ground is available.” City of L.A. v. Cty. of Kern, 581 F.3d 841, 846 (9th Cir. 2009) (quoting Correa v. Clayton, 563 F. 2d 396, 400 (9th Cir. 1977)). While preemption derives its force from the Supremacy Clause of the Constitution, “it is treated as ‘statutory’ for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudications.” Douglas v. Seacoast Prods., 431 U.S. 265, 271–72 (1977).5 Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an
5 Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance. See Hotel Emps. & Rest. Emps. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1512 (9th Cir. 1993) (holding that Pullman abstention was not warranted for preemption claims because “preemption is not a constitutional issue.”); Knudsen Corp. v. Nev. State Dairy Comm’n, 676 F.2d 374, 377 (9th Cir. 1982) (same).
23

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 24 of 44
alternative to resting our decision on the Equal Protection Clause.6 Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.
The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas, 424 U.S. at 354. 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. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The Supreme Court has also indicated that the INA provides a pervasive framework with regard to the admission, removal, and presence of aliens. See Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas, 424 U.S. at 353, 359); cf.
6 In their opening brief, Defendants argue preemption is not properly before this court because Plaintiffs did not appeal the district court’s dismissal of their preemption claim. But at oral argument, defense counsel offered to provide supplemental briefing on the issue. Separately, Plaintiffs noted that Defendants raised the Take Care argument for the first time on appeal and argued it ought not be considered because it was not presented to the district court. Following oral argument, we requested and the parties submitted supplemental briefing on both issues. Defendants’ supplemental brief conceded that, in light of the considerations articulated in Olympia Pipe Line Co. v. City of Seattle, 437 F.3d 872 (9th Cir. 2006), we may properly consider preemption in this case.
24

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 25 of 44
Arizona, 132 S. Ct. at 2499 (“Federal governance of immigration and alien status is extensive and complex.”).
Traditionally, federal law preempts state law when: (1) Congress expressly includes a preemption provision in federal law; (2) states attempt to “regulat[e] conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance”; or (3) state law conflicts with federal law, either because “compliance with both federal and state regulations is a physical impossibility” or “state law ‘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 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963), and Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
“The States enjoy no power with respect to the classification of aliens.” Plyler v. Doe, 457 U.S. 202, 225 (1982). The Supreme Court has also expressly recognized that the source of preemption in the immigration context is unique. The “[f]ederal authority to regulate the status of aliens derives” not from one specific federal law or network of laws, but “from various sources, including the Federal Government’s power ‘[t]o establish [a] uniform Rule of Naturalization,’. . . its power ‘[t]o regulate Commerce with foreign Nations,’ and its broad authority over
25

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 26 of 44
foreign affairs . . . .” Toll v. Moreno, 458 U.S. 1, 10 (1982). Supreme Court precedent explains that “neither a clear encroachment on exclusive federal power to admit aliens nor a clear conflict with a specific congressional purpose” is required in order for federal law to preempt state regulations of immigrants. See id. at 11 n.16 (internal quotation marks omitted). “Not surprisingly, . . . [Supreme Court] cases have also been at pains to note the substantial limitations upon the authority of the States in making classifications based upon alienage.” Id. at 10.
To be sure, not all state regulations touching on immigration are preempted. See Chamber of Commerce, 131 S. Ct. at 1974. But states may not directly regulate immigration, Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), and the power to classify aliens for immigration purposes is “committed to the political branches of the Federal Government.” Plyler, 457 U.S. at 225 (quoting Mathews, 426 U.S. at 81). Arizona prohibits the issuance of drivers’ licenses to anyone who does not submit proof that his or her presence in the United States is “authorized under federal law,” Ariz. Rev. Stat. § 28-3153(D), and then purports to create its own independent definition of “authorized under federal law,” one that excludes DACA beneficiaries. Because Arizona created a new immigration classification when it adopted its policy regarding driver’s license
26

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 27 of 44
eligibility, it impermissibly strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch.
States can regulate areas of traditional state concern that might impact noncitizens. See DeCanas, 424 U.S. at 355. Permissible state regulations include those that mirror federal objectives and incorporate federal immigration classifications. Plyler, 457 U.S. at 225-26. But a law that regulates an area of traditional state concern can still effect an impermissible regulation of immigration.
For example, in Takahashi v. Fish & Game Commission, the Supreme Court observed that a state regulation of entitlement to commercial fishing licenses based on immigration classifications conflicted with the “constitutionally derived federal power to regulate immigration.” 334 U.S. 410, 419 (1948). In Toll v. Moreno, the Supreme Court held that preemption principles foreclosed a state policy concerning the imposition of tuition charges and fees at a state university on the basis of immigration status. 458 U.S. 1, 16-17 (1982). Similarly, the Third Circuit has held that municipal ordinances preventing unauthorized aliens from renting housing constituted an impermissible regulation of immigration and were preempted by the INA. Lozano v. City of Hazleton, 724 F.3d 297, 317 (3d Cir. 2013). Although the housing ordinances did not directly regulate immigration in
27

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 28 of 44
the sense of dictating who could or could not be admitted into the United States, the Third Circuit concluded that they impermissibly “intrude[d] on the regulation of residency and presence of aliens in the United States.” Id. (emphasis added).
Similarly, the Fifth Circuit 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). The Fifth Circuit’s decision was based on its recognition that “[t]he federal government alone . . . has the power to classify non-citizens.” Id. In accord with these decisions, the Eleventh Circuit held 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.” See United States v. Alabama, 691 F.3d 1269, 1292–96 (11th Cir. 2012).
Cases involving the allocation of state resources on the basis of immigration classifications frequently raise both equal protection and preemption concerns. Some decisions applying preemption principles have ultimately rested on equal protection grounds, see, e.g., Takahashi, 334 U.S. 410. In Toll, however, the Supreme Court noted commentators’ observations “that many of the Court’s
28

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 29 of 44
decisions concerning alienage classifications, such as Takahashi, are better explained in pre-emption than in equal protection terms.” 458 U.S. at 11 n.16.
Here, Arizona’s policy ostensibly regulates the issuance of drivers’ licenses, admittedly an area of traditional state concern. See Chamber of Commerce, 131 S. Ct. at 1983. But its policy necessarily “embodies the State’s independent judgment that recipients of [DACA] are not ‘authorized’ to be present in the United States ‘under federal law.’” ADAC II, 757 F.3d at 1069 (Christen, J., concurring). Indeed, the Arizona Executive Order declared that “the Deferred Action program does not and cannot confer lawful or authorized . . . presence upon the unlawful alien applicants.” Executive Order 2012–06 at 1. The Order also announced Arizona’s view that “[t]he issuance of Deferred Action or Deferred Action . . . [EADs] to unlawfully present aliens does not confer upon them any lawful or authorized status.” Id. (emphasis added). To implement the Order, ADOT initiated a policy of denying licenses to DACA recipients pursuant to Arizona’s driver’s license statute, which requires that applicants “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) (emphasis added).
29

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 30 of 44
Arizona points to three criteria to justify treating EAD recipients differently than individuals with (c)(9) and (c)(10) EADs,7 even though the federal government treats their EADs the same in all relevant respects. But Arizona’s three criteria—that an applicant: has formal status; is on a path to formal status; or has applied for relief expressly provided for in the INA—cannot be equated with “authorized presence” under federal law. DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for an undefined period of time, provided they comply with certain conditions.
Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design,8 thereby engaging in an
7 As we have noted, 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).
8 Defendants’ continual insistence that Arizona’s policy is not preempted because the DACA program lacks “the force of law” reflects a misunderstanding of the preemption question. Preemption is not a gladiatorial contest that pits the DACA Memorandum against Arizona’s policy. Nor does this opinion rely on the
(continued...) 30

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 31 of 44
“exercise of regulatory bricolage,” ADAC II, 757 F.3d at 1072 (Christen, J., concurring), despite the fact that “States enjoy no power with respect to the classification of aliens,” Plyler, 457 U.S. at 225.
That this case involves classes of aliens the Executive has, as a matter of discretion, placed in a low priority category for removal is a further consideration weighing against the validity of Arizona’s policy. 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, 525 U.S. at 484–86. The discretion built into statutory removal procedures suggests that auxiliary state regulations regarding the presence of aliens in the United States are particularly intrusive on the overall federal statutory immigration scheme.
8(...continued) DACA Memorandum for its conclusion that Arizona’s policy is preempted by federal law. Rather, Arizona’s policy is preempted by the supremacy of federal authority under the INA to create immigration categories. Indeed, because Arizona’s novel classification scheme includes not just DACA recipients but also recipients of regular deferred action and deferred enforced departure, our conclusion that Arizona’s scheme impermissibly creates immigration classifications not found in federal law is not dependent upon the continued vitality of the DACA program.
31

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 32 of 44
Unable to point to any federal statute or regulation that justifies classifying individuals with (c)(9) and (c)(10) EADs as authorized to be present while excluding recipients of deferred action or deferred enforced departure, Defendants argue that Arizona properly relied on statements by the U.S. Citizenship and Immigration Service that “make clear that deferred action does not confer a lawful immigration status.” These statements take the form of an email from a local U.S. Citizenship and Immigration Service Community Relations Officer in response to an inquiry from ADOT. In the email, the officer notes that DACA recipients applying for work authorization should fill in category “C33” and not category “C14,” which is the category for regular deferred action.
This email does nothing to further Defendants’ argument. The officer’s statement in no way suggests that federal law supports Arizona’s novel classifications. And even if it did, an email from a local U.S. Citizenship and Immigration Services Officer is not a source of “federal law,” nor an official statement of the government’s position.9
9 In ADAC II, Defendants also argued that a “Frequently Asked Questions” section of the U.S. Citizenship and Immigration Services Website and a Congressional Research Service Memorandum demonstrated that Arizona’s classification found support in federal law. See 757 F.3d at 1073. We understand Defendants to have abandoned these arguments. But even if they had not, neither source is a definitive statement of federal law.
32

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 33 of 44
The INA, indeed, directly undermines Arizona’s novel classifications. 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,” at least for purposes of § 1182(a)(9)(B). INA § 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B)(ii) (emphases added). The administrative regulations implementing this section of the INA, to which we owe deference, establish that deferred action recipients do not accrue “unlawful presence” 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 provisionally present without being admitted or paroled, their stay must be considered “authorized by the Attorney General,” for purposes of this statute. INA § 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B).
The REAL ID Act, which amended the INA, further undermines Arizona’s interpretation of “authorized presence.” REAL ID Act of 2005, Pub. L. No. 10913, div. B, 119 Stat. 231. The Real ID Act amendments provide that states may issue a driver’s license or identification card to persons who can demonstrate they are “authorized [to] stay in the United States.” Id. § 202(c)(2)(C)(i)–(ii). Persons
33

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 34 of 44
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). We point to these statutory definitions not as examples of all-encompassing congressionally authorized decisions about who may remain in the United States, but as examples of the federal government exercising its exclusive authority to classify immigrants.
Despite Arizona’s clear departure from federal immigration classifications, Defendants argue Arizona’s policy is not a “back-door regulation of immigration.” They compare it to the Louisiana Supreme Court policy the Fifth Circuit upheld in LeClerc v. Webb, which prohibited any alien lacking permanent resident status from joining the state bar. 419 F.3d 405, 410 (5th Cir. 2005). But the Louisiana Supreme Court did not create a novel immigration classification as Arizona does here. Rather, it permissibly borrowed from existing federal classifications, distinguishing “those aliens who have attained permanent resident status in the United States” from those who have not. Id. (quoting In re Bourke, 819 So. 2d 1020, 1022 (La. 2002)).
Defendants also argue that sections of the INA granting states discretion to provide public benefits to certain aliens, including deferred action recipients, suggest that Congress “has not intended to occupy a field so vast that it precludes
34

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 35 of 44
all state regulations that touch upon immigration.” See 8 U.S.C. §§ 1621, 1622. But we do not conclude that Congress has preempted all state regulations that touch upon immigration. Arizona’s policy is preempted because, in determining which aliens shall be eligible to receive a state benefit, Arizona created new immigration classifications based on its independent view of who is authorized under federal law to be present in the United States.
Defendants offer no foundation for an interpretation of federal law that classifies individuals with (c)(9) and (c)(10) EADs as having “authorized presence,” but DACA recipients as having no authorized presence. Arizona’s policy of denying drivers’ licenses to DACA recipients based on its own notion of “authorized presence” is preempted by the exclusive authority of the federal government under the INA to classify noncitizens. III. Constitutionality of the DACA Program
We decline to rule on the constitutionality of the DACA program, as the issue is not properly before our court; only the lawfulness of Arizona’s policy is in question.
We note, however, that the discussion above is quite pertinent to both of Defendants’ primary arguments undergirding their challenge to the constitutionality of the DACA program. First, Defendants argue that the Executive
35

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 36 of 44
has no power, independent of Congress, to enact the DACA program. But as we have discussed, the INA is replete with provisions that confer prosecutorial discretion on the Executive to establish its own enforcement priorities. See supra, section II. Third parties generally may not contest the exercise of this discretion, see Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), including in the immigration context, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984).10
Second, Defendants contend that the DACA program amounts to a wholesale suspension of the INA’s provisions, which in turn violates the President’s obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3 (“the Take Care Clause”). But, according to an amicus brief filed by the Department of Justice, the Department of Homeland Security only has funding annually to remove a few hundred thousand of the 11.3 million undocumented aliens living in the United States. Constrained by these limited resources, the Department of Homeland Security must make difficult decisions
10 Congress’s failure to pass the Development, Relief, and Education for Alien Minors (“DREAM”) Act does not signal the illegitimacy of the DACA program. The Supreme Court has admonished that an unenacted bill is not a reliable indicator of Congressional intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969). Moreover, the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief (i.e., the DREAM Act would have granted conditional residency that could lead to permanent residency, whereas the DACA program offers a more limited, temporary deferral of removal).
36

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 37 of 44
about whom to prioritize for removal. Despite Defendants’ protestations, they have not shown that the Department of Homeland Security failed to comply with its responsibilities to the extent its resources permit it to do so.11
For that reason, this case is nothing like Train v. City of New York, a case relied upon by Defendants, in which the Supreme Court affirmed an order directing a presidential administration to spend money allocated by Congress for certain projects. 420 U.S. 35, 40 (1975). Here, by contrast, the Department of Justice asserts that Congress has not appropriated sufficient funds to remove all 11.3 million undocumented aliens, and several prior administrations have adopted programs, like DACA, to prioritize which noncitizens to remove. See supra n.2. “The power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws . . . .” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see Arpaio v. Obama, 797 F.3d 11, 18 (D.C. Cir. 2015).
11 Indeed, the Department of Justice’s brief reports that the administration has removed approximately 2.4 million noncitizens from the country from 2009 to 2014, a number the government states is “unprecedented.” Prioritizing those removal proceedings for noncitizens who represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (November 20, 2014), cannot fairly be described as abdicating the agency’s responsibilities.
37

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 38 of 44
Further, as we have noted, the Supreme Court has acknowledged the history of the Executive engaging in a regular practice of prosecutorial discretion in enforcing the INA. See Reno, 525 U.S. at 483–84 & n.8 (“To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, . . . is now designated as deferred action.” (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03 [2][h] (1998))). This history includes “general policy” nonenforcement, such as deferred action granted to foreign students affected by Hurricane Katrina, U.S. Citizenship and Immigration Services, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005), and deferred action for certain widows and widowers of U.S. citizens, Memorandum for Field Leadership, U.S. Citizenship and Immigration Services, from Donald Neufeld, Acting Associate Director, U.S. Citizenship and Immigration Services, “Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children” at 1 (Sept. 4, 2009).12
12 The recent ruling in Texas v. United States, 809 F.3d 134 (5th Cir. 2015) petition for cert. granted sub nom. United States v. Texas, — S. Ct. — , 2016 WL
(continued...) 38

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 39 of 44
We reiterate that, in the end, Arizona’s policy is preempted not because the
DACA program is or is not valid, but because the policy usurps the authority of the
federal government to create immigrant classifications.
IV. Permanent Injunction
Before a court may grant a permanent injunction, the plaintiff must satisfy a
four-factor test, demonstrating:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 141 (2010) (quoting eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
Plaintiffs have proven that they suffer irreparable injury as a result of
Arizona’s policy, and that remedies available at law are inadequate to compensate
them for that injury. In particular, Plaintiffs have demonstrated that their inability
12(...continued) 207257 (U.S. Nov. 20, 2015) (mem.), is also inapposite to Defendants’ constitutional claims. There, several states challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), including DAPA recipients’ eligibility for certain public benefits such as drivers’ licenses and work authorization. Id. at 149. The court concluded that the states were likely to succeed on their procedural and substantive claims under the Administrative Procedure Act, and expressly declined to reach the Take Care Clause issue. Id. at 146 & n.3, 149.
39

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 40 of 44
to obtain drivers’ licenses limits their professional opportunities. In Arizona, it takes an average of over four times as long to commute to work by public transit than it does by driving, and public transportation is not available in most localities. One ADAC member had to miss full days of work so that she could take her son to his doctors’ appointments by bus. Another ADAC member finishes work after midnight but the buses by her workplace stop running at 9 p.m. And as the district court noted, another Plaintiff is a graphic designer whose inability to obtain a driver’s license caused her to decline work from clients, while yet another Plaintiff wants to pursue a career as an Emergency Medical Technician but is unable to do so because the local fire department requires a driver’s license for employment. ADAC III, 81 F. Supp. 3d at 809.
Plaintiffs’ inability to obtain drivers’ licenses hinders them in pursuing new jobs, attending work, advancing their careers, and developing business opportunities. They thus suffer financial harm and significant opportunity costs. And as we have previously found, the irreparable nature of this injury is exacerbated by Plaintiffs’ young age and fragile socioeconomic status. ADAC II, 757 F.3d at 1068. Setbacks early in their careers can have significant impacts on Plaintiffs’ future professions. Id. This loss of opportunity to pursue one’s chosen profession constitutes irreparable harm. Enyart v. Nat’l Conference of Bar
40

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 41 of 44
Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 709–10 (9th Cir. 1988) (holding that plaintiff’s transfer to a less satisfying job created emotional injury that constituted irreparable harm). Since 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), Plaintiffs have also shown that remedies available at law are inadequate to compensate them.
Plaintiffs have also demonstrated that, after considering the balance of hardships, a remedy in equity is warranted and that the public interest would not be disserved by a permanent injunction. We conclude that Arizona’s policy is preempted by federal law. “[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 (quoting Arizona, 641 F.3d at 366) (alterations omitted). 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) (citation omitted).
41

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 42 of 44
CONCLUSION In sum, we find that DACA recipients are similarly situated in all relevant respects to other noncitizens eligible for drivers’ licenses under Arizona’s policy. And Arizona’s refusal to rely on EADs from DACA recipients for purposes of establishing eligibility for drivers’ licenses may well violate the Equal Protection Clause for lack of a rational governmental interest justifying the distinction relied upon. Invoking the constitutional avoidance doctrine, we construe the INA as occupying the field of Arizona’s classification of noncitizens with regard to whether their presence is authorized by federal law, and as therefore preempting states from engaging in their very own categorization of immigrants for the purpose of denying some of them drivers’ licenses. Plaintiffs have shown that they suffer irreparable harm from Arizona’s policy and that remedies at law are inadequate to compensate for that harm. Plaintiffs have also shown that a remedy in equity is warranted and that the public interest would not be disserved by a permanent injunction. Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of Plaintiffs. We also AFFIRM the district court’s order entering a permanent injunction that enjoins Arizona’s policy of denying the EADs issued
42

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 43 of 44
under the DACA program as satisfactory proof of authorized presence under federal law in the United States.
AFFIRMED.
43

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-3, Page 44 of 44
COUNSEL Karen Tumlin (argued), Shiu-Ming Cheer, Nicholas Espiritu, Linton Joaquin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA; Tanya Broder, National Immigration Law Center, Oakland, CA; Jorge Martin Castillo and Victor Viramontes, Mexican American Legal Defense Educational Fund, Los Angeles, CA; Rodkangyil Danjuma, ACLU Foundation of Northern California, San Francisco, CA; Lee Gelernt and Michael K.T. Tan, American Civil Liberties Union, New York, NY; James Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix, AZ; Jennifer C. Newell and Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, CA; Kelly Flood, ASU Alumni Law Group, Phoenix, AZ, for Plaintiffs-Appellees. Dominic Draye (argued) and John Robert Lopez, IV, Arizona Attorney General’s Office, Phoenix, AZ; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, AZ, for Defendants-Appellants. Dale Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform Law Institute. Lindsey Powell, Washington D.C. for Amicus Curiae United States of America.
44

FILED Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 1 of 14

FEB 02 2017

Arizona Dream Act Coalition v. Brewer, 15-15307

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

BERZON, Circuit Judge, Concurring in light of the Dissent from the denial of

rehearing en Banc:

I join the panel opinion in full. I write in concurrence to further explain our

holding in light of the dissent from denial of rehearing en banc.

I write first to emphasize that the “law” that has preemptive power over

Arizona’s policy is Congress’ conferral of exclusive authority on the executive

branch to defer removal of individuals who lack legal status and to authorize them

to work while temporarily permitted to remain. Furthermore, I write to highlight

that the preemption issues ultimately decided in this case can be viewed as

embedded in the equal protection analysis, given the historical and conceptual

overlap between equal protection and preemption concerns in cases involving state

laws that affect immigrants. The serious equal protection concerns raised by

Arizona’s policy bolster our preemption holding, which was reached in a careful

exercise of the principle of constitutional avoidance.

I.

As the panel opinion makes clear, it is the authority specifically conferred on

the Attorney General by the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1101 et seq., and the associated regulations, that is the body of federal law that

1

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 2 of 14
preempts Arizona’s policy, not any particular exercise of executive authority. The INA, as implemented by authorized regulations, affirmatively permits the Attorney General to decide whether undocumented immigrants should be removed from the country and when, and also whether they should be authorized to stay and to work if they are not to be immediately removed. Contrary to the Dissent from the denial of rehearing en banc (“Dissent”), this conferral of authority is not limited to “only two small provisions of the INA.” Dissent at 6. See e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (indicating that certain visa applicants are “eligible for deferred action and work authorization”); id. § 1182(a)(9)(B)(ii) (providing that for purposes of determining inadmissibility, unlawful presence includes any time an alien “is present in the United States after the expiration of the period of stay authorized by the Attorney General”); id. § 1227(d)(2) (indicating that certain visa applicants who are denied an administrative stay of removal can apply for “a stay of removal, deferred action, or a continuance or abeyance of removal proceedings”); id. § 1229b (giving the Attorney General the discretion to cancel removal for certain inadmissable or removable aliens, including those who were never lawfully admitted); id. § 1324a(h)(3) (defining an “unauthorized alien” for purposes of employment as an alien who is neither “lawfully admitted for permanent residence” nor “authorized to be so employed by [statute] or by the
2

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 3 of 14
Attorney General”); REAL ID Act of 2005, Pub. L. No. 109-13, div. B, § 202(c)(2)(B)(viii), (C)(ii), 119 Stat. 231, 313 (indicating that persons with “approved deferred action status” are present in the United States during a “period of authorized stay” for purposes of issuing state drivers’ licenses and identification cards); 8 C.F.R. § 274a.12(c)(14) (indicating that an “alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority” may be granted work authorization upon application and a showing of economic necessity).
These various provisions, among others, make clear that Congress has expressly authorized the Attorney General, at his discretion, officially to defer removal of individuals who lack legal status, thereby temporarily authorizing their stay, and to authorize such individuals to work while temporarily permitted to remain.1 See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012) (“[T]he removal process is entrusted to the discretion of the Federal Government.”).
1 Authorizing someone to work in the country is necessarily to authorize their presence. The Supreme Court, in Takahashi v. Fish & Game Commission, 334 U.S. 410, 416 (1948), stated that “[t]he assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work.” (quoting Truax v. Raich, 239 U.S. 33, 42 (1915)). The obverse is also true: Authorizing an alien to work in the country is necessarily authorizing him to remain.
3

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 4 of 14
The Attorney General granted the plaintiffs in this case deferred action and
furnished them with federal employment authorization documents.2 Arizona’s
denial of drivers’ licenses to DACA recipients rests on the premise that their
presence is not “authorized under federal law,” even though the federal
government has decided otherwise, exercising the powers delegated to it by
Congress. Arizona has, therefore, intruded into an area of decisionmaking
entrusted to the federal government.3
II.
2 I note that the Dissent at points treats this case as parallel to Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). It decidedly is not. Arizona raised in the district court no affirmative challenge to the Deferred Action for Childhood Arrivals (“DACA”) program, whether based on administrative law concepts or the scope of the executive’s responsibility to enforce federal laws. Compare id. at 149. (Arizona is a plaintiff in the Texas v. United States litigation, which does raise such issues and is ongoing.). Instead, Arizona has asserted the authority to treat some undocumented individuals with deferred status and federal work authorization differently from others with the same federal dispensations. It is the validity of that differential treatment that is at the heart of this case.
3 Arizona’s driver’s license statute turns upon whether an immigrant’s presence is “authorized under federal law” not whether the presence is “lawful” in the sense of specifically condoned by statute. See Ariz. Rev. Stat. Ann. § 28–3153(D). If the statute turned on the latter, Arizona could not, as it does, issue licenses to many undocumented individuals who do not have lawful status but have been granted work authorization while in removal proceedings. See Amended op. 17.
4

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 5 of 14
Critically, our preemption holding reflects a careful exercise of constitutional avoidance, based on the serious equal protection concerns raised by Arizona’s policy. Although we rest our decision on preemption grounds, the preemption and equal protection concerns raised in this case are overlapping rather than distinct. And because that is so, I am convinced that although we wisely did not decide the equal protection issue, were it necessary to decide the question I would have held that there was an equal protection violation.
Equal protection and preemption concerns have long been intertwined in cases dealing with state laws that classify immigrants. See Plyler v. Doe, 457 U.S. 202 (1982); Nyquist v. Mauclet, 432 U.S. 1 (1977); Graham v. Richardson, 403 U.S. 365 (1971); Takahashi, 334 U.S. 410; Truax, 239 U.S. 33; see also JennyBrooke Condon, The Preempting of Equal Protection for Immigrants?, 73 Wash. & Lee L. Rev. 77 (2016); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev. 1069 (1979).
For example, in Nyquist v. Mauclet, the state asserted that one of its goals in excluding certain classes of aliens from eligibility for in-state tuition was to provide incentives for aliens to naturalize. 432 U.S. at 9-10. In holding the state law violated the Equal Protection Clause, the Court found that state purpose “not a
5

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 6 of 14
permissible one for a State” because “[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere.” Id. at 10. Similarly in Graham v. Richardson, another decision that rested on equal protection grounds, the Court provided that “[s]tate alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a [state] right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitutionally impermissible.” 403 U.S. at 380. Takahashi v. Fish and Game Commission likewise held that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with [the] constitutionally derived federal power to regulate immigration.” 334 U.S. at 419.
The overlap evident in these cases between the equal protection and preemption analyses where state laws that affect immigrants are at issue is no accident. As the equal protection analysis in the panel opinion illustrates, both the “similarly situated” and “legitimate state interest” inquiries required for equal protection analysis necessarily incorporate recognition of the preeminent, although not exclusive, federal role in immigration matters, the same role distribution
6

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 7 of 14
emphasized in immigration preemption cases.4 A.
The primacy of federal immigration law first informs the equal protection analysis when we are determining whether the groups being classified are “similarly situated.” As the panel opinion states, the Equal Protection Clause prevents the government from “treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added). “Relevant respects” are only those respects that relate to the goals of the challenged state law.
Classifications adopted by states “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71, 76 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Accordingly, to adopt a federal immigration classification “as a criterion for its
4 Because preemption concerns are embedded in and addressed by equal protection decisions regarding state laws that affect immigrants, equal protection decisions like Plyler v. Doe, 457 U.S. 202, are relevant to our preemption holding. See Condon, supra pp. 5, at 83 (“[T]he Supreme Court has reinforced the principle that the federal government has exclusive responsibility for the regulation of immigration, as much through its equal protection jurisprudence as it has through preemption decisions.”).
7

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 8 of 14
own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to the purposes for which the state desires to use it.” Plyler, 457 U.S. at 226 (internal quotation marks and citations omitted) (emphasis in original). Those purposes do not properly include making decisions about who should remain in this country, who should be removed, or what are the conditions of stay for those temporarily authorized to be here.
For example, in Graham v. Richardson, the Court struck down on equal protection grounds a state law that denied welfare benefits to non-citizens whom the Court found similarly situated in all respects relevant to the state welfare law: non-citizens paid taxes, could be called into the armed forces, and worked in the state, thereby contributing to the state’s economic welfare. 403 U.S. at 376. The groups of residents were “indistinguishable except with respect to whether they are or are not citizens of this country.” Id. at 371. The two groups were not, of course, similarly situated in the latter respect — that is, as to whether they were citizens. And that difference entailed many embedded distinctions between the non-citizens and citizens, including the right to vote, to serve on juries, and to remain in the country even if engaged in criminal activities. But the citizen/non-citizen distinction was the one that the state had to justify, not a basis for declaring the two
8

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 9 of 14
groups not similarly situated with regard to receiving welfare benefits. Similarly, the immigration-related distinction between the plaintiffs and
other undocumented immigrants has no role in this case at the “similarly situated” juncture.5 Rather, the pertinent comparisons at this stage concern the other requirements for obtaining drivers’ licenses — Are the applicants old enough? Can they pass the written test? Can they pass the driving test? Have they violated driving laws in the past, as by driving without a license or while drunk? The immigration-related classification is the one the state must justify at the next stage of equal protection analysis, not the measure of whether the plaintiffs are otherwise similarly situated with regard to obtaining drivers’ licenses.
B. Preemption themes next surface in the equal protection analysis in the examination of legitimate state interests. A state interest is only legitimate for equal protection purposes when it lies within an area of concern within the state’s authority. When the state law touches on immigration, the ambit of legitimate state concern is constrained by the federal government’s preeminent power directly to
5 The panel opinion makes this basic point, briefly. Amended op. at 11-13. It then goes on for completeness to answer the state’s similarly situated argument on its own terms, which stressed immigration status differences between the plaintiffs and other aliens. Amended op. at 13-17.
9

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 10 of 14
regulate immigration — that is, to decide who will be admitted, who may remain, and who will be removed.
As stated in Plyler v. Doe, “[a]lthough it is a routine and normally legitimate part of the business of the Federal Government to classify on the basis of alien status and to take into account the character of the relationship between the alien and this country, only rarely are such matters relevant to legislation by a State.” 457 U.S. at 225 (internal quotation marks and citations omitted). Consistently with this view, Mathews v. Diaz explained that “a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business.” 426 U.S. 67, 85 (1976).
For this reason, the Supreme Court has long recognized that federal power over immigration constrains a state’s legitimate interests in classifying groups of immigrants differently from one another and then disadvantaging one of the groups so classified. In Truax v. Raich, 239 U.S. at 42, for example, the Court admonished that “reasonable classification implies action consistent with the legitimate interests of the state, and it will not be disputed that these cannot be so
10

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 11 of 14
broadly conceived as to bring them into hostility to exclusive Federal power.” Truax involved an equal protection challenge, by an alien lawfully admitted into the United States, to an Arizona law that required certain employers to hire a majority of workers who were qualified electors or native-born United States citizens. Id. at 40. Truax rejected the argument that the state’s prioritization of citizens for employment was justified by the state’s power “to make reasonable classifications in legislating to promote the health, safety, morals, and welfare of those within its jurisdiction,” because the state lacked “the authority to deal with that at which the legislation is aimed.” Id. at 41, 43; see also Takahashi, 334 U.S. at 420 (noting the “tenuousness of the state’s claim that it has power to single out and ban its lawful alien inhabitants . . . from following a vocation simply because Congress has put some groups in special classifications in exercise of its broad and wholly distinguishable powers over immigration and naturalization.”).
States assuredly do have authority to regulate employment, just as they have authority to regulate the distribution of drivers’ licenses. The state authority lacking in Truax, and here, is the authority to justify discrimination as to areas within state power on grounds that are beyond state authority because exclusively within the authority of the federal government.
11

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 12 of 14
For these reasons, equal protection analysis with regard to state laws, like Arizona’s, that disadvantage some aliens compared with others necessarily incorporates distribution-of-authority concerns that directly parallel those encountered in preemption analyses. It is in light of this overlap between preemption and equal protection analyses in the immigration context that the panel’s equal protection analysis evaluated the proffered state interests said rationally to justify the denial of drivers’ licenses to the plaintiffs. And it is in this light that we rejected any state justification for the classification in state law that suggested an intent to preclude or discourage the plaintiffs from remaining and working even though the federal government allowed them to do so. For the same reason, we rejected any justification that turned on immigration status distinctions with no connection to state-drivers’-license-related concerns (such as the distinction between aliens holding work authorization while in removal proceedings and DACA recipients holding work authorization but not in the process of being removed). Amended op. at 17-18, 22, 26-27. We then concluded that the remaining rationales Arizona provided simply are not reasonable. Amended op. at 18-22.
In short, the preeminent federal role in immigration matters thus not only
12

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 13 of 14
underlies our ultimate preemption holding, but also directly informs the equal protection analysis. Given the constraints on a state’s legitimate interests in classifying groups of immigrants, we could, in my view, have rested our rejection of the challenged Arizona statute simply on a rational basis equal protection analysis (without reaching the question whether a more stringent standard of review applies). Were it necessary to reach the question, I would have held Arizona’s application of its drivers’ license statute invalid as a denial of equal protection to DACA recipients, as compared to other undocumented individuals to whom Arizona does provide drivers’ licenses. See Amended op. at 18-23.
The Dissent brushes past these equal protection concerns, regarding them as an “excursus,” and even suggesting that over a century of equal protection jurisprudence regarding state immigration regulations, beginning with Truax in 1915, be overturned. Dissent at 3 n.1, 9 n.5
But the panel’s methodology — a careful analysis of the strength of a constitutional challenge, before turning to an alternative that avoids definitely deciding that constitutional question — is one with a long pedigree, grounded in judicial restraint. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690-96, 699 (2001); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485
13

Case: 15-15307, 02/02/2017, ID: 10300173, DktEntry: 89-4, Page 14 of 14
U.S. 568, 575-78 (1988).6 To criticize the panel’s preemption analysis in a vacuum, with little recognition of the constitutional avoidance rationale underlying it, is tantamount to lopping off the first five floors of a ten story building and then declaring that the building, thus truncated, is unstable.
Again, I concur fully in the panel opinion. In addition, in my view, as we held in the preliminary injunction appeal, Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1067 (9th Cir. 2014), and as the district court held as the basis for the final injunction, Arizona Dream Act Coalition v. Brewer, 81 F. Supp. 3d 795, 808 (D. Ariz. 2015), the equal protection challenge is independently valid and, if we needed to reach it, would justify our conclusion that Arizona’s denial of drivers’ licenses to DACA recipients cannot stand.
6 This court has observed that DeBartolo reached a statutory holding only “[a]fter considering at some length, but not deciding, the [constitutional] arguments.” Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1209 (9th Cir. 2005).
14

 
 Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 1 of 42
FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

APR 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS,

No. 15-15307 D.C. No. 2:12-cv-02546-DGC
OPINION

Plaintiffs - Appellees,

v.

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 - Appellants.

Appeal from the United States District Court for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted July 16, 2015 Pasadena, California

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 2 of 42
Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges.
Opinion by Judge Harry Pregerson, Circuit Judge: Plaintiffs are five individual recipients of deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program, and the Arizona DREAM Act Coalition (“ADAC”), an organization that advances the interests of young immigrants. DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court’s ruling that the federal government “has broad, undoubted power over the subject of immigration and the status of aliens” under the Constitution. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). In response to the creation of the DACA program, Defendants—the Governor of the State of Arizona; the Arizona Department of Transportation (“ADOT”) Director; and the Assistant Director of the Motor Vehicle Division—instituted a policy that rejected the Employment Authorization Documents (“EADs”) issued to DACA recipients under the DACA program as
2

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 3 of 42
proof of authorized presence for the purpose of obtaining a driver’s license. Plaintiffs seek permanently to enjoin Defendants from categorically denying drivers’ licenses to DACA recipients. The district court ruled that Arizona’s policy was not rationally related to a legitimate government purpose and thus violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted Plaintiffs’ motion for summary judgment and entered a permanent injunction. Defendants appealed.
We agree with the district court that DACA recipients are similarly situated to other groups of noncitizens Arizona deems eligible for drivers’ licenses. As a result, Arizona’s disparate treatment of DACA recipients may well violate the Equal Protection Clause, as our previous opinion indicated is likely the case. Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014). The district court relied on this ground when it issued the permanent injunction. Applying the principle of constitutional avoidance, however, we need not and should not come to rest on the Equal Protection issue, even if it “is a plausible, and quite possibly meritorious” claim for Plaintiffs, so long as there is a viable alternate, nonconstitutional ground to reach the same result. Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1211
3

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 4 of 42
(9th Cir. 2005) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 576–78 (1988)).
We conclude that there is. Arizona’s policy classifies noncitizens based on Arizona’s independent definition of “authorized presence,” classification authority denied the states under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. We therefore affirm the district court’s order that Arizona’s policy is preempted by the exclusive authority of the federal government to classify noncitizens.
FACTUAL BACKGROUND I. The DACA Program
On June 15, 2012, the Department of Homeland Security announced the DACA program pursuant to the DACA Memorandum. Under the DACA program, the Department of Homeland Security exercises its prosecutorial discretion not to seek removal of certain young immigrants. The DACA program allows these young immigrants, including members of ADAC, to remain in the United States for some period of time as long as they meet specified conditions.
To qualify for the DACA program, immigrants must have come to the United States before the age of sixteen and must have been under the age of thirtyone by June 15, 2012. See Memorandum from Secretary Janet Napolitano,
4

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 5 of 42
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). They must have been living in the United States at the time the DACA program was announced and must have continuously resided here for at least the previous five years. Id. Additionally, DACA-eligible immigrants must be enrolled in school, have graduated from high school, have obtained a General Educational Development certification, or have been honorably discharged from the U.S. Armed Forces or Coast Guard. Id. They must not pose a threat to public safety and must undergo extensive criminal background checks. Id.
If granted deferred action under DACA, immigrants may remain in the United States for renewable two-year periods. DACA recipients enjoy no formal immigration status, but the Department of Homeland Security does not consider them to be unlawfully present in the United States and allows them to receive federal EADs. II. Arizona’s Executive Order
On August 15, 2012, the Governor of Arizona issued Arizona Executive Order 2012–06 (“Arizona Executive Order”). Executive Order 2012–06, “ReAffirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program” (Aug. 15, 2012). A clear response to DACA, the
5

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 6 of 42
Arizona Executive Order states that “the Deferred Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants.” Id. at 1. The Arizona Executive Order announced that “[t]he issuance of Deferred Action or Deferred Action USCIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit.” Id. The Order directed Arizona state agencies, including ADOT, to “initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver’s license.” Id. III. Arizona’s Driver’s License Policy
To implement the Arizona Executive Order, officials at ADOT and its Motor Vehicle Division initiated changes to Arizona’s policy for issuing drivers’ licenses. Under Arizona state law, applicants can receive a driver’s license only if they can “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). Prior to the Arizona Executive Order, ADOT Policy 16.1.2 included all federally issued EADs as “proof satisfactory” that an applicant’s
6

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 7 of 42
presence was “authorized under federal law.” The Motor Vehicle Division therefore issued drivers’ licenses to all individuals with such documentation.
After the Arizona Executive Order, the Motor Vehicle Division announced that it would not accept EADs issued to DACA recipients—coded by the Department of Homeland Security as (c)(33)—as proof that their presence in the United States is “authorized under federal law.” The Motor Vehicle Division continued to accept federally issued EADs from all other noncitizens as proof of their lawful presence, including individuals who received deferred action outside of the DACA program and applicants coded (c)(9) (individuals who have applied for adjustment of status), and (c)(10) (individuals who have applied for cancellation of removal).
In 2013, ADOT revised its policy again. Explaining this change, ADOT Director John S. Halikowski testified that Arizona views an EAD as proof of presence authorized under federal law only if the EAD demonstrates: (1) the applicant has formal immigration status; (2) the applicant is on a path to obtaining formal immigration status; or (3) the relief sought or obtained is expressly provided pursuant to the INA. Using these criteria, ADOT began to refuse driver’s license applications that relied on EADs, not only from DACA recipients, but also from beneficiaries of general deferred action and deferred enforced departure. It
7

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 8 of 42
continued to accept as proof of authorized presence for purposes of obtaining drivers’ licenses EADs from applicants with (c)(9) and (c)(10) status. We refer to the policy that refuses EADs from DACA recipients as “Arizona’s policy.” IV. Preliminary Injunction
On November 29, 2012, Plaintiffs sued Defendants in federal district court, alleging that Arizona’s policy of denying drivers’ licenses to DACA recipients violates the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution. Plaintiffs sought declaratory relief and a preliminary injunction prohibiting Defendants from enforcing their policy against DACA recipients. On May 16, 2013, the district court ruled that Arizona’s policy likely violated the Equal Protection Clause but it declined to grant the preliminary injunction because Plaintiffs had not shown irreparable harm. ADAC v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013) (“ADAC I”), reversed by ADAC v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (“ADAC II”). It also granted Defendants’ motion to dismiss the Supremacy Clause claim. Id. at 1077–78. Plaintiffs appealed the district court’s denial of a preliminary injunction. V. Permanent Injunction
While Plaintiffs’ appeal of the preliminary injunction ruling was pending, Plaintiffs sought a permanent injunction in district court on Equal Protection
8

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 9 of 42
grounds and moved for summary judgment. Defendants also moved for summary judgment, arguing that DACA recipients are not similarly situated to other noncitizens who are eligible for drivers’ licenses under Arizona’s policy.
We reversed the district court’s decision on the motion for preliminary injunction, agreeing with the district court that Arizona’s policy likely violated the Equal Protection Clause and holding that Plaintiffs had established that they would suffer irreparable harm as a result of its enforcement. See ADAC II, 757 F.3d at 1064. In a concurring opinion, one member of our panel concluded that Plaintiffs also demonstrated a likelihood of success on their claim that Arizona’s policy was preempted. Id. at 1069 (Christen, J., concurring). On January 22, 2015, the district court granted Plaintiffs’ motion for summary judgment and entered a permanent injunction. ADAC v. Brewer, 81 F. Supp. 3d 795 (D. Ariz. 2015) (“ADAC III”). We affirm the district court’s order.
STANDARD OF REVIEW We review the district court’s grant or denial of motions for summary judgment de novo. Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994). We determine whether there are any genuine issues of material fact and review the district court’s application of substantive law. Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2011). We “may affirm a grant of summary judgment on
9

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 10 of 42
any ground supported by the record.” Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014).
We review the district court’s decision to grant a permanent injunction for abuse of discretion. La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014) (citing Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 941 (9th Cir. 2002)). We review questions of law underlying the district court’s decision de novo. See Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003). “If the district court ‘identified and applied the correct legal rule to the relief requested,’ we will reverse only if the court’s decision ‘resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.’” Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
DISCUSSION I. Equal Protection
A. Similarly Situated “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
10

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 11 of 42
treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To prevail on an Equal Protection claim, plaintiffs must show “that a class that is similarly situated has been treated disparately.” Christian Gospel Church, Inc. v. City & Cty. of S.F., 896 F.2d 1221, 1225 (9th Cir. 1990), superseded on other grounds by 42 U.S.C. § 2000e.
“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). In this instance, DACA recipients do not need to be similar in all respects to other noncitizens who are eligible for drivers’ licenses, but they must be similar in those respects that are relevant to Arizona’s own interests and its policy. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” (emphasis added)).
We previously held that DACA recipients and other categories of noncitizens who may rely on EADs are similarly situated with regard to their right
11

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 12 of 42
to obtain drivers’ licenses in Arizona. See ADAC II, 757 F.3d at 1064. The material facts and controlling authority remain the same from the preliminary injunction stage. Thus, we again hold that in all relevant respects DACA recipients are similarly situated to noncitizens eligible for drivers’ licenses under Arizona’s policy. Nonetheless, for clarity and completeness, we address once more Defendants’ arguments.
Defendants assert that DACA recipients are not similarly situated to other noncitizens eligible for drivers’ licenses under Arizona’s policy because DACA recipients neither received nor applied for relief provided by the INA, or any other relief authorized by federal statute. Particularly relevant here, Defendants note that eligible noncitizens under the categories of (c)(9) and (c)(10) are tied to relief expressly found in the INA: adjustment of status (INA § 245; 8 U.S.C. § 1255; 8 C.F.R. § 274a.12(c)(9)) and cancellation of removal (INA § 240A; 8 U.S.C. § 1229b; 8 C.F.R. § 274a.12(c)(10)), respectively. In contrast, Defendants contend that DACA recipients’ presence in the United States does not have a connection to federal law but rather reflects the Executive’s discretionary decision not to enforce the INA.
We continue to disagree. See ADAC II, 757 F.3d at 1061. As explained below, Arizona has no cognizable interest in making the distinction it has for
12

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 13 of 42
drivers’ licenses purposes. The federal government, not the states, holds exclusive authority concerning direct matters of immigration law. DeCanas v. Bica, 424 U.S. 351, 354 (1976), superseded by statute on other grounds as recognized in Arizona, 132 S. Ct. at 2503–04. The states therefore may not make immigration decisions that the federal government, itself, has not made, Plyler, 457 U.S. at 225 (citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Arizona’s encroachment into immigration affairs—making distinctions between groups of immigrants it deems not to be similarly situated, despite the federal government’s decision to treat them similarly—therefore seems to exceed its authority to decide which aliens are similarly situated to others for Equal Protection purposes. In other words, the “similarly situated” analysis must focus on factors of similarity and distinction pertinent to the state’s policy, not factors outside the realm of its authority and concern.
Putting aside that limitation, the INA explicitly authorizes the Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization. INA § 103(a)(1); 8 U.S.C. § 1103(a)(1). As part of this authority, it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.
13

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 14 of 42
The INA expressly provides for deferred action as a form of relief that can
be granted at the Executive’s discretion. For example, INA § 237(d)(2); 8 U.S.C. §
1227(d)(2), allows a noncitizen who has been denied an administrative stay of
removal to apply for deferred action. Certain individuals are also “eligible for
deferred action” under the INA if they qualify under a set of factors. See INA §
204(a)(1)(D)(i)(II); 8 U.S.C. § 1154(a)(1)(D)(i)(II). Deferred action is available to
individuals who can make a showing of “exceptional circumstances.” INA §
240(e); 8 U.S.C. § 1229a(e). By necessity, the federal statutory and regulatory
scheme, as well as federal case law, vest the Executive with very broad discretion
to determine enforcement priorities.1
1 Pursuant to this discretion, the Department of Homeland Security and its predecessor, the Immigration and Naturalization Service (“INS”), established a series of general categorical criteria to guide enforcement. For example, the 1978 INS Operating Instructions outlined five criteria for officers to consider in exercising prosecutorial discretion, including “advanced or tender age.” O.I. 103.1(a)(1)(ii); see also Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983). Discretion can also cut the other way. For example, the 2011 Morton Memo highlighted “whether the person poses national security or public safety concern,” Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), and the 2014 Johnson Memo identifies the “highest [enforcement] priority” as noncitizens who might represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants”
(continued...) 14

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 15 of 42
Congress expressly charged the Department of Homeland Security with the responsibility of “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Department of Homeland Security regulations describe deferred action as “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14). Additionally, the Supreme Court has made it clear that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). The Supreme Court has explained that the Secretary has discretion to exercise deferred action at each stage of the deportation process, and has acknowledged the long history of the Executive “engaging in a regular practice . . . of exercising that discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999); see also id. n.8; Arizona, 132 S. Ct. at 2499 (noting that “[a] principal feature of the removal system is the broad discretion exercised by” the Executive); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (noting the
1(...continued) (November 20, 2014).
15

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 16 of 42
State of Texas’s concession that the INA “places no substantive limits on the
Attorney General and commits enforcement of the INA to her discretion”).2
Defendants’ argument fails because they attempt to distinguish categories of
EAD-holders in a way that does not amount to any relevant difference. Like
adjustment of status, (c)(9), and cancellation of removal, (c)(10), deferred action is
a form of relief grounded in the INA. Moreover, the exercise of prosecutorial
discretion in deferred action flows from the authority conferred on the Secretary by
the INA.
2 In the past, the Department of Homeland Security and the INS have granted deferred action to different groups of noncitizens present in the United States. In 1977, the Attorney General granted stays of removal to 250,000 nationals of certain countries (known as “Silva Letterholders”). Silva v. Levi, No. 76-C4268 (N.D. Ill. 1977), modified on other grounds sub nom. Silva v. Bell, 605 F.2d 978 (7th Cir.1979). In 1990, the INS instituted the “Family Fairness” program that deferred the deportation of 1.5 million family members of noncitizens who were legalized through the Immigration Reform and Control Act. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, “Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens” (Feb. 2, 1990). In 1992, President Bush directed the Attorney General to grant deferred enforced departure to 190,000 Salvadorans. See Immigration Act of 1990 § 303, Public Law 101-649 (Nov. 29, 1990); https://www.gpo.gov/fdsys/pkg/FR1994-12-06/html/94-30088.htm. And nationals of Liberia were granted deferred enforced departure until September 30, 2016, http://www.uscis.gov/humanitarian/ temporary-protected-status-deferred-enforced-departure/deferred-enforced-departu re.
16

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 17 of 42
Defendants provide two criteria to explain when they deem an EAD satisfactory proof of authorized presence: the applicant has formal immigration status, or the applicant is on the path to formal immigration status. Neither criteria suffices to render DACA recipients not similarly situated to other EAD-holders on any basis pertinent to Arizona’s decision whether to grant them drivers’ licenses. Like DACA recipients, many noncitizens who apply for adjustment of status and cancellation of removal—including individuals with (c)(9) and (c)(10) EADs—do not, and may never, possess formal immigration status. See Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir. 2011).
Additionally, “submission of an application does not connote that the alien’s immigration status has changed.” Thus, merely applying for immigration relief does not signal a clear path to formal immigration status. 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)). Indeed, given how frequently these applications are denied, “the supposed ‘path’ may lead to a dead end.” ADAC II, 757 F.3d at 1065. In this regard, noncitizens holding (c)(9) and (c)(10) EADs are no different from DACA recipients. And as discussed above, DACA recipients have a temporary reprieve—deferred action—that is provided for by the INA, pursuant to the prosecutorial discretion statutorily delegated to the Executive.
17

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 18 of 42
Therefore, in all relevant respects, DACA recipients are similarly situated to other categories of noncitizens who may rely on EADs to obtain drivers’ licenses under Arizona’s policy.
B. State Interest The next step in an Equal Protection analysis is to determine the applicable level of scrutiny. Country Classic Dairies, 847 F.2d at 596. Although we do not ultimately decide the Equal Protection issue, we remain of the view, articulated in our preliminary injunction opinion, that Arizona’s policy may well fail even rational basis review. So, as before, we need not reach what standard of scrutiny applies.3 See ADAC II, 757 F.3d at 1065. Arizona’s policy must be “rationally related to a legitimate state interest” to withstand rational basis review. City of Cleburne, 473 U.S. at 440. On appeal, Defendants advance six rationales for Arizona’s policy, none of which persuade us that Plaintiffs’ argument under the Equal Protection Clause is not at least
3 In cases involving alleged discrimination against noncitizens authorized to be present in the United States, the Supreme Court has consistently applied strict scrutiny to the state action at issue. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Graham v. Richardson, 403 U.S. 365, 372 (1971). Where the alleged discrimination targets noncitizens who are not authorized to be present, the Supreme Court applies rational basis review. See Plyler, 457 U.S. at 223–24.
18

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 19 of 42
sufficiently strong to trigger the constitutional avoidance doctrine we ultimately invoke.
First, Defendants argue that Arizona’s policy is rationally related to the State’s concern that it could face liability for improperly issuing drivers’ licenses to DACA recipients. But as the district court observed, the depositions of ADOT Director John S. Halikowski and Assistant Director of the Motor Vehicle Division Stacey K. Stanton did not yield support for this rationale. Neither witness was able to identify any instances in which the state faced liability for issuing licenses to noncitizens not authorized to be present in the country. ADAC III, 81 F. Supp. 3d at 807. So the record probably does not establish that there is a rational basis for this concern.
Second, Defendants contend that Arizona’s policy serves the State’s interest in preventing DACA recipients from making false claims for public assistance. As the district court noted, however, Director Halikowski and Assistant Director Stanton testified that they had no basis for believing that drivers’ licenses could be used to access state and federal benefits. It follows that this concern is probably not a rational basis justifying Arizona’s policy either. Id. (citing ADAC II, 757 F.3d at 1066).
19

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 20 of 42
Third, Defendants claim that Arizona’s policy is meant to reduce the administrative burden of issuing drivers’ licenses to DACA recipients, only to have to revoke them once the DACA program is terminated. The district court found this argument lacked merit, noting this court’s observation that it is less likely that Arizona will need to revoke the licenses of DACA recipients than of noncitizens holding (c)(9) and (c)(10) EADs, because applications for adjustment of status or cancellation of removal are routinely denied.4 ADAC III, 81 F. Supp. 3d at 807 (citing ADAC II, 757 F.3d at 1066–67). Indeed, noncitizens with (c)(10) EADs are already in removal proceedings, which means they are further along in the deportation process than are many DACA recipients. The administrative burden of issuing and revoking drivers’ licenses for DACA recipients is not greater than the burden of issuing and revoking drivers’ licenses for noncitizens holding (c)(9) and (c)(10) EADs. Certainly, the likelihood of having to do so does not distinguish these two classes of noncitizens, as (c)(9) and (c)(10) applications for relief are frequently denied.
4 Defendants suggest “later-developed facts” indicate that noncitizens holding (c)(9) and (c)(10) EADs are on the path to permanent residency. We are not convinced that achieving certain forms of relief (adjustment of status or cancellation of removal) alters the fact that applications for such relief are regularly denied in very great numbers.
20

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 21 of 42
Fourth, Defendants argue that Arizona has an interest in avoiding financial harm to individuals who may be injured in traffic accidents by DACA recipients. Defendants contend that individuals harmed by DACA recipients may be left without recourse when the DACA program is terminated and DACA recipients are removed from the country. But this rationale applies equally to individuals with (c)(9) and (c)(10) EADs. These noncitizens may find their applications for immigration relief denied and may be quickly removed from the country, leaving those injured in traffic accidents exposed to financial harm. Nevertheless, Arizona issues drivers’ licenses to noncitizens holding (c)(9) and (c)(10) EADs.
Fifth, Defendants contend that denying licenses to DACA recipients serves the goal of consistently applying ADOT policy. But ADOT inconsistently applies its own policy by denying licenses to DACA recipients while providing licenses to holders of (c)(9) and (c)(10) EADs. Arizona simply has no way to know what “path” noncitizens in any of these categories will eventually take. DACA recipients appear similar to individuals who are eligible under Arizona’s policy with respect to all the criteria ADOT relies on. ADOT thus applies its own immigration classification with an uneven hand by denying licenses only to DACA recipients. See, e.g., Yick Wo. v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[I]f [the law] is applied and administered by public authority with an evil eye and an
21

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 22 of 42
unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”).
Sixth, Defendants claim that Arizona’s policy is rationally related to ADOT’s statutory obligation to administer the state’s driver’s license statute. ADOT’s disparate treatment of DACA recipients pursuant to the driver’s license statute relies on the premise that federal law does not authorize DACA recipients’ presence in the United States. This rationale is essentially an assertion of the state’s authority to decide whether immigrants’ presence is authorized under federal law. Rather than evaluating that assertion as part of the Equal Protection analysis, we defer doing so until our discussion of our ultimate, preemption ground for decision, which we adopt as part of our constitutional avoidance approach.
Before proceeding to that discussion, it bears noting, once again, see ADAC II, 757 F.3d at 1067, that the record does suggest an additional reason for Arizona’s policy: a dogged animus against DACA recipients. The Supreme Court has made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice. See Romer v. Evans, 517 U.S. 620, 634 (1996); see also City of Cleburne, 473 U.S. at 464 (Marshall, J., concurring in the judgment in part, and dissenting in part) (“Prejudice, once let
22

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 23 of 42
loose, is not easily cabined.”). “The Constitution’s guarantee of equality must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group.” United States v. Windsor, 133 S. Ct. 2675, 2681 (2013) (citation omitted). II. Preemption
We do not “decide federal constitutional questions where a dispositive nonconstitutional ground is available.” City of L.A. v. Cty. of Kern, 581 F.3d 841, 846 (9th Cir. 2009) (quoting Correa v. Clayton, 563 F. 2d 396, 400 (9th Cir. 1977)). While preemption derives its force from the Supremacy Clause of the Constitution, “it is treated as ‘statutory’ for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudications.” Douglas v. Seacoast Prods., 431 U.S. 265, 271–72 (1977).5 Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an
5 Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance. See Hotel Emps. & Rest. Emps. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1512 (9th Cir. 1993) (holding that Pullman abstention was not warranted for preemption claims because “preemption is not a constitutional issue.”); Knudsen Corp. v. Nev. State Dairy Comm’n, 676 F.2d 374, 377 (9th Cir. 1982) (same).
23

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 24 of 42
alternative to resting our decision on the Equal Protection Clause.6 Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.
The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas, 424 U.S. at 354. 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. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The Supreme Court has also indicated that the INA provides a pervasive framework with regard to the admission, removal, and presence of aliens. See Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas, 424 U.S. at 353, 359); cf.
6 In their opening brief, Defendants argue preemption is not properly before this court because Plaintiffs did not appeal the district court’s dismissal of their preemption claim. But at oral argument, defense counsel offered to provide supplemental briefing on the issue. Separately, Plaintiffs noted that Defendants raised the Take Care argument for the first time on appeal and argued it ought not be considered because it was not presented to the district court. Following oral argument, we requested and the parties submitted supplemental briefing on both issues. Defendants’ supplemental brief conceded that, in light of the considerations articulated in Olympia Pipe Line Co. v. City of Seattle, 437 F.3d 872 (9th Cir. 2006), we may properly consider preemption in this case.
24

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 25 of 42
Arizona, 132 S. Ct. at 2499 (“Federal governance of immigration and alien status is extensive and complex.”).
To be sure, not all state regulations touching on immigration are preempted. See Chamber of Commerce, 131 S. Ct. at 1974. But states may not directly regulate immigration. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013). In particular, the power to classify aliens for immigration purposes is “committed to the political branches of the Federal Government.” Plyler, 457 U.S. at 225 (quoting Mathews, 426 U.S. at 81). “The States enjoy no power with respect to the classification of aliens.” Plyler, 457 U.S. at 225. Because Arizona created a new immigration classification when it adopted its policy regarding driver’s license eligibility, it impermissibly strayed into the exclusive domain of the INA.
States can regulate areas of traditional state concern that might impact noncitizens. See DeCanas, 424 U.S. at 355. Permissible state regulations include those that mirror federal objectives and incorporate federal immigration classifications. Plyler, 457 U.S. at 225–26. But a law that regulates an area of traditional state concern can still effect an impermissible regulation of immigration.
25

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 26 of 42
For example, in Toll v. Moreno, the Supreme Court held that preemption principles foreclosed a state policy concerning the imposition of tuition charges and fees at a state university on the basis of immigration status. 458 U.S. 1, 16–17 (1982). Similarly, the Third Circuit has held that municipal ordinances preventing unauthorized aliens from renting housing constituted an impermissible regulation of immigration and were preempted by the INA. Lozano v. City of Hazleton, 724 F.3d 297, 317 (3d Cir. 2013) (emphasis added). Although the housing ordinances did not directly regulate immigration in the sense of dictating who could or could not be admitted into the United States, the Third Circuit concluded that they impermissibly “intrude[d] on the regulation of residency and presence of aliens in the United States.” Id. (emphasis added).
Similarly, the Fifth Circuit has 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). The Fifth Circuit’s decision was based on its recognition that “[t]he federal government alone . . . has the power to classify non-citizens.” Id. In accord with these decisions, the Eleventh Circuit held that a state law prohibiting courts from recognizing contracts involving unlawfully present aliens
26

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 27 of 42
was preempted as “a thinly veiled attempt to regulate immigration under the guise of contract law.” See United States v. Alabama, 691 F.3d 1269, 1292–96 (11th Cir. 2012).
Here, Arizona’s policy ostensibly regulates the issuance of drivers’ licenses, admittedly an area of traditional state concern. See Chamber of Commerce, 131 S. Ct. at 1983. But its policy necessarily “embodies the State’s independent judgment that recipients of [DACA] are not ‘authorized’ to be present in the United States ‘under federal law.’” ADAC II, 757 F.3d at 1069 (Christen, J., concurring). Indeed, the Arizona Executive Order declared that “the Deferred Action program does not and cannot confer lawful or authorized . . . presence upon the unlawful alien applicants.” Executive Order 2012–06 at 1. The Order also announced Arizona’s view that “[t]he issuance of Deferred Action or Deferred Action . . . [EADs] to unlawfully present aliens does not confer upon them any lawful or authorized status.” Id. (emphasis added). To implement the Order, ADOT initiated a policy of denying licenses to DACA recipients pursuant to Arizona’s driver’s license statute, which requires that applicants “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) (emphasis added).
27

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 28 of 42
Arizona points to three criteria to justify treating EAD recipients differently than individuals with (c)(9) and (c)(10) EADs,7 even though the federal government treats their EADs the same in all relevant respects. But Arizona’s three criteria—that an applicant: has formal status; is on a path to formal status; or has applied for relief expressly provided for in the INA—cannot be equated with “authorized presence” under federal law. DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for some period of time, provided they comply with certain conditions.
Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design.8 Arizona engages in this
7 As we have noted, 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).
8 Defendants’ continual insistence that Arizona’s policy is not preempted because the DACA program lacks “the force of law” reflects a misunderstanding of the preemption question. Preemption is not a gladiatorial contest that pits the DACA Memorandum against Arizona’s policy. Rather, Arizona’s policy is
(continued...) 28

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 29 of 42
“exercise of regulatory bricolage,” ADAC II, 757 F.3d at 1072 (Christen, J., concurring), despite the fact that “States enjoy no power with respect to the classification of aliens,” Plyler, 457 U.S. at 225.
That this case involves classes of aliens the Executive has, as a matter of discretion, placed in a low priority category for removal is a further consideration weighing against the validity of Arizona’s policy. 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, 525 U.S. at 484–86. The discretion built into statutory removal procedures suggests that auxiliary state regulations regarding the presence of aliens in the United States are particularly intrusive on the overall federal statutory immigration scheme.
8(...continued) preempted by the supremacy of federal authority under the INA to create immigration categories. Additionally, because Arizona’s novel classification scheme includes not just DACA recipients but also recipients of regular deferred action and deferred enforced departure, our conclusion that Arizona’s scheme impermissibly creates immigration classifications not found in federal law is not dependent upon the continued vitality of the DACA program.
29

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 30 of 42
Unable to point to any federal statute or regulation that justifies classifying individuals with (c)(9) and (c)(10) EADs as authorized to be present while excluding recipients of deferred action or deferred enforced departure, Defendants argue that Arizona properly relied on statements by the U.S. Citizenship and Immigration Service that “make clear that deferred action does not confer a lawful immigration status.” These statements take the form of an email from a local U.S. Citizenship and Immigration Service Community Relations Officer in response to an inquiry from ADOT. In the email, the officer notes that DACA recipients applying for work authorization should fill in category “C33” and not category “C14,” which is the category for regular deferred action.
This email does nothing to further Defendants’ argument. The officer’s statement in no way suggests that federal law supports Arizona’s novel classifications. And even if it did, an email from a local U.S. Citizenship and Immigration Services Officer is not a source of “federal law,” nor an official statement of the government’s position.9
9 In ADAC II, Defendants also argued that a “Frequently Asked Questions” section of the U.S. Citizenship and Immigration Services Website and a Congressional Research Service Memorandum demonstrated that Arizona’s classification found support in federal law. See 757 F.3d at 1073. We understand Defendants to have abandoned these arguments. But even if they had not, neither source is a definitive statement of federal law.
30

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 31 of 42
The INA, indeed, directly undermines Arizona’s novel classifications. 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.” INA § 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B)(ii) (emphases added). The administrative regulations implementing this section of the INA, to which we owe deference, establish that deferred action recipients do not accrue “unlawful presence” 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,” for purposes of this statute. INA § 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B).
The REAL ID Act, which amended the INA, further undermines Arizona’s interpretation of “authorized presence.” REAL ID Act of 2005, Pub. L. No. 10913, div. B, 119 Stat. 231. The Real ID Act amendments provide that states may issue a driver’s license or identification card to persons who can demonstrate they are “authorized [to] 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
31

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 32 of 42
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).
Despite Arizona’s clear departure from federal immigration classifications, Defendants argue Arizona’s policy is not a “back-door regulation of immigration.” They compare it to the Louisiana Supreme Court policy the Fifth Circuit upheld in LeClerc v. Webb, which prohibited any alien lacking permanent resident status from joining the state bar. 419 F.3d 405, 410 (5th Cir. 2005). But the Louisiana Supreme Court did not create a novel immigration classification as Arizona does here. Rather, it permissibly borrowed from existing federal classifications, distinguishing “those aliens who have attained permanent resident status in the United States” from those who have not. Id. (quoting In re Bourke, 819 So. 2d 1020, 1022 (La. 2002)).
Defendants also argue that sections of the INA granting states discretion to provide public benefits to certain aliens, including deferred action recipients, suggest that Congress “has not intended to occupy a field so vast that it precludes all state regulations that touch upon immigration.” See 8 U.S.C. §§ 1621, 1622. But we do not conclude that Congress has preempted all state regulations that touch upon immigration. Arizona’s policy is preempted not because it denies state
32

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 33 of 42
benefits to aliens, but because the classification it uses to determine which aliens receive benefits does not mirror federal law.
In sum, Defendants offer no foundation for an interpretation of federal law that classifies individuals with (c)(9) and (c)(10) EADs as having “authorized presence,” but not DACA recipients. Arizona’s policy of denying drivers’ licenses to DACA recipients based on its own notion of “authorized presence” is preempted by the exclusive authority of the federal government under the INA to classify noncitizens. III. Constitutionality of the DACA Program
We decline to rule on the constitutionality of the DACA program, as the issue is not properly before our court; only the lawfulness of Arizona’s policy is in question.
We note, however, that the discussion above is quite pertinent to both of Defendants’ primary arguments undergirding their challenge to the constitutionality of the DACA program. First, Defendants argue that the Executive has no power, independent of Congress, to enact the DACA program. But as we have discussed, the INA is replete with provisions that confer prosecutorial discretion on the Executive to establish its own enforcement priorities. See supra, section II. Third parties generally may not contest the exercise of this discretion,
33

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 34 of 42
see Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), including in the immigration context, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984).10
Second, Defendants contend that the DACA program amounts to a wholesale suspension of the INA’s provisions, which in turn violates the President’s obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3 (“the Take Care Clause”). But, according to an amicus brief filed by the Department of Justice, the Department of Homeland Security only has funding annually to remove a few hundred thousand of the 11.3 million undocumented aliens living in the United States. Constrained by these limited resources, the Department of Homeland Security must make difficult decisions about whom to prioritize for removal. Despite Defendants’ protestations, they
10 Congress’s failure to pass the Development, Relief, and Education for Alien Minors (“DREAM”) Act does not signal the illegitimacy of the DACA program. The Supreme Court has admonished that an unenacted bill is not a reliable indicator of Congressional intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969). Moreover, the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief (i.e., the DREAM Act would have granted conditional residency that could lead to permanent residency, whereas the DACA program offers a more limited, temporary deferral of removal).
34

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 35 of 42
have not shown that the Department of Homeland Security failed to comply with its responsibilities to the extent its resources permit it to do so.11
For that reason, this case is nothing like Train v. City of New York, a case relied upon by Defendants, in which the Supreme Court affirmed an order directing a presidential administration to spend money allocated by Congress for certain projects. 420 U.S. 35, 40 (1975). Here, by contrast, the Department of Justice asserts that Congress has not appropriated sufficient funds to remove all 11.3 million undocumented aliens, and several prior administrations have adopted programs, like DACA, to prioritize which noncitizens to remove. See supra n.2. “The power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws . . . .” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see Arpaio v. Obama, 797 F.3d 11, 18 (D.C. Cir. 2015).
11 Indeed, the Department of Justice’s brief reports that the administration has removed approximately 2.4 million noncitizens from the country from 2009 to 2014, a number the government states is “unprecedented.” Prioritizing those removal proceedings for noncitizens who represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (November 20, 2014), cannot fairly be described as abdicating the agency’s responsibilities.
35

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 36 of 42
Further, as we have noted, the Supreme Court has acknowledged the history of the Executive engaging in a regular practice of prosecutorial discretion in enforcing the INA. See Reno, 525 U.S. at 483–84 & n.8 (“To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, . . . is now designated as deferred action.” (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03 [2][h] (1998))). This history includes “general policy” nonenforcement, such as deferred action granted to foreign students affected by Hurricane Katrina, U.S. Citizenship and Immigration Services, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005), and deferred action for certain widows and widowers of U.S. citizens, Memorandum for Field Leadership, U.S. Citizenship and Immigration Services, from Donald Neufeld, Acting Associate Director, U.S. Citizenship and Immigration Services, “Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children” at 1 (Sept. 4, 2009).12
12The recent ruling in Texas v. United States, 809 F.3d 134 (5th Cir. 2015) petition for cert. granted sub nom. United States v. Texas, — S. Ct. — , 2016 WL
(continued...) 36

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 37 of 42
We reiterate that, in the end, Arizona’s policy is preempted not because the
DACA program is or is not valid, but because the policy usurps the authority of the
federal government to create immigrant classifications.
IV. Permanent Injunction
Before a court may grant a permanent injunction, the plaintiff must satisfy a
four-factor test, demonstrating:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 141 (2010) (quoting eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
Plaintiffs have proven that they suffer irreparable injury as a result of
Arizona’s policy, and that remedies available at law are inadequate to compensate
them for that injury. In particular, Plaintiffs have demonstrated that their inability
12(...continued) 207257 (U.S. Nov. 20, 2015) (mem.), is also inapposite to Defendants’ constitutional claims. There, several states challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), including DAPA recipients’ eligibility for certain public benefits such as drivers’ licenses and work authorization. Id. at 149. The court concluded that the states were likely to succeed on their procedural and substantive claims under the Administrative Procedure Act, and expressly declined to reach the Take Care Clause issue. Id. at 146 & n.3, 149.
37

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 38 of 42
to obtain drivers’ licenses limits their professional opportunities. In Arizona, it takes an average of over four times as long to commute to work by public transit than it does by driving, and public transportation is not available in most localities. One ADAC member had to miss full days of work so that she could take her son to his doctors’ appointments by bus. Another ADAC member finishes work after midnight but the buses by her workplace stop running at 9 p.m. And as the district court noted, another Plaintiff is a graphic designer whose inability to obtain a driver’s license caused her to decline work from clients, while yet another Plaintiff wants to pursue a career as an Emergency Medical Technician but is unable to do so because the local fire department requires a driver’s license for employment. ADAC III, 81 F. Supp. 3d at 809.
Plaintiffs’ inability to obtain drivers’ licenses hinders them in pursuing new jobs, attending work, advancing their careers, and developing business opportunities. They thus suffer financial harm and significant opportunity costs. And as we have previously found, the irreparable nature of this injury is exacerbated by Plaintiffs’ young age and fragile socioeconomic status. ADAC II, 757 F.3d at 1068. Setbacks early in their careers can have significant impacts on Plaintiffs’ future professions. Id. This loss of opportunity to pursue one’s chosen profession constitutes irreparable harm. Enyart v. Nat’l Conference of Bar
38

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 39 of 42
Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 709–10 (9th Cir. 1988) (holding that plaintiff’s transfer to a less satisfying job created emotional injury that constituted irreparable harm). Since 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), Plaintiffs have also shown that remedies available at law are inadequate to compensate them.
Plaintiffs have also demonstrated that, after considering the balance of hardships, a remedy in equity is warranted and that the public interest would not be disserved by a permanent injunction. We conclude that Arizona’s policy is preempted by federal law. “[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 (quoting Arizona, 641 F.3d at 366) (alterations omitted). 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) (citation omitted).
CONCLUSION
39

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 40 of 42
In sum, we find that DACA recipients are similarly situated in all relevant respects to other noncitizens eligible for drivers’ licenses under Arizona’s policy. And Arizona’s refusal to rely on EADs from DACA recipients for purposes of establishing eligibility for drivers’ licenses may well violate the Equal Protection Clause for lack of a rational governmental interest justifying the distinction relied upon. Invoking the constitutional avoidance doctrine, we construe the INA as occupying the field of Arizona’s classification of noncitizens with regard to whether their presence is authorized by federal law, and as therefore preempting states from engaging in their very own categorization of immigrants for the purpose of denying some of them drivers’ licenses. Plaintiffs have shown that they suffer irreparable harm from Arizona’s policy and that remedies at law are inadequate to compensate for that harm. Plaintiffs have also shown that a remedy in equity is warranted and that the public interest would not be disserved by a permanent injunction.
Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of Plaintiffs. We also AFFIRM the district court’s order entering a permanent injunction that enjoins Arizona’s policy of denying the EADs issued under the DACA program as satisfactory proof of authorized presence under federal law in the United States.
40

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 41 of 42
AFFIRMED.
41

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-1, Page 42 of 42
COUNSEL Karen Tumlin (argued), Shiu-Ming Cheer, Nicholas Espiritu, Linton Joaquin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA; Tanya Broder, National Immigration Law Center, Oakland, CA; Jorge Martin Castillo and Victor Viramontes, Mexican American Legal Defense Educational Fund, Los Angeles, CA; Rodkangyil Danjuma, ACLU Foundation of Northern California, San Francisco, CA; Lee Gelernt and Michael K.T. Tan, American Civil Liberties Union, New York, NY; James Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix, AZ; Jennifer C. Newell and Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, CA; Kelly Flood, ASU Alumni Law Group, Phoenix, AZ, for Plaintiffs-Appellees. Dominic Draye (argued) and John Robert Lopez, IV, Arizona Attorney General’s Office, Phoenix, AZ; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, AZ, for Defendants-Appellants. Dale Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform Law Institute. Lindsey Powell, Washington D.C. for Amicus Curiae United States of America.
42

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-2, Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment •

This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

2

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

3

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
This form is available as a fillable version at: http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf.
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief Reply Brief Other**

REQUESTED (Each Column Must Be Completed)

No. of Docs.

Pages per Cost per

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

ALLOWED (To Be Completed by the Clerk)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page

Form 10. Bill of CoCstas s-eC:o1n5ti-n1u5e3d07, 04/05/2016, ID: 9928648, DktEntry: 71-2, Page 5 of 5

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 1 of 7
[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 94-30088]
[[Page Unknown]]
[Federal Register: December 6, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE Immigration and Naturalization Service [INS No. 1615E-94] RIN 1115-AC30
Expiration of Deferred Enforced Departure for Nationals of El Salvador
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice of the expiration of deferred enforced departure (DED) for nationals of EL Salvador.
-----------------------------------------------------------------------
SUMMARY: The Immigration and Naturalization Service (``the Service'' or ``INS'') will allow the expiration on December 31, 1994, of the deferred enforced departure (DED) previously granted to certain
notpsoEFEDafhoifFOxitelgFRavitinDEmiohetiECFisnexifDTUniapci.IReolGiacVTrnsorlaEH,,vanEoetatDRI4frinlAm2nodyTIm5EmnENileha:FgInounOrStfmdDRaSaaeMttlaDnccAirvnEaeToeadDrnmInedibOtocfgneNa,roohorn.nrtCdNcssl3OWitAiSo1NN,efdasn,TadteligAtRNervte1Cuoraaur9Troinotda9:am.ciots4lAoorie.Ri31nnaoroz2r5snnvna1izuoseat4-o1lf,ili,tnadon5atissnWa3thtiCaiedahSs0Doheieh7ntabrrirosEalvneawtlsiigariabinctctleSs,eomhhiea,ntnlfS,iAvayvoeEpcarnxDecpoodiaCdtrfnotomocrhri2Coptlen0onrhuhIa5iedacmt3aAaesomi6ltidnio,iptemitgniorptmirsTiaahpnaenl gcarutl5ettoaiev,nvtop.coteinh2Bifhdoo0eennrse1e6wer
(202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
Section 303 of the Immigration Act of 1990, Public Law 101-649, dated November 29, 1990, designated El Salvador for Temporary Protected Status (TPS) for a period of eighteen (18) months beginning January 1, 1991, and ending June 30, 1992. Eligible nationals of El Salvador who registered under this special TPS program were required to register by October 31, 1991, and to reregister as required in order to extend TPS benefits.
Temporary Protected Status ended on June 30, 1992. However, on June 26, 1992, the Commissioner of the Immigration and Naturalization Service announced in the Federal Register at 57 FR 28700 that the deportation of eligible nationals of El Salvador who had registered for TPS would not be enforced before June 30, 1993. On June 8, 1993, the Service announced in the Federal Register at 58 FR 32157 a further extension until December 31, 1994, of deferred enforced departure (DED) for eligible Salvadorans. The two announcements were made at the direction of former President Bush and President Clinton respectively. Both these grants of DED were based on the serious negative effects that a large repatriation would have had on the then evolving situation in El Salvador.
After consultation with appropriate agencies of the Government and consideration of the totality of the impact of the expiration of DED for Salvadorans, it has been concluded that the political and human rights situation inside El Salvador has improved significantly and can no longer serve as a basis for the continuation of DED.
Automatic Extension of Employment Authorization
In order to ensure an opportunity for Salvadoran beneficiaries of

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 2 of 7
DED to apply for an employment authorization document (EAD), the Service is granting an automatic extension until September 30, 1995, of the validity of any EAD which expires on December 31, 1994, and was previously issued to a DED Salvadoran pursuant to 8 CFR 274a.12(a)(11). Affected Salvadorans should apply for their new EADs at least 3 months before the expiration of the automatic extension (that is, no later than June 30, 1995) in order to ensure continuous employment authorization.
Employers of DED Salvadorans
Employers of DED Salvadorans whose employment authorization is automatically extended may not refuse to accept, for purposes of verifying or reverifying employment eligibility until September 30, 1995, an employment authorization document (EAD), Form I-688B, bearing an expiration date of December 31, 1994, (or extension sticker punched for December 1994) and containing a notation ``274a.12(a)(11)'' or ``274a.12(a)(12)'' on the face of the document under ``Provision of Law.'' Employers are reminded that this action does not affect the right of a worker to present any other legally acceptable document as proof of work authorization.
Impact of Decision
The Service believes that the decision to end DED will have a delayed and gradual impact on members of the Salvadoran community in the United States who currently hold DED status. Under the settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (``ABC'') affected Salvadorans will be able to maintain legal employment authorization pending a review of their asylum applications. Those ABC class members who have not filed asylum applications will have an opportunity to do so. In addition to the rights afforded under the ABC agreement, many Salvadorans have adjusted and will continue to adjust status to lawful permanent residence on the basis of family relationships and other grounds.
wcOn(tftpfbhlnoFhihriyeatoeleeltsoiryevetAhsrcmdoidhleehpoelrmaIaatuoeba-vsisraStmod5eyolsahbuv8lnynyleeti9nuelvyrs)omofwuasMitfilmdl,anwalyoargifpfeorttctipidffaehhthlllifnreheiiflisy3atdcnoecr1thagrdewea,eatrhgrtniaaa.oie1hIosss9eNannyyite9ySsellcnen5ymwuuitirt,malammeteiupuya.didttspmsaNalhtrbyCplfeeoaellpinolodsppual.yrSurpsmsiAtebilusc1rDormaipaar5eEvitcppmtizgDcitealpei-o1i,ectelmosreasimibnn5tatneoecea3erawrnnarureiiivttsn0Denlnipeit7dAlicrdomirBrtee.naleafCisivyarogeaciCetcrchnleolvshmhltdnuaeueTasatssnpiAvPscselspdSsulyryilaec,nal.mfetdtmdsuwemereesmiAmteCoemrtbhnoongbmahpeetfaetepirryaArrhmpnesatldseblvhhiptl.ei9iaapeiorearc0oldrisAgsausednl ssrtdsove5eaialicv,oAeoyyhoi.fBmnsaus2BCe,vsi0nelortiyn1e.f6wer
Obtaining Further Employment Authorization
With Salvadoran DED ending, ABC class members may obtain further employment authorization based on a ``pending'' asylum application. Special procedures apply to class members who seek work authorization under the agreement. Class members seeking employment authorization must identify themselves as ABC class members. They must have an asylum application on file or must file a completed asylum application (Form I-589) with Form I-765, Application for Employment Authorization. Eligible class members who apply for employment authorization under this agreement are not subject to the ``non-frivolous'' standard required under 8 CFR 208.7(a). Form I-765, with or without an asylum application as appropriate, must be filed directly with the service center having jurisdiction over the applicant's place of residence for asylum-related applications. However, if the original asylum application was filed with an immigration judge in exclusion or deportation proceedings, applications for employment authorization and asylum should be filed at the appropriate local INS office until directed otherwise.
Class members generally must pay the employment authorization application fee, currently seventy dollars ($70). However, when an initial application for employment authorization is filed based on an asylum application which is found to satisfy the non-frivolous test, such an initial employment authorization application can be filed and approved without payment of the filing fee under the general asylum regulations now in effect. Also, eligible class members who can demonstrate that they fall within the poverty guidelines at 45 CFR 1060.2 will not be required to pay the fee.
In summary, new asylum applications are required only from those who have never filed for asylum before. All other class members may choose to rely on any asylum application filed previously. Class members may supplement a previously filed or newly filed asylum officer. Applicants who must have continuous documentation of

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 3 of 7
employment authorization should apply as early as possible with the appropriate service center or local office. It is not necessary to wait until the planned ABC notices are sent or until the class member's individual ABC notice is received. Such an application for employment authorization must be based on an asylum application.
Dated: November 29, 1994. Doris Meissner, Commissioner, Immigration and Naturalization Services. [FR Doc. 94-30088 Filed 12-2-94; 1:17 pm] BILLING CODE 4410-10-M
citedNino.A1r5iz-o1n5a30D7reaarcmhiAvecdt CoonaAliptiorinl 5v,.2B0r1e6wer

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 4 of 7

Official Website of the Department of Homeland Security

A-Z Index
FORMS

| Get Email Updates
NEWS CITIZENSHIP

HOME

EspSaeñaorlch| oBulroSgite| A|boAustkUaSCQISues|tioCnontact Us

GREEN CARD TOOLS

LAWS

Home > Humanitarian > Deferred Enforced Departure

Share This Page Print

Humanitarian
Battered Spouse, Children & Parents
Consideration of Deferred Action for Childhood Arrivals Process
Deferred Enforced Departure
DED Granted Country: Liberia
Humanitarian Parole
Refugees & Asylum
Special Situations
Temporary Protected Status
Victims of Human Trafficking & Other Crimes
Female Genital Mutilation or Cutting (FGM/C)

Deferred Enforced Departure

More Information

Deferred Enforced Departure (DED) is in the President’s discretion to authorize as part of his power to conduct
CfisdDmcouoeriEmbtseueDijigeingdgncnNtrtarairnoittteeoeio.ldsAarn1etprit5smoiheztn-aorao1sitovtu.n5adsaAa3l,orlf0tirefDhno7todmirCmuieavugetiardhhrc.muerhDeaUilEnAvsnDetcciltdyoetisvdCCoenSonrooetatavdAatleiebptrssiyorep,iDdnleuc5sEUviu,fDi.anc2lBald0yrree1feor6nwroaet r

Forms
I-765, Application for Employment Authorization I-131, Application for Travel Document

Country

Effective Date of DED

Extension Date of DED

Expiration Date

EAD Automaticall y Extended
Through

Liberia

October 1, 2007 (by President Bush's order of Septembe r 12, 2007)

24-month extension effective October 1, 2014 (by President Obama's order of Septembe r 26, 2014)

September 30, 2016

March 30, 2015

DED Eligibility
Eligibility requirements for a country’s nationals who are covered under DED is based on the terms of the President’s directive regarding DED for that country and

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 5 of 7 any relevant implementing requirements established by DHS. Information on eligibility can be found on your DED country link to the left.
Working in the United States
If work authorization is provided as a benefit of DED for your country, then you may request work authorization by filing a Form I-765, Application for Employment Authorization.
To see if work authorization is a provided benefit of your country, see your designated DED country link to the left
Automatic Employment Authorization Document (EAD) Extension
Sometimes DHS must issue a blanket automatic extension of the expiring EADs for DED beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. The Federal Register will tell you if your EAD has been temporarily auto-extended and to what date.
UIfyaaERycnooynnmeilouutddegepursimagsldEsoaoNtaceyAryviyoeenoroDeprn.suras.Aynohn1aamtoori5rreicwfeeze-emtno1hfyaaotpen5odsualuoa3vFngeryi0sedeeDvDed7nirtddEreocoeeairDternanhar-sgolcarmReoe(htlfolveteaiohenAvgdtfeergeiecntsydehdrtmtareemEClebro,AcanenonsoyDtotaneaaArttltiletigicihegnptleeayi,iuorbntaiitolnnlochenngy5adefvtso,wvmhl.ora2eeipBtclDxh0ilFdaorpE1ileeyit)Dry6.dewe,erodserfarl
questions or concerns about the automatic EAD extension, you may contact:
USCIS Form I-9 Customer Support: 1-888-464-4218 U. S. Department of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) Employer Hotline: 1-800-255-8155
If you are an employee with questions or concerns about the automatic EAD extension, you may contact:
The Office of Special Council Employee Hotline- 1800-255-7688. Additional information is available on the OSC Website link to the right.
Travel Outside the United States
If travel authorization is provided as a benefit of DED for your country, you must file for advance parole if you wish to travel. Advance parole gives you permission to leave the United States and return during a specified period.

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 6 of 7 To request advance parole, you must file Form I-131, Application for Travel Document. If you leave the United States without first receiving advanced parole, you may no longer be eligible for DED and may not be permitted to re-enter the United States. To see if travel authorization is a provided benefit of your country, see your designated DED country link to the left.
Last Reviewed/Updated: 07/14/2015

TOPICS
Adoption

citedNino.A1r5iz-o1n5a30D7reaarcmhiAvecdt CoonaAliptiorinl 5v,.2B0r1e6wer

VERIFICATION

POLICIES

E-Verify

USCIS Freedom of

Appeals

I-9 Central

Information Act and

Archive

myE-Verify

Privacy Act

Avoid Scams

SAVE

No FEAR Act

Citizenship

Website Policies

Citizenship Resource Center

Accessibility

Executive Actions on

Privacy and Legal

Immigration

Disclaimers

Family

Social Media Policy

File Online

Plug-ins

Green Card

Adobe Reader

History and Genealogy

Humanitarian

Military

Outreach

Visit the U.S.

Working in the U.S.

GOVERNMENT
Passports Visa Bulletin U.S. Department of Homeland Security U.S. Customs & Border Protection U.S. Immigration & Customs Enforcement White House U.S. Department of State USA.gov

National Customer Service Center
1-800-375-5283

Case: 15-15307, 04/05/2016, ID: 9928648, DktEntry: 71-3, Page 7 of 7 TDD for the Deaf and Hard of Hearing 1-800-767-1833
citedNino.A1r5iz-o1n5a30D7reaarcmhiAvecdt CoonaAliptiorinl 5v,.2B0r1e6wer

 
 No. 15-15307
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ARIZONA DREAM ACT COALITION et al.,
Plaintiffs-Appellees, v.
JANICE K. BREWER et al.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES’ BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLEES
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
JOHN S. LEONARDO United States Attorney
BETH S. BRINKMANN Deputy Assistant Attorney General
SCOTT R. MCINTOSH LINDSEY POWELL
(202) 616-5372 Attorneys, Appellate Staff Civil Division, Room 7259 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

TABLE OF CONTENTS
Page(s)
INTRODUCTION AND SUMMARY.............................................................................. 1
STATEMENT ........................................................................................................................ 3
A. Federal Law ........................................................................................................... 3
B. Arizona Law........................................................................................................... 5
ARGUMENT ......................................................................................................................... 7
I. This Court Should Uphold the Permanent Injunction on the Ground that Arizona’s Policy Is Preempted by Federal Law................................ 7
A. Federal law preempts Arizona’s policy because that policy distinguishes between groups of aliens in ways that federal law does not recognize, and the State has advanced no substantial interest in support of those distinctions ........................................................................................ 7
1. The authority to establish alien classifications is exclusively and comprehensively exercised by the federal government .................................................................. 7
2. States enjoy substantial leeway in setting policies for licensing drivers, but Arizona’s policy intrudes on federal immigration authority by establishing alien classifications not found in federal law .................................... 9
B. The Court should decide the case on preemption grounds ..................... 16
II. DACA Is a Valid Policy for Exercising Enforcement Discretion Under Federal Immigration Law, but the Court Need Not Reach That Issue ......................................................................... 18
A. The validity of the DACA policy is not properly before the Court, and this appeal would be a poor vehicle for resolving that issue .................................................................................. 18

B. The DACA policy is a valid exercise of the Secretary’s well-established discretion under the INA to accord deferred action ............................................................................................... 22
CONCLUSION ................................................................................................................... 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Arizona DREAM Act Coalition v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013)............................................................................. 16 757 F.3d 1053 (9th Cir. 2014)................................................................. 11, 13, 15, 16, 17

Arizona v. United States, 132 S. Ct. 2492 (2012) ................................................................................... 3, 4, 8, 20, 22

Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) .............................................................................. 4, 25 No. 14-5325, slip op. at 6 (D.C. Cir. Aug. 14, 2015) ............................................... 4, 26

Biller v. Toyota Motor Corp., 668 F.3d 655 (9th Cir. 2012)............................................................................................ 19

C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263 (3d Cir. 2004) ............................................................................................. 17

Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011) .................................................................................................... 3, 9

City of Los Angeles v. County of Kern, 581 F.3d 841 (9th Cir. 2009)............................................................................................ 17

Community for Creative Non-Violence v. Pierce, 786 F.2d 1199 (D.C. Cir. 1986) ....................................................................................... 26

Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015)............................................................................................ 25

Crane v. Napolitano, No. 12-3247, 2013 WL 1744422 (N.D. Tex. Apr. 23, 2013)....................................... 19

Curley v. City of North Las Vegas, 772 F.3d 629 (9th Cir. 2014)............................................................................................ 17

iii

DeCanas v. Bica, 424 U.S. 351 (1976), superseded by statute on other grounds as recognized in Arizona v. United States, 132 S. Ct. 2492, 2503 (2012)................................................ 8, 14
Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977)........................................................................................................... 18
Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994).............................................................................................. 19
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)............................................................................................................... 8
Heckler v. Chaney, 470 U.S. 821 (1985)........................................................................................................... 20
Hotel Emps. & Rest. Emps. Int’l Union v. Nevada Gaming Comm’n, 984 F.2d 1507 (9th Cir. 1993).......................................................................................... 18
LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005)............................................................................................ 13
Linda RS v. Richard D, 410 U.S. 614 (1973)........................................................................................................... 20
Mathews v. Diaz, 426 U.S. 67 (1976)............................................................................................................... 7
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) ...................................................................................................... 15
Plyler v. Doe, 457 U.S. 202 (1982)...............................................................................................7, 8, 9, 15
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)........................................................................................................... 24
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).............................................................................................4, 8, 21, 22
iv

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)........................................................................................................... 20
Swift & Co. v. Wickham, 382 U.S. 111 (1965)........................................................................................................... 17
Toll v. Moreno, 458 U.S. 1 (1982)................................................................................................................. 8
Train v. City of New York, 420 U.S. 35 (1975)............................................................................................................. 27
University of Tex. v. Camenisch, 451 U.S. 390 (1981)........................................................................................................... 18
Wayte v. United States, 470 U.S.598, 600, 604 & n.3 (1985) ................................................................................ 27
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir. 2013) ..................................................................................... 8
Constitution:
U.S. Const. art. I, § 8 .............................................................................................................. 7
U.S. Const. art. II, § 3 .......................................................................................................... 26
Statutes:
DHS Appropriations Act, Pub. L. No. 114-4, 129 Stat. 39 (2015)........................................................................ 4, 25
Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359................................................................................... 5
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., § 202, 119 Stat. 231, 302 ............................................. 9, 25
v

USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b)(1), 115 Stat. 272, 361 ..................................................... 23
6 U.S.C. § 202(5) ............................................................................................................... 3, 25 8 U.S.C. § 1101.................................................................................................................... 3, 7 8 U.S.C. § 1101 et seq. ............................................................................................................. 3 8 U.S.C. § 1103(a)(1) ............................................................................................................ 22 8 U.S.C. § 1103(a)(3) ........................................................................................................ 3, 26 8 U.S.C. § 1151 et seq. ......................................................................................................... 3, 7 8 U.S.C. § 1154(a)(1)(D)(i)(II) ............................................................................................. 23 8 U.S.C. § 1154(a)(1)(D)(i)(IV) ........................................................................................... 23 8 U.S.C. § 1158...................................................................................................................... 12 8 U.S.C. § 1181 et seq. ......................................................................................................... 3, 7 8 U.S.C. § 1182.................................................................................................................. 4, 12 8 U.S.C. § 1187...................................................................................................................... 12 8 U.S.C. § 1225(b)(2)(A) ...................................................................................................... 19 8 U.S.C. § 1227...................................................................................................................... 12 8 U.S.C. § 1227(a) ................................................................................................................... 4 8 U.S.C. § 1229a.................................................................................................................... 12 8 U.S.C. § 1229b ................................................................................................................... 12 8 U.S.C. § 1231(b)(3) ............................................................................................................ 12
vi

8 U.S.C. § 1252(a)(2)(B) ....................................................................................................... 20 8 U.S.C. § 1252(g)................................................................................................................. 20 8 U.S.C. § 1324a(h)(3) ..................................................................................................8, 9, 23 8 U.S.C. § 1621................................................................................................................ 13, 14 8 U.S.C. § 1621(c)(1) ............................................................................................................ 14 8 U.S.C. § 1622................................................................................................................ 13, 14 18 U.S.C. § 659...................................................................................................................... 27 49 U.S.C. § 30301 note (2006) .............................................................................................. 9 Ariz. Rev. Stat. Ann. § 28-3153(D) .................................................................................. 1, 5
Regulatory Materials: 8 C.F.R. § 274a.12................................................................................................................... 3 8 C.F.R. § 274a.12(a)-(c) ....................................................................................................... 5 8 C.F.R. § 274a.12(c)(14) .................................................................................. 4, 5, 8, 10, 23 46 Fed. Reg. 25,079 (May 5, 1981) ....................................................................................... 5
Other Authorities: Ariz. Dep’t of Transp. Policy 16.1.2 ..........................................................................2, 6, 10 DHS Releases End of Year Statistics,
http://www.ice.gov/news/releases/dhs-releases-end-year-statistics (Dec. 18, 2014) ................................................................................................................... 25 DOJ: A Report to the U.S. Congress, U.S. Attorneys’ Written Guidelines for the Declination of Alleged Violations of Federal Criminal Laws (1979), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=78986 ....................... 27
vii

Memorandum from Deputy Attorney General James M. Cole to U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2103) http://www.justice.gov/iso/opa/resources/ 3052013829132756857467.pdf........................................................................................ 27
Memorandum from Sec’y Napolitano, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) ................................................................................................ 5, 25
Migration Policy Institute, Deportation and Discretion: Reviewing the Record and Options for Change (Oct. 2014).......................................................................... 25
OLC, DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the U.S. & to Defer Removal of Others 14-20 (Nov. 19, 2014) http://www.justice.gov/sites/default/files/olc/opinions/attachments/ 2014/11/20/2014-11-19-auth-prioritize-removal.pdf.................................................. 26
viii

INTRODUCTION AND SUMMARY The United States submits this brief at the invitation of the Court. Arizona’s driver’s license policy is preempted because it distinguishes among aliens in ways not supported by federal law, and the Court should affirm the permanent injunction on that basis. The Court need not address Arizona’s belated argument that the Department of Homeland Security’s (DHS) Deferred Action for Childhood Arrivals (DACA) policy violates separation-of-powers principles and the Take Care Clause of the U.S. Constitution, because that argument is not preserved and is irrelevant to the preemptive force of federal law on the Arizona policy. In any event, DACA is a valid exercise of the Secretary’s broad authority and discretion to set policies for enforcing the immigration laws, which includes according deferred action and work authorization to certain aliens who, in light of real-world resource constraints and weighty humanitarian concerns, warrant deferral rather than removal. Arizona law prohibits the issuance of a driver’s license to anyone who “does not submit proof satisfactory to the [Arizona Department of Transportation] that the applicant’s presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D). Arizona maintains that “presence … authorized under federal law” is not a concept defined in federal law, and that the State is accordingly entitled to give content to the concept, which it has done by publishing a list of documents it deems acceptable for establishing presence authorized under federal law. Ariz. Dep’t of Transp. Policy 16.1.2. That list previously included all federal

employment authorization documents. Following the announcement of the DACA policy, however, Arizona no longer accepts federal employment authorization documents held by most (but not all) aliens who have been accorded deferred action by DHS.
The federal government’s exclusive authority to establish alien classifications and to distinguish among aliens on immigration-related grounds is well established. Although the States may employ federal alien classifications in furtherance of legitimate state interests, they may not intrude on the federal immigration power by establishing novel alien classifications not found in federal law. Arizona’s driver’s licensing scheme runs afoul of that principle by adopting a concept of “presence in the United States … authorized under federal law” under which it makes federal employment authorization documents sufficient proof of such presence for most individuals but then distinguishes among aliens holding federal employment authorization documents, where federal law draws no such distinctions, and without a substantial, independent state justification. The Arizona policy thus is based on an impermissible second-guessing of federal enforcement of the immigration laws.
The United States submitted a brief in the prior appeal, contending that the preliminary injunction was supported by preemption principles and that the case did not warrant further review. The Court has now directed the parties to file supplemental briefs addressing the preemption issue and whether the DACA policy violates separation-of-powers principles and/or the Take Care Clause. The Court has
2

invited the United States to express its views on these issues. For the reasons that

follow, the permanent injunction should be upheld on preemption grounds; the Court

need not consider the validity of the DACA policy; and the policy is, in any event,

fully within the Secretary’s authority.

A. Federal Law

STATEMENT

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., and other

federal immigration laws “establish[] a comprehensive federal statutory scheme for

regulation of immigration and naturalization,” Chamber of Commerce of the U.S. v.

Whiting, 131 S. Ct. 1968, 1973 (2011), including a detailed scheme for determining

whether an alien is subject to removal, see, e.g., 8 U.S.C. §§ 1101, 1151 et seq., 1181 et

seq. As part of that scheme, Congress has authorized the Secretary of Homeland

Security to “establish[] national immigration enforcement policies and priorities,” 6

U.S.C. § 202(5), and to “establish such regulations; … issue such instructions; and

perform such other acts as he deems necessary for carrying out his authority,” 8

U.S.C. § 1103(a)(3). Regulations and enforcement policies and decisions refining and

implementing alien classifications established by Congress are an integral part of the

federal scheme. See, e.g., 8 C.F.R. § 274a.12; Arizona v. United States, 132 S. Ct. 2492,

2499 (2012).

Under federal law, aliens may be subject to removal proceedings if they are

inadmissible or deportable on various statutory grounds. See 8 U.S.C. §§ 1182,

3

1227(a). But removal proceedings are not automatic. “Federal officials … must decide whether it makes sense to pursue removal at all,” and, “[i]f removal proceedings commence,” whether to grant “discretionary relief allowing [the alien] to remain in the country or at least to leave without formal removal.” Arizona, 132 S. Ct. at 2499. Recognizing that the Executive Branch must decide where to focus limited resources, Congress has directed DHS to prioritize “the identification and removal of aliens convicted of a crime by the severity of that crime.” DHS Appropriations Act, Pub. L. No. 114-4, 129 Stat. 39, 43 (2015).
One well-established way in which the Executive Branch exercises its discretion over removal is through deferred action. Recognized by regulation for thirty-four years, deferred action is an “act of administrative convenience to the government which gives some cases lower priority” by deferring removal of an alien for a temporary period. 8 C.F.R. § 274a.12(c)(14); see Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 (1999). Over the past several decades, the Executive Branch has accorded deferred action to various members of certain groups. See Arpaio v. Obama, No. 14-5325, slip op. at 6 (D.C. Cir. Aug. 14, 2015), and 27 F. Supp. 3d 185, 193-94 & nn.2-5 (D.D.C. 2014).
On June 15, 2012, the Secretary announced the DACA policy, which directs DHS officials to consider, on a case-by-case basis, exercising discretion in favor of individual aliens who were brought to the United States as children, have resided here for at least five years, and meet certain other threshold eligibility criteria. See
4

Memorandum from Sec’y Napolitano, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, at 1 (June 15, 2012) (DACA Memo). Pursuant to federal regulations in effect since 1981, aliens accorded deferred action may be accorded employment authorization by DHS if employment is an economic necessity. See 46 Fed. Reg. 25,079-03, 25,081 (May 5, 1981); 8 C.F.R. § 274a.12(c)(14). Many other categories of aliens can obtain employment authorization. 8 C.F.R. § 274a.12(a)-(c). Significantly, in defining the term “unauthorized alien” for purposes of employment authorization, Congress excluded individuals whom the Secretary has authorized to be employed, and it did so subsequent to the promulgation of the 1981 regulation making individuals accorded deferred action eligible for employment authorization. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359.
B. Arizona Law Arizona law prohibits the issuance of a driver’s license to anyone “who does not submit proof satisfactory to the department [of transportation] that the applicant’s presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D). The State has emphasized that “presence in the United States … authorized under federal law” is not a concept found in federal law but is instead “a term of art in state law” that is defined by state officials. Oral Arg. at 0:53-59; see Defs.’ Opening Br. 22.
5

In defining that concept, the Arizona Department of Transportation publishes a list of documents that it recognizes as establishing that an individual’s presence in the United States is authorized under federal law. Ariz. Dep’t of Transp. Policy 16.1.2. Previously, the list included all federal employment authorization documents, which contemplate the alien’s presence in the United States for the duration of the work authorization. Immediately upon DHS’s announcement of the DACA policy, however, Arizona revised its policy so that federal employment authorization documents issued to individuals accorded deferred action pursuant to the DACA policy will not suffice. The State subsequently revised its policy to additionally exclude federal employment authorization documents issued to most other aliens accorded deferred action or deferred enforced departure. See 1/22/15 Order (Op.) 7. Arizona continues to accept federal employment authorization documents, however, if the alien who submits the document is, among other things, currently in or awaiting proceedings for adjustment of status or cancellation of removal, or has filed an approved self-petition pursuant to the Violence Against Women Act and been accorded deferred action on that basis. See Dkt. No. 247, at 14-15 & n.6.
6

ARGUMENT I. This Court Should Uphold the Permanent Injunction on the Ground that
Arizona’s Policy Is Preempted by Federal Law. A. Federal law preempts Arizona’s policy because that policy
distinguishes between groups of aliens in ways that federal law does not recognize, and the State has advanced no substantial interest in support of those distinctions. 1. The authority to establish alien classifications is exclusively
and comprehensively exercised by the federal government. The power to classify aliens is “committed to the political branches of the Federal Government.” Plyler v. Doe, 457 U.S. 202, 225 (1982) (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)). It is “‘a routine and normally legitimate part’ of the business of the Federal Government to classify on the basis of alien status, and to ‘take into account the character of the relationship between the alien and this country.’” Id. (quoting Mathews, 426 U.S. at 81, 85). Drawing upon its constitutional power to “establish a[] uniform Rule of Naturalization,” U.S. Const. art. I., § 8, cl. 4, as well as “its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to control its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders.” Plyler, 457 U.S. at 225; see, e.g., 8 U.S.C. §§ 1101, 1151 et seq., 1181 et seq. Congress has tasked the Secretary with enforcing this scheme and granted him broad discretion to do so, including by determining whether to accord deferred action and work authorization to certain aliens based on enforcement
7

priorities, resource limitations, humanitarian considerations, and other factors. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012); Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 (1999); 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14)..
In contrast to the federal government, “[t]he States enjoy no power with respect to the classification of aliens.” Plyler, 457 U.S. at 225. The Supreme Court’s decisions in a variety of contexts have “been at pains to note the substantial limitations upon the authority of the States in making classifications based upon alienage.” Toll v. Moreno, 458 U.S. 1, 10 (1982); see Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Accordingly, a State generally may not establish classifications that distinguish among aliens whom the federal government has treated similarly. See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir. 2013).
The States retain power to regulate in areas of traditional state concern that may affect aliens, however, because “standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration.” DeCanas v. Bica, 424 U.S. 351, 355 (1976), superseded by statute on other grounds as recognized in Arizona v. United States, 132 S. Ct. 2492, 2503 (2012). Permissible state regulations may include those that borrow standards from the federal scheme. See Plyler, 457 U.S. at 226. But States may not usurp federal immigration power in the guise of furthering state interests. The risk of such intrusion on federal prerogatives is reduced where a state law incorporates existing federal alien classifications and does not create new ones, and
8

the State can identify a substantial state interest to which its reliance on the classification relates. See Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1981 (2011) (approving state licensing law that “beg[an] by adopting the federal definition of who qualifies as an ‘unauthorized alien’” for employment purposes under 8 U.S.C. § 1324a(h)(3)).
2. States enjoy substantial leeway in setting policies for licensing drivers, but Arizona’s policy intrudes on federal immigration authority by establishing alien classifications not found in federal law.
The issuance of driver’s licenses is an area of traditional state concern, see Whiting, 131 S. Ct. at 1983, and would not ordinarily impinge on federal immigration authority. This is true even if a state licensing scheme distinguishes among groups of aliens, as long as the alien classifications are borrowed from federal law and further a substantial state interest. See id. at 1981; cf. Plyler, 457 U.S. at 226. Indeed, federal law contemplates that States may take federal alien classifications into account in regulating the licensure of drivers within their jurisdiction. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., § 202, 119 Stat. 231, 302, 312 (49 U.S.C. § 30301 note). Accordingly, as a matter of preemption, a State might distinguish between aliens who have been accorded deferred action and those who have not, so long as the distinction follows the contours of federal alien classifications and furthers substantial state interests. What a State may not do is create new alien classifications where federal law draws no such distinctions, particularly where the new classifications are grounded in
9

disagreement with the manner in which the federal government exercises its exclusive authority over immigration.
In urging that its policy is not preempted, Arizona does not contest this settled framework. Instead, it advances a variety of arguments to suggest that it has exercised only the power reserved to the States by “analyz[ing] which individuals are authorized to be present in the country ‘under federal law.’” Defs.’ Supp. Br. 47.
But far from borrowing federal alien classifications, Arizona’s policy selectively incorporates and manipulates federal law to create new classifications and distinguish among aliens on grounds not recognized by federal law. The concept of whether an alien’s “presence in the United States is authorized under federal law” is “a term of art in state law that doesn’t appear in federal law.” Oral Arg. at 0:53-59. Arizona has defined this phrase through measures that recognize some (but not all) federal employment authorization documents as sufficient to demonstrate eligibility for a license, see Ariz. Dep’t of Transp. Policy 16.1.2, even though all employment authorization documents for aliens accorded deferred action similarly authorize an employer to hire that alien, 8 C.F.R. § 274a.12(c)(14), and all such documents contemplate the alien’s presence in the United States for the duration of the authorization.
At bottom, Arizona is second-guessing DHS’s decision to accord certain individuals deferred action and work authorization, and thereby intruding on the federal government’s exclusive authority under the Constitution and the INA. If this
10

conduct were permissible, Arizona could also distinguish among aliens in a variety of
contexts, including those with direct foreign-policy implications—for example, by
concluding that only a subset of aliens to whom DHS has granted asylum or
temporary protected status (e.g., only those from certain countries) may receive driver’s licenses.1
Arizona urges that the classifications it seeks to draw rely in part on “the
federal administrative classification of DACA recipients as unauthorized aliens.”
Defs.’ Supp. Br. 47-48. But there is no such federal administrative classification, and
the State does not point to any provision of federal law to support its contention.
The only federal pronouncement cited by the State is the statement of a local DHS
employee confirming that federal employment authorization documents issued to
aliens who are accorded deferred action under the DACA policy bear a different code
than documents issued to other individuals who have been accorded deferred action.
See id. at 48; ER 184. But these codes are solely for DHS’s convenience and say
1 This argument is distinct from the theory that Arizona’s policy is conflictpreempted because it interferes with the federal government’s decisions regarding the ability of aliens to work in the United States. See ADAC, 757 F.3d at 1061-62. Because driving may be necessary to employment in Arizona, it has been suggested that Arizona’s policy may stand in the way of the alleged federal judgment reflected in federal employment authorization that such aliens should work in the United States. Id. at 1062-63. In the view of the United States, that theory too broadly construes the federal judgment implicit in work authorizations, which serve only to establish which aliens an employer may lawfully employ under 8 U.S.C. § 1324a, and does not express an inviolable federal policy favoring the employment of such aliens. The Court therefore should not hold that Arizona’s policy is preempted on that basis.
11

nothing about whether the presence of aliens holding such documents “is authorized under federal law” for purposes of Arizona’s scheme. All aliens with deferred action and work authorization are equally authorized to work in the United States.
Arizona is on no firmer ground in claiming that the criteria it uses are derived from federal law. To determine which federal employment authorization documents suffice to establish that the holder’s presence in the United States is authorized under federal law, the State asserts that it looked to whether a document shows “‘(1) that the applicant has formal immigration status, (2) that the applicant is on a path to obtaining a formal immigration status, or (3) that the relief sought or obtained is expressly provided for in the INA.’” Op. 5. Contrary to the State’s contention, that inquiry is not based on federal immigration classifications. Federal immigration law is rooted in concepts of whether an alien is inadmissible, deportable, subject to removal, or eligible for various grounds of relief from removal such as cancellation or adjustment of status, see, e.g., 8 U.S.C. §§ 1158 (asylum), 1182 (inadmissibility), 1187 (visa waiver program), 1227 (deportability), 1229a (removal proceedings), 1229b (cancellation of removal), 1231(b)(3) (withholding of removal), as well as categories stemming from DHS’s discretion in enforcing the INA, such as temporary protected status designations or deferred action.
“[N]o federal law expressly articulates or even implies the distinct concept of a ‘path to legal status.’” Arizona DREAM Act Coalition (ADAC) v. Brewer, 757 F.3d 1053, 1070 (9th Cir. 2014) (Christen, J., concurring) (emphasis added). Arizona is “unable
12

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” on that basis while at the same time excluding those accorded deferred action or deferred enforced departure. Id. at 1073. “All of these groups similarly lack formal immigration status but are allowed to live and work in the country for a period of time by the federal government.” Id. Indeed, applicants for cancellation of removal, to whom Arizona issues driver’s licenses, have a more attenuated connection with the country, for they are already in removal proceedings.
Arizona cites 8 U.S.C. §§ 1621 and 1622 as support for its contention that the challenged state policy is not preempted because “Congress has not intended to occupy a field so vast that it precludes all state regulations that touch upon immigration.” Defs.’ Supp. Br. 51. There is no dispute that some state laws affecting aliens are not preempted. It is equally well established, however, that the federal government enjoys exclusive power to establish alien classifications and has exercised that power through the INA and actions taken by DHS pursuant to that statute. See supra pp. 7-8. Nothing in 8 U.S.C. §§ 1621 and 1622 or LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), supports the contention that States may adopt alien classifications not found in federal law.2
2 Contrary to the State’s suggestion, a driver’s license is not a “state or local public benefit” for purposes of 8 U.S.C. §§ 1621 or 1622. See id. § 1621(c)(1) (referring only to “professional” and “commercial” licenses).
13

Arizona also suggests that its policy is not preempted because DHS’s DACA memorandum lacks “the force of law.” Defs.’ Supp. Br. 2-4. While it is true that DACA is a general statement of policy and thus lacks the “force of law,” Arizona’s suggestion reflects a misunderstanding of the preemption question here, which is not determined by whether there are enforceable rights under the DACA policy. The State’s policy is preempted not because it conflicts with the enforcement policy outlined in the DACA memorandum, but rather because the federal government has the exclusive power to establish alien classifications, and the State’s policy intrudes on that federal prerogative by distinguishing among groups of aliens in novel ways and without substantial justification.
For the same reason, the State does not advance its position by urging that DHS’s DACA policy is not a valid exercise of authority under the INA. As we show below, the INA provides ample authority for the DACA policy. But in any event, Arizona’s assertion does not entitle the State to substitute its own alien classifications. See infra pp. 21-22. Through its “novel gloss on the federal immigration scheme” and creation of a “sub-classification of aliens lacking lawful status,” Arizona has impermissibly intruded on exclusively federal power. ADAC, 757 F.3d at 1070 (Christen, J., concurring).
Arizona’s failure to identify a substantial state interest served by its challenged policy further demonstrates that the policy is an impermissible regulation of immigration. See, e.g., DeCanas, 424 U.S. at 356-57. A State wishing to regulate in an
14

area that touches on immigration must identify a substantial state interest and show that its regulation is “reasonably adapted to the purposes for which the state desires to use it.” Plyler, 457 U.S. at 226 (emphasis and internal quotation marks omitted). The target of the state law—i.e., whether it is “aimed at subjects left to the States to regulate” or instead “aimed directly at” the interest that is the subject of federal law— is highly relevant to the inquiry. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-1600 (2015) (emphasis and internal quotation marks omitted). Here, Arizona has granted tens of thousands of driver’s licenses to aliens based on their federal employment authorization, and it has failed to identify any reason why the same authorization with the same legal effect should not similarly suffice for plaintiffs. See ADAC, 757 F.3d at 1065. The various grounds advanced by the State are either at odds with the record or apply with equal force to other individuals who the State has determined may establish that their presence in the United States is authorized under federal law by presenting federal employment authorization documents. See Op. 13-14.
The United States’ position in this case fully comports with its position in Texas v. United States, No. 15-40238 (5th Cir.). Texas asserted an injury based on costs allegedly associated with providing subsidized driver’s licenses to aliens accorded deferred action under DACA and another DHS policy. The United States has argued that Texas lacks standing, in part because the State is free to unilaterally avoid these asserted costs. For example, Texas could decline to subsidize the costs of the “temporary visitor” licenses created by Texas law—a change the State might justify on
15

the grounds that it would not recoup the full benefits of subsidization from temporary residents. Texas might also distinguish between individuals who have been accorded deferred action and other aliens, as long as it borrows federal alien classifications and has an adequate state interest in the distinction. In contrast to those hypothetical approaches, Arizona has adopted novel alienage classifications not supported by federal law, and it has not advanced any significant state interest furthered by the challenged policy.
B. The Court should decide the case on preemption grounds. The preemption question is before the Court and is an appropriate basis for resolving the case. At the outset of this litigation, plaintiffs “focus[ed] specifically on the State’s act of ‘classifying’ aliens … and argue[d] that such classification by a state is preempted by the federal government’s sole right to classify aliens.” ADAC v. Brewer, 945 F. Supp. 2d 1049, 1057 (D. Ariz. 2013); see ADAC, 757 F.3d at 1071 n.6 (Christen, J., concurring). Although plaintiffs did not directly renew that argument in moving for summary judgment, they continued to make essentially the same argument in the context of their equal protection claim, urging that “[d]efendants impermissibly ‘attempt to distinguish between … noncitizens on the basis of an immigration classification that has no basis in federal law.’” Pls.’ Resp. Br. 19 (quoting ADAC, 757 F.3d at 1066); see Toll v. Moreno, 458 U.S. 1, 11 n.16 (1982) (noting extent to which preemption and equal protection arguments overlap in this context).
16

Although the district court granted summary judgment on equal protection grounds, this Court “may affirm a grant of summary judgment on any ground supported by the record.” Curley v. City of North Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014). The record amply supports a ruling that Arizona’s policy is preempted because it intrudes on the exclusive federal prerogative of alien classification and the comprehensive scheme for regulation of immigration established by the federal government. No further factual development is necessary.
The Court should rule on preemption grounds to avoid the need to resolve plaintiffs’ substantive constitutional challenge to Arizona’s policy. This Court generally will “not decide federal constitutional questions where a dispositive nonconstitutional ground is available,” and “[t]his rule against unnecessary constitutional adjudication applies even when neither the trial court nor the parties have considered the nonconstitutional basis for decision.” City of Los Angeles v. County of Kern, 581 F.3d 841, 846 (9th Cir. 2009).
Although the preemptive force of federal law ultimately depends on the Supremacy Clause of the Constitution, a preemption claim typically calls on the court to address the relationship between the challenged state law and federal statutes. Swift & Co. v. Wickham, 382 U.S. 111, 120 (1965); C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 272 n.13 (3d Cir. 2004). Accordingly, preemption claims are generally “treated as ‘statutory’ for purposes of [the Court’s] practice of deciding statutory claims first to avoid unnecessary constitutional adjudications.’” Douglas v. Seacoast
17

Prods., Inc., 431 U.S. 265, 272 (1977); cf. Hotel Emps. & Rest. Emps. Int'l Union v. Nevada Gaming Comm’n, 984 F.2d 1507, 1512 (9th Cir. 1993) (observing in another context that “preemption is not a constitutional issue”).
Although the Court’s earlier opinion in this case addressed the scope of plaintiffs’ constitutional rights, it did not make a final determination regarding the constitutionality of the State’s policy. Instead, the Court framed its discussion in terms of whether the plaintiffs were likely to prevail on the merits of their claim. See University of Tex. v. Camenisch, 451 U.S. 390, 394 (1981) (emphasizing distinction between “likelihood of success” and “success”). Accordingly, principles of constitutional avoidance continue to have force in this appeal. II. DACA Is a Valid Policy for Exercising Enforcement Discretion Under
Federal Immigration Law, but the Court Need Not Reach That Issue. A. The validity of the DACA policy is not properly before the Court,
and this appeal would be a poor vehicle for resolving that issue. Although the DACA policy is plainly constitutional, its constitutionality is not properly before the Court. Arizona has attempted to raise that issue for the first time on appeal, and even the statutory argument on which the State’s belated constitutional argument ultimately rests is not one that the State raised in district court. In moving for summary judgment, Arizona argued that 8 U.S.C. § 1225(b)(2)(A) compels immigration officers to initiate removal proceedings against any aliens who are not clearly entitled to be admitted to the United States, Dkt. No. 247, at 13-14 (citing Crane v. Napolitano, No. 12-3247, 2013 WL 1744422 (N.D. Tex.
18

Apr. 23, 2013)), and that “deferring a removal action perpetuates an ongoing violation of federal immigration law,” id. at 11. In contrast to that narrow statutory argument, Arizona’s supplemental brief now launches a broadside attack on the validity of the DACA policy.
To the extent that Arizona is attempting to advance constitutional challenges, the Court should not adjudicate them because they are belatedly raised and not properly before the Court. See Biller v. Toyota Motor Corp., 668 F.3d 655, 663 (9th Cir. 2012). Indeed, the State’s argument that the DACA policy violates the Take Care Clause was not adequately raised even on appeal, because the State mentioned the issue only in a footnote. Defs.’ Opening Br. 38 n.7; see Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“[A] bare assertion does not preserve a claim.”).
In any event, the State’s argument is, at bottom, statutory rather than constitutional. Although the contours of Arizona’s arguments have shifted in its briefing, Arizona’s bottom-line contention is that the INA does not authorize the DACA policy as Arizona has incorrectly characterized it—i.e., as a grant of class-wide relief to a category of individuals not lawfully admitted into the United States. Whether framed in statutory or constitutional terms, that argument fails for the reasons discussed below. But the constitutional aspect of the State’s argument is especially insubstantial. A party cannot transform a statutory argument—here, that the Secretary has adopted a policy in conflict with the INA—into a meaningful constitutional challenge merely by citing the Take Care Clause and separation-of-
19

powers principles. Were it otherwise, nearly every statute-based suit against the government would become constitutional in dimension.
It would be particularly inappropriate to excuse the untimely nature of Arizona’s argument that the Secretary’s policy conflicts with the INA because there are serious questions regarding the State’s ability to challenge the Secretary’s exercise of enforcement discretion via deferred action. “[T]he removal process is entrusted to the discretion of the Federal Government.” Arizona, 132 S. Ct. at 2506. Moreover, third parties generally may not contest the exercise of prosecutorial discretion as to another, Linda RS v. Richard D, 410 U.S. 614, 619 (1973), including in the context of immigration, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984); see also Heckler v. Chaney, 470 U.S. 821, 828 (1985).
The INA itself further builds upon those principles by depriving courts of jurisdiction to entertain challenges to DHS’s deferred-action decisions, which are committed to the Secretary’s discretion by law, even when the challenge is raised by the alien directly affected. 8 U.S.C. §§ 1252(a)(2)(B), (g). The INA instead provides for review of the Secretary’s removal decisions through a carefully tailored scheme of administrative and judicial review of final orders of removal. Although § 1252(g) on its face bars challenges brought by or on behalf of an alien, the Supreme Court has emphasized that the statute adding this provision to the INA was broadly “aimed at protecting the Executive’s discretion from the courts,” and that § 1252(g) was directed against “attempts to impose judicial constraints upon prosecutorial discretion.”
20

American-Arab Anti-Discrimination Comm., 525 U.S. at 485-86 & n.9. Given that the State may not itself bring a suit to challenge the Executive’s exercise of enforcement discretion through deferred-action policies, there is a serious question as to whether the State may circumvent this limitation by couching its challenge to DACA as a defense of its driver’s license policy in this action. The presence of that reviewability issue is yet another reason why the Court should not entertain Arizona’s belated challenge to DACA.
Even if untimeliness were not an issue, the Court need not, and should not, address the State’s constitutional arguments regarding the validity of the DACA policy. As discussed above, it is no answer to plaintiffs’ challenge to Arizona’s driver’s license policy to assert that the DACA policy is invalid. See supra p. 14. Arizona urges that, because the DACA policy is invalid, individuals who have been accorded deferred action pursuant to that policy are not among those whose “presence in the United States is authorized under federal law.” See Defs.’ Opening Br. 25, 31. The central flaw in the State’s analysis is the erroneous assumption that the State may create and rely on the concept of an alien’s presence in the United States being authorized under federal law—which Arizona maintains is “a term of art in state law,” Oral Arg. at 0:53-59—and give content to that concept through a selective and novel reading of federal law. As discussed above, the notion of presence authorized under federal law, and the further criteria devised by the State in defining that concept, do not borrow federal alien classifications but rather create new ones. A
21

finding that the DACA policy is invalid would not cure that fatal flaw in the State’s policy. The Court should conclude that the State’s driver’s license policy is preempted on that basis without allowing the constitutionality of the DACA policy to be injected belatedly into this appeal.
B. The DACA policy is a valid exercise of the Secretary’s wellestablished discretion under the INA to accord deferred action.
The State’s challenge to the validity of the DACA policy is, in any event, without merit, whether viewed through a constitutional prism or a statutory one. The Secretary of Homeland Security is “charged with the administration and enforcement” of the immigration laws. 8 U.S.C. § 1103(a)(1). The Supreme Court’s decisions squarely establish that the Secretary has authority and discretion to accord deferred action. The Court has recognized that “the broad discretion exercised by immigration officials” is “[a] principal feature of the removal system.” Arizona, 132 S. Ct. at 2499. Federal officials “must decide whether it makes sense to pursue removal at all,” id., and “[a]t each stage [of the removal process] the Executive has discretion to abandon the endeavor,” American-Arab Anti-Discrimination Comm., 525 U.S. at 483-84. The Court has also recognized DHS’s longstanding use of deferred action as a “commendable” means of exercising discretion to defer removal action against aliens “for humanitarian reasons or simply for its own convenience.” Id. Congress has likewise approved of the Secretary’s exercise of enforcement discretion through policies of deferred action, as where it has directed the Secretary to consider according
22

deferred action to aliens within particular groups. See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b)(1), 115 Stat. 272, 361. And when Congress enacted these laws and the Supreme Court decided Reno, it was already long-settled that when an alien is accorded deferred action, the alien may also be accorded work authorization. 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14).
For the first time on appeal, Arizona urges that the DACA policy exceeds the Secretary’s authority because Congress has specifically authorized deferred action in particular circumstances, which the State urges implies a congressional intent to foreclose the exercise of deferred action absent a specific grant of statutory power. See Defs.’ Opening Br. 33-34; Defs.’ Supp. Br. 13. But Congress’s references to the use of deferred action in no way purport to grant the Secretary authority that would otherwise be lacking (or to restrict preexisting discretionary authority). Instead, such enactments are premised on Congress’s understanding that the Secretary has preexisting authority to defer enforcement action—as formally recognized in regulations governing employment authorization since 1981—and those enactments direct the Secretary to consider exercising that existing authority on behalf of aliens in specific groups. For example, in the case of aliens petitioning under the Violence Against Women Act, Congress stated that a qualifying alien “is eligible for deferred action and work authorization.” 8 U.S.C. § 1154(a)(1)(D)(i)(II) (emphasis added). Similarly, in the USA PATRIOT Act of 2001, § 423(b)(1), 115 Stat. at 361, Congress
23

provided that certain aliens “may be eligible for deferred action and work authorization.” (emphasis added).
Arizona is likewise wrong that Congress’s failure to enact the DREAM Act precludes the Secretary from exercising his preexisting discretion by issuing the DACA policy. See Defs.’ Supp. Br. 42-43. The Supreme Court has admonished that an unenacted bill is an unreliable indicator of legislative intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969). And in any event, the bills considered by Congress provided rights and relief that the DACA policy does not. Most significantly, the DREAM Act proposals would have granted covered aliens conditional residency, and later permanent residency, whereas DACA provides only the ability to request discretionary deferral of removal that is temporary and revocable at any time, and the opportunity to request work authorization. Thus, the legislative history cited by the State does not undermine the Secretary’s broad and longstanding authority to accord deferred action and work authorization to non-priority aliens.
Framing the State’s arguments in constitutional terms does not change the foregoing analysis. Arizona’s argument that the DACA policy is inconsistent with separation-of-powers principles is predicated on the assumption that the Secretary lacks authority under the INA to exercise his enforcement discretion on the terms reflected in the DACA policy. That assumption fails for the reasons already stated.
In arguing otherwise, Arizona asserts that the DACA policy is unconstitutional because it purports to “enact wholesale, class-wide” relief, thereby “transform[ing] the
24

responsibility for enforcement into the power of enactment.” Defs.’ Opening Br. 32; Reply Br. 14. That argument ignores the Secretary’s broad authority to “establish[] national immigration enforcement policies and priorities” and not merely policies subject to case-by-case exceptions determined by individual agents. 6 U.S.C. § 202(5); see infra pp. 26-27. In any event, Arizona fundamentally mischaracterizes the DACA policy, which establishes guidelines for the discretionary exercise of the Secretary’s power to determine on an individual basis whether to defer enforcement efforts to remove an alien from the United States. By its terms, the policy “makes it clear that [federal immigration officials] shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis.” Crane v. Johnson, 783 F.3d 244, 254-55 (5th Cir. 2015); DACA Memo, at 2. The implementation of the DACA policy is consistent with that clear direction. See Arpaio v. Obama, 27 F. Supp. 3d 185, 209 & n.13 (D.D.C. 2014).
Arizona’s arguments with respect to the Take Care Clause similarly lack merit. The premise that DHS has refused to enforce the immigration laws is baseless. From 2009 through 2014, DHS removed approximately 2.4 million aliens from the United States—an unprecedented number. See Migration Policy Institute, Deportation and Discretion: Reviewing the Record and Options for Change 13, 15 (Oct. 2014) (DHS removal data for 2009-2013); DHS Releases End of Year Statistics, http://www.ice.gov/news/ releases/dhs-releases-end-year-statistics (Dec. 18, 2014) (DHS removal data for 2014). Notwithstanding DHS’s substantial efforts, appropriations permit it to remove only a
25

few hundred thousand aliens per year—and approximately 11.3 million undocumented aliens still live in the United States, and many others are newly apprehended at the border each year. The Secretary thus must make difficult choices about how to prioritize limited resources as “necessary.” See 8 U.S.C. § 1103(a)(3). His choices to prioritize removal of serious criminals, security threats, and recent border-crossers—and to consider deferring action for aliens who pose no such danger and have lived here since they were children—are interrelated and represent responsible immigration enforcement in the face of real-world resource constraints and humanitarian concerns. Making these difficult decisions is a key element of the implementation of the Executive’s obligation to “take Care that the Laws be faithfully executed,” not a violation of it. U.S. Const. art. II, § 3. “The power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws … .” Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) ; see Arpaio v. Obama, No. 14-5325, slip op. at 5 (D.C. Cir. Aug. 14, 2015)..
Moreover, there is nothing novel, much less unconstitutional, about what the State refers to as “policy-level non-enforcement.” Defs.’ Supp. Br. 21. For years and on multiple occasions, DHS has employed broad, group-based policies for according deferred action and various forms of relief to individuals within defined categories of aliens. See OLC, DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the U.S. & to Defer Removal of Others 14-20 (Nov. 19, 2014). More generally, agencies
26

often issue policies and instructions that direct subordinates in allocating limited enforcement resources among the universe of potential violators. For example, the Selective Service Agency adopted a “passive enforcement” policy under which it initiated enforcement action only against non-registrants “who report themselves as having violated the law, or who are reported by others,” a policy that effectively exempted an estimated ninety-nine percent of violators from prosecution. Wayte v. United States, 470 U.S. 598, 600, 604 & n.3 (1985). And the Department of Justice has long had guidelines that employ a variety of categorical standards for enforcement discretion. See, e.g., Memorandum from Deputy Attorney General James M. Cole to U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2103); DOJ: A Report to the U.S. Congress, U.S. Attorneys’ Written Guidelines for the Declination of Alleged Violations of Federal Criminal Laws 6-9, 22-24 (1979); see also 18 U.S.C. § 659. The fact that a high-level official frames a policy in categorical terms does not mean that enforcement discretion is not being exercised by the agency, nor does it mean that the law is not being “faithfully executed.”
The only authority Arizona cites to support its contention that “policy-level non-enforcement” is problematic is Train v. City of New York, 420 U.S. 35 (1975), in which the Supreme Court held that an agency did not have discretion to withhold certain funds allocated by Congress. But Train involved the proper construction of a statute, not the Take Care Clause. See id. at 42-44. Although Arizona makes a passing effort to recast Train as a constitutional decision, Defs.’ Supp. Br. 22 n.3, the State’s
27

reliance on that decision simply underscores that the State’s “constitutional”
arguments in this case are really statutory. Indeed, Arizona concedes that its
arguments “could be cast as a matter of applying the INA.” Id. Arizona’s arguments
are without merit as a statutory matter, and they gain nothing by being recast in
constitutional terms.
CONCLUSION
For the foregoing reasons, the Court should affirm the judgment of the district
court on preemption grounds.
Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
JOHN S. LEONARDO United States Attorney
BETH S. BRINKMANN Deputy Assistant Attorney General
SCOTT R. MCINTOSH s/ Lindsey Powell LINDSEY POWELL
(202) 616-5372 Attorneys, Appellate Staff Civil Division, Room 7259 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530
AUGUST 2015
28

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Brief for the United States as Amicus Curiae contains 6,967 words according to the count of this office’s word processing system.
s/ Lindsey Powell LINDSEY POWELL

CERTIFICATE OF SERVICE I hereby certify that on August 28, 2015, I filed the foregoing brief by causing a digital version to be filed electronically via the CM/ECF system. Counsel will be served by the CM/ECF system.
s/ Lindsey Powell LINDSEY POWELL

 
 MARK BRNOVICH ATTORNEY GENERAL

OFFICE OF THE ARIZONA ATTORNEY GENERAL
SOLICITOR GENERAL'S OFFICE

DOMINIC E. DRAYE
SOLICITOR GENERAL DIRECT PHONE No. (602) 542-8255
DOMINIC.DRAYE@AZAG.GOV

January 22, 2018

Scott S. Harris Clerk of Court Supreme Court of the United States One First Street NE Washington, DC 20543
Re: Brewer v. Arizona Dream Act Coalition, No. 16-1180
Dear Mr. Harris,
Petitioners submit this letter to inform the Court of a recent development relevant to the above-referenced case. The petition in Brewer v. Arizona Dream Act Coalition presents the issue of whether the Deferred Action for Childhood Arrivals (DACA) program is valid "federal law" capable of preempting a state police power regulation. The petition remains pending in this case, awaiting the views of the Solicitor General, as invited by the Court on June 26, 2017.
On January 9, 2018, the Northern District of California ordered the Department of Homeland Security (DHS) "to maintain the DACA program on a nationwide basis." Regents of University of California v. United States Department of Homeland Security, C 17-05211 WHA, 2018 WL 339144, at *27 (N.D. Cal. Jan. 9, 2018). That court concluded that DHS's decision to wind down DACA based on the program's unconstitutionality "was based on a flawed legal premise" because DHS's original decision to extend deferred action to DACA enrollees was within the scope of the agency's "long and recognized practice." Id. at 17-20.
On January 18, 2018, under a standard requiring "imperative public importance," Sup. Ct. R. 11, the Solicitor General of the United States filed a petition for writ of certiorari before judgment challenging Regents of University of California. In its petition, the United States argued, among other things, that the conclusion of the Fifth Circuit in Texas v. United States, 809 F.3d 134 (5th Cir. 2015)—that DAPA and the expanded DACA policies were unlawful on both procedural and substantive grounds—"applies equally to the original DACA policy." Pet. at 26, Regents of Univ. of California v. US. Dep 't of Homeland Sec. (filed Jan. 18, 2018). -
RECEIVED
JAN 242018
OFFICE OF THE CLERK SUPREME COURT, U.S.
2005 NORTH CENTRAL AVENUE, PHOENIX, AZ 85004 • PHONE 602.542.3333 • FAx 602.542.8308 0 WWW.AZAG.GOV

The purpose of this letter is to identify the relationship between last week's petition and the instant case. While all parties continue to wait for the Solicitor General's response in this case, Arizona's statute remains enjoined on the assumption that DACA is federal law capable of preempting state law. If the Court grants the petition in Regents of University of California, it may wish to consider Brewer at the same time.

DED/smp

Sincerely,

e-

Dominic E. Draye

-7

Solicitor General of Arizona

cc: Jeffrey B. Wall, Principal Deputy Solicitor General of the United States Jennifer Chang Newell, Counsel of Record for Respondents

 
 No. 16-1180
In the Supreme Court of the United States
JANICE K. BREWER, FORMER GOVERNOR OF ARIZONA, ET AL., PETITIONERS v.
ARIZONA DREAM ACT COALITION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
NOEL J. FRANCISCO Solicitor General Counsel of Record
CHAD A. READLER Acting Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
JONATHAN Y. ELLIS Assistant to the Solicitor General
SCOTT R. MCINTOSH LINDSEY POWELL
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Arizona law prohibits the issuance of a driver’s license to anyone who “does not submit proof satisfactory to the [Arizona Department of Transportation] that the applicant’s presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D) (Supp. 2017). Prior to 2012, Arizona accepted any federal employment authorization document issued by the U.S. Department of Homeland Security (DHS) to an alien with or without lawful status as “proof satisfactory” of the document holder’s authorized presence for purposes of that Arizona law. Following DHS’s adoption of the Deferred Action for Childhood Arrivals (DACA) policy, however, Arizona changed its policy and no longer accepts federal employment authorization documents issued to DACA recipients as proof of “presence * * * authorized under federal law.” The court of appeals found that Arizona’s policy is preempted by federal law. The question presented is as follows:
Whether Arizona’s policy of not issuing driver’s licenses to aliens with federal employment authorization documents issued in conjunction with deferred action under the DACA policy is preempted by federal law.
(I)

TABLE OF CONTENTS

Page

Statement ...................................................................................... 1 Discussion .................................................................................... 11
A. Whether the now-rescinded DACA policy is capable of preempting state law does not warrant plenary review ............................................... 12
B. The preemption question resolved by the court of appeals does not warrant plenary review.................. 15
C. This petition should be held pending the Court’s disposition of the petition in United States Department of Homeland Security v. Regents of the University of California ....................................... 19
Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:
Arizona v. United States, 567 U.S. 387 (2012)................. 2 Batalla Vidal v. Nielsen, No. 16-4756 (E.D.N.Y.
Feb. 13, 2018) ................................................................ 13, 14 Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012)........... 18 Ford Motor Co. v. United States, 134 S. Ct. 510
(2013) ............................................................................ 15 LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005),
cert. denied, 551 U.S. 1158 (2007)................................ 17 Plyler v. Doe, 457 U.S. 202 (1982) .............................. 7, 16 Regents of the Univ. of Cal. v. United States Dep’t
of Homeland Sec.: No. 17-5211, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018), petition for cert. pending, No. 17-1003 (filed Jan. 18, 2018) ........................................ 10, 11, 13 No. 17-5211, 2018 WL 401177 (N.D. Cal. Jan. 12, 2018) ............................................................................ 14

(III)

IV

Cases—Continued:

Page

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ........................................... 2
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016) ..................................................... 9
Toll v. Moreno, 458 U.S. 1 (1981) ................................... 17

Constitution, statutes, regulations, and rule:

U.S. Const.: Art. II, § 3 (Take Care Clause) ........................................ 6 Amend. XIV (Equal Protection Clause) ......................... 5
Administrative Procedure Act, 5 U.S.C. 701 et seq. ...... 10 5 U.S.C. 706(2)(A)............................................................ 10
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. .............................................................................. 1 8 U.S.C. 1101...................................................................... 2 8 U.S.C. 1103(a)(1)............................................................. 2 8 U.S.C. 1151 et seq. .......................................................... 2 8 U.S.C. 1181 et seq. .......................................................... 2 8 U.S.C. 1182(a) (2012 & Supp. IV 2016) ........................ 2 8 U.S.C. 1227(a) ................................................................. 2 8 U.S.C. 1324a(h)(3) .......................................................... 2
Ariz. Rev. Stat. Ann. § 28-3153(D) (Supp. 2017).......... 4, 6 Exec. Order No. 12,711, 55 Fed. Reg. 13,897
(Apr. 11, 1990) ....................................................................... 4 8 C.F.R.:
Section 274a.12 .................................................................. 4 Section 274a.12(a)(11) ....................................................... 4 Section 274a.12(a)-(c) ........................................................ 3 Section 274a.12(c)(9) ......................................................... 5 Section 274a.12(c)(10) ....................................................... 5

V

Regulation and rule—Continued:

Page

Section 274a.12(c)(14) ....................................................... 3 Sup. Ct. R. 10 ......................................................................... 19

Miscellaneous:

Arizona Dep’t of Transp.:
Policy 16.1.2........................................................................ 4
Policy 16.1.4...................................................................... 14
Letter from Jefferson B. Sessions III, Att’y Gen., to Elaine C. Duke, Acting Sec’y, U.S. Dep’t of Homeland Sec. (Sept. 4, 2017) ....................................... 9
Memorandum from Elaine C. Duke, Acting Sec’y, U.S. Dep’t of Homeland Sec., Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017) ............. 9, 10
USCIS Adjudicator’s Field Manual ............................... 4

In the Supreme Court of the United States
No. 16-1180 JANICE K. BREWER, FORMER GOVERNOR OF ARIZONA,
ET AL., PETITIONERS v.
ARIZONA DREAM ACT COALITION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
This brief is submitted in response to the order of this Court inviting the Solicitor General to express the views of the United States. In the view of the United States, the petition for a writ of certiorari in this case should be held pending the Court’s disposition of the petition for a writ of certiorari before judgment in United States Department of Homeland Security v. Regents of the University of California, No. 17-1003 (filed Jan. 18, 2018). If the Court grants the Regents petition, this petition should be held pending the decision in that case and then disposed of as appropriate in light of that decision. If the Court denies the Regents petition, this petition should also be denied.
STATEMENT
1. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., contains a detailed scheme for
(1)

2
classifying aliens and determining whether they are subject to removal. See, e.g., 8 U.S.C. 1101, 1151 et seq., 1181 et seq. Individual aliens are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. IV 2016); see also 8 U.S.C. 1227(a). As a practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396.
One manner in which the Secretary of Homeland Security exercises that discretion is through a practice known as deferred action—in which the Secretary exercises her discretion “for humanitarian reasons or simply for [her] own convenience” to notify an alien of her decision to forbear from seeking his removal for a designated period. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). A grant of deferred action does not confer lawful immigration status or provide any defense to removal. The Department of Homeland Security (DHS) retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time.
Congress has provided that an alien is authorized to work if he is a lawful permanent resident or is “authorized to be so employed by th[e INA] or by the Attorney General” (now the Secretary). 8 U.S.C. 1324a(h)(3); see 8 U.S.C. 1103(a)(1). Under DHS regulations, aliens in various categories are either automatically authorized to work, may work for a particular employer incident to status, or may apply to DHS for employment authoriza-

3
tion. See 8 C.F.R. 274a.12(a)-(c). Aliens granted deferred action may apply for and receive work authorization for the duration of the deferred-action grant if they establish economic necessity. 8 C.F.R. 274a.12(c)(14).
2. a. This case arose in the wake of the June 2012 announcement by Secretary of Homeland Security Janet Napolitano of the policy known as Deferred Action for Childhood Arrivals (DACA). See Pet. App. 195-199. DACA made deferred action available to “certain young people who were brought to this country as children.” Id. at 196. Under the DACA policy, following successful completion of a background check and other review, an alien would receive deferred action for a period of two years, subject to renewal or revocation. Id. at 197-198. The DACA policy made clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. at 199.
Following the adoption of DACA, the Governor of Arizona issued an executive order stating that DACA could result in unlawfully present aliens “inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers,” and expressing concern about the “significant and lasting impacts on the Arizona budget, its health care system, and additional public benefits that Arizona taxpayers fund.” Pet. App. 201. The Governor therefore directed state agencies, including the Arizona Department of Transportation (ADOT), to “initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver’s license.” Id. at 202.

4
b. Arizona law requires anyone applying for an Arizona driver’s license to “submit proof satisfactory to the [Arizona Department of Transportation] that the applicant’s presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D) (Supp. 2017). State law further requires the Director of Arizona’s Department of Transportation to “adopt rules necessary to carry out the purposes of ” that provision. Ibid. Consistent with that directive, the Department publishes a list of documents that the State will accept as sufficient to demonstrate that an individual’s presence in the United States is “authorized under federal law.” ADOT Policy 16.1.2. Prior to DHS’s adoption of the DACA policy, the list of accepted documents included any federal employment authorization document (EAD), which reflects federal work authorization under 8 C.F.R. 274a.12. Pet. App. 19.
Following the Governor’s executive order, ADOT changed its policy. Initially, in 2012, ADOT announced that it would not accept EADs issued to DACA recipients. Pet. App. 18-19. In 2013, after this suit was filed, ADOT changed its policy again, announcing that it would also no longer accept EADs issued to any recipient of deferred action, pursuant to DACA or otherwise, or to any recipient of deferred enforced departure.1 Id. at 19-20. Arizona continues to accept EADs from a wide
1 “Deferred enforced departure” is “a temporary, discretionary, administrative stay of removal granted to aliens from designated countries.” USCIS Adjudicator’s Field Manual, at Ch. 38.2. For example, following the protests in Tiananmen Square, the United States granted temporary deferred enforced departure to Chinese nationals present in the United States. Exec. Order No. 12,711, § 1, 55 Fed. Reg. 13,897 (Apr. 11, 1990). Aliens granted deferred enforced departure are authorized to be employed under 8 C.F.R. 274a.12(a)(11).

5
range of aliens with or without any formal immigration status, including aliens who are seeking an adjustment of status or are in removal proceedings but requesting cancellation of removal. Id. at 20 (citing 8 C.F.R. 274a.12(c)(9) and (10)).
3. a. Respondents filed suit in the United States District Court for the District of Arizona challenging Arizona’s revised driver’s-license policy. The complaint alleged that Arizona’s policy of refusing to accept federal EADs as proof of authorized presence in the United States when such documents are presented by individuals who have been granted deferred action, while accepting the same documents when presented by other aliens, violates the Equal Protection Clause and is preempted by federal law.
The district court concluded that Arizona’s driver’slicense policy likely violated the Equal Protection Clause but denied respondents’ motion for a preliminary injunction because, in its view, respondents had not shown irreparable harm. 945 F. Supp. 2d 1049. The Ninth Circuit reversed. The court concluded that respondents had established a likelihood of success on their equal-protection argument and suggested that they might also succeed on preemption grounds, and it found that respondents had demonstrated irreparable injury. 757 F.3d 1053.
Petitioners sought rehearing en banc. In response to the court of appeals’ invitation, the United States filed an amicus brief arguing that the panel had reached the correct result because Arizona’s policy is preempted, and that rehearing en banc should be denied. 13-16248 Gov’t C.A. Amicus Br. 8. The United States argued that Arizona’s policy is preempted because Ari-

6
zona has created a new alien classification not supported by federal law and its action is not supported by a substantial state interest. Id. at 8-17. The United States took no position on the equal-protection argument.
The court of appeals denied rehearing en banc, and this Court denied petitioners’ stay application, with three Justices noting their dissent. 135 S. Ct. 889. Petitioners did not file a petition for a writ of certiorari.
b. On remand, the district court held that Arizona’s policy deprived respondents of equal protection. The court entered a permanent injunction preventing petitioners from refusing to accept federal EADs issued to DACA recipients as proof that the document holder’s “presence in the United States is authorized under federal law,” Ariz. Rev. Stat. Ann. § 28-3153(D) (Supp. 2017), for purposes of obtaining a driver’s license or state identification card. Pet. App. 130-131.
c. Petitioners appealed. Following oral argument, the court of appeals directed the parties to file supplemental briefs addressing whether the Arizona policy is preempted by federal law and whether the DACA policy violates the separation of powers or the Take Care Clause, U.S. Const. Art. II, § 3. See Pet. App. 34 n.6. The court invited the United States to express its views on those questions.
The United States filed an amicus brief arguing that Arizona’s policy is preempted by federal law because it carves out a subset of federal work authorizations and treats them differently on grounds not recognized by federal law, and Arizona has not advanced a substantial state interest in support of its policy. 15-15307 Gov’t C.A. Amicus Br. 7-16. The United States also argued that the court of appeals should not consider the constitutionality of DACA because that issue was not raised

7
in a timely manner by the State, because there were serious questions regarding the State’s ability to challenge the Secretary’s exercise of enforcement discretion, and because the validity of the Secretary’s exercise of enforcement discretion would not alter the outcome of the preemption issue. Id. at 18-22. Finally, the United States contended that, in any event, DACA was a valid exercise of the Secretary’s discretion under the INA to grant deferred action. Id. at 22-28. The United States did not address the district court’s equal-protection holding.
d. The court of appeals affirmed. Pet. App. 1-63. The court “agree[d] with the district court that DACA recipients are similarly situated to other groups of noncitizens Arizona deems eligible for drivers’ licenses,” and that this “disparate treatment * * * may well violate the Equal Protection Clause.” Id. at 16. The court determined, however, that constitutional-avoidance principles counseled in favor of resolving the case, if possible, on preemption grounds. Id. at 33-34.
Turning to preemption, the court of appeals observed that “ ‘[t]he States enjoy no power with respect to the classification of aliens.’ ” Pet. App. 35 (quoting Plyler v. Doe, 457 U.S. 202, 225 (1982)). It reasoned that, although States can “regulate areas of traditional state concern that might impact noncitizens” when those regulations “mirror federal objectives” or “incorporate federal immigration classifications,” id. at 36, States may not create their own conflicting classifications. Applying that principle, the court determined that, by distinguishing among federal EAD recipients, “even though the federal government treats their EADs the same in all relevant respects,” Arizona had created its own novel classification of aliens “that neither mir-

8
rors nor borrows from the federal immigration classification scheme.” Id. at 39. Accordingly, the court held, Arizona’s policy was “preempted by the exclusive authority of the federal government under the INA to classify noncitizens.” Id. at 43-44.
The court of appeals “decline[d] to rule on the constitutionality of * * * DACA.” Pet. App. 44. Although the court expressed skepticism about Arizona’s argument that “the Executive has no power, independent of Congress, to enact the DACA program,” id. at 44-46, it explained that “Arizona’s policy is preempted not because the DACA program is or is not valid, but because the policy usurps the authority of the federal government to create immigrant classifications,” id. at 47.
e. The court of appeals denied rehearing en banc over the dissent of six judges. Pet. App. 1-2; see id. at 2-13 (Kozinski, J., joined by O’Scannlain, Bybee, Callahan, Bea, & N.R. Smith, JJ., dissenting). The dissenting judges faulted the panel for, among other things, simultaneously declining to decide the validity of DACA and yet implicitly relying on DACA to hold that Arizona is using alien classifications not found in federal law. See, e.g., id. at 4-5.
In response, the panel issued an amended opinion with a new concurrence. Pet. App. 52-63 (Berzon, J.). In the concurrence, Judge Berzon “emphasized that the ‘law’ that has preemptive power over Arizona’s policy is Congress’ conferral of exclusive authority on the executive branch to defer removal of individuals who lack legal status and to authorize them to work while temporarily permitted to remain.” Id. at 52. She stated that “it is the authority specifically conferred on the Attorney General by the [INA] * * * and the associated regulations, that is the body of federal law that preempts

9
Arizona’s policy, not any particular exercise of executive authority.” Ibid. (emphasis omitted).
4. Several months after the petition for a writ of certiorari was filed in this case and the Court invited the Solicitor General to express the views of the United States, the DACA policy was rescinded.
On September 4, 2017, the Attorney General wrote to the Acting Secretary of Homeland Security advising her that she should rescind the DACA policy. The Attorney General observed that “DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” Letter from Jefferson B. Sessions III, Att’y Gen., to Elaine C. Duke, Acting Sec’y, DHS 1 (Sept. 4, 2017) (DACA Letter). And he concluded that DACA suffered from “the same legal and constitutional defects” as the similar Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy and the expansion of DACA declared unlawful by the Fifth Circuit in Texas v. United States, 809 F.3d 134 (2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016). DACA Letter 1.
The following day, the Acting Secretary decided to wind down the DACA policy. See Memorandum from Elaine C. Duke, Acting Sec’y, DHS, Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017) (Rescission Memo). In the Rescission Memo, the Acting Secretary explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the [Texas] litigation,” as well as the Attorney

10
General’s advice, “it is clear that the June 15, 2012 DACA program should be terminated.” Ibid. Accordingly, the Acting Secretary announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the June 15, 2012 memorandum is “rescind[ed].” Ibid.
In light of the “complexities associated with winding down the program,” the Rescission Memo announced that DHS would “provide a limited window in which it w[ould] adjudicate certain requests for DACA.” Rescission Memo 4. DHS would adjudicate initial and renewal requests for deferred action that had been accepted by DHS as of the date of the rescission, and until October 5, 2017, would accept renewal requests from current beneficiaries whose deferred action would expire before March 5, 2018. The Rescission Memo further explained that DHS would not revoke prior grants of deferred action “solely based on the directives in this memorandum” for the remaining duration of their two-year validity periods. Ibid.
5. On January 9, 2018, the District Court for the Northern District of California entered a nationwide preliminary injunction enjoining the Acting Secretary’s rescission of the DACA policy. Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., No. 17-5211, 2018 WL 339144. The court ruled that the plaintiffs in that case were likely to prevail on their claim under the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., that the rescission was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. 706(2)(A). Regents, 2018 WL 339144, at *17. The district court entered a preliminary injunction that requires DHS to “maintain the DACA program on a nationwide basis on the same terms and conditions as were

11
in effect before the rescission,” subject to certain exceptions, including that new applications from individuals who had not previously received deferred action need not be processed. Id. at *27. The government appealed, and on January 18, 2018, it filed a petition for a writ of certiorari before judgment. United States Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 17-1003.
DISCUSSION
This litigation was precipitated by Secretary Napolitano’s 2012 announcement of the DACA policy and the Arizona Governor’s serious concerns about the potential impact that policy might have on state programs. Pet. App. 201. The focus of the litigation has been Arizona’s authority, consistent with federal law, to respond to DACA by excluding DACA recipients from its state policy of deeming aliens who have been issued EADs to be eligible for a state driver’s license. The court of appeals determined that Arizona’s selective granting of driver’s licenses is preempted by federal law, and did not reach the question of whether the DACA policy is valid. Before this Court, in addition to challenging the court of appeals’ preemption holding, petitioners contend that DACA is not valid and therefore can have no effect on Arizona’s authority for that reason as well.
Those questions, and this litigation, have been overtaken by events. Since the petition for a writ of certiorari was filed, the Attorney General of the United States has announced his conclusion that the Secretary exceeded her lawful authority in adopting the DACA policy and that in any event DACA presents significant litigation risks. Informed by that conclusion, the former Acting Secretary of DHS rescinded DACA and instituted an orderly wind-down of the policy. As a result,

12
Arizona’s opposition to DACA has largely been vindicated, and its concerns about the policy and its effects have been addressed. Moreover, Arizona apparently is the only State that has sought to deny driver’s licenses to DACA recipients, see Br. in Opp. 14-15 & nn.7-9; Pet. Reply Br. 11, so its authority to do so is not a matter of broad significance. This case is therefore not appropriate for this Court’s plenary review.
As petitioners’ January 22, 2018 letter to this Court notes, also pending before the Court is the government’s petition for a writ of certiorari before judgment in one of several cases challenging the Acting Secretary’s decision to rescind DACA. United States Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 17-1003 (filed January 18, 2018) (Regents). In that petition, the government defends the lawfulness of DACA’s rescission based, in part, on the Acting Secretary’s determination that the adoption of DACA was unlawful. Because of the overlap in issues between that petition and this one, if the Court grants the government’s petition for a writ of certiorari before judgment in Regents, the Court may wish to hold the petition in this case pending any decision in Regents and to dispose of this petition as appropriate in light of that decision. Otherwise, it should deny the petition.
A. Whether The Now-Rescinded DACA Policy Is Capable
Of Preempting State Law Does Not Warrant Plenary
Review
1. Petitioners devote much of their petition (Pet. 2132) to the question whether the DACA policy is “valid ‘federal law’ capable of preempting” Arizona’s policy of rejecting federal EADs issued to DACA recipients as a basis for obtaining state driver’s licenses. Pet. i. That question does not warrant this Court’s plenary review

13
for the simple reason that the DACA policy has been rescinded. In its Rescission Memo, DHS adopted an orderly wind-down under which DHS would not accept any new initial requests for deferred action under DACA and would stop accepting renewal requests on October 5, 2017. The Rescission Memo contemplates that the number of individuals with DACA-related deferred action, and corresponding work authorization, will progressively diminish as the two-year grants expire in the ordinary course and are not renewed. Any prospective effect of the injunction below requiring Arizona to accept EADs issued to DACA recipients for purposes of establishing eligibility for an Arizona driver’s license will diminish and expire in tandem with the wind-down instituted by the Rescission Memo.
The preliminary injunction issued on January 9, 2018, in the Regents case does not alter that conclusion. That injunction, although extraordinary, does not require DHS to process applications from individuals who have not previously received deferred action. Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., No. 17-5211, 2018 WL 339144, at *27 (N.D. Cal.), petition for cert. pending, No. 17-1003 (filed Jan. 18, 2018).2 And, by virtue of the injunctive relief in this case, which has been in place for three years, the number of existing DACA recipients who desire but have not yet obtained an Arizona’s driver’s license is likely to be extremely small. It is the understanding of this Office that those
2 On February 13, 2018, the District Court for the Eastern District of New York also entered a preliminary injunction enjoining the Acting Secretary’s rescission of the DACA policy. See Batalla Vidal v. Nielsen, No. 16-4756, slip op. The “scope of th[at] preliminary injunction conforms to that previously issued by the [Regents court].” Id. at 6.

14
licenses will expire when the recipients’ work authorization expires, see ADOT Policy 16.1.4, and Arizona has not stated that it intends to revoke those licenses before that time. Moreover, although the Regents court (erroneously) concluded that the plaintiffs challenging DACA’s rescission are likely to succeed in establishing that the manner in which DHS rescinded the policy is invalid, even that court recognized that DACA recipients have no right to the retention of the policy, as long as it is rescinded in a manner that complies with the APA. See Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., No. 17-5211, 2018 WL 401177, at *3 (N.D. Cal. Jan. 12, 2018); see also Batalla Vidal v. Nielsen, No. 16-4756 (E.D.N.Y. Feb. 13, 2018), slip op. 4 (“Defendants indisputably can end the DACA program.”).
2. In addressing DACA’s preemptive force, petitioners contend (Pet. 22) that the “ ‘lawfulness of Arizona’s policy’ depends upon the lawfulness of DACA,” and on that basis invite the Court to use this petition to determine whether DACA is lawful. In a letter to the Court dated January 22, 2018, petitioners note the relevance of that question to the government’s pending petition for a writ of certiorari before judgment in the Regents case, No. 17-1003, and suggest that, if the Court grants the government’s petition in Regents, the Court may wish to consider this case at the same time. But the government’s petition in Regents adequately presents the questions of DACA’s continued effect and validity in a case in which DHS itself is a party. Accordingly, there is no evident reason, if this Court grants the Regents petition, to grant this petition as well.
In fact, this case would be a poor vehicle for addressing the validity of DACA even in the absence of the Regents petition. In addition to the diminishing practical

15
significance of the issue in the context of this case, the validity of DACA was not decided in either of the courts below. Petitioners did not raise the issue in the district court, and the court of appeals reasoned that the issue “[wa]s not properly before [that] court” and declined to resolve it. Pet. App. 44. Petitioners contend (Pet. 22-23) that the court of appeals’ failure to determine the validity of DACA was error. But whether that is so, it remains true that this Court would be the first in this litigation to address the issue. See Ford Motor Co. v. United States, 134 S. Ct. 510, 510-511 (2013) (per curiam) (“This Court ‘is one of final review, not of first view.’ ”) (citation omitted).
B. The Preemption Question Resolved By The Court Of
Appeals Does Not Warrant Plenary Review
Petitioners also contend (Pet. i) that the court of appeals erred by “creating an immigration-specific rule under which state police power regulations that ‘arrang[e]’ federal immigration classifications are preempted.” See Pet. 15-21. But the court neither adopted nor applied such a rule. The court held instead that, although a State may “borrow[] from the federal immigration classification scheme” for its own regulations, it may not “create[] new immigration classifications based on its independent view of who is authorized under federal law to be present in the United States.” Pet. App. 39, 43. Regardless of whether that holding reflects a correct application of law to the facts of this case, the legal principles articulated by the court of appeals do not conflict with any decision of this Court or of another court of appeals. Instead, petitioners principally disagree with how the court of appeals applied the legal

16
principles to the State’s regulatory scheme. The application of law to the facts of this case does not warrant plenary review by this Court.
1. Petitioners’ claim of error is premised on the court of appeals’ statement that “by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design, * * * despite the fact that ‘States enjoy no power with respect to the classification of aliens.’ ” Pet. App. 39-40 (quoting Plyler v. Doe, 457 U.S. 202, 225 (1982)). Petitioners acknowledge that a State may not, consistent with the federal government’s authority over immigration, “tamper with the federal classifications” of aliens. Pet. 18; see ibid. (“[C]onflicting re-classification would trigger preemption.”). They argue (Pet. 18-19), however, that Congress has not “clear[ly] and manifest[ly]” prohibited States from “borrowing” pre-existing federal classifications, and that the court erred in adopting such a rule in the absence of clear congressional intent.
Petitioners misread the court of appeals’ opinion. Taken as a whole and in context, the court did not find Arizona’s policy to be preempted because it borrowed pre-existing federal classifications; rather, the court found preemption because the State created its own classification. The court explained that “[p]ermissible state regulations include those that mirror federal objectives and incorporate federal immigration classifications.” Pet. App. 36. But here, the court reasoned, by distinguishing between recipients of federal EADs that the federal government treats “the same in all relevant respects,” Arizona’s policy “distinguishes between noncitizens based on its own definition of ‘authorized presence,’ one that neither mirrors nor borrows from

17
the federal immigration classification scheme.” Id. at 39. On the basis of this “clear departure from federal immigration classifications,” the court found that Arizona’s policy is preempted. Id. at 42; see id. at 40 n.8 (“Arizona’s scheme impermissibly creates immigration classifications not found in federal law.”); id. at 47 (“We reiterate that, in the end, Arizona’s policy is preempted * * * because [it] usurps the authority of the federal government to create immigrant classifications.”).
2. Whether the court of appeals’ holding is correct, it does not conflict with any decision of this Court or another court of appeals.
Petitioners contend (Pet. 19) that the court of appeals’ decision conflicts with this Court’s decision in Toll v. Moreno, 458 U.S. 1 (1982), which held that a Maryland policy prohibiting certain visa holders from acquiring in-state status for tuition at public universities was preempted by federal law. According to petitioners, Toll confirms that States may “ ‘borrow[]’ * * * immigrant classifications” as long as the state regulation is not otherwise inconsistent with congressional intent for those aliens. Pet. 19. But that is what the court of appeals held. See Pet. App. 36 (“Permissible state regulations include those that mirror federal objectives and incorporate federal immigration classifications.”). Thus, even if the court of appeals was wrong in its characterization of Arizona’s regulatory scheme, the court of appeals’ reasoning is not inconsistent with Toll.
Petitioners further assert (Pet. 19-20) that the court of appeals’ decision conflicts with the Fifth Circuit’s decision in LeClerc v. Webb, 419 F.3d 405 (2005), cert. denied, 551 U.S. 1158 (2007), which upheld a Louisiana policy restricting eligibility for membership in the state bar to U.S. citizens and lawful permanent residents. The

18
Ninth Circuit distinguished that case, however, on precisely the rationale that petitioners endorse here. In the court’s view, the Louisiana policy “permissibly borrowed from existing federal classifications,” rather than “creat[ing] a novel immigration classification as Arizona does here.” Pet. App. 43. So again, there is no conflict between the reasoning of the court of appeals and LeClerc.
Finally, petitioners wrongly contend (Pet. 20-21) that the court of appeals’ decision conflicts with the Second Circuit’s decision in Dandamudi v. Tisch, 686 F.3d 66 (2012). In Dandamudi, the Second Circuit suggested in dicta that a New York law prohibiting certain visa holders from being licensed as pharmacists was preempted because, even though the state law borrowed from federal classifications, its regulation stood as “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in granting those visas. Id. at 80 (citation omitted); see id. at 79-81. In petitioners’ view, Dandamundi indicates that the “precise borrowing of federal classifications is within a State’s prerogative.” Pet. 20-21. Even assuming that is correct, the reasoning of the Ninth Circuit’s decision is not to the contrary for the reasons already stated.
3. In the end, petitioners’ disagreement is not with the rule that the court of appeals applied, but with its application to the facts of this case. Although the court reasoned that, by distinguishing among the recipients of federal EADs that the federal government treats the same, Arizona has impermissibly created its own immigration classification, Pet. App. 39, petitioners maintain that, by distinguishing among EAD recipients based on the means by which the alien became eligible for work authorization, Arizona is permissibly borrowing federal classifications as they exist in the federal law, Pet. 18.

19
But that question concerning the application of preemption principles to Arizona’s licensing regime, adopted in response to a now-rescinded federal policy, does not warrant this Court’s further review. See Sup. Ct. R. 10. That is especially so because Arizona apparently is the only State to have adopted such a regime, and therefore the question is not a matter of broad significance.
C. This Petition Should Be Held Pending The Court’s
Disposition Of The Petition In United States Department
Of Homeland Security v. Regents Of The University Of
California
Although the petition does not warrant plenary review by this Court, it is related to the government’s pending petition for a writ of certiorari before judgment in Regents, No. 17-1003, concerning the legality of DACA’s rescission and involving similar questions concerning the validity of the adoption of DACA itself. Indeed, this litigation and the district court’s order enjoining Arizona’s policy adopted in response to DACA underscore the need for this Court to settle the questions presented by the Regents petition and provide needed clarity on the lawfulness of DACA’s rescission. Because of this overlap in issues between the Regents petition and this one, the Court may wish to hold this petition until the Court disposes of the government’s petition in Regents. If the Court grants the government’s petition in Regents, the Court could then hold this petition pending a decision in Regents, and dispose of it as appropriate in light of that decision. If the Court denies the government’s petition in Regents, the Court should deny this petition as well for the reasons stated above.

20

CONCLUSION
If the Court grants the petition for a writ of certiorari before judgment in United States Department of Homeland Security v. Regents of the University of California, No. 17-1003, the petition for a writ of certiorari in this case should be held pending the decision in that case, and then disposed of as appropriate in light of that decision. Otherwise, the petition for a writ of certiorari in this case should be denied.
Respectfully submitted.

FEBRUARY 2018

NOEL J. FRANCISCO Solicitor General
CHAD A. READLER Acting Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
JONATHAN Y. ELLIS Assistant to the Solicitor General
SCOTT R. MCINTOSH LINDSEY POWELL
Attorneys

 
 Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 1 of 51
CLOSED,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:12−cv−02546−DGC

Arizona Dream Act Coalition et al v. Brewer et al Assigned to: Judge David G Campbell Related Case: 2:16−cv−03072−DGC
Case in other court: Ninth Circuit, 13−16248, Mandate 12/18/14

Date Filed: 11/29/2012 Date Terminated: 01/22/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ninth Circuit, 15−15307, Mandate 04/06/18

Cause: 28:2201 Injunction

Plaintiff

Arizona Dream Act Coalition

represented by Andrew S Jacob Gordon Rees Scully Mansukhani LLP − Phoenix, AZ 1 Renaissance Sq. 2 N Central Ave., Ste. 2200 Phoenix, AZ 85004 602−794−2495 Fax: 602−265−4716 Email: ajacob@gordonrees.com TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda ACLU − Phoenix, AZ P.O. 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall ACLU − Phoenix, AZ P.O. 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: jlyall@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St.

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 2 of 51
San Francisco, CA 94111 415−343−0774 Fax: 415−395−0950 Email: jnewell@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jorge Martin Castillo MALDEF − Los Angeles, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: jcastillo@maldef.org TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez MALDEF − Los Angeles, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: jgomez@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin National Immigration Law Center 3450 Wilshire Blvd., Ste. 108−62 Los Angeles, CA 90010 213−674−2850 Fax: 213−639−3911 Email: tumlin@nilc.org TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood ASU Alumni Law Group 111 E Taylor, Ste. 120 Phoenix, AZ 85004−4467 602−251−3620 Fax: 602−251−8055 Email: kelly.flood@asualumnilawgroup.org TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt ACLU − New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212−549−2660 Fax: 212−549−2654 Email: LGelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Center 3450 Wilshire Blvd., Ste. 108−62 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: joaquin@nilc.org

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 3 of 51
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper ASU Alumni Law Group 111 E Taylor, Ste. 120 Phoenix, AZ 85004−4467 602−251−3620 Fax: 602−251−8055 Email: marty.harper@asualumnilawgroup.org TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: mtan@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu National Immigration Law Center 3450 Wilshire Blvd., Ste. 108−62 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: espiritu@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado National Immigration Law Center 3450 Wilshire Blvd., Ste. 108−62 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: preciado@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: odanjuma@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shiu−Ming Cheer National Immigration Law Center 3450 Wilshire Blvd., Ste. 108−62 Los Angeles, CA 90010 213−639−3900 133 Fax: 213−639−3911 Email: cheer@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 4 of 51
Tanya Broder National Immigration Law Center − Oakland, CA 2030 Addison St., Ste. 310 Berkley, CA 94704 510−663−8282 Fax: 510−663−2028 Email: broder@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas K Irvine Polsinelli Shughart 3636 N Central Ave., Ste. 1200 Phoenix, AZ 85012 602−650−2094 Fax: 602−264−7033 Email: tirvine@polsinelli.com TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Viramontes MALDEF − Los Angeles, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: Vviramontes@maldef.org TERMINATED: 11/19/2018 LEAD ATTORNEY
Araceli Martinez−Olguin ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0769 Fax: 415−395−0950 Email: amartinez−olguin@aclu.org ATTORNEY TO BE NOTICED
Christine Patricia Sun ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: csun@aclu.org ATTORNEY TO BE NOTICED
Jessica Polansky ACLU − New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212−549−2621 Fax: 212−549−2654 Email: irp_jp@aclu.org ATTORNEY TO BE NOTICED
Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 5 of 51

Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org ATTORNEY TO BE NOTICED

Plaintiff
Jesus Castro−Martinez TERMINATED: 03/26/2014

represented by Andrew S Jacob (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jorge Martin Castillo (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY

Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 6 of 51
Marty Harper (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas K Irvine (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Araceli Martinez−Olguin (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED
Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED
Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED
Plaintiff

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 7 of 51

Christian Jacobo

represented by Andrew S Jacob (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jorge Martin Castillo (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY

Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marty Harper (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael King Thomas Tan (See above for address)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 8 of 51

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K Irvine (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Araceli Martinez−Olguin (See above for address) ATTORNEY TO BE NOTICED

Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED

Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alejandra Lopez

represented by Andrew S Jacob (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 9 of 51
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jorge Martin Castillo (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 10 of 51

Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K Irvine (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Araceli Martinez−Olguin (See above for address) ATTORNEY TO BE NOTICED

Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED

Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ariel Martinez

represented by Andrew S Jacob (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 11 of 51
James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jorge Martin Castillo (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 12 of 51

ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K Irvine (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Araceli Martinez−Olguin (See above for address) ATTORNEY TO BE NOTICED

Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED

Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Natalia Perez−Gallegos

represented by Andrew S Jacob (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 13 of 51
ATTORNEY TO BE NOTICED
Jorge Martin Castillo (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya Broder

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 14 of 51

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K Irvine (See above for address) TERMINATED: 06/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Araceli Martinez−Olguin (See above for address) ATTORNEY TO BE NOTICED

Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED

Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carla Chavarria

represented by Andrew S Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Araceli Martinez−Olguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jorge Martin Castillo (See above for address)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 15 of 51
TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt ACLU − New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212−549−2616 Fax: 212−549−2654 Email: lgelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0779 Fax: 415−395−0950 Email: mtan@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 16 of 51

Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K Irvine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY

Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED

Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Ricardo Hinojos

represented by Andrew S Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Araceli Martinez−Olguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Chang Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jorge Martin Castillo

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 17 of 51
(See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Julia Alejandra Gomez Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin (See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY
Kelly Joyce Flood (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marty Harper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas David Espiritu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodkangyil Orion Danjuma (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shiu−Ming Cheer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 18 of 51
Thomas K Irvine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) TERMINATED: 11/19/2018 LEAD ATTORNEY
Christine Patricia Sun (See above for address) ATTORNEY TO BE NOTICED
Jessica Polansky (See above for address) ATTORNEY TO BE NOTICED
Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Janice K Brewer Governor of the State of Arizona, in her official capacity

represented by Ashley Morgan Gomez Fennemore Craig PC − Phoenix, AZ 2394 E Camelback Rd., Ste. 600 Phoenix, AZ 85016 602−916−5489 Fax: 602−916−5689 Email: agomez@fclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doug C Northup Fennemore Craig PC − Phoenix, AZ 2394 E Camelback Rd., Ste. 600 Phoenix, AZ 85016 602−916−5000 Fax: 602−916−5562 Email: dnorthup@fclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Thomas Hood Fennemore Craig PC − Phoenix, AZ 2394 E Camelback Rd., Ste. 600 Phoenix, AZ 85016 602−916−5475 Fax: 602−916−5675 Email: shood@fclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J Berg Fennemore Craig PC − Phoenix, AZ 2394 E Camelback Rd., Ste. 600 Phoenix, AZ 85016 602−916−5000 Fax: 602−916−5621 Email: tberg@fclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 19 of 51

Defendant John S Halikowski Director of the Arizona Department of Transportation, in his official capacity
Defendant Stacey K Stanton Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity

John R Lopez , IV Office of the Attorney General − Phoenix 2005 N Central Ave. Phoenix, AZ 85004−1592 602−542−8986 Fax: 602−542−8308 Email: John.Lopez@azag.gov ATTORNEY TO BE NOTICED
Joseph Sciarrotta , Jr. Office of the Governor 1700 W Washignton St., 9th Fl. Phoenix, AZ 85007 602−542−1586 Email: jsciarrotta@az.gov TERMINATED: 12/24/2014
represented by Ashley Morgan Gomez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doug C Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Thomas Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J Berg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Lopez , IV (See above for address) ATTORNEY TO BE NOTICED
represented by Ashley Morgan Gomez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doug C Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Thomas Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J Berg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 20 of 51
John R Lopez , IV (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/29/2012
11/29/2012 11/29/2012 11/29/2012
11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 12/03/2012 12/03/2012

# Docket Text
1 COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970−7500950, filed by Christian Jacobo, Natalia Perez−Gallegos, Alejandra Lopez, Jesus Castro−Martinez, Arizona Dream Act Coalition, Ariel Martinez (submitted by Andrew Jacob). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Civil Cover Sheet)(REK) (Entered: 11/29/2012)
2 Corporate Disclosure Statement by Arizona Dream Act Coalition (submitted by Andrew Jacob). (REK) (Entered: 11/29/2012)
3 Filing fee paid, receipt number PHX 0970−7500950. This case has been assigned to the Honorable David G. Campbell. All future pleadings or documents should bear the correct case number: CV−12−02546−PHX−DGC. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (REK) (Entered: 11/29/2012)
4 NOTICE TO FILER OF DEFICIENCY re 1 Complaint, filed by Ariel Martinez, Jesus Castro−Martinez, Christian Jacobo, Natalia Perez−Gallegos, Arizona Dream Act Coalition, Alejandra Lopez. Description of deficiency: Document not in compliance with Local Rule 7.1(c): Document should be in PDF format and text searchable. (REK) (Entered: 11/29/2012)
5 SUMMONS Submitted by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 11/30/2012)
6 SUMMONS Submitted by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 11/30/2012)
7 SUMMONS Submitted by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 11/30/2012)
8 MOTION for Admission Pro Hac Vice as to attorney Jennifer Chang Newell by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 11/30/2012)
9 MOTION for Admission Pro Hac Vice as to attorney Cecillia D. Wang by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Wang, Cecillia) (Entered: 11/30/2012)
10 Summons Issued as to Janice K Brewer. (Attachments: # 1 Summons as to John S. Halikowski, # 2 Summons as to Stacey K. Stanton)(LAD). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/30/2012)
11 MOTION for Admission Pro Hac Vice as to attorney Linton Joaquin by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Joaquin, Linton) (Entered: 11/30/2012)
12 MOTION for Admission Pro Hac Vice as to attorney Karen C. Tumlin by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Tumlin, Karen) (Entered: 11/30/2012)
13 SUMMONS Submitted by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Summons, # 2 Summons)(Jacob, Andrew) (Entered: 12/03/2012)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX128680 as to Jennifer Chang Newell, Cecillia D Wang. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/03/2012)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 21 of 51

12/03/2012
12/03/2012
12/04/2012 12/04/2012 12/04/2012 12/04/2012 12/04/2012 12/04/2012 12/04/2012
12/07/2012 12/07/2012 12/10/2012 12/10/2012 12/10/2012

14 ORDER pursuant to General Order 09−08 granting 8 Motion for Admission Pro Hac Vice; granting 9 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/03/2012)
15 Summons Issued as to Janice K Brewer. (Attachments: # 1 Summons as to John S. Halikowski, # 2 Summons as to Stacey K. Stanton) (Summonses are for different addresses from those issued at 10 . (LAD). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 12/03/2012)
16 MOTION for Admission Pro Hac Vice as to attorney Shiu−Ming Cheer on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 12/04/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX128734 as to Shiu−Ming Cheer. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/04/2012)
17 MOTION for Admission Pro Hac Vice as to attorney Tanya Broder on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 12/04/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX128735 as to Tanya Broder. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/04/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX128737 as to Linton Joaquin. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/04/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX128736 as to Karen Cassandra Tumlin. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/04/2012)
18 ORDER pursuant to General Order 09−08 granting 11 Motion for Admission Pro Hac Vice; granting 12 Motion for Admission Pro Hac Vice; granting 16 Motion for Admission Pro Hac Vice; granting 17 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/04/2012)
19 MOTION for Admission Pro Hac Vice as to attorney Nicholas Espiritu by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 12/07/2012)
20 MOTION for Admission Pro Hac Vice as to attorney Victor Viramontes by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Viramontes, Victor) (Entered: 12/07/2012)
21 NOTICE of Appearance by Doug C Northup on behalf of Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) (Entered: 12/10/2012)
22 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT (First Request) by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 12/10/2012)
23 MOTION for Admission Pro Hac Vice as to attorney Lee Gelernt on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 12/10/2012)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 22 of 51

12/10/2012 12/10/2012
12/11/2012 12/11/2012 12/11/2012 12/12/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012

PRO HAC VICE FEE PAID. $ 50, receipt number PHX129001 as to Lee Gelernt. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/10/2012)
24 ORDER pursuant to General Order 09−08 granting 23 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/10/2012)
25 AFFIDAVIT of Service for Summons in a Civil Action; Complaint for Declaratory and Injunctive Relief, Class Action; Corporate Disclosure Statement served on The Honorable Janice K. Brewer on December 5, 2012, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/11/2012)
26 AFFIDAVIT of Service for Summons in a Civil Action; Complaint for Declaratory and Injunctive Relief, Class Action; Corporate Disclosure Statement served on John S. Halikowski on December 5, 2012, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/11/2012)
27 AFFIDAVIT of Service for Summons in a Civil Action; Complaint for Declaratory and Injunctive Relief, Class Action; Corporate Disclosure Statement served on Stacey K. Stanton on December 5, 2012, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/11/2012)
28 ORDER pursuant to 22 Stipulation For Extension of Time To Answer Complaint : Janice K Brewer answer due 1/9/2013; John S Halikowski answer due 1/9/2013; Stacey K Stanton answer due 1/9/2013. Signed by Judge David G Campbell on 12/12/2012. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVO) (Entered: 12/12/2012)
29 MOTION for Preliminary Injunction by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Jacob, Andrew) (Entered: 12/14/2012)
30 MEMORANDUM of Points and Authorities in Support of 29 MOTION for Preliminary Injunction by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)
31 DECLARATION of Ariel Martinez re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit 1)(Jacob, Andrew) (Entered: 12/14/2012)
32 DECLARATION of Bo Cooper re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit A)(Jacob, Andrew) (Entered: 12/14/2012)
33 DECLARATION of Jesus Castro−Martinez re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)
34 DECLARATION of Dan Pochoda re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Jacob, Andrew) (Entered: 12/14/2012)
35 DECLARATION of Christian Jacobo re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 23 of 51

12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/17/2012 12/17/2012
12/18/2012 12/18/2012
12/21/2012 12/26/2012
12/26/2012 12/26/2012

36 DECLARATION of Alejandra Lopez re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)
37 DECLARATION of Dulce Matuz re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)
38 DECLARATION of Tess Ranahan re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D − G, # 5 Exhibit H, # 6 Exhibit I, # 7 Exhibit J, # 8 Exhibit K)(Jacob, Andrew) (Entered: 12/14/2012)
39 DECLARATION of Regina Jeffries re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 12/14/2012)
40 DECLARATION of Stephen Yale−Loehr re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit A)(Jacob, Andrew) (Entered: 12/14/2012)
41 MOTION for Leave to File Excess Pages for Memo in Support of Motion for Preliminary Injunction by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Jacob, Andrew) (Entered: 12/17/2012)
42 LODGED Proposed Memo in Support of Motion for Preliminary Injunction re: 41 MOTION for Leave to File Excess Pages for Memo in Support of Motion for Preliminary Injunction . Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez. (Jacob, Andrew) (Entered: 12/17/2012)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX129289 as to Victor Viramontes, Nicholas David Espiritu. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/18/2012)
43 ORDER pursuant to General Order 09−08 granting 19 Motion for Admission Pro Hac Vice; granting 20 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/18/2012)
44 STIPULATION regrding Briefing on Plaintiffs' Motion for Preliminary Injunction by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 12/21/2012)
45 ORDER granting 41 Motion for Leave to File Excess Pages.Plaintiffs Motion for Preliminary Injunction and memorandum of law, which was lodged with Plaintiffs Unopposed Motion for Leave to File its Motion for Preliminary Injunction and Supporting Memorandum in Excess of Page Limit (Doc. 42), shall be filed by the Clerk of Court. Signed by Judge David G Campbell on 12/26/2012.(TCA) (Entered: 12/26/2012)
46 * MEMORANDUM in Support of Motion for Preliminary Injunction 29 by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Entitled "Memorandum in Support of Motion for Preliminary Injunction") (LAD) Modified on 1/11/2013 (LAD). (Entered: 12/26/2012)
47 ORDER pursuant to 44 Stipulation: IT IS HEREBY ORDERED that defendants' response to plaintiffs' motion for preliminary injunction is due January 18, 2013. IT IS FURTHER ORDERED that plaintiffs' reply in support of their motion for preliminary injunction is due January 30, 2013. The parties have advised the Court that they are discussing a potential schedule in connection with resolving the preliminary injunction

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 24 of 51

01/02/2013 01/02/2013 01/03/2013 01/03/2013 01/07/2013 01/07/2013 01/09/2013 01/09/2013 01/09/2013
01/09/2013

issues. Therefore, IT IS HEREBY ORDERED that the parties shall submit any such stipulation no later than January 9, 2013. If an agreement is not reached, on or before January 9, 2013, any party may request a conference with the Court so that the parties can make their positions known and the Court can order appropriate deadlines for resolving the preliminary injunction application. Signed by Judge David G Campbell on 12/26/12. (LAD) (Entered: 12/26/2012)
48 MOTION for Admission Pro Hac Vice as to attorney Michael King Thomas Tan on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 01/03/2013)
49 MOTION for Admission Pro Hac Vice as to attorney Rodkangyil Orion Danjuma on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 01/03/2013)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX129619 as to Rodkangyil Orion Danjuma, Michael King Thomas Tan. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/03/2013)
50 ORDER pursuant to General Order 09−08 granting 48 Motion for Admission Pro Hac Vice; granting 49 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/03/2013)
51 * JOINT MOTION (REQUEST) FOR CONFERENCE WITH THE COURT by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos, Janice K Brewer, John S Halikowski, Stacey K Stanton. (Irvine, Thomas) * Modified to correct event and add additional filers on 1/8/2013 (LAD). (Entered: 01/07/2013)
52 NOTICE of Appearance by Joseph Sciarrotta, Jr on behalf of Janice K Brewer. (Sciarrotta, Joseph) (Entered: 01/07/2013)
53 ORDER granting 51 Motion for Hearing. A telephonic hearing is set for 1/11/2013 at 04:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel for Plaintiffs shall initiate a conference call (or set up a dial−in number) for all parties and the Court. Signed by Judge David G Campbell on 1/9/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVO) (Entered: 01/09/2013)
54 MOTION for Leave to File Excess Pages for DEFENDANTS' PROPOSED MOTION TO DISMISS COUNTS ONE AND TWO OF PLAINTIFFS COMPLAINT PURSUANT TO RULE 12(B)(6) AND, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS EQUAL PROTECTION CLAIM (COUNT TWO) by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 01/09/2013)
55 LODGED Proposed DEFENDANTS MOTION TO DISMISS COUNTS ONE AND TWO OF PLAINTIFFS COMPLAINT PURSUANT TO RULE 12(B)(6) AND, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS EQUAL PROTECTION CLAIM (COUNT TWO) re: 54 MOTION for Leave to File Excess Pages for DEFENDANTS' PROPOSED MOTION TO DISMISS COUNTS ONE AND TWO OF PLAINTIFFS COMPLAINT PURSUANT TO RULE 12(B)(6) AND, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS EQUAL PROTECTION CLAIM (COUNT. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Appendix − Part 1, # 2 Appendix − Part 2)(Northup, Doug) (Entered: 01/09/2013)
56 * LODGED PROPOSED DOCUMENT: STATEMENT of FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS EQUAL PROTECTION CLAIM (COUNT TWO) re 55 Lodged Proposed Document, by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Index and

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 25 of 51

01/11/2013
01/14/2013 01/14/2013 01/14/2013 01/15/2013
01/16/2013 01/17/2013 01/22/2013 01/28/2013 01/29/2013

Exhibits)(Northup, Doug) * Modified to correct event on 1/10/2013 (LAD). (Entered: 01/09/2013)
57 Minute Entry for proceedings held before Judge David G Campbell: Telephone Conference held on 1/11/2013. Discussion held. The docket will be corrected to reflect that doc. 46 is a memorandum in support of the motion for preliminary injunction at doc. 29. IT IS ORDERED granting 54 Motion for Leave to File Excess Pages on defendant's motion to dismiss. Court will enter an order setting forth limited discovery, briefing, and setting of oral argument on plaintiff's motion for preliminary injunction and defendant's motion to dismiss.
TELEPHONIC APPEARANCES: Nicholas Espiritu,Shiu−Ming Cheer, Kelly Flood, Linton Joaquin, James Lyall, Jennifer Newell, Karen Tumlin, Victor Viramontes, Tanya Broder for Plaintiffs. Doug Northup, Joseph Sciarrotta Jr, and Sean Hood for Defendants. (Court Reporter Patricia Lyons.) Hearing held 4:03 PM to 4:46 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 01/11/2013)
58 MOTION to Dismiss Counts One and Two of Plaintiffs' Complaint Pursuant to Rule 12(B)(6) and, in the Alternative, MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim (Count Two) by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2) (LAD) (Entered: 01/14/2013)
59 NOTICE re SERVICE OF WRITTEN DISCOVERY by Janice K Brewer, John S Halikowski, Stacey K Stanton (DEFENDANTS' FIRST SET OF REQUESTS FOR PRODUCTION). (Hood, Sean) (Entered: 01/14/2013)
60 SEPARATE STATEMENT of Facts in Support of 58 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim (Count Two) by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Index and Exhibits)(LAD) (Entered: 01/15/2013)
61 ORDER − The Court will allow four weeks of limited discovery to be completed by February 8, 2013. Defendants shall file their response to the motion for preliminary injunction on or before February 15, 2013. Plaintiffs' reply in support of the motion for preliminary injunction shall be filed on or before March 8, 2013. The Court will hold a hearing on the motion for preliminary injunction on March 22, 2013 at 9:00 a.m. Three hours will be provided for the hearing, but the Court expects that it can be concluded in less time. The March 22, 2013 hearing will also address Defendants' motion to dismiss. The parties should stipulate to a briefing schedule on the motion to dismiss that concludes on March 8, 2013. (See document for full details). Signed by Judge David G Campbell on 1/15/13. (LAD) (Entered: 01/15/2013)
62 MOTION for Admission Pro Hac Vice as to attorney Nora A. Preciado by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Preciado, Nora) (Entered: 01/16/2013)
63 NOTICE re Plaintiffs' First Set of Requests for Production of Documents to Defendants by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Lyall, James) (Entered: 01/17/2013)
64 DECLARATION of Natalia Perez−Gallegos re 30 Memorandum, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Jacob, Andrew) (Entered: 01/22/2013)
65 ORDER. Telephonic Discovery Call set for 1/29/2013 at 11:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel for Defendants shall set up the conference call to include counsel for all parties and the Court. Signed by Judge David G Campbell on 1/28/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVO) (Entered: 01/28/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX130460 as to Nora A Preciado. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 26 of 51

01/29/2013 01/29/2013 01/29/2013
01/29/2013 01/30/2013 01/31/2013 01/31/2013 02/04/2013 02/04/2013

(BAS) (Entered: 01/29/2013)
66 ORDER pursuant to General Order 09−08 granting 62 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/29/2013)
67 STIPULATION Regarding Briefing On: (1) Plaintiffs' Motion for Preliminary Injunction; and (2) Defendants' Motion to Dismiss Counts One and Two of Plaintiffs' Complaint Pursuant to Rule 12(b)(6) and, in the Alternative, Motion for Summary Judgment on Plaintiffs' Equal Protection Claim (Count Two) by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 01/29/2013)
68 Minute Entry for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 1/29/2013. Plaintiffs address 3 issues: non−discoverable information, confidential information, motion to quash subpoenas issued to United States Citizenship and Immigration service. Defendants address 2 issues: Protective order as to confidential information, deposition of Governor Jan Brewer. Discussion held. Court will issue an order of the rulings placed on the record.
APPEARANCES: Tanya Broder, Nora Preciado,Shiu−Ming Cheer, Orion Danjuma, Nicholas Espiritu, Marty Harper, Linton Joaquin,Jennifer Newell, Michael Tan, Karen Tumlin for Plaintiffs. Sean Hood and Timothy Berg for Defendants (Court Reporter Patricia Lyons.) Hearing held 11:05 AM to 12:15 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 01/29/2013)
69 ORDER pursuant to 67 Stipulation, :, Set/Reset Deadlines/Hearing as to 58 MOTION to Dismiss Counts/Claims : Counts One and Two MOTION for Partial Summary Judgment, 29 MOTION for Preliminary Injunction: response to defendants' motion to dismiss/motion for summary judgment shall be 2/20/2013; reply in support of motion to dismiss/motion for summary judgment shall be 3/8/2013. Response to motion for preliminary injunction shall be 2/20/2013. Signed by Judge David G Campbell on 1/29/2013. (NVO) (Entered: 01/29/2013)
70 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 01/29/13 before Judge David G. Campbell.. (Hood, Sean) (Entered: 01/30/2013)
71 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings held on 1/29/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/21/2013. Redacted Transcript Deadline set for 3/4/2013. Release of Transcript Restriction set for 5/1/2013. (VAR) (Entered: 01/31/2013)
72 NOTICE re Service of Plaintiffs' Responses to Defendants' First Set of Requests for Production of Documents and Answers Thereto by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Newell, Jennifer) (Entered: 01/31/2013)
73 TRANSCRIPT REQUEST of Telephonic Conference Proceedings held on 1/29/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on January 29, 2012 before Judge David G. Campbell.. (Tumlin, Karen) (Entered: 02/04/2013)
74 NOTICE re Service by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re 72 Notice (Other), Plaintiffs' First and Second Supplemental Responses to Defendants' First Set of Requests for Production of Documents. (Newell, Jennifer) (Entered: 02/04/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 27 of 51

02/05/2013 02/08/2013 02/08/2013 02/08/2013 02/11/2013
02/19/2013 02/19/2013 02/20/2013 02/20/2013
02/20/2013 02/20/2013
02/20/2013

75 NOTICE re Notice of Service of Plaintiffs' Third Supplemental Response to Defendants' First Set of Requests for Production of Documents by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Lyall, James) (Entered: 02/05/2013)
76 ORDER re discovery telephone conference held on 1/29/2013. Signed by Judge David G Campbell on 2/8/2013. (NVO) (Entered: 02/08/2013)
77 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 01/11/13 before Judge Campbell.. (Hood, Sean) (Entered: 02/08/2013)
78 STIPULATION REGARDING AMENDED DISCOVERY DEADLINE by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Hood, Sean) (Entered: 02/08/2013)
79 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings held on 1/11/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/4/2013. Redacted Transcript Deadline set for 3/14/2013. Release of Transcript Restriction set for 5/13/2013. (VAR) (Entered: 02/11/2013)
80 ORDER pursuant to 78 Stipulation: Discovery due by 2/12/2013. Signed by Judge David G Campbell on 2/19/2013. (NVO) (Entered: 02/19/2013)
81 NOTICE of Change of Address by Doug C Northup. (Northup, Doug) (Entered: 02/19/2013)
82 Joint MOTION for Leave to File Excess Pages for (1) Plaintiffs' Response to Defendants' Motion to Dismiss and, in the Alternative, Motion for Summary Judgment; and (2) Defendants' Response to Plaintiffs' Motion for Preliminary Injunction by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 02/20/2013)
83 *Filed at 142 *LODGED Proposed Defendants' Response to Plaintiffs' Motion for Preliminary Injunction (Redacted) re: 82 Joint MOTION for Leave to File Excess Pages for (1) Plaintiffs' Response to Defendants' Motion to Dismiss and, in the Alternative, Motion for Summary Judgment; and (2) Defendants' Response to Plaintiffs' Motion for Preliminary I. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Rebuttal Expert Report and Declaration of Robert Brown, # 2 Exhibit 1 and 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7 to 12, # 8 Exhibit 13, # 9 Exhibit 14)(Northup, Doug) *Modified on 6/27/2013 to Seal Document Pursuant to Order 141 (MAP).* (Entered: 02/20/2013)
84 NOTICE re Lodging Defendants' Response to Plaintiffs' Motion for Preliminary Injunction Partially Under Seal by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Attachments: # 1 Certification of Sean Hood)(Northup, Doug) (Entered: 02/20/2013)
85 *Filed at Doc. 143 *SEALED LODGED Proposed Defendants' Response to Plaintiffs' Motion for Preliminary Injunction (Unredacted) re 84 Notice of Lodging. Document to be filed by Clerk if Motion to Seal is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12)(Northup, Doug) *Modified to correct reference to related document on 2/21/2013 (JHER). *Modified on 6/27/2013 (MAP)*. (Entered: 02/20/2013)
86 *Filed at Doc. 147 *LODGED Proposed Plaintiffs' Opposition to Motion to Dismiss and Motion for Summary Judgment, and Plaintiffs Alternative Request for Deferral Under Rule 56(d) re: 86 Notice of Lodging re 58 MOTION to Dismiss Counts/Claims : Counts One and Two MOTION for Partial Summary Judgment. Document to be filed by Clerk if Motion to Seal is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration of Nicholas Espiritu, # 2 Exhibit to Declaration of Nicholas Espiritu, # 3 Declaration of Nora Preciado, # 4 Exhibit 1−3 to

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 28 of 51

02/20/2013 02/21/2013
03/04/2013
03/04/2013 03/04/2013 03/05/2013 03/08/2013

Declaration of Nora Preciado, # 5 Exhibit 4−11 to Declaration of Nora Preciado, # 6 Plaintiffs Proposed Statement of Facts, # 7 Text of Proposed Order)(Espiritu, Nicholas) *Modified to correct reference to related document on 2/21/2013 (JHER). *Modified on 6/27/2013 to Unseal Pursuant to Order 141 (MAP)*. (Entered: 02/20/2013)
87 NOTICE re LODGING PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS UNDER SEAL by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re 86 Sealed Lodged Proposed Document,,, . (Attachments: # 1 Certification)(Espiritu, Nicholas) (Entered: 02/20/2013)
88 LODGED Proposed Plaintiffs' Opposition to Motion to Dismiss and Motion for Summary Judgment, and Plaintiffs Alternative Request for Deferral Under Rule 56(d) (Redacted) re: 58 MOTION to Dismiss Counts/Claims : Counts One and Two MOTION for Partial Summary Judgment, 82 Joint MOTION for Leave to File Excess Pages for (1) Plaintiffs' Response to Defendants' Motion to Dismiss and, in the Alternative, Motion for Summary Judgment; and (2) Defendants' Response to Plaintiffs' Motion for Preliminary I. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration of Nicholas Espiritu, # 2 Exhibit to Declaration of Nicholas Espiritu, # 3 Declaration of Nora Preciado, # 4 Exhibit 1−3 to Declaration of Nora Preciado, # 5 Exhibit 4−11 to Declaration of Nora Preciado, # 6 Plaintiffs Proposed Statement of Facts, # 7 Text of Proposed Order)(Espiritu, Nicholas) (Entered: 02/21/2013)
89 ORDER granting 82 Joint Motion for Leave to File Excess Pages. IT IS HEREBY ORDERED that Plaintiffs Response to Defendants' Motion toDismiss and, In the Alternative, Motion for Summary Judgment may exceed the presumptive page limitations prescribed by LRCiv 7.2(e) and may be up to 42 pages in length. IT IS FURTHER ORDERED that Defendants' Response to Plaintiffs' Motion for Preliminary Injunction may exceed the presumptive page limitations prescribed by LRCiv 7.2(e) and may be up to 36 pages in length. IT IS FURTHER ORDERED that the clerk shall file the Parties' respective response briefs (Docs. 83 , 88 ) that have been lodged with the Court. IT IS FURTHER ORDERED that the Court will hold a telephonic conference in this matter on March 14, 2013 at 3:30 p.m. Signed by Judge David G Campbell on 3/4/13. (LAD) (Entered: 03/04/2013)
90 *RESPONSE to 29 MOTION for Preliminary Injunction filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Rebuttal Expert Report and Declaration of Robert Brown, # 2 Exhibits 1−2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibits 7−12, # 8 Exhibit 13, # 9 Exhibit 14)(LAD) *Modified on 6/27/2013 to Seal Pursuant to Order 141 (MAP)*. (Entered: 03/04/2013)
91 RESPONSE (OPPOSITION) to Defendants' Motion to Dismiss and in the Alternative Motion for Summary Judgment on Plaintiffs' Equal Protection Claim 58 ; Plaintiffs' MOTION (REQUEST) for Deferral Under Rule 56(d) in the Alternative by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration of Nicholas Espiritu, # 2 Exhibits to Espiritu Declaration, # 3 Declaration of Nora A. Preciado, # 4 Exhibits 1−3 to Preciado Declaration, # 5 Exhibits 4−11 to Preciado Declaration, # 6 Response to Separate Statement of Facts and Statement of Additional Facts, # 7 Text of Proposed Order)(LAD) (Entered: 03/04/2013)
92 NOTICE of Change of Address by Nicholas David Espiritu. (Espiritu, Nicholas) (Entered: 03/05/2013)
93 LODGED Proposed Defendants Reply in Support of Motion to Dismiss Counts One and Two of Plaintiffs Complaint Pursuant to Rule 12(b)(6) and, in the Alternative, Motion for Summary Judgment on Plaintiffs Equal Protection Claim (Count Two). Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit 1)(Northup, Doug) (Entered: 03/08/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 29 of 51

03/08/2013 03/08/2013 03/08/2013 03/08/2013 03/12/2013 03/12/2013 03/12/2013 03/14/2013

94 Joint MOTION for Leave to File Excess Pages for (1) Plaintiffs' Reply Memorandum in Support of Motion for Preliminary Injunction; and (2) Defendants' Reply Memorandum in Support of Motion to Dismiss and, in the Alternative, Motion for Summary Judgment by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order Proposed Order)(Newell, Jennifer) (Entered: 03/08/2013)
95 NOTICE re Lodging Under Seal Plaintiffs' Reply Memorandum in Support of Motion for Preliminary Injunction by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Attachments: # 1 PLAINTIFFS CERTIFICATION IN SUPPORT OF LODGING)(Newell, Jennifer) (Entered: 03/08/2013)
96 *Filed at Doc. 144 *SEALED LODGED Proposed REPLY to Response to Motion re 95 Notice of Lodging; 46 MOTION for Preliminary Injunction filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Affidavit Declaration of Daniel Pochoda in Support of Plaintiffs' Reply Memorandum in Support of Motion for Preliminary Injunction)(Newell, Jennifer) *Modified to correct event from filed to lodged on 3/11/2013 (JHER). *Modified on 6/27/2013 (MAP)*. (Entered: 03/08/2013)
97 *REPLY to Response to Motion re 46 MOTION for Preliminary Injunction [REDACTED] filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Affidavit Declaration of Daniel Pochoda in Support of Plaintiffs' Reply Memorandum in Support of Motion for Preliminary Injunction)(Newell, Jennifer) *Modified on 6/27/2013 to Seal Pursuant to Order 141 (MAP)*. (Entered: 03/08/2013)
98 ORDER granting 94 Joint Motion for Leave to File Excess Pages. ORDERED that Plaintiffs' Reply in Support of Motion for Preliminary Injunction may exceed the presumptive page limitations proscribed by LR 7.2(e) and may be up to 35 pages in length. FURTHER ORDERED that Defendants' Reply in Support of Motion to Dismiss and, in the Alternative, Motion for Summary Judgment may exceed thepresumptive page limitations proscribed by LR 7.2(e) and may be up to 32 pages in length. Signed by Judge David G Campbell on 3/12/13.(MAP) (Entered: 03/12/2013)
99 *SEALED REPLY to 29 MOTION for Preliminary Injunction filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos (Attachments: # 1 Exhibit)(MAP) *Modified on 6/27/2013 Sealed Pursuant to Order 141 (MAP)*. (Entered: 03/12/2013)
100 REPLY to Response to Motion re 58 Motion to Dismiss Counts One and Two of Plaintiffs Complaint Pursuant to Rule 12(b)(6) and, in the Alternative, Motion for Summary Judgment on Plaintiffs Equal Protection Claim (Count Two) filed by Janice K Brewer, John S Halikowski, Stacey K Stanton (Attachments: # 1 Exhibit)(MAP) (Entered: 03/12/2013)
101 Minute Entry for proceedings held before Judge David G Campbell: Telephone Conference held on 3/14/2013. Discussion held on the sealing or not sealing of documents in connection to the preliminary injunction briefing. Representatives of Plaintiffs and Defendants to meet and confer on 3/15/2013 to talk through precisely what documents that have been lodged in connection to briefing be sealed or not sealed. Plaintiffs' counsel by 10:00 a.m. on 3/18/13 to file a 15 page memorandum/motion that addresses (1) compelling interest standard or the good cause standard that applies (2) documents specifically identified satisfy the two standards. Defendants to file a 15 page response that addresses same two issues by 10:00 a.m. on 3/20/2013. A Hearing on the briefing is set for 3/21/2013 at 11:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Parties located out of state may appear by phone. Parties inform the Court that witnesses will not be called for the hearing scheduled 3/22/13. Court will set aside 2 hours for the hearing. Each side allotted 1 hour for argument.

TELEPHONIC APPEARANCES: Plaintiffs: Orion Danjuma, Nicholas Espiritu,Linton Joaquin,Jennifer Newell, Nora Preciado, Karen Tumlin,Kelly Flood,Tanya Broder; Defendants: Sean Hood, Doug Northup, Andrew Breavington. (Court Reporter Patricia

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 30 of 51

03/18/2013 03/18/2013
03/20/2013 03/20/2013 03/21/2013

Lyons.) Hearing held 3:39 PM to 4:34 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 03/14/2013)
102 *Filed at Doc. 140 *SEALED LODGED Proposed Plaintiffs' Motion and Memorandum in Support of Motion for Partial Sealing of Preliminary Injunction Motion. Document to be filed by Clerk if Motion to Seal is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order Proposed Order)(Newell, Jennifer) *Modified on 6/27/2013 (MAP)*. (Entered: 03/18/2013)
103 *Filed at 145 *SEALED LODGED Proposed Index of Attachments Relating to Motion and Memorandum In Support of Partial Sealing of Plaintiffs' Preliminary Injunction Motion. Document to be filed by Clerk if Motion to Seal is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit Ariel Martinez Depo − Defs' Confidential Designations, # 2 Exhibit Alejandra Lopez Depo − Defs' Confidential Designations, # 3 Exhibit Christian Jacobo Depo − Defs' Confidential Designations, # 4 Exhibit Dulce Matuz Depo − Defs' Confidential Designations, # 5 Exhibit Jesus Castro Martinez Depo − Defs' Confidential Designations, # 6 Exhibit Natalia Perez−Gallegos Depo − Defs' Confidential Designations, # 7 Exhibit Ariel Martinez Depo − Pltfs' Confidential Designations, # 8 Exhibit Christian Jacobo − Pltfs' Confidential Designations, # 9 Exhibit Alejandra Lopez Ibarra − Pltfs' Confidential Designations, # 10 Exhibit Dulce Matuz − Pltfs' Confidential Designations, # 11 Exhibit Jesus Castro−Martinez − Pltfs' Confidential Designations, # 12 Exhibit Natalia Perez−Gallegos − Pltfs' Confidential Designations, # 13 Exhibit Defs' Response to Pltfs' Mt for PI, # 14 Exhibit Pltfs' Reply Memo ISO MT for PI)(Newell, Jennifer) *Modified on 6/27/2013 (MAP)*. (Entered: 03/18/2013)
104 NOTICE re Lodging Defendants' Response to Plaintiffs' Motion to Seal Transcripts and Related Briefing on Plaintiffs' Motion for Preliminary Injunction Under Seal by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Hood, Sean) (Entered: 03/20/2013)
105 *Filed at 146 *SEALED LODGED Proposed Defendants Response to Plaintiffs Motion to Seal Transcripts and Related Briefing on Plaintiffs Motion for Preliminary Injunction re 104 Notice of Lodging. Document to be filed by Clerk if Motion to Seal is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) *Modified to correct reference to related document on 3/20/2013 (JHER). *Modified on 6/27/2013 (MAP)*. (Entered: 03/20/2013)
106 Minute Entry for proceedings held before Judge David G Campbell: In−Court Hearing re: sealing of documents in dispute held on 3/21/2013. Discussion held. Parties by early next week submit a stipulation to the Court what can be filed publicly and what can not. If in disagreement submit a chart to the Court with specifics and Court will issue an order.

03/22/2013

APPEARANCES: Orion Danjuma,Nicholas Espiritu, Linton Joaquin, Jennifer Newell, Michael Tan, Karen Tumlin, Shiu−Ming Cheer for Plaintiffs. Sean Hood, Doug Northup, Ashley Gomez for Defendants (Court Reporter Patricia Lyons.) Hearing held 11:00 AM to 11:20 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 03/21/2013)
107 Minute Entry for proceedings held before Judge David G Campbell: Motion Hearing held on 3/22/2013. Oral argument. ORDERED taking under advisement 29 Motion for Preliminary Injunction; taking under advisement 58 Motion to Dismiss Counts/Claims; taking under advisement 58 Motion for Partial Summary Judgment. Court will issue an order.

APPEARANCES: Tanya Broder,Shiu−Ming Cheer,Orion Danjuma, Nicholas Espiritu, Marty Harper, Linton Joaquin, Jennifer Newell, Michael Tan, Karen Tumlin, Daniel Pochoda for Plaintiffs. Sean Hood, Doug Northup, Joseph Sciarrotta Jr., Andrew Breavington for Defendants (Court Reporter Patricia Lyons.) Hearing held 9:00 AM to 11:11 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) Modified on 3/22/2013 (TCA). (Entered: 03/22/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 31 of 51

03/26/2013 04/02/2013 04/03/2013
04/04/2013
04/05/2013 05/02/2013 05/16/2013 05/16/2013 05/29/2013 05/30/2013 05/30/2013 05/30/2013

108 NOTICE re Clarification by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Northup, Doug) (Entered: 03/26/2013)
109 TRANSCRIPT REQUEST re Hearing for Motion for Preliminary Injunction, etc., (Court Reporter Patricia Lyons) by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on March 22, 2013 before Judge David G. Campbell.. (Tumlin, Karen) (Entered: 04/02/2013)
110 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral Argument Proceedings held on 3/22/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/24/2013. Redacted Transcript Deadline set for 5/6/2013. Release of Transcript Restriction set for 7/2/2013. (VAR) (Entered: 04/03/2013)
111 NOTICE OF FILING OF OFFICIAL *AMENDED* TRANSCRIPT of Oral Argument Proceedings held on 3/22/2013, before Judge David G. Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/25/2013. Redacted Transcript Deadline set for 5/6/2013. Release of Transcript Restriction set for 7/3/2013. *Amending transcript at Doc. 110)(VAR) (Entered: 04/04/2013)
112 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 3/22/2013 before Judge David G. Campbell.. (Northup, Doug) (Entered: 04/05/2013)
113 NOTICE re Law Firm Name Change by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Jacob, Andrew) (Entered: 05/02/2013)
114 ORDER denying 29 Motion for Preliminary Injunction; granting in part and denying in part 58 Motion to Dismiss Counts/Claims. Signed by Judge David G Campbell on 5/16/2013. The Court will set a hearing to schedule the remainder of this case. (NVO) (Entered: 05/16/2013)
115 ORDER. The paties shall meet and resolve the sealing/redacting of materials related to named Plaintiffs' driving histories, and provide the Court notice of any agreement within 14 days of the issuance of this order. (See order for more details). Signed by Judge David G Campbell on 5/16/2013. (NVO) (Entered: 05/16/2013)
116 ORDER. Rule 16 Case Management Conference set for 6/21/2013 at 11:00 AM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 5/29/2013. (NVO) (Entered: 05/29/2013)
117 MOTION for Reconsideration re 114 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss Counts/Claims, Order on Motion for Partial Summary Judgment,,, by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Joaquin, Linton) (Entered: 05/30/2013)
118 MOTION to Seal Document Declaration of Michael Tan and Attached Exhibits by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Joaquin, Linton) (Entered: 05/30/2013)
119 DECLARATION of Michael Tan [REDACTED] in Support of Plaintiffs' Motion for Reconsideration re 117 MOTION for Reconsideration re 114 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss Counts/Claims, Order on Motion for Partial Summary Judgment,,, by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Joaquin, Linton) (Entered: 05/30/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 32 of 51

05/30/2013 05/30/2013
05/30/2013 05/30/2013 06/05/2013 06/06/2013 06/06/2013 06/07/2013 06/07/2013 06/07/2013
06/12/2013 06/14/2013

120 NOTICE re NOTICE OF LODGING UNDER SEAL by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Joaquin, Linton) (Entered: 05/30/2013)
121 *Filed at Doc. 148 *SEALED LODGED Proposed DECLARATION OF MICHAEL TAN AND ATTACHED EXHIBITS re: 117 MOTION for Reconsideration re 114 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss Counts/Claims, Order on Motion for Partial Summary Judgment,,, , 118 MOTION to Seal Document Declaration of Michael Tan and Attached Exhibits. Document to be filed by Clerk if Motion to Seal is granted. Filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Joaquin, Linton) *Modified on 6/27/2013 (MAP)*. (Entered: 05/30/2013)
122 ANSWER to 1 Complaint, with Jury Demand by Janice K Brewer, John S Halikowski, Stacey K Stanton.(Northup, Doug) (Entered: 05/30/2013)
123 * STIPULATION re Joint Agreement Concerning Filings and Materials Lodged Under Seal by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Viramontes, Victor) * Modified to correct event on 5/31/2013 (LAD). (Entered: 05/30/2013)
124 MOTION for Admission Pro Hac Vice as to attorney Jorge Martin Castillo by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 06/05/2013)
125 ORDER denying 117 Motion for Reconsideration FURTHER ORDERED granting 118 Motion to Seal. Signed by Judge David G Campbell on 6/6/13.(MAP) (Entered: 06/06/2013)
126 *Sealed Declaration re 117 filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (MAP) *Modified on 6/27/2013 to Seal Pursuant to Order 141 (MAP)*. (Entered: 06/06/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX134861 as to Jorge Martin Castillo. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/07/2013)
127 ORDER pursuant to General Order 09−08 granting 124 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/07/2013)
128 STIPULATION (Joint) Concerning Documents to be Filed Under Seal by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order [PROPOSED] ORDER GRANTING PLTFS' MT TO SEAL, # 2 Defendants' Response to Preliminary Injunction Brief, # 3 Exhibits 1 & 2 to Defs' Response to PI Brief, # 4 Exhibit 3 to Defs' Response to PI Brief, # 5 Exhibit 4 to Defs' Response to PI Brief, # 6 Exhibit 5 to Defs' Response to PI, # 7 Exhibit 6 to Defs' Response to PI, # 8 Exhibit 7 to Defs' Response to PI, # 9 Exhibit 8 to Defs' Response to PI, # 10 Exhibit 9 to Defs' Response to PI, # 11 Exhibit 10 to Defs' Response to PI, # 12 Exhibit 11 to Defs' Response to PI, # 13 Exhibit 12 to Defs' Response to PI, # 14 Exhibit 13 to Defs' Response to PI, # 15 Exhibit 14 to Defs' Response to PI, # 16 Plaintiffs' Reply Brief to Motion for Preliminary Injunction, # 17 Declaration of Dan Pochoda with Exhibits to Pltfs' Reply to MT for PI)(Danjuma, Rodkangyil) (Entered: 06/07/2013)
129 MOTION to Withdraw as Attorney by POLSINELLI, PC by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Jacob, Andrew) (Entered: 06/12/2013)
130 REPORT of Rule 26(f) Planning Meeting by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 06/14/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 33 of 51

06/17/2013
06/17/2013 06/17/2013 06/17/2013
06/18/2013 06/19/2013 06/19/2013 06/21/2013

131 *NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit, as to 114 Order on Motion for Preliminary Injunction by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. Filing fee received: $ 455.00, receipt number 0970−9279850. (Attachments: # 1 Exhibit A: Order of May 16, 2013 (Dkt. #114), # 2 Exhibit B: Statement of Representation)(Newell, Jennifer) *Modified to correct Appeal event on 6/18/2013* (REW). (Entered: 06/17/2013)
132 MOTION for Admission Pro Hac Vice as to attorney Araceli Martinez−Olguin on behalf of Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 06/17/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX135123 as to Araceli Martinez−Olguin. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2013)
133 ORDER pursuant to General Order 09−08 granting 132 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/17/2013)
134 Ninth Circuit Case Number 13−16248 for 131 Notice of Appeal. (copies sent by the Ninth Circuit) (REW) (Entered: 06/18/2013)
135 * SUPPLEMENT to Joint Case Management Report and Proposed Schedule 130 by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) * Modified to add document linkage on 6/24/2013 (LAD). (Entered: 06/19/2013)
136 * RESPONSE to Defendants' Supplement to Joint Case Management Report and Proposed Schedule 135 by Plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) * Modified to add document linkage on 6/24/2013 (LAD). (Entered: 06/19/2013)
137 Minute Entry for proceedings held before Judge David G Campbell: Scheduling Conference held on 6/21/2013. Discussion held. Deadlines discussed. Court will enter a scheduling order. Defendants to notify the Court and plaintiffs of any change in the States Policy.

06/24/2013
06/26/2013 06/27/2013 06/27/2013

APPEARANCES: Jorge Castillo, Araceli Martinez−Olguin, Orion Danjuma, Nicholas Espiritu, Kelly Flood, and Daniel Pochoda for Plaintiffs. Sean Hood and Doug Northup for Defendants (Court Reporter Patricia Lyons.) Hearing held 11:02 AM to 11:26 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 06/21/2013)
138 ** MODIFIED PER ORDER 219 , ORDER 226 and ORDER 246 ** CASE MANAGEMENT ORDER: Discovery due by 10/25/2013. Dispositive motions due by 12/6/2013. Signed by Judge David G Campbell on 6/21/2013. (see order for additional deadlines)(TCA) Modified on 1/23/2014 (LAD). Modified on 2/21/2014 (LAD). Modified on 4/29/2014 (LAD). (Entered: 06/24/2013)
139 ORDER granting 129 Motion to Withdraw as Attorney. Attorney Andrew S Jacob; Marty Harper and Thomas K Irvine terminated as counsel for plaintiffs. Signed by Judge David G Campbell on 6/26/2013.(TCA) (Entered: 06/26/2013)
140 SEALED MOTION by Arizona Dream Act Coalition. (MAP) (Entered: 06/27/2013)
141 ORDER Pursuant to the parties' stipulation 128 , the Clerk is directed to file under seal Docs. 83 , 85 , 90 , 96 , 97 , 102 , 103 , and 105 . The redacted documents submitted by the parties with their stipulation shall remain in the public docket. FURTHER ORDERED denying as moot ( 102 lodged, 140 filed) Plaintiffs' Motion in light of the parties' stipulation concerning documents to be filed under seal. FURTHER ORDERED The Clerk is directed to file under seal Doc. 99 . FURTHER ORDERED The Clerk is directed to unseal and file Doc. 86 . FURTHER ORDERED granting 118 Motion to Seal. The Clerk is directed to seal Docs. 121 and 126 . Signed by Judge

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 34 of 51

06/27/2013 06/27/2013 06/27/2013 06/27/2013
06/27/2013 06/27/2013
06/27/2013 07/02/2013 07/05/2013 07/05/2013 07/05/2013 07/10/2013 07/19/2013
08/05/2013

David G Campbell on 6/27/13. (MAP) (Entered: 06/27/2013)
142 SEALED RESPONSE to Motion re 46 MOTION filed by Janice K Brewer. (Attachments: # 1 Rebuttal Expert Report, # 2 Exhibit 1−2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7−12, # 8 Exhibit 13, # 9 Summons 14)(MAP) (Entered: 06/27/2013)
143 Sealed Response to Motion re 46 MOTION filed by Janice K Brewer. (Attachments: # 1 Indea and Exhibits 7−12)(MAP) (Entered: 06/27/2013)
144 SEALED REPLY to Response to Motion re 46 MOTION filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration)(MAP) (Entered: 06/27/2013)
145 Sealed Index of Attachments re 140 MOTION filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 A Martinez Depo, # 2 A Lopez Depo, # 3 C Jacobo Depo, # 4 D Matuz Depo, # 5 J Castro−Martinez Depo, # 6 N Perez−Gallegos Depo, # 7 A Martinez Depo, # 8 C Jacobo Depo, # 9 A Lopez Ibarra Designations, # 10 D Matuz Designations, # 11 N Perez−Gallegos Designations, # 12 Defs' Resp to Plas' Mt for PI, # 13 Plas' Reply Memo ISO MT for PI)(MAP) (Entered: 06/27/2013)
146 SEALED RESPONSE to Motion re 140 SEALED MOTION filed by Janice K Brewer. (MAP) (Entered: 06/27/2013)
147 RESPONSE (OPPOSITION) to Motion re 58 MOTION to Dismiss Counts/Claims : Counts One and Two MOTION for Partial Summary Judgment filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration of N Espirito, # 2 Exhibit Re N Espirito Declaration, # 3 Declaration of N Preciado, # 4 Exhibit 1−3 to N Preciado Declaration, # 5 Exhibit 4−11, # 6 Plas' Proposed Stmt of Facts, # 7 Text of Proposed Order)(MAP) (Entered: 06/27/2013)
148 Sealed Declaration re 117 MOTION filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (MAP) (Entered: 06/27/2013)
149 NOTICE re of Filing Rebuttal Expert Report of Robert Brown by Janice K Brewer, John S Halikowski, Stacey K Stanton re 83 Lodged Proposed Document,,, 90 Response to Motion, . (Attachments: # 1 Exhibit A)(Hood, Sean) (Entered: 07/02/2013)
150 NOTICE re Defendants' Notice of Service of Rule 26(a)(1) Initial Disclosure by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Hood, Sean) (Entered: 07/05/2013)
151 NOTICE re Defendants' Notice of Service of Defendants' First Set of Interrogatories to Plaintiffs by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Hood, Sean) (Entered: 07/05/2013)
152 NOTICE re Service of Plaintiffs' Initial Disclosures by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Castillo, Jorge) (Entered: 07/05/2013)
153 NOTICE of Change of Address by Tanya Broder. (Broder, Tanya) (Entered: 07/10/2013)
154 NOTICE re SERVICE OF PLAINTIFFS FIRST SET OF INTERROGATORIES AND SECOND SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS TO DEFENDANTS by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Castillo, Jorge) (Entered: 07/19/2013)
155 MOTION to Amend/Correct 1 Complaint, by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit Exhibit A − Complaint for Declaratory and Injunctive Relief, # 2 Exhibit Exhibit B − Amended Complaint − Document Comparison, # 3 Text of Proposed Order Exhibit C − Text of Proposed Order)(Newell, Jennifer) (Entered: 08/05/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 35 of 51

08/05/2013
08/08/2013 08/09/2013
08/13/2013 08/20/2013 08/22/2013 08/23/2013 08/29/2013
09/04/2013 09/04/2013 09/06/2013 09/10/2013 09/10/2013 09/10/2013 09/12/2013 09/13/2013

156 NOTICE re Notice of Service of Discovery Responses by Plaintiffs Arizona Dream Act Coalition; Jesus Castro−Martinez; Christian Jacobo; Alejandra Lopez; Ariel Martinez; and Natalia Perez−Gallegos by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Castillo, Jorge) (Entered: 08/05/2013)
157 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on March 21, 2013 before Judge David G. Campbell.. (Northup, Doug) (Entered: 08/08/2013)
158 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 3/21/2013, before Judge Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/30/2013. Redacted Transcript Deadline set for 9/9/2013. Release of Transcript Restriction set for 11/7/2013. (VPB) (Entered: 08/09/2013)
159 TRANSCRIPT REQUEST by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on March 21, 2013 before Judge Judge David G. Campbell.. (Newell, Jennifer) (Entered: 08/13/2013)
160 RESPONSE in Opposition re 155 MOTION to Amend/Correct 1 Complaint, filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) (Entered: 08/20/2013)
161 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 08/22/2013)
162 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 08/23/2013)
163 REPLY to Response to Motion re 155 MOTION to Amend/Correct 1 Complaint, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit A − Excerpts from Plaintiff ADACs Resps. to Defs. First Set of Interrogs.)(Martinez−Olguin, Araceli) (Entered: 08/29/2013)
164 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 09/04/2013)
165 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 09/04/2013)
166 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 09/06/2013)
167 NOTICE of Deposition of KEVIN BIESTY, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Tumlin, Karen) (Entered: 09/10/2013)
168 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Tumlin, Karen) (Entered: 09/10/2013)
169 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 09/10/2013)
170 ORDER granting 155 Motion to Amend/Correct. Plaintiffs shall file their first amended complaint with the Clerk of Court on or before 9/18/2013. Signed by Judge David G Campbell on 9/12/2013.(DGC, nvo) (Entered: 09/12/2013)
171 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 09/13/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 36 of 51

09/17/2013 09/17/2013
09/19/2013 09/20/2013
09/27/2013 10/03/2013 10/04/2013 10/07/2013 10/09/2013 10/11/2013 10/11/2013
10/15/2013 10/15/2013

172 NOTICE re of Revision to Policy 16.1.4 Concerning Acceptance of Employment Authorization Cards by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Attachments: # 1 Exhibit 1 − 5, # 2 Exhibit 6 part 1, # 3 Exhibit 6 part 2, # 4 Exhibit 7)(Hood, Sean) (Entered: 09/17/2013)
173 *AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants filed by Christian Jacobo, Natalia Perez−Gallegos, Alejandra Lopez, Jesus Castro−Martinez, Arizona Dream Act Coalition, Ariel Martinez.(Flood, Kelly) *Modified to add Carla Chavarria and Jose Ricardo Hinojos. Document is not in compliance with LRCiv 7.1(c); attorney notified on 9/17/2013 (LSP). (Entered: 09/17/2013)
174 TRANSCRIPT REQUEST for Scheduling Conference by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on 6/21/2013 before Judge Judge David G. Campbell.. (Newell, Jennifer) (Entered: 09/19/2013)
175 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Scheduling Conference Proceedings held on 6/21/2013, before Judge Campbell. Court Reporter Tricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/11/2013. Redacted Transcript Deadline set for 10/21/2013. Release of Transcript Restriction set for 12/19/2013. (VPB) (Entered: 09/20/2013)
176 STIPULATION RE: 138 Scheduling Order, 172 Notice (Other), 173 Amended Complaint, Joint Stipulation Concerning Discovery and Motion Schedule by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Espiritu, Nicholas) (Entered: 09/27/2013)
177 MOTION for Admission Pro Hac Vice as to attorney Christine Patricia Sun by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 10/03/2013)
178 ANSWER to 173 Amended Complaint, with Jury Demand by Janice K Brewer, John S Halikowski, Stacey K Stanton.(Northup, Doug) (Entered: 10/04/2013)
179 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 10/07/2013)
180 ** MODIFIED BY ORDER 219 ** ORDER pursuant to 176 Stipulation: Discovery due by 12/16/2013. Dispositive motions due by 2/13/2014. All other terms of the Case Management Order 138 remain in effect. Signed by Judge David G Campbell on 10/9/2013. (DGC, nvo) Modified on 1/23/2014 (LAD). (Entered: 10/09/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX138893 as to Christine Patricia Sun. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/11/2013)
181 ORDER pursuant to General Order 09−08 granting 177 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/11/2013)
182 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) (Entered: 10/15/2013)
183 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 10/15/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 37 of 51

10/17/2013 10/22/2013 10/23/2013 10/31/2013 11/01/2013 11/07/2013 11/07/2013 11/07/2013
11/08/2013 11/12/2013 11/13/2013 11/19/2013 11/20/2013 11/20/2013 11/25/2013

184 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 10/17/2013)
185 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 10/22/2013)
186 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 10/23/2013)
187 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 10/31/2013)
188 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 11/01/2013)
189 MOTION for Admission Pro Hac Vice as to attorney Jessica Polansky on behalf of plaintiffs Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, and Natalia Perez−Gallegos. (BAS) (Entered: 11/07/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX139781 as to Jessica Polansky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/07/2013)
190 ORDER pursuant to General Order 09−08 granting 189 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 11/07/2013)
191 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 11/08/2013)
192 STIPULATION Concerning Expert Disclosure Deadline by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Hood, Sean) (Entered: 11/12/2013)
193 ORDER pursuant to 192 Stipulation: Deadline for disclosure of experts is extended to 11/20/2013. Signed by Judge David G Campbell on 11/13/2013. (DGC, nvo) (Entered: 11/13/2013)
194 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 11/19/2013)
195 * NOTICE re of Service of First Supplemental Disclosure Statement by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) * Attorney noticed regarding Notice of Service of Discovery event on 11/21/2013 (LAD). (Entered: 11/20/2013)
196 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 11/20/2013)
197 ORDER. Telephonic Discovery Conference set for 12/6/2013 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Signed by Judge David G Campbell on 11/25/2013. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC, nvo)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 38 of 51

11/26/2013
12/03/2013 12/04/2013 12/06/2013 12/06/2013 12/09/2013 12/09/2013 12/09/2013 12/10/2013
12/16/2013 12/16/2013 12/18/2013 12/18/2013
12/19/2013

(Entered: 11/25/2013)
198 STIPULATION RE: 180 Order on Stipulation, Set/Reset Deadlines/Hearings Joint Stipulation Concerning Discovery Schedule by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Espiritu, Nicholas) (Entered: 11/26/2013)
199 ORDER pursuant to 198 Stipulation: The deadline for completion of fact witness depositions is extended to 12/17/2013. Signed by Judge David G Campbell on 12/3/2013. (DGC, nvo) (Entered: 12/03/2013)
200 NOTICE of Deposition of JOHN S. HALIKOWSKI; and, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 12/04/2013)
201 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 12/06/2013)
204 MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 12/6/2013. ( see minute entry for details) (Court Reporter Candy Potter.) Hearing held 2:03 PM to 3:04 PM.(TCA) (Entered: 12/09/2013)
202 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 12/6/13 before Judge David G. Campbell.. (Northup, Doug) (Entered: 12/09/2013)
203 TRANSCRIPT REQUEST by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on December 6, 2013 before Judge David G. Campbell.. (Tumlin, Karen) (Entered: 12/09/2013)
205 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 12/09/2013)
206 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference for dates of 12/6/2013 before Judge Campbell re: 131 Notice of Appeal. Court Reporter Candy Potter. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/31/2013. Redacted Transcript Deadline set for 1/10/2014. Release of Transcript Restriction set for 3/10/2014. (MAS) (Entered: 12/10/2013)
207 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 12/16/2013)
208 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 12/16/2013)
209 BRIEF Regarding the Deliberative Process Privilege and the Attorney−Client Privilege Pursuant to the Court's December 6, 2013 Order by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit 1 to 3)(Hood, Sean) (Entered: 12/18/2013)
210 Supplemental MOTION to Compel Production of Documents Brief Filed at Court's Direction by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Affidavit, # 2 Exhibit)(Viramontes, Victor) (Entered: 12/18/2013)
211 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 12/19/2013)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 39 of 51

12/27/2013 01/08/2014 01/09/2014 01/14/2014 01/15/2014 01/17/2014 01/21/2014 01/22/2014 01/22/2014 01/22/2014 02/05/2014 02/12/2014
02/14/2014 02/19/2014

212 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Polansky, Jessica) (Entered: 12/27/2013)
213 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 01/08/2014)
214 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 01/09/2014)
215 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 01/14/2014)
216 ORDER granting 210 Motion to Compel re privilege documents. See order for details. Signed by Judge David G Campbell on 1/15/2014.(DGC, nvo) (Entered: 01/15/2014)
217 * NOTICE of Withdrawal of Counsel re Kelly J. Flood by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Flood, Kelly) * Modified to change event and terminate Ms. Flood as co−counsel on 1/21/2014 (LAD). (Entered: 01/17/2014)
218 STIPULATION RE: 180 Order on Stipulation, Set/Reset Deadlines/Hearings Discovery Schedule (First Request re Expert Depositions) by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Tumlin, Karen) (Entered: 01/21/2014)
219 ** MODIFIED BY ORDER 226 ** ORDER pursuant to 218 Stipulation: The deadline for completion of expert witness depositions is extended to 1/28/2014. All other dates and conditions in the Court's Case Management Orders [138, 180] remain in effect. Signed by Judge David G Campbell on 1/22/2014. (DGC, nvo) Modified on 2/21/2014 (LAD). (Entered: 01/22/2014)
220 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 01/22/2014)
221 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 01/22/2014)
222 STIPULATION (Joint) Concerning Summary Judgement Briefing Schedule by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos.. (Sun, Christine) (Entered: 02/05/2014)
223 ORDER. The Court has reviewed the parties' stipulation regarding the summary judgment briefing schedule. By the close of business on February 14, 2014, the parties shall submit a stipulated proposed revised schedule, and the reasons for the proposed schedule. Signed by Judge David G Campbell on 2−12−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 02/12/2014)
224 STIPULATION re: 222 Stipulation, 223 Order And Joint Motion Concerning Remainder of Case Schedule by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Espiritu, Nicholas) (Entered: 02/14/2014)
225 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 02/19/2014)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 40 of 51

02/20/2014 02/25/2014 02/25/2014 02/25/2014 02/25/2014 02/25/2014 02/28/2014 03/11/2014
03/17/2014 03/25/2014 03/26/2014 03/26/2014 03/26/2014

226 ORDER pursuant to 224 Stipulation: Discovery due by 3/31/2014. Dispositive motions due by 4/30/2014. Signed by Judge David G Campbell on 2/20/2014. (DGC, nvo) (Entered: 02/20/2014)
227 NOTICE of Deposition of Charles Saillant, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Pochoda, Daniel) (Entered: 02/25/2014)
228 NOTICE of Deposition of John Halikowski, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Pochoda, Daniel) (Entered: 02/25/2014)
229 NOTICE of Deposition of Kevin Biesty, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Pochoda, Daniel) (Entered: 02/25/2014)
230 NOTICE of Deposition of Page Gonzales, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Pochoda, Daniel) (Entered: 02/25/2014)
231 NOTICE of Deposition of Thomas Adkins, filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Pochoda, Daniel) (Entered: 02/25/2014)
232 MOTION to Dismiss Party Jesus Castro−Martinez Without Prejudice by Jesus Castro−Martinez. (Attachments: # 1 Text of Proposed Order)(Sun, Christine) (Entered: 02/28/2014)
233 ORDER. Telephonic Discovery Conference set for 3/26/2014 at 02:00 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. Counsel for Plaintiff shall initiate a conference call to include counsel for all Plaintiffs, all Defendants, and the Court. Signed by Judge David G Campbell on 3/11/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC, nvo) (Entered: 03/11/2014)
234 RESPONSE to Motion re: 232 MOTION to Dismiss Party Jesus Castro−Martinez Without Prejudice filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 03/17/2014)
235 STIPULATION and [Proposed] Protective Order by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 03/25/2014)
236 ORDER granting 232 Motion to Dismiss Party; party Jesus Castro−Martinez terminated. The claims of Jesus Castro−Martinez are dismissed without prejudice. Signed by Judge David G Campbell on 3−26−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 03/26/2014)
237 ORDER pursuant to 235 Stipulation: PROTECTIVE ORDER. Signed by Judge David G Campbell on 3/26/2014. (DGC, nvo) (Entered: 03/26/2014)
238 MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Discovery Conference held on 3/26/2014. Plaintiff issue: Defendants have refused to verify their December 2013 supplemental interrogatory responses. Discussion held. Parties reach a stipulation on the record that the interrogatory responses given may be used by plaintiffs at trial. Court will not require any further verification.

TELEPHONIC APPEARANCES: Christine Sun for Plaintiffs. Sean Hood for Defendants. Others present on phone: Jorge Castillo, Orion Danjuma, Nicholas Espiritu, and Linton Joaquin; Nora Preciado (Court Reporter Patricia Lyons.) Hearing held 2:13 PM to 2:30 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) Modified on 3/26/2014 (TCA). Modified on

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 41 of 51

03/31/2014 04/02/2014 04/04/2014 04/09/2014
04/15/2014 04/21/2014 04/21/2014 04/28/2014 04/30/2014 04/30/2014 04/30/2014 04/30/2014

4/8/2014 (TCA). (Entered: 03/26/2014)
239 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 03/31/2014)
240 TRANSCRIPT REQUEST for Discovery Conference by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on 03/26/2014, Judge David G Campbell hearing judge(s). (Sun, Christine) (Entered: 04/02/2014)
241 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) (Entered: 04/04/2014)
242 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Discovery Conference Proceedings held on 3/26/2014, before Judge Campbell. Court Reporter Patricia Lyons. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/30/2014. Redacted Transcript Deadline set for 5/12/2014. Release of Transcript Restriction set for 7/8/2014. (VPB) (Entered: 04/09/2014)
243 NOTICE of Service of Discovery filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 04/15/2014)
244 MOTION for Leave to File Excess Pages for UNOPPOSED MOTION TO EXPAND PAGE LIMITS FOR DISPOSITIVE MOTIONS by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order Exhibit 1)(Tumlin, Karen) (Entered: 04/21/2014)
245 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 04/21/2014)
246 ORDER granting 244 Motion for Leave to File Excess Pages. Dispositive motions may be 32 pages in length; responses may be 32 pages in length; replies may be 15 pages in length. All other terms of the Court's Case Management Order 138 remain in effect. Signed by Judge David G Campbell on 4/28/2014.(DGC, nvo) (Entered: 04/28/2014)
247 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 04/30/2014)
248 STATEMENT of Facts in Support of re: 247 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit 1 to 9, # 2 Exhibit 10 to 12)(Hood, Sean) (Entered: 04/30/2014)
249 NOTICE re: Loding Under Seal Portions of Plaintiffs Motion for Summary Judgment and for Preliminary Injunction and supporting documents by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re: 237 Order on Stipulation, Protective Order . (Sun, Christine) (Entered: 04/30/2014)
250 *AMENDED NOTICE re: LODGING UNDER SEAL PORTIONS OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND FOR PERMANENT INJUNCTION, AND SUPPORTING DOCUMENTS by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re: 249 Notice (Other), 237 Order on Stipulation, Protective Order . (Sun, Christine) *Modified docket text on 5/1/2014 (SSU). (Entered: 04/30/2014)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 42 of 51

04/30/2014 04/30/2014 04/30/2014 04/30/2014 04/30/2014 05/02/2014
05/02/2014 05/06/2014 05/12/2014
05/22/2014

251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 04/30/2014)
252 *SEALED BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTION (ORAL ARGUMENT REQUESTED) [UNDER SEAL]. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) Modified from lodged to filed per Order 237 on 5/1/2014 (SSU). (Entered: 04/30/2014)
253 *REFILED/DUPLICATE AT DOC. 255 *LODGED Proposed Plaintiffs' Statement of Facts ISO Motion for Summary Judgment re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) *Modified on 5/1/2014 Modified to change from Lodged to Sealed Lodged(MAP)*. (Entered: 04/30/2014)
254 *SEALED Declaration of Christine Sun ISO Motion for Summary Judgment re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Sun, Christine) *Modified from lodged to filed per Order 237 on 5/1/2014 (SSU). (Entered: 04/30/2014)
255 *SEALED Statement of Facts ISO Motion for Summary Judgment re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) *Modified from lodged to filed per Order 237 on 5/1/2014 (SSU). (Entered: 04/30/2014)
256 *Plaintiffs' Notice of Errata re: Declaration of Christine P. Sun re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Exhibit Exhibit SS, # 2 Exhibit Exhibit YY, # 3 Exhibit Exhibit EEE, # 4 Exhibit Exhibit FFF, # 5 Exhibit Exhibit HHH, # 6 Exhibit Exhibit JJJ, # 7 Exhibit Exhibit MMM, # 8 Exhibit Exhibit OOOO, # 9 Errata Exhibit QQQQ, # 10 Exhibit Exhibits VVVV, XXXXX, YYYYY)(Sun, Christine) *Modified from lodged to filed per Order 237 on 5/5/2014 (SSU). (Entered: 05/02/2014)
257 NOTICE re: of Lodging under Seal Plaintiffs' Notice of Errata by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re: 256 Sealed Lodged Proposed Document . (Sun, Christine) (Entered: 05/02/2014)
258 NOTICE of Service of Discovery filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 05/06/2014)
259 STIPULATION (JOINT) CONCERNING THE SEALING OF LODGED FILINGS AND MATERIALS by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order re: Joint Stip to Seal Record, # 2 Pls.' Brief ISO Mot. for Summ. J. & Permanent Inj., # 3 Pls.' Statement of Facts ISO Mot. for Summ. J. & Permanent Inj., # 4 Decl. of Christine P. Sun in Support of Pls.' Mot. for Summ. J. & Permanent Inj., # 5 Exhibits A−Z to Sun Decl., # 6 Exhibits AA−ZZ to Sun Decl., # 7 Exhibits AAA−ZZZ to Sun Decl., # 8 Exhibits AAAA−SSSS to Sun Decl., # 9 Exhibits TTTT−ZZZZ to Sun Decl., # 10 Exhibits AAAAA−LLLLL to Sun Decl., # 11 Exhibits MMMMM−YYYYY to Sun Decl.)(Castillo, Jorge) (Entered: 05/12/2014)
260 ORDER re 259 Joint Stipulation. ORDERED that Docs. 252 , 253 , 254 , 255 and 256 are deemed filed and sealed. Signed by Judge David G Campbell on 5/22/14. (MAP) (Entered: 05/22/2014)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 43 of 51

05/30/2014 05/30/2014 05/30/2014 05/30/2014 05/30/2014 05/30/2014
06/11/2014
06/19/2014
06/19/2014

261 RESPONSE to Motion re: 247 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Tumlin, Karen) (Entered: 05/30/2014)
262 * RESPONSE to Defendants' 248 Separate Statement of Facts in Support of Defendants' Motion for Summary Judgment on Plaintiffs' Equal Protection Claim and Plaintiffs' Statement of Additional Undisputed Facts Precluding Summary Judgment by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Preciado, Nora) * Modified to correct event and add document linkage on 6/2/2014 (LAD). (Entered: 05/30/2014)
263 * DECLARATION of NORA A. PRECIADO IN SUPPORT OF PLAINTIFFS RESPONSE TO DEFENDANTS SEPARATE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT re: 262 Response by Plaintiffs Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Index of Exhibits, # 2 Exhibits A − E)(Preciado, Nora) * Modified to correct document linkage on 6/2/2014 (LAD). (Entered: 05/30/2014)
264 NOTICE of Confidential Doc. Designation Lodging pursuant to LRCiv.5.6.d. (Hood, Sean) (Entered: 05/30/2014)
265 * (Filed at Doc. 271 ) SEALED LODGED Proposed Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) Modified on 6/19/2014 (LAD). (Entered: 05/30/2014)
266 * (Filed at Doc. 272 ) SEALED LODGED Proposed Defendants' Responses and Objections to Plaintiffs' Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment and Defendants' Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit 1 to 3, # 2 Exhibit 4 to 5, # 3 Exhibit 6 to 9, # 4 Exhibit 10 to 11, # 5 Exhibit 12 to 16, # 6 Exhibit 17 to 20, # 7 Exhibit 21 to 23, # 8 Exhibit 24 to 28, # 9 Exhibit 29 to 36)(Hood, Sean) Modified on 6/19/2014 (LAD). (Entered: 05/30/2014)
267 STIPULATION Concerning Redacted Versions of Filings Previously Made Under Seal: (1) Defendants Opposition to Plaintiffs Motion for Summary Judgment and Permanent Injunction and (2) Defendants Responses and Objections to Plaintiffs Statement of Facts in Support of Plaintiffs Motion for Summary Judgment and Defendants Separate Statement of Facts in Support of Opposition to Plaintiffs Motion for Summary Judgment by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Defendants' Opposition to Plaintiffs' Motion for Summary Judgment, # 2 Defendants' Responses and Objections to Plaintiffs' Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment and Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment, # 3 Exhibit List and Exhibits 1 to 3, # 4 Exhibit 4 and 5, # 5 Exhibit 6 to 10, # 6 Exhibit 11 to 13, # 7 Exhibit 14 to 19, # 8 Exhibit 20 to 22, # 9 Exhibit 23 to 28, # 10 Exhibit 29 to 36, # 11 Text of Proposed Order)(Hood, Sean) (Entered: 06/11/2014)
268 ORDER granting 267 Stipulation: The redacted versions of (1) Defendants' Opposition to Plaintiffs' Motion For Summary Judgment and Permanent Injunction and (2) Defendants' Responses and Objections to Plaintiffs' Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment and Defendants' Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment (including all exhibits thereto), which are appended to the Parties' stipulation, are deemed filed and not sealed. The prior versions of these documents, which were filed under seal (Docs. 265 and 266 ), are deemed filed and sealed. The Clerk is directed to accept for filing under seal Docs. 265 and 266 . Signed by Judge David G Campbell on 6/19/14. (LAD) (Entered: 06/19/2014)
269 * RESPONSE (OPPOSITION) to 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION filed by Janice K Brewer, John S Halikowski, Stacey K

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 44 of 51

06/19/2014
06/19/2014 06/19/2014
06/20/2014 06/20/2014 06/20/2014 06/20/2014 06/20/2014 07/02/2014
07/07/2014

Stanton. (LAD) * Modified to add text − redacted − on 6/19/2014 (LAD). (Entered: 06/19/2014)
270 RESPONSES AND OBJECTIONS to Plaintiffs' Statement of Facts in Support of their Motion for Summary Judgment 255 and Separate Statement of Facts in Support of Response (Opposition) to Plaintiffs' Motion for Summary Judgment 269 by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit List and Exhibits 1−3, # 2 Exhibits 4−5, # 3 Exhibits 6−10, # 4 Exhibits 11−13, # 5 Exhibits 14−19, # 6 Exhibits 20−22, # 7 Exhibits 23−28, # 8 Exhibits 29−36) (redacted) (LAD) (Entered: 06/19/2014)
271 SEALED RESPONSE (OPPOSITION) to 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (LAD) (Entered: 06/19/2014)
272 SEALED RESPONSES and Objections to Plaintiffs' Statement of Facts 255 in Support of Plaintiffs' Motion for Summary Judgment and Defendants' SEPARATE STATEMENT of Facts in Support of Response (Opposition) to Plaintiffs' Motion for Summary Judgment 269 filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Index of Exhibits, Exhibits 1−3, # 2 Exhibits 4−5, # 3 Exhibits 6−9, # 4 Exhibits 10−11, # 5 Exhibits 12−16, # 6 Exhibits 17−20, # 7 Exhibits 21−23, # 8 Exhibits 24−28, # 9 Exhibits 29−36)(LAD) (Entered: 06/19/2014)
273 REPLY to Response to Motion re: 247 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit Exhibit A)(Hood, Sean) (Entered: 06/20/2014)
274 OBJECTION re: 262 Brief − Response Plaintiffs' Statement of Additional Facts by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 06/20/2014)
275 *Sealed PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) *Modified from lodged to filed per case manager on 6/24/2014 (SSU). (Entered: 06/20/2014)
276 *Sealed PLAINTIFFS' REPLY STATEMENT OF FACTS re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION. Filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Castillo, Jorge) *Modified from lodged to filed per case manager on 6/24/2014 (SSU). (Entered: 06/20/2014)
277 * DECLARATION of Jorge M Castillo in Support re: 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION DECLARATIONS OF CASTILLO AND GOLUB filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Declaration of Aaron Golub)(Castillo, Jorge) * Modified to correct event on 6/23/2014 (LAD). (Entered: 06/20/2014)
278 STIPULATION re: 277 Affidavit in Support of Motion, 276 Sealed Lodged Proposed Document, 275 Sealed Lodged Proposed Document to File and Seal Lodged Reply and Supporting Documents and Publicly File Redacted Versions of Reply and Supporting Documents by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTION, # 2 PLAINTIFFS RESPONSE/OBJECTIONS TO DEFENDANTS SEPARATE STATEMENT OF FACTS IN SUPPORT OF OPPOSITION TO SUMMARY JUDGMENT, # 3 Text of Proposed Order)(Espiritu, Nicholas) (Entered: 07/02/2014)
279 ORDER. The Ninth Circuit has today issued an opinion reversing the Court's denial of a preliminary injunction and addressing many of the issues raised in the parties' current summary judgment briefing. The Ninth Circuit has directed the Court to enter a preliminary injunction in favor of Plaintiffs. By July 16, 2014, the parties shall provide the Court with (a) an agreed form of preliminary injunction and (b) supplemental

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 45 of 51

07/08/2014 07/08/2014
07/21/2014 07/21/2014 07/24/2014 07/25/2014 07/30/2014 07/30/2014 07/30/2014 07/30/2014

memoranda from each side, not to exceed 8 pages for each side, addressing the effect of the Ninth Circuit's decision on the issues raised in the summary judgment briefing. Signed by Judge David G Campbell on 7−7−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 07/07/2014)
280 MOTION to Vacate 279 Order to Provide the Court with an Agreed Form of Preliminary Injunction and Supplemental Memoranda −and− Alternative Motion for an Extension of Time to Comply with Order by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean). (Entered: 07/08/2014)
281 ORDER granting in part and denying in part 280 Motion to Vacate. Contrary to Defendants' assertions, the Court clearly has jurisdiction to order supplemental briefing on the summary judgment motions currently pending before the Court. The Court recognizes that the ordered preliminary injunction cannot be entered until the mandate issues from the Ninth Circuit, but in the meantime can require the parties to agree upon language of any injunction that would be entered. Given the personal schedules of defense counsel, however, the Court will change the date for the submissions required by Docket 279 to July 30, 2014. Signed by Judge David G Campbell on 7−8−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 07/08/2014)
282 MOTION FOR INJUNCTION PENDING APPEAL re: 281 Order on Motion to Vacate, 279 Order, 280 MOTION to Vacate 279 Order to Provide the Court with an Agreed Form of Preliminary Injunction and Supplemental Memoranda −and− Alternative Motion for an Extension of Time to Comply with Order by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order Proposed Order)(Espiritu, Nicholas) (Entered: 07/21/2014)
283 ORDER. Plaintiffs have filed a motion for an injunction pending appeal and have sought expedited consideration. Doc. 282. In light of the request for expedited treatment, Defendants shall file a response to the motion by noon on July 24, and Plaintiffs shall file a reply by the close of business on July 25, 2014. Signed by Judge David G Campbell on 7−21−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 07/21/2014)
284 RESPONSE in Opposition re: 282 MOTION FOR INJUNCTION PENDING APPEAL re: 281 Order on Motion to Vacate, 279 Order, 280 MOTION to Vacate 279 Order to Provide the Court with an Agreed Form of Preliminary Injunction and Supplemental Memoranda −and− Alternative Mot filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit 1)(Northup, Doug) (Entered: 07/24/2014)
285 REPLY to Response to Motion re: 282 MOTION FOR INJUNCTION PENDING APPEAL re: 281 Order on Motion to Vacate, 279 Order, 280 MOTION to Vacate 279 Order to Provide the Court with an Agreed Form of Preliminary Injunction and Supplemental Memoranda −and− Alternative Mot filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Viramontes, Victor) (Entered: 07/25/2014)
286 ORDER pursuant to 278 Stipulation: Redacted versions of Plaintiff's reply in support of their motion for summary judgment and permanent injuction and Plaintiff's response/objections to statement of facts are deemed filed and not sealed. Unredacted versions of these documents are deemed filed and sealed. Signed by Judge David G Campbell on 7/30/2014. (DGC, nvo) (Entered: 07/30/2014)
287 BRIEF Defendants' Supplemental Memorandum Addressing the Effect of the Ninth Circuit's Decision by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Hood, Sean) (Entered: 07/30/2014)
288 NOTICE re: Filing Proposed Form of Order by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Attachments: # 1 Exhibit 1 − Proposed Order Granting Motion for Preliminary Injunction)(Northup, Doug) (Entered: 07/30/2014)
289 BRIEF re: Ninth Circuit's Decision Pursuant to Court's Order (Doc. 279) by Plaintiffs Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 46 of 51

07/30/2014 08/01/2014
11/24/2014 12/11/2014 12/18/2014 12/18/2014 12/18/2014

Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Sun, Christine) (Entered: 07/30/2014)
290 NOTICE re: Proposed Order Granting Motion for Preliminary Injunction, Pursuant to Court Order (Docs. 279, 281) by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Attachments: # 1 Text of Proposed Order)(Sun, Christine) (Entered: 07/30/2014)
291 ORDER denying 282 motion for injunction pending appeal. The Court previously held that Plaintiffs were not entitled to a preliminary injunction, stating its reasons in detail. Had Plaintiffs sought an injunction pending appeal when their appeal was first filed, the Court would have denied the request for the same reasons it denied the preliminary injunction. A panel of the Ninth Circuit has now ruled that the Court erred in denying the preliminary injunction, and Plaintiffs ask the Court to enter an injunction pending appeal on the basis of the panel's reasoning. If the panel decision was final, the Court would readily agree. But the decision is not final. The mandate has not issued, and Defendants have sought a rehearing and rehearing en banc. "Until the mandate has issued, opinions can be, and regularly are, amended or withdrawn, by the merits panel at the request of the parties pursuant to a petition for panel rehearing, in response to an internal memorandum from another member of the court who believes that some part of the published opinion is in error, or sua sponte by the panel itself." Carver v. Lehman, 558 F.3d 869, 878−79 (9th Cir. 2009). Opinions can also be changed through a rehearing en banc. Thus, even if Plaintiffs are correct that Rule 62(c) authorizes the Court to enter the requested injunction while the appeal remains pending (an issue the Court need not decide), the basis for the requested injunction −− the panel's reasoning on the merits of the preliminary injunction −− is not final. Until it is, the Court does not find a basis for entering the injunction requested by Plaintiffs, for reasons stated in its original preliminary injunction ruling. Once the Court of Appeals renders a final decision on this matter, the Court will promptly comply with its direction. Signed by Judge David G Campbell on 8−1−14. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 08/01/2014)
292 NOTICE re: 9th Circuit Denial of Defendants' Rehearing Petition by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos . (Attachments: # 1 Affidavit)(Martinez−Olguin, Araceli) (Entered: 11/24/2014)
293 NOTICE re: Filing Application to Stay the Mandate of the United States Court of Appeals for the Ninth Circuit Pending Disposition of a Petition for Writ of Certiorari by Janice K Brewer, John S Halikowski, Stacey K Stanton . (Attachments: # 1 Exhibit 1 − Application to Stay the Mandate, # 2 Appendix to Application − Ex. A, # 3 Appendix to Application − Ex. B, # 4 Appendix to Application − Ex. C − F, # 5 Appendix to Application − Ex. G − J)(Berg, Timothy) (Entered: 12/11/2014)
294 MANDATE of USCA: 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 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. re: 13−16248 131 Notice of Appeal. (Attachments: # 1 Opinion, # 2 Order, # 3 NDA)(ALS) (Entered: 12/18/2014)
295 PRELIMINARY INJUNCTION. Signed by Judge David G Campbell on 12/18/2014. (DGC, nvo) (Entered: 12/18/2014)
296 ORDER. Oral argument set as to 251 MOTION for Summary Judgment AND FOR PERMANENT INJUNCTION, 247 MOTION for Summary Judgment on Plaintiffs' Equal Protection Claim: Oral Argument set for 1/7/2015 at 03:30 PM in Courtroom 603, 401 West Washington Street, Phoenix, AZ 85003 before Judge David G Campbell. The parties will be limited to 30 minutes per side. The hearing will last no more than 1 hour. Signed by Judge David G Campbell on 12/18/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC, nvo) (Entered: 12/18/2014)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 47 of 51

12/22/2014 12/24/2014
12/31/2014 01/07/2015

297 MOTION to Withdraw as Attorney (Co−Counsel) by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Text of Proposed Order)(Northup, Doug) (Entered: 12/22/2014)
298 ORDER granting 297 Motion to Withdraw. Attorney Joseph Sciarrotta, Jr. shall be withdrawn as co−counsel for Governor Brewer in this action. Mr. Sciarrotta's name shall be removed from the Court's docket as co−counsel for Governor Brewer and from the Court's service list. Signed by Judge David G Campbell on 12/24/14.(LAD) (Entered: 12/24/2014)
299 NOTICE of Appearance by Ashley Morgan Gomez on behalf of Janice K Brewer, John S Halikowski, Stacey K Stanton. (Gomez, Ashley) (Entered: 12/31/2014)
300 MINUTE ENTRY for proceedings held before Judge David G Campbell: Motion Hearing held on 1/7/2015. ORDERED taking under advisement 247 Motion for Summary Judgment; taking under advisement 251 Motion for Summary Judgment. Court will issue an order.

01/07/2015 01/08/2015 01/08/2015
01/08/2015 01/09/2015
01/22/2015

APPEARANCES: Tanya Broder, Nicholas Espiritu, Linton Joaquin,Araceli Martinez−Olguin, Jennifer Newell, Daniel Pochoda, Nora Preciado, Karen Tumlin for Plaintiffs. Sean Hood, Doug Northup, and Ashley Gomez for Defendants (Court Reporter Elaine Cropper.) Hearing held 3:30 PM to 4:35 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 01/07/2015)
301 TRANSCRIPT REQUEST Hearing on Motion for Summary Judgment by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on January 7, 2015, Judge David G Campbell hearing judge(s). (Tumlin, Karen) (Entered: 01/07/2015)
302 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 1/7/2015, Judge David G Campbell hearing judge(s). (Northup, Doug) (Entered: 01/08/2015)
303 NOTICE OF DEFICIENCY: Pursuant to the Federal Rules of Civil Procedure, and the General Orders, Local Rules, and CM/ECF Administrative Policies and Procedures Manual of this Court, the following deficiency has been found with the electronically filed document, Transcript Request Doc. #301 filed by Karen Tumlin: 1) AO435 Form, box 19 is missing an official signature. ACTION REQUIRED BY THE REQUESTOR: The deficiency must be corrected within one (1) business day of this notice. Acceptable electronic signature format is (/s/Typewritten Name of E−Filer) where the requestor's wet signature would otherwise appear. The requestor must re−file the entire document AO435 Transcript Order form. The requestor shall re−file as an AMENDED Transcript Request. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) Modified on 1/8/2015 (RAP). (Entered: 01/08/2015)
304 TRANSCRIPT REQUEST *AMENDED Hearing on Motion for Summary Judgment by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on January 7, 2015, Judge David G Campbell hearing judge(s). (Tumlin, Karen) *Modified on 1/8/2015 (RAP). (Entered: 01/08/2015)
305 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 01/07/2015, before Judge David G. Campbell. (Court Reporter: Elaine Cropper). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/30/2015. Redacted Transcript Deadline set for 2/9/2015. Release of Transcript Restriction set for 4/9/2015. (RAP) (Entered: 01/09/2015)
306 ORDER AND PERMANENT INJUNCTION: Plaintiffs' 251 Motion for Summary Judgment and a Permanent Injunction is granted. Defendants' 247 Motion for Summary Judgment is denied. Defendants and their officials, agents, and employees,

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 48 of 51

01/28/2015 01/28/2015 02/03/2015 02/04/2015 02/04/2015 02/18/2015
02/20/2015 02/20/2015 02/20/2015 03/03/2015 03/03/2015

and all persons acting in concert or participating with them, are permanently enjoined from enforcing any policy or practice by which the Arizona Department of Transportation refuses to accept Employment Authorization Documents, issued under DACA, as proof that the document holders are authorized under federal law to be present in the United States for purposes of obtaining a driver's license or state identification card. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 1/22/2015. (LFIG) (Entered: 01/22/2015)
307 NOTICE re: [PROPOSED] FINAL JUDGMENT by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos re: 306 Order Dismissing Case . (Tumlin, Karen) (Entered: 01/28/2015)
308 STIPULATION re: 306 Order Dismissing Case, 307 Notice (Other) (Joint Stipulation) by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order [PROPOSED])(Tumlin, Karen) (Entered: 01/28/2015)
309 OBJECTION re: 307 Notice (Other) Plaintiffs' Proposed Final Judgment by Defendants Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) (Entered: 02/03/2015)
310 ORDER pursuant to 308 Stipulation: Plaintiffs may submit their petition for attorneys' fees and costs on or before (1) 90 days from the deadline for Defendants' notice of appeal re the 1/22/15 order, or 90 days from the date of final resolution of the appeal of the Court's 1/22/15 order. Signed by Judge David G Campbell on 2/4/2015. (DGC, nvo) (Entered: 02/04/2015)
311 REPLY re: 307 Notice (Other), 309 Objection to Plaintiffs' Proposed Final Judgment by Plaintiffs Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Newell, Jennifer) (Entered: 02/04/2015)
312 FINAL JUDGMENT − 1. Plaintiffs' motion for summary judgment and a permanent injunction (Doc. 251 ) is granted. 2. Defendants' motion for summary judgment (Doc. 247 ) is denied. 3. Defendants and their officials, agents, and employees, and all persons acting in concert or participating with them, are permanently enjoined from enforcing any policy or practice by which the Arizona Department of Transportation refuses to accept Employment Authorization Documents, issued under the DACA program announced by Secretary Napolitano's June 15, 2012 memorandum, as proof that the document holders are authorized under federal law to be present in the United States for purposes of obtaining a driver's license or state identification card. 4. The Clerk is directed to terminate this action. IT IS ORDERED AND ADJUDGED THAT JUDGMENT, pursuant to Federal Rule of Civil Procedure 58(a), is entered in favor of the Plaintiffs and against the Defendants. Signed by Judge David G Campbell on 2/18/15. (LAD) (Entered: 02/18/2015)
313 NOTICE of Appearance by John R Lopez, IV on behalf of Janice K Brewer, John S Halikowski, Stacey K Stanton. (Lopez, John) (Entered: 02/20/2015)
314 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 306 Order Dismissing Case, 312 Judgment, Terminate Motions by Janice K Brewer, John S Halikowski, Stacey K Stanton. Filing fee received: $ 505.00, receipt number 0970−11374019. (Attachments: # 1 Representation Statement)(Northup, Doug) (Entered: 02/20/2015)
315 USCA Case Number re: 314 Notice of Appeal. Case number 15−15307, Ninth Circuit. (Copies sent by the Ninth Circuit.) (KMG) (Entered: 02/20/2015)
316 TRANSCRIPT REQUEST by Janice K Brewer, John S Halikowski, Stacey K Stanton for proceedings held on 3/14/2013, Judge David G Campbell hearing judge(s). (Northup, Doug) (Entered: 03/03/2015)
317 TRANSCRIPT REQUEST by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on 3/14/2013, Judge David G Campbell hearing judge(s). (Tumlin, Karen) (Entered: 03/03/2015)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 49 of 51

03/04/2015 03/19/2015
02/10/2017 02/10/2017 02/28/2017
03/07/2017 04/06/2018 06/14/2018 06/14/2018 06/15/2018 06/29/2018 06/29/2018 06/29/2018 06/29/2018 06/29/2018

318 TRANSCRIPT REQUEST AMENDED by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos for proceedings held on 3/14/2013, Judge David G Campbell hearing judge(s). (Tumlin, Karen) (Entered: 03/04/2015)
319 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Conference Proceedings for date of 03/14/2013 before Judge David G. Campbell re: 314 Notice of Appeal. (Court Reporter: Patricia Lyons). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/9/2015. Redacted Transcript Deadline set for 4/20/2015. Release of Transcript Restriction set for 6/17/2015. (RAP) (Entered: 03/20/2015)
320 RECALLED by (Doc. 321 MANDATE of USCA affirming District Court decision re: 15−15307 as to 314 Notice of Appeal filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Amended Opinion, # 2 NDA)(LSP) Modified on 2/10/2017 (LSP). (Entered: 02/10/2017)
321 ORDER of USCA recalling mandate issued 2/10/2017 re: 15−15307 as to 314 Notice of Appeal filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (LSP) (Entered: 02/10/2017)
322 STIPULATION Regarding Extension of Time to File Petition for Attorneys' Fees and Costs [Joint] by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer) (Entered: 02/28/2017)
323 ORDER pursuant to 322 Stipulation: Plaintiffs may submit their petition for attorneys' fees and costs, if any, in this matter at any time up to 90 days from the date of final resolution of any appeal, including any petition for certiorari. Signed by Judge David G Campbell on 3/7/2017. (DGC, nvo) (Entered: 03/07/2017)
324 MANDATE of USCA affirming District Court Decision, re: 15−15307 as to 314 Notice of Appeal filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Opinion, # 2 Amended Opinion, # 3 Order Denying Petition for Rehearing En Banc) (ATD) (Entered: 04/06/2018)
325 NOTICE of Appearance by Kathleen E Brody on behalf of Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Brody, Kathleen) (Entered: 06/14/2018)
326 STIPULATION Joint Stipulation Concerning Discovery and Motion Schedule by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Text of Proposed Order)(Brody, Kathleen) (Entered: 06/14/2018)
327 ORDER pursuant to 326 Stipulation: Plaintiffs' petition for attorneys' fees due 7/13/2016; response due 8/10/2018, reply due 8/31/2018. Signed by Judge David G Campbell on 6/15/2018. (DGC, nvo) (Entered: 06/15/2018)
328 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Linton Joaquin. (Joaquin, Linton) (Entered: 06/29/2018)
329 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Karen Cassandra Tumlin. (Tumlin, Karen) (Entered: 06/29/2018)
330 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Nora A Preciado. (Preciado, Nora) (Entered: 06/29/2018)
331 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Nicholas David Espiritu. (Espiritu, Nicholas) (Entered: 06/29/2018)
332 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Shiu−Ming Cheer. (Cheer, Shiu−Ming) (Entered: 06/29/2018)

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 50 of 51

06/29/2018 07/11/2018 07/12/2018 07/12/2018 07/13/2018
08/10/2018 08/10/2018 08/31/2018

333 NOTICE TO FILER OF DEFICIENCY re: 329 Notice of Change of Address/Firm Name (Attorney), 332 Notice of Change of Address/Firm Name (Attorney), 331 Notice of Change of Address/Firm Name (Attorney), 330 Notice of Change of Address/Firm Name (Attorney), 328 Notice of Change of Address/Firm Name (Attorney). Document not in compliance with LRCiv 7.1(a)(3) − Party names must be capitalized using proper upper and lower case type. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (EJA) (Entered: 07/02/2018)
334 MOTION for Admission Pro Hac Vice as to attorney Julia A. Gomez Hernandez by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Gomez Hernandez, Julia) (Entered: 07/11/2018)
335 ORDER pursuant to General Order 09−08 terminating 334 Motion for Admission Pro Hac Vice as it is filed incorrectly into the civil case. Refiled correctly into master case and filing fee paid. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/12/2018)
Remark: Pro hac vice motion granted for Julia A Gomez Hernandez on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/12/2018)
336 MOTION for Attorney Fees by Arizona Dream Act Coalition, Jesus Castro−Martinez, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Statement of Consultation, # 2 Declaration of Carol Sobel, # 3 Exhibits 1−8 to Sobel Declaration, # 4 Declaration of Richard Pearl, # 5 Exhibits A−D to Pearl Declaration, # 6 Declaration of Julia A. Gomez, # 7 Exhibit A to Gomez Declaration, # 8 Exhibit B Part I to Gomez Declaration, # 9 Exhibit B Part II to Gomez Declaration, # 10 Exhibit C to Gomez Declaration, # 11 Exhibit D to Gomez Declaration, # 12 Declaration of Jennifer Chang Newell, # 13 Exhibits A−J1 of Newell Declaration, # 14 Exhibit J2 to Newell Declaration, # 15 Exhibit J3 to Newell Declaration, # 16 Exhibit J4 to Newell Declaration, # 17 Exhibit J5 to Newell Declaration, # 18 Exhibit J6 and K to Newell Declaration, # 19 Declaration of Linton Joaquin, # 20 Exhibits A−F to Joaquin Declaration, # 21 Exhibit G to Joaquin Declaration, # 22 Exhibit H Part I to Joaquin Declaration, # 23 Exhibit H Part II to Joaquin Declaration, # 24 Declaration of Kathleen Brody with Exhibits A−E, # 25 Declaration of Daniel Pochoda, # 26 Text of Proposed Order)(Gomez Hernandez, Julia) (Entered: 07/13/2018)
337 RESPONSE to Motion re: 336 MOTION for Attorney Fees Defendants' Response to Plaintiffs' Memorandum in Support of Motion for Award of Attorneys' Fees and Related Non−Taxable Expenses filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Northup, Doug) (Entered: 08/10/2018)
338 DECLARATION of Douglas C. Northup in Support of Defendants' Response to Plaintiffs' Memorandum in Support of Motion For Award of Attorneys' Fees and Related Non−Taxable Expenses re: 337 Response to Motion . filed by Janice K Brewer, John S Halikowski, Stacey K Stanton. (Attachments: # 1 Exhibit Exhibits 1−2, # 2 Exhibit Exhibits 3−4, # 3 Exhibit Exhibits 5−6, # 4 Exhibit Exhibits 7−9, # 5 Exhibit Exhibits 10−12, # 6 Exhibit Exhibit 13, # 7 Exhibit Exhibit 14, # 8 Exhibit Exhibits 15−21, # 9 Exhibit Exhibits 22−24)(Northup, Doug) (Entered: 08/10/2018)
339 *REPLY to Response to Motion re: 336 MOTION for Attorney Fees filed by Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Attachments: # 1 Affidavit Supplemental Declaration of Linton Joaquin, # 2 Exhibit A − Billing Judgment NILC, # 3 Exhibit B − Post 712 Billables NILC, # 4 Exhibit C − August 2018 Total Lodestar NILC, # 5 Exhibit D − Plaintiffs August 2018 Total Lodestar, # 6 Exhibit E − Vo v Gee Fee MPA [Doc 111.03], # 7 Exhibit F − Receipts NILC, # 8 Affidavit Supplemental Declaration of Julia A Gomez, # 9 Exhibit A − Receipts MALDEF, # 10 Affidavit Supplemental Declaration Jennifer C Newell, # 11 Exhibit A − Receipts

Case: 2:12-cv-2546 As of: 05/15/2020 08:51 AM MST 51 of 51

08/31/2018
11/02/2018 11/19/2018 12/10/2018

ACLU−IRP, # 12 Exhibit B − Timesheets ACLU−IRP)(Espiritu, Nicholas) *Modified on 9/5/2018 to correct name of attachment 12 (ATD). (Entered: 08/31/2018)
340 DECLARATION of KATHLEEN E. BRODY IN SUPPORT OF PLAINTIFFS MOTION FOR AWARD OF ATTORNEYS FEES AND NON− TAXABLE EXPENSES re: 339 Reply to Response to Motion by Plaintiffs Arizona Dream Act Coalition, Carla Chavarria, Jose Ricardo Hinojos, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez−Gallegos. (Espiritu, Nicholas) (Entered: 08/31/2018)
341 NOTICE of Attorney Withdrawal Karen Cassandra Tumlin filed by Karen Cassandra Tumlin. (Tumlin, Karen) (Entered: 11/02/2018)
342 NOTICE of Attorney Withdrawal Victor Viramontes, Jorge M. Castillo filed by Julia Alejandra Gomez Hernandez. (Gomez Hernandez, Julia) (Entered: 11/19/2018)
343 ORDER granting in part and denying in part 336 Motion for Attorney Fees. See Order for further information. Signed by Senior Judge David G Campbell on 12/10/2018.(DGC, nvo) (Entered: 12/10/2018)

 
 (ORDER LIST: 574 U.S.)

WEDNESDAY, DECEMBER 17, 2014

14A625

ORDER IN PENDING CASE
BREWER, GOV. OF AZ, ET AL. V. ARIZONA DREAM ACT COALITION, ET AL.
The application for stay presented to Justice Kennedy and by him referred to the Court is denied.
Justice Scalia, Justice Thomas, and Justice Alito would grant the application for stay.