FOR PUBLICATION

UNITED STATES 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,

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.

No. 15-15307

D.C. No.

2:12-cv-02546-

DGC

ORDER AND

AMENDED

OPINION

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
2 ARIZ. DREAM ACT COAL. V. BREWER

Filed April 5, 2016

Amended February 2, 2017

Before: Harry Pregerson, Marsha S. Berzon,

and Morgan Christen, Circuit Judges.

Order;

Dissent to Order by Judge Kozinski;

Opinion by Judge Pregerson;

Concurrence by Judge Berzon

SUMMARY*

Civil Rights

The panel amended its prior opinion filed on April 5,

2016, appearing at 818 F.3d 901 (9th Cir. 2016), denied a

petition for rehearing en banc on behalf of the court, and

ordered that no further petitions for rehearing will be

accepted.

Dissenting from the denial of rehearing en banc, Judge

Kozinski, joined by Judges O’Scannlain, Bybee, Callahan,

Bea and N.R. Smith, disagreed with the conclusion that

President Obama’s program, created by an executive

memorandum, preempted state law. Judge Kozinski noted

that Congress never approved the deferred-action program,

but rather the President adopted it on his own initiative after

Congress repeatedly declined to pass legislation that would

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ARIZ. DREAM ACT COAL. V. BREWER 3

have authorized a similar program. Judge Kozinski stated

that the panel opinion failed to show that Congress evinced a

“clear and manifest purpose” to delegate to the executive

branch the authority to preempt state law. Judge Kozinski

stated that Arizona’s control over its drivers’ licenses was

well within the mainstream of the state’s police power.

The panel affirmed the district court’s summary judgment

in favor of plaintiffs and affirmed the district court’s order

entering a permanent injunction that enjoined Arizona’s

policy of denying Employment Authorization Documents

issued under the Deferred Action for Childhood Arrivals

program as satisfactory proof of authorized presence under

federal law in the United States.

Plaintiffs are five individual recipients of deferred action

under the Deferred Action for Childhood Arrivals (“DACA”)

program, and the Arizona DREAM Act Coalition. DACA

recipients are noncitizens who were brought to this country

as children. The DACA program, authorized by a federal

executive order, permits recipients to remain in the United

States for some period of time as long as they meet certain

conditions.

The panel found that DACA recipients are similarly

situated in all relevant respects to other noncitizens eligible

for drivers’ licenses under Arizona’s policy. The panel found

that Arizona’s refusal to rely on Employment Authorization

Documents 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. 

The panel, however, applied constitutional avoidance and

found that it could reach the same result on the ground that
4 ARIZ. DREAM ACT COAL. V. BREWER

the Immigration and Nationality Act occupies the field of

Arizona’s classification of noncitizens with regard to whether

their presence is authorized by federal law. The panel

concluded that the Immigration and NationalityAct preempts

states from engaging in their very own categorization of

immigrants for the purpose of denying some of them drivers’

licenses. Because Arizona created a new immigration

classification when it adopted its policy regarding driver’s

license eligibility, it impermissibly strayed into an exclusive

domain that Congress, through the Immigration and

Nationality Act, delegated to the executive branch.

Concurring, in light of the dissent from the denial of

rehearing en banc, Judge Berzon stated that she joined the

panel opinion in full, but wrote separately 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. Additionally, Judge Berzon stated that the

preemption issues ultimately decided in this case could 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.

COUNSEL

Dominic Draye (argued), Deputy Solicitor General; John

Robert Lopez, IV, Solicitor General; Office of the Attorney

General, Phoenix, Arizona; Timothy Berg, Sean Hood, and

Douglas C. Northup, Fennemore Craig P.C., Phoenix,

Arizona; for Defendants-Appellants.
ARIZ. DREAM ACT COAL. V. BREWER 5

Karen Tumlin (argued), Shiu-Ming Cheer, Nicholás Espíritu,

Linton Joaquin, and Nora A. Preciado, National Immigration

Law Center, Los Angeles, California; Tanya Broder, National

Immigration Law Center, Berkeley, California; Jorge Martin

Castillo and Victor Viramontes, Mexican American Legal

Defense Educational Fund, Los Angeles, California; Lee

Gelernt, American Civil Liberties Union Foundation

Immigrants’ Rights Project, New York, New York; James

Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix,

Arizona; Jennifer C. Newell, Michael K.T. Tan, and Cecillia

D. Wang, American Civil Liberties Union Foundation

Immigrants’ Rights Project, San Francisco, California; for

Plaintiffs-Appellees.

Dale Wilcox and Michael M. Hethmon, Washington, D.C., as

and for Amicus Curiae Immigration Reform Law Institute.

Lindsey Powell, United States Department of Justice,

Washington D.C., for Amicus Curiae United States of

America.

John S. Miles, Jeremiah L. Morgan, William J. Olson, Robert

J. Olson, and Herbert W. Titus, William J. Olson P.C.,

Vienna, Virginia; MichaelConnelly, U.S. Justice Foundation,

Ramona, California; for Amici Curiae English First

Foundation, English First, U.S. Justice Foundation, Gun

Owners Foundation, Gun Owners of America, Inc., and

Conservative Legal Defense and Education Fund.
6 ARIZ. DREAM ACT COAL. V. BREWER

ORDER

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.

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.

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
ARIZ. DREAM ACT COAL. V. BREWER 7

therefore refuses to issue drivers’ licenses to the program’s

beneficiaries.

Does the SupremacyClause 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 Act (INA). Amended op. at 36. 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
8 ARIZ. DREAM ACT COAL. V. BREWER

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 panel says repeatedly that Arizona has

created “immigration classifications not found in federal

law.” Amended op. at 40 n.8; see also id. at 43, 49. 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 44–47. 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,1the opinion’s slippery preemption theory simply

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 29. 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
ARIZ. DREAM ACT COAL. V. BREWER 9

isn’t one of them. See, e.g., Noah Feldman, Obama’s Wobbly

Legal 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 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

preemption).
10 ARIZ. DREAM ACT COAL. V. BREWER

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 36

(emphasis added); see also id. at 28. 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 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,”

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 25–28. This does not in any way help establish whether Congress

intended the INA to let the executive branch preempt the states.
ARIZ. DREAM ACT COAL. V. BREWER 11

beyond which the alien is “deemed to be unlawfully present

in the United States.” Amended op. at 41–42 (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 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 42 (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).

3 Compare Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 916 (9th Cir.

2016) with amended op. at 41–42 (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.
12 ARIZ. DREAM ACT COAL. V. BREWER

Nevertheless, the panel insists that this evidence “directly

undermines” Arizona’s response to DACA. Amended op. at

41. 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 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

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).
ARIZ. DREAM ACT COAL. V. BREWER 13

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 publication—never once mentions

preemption. See 457 U.S. at 205–30.5

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 34 (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 preempted.” 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

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.
14 ARIZ. DREAM ACT COAL. V. BREWER

state law upheld in De Canas—which prevented California

businesses from hiring illegal 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 36. This conclusion

finds no support in the actual text of the INA. It receives no

help from the Court’s 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

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 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.
ARIZ. DREAM ACT COAL. V. BREWER 15

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,

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.,

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.

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).
16 ARIZ. DREAM ACT COAL. V. BREWER

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.

OPINION

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
ARIZ. DREAM ACT COAL. V. BREWER 17

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 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.,
18 ARIZ. DREAM ACT COAL. V. BREWER

Local Union No. 1506, 409 F.3d 1199, 1211 (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.

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 thirty-one by June 15, 2012. See

Memorandum from Secretary Janet Napolitano, Exercising
ARIZ. DREAM ACT COAL. V. BREWER 19

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, “Re-Affirming 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
20 ARIZ. DREAM ACT COAL. V. BREWER

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 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).
ARIZ. DREAM ACT COAL. V. BREWER 21

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 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

preliminaryinjunction prohibitingDefendants 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.
22 ARIZ. DREAM ACT COAL. V. BREWER

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

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
ARIZ. DREAM ACT COAL. V. BREWER 23

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 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
24 ARIZ. DREAM ACT COAL. V. BREWER

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 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 clarityand 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
ARIZ. DREAM ACT COAL. V. BREWER 25

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 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.
26 ARIZ. DREAM ACT COAL. V. BREWER

Putting aside that limitation, the INA explicitly authorizes

the Secretaryof 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 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

CustomsEnforcement, on “ExercisingProsecutorial DiscretionConsistent

with the Civil Immigration Enforcement Priorities of the Agency for the

Apprehension, Detention, and Removal of Aliens” (June 17, 2011), and
ARIZ. DREAM ACT COAL. V. BREWER 27

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 AntiDiscrimination 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

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).
28 ARIZ. DREAM ACT COAL. V. BREWER

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.

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

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 familymembers 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 ImmigrationAct

of 1990 § 303, Public Law 101-649 (Nov. 29, 1990);

https://www.gpo.gov/fdsys/pkg/FR-1994-12-06/html/94-30088.htm. And

nationals of Liberia were granted deferred enforced departure until

September 30, 2016, http://www.uscis.gov/humanitarian/temporaryprotected-status-deferred-enforced-departure/deferred-enforced-departure.
ARIZ. DREAM ACT COAL. V. BREWER 29

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.

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,
30 ARIZ. DREAM ACT COAL. V. BREWER

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.3See 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 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

improperlyissuing 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.

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.
ARIZ. DREAM ACT COAL. V. BREWER 31

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).

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

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.
32 ARIZ. DREAM ACT COAL. V. BREWER

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 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

practicallyto 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.”).
ARIZ. DREAM ACT COAL. V. BREWER 33

Sixth, Defendants claim that Arizona’s policyis 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 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
34 ARIZ. DREAM ACT COAL. V. BREWER

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 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. 

5 Though preemption principles are rooted in the SupremacyClause, 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).

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 ofthe 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.
ARIZ. DREAM ACT COAL. V. BREWER 35

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. 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
36 ARIZ. DREAM ACT COAL. V. BREWER

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 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 eligibility, it

impermissibly strayed into an exclusive domain that

Congress, through the INA, delegated to the executive

branch.
ARIZ. DREAM ACT COAL. V. BREWER 37

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 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 noncitizen’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
38 ARIZ. DREAM ACT COAL. V. BREWER

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 unlawfullypresent 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 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
ARIZ. DREAM ACT COAL. V. BREWER 39

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).

Arizona points to three criteria to justify treating EAD

recipients differently than individuals with (c)(9) and (c)(10)

EADs,7even 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

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).
40 ARIZ. DREAM ACT COAL. V. BREWER

classifications according to its own design,8thereby engaging

in an “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 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 DACA Memorandum for its

conclusion that Arizona’s policy is preempted by federal law. Rather,

Arizona’s policy is preempted by the supremacy offederal 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.
ARIZ. DREAM ACT COAL. V. BREWER 41

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

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

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.
42 ARIZ. DREAM ACT COAL. V. BREWER

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. 109-13, 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 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 allencompassing 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
ARIZ. DREAM ACT COAL. V. BREWER 43

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 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.
44 ARIZ. DREAM ACT COAL. V. BREWER

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, 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

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 ofrelief(i.e., the DREAM Act would

have granted conditional residencythat could lead to permanentresidency,

whereas the DACA program offers a more limited, temporary deferral of

removal).
ARIZ. DREAM ACT COAL. V. BREWER 45

(“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, theDepartment of Homeland Securitymust

make difficult decisions 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,

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.
46 ARIZ. DREAM ACT COAL. V. BREWER

786 F.2d 1199, 1201 (D.C. Cir. 1986); see Arpaio v. Obama,

797 F.3d 11, 18 (D.C. Cir. 2015).

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” non-enforcement, 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 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
ARIZ. DREAM ACT COAL. V. BREWER 47

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 to

obtain drivers’ licenseslimitstheir professional opportunities. 

In Arizona, it takes an average of over four times as long to

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.
48 ARIZ. DREAM ACT COAL. V. BREWER

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 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),
ARIZ. DREAM ACT COAL. V. BREWER 49

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

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 veryown 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
50 ARIZ. DREAM ACT COAL. V. BREWER

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.

AFFIRMED.
ARIZ. DREAM ACT COAL. V. BREWER 51

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 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
52 ARIZ. DREAM ACT COAL. V. BREWER

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 10. 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 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
ARIZ. DREAM ACT COAL. V. BREWER 53

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.1See Arizona v. United States, 132 S. Ct.

2492, 2506 (2012) (“[T]he removal process is entrusted to the

discretion of the Federal Government.”).

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

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.

2

I note that the Dissent at 7 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.
54 ARIZ. DREAM ACT COAL. V. BREWER

powers delegated to it by Congress. Arizona has, therefore,

intruded into an area of decisionmaking entrusted to the

federal government.3

II.

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 Jenny-Brooke 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).

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. 29.
ARIZ. DREAM ACT COAL. V. BREWER 55

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 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
56 ARIZ. DREAM ACT COAL. V. BREWER

role in immigration matters, the same role distribution

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 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

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.”).
ARIZ. DREAM ACT COAL. V. BREWER 57

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 groups not

similarly situated with regard to receiving welfare benefits.

Similarly, the immigration-relateddistinction 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

5 The panel opinion makes this basic point, briefly. Amended op. at 23.

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 23–29.
58 ARIZ. DREAM ACT COAL. V. BREWER

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 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).
ARIZ. DREAM ACT COAL. V. BREWER 59

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 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
60 ARIZ. DREAM ACT COAL. V. BREWER

authority because exclusively within the authority of the

federal government.

For these reasons, equal protection analysis with regard

to state laws, like Arizona’s, that disadvantage some aliens

compared with others necessarily incorporates distributionof-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 statedrivers’-license-related concerns (such as the distinction

between aliens holding work authorization while in removal

proceedings and DACA recipients holdingwork authorization

but not in the process of being removed). Amended op. at

28–29, 33, 36. We then concluded that the remaining

rationales Arizona provided simply are not reasonable.

Amended op. at 29–33.

In short, the preeminent federal role in immigration

matters thus not only 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
ARIZ. DREAM ACT COAL. V. BREWER 61

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 29–33.

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 8–9 n.1, 13 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 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,

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).
62 ARIZ. DREAM ACT COAL. V. BREWER

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.