Community Refugee and Immigration Services v. Petit

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

COMMUNITY REFUGEE AND

IMMIGRATION SERVICES, et al.,

Case No. 2:18-cv-1189

Plaintiffs, JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

v.

REGISTRAR, OHIO

BUREAU OF MOTOR VEHICLES,

Defendant.

OPINION AND ORDER

This matter is before the Court on the Supplemental Motion for Class Certification filed by

Plaintiffs Badreldin Rahouma (“Rahouma”), Gumaa Ismail Yahya Ibrahim (“Ibrahim”), and

Community Refugee and Immigration Services (“CRIS”) (collectively “Plaintiffs”). (ECF No.

/

39.) Defendant Charles L. Norman,! Registrar (“Registrar” or “Defendant”) of the Ohio Bureau

of Vehicles (“BMV”) has waived opposition to this motion. (ECF No. 45.) For the following

reasons, the Plaintiffs’ Supplemental Motion for Class Certification (ECF No. 39) is GRANTED.

Additionally, this matter is before the Court on Plaintiffs’ Motion for Summary Judgment.

(ECF No. 47.) Defendant has responded and Plaintiffs have replied. (ECF Nos. 48, 49.) Thus,

the motion is ripe for review. For the following reasons, Plaintiffs’ Motion for Summary Judgment

(ECF No. 47) is GRANTED.

This case originally named Don Petit, the Registrar of the BMV on December 4, 2018, when the case was filed. (See

Compl; Stip. Facts Charles L. Norman took office on January 28, 2019, as the new Registrar and, as such,

became the defendant in this case. See https://bmv.ohio.gov/about-registrar.aspx.

I.

Plaintiffs allege that a policy of the BMV Registrar denies driver’s licenses to individuals

who hold a valid refugee admission document (“Form I-94”) but were admitted to the United States

as refugees more than two years ago. (Pls.’ Mot. Summ. J. at 3, ECF No. 47.) Plaintiff's posit:

BMV Policy permits refugees to use an I-94 admission document stamped

“refugee” upon entry to the United States (“refugee 1-94”) as their sole proof of

lawful presence for the purposes of obtaining an Ohio driver’s license, provided

that a refugee I-94 was issued within the past two years. However, refugees who

present a refugee 1-94 issued more than two years ago must also present [United

States Citizenship and Immigration Services (“USCIS”)] Form 1-797, a notice of

action, with case type I-485, Application to Register Permanent Residence or

Adjust Status, in order to show lawful presence.

This policy violates Plaintiffs’ and putative class members’ rights under

both the Supremacy Clause and the Equal Protection Clause of the Fourteenth

Amendment. First, the BMV’s policy not to recognize a Form I-94—a federal

issued, unexpired lawful presence document—if it is more than two years old is an

improper regulation on immigration because it is an immigration classification not

authorized or contemplated by federal law. Second, Defendant’s policy is improper

alienage-based discrimination against Plaintiffs and putative class members,

because refugees are a suspect class entitled to strict scrutiny, and Defendant has

asserted no compelling state interest to justify its policy. Defendant has not even

articulated a legitimate state interest to which the policy bears a rational relation.

(id. at 34 (internal citations omitted).)

As further describe below, Plaintiffs assert claims under the Supremacy Clause of the

Constitution, Article VI, Clause 2, and 42 U.S.C. § 1983 for a violation of the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution. (Compl. ff] 87-102, ECF

No. 1.)

A. Relevant Statutes, Regulations, and Policies

A refugee is “[a]ny person who is outside any country of such person’s nationality ... who

is unable or unwilling to return to, and is unable and unwilling to avail himself of the protection

of that country because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.” Immigration

and Nationality Act of 2016, 8 U.S.C. § 1101(a)(42). Refugees apply for and are granted refugee

status abroad. See 8 C.F.R. § 207.4. Approval of a refugee application authorizes Customs and

Border Protection to admit an applicant as a refugee upon arrival to the United States. Jd.

Upon entry and admission into the United States, refugees presenting a credible claim of

“well-founded fear of persecution” are issued a Form I-94 that serves as proof of their immigration

status. (See Ibrahim I-94 document; ECF No. 47-2; Rahouma 1-94 document, ECF No. 47-3.)

Neither the paper nor the electronic 1-94 refugee admission document has an expiration date or

other date upon which it is no longer a valid document for proof of immigration status and

employment authorization. (Expert Report & Decl. of Pratheepan Gulasekaram at {] 8, ECF No.

47-4.) Some I-94s, such as those held by the individually named Plaintiffs in this action, are

marked “D/S,” indicating that it is valid for the “[dJuration of [s]tatus.” (Ibrahim I-94 document;

Rahouma I-94 document.)

With the REAL ID Act, Congress set standards for the issuance of state driver’s licenses

that federal agencies will accept for official purposes, such as accessing federal facilities and

boarding federally regulated aircraft.? Pub. L. No. 109-13, § 201(3), 119 Stat. 231, 313 (codified

at 49 U.S.C. § 30301 note § 201(3)). The REAL ID Act provides that the Secretary of Homeland

Security shall determine whether a state is meeting the requirements of the REAL ID Act based

on certifications made by the state to the Secretary of Homeland Security. Jd. § 202(a)(2). Ohio,

along with at least 24 other states and the District of Columbia, has agreed to comply with the

REAL ID Act, thereby ensuring that its residents may use their Ohio driver’s licenses to enter

2 The REAL ID Act is a portion of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. □□□□

458, 118 Stat. 3638.

federal facilities and board commercial domestic flights. (Statement Stipulated Facts J 6, ECF No.

18, hereinafter “Stip. Facts.”)

To issue a REAL ID Act-compliant driver’s license to an applicant, a state must require

documentary evidence that the applicant has “lawful status,” as defined by the REAL ID Act. Pub.

L. No. 109-13, § 202(c)(2)(b), 119 Stat. 231, 313 (codified at 49 U.S.C. § 30301 note § 201(3)).

The REAL ID Act establishes nine categories of persons who have “lawful status,” as required to

receive a REAL ID Act-compliant driver’s license: (1) citizens or nationals of the United States;

(2) aliens lawfully admitted for permanent or temporary residence in the United States; (3) aliens

with conditional permanent resident status in the United States; (4) aliens who have an approved

application for asylum in the United States or who entered into the United States in refugee status;

(5) aliens with a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the

United States; (6) aliens with a pending application for asylum in the United States; (7) aliens with

a pending or approved application for temporary protected status in the United States; (8) aliens

with approved deferred action status; and (9) aliens with a pending application for adjustment of

status to that of an alien lawfully admitted for permanent residence in the United States or

conditional permanent resident status in the United States. Id. § 202(c)(2)(B), 119 Stat. 231, 313

(codified at 49 U.S.C. § 30301 note); 6 C.F.R. § 37.3 (2016).

Refugees are eligible to adjust their status to lawful permanent residency after they have

“been physically present in the United States for at least one year.” Immigration and Nationality

Act of 2016, 8 U.S.C. § 1101 et seq., Id. §§ 1101(a)(42); § 1158 (a)(1) (“Any alien who is

physically present in the United States .. . may apply for asylum in accordance with this section”);

id. § 1158(a)(2)(B) (“Time limit”—explaining that some refugees are eligible to apply for

adjustment after one year of physical presence in the United States)). Once an application to adjust

status is approved, the refugee’s period of permanent residence is retroactively dated to the date of

his or her admission to the United States as a refugee. Id.

To apply for adjustment of status, a refugee must file an application to register for

permanent residence or to adjust status, a case type 1-485. USCIS, Form 1-797: Types and

Functions, available at https://www.uscis.gov/i-797-info; see also USCIS, Form I-797C: Notices

of Action, available at https://www.uscis.gov/forms/form-i-797¢-notice-action. Once a request for

permanent residence or status adjustment is filed, the applicant receives an I-797C. Id. Once the

application is approved, the applicant will receive an I-797, which is an approval notice showing

that the permanent residency application was approved, not just filed. Jd.

At issue in this case, is the BMV Registrar’s policy that denies Ohio driver’s licenses to

individuals who hold a valid 1-94, but who were admitted to the United States as refugees more

than two years prior to their application for a driver’s license (“the Policy.”) Defendant has

stipulated that the BMV policy denies driver’s licenses to refugees who submit I-94 refugee

admission documents that are more than two years old as sole proof of their lawful immigration

status, and grants driver’s licenses to refugees who present those same documents if they are less

than two years old. (Stip. Facts ff] 8, 9.) The Policy as outlined in the Deputy Registrar Procedure

Manual (“DRPM”), submitted in support of the Statement of Stipulated Facts, states that a driver’s

license applicant presenting an “I-94 with ‘indefinite’ Refugee stamp over 2 years old” must also

present “an I-797 with case type I-485.” (Deputy Registrar Procedure Manual at 33, ECF No. 18-

1, hereinafter “DRPM.”) The Policy also states that a driver’s license applicant presenting an “I-94

with ‘indefinite’ Refugee stamp within 2 years old . . . does not need to present any additional legal

presence documents.” Jd.

B. Relevant Facts

Plaintiffs include: (1) Rahouma; and (2) Ibrahim, citizens of Sudan with valid refugee

status who were unable to obtain Ohio driver’s licenses because their 1-94 documents are more

than two years old; and (3) organizational plaintiff CRIS, a central Ohio based nonprofit

organization which assists refugees in many aspects of resettlement. (Compl. 5-8, 54.)

1. Plaintiff Badreldin Rahouma

Rahouma is a citizen of Sudan who resides in Cleveland, Ohio. (Rahouma Decl. ¥ 1, ECF

No. 47-9.) On January 26, 2004, Rahouma entered the United States as a refugee and received a

form 1-94. (Id. ]2.) Rahouma has held refugee status ever since this date. (Id. { 3.) She applied

for adjustment on December 8, 2017. (id. 15; 6.) Rahouma did not apply for adjustment prior to

9017 because she did not have money for the filing, medical, and legal fees. (id. { 5.) Rahouma

received a receipt notice from USCIS on January 30, 2018. Ud. 6.)

Rahouma had a valid driver's license from April of 2009 until April of 2010. (Id. 48.) In

2010 in Cleveland, Ohio, and again in 2011 in Columbus, Ohio, Rahouma attempted to get another

driver’s license with her 1-94. (Id. 49.) On both occasions, the BMV denied her a license because

her 1-94 was more than two years old. Ud.)

In February of 2018, Rahouma went to a BMV in Cleveland, Ohio with her 1-94 and her

]-485 receipt notice. (/d. { 10.) The Deputy Registrar refused to give her a driver’s license, stating

her 1-94 could not be used as proof of legal presence because it was more than two years old. (id.

qq 10, 11.)

On June 13, 2019, after this suit had been filed, Rahouma was permitted to take the driver’s

test at a BMV in Parma, Ohio, but did not pass.’ (Casper Aff. 3, ECF No. 48-1.) On June 18,

2019, Rahouma returned to the same BMV and obtained a valid Ohio identification card. (Id.)

2. Plaintiff Gumaa Ismail Yahya Ibrahim

Ibrahim is a citizen of Sudan currently living in Dayton, Ohio. (Ibrahim Decl. {| 1, ECF

No. 47-5.) She came to the United States as a refugee on October 27, 2015 and obtained an I-94.

(Id. 42.) Ibrahim has remained a refugee since this date. (Jd. 3.) In December of 2016, Ibrahim

applied to USCIS for a green card. (ld. 5.) USCIS has not acted on her application. (Jd. □□□□

Ibrahim had a driver’s license that expired on January 3, 2018. (Id. 49.)

In January of 2018, Ibrahim went to a BMV in Dayton, Ohio, with her 1-94 and 1-485

receipt notice, to get a driver’s license. (/d.) The BMV asked Ibrahim if she had applied for a

green card and she said yes. (/d.) Even so, the BMV refused to give her a driver’s license, stating

she had to wait for her green card because her I-94 had expired. (id.) On the same day, she took

her documents to another BMV in Dayton. (Jd. 410.) Again, they refused to give her a driver’s

license because her I-94 was more than two years old. (/d.)

On February 7, 2019, after this suit was filed, Ibrahim presented her documents to the BMV

in Huber Heights, Ohio, and was issued a valid driver’s license.* (Casper Aff. { 2.) In June of

2019, USCIS granted Ibrahim’s application for adjustment and he is now a lawful permanent

resident of the United States. (Pl.’s Mot. Summ. J. at 6 n.2.)

3 Plaintiffs contend that “[alfter Plaintiffs filed the motion for class certification, Defendant made arrangements

through Plaintiffs’ counsel for [Rahouma and Ibrahim] to obtain an Ohio credential . . . Defendant arranged to make

an exception to the policy and accept an I-797C receipt notice instead of an I-797” as required by the Policy. (Pls.’

Mot. Summ. J. at 8.) Defendant contends “upon review of the documents, the BMV determined [Plaintiffs] should

have been issued a valid driver’s license.” (Def.’s Resp. at 3.)

4 See infra Section 1.B.i.n.3 (explaining the parties competing contentions as to how Ibrahim and Rahouma obtained

Qhio credentials).

3. Plaintiff Community Refugee and Immigration Services

CRIS is a non-profit organization serving the refugee and immigrant populations in central

Ohio. (Plummer Decl. 42, ECF No. 47-13; Morrissette Decl. □□ 2, ECF No. 47-14.) Through its

various programs, CRIS assists refugees in securing housing and basic necessities, applying for

social security cards, public assistance, and Ohio driver’s licenses, enrolling children in school,

accessing health screenings, and providing cultural orientation. (Jd. $6.) Most of the refugees

CRIS serves are low income and live in places that lack public transportation. (/d. 47-8;

Morrisette Decl. 5, 8.) Thus, a driver’s license is needed to help them integrate into the

community and support their families. (d. { 9.)

In 2016, CRIS became aware that the Ohio BMV was refusing to issue licenses to refugees

whose I-94 documents were more than two years old. (Ud. 7.11; Morrissette Decl. § 12.) Since

this time, CRIS attorneys have spent hundreds of hours advocating for their refugee constituency

to obtain driver’s licenses. (Jd. § 12-13; Morrissette Decl. { 13.) CRIS caseworkers have also

spent numerous hours accompanying refugees to the BMV to attempt to convince the BMV to give

the refugees licenses. (/d. { 14-15.)

4. Procedural History

In October of 2018, Plaintiffs brought suit under Section 1983 alleging a violation of the

Equal Protection Clause of the Fourteenth Amendment and violation of the Supremacy Clause of

the Constitution, Article VI, Clause 2. In December of 2019, Defendants moved to dismiss

Plaintiffs’ claims for failure to state a claim. (ECF No. 9.) The Court denied this motion. (ECF

No. 31.) Plaintiffs then filed a supplemental motion for class certification, as well as a motion for

summary judgment, both of which are pending before the Court. (ECF Nos. 39, 47.)

Il.

Federal Rule of Civil Procedure 23 controls certification of class actions. The party seeking

class certification bears the burden of proof. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th

Cir. 1996). Although Rule 23(a) requirements are procedural, not jurisdictional, in nature, a party

must satisfy the requisite criteria before class certification can be granted. See D. D. v. Washington

Cty., No. 2:10-cv-1097, 2011 U.S. Dist. LEXIS 27720, at *1 (S.D. Ohio Mar. 3, 2011). Courts

must use the four factors in Rule 23 when analyzing any request to certify a class. See, e.g., EEOC

v. Whirlpool Corp., Local 808, 80 F.R.D. 10, 14 (N.D. Ind. 1978) (“The Rule 23 prerequisites are

mandatory.”). Put simply, parties cannot consent to Rule 23 certification. Washington Cty., 2011

USS. Dist. LEXIS 27720, at *1. Rather, a district court may certify the proposed class only if it

concludes, based on the record before it, that the four factors stated in Rule 23 are satisfied.

Rule 23(a) states:

[o]ne or more members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions of law or fact common to the

class, (3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class, and (4) the representative parties will fairly and

adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These four requirements are commonly referred to as (1) numerosity,

(2) commonality, (3) typicality, and (4) adequacy of representation. See Washington Cty, 2011

U.S. Dist. LEXIS 27720 at *4.

The district court must conduct a “rigorous analysis” into whether the prerequisites of Rule

23 are satisfied before certifying a class. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). While

the district court has broad discretion on whether to certify a class, the determination must be made

within the confines of Rule 23. See Guif Oil Co. v. Bernard, 452 U.S. 89, 100 (1981) (finding the

district court bound by the Federal Rules). A class is not maintainable as a class action merely

because it is designated as such in the pleadings. Am. Med. Sys., 75 F.3d at 1079 (citing Cash v.

Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970)). The Sixth Circuit has stated:

Mere repetition of the language of Rule 23(a) is not sufficient. There must be an

adequate statement of the basic facts to indicate that each requirement of the rule is

fulfilled. Maintainability may be determined by the court on the basis of the

pleadings, if sufficient facts are set forth, but ordinarily the determination should

be predicated on more information than the pleadings will provide.

Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (citation omitted).

The district court, however, is not permitted to inquire into a case’s merits at the class

certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). (“We find nothing

in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary

inquiry into the merits of a suit in order to determine whether it may be maintained as a class

action. Indeed, such a procedure contravenes the Rule.”). Thus, “[mlerits questions may be

considered to the extent—but only to the extent—that they are relevant to determining whether the

Rule 23 prerequisites for class certification are satisfied.” Rikos v. Procter & Gamble Co., 799

F.3d 497, 505 (6th Cir. 2015) (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 586 U.S. 455,

466 (2013)) (internal quotations omitted); see also In re Whirlpool Corp. Front Loading Washer

Prods. Liability Litig., 722 F.3d 838, 851-52 (6th Cir. 2012) (“[D]istrict courts may not turn the

class certification proceedings into a dress rehearsal for the trial on the merits.” (internal quotations

omitted)); Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (explaining that

although “conformance with Rule 23(a) . .. must be checked through rigorous analysis, . . . it is

not always necessary . . . to probe behind the pleadings before coming to rest on the certification

question, because sometimes there may be no disputed factual and legal issues that strongly

influence the wisdom of class treatment.” (internal quotations omitted)).

10

Ill.

Plaintiffs seek to certify as a class, “[alll refugees residing in Ohio who possess a valid

refugee I-94 document that is more than two years old and have not yet adjusted their status to that

of a lawful permanent resident.” (Suppl. Mot. Class Certification at 1, ECF No 39, hereinafter

“Mot. Class Cert.”). According to Plaintiffs, the Court should certify the proposed class because

“the [c]lass easily satisfies the requirements of Rule 23 (a) and (b)(2).” (Ud. at 3). Defendant does

not oppose class certification. (See Def.’s Waiver Opp’n, ECF No. 45.) The Court, however, is

still required to analyze whether class certification is proper under Rule 23. As such, the Court

will first address the Rule 23(a) requirements, then the Court will turn to whether the requirements

of Rule 23(b)(2) have been satisfied, and finally the Court will consider the appointment of

class counsel.

A. Rule 23(a) Requirements

1. Numerosity

Rule 23(a) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). There is no bright line numerical test by which the district

court can determine when the numerosity requirement is satisfied. Senter v. Gen. Motors Corp.,

532 F.2d 511, 523 n.24 (6th Cir. 1976) (“Impracticability of joinder is not determined according

to a strict numerical test but upon the circumstances surrounding the case.”) (citing Cash, 434 F.2d

at 571). When class size reaches substantial proportions, however, the numerosity requirement is

usually satisfied by numbers alone. Am. Med. Sys., 75 F.3d at 1079.

Plaintiffs assert that the putative class meets Rule 23(a)(1)’s numerosity requirement as

“there are at least a thousand members in the proposed class.” (Mot. Class Cert. at 6 (citing Boyce

Decl. 4, ECF No. 39-8.)) Plaintiffs submitted the Declaration of Dr. Geoffrey Alan Boyce (“Dr.

11

Boyce”), the Academic Director of the Border Studies Program at Earlham College. (See generally

Boyce Decl.). Dr. Boyce submits:

1. Based on my review of the available research, I believe it is reasonable to

conclude that there are at least a thousand refugees lawfully present in the State

of Ohio who possess a valid I-94 document that is more than two years old, but

who have not yet adjusted their status to that of a lawful permanent resident.

2. Between federal fiscal years 2011 through 2017[,] approximately 19,046

refugees were resettled in Ohio, according to the Congressional Research

Service.... Approximately 6,518 refugees were resettled in Ohio in fiscal

years 2016 and 2017 alone.

(Id. 4-5). Given the size and fluid nature of the proposed class, the Court is satisfied that

joinder of all members is impracticable and that the numerosity requirement is met.

2. Commonality

Under Rule 23, the plaintiff must demonstrate the existence of “questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to

demonstrate that the class members have suffered the same injury.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 349 (2011). At the certification stage, however, the plaintiffs need not show

that all class members have been injured in precisely the same way or were in fact injured at all.

Rikos, 799 F.3d at 505 (“The Supreme Court in Dukes did not hold that named class plaintiffs must

prove at the class-certification stage that all or most class members were in fact injured to the meet

this requirement.”), Instead, “the commonality requirement will be satisfied as long as the

members of the class have allegedly been affected by a general policy of the [dJefendant and the

general policy is the focus of the litigation.” Bovee v. Coopers & Lyband, 216 F.R.D. 596, 608

(S.D. Ohio 2003) (citing Putnam v. Davies, 169 F.R.D. 89, 93 (S.D. Ohio 1996)).

Additionally, although Rule 23(a)(2) speaks of “questions” in the plural, there need be only

one question common to the class. Jd. (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397

12

(6th Cir. 1998)). A common question must be one that is “capable of class wide resolution—

which means determination of its truth or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Dukes, 564 U.S. at 350.

Plaintiffs posit they are two questions that are common to all in the putative class:

1. [W]hether Defendant’s policy of not accepting refugee 1-94 documents as proof

of ‘legal presence’ in the U.S. if the documents are more than two years old is

an impermissible immigration classification that preempts federal law; and

2. [Whether Defendant’s policy of not accepting refugee I-94 documents as

proof of ‘legal presence’ if the documents are more than two years old

discriminates against refugees on the basis of their national origin in violation

of the Equal Protection Clause of the Fourteenth Amendment.

(Mot. Class Cert. at 9-10) (citation omitted).

Plaintiffs submit that Putnam v. Davis, 169 F.R.D. 89 (S.D. Ohio 1996), is similar to this

Case. In Putnam, the class challenged the constitutionality of an Ohio policy that required the

seizure of vehicles, which was “routinely and uniformly applied when a driver [was] arrested for

a repeat offense of drunk driving.” Jd. at 93-94. The Putnam Court found that the class had

satisfied the commonality requirement as the challenged statutory procedure was “routinely and

uniformly applied” to all class members and “the essential legal questions . . . will not vary among

the class members.” Jd, Plaintiffs assert that here too “the named Plaintiffs . . . seek to redress an

unconstitutional state policy carried out against themselves and all class members.” (Mot. Class

Cert. at 10). Furthermore, Plaintiffs contend these common questions are central to the case as a

final holding in their favor would resolve the case for all members of the class. (/d. (citing Young,

693 F.3d at 542).)

The Court concludes that there are questions of fact and law common to all members of

the proposed class because all proposed class members are subjected to the same uniformly applied

policy. As Plaintiffs maintain, “[a] holding that the Defendant’s conduct is unconstitutional

13

because it preempts federal law and/or discriminates against a group of refugees on the basis of

their national origin would resolve the case for all class members ‘in one stroke.’” (Mot. Class

Cert. at 10 (quoting Young, 693 F.3d at 542)). Thus, the commonality requirement is satisfied.

3. Typicality

Rule 23(a)(3) requires that the “claims or defenses of the representative parties [be] typical

of the claim or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A plaintiffs claim is typical “if it

arises from the same event or practice or course of conduct that gives rise to the claims of other

class members, and if his or her claims are based on the same legal theory.” Am. Med. Sys., 75

F.3d at 1082 (citing 1 Newberg on Class Actions § 3-13, at 3-76). Typicality requires that the

“representative’s interests [are] aligned with those of the represented group, and in pursuing his

own claims, the named plaintiff will also advance the interests of the class members.” Jd. Put

differently, “as goes the claim of the named plaintiff, so go the claims of the class.” Sprague, 133

F.3d at 399; Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000). The commonality and

typicality requirements are closely related because they both help determine whether the claim of

the named plaintiff and those of the class are so interrelated that the interests of the absent class

members will be protected. Jd.

Like the commonality requirement, the named plaintiff's claims do not have to be identical

to the claims and defenses of the other members of the putative class or involve the same facts or

law, provided there is a common element of fact or law. Beattie v. CenturyTel, Inc., 511 F.3d 554,

561 (6th Cir. 6007) (citing Senter, 532 F.2d at 525 n.31); Putnam, 169 F.R.D. at 94.

Plaintiffs assert that, while Ibrahim? has received an Ohio driver’s license since filing this

action, the typicality requirement is nonetheless met. (See Mot. Class Cert. at 10). Plaintiffs first

5 As of filing the Supplemental Motion for Class Certification, Rahouma still had not obtained an Ohio driver’s license.

(See Mot. Class Cert. at 10-11 n.5, 12).

14

submit that the “inherently transitory” exception to mootness applies to the case at bar. (/d. at 10-

11 n.5). Under the “inherently transitory exception” a plaintiff must demonstrate: (1) that the

injury is “so transitory that it would likely to evade review by becoming moot before the district

court can rule on class certification[;]” and (2) that “other class members are suffering the injury.”

Wilson v. Gordon, 82 F.3d 934, 945 (6th Cir. 2016). Here, as Plaintiffs correctly point out:

[T]he class includes refugees living in Ohio for over two years who have not been

granted adjustment of status. Many members of this class will eventually apply for

and have their applications granted by USCIS and become lawful permanent

residents. However, it is unknown exactly how long USCIS will take to approve

any given application, and the adjudication of I-485 applications can take many

months and sometimes years. Further, new refugees resettle in Ohio each year, and

some of those refugees will eventually become class members. Moreover, evidence

submitted by Plaintiffs Community Refugee and Immigration Services and

Rahouma show that it is clear that other class members are suffering the injury.

(Mot. Class Cert. at 10-11 n.5) (internal citations omitted). Based on the foregoing, the Court

agrees that the inherently transitory exception to mootness applies in this case and that Ibrahim

can remain as a named plaintiff.

Turning now to the typicality analysis, Plaintiffs assert that named Plaintiff's claims “arise

from the same unlawful conduct[.]” (/d. at 13). Typical to all Plaintiffs include “Defendant’s

refusal to accept refugees’ I-94s that are more than two years old, and there is no indication that

Defendant’s written policy is carried out differently as to different class members.” (/d.). The

legal claims that Plaintiffs assert arise from the same legal theory. The typicality requirement is

therefore met.

4. Adequacy of Representation

Rule 23(a) permits certification if “the representative parties will fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement is essential to due

process because a final judgment in a class action is binding on all class members. Am Med. Sys.,

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75 F.3d at 1083 (citing Hansberry v. Lee, 311 U.S. 32 (1940)). “A class representative must be

part of the class and possess the same interest and suffer the same injury as the class members.”

Beattie, 511 F.3d at 562 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)).

The Sixth Circuit has articulated two criteria for determining the adequacy of representation:

(1) “[t]he representative must have common interests with unnamed members of the class;” and

(2) “it must appear that the representative will vigorously prosecute the interests of the class

through qualified counsel.” Senter, 532 F.2d at 525.

i. Named Representatives’ Common Interests

The common interest requirement overlaps with the commonality and typicality

requirements and requires that the representatives and “the class members have interests that are

not antagonistic to one another.” In re Dry Max Pampers Litig., 724 F.3d 713, 721 (6th Cir. 2013)

(citing Vassalle v. Midland Funding LLC, 708 F.3d 713, 721 (6th Cir. 2013)); see also Shreve v.

Franklin Cty., No. 2:10-cv-644, 2010 U.S. Dist. LEXIS 131911, at *42 (S.D. Ohio Dec. 14, 2010)

(“A plaintiff may not be an adequate representative if that plaintiff is subject to unique defenses

that place him or her in a position that is antagonistic to the interests of the class.”). Thus, “the

linchpin of the adequacy requirement is the alignment of interests and incentives between the

representative plaintiffs and the rest of the class.” Dry Max, 724 F.3d at 721.

Plaintiffs submit that they “seek declaratory and injunctive relief to ensure that they can

obtain driver’s licenses and state identification cards which will enable them to fully participate in

civic life; transport themselves to work, medical appointments, and other obligations; and support

themselves financially.” (Mot. Class Cert. at 14). Further, Plaintiffs maintain that “[t]his request

does not present conflicts between named Plaintiffs and other class members because the named

Plaintiffs lack any interests adverse the members of the proposed class.” (/d. at 14-15). Based on

16

this unopposed submission, the Court finds the named Plaintiffs’ interests are not adverse to those

of the class. The named representatives adequately represent the interests of the class members.

ii. Class Counsel’s Vigorous Prosecution

To satisfy the second requirement of the adequacy of representation prong, it must appear

that the representatives will vigorously prosecute the interests of the class through qualified

counsel. Senter, 532 F.2d at 525 (citing Gonzales v. Cassidy, 474 F.2d 67, 73 (Sth Cir. 1973)).

Plaintiffs therefore must have sufficient financial and personal involvement to encourage them to

prosecute the action vigorously, and adequate resources and legal representation to meet the

demands of maintaining the action. Wright, Miller & Kane, Federal Practice and Procedure:

Civil 2d § 1767 (1986)). Further, class counsel must be qualified, experienced, and generally able

to conduct the litigation. Stout, 228 F.3d at 717.

Here, Plaintiffs seek to appoint as class counsel: Emily Brown, Kathleen Kersh, Mark

Heller, and Eugenio Mollo, Jr. of Advocates for Basic Legal Equality, Inc. and Caroline Gentry,

Ana P. Crawford, and David P. Shouvlin of Porter Wright Morris & Arthur LLP. (Mot. Class

Cert. at 1-2). According to Plaintiffs, Advocates for Basic Legal Equality, Inc., “is the preeminent

nonprofit law firm in Ohio in litigation involving immigrants’ civil rights.” (/d. at 15). Ms. Brown

represented immigrants in a previous class action in the Northern District of Ohio. (d.; see also

Ex. 16, 1-2, 7.) Ms. Brown and Ms. Kersh collectively litigated immigration law and civil rights

and employment cases in federal courts for 10 years. (/d.) Ms. Brown has clerked for two federal

district judges in Columbus and enjoys a stellar reputation.

Mr. Heller has been practicing law for four decades. (/d.; see also Ex. 16 at 3-6.) He has

focused his practice in poverty law, “primarily representing immigrants in federal litigation.” (Jd.)

Additionally, Mr. Heller served as counsel in several class actions and collective actions. □□□□□

17

Mr. Mollo, Jr. has practiced immigration law and litigated in federal court for 12 years. (/d.; see

also Ex. 16 at 8-9.)

Ms. Gentry, who is well known to the Court as a skilled professional, has practiced law for

over twenty years. (/d.; see also Ex. 16 at 10.) Ms. Gentry has significant experience in federal

court and has served as Chair or Co-Chair of Porter Wright’s Class Action Practice Group. □□□□□

Ms. Crawford has five years of litigation experience, including federal trial work on civil rights

issues. (Id.; see also Ex. 16 at 11.) Finally, Mr. Shouvlin is a most distinguished trial lawyer who

has litigated many significant cases and has served on virtually every committee of this district

court.

The Court also notes that counsel for Defendant here also displayed a high degree of

competence and professionalism.

Based on these statements, the Court concludes that Plaintiffs are adequate class

representatives and have vigorously prosecuted the interests of the class through qualified and

experienced counsel and will likely continue to do so.

B. Rule 23(b) Requirements

In addition to satisfying the prerequisites of Rule 23(a), Plaintiffs must demonstrate that

the action falls within one of the subcategories of Rule 23(b). Here, Plaintiffs seek class

certification under Rule 23(b)(2), which states, in relevant part:

A class action may be maintained if Rule 23(a) is satisfied and if: ... the party

opposing the class has acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole.

Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or

declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or

declared unlawful only as to all of the class members or as to none of them.” Duke, 564 U.S.

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at 360. A class action under Rule 23(b)(2) is referred to as a “mandatory” class action because

class members do not have an automatic right to notice or a right to opt out of the class. The

defining characteristic of a mandatory class is “the homogeneity of the interests of the members

of the class.” Romberio v. Unumprovident Corp., 385 F. App’x 423, 432 (6th Cir. 2009) (quoting

Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 649 (6th Cir. 2006)).

To the extent Plaintiffs allege systemic civil rights violations and solely seek declaratory

and injunctive relief designed to benefit the class as a whole, and do not seek monetary damages,

the Court concludes that Rule 23(b)(2) certification is proper. Plaintiffs allege:

[A]ll members of the class seek injunctive and declaratory relief from Defendant’s

generally applicable custom, policy, or practice of not accepting as proof of legal

presence a refugee Form I-94 that is more than two years old. The named Plaintiffs

do not contend that they were singled out for unlawful treatment. On the contrary,

their treatment is in accordance with an official BMV policy, as is the treatment of

other class members. The remedy they seek—declaratory and injunctive relief to

force Defendant to cease its policy of refusing to accept refugees’ I-94s that are

more than two years old—would apply to and benefit all members of the

proposed class.

(Mot. Class Cert. at 16). The Court agrees. Plaintiffs’ allegations apply generally to the proposed

class and Plaintiffs have satisfied the requirements of Rule 23(b)(2).

C. Appointment of Class Counsel

Plaintiffs also ask the Court to appoint Emily Brown, Kathleen Kersh, Mark Heller, and

Eugenio Mollo, Jr. of Advocates for Basic Legal Equality, Inc. and Caroline Gentry, Ana P.

Crawford, and David P. Shouvlin of Porter Wright Morris & Arthur LLP as counsel for Plaintiffs.

As already stated in Section III.A.4.ii., supra, counsel for Plaintiffs have so far shown competence

and vigor in representing the interests of the proposed class and collectively have significant

experience in complex litigation, class litigation, and civil rights litigation. Finally, the Court finds

that counsel for Plaintiffs have effectively investigated potential claims in this action and have

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demonstrated that they will commit the necessary resources to representing the class.

In sum, the Court hereby GRANTS the Motion for Class Certification. The class under

Rule 23(b)(2) consists of the all refugees residing in Ohio who possess a valid refugee 1-94

document that is more than two years old and have not yet adjusted their status to that of a lawful

permanent resident. The Court further designates Advocates for Basic Legal Equality, Inc. and

Porter Wright Morris & Arthur LLP as class counsel.

IV.

Summary judgment is appropriate “if the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Court may therefore grant a motion for summary judgment if the nonmoving party who has

the burden of proof at trial fails to make a showing sufficient to establish the existence of an

element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The “party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion and identifying those portions” of the record which

demonstrate “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The

burden then shifts to the nonmoving party who “must set forth specific facts showing that there is

a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.

R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Jd. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-

59 (1970)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Jd. at 248; see also Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be “genuine”

means that there must be more than “some metaphysical doubt as to the material facts.”).

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Consequently, the central issue is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Hamad v. Woodcrest Condo. Ass’n., 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting

Anderson, 477 U.S. at 251-52).

Vv.

Plaintiffs argue “there is no genuine issue of disputed material fact on their Supremacy

Clause and Equal Protection Clause claims and that they are entitled to judgment as a matter of

law.” (Pls.” Mot. Summ. J. at 1.) In response, Defendant argues that Rahouma and Ibrahim do

not have valid claims before this Court and the Plaintiffs are not entitled judgment on either of

their claims.

The Court will first address Plaintiffs’ standing. See Unan v. Lyon, 853 F.3d 279, 284

(6th Cir. 2017) (“It is well established that a federal court must determine jurisdictional questions

before proceeding to the merits.”). Next, the Court will address whether there is a genuine issue

of material fact as to the Policy violating the Supremacy Clause.®

A. Case or Controversy

Defendant argues Rahouma and Ibrahim have “no valid claims[].” (Def.’s Resp. at 5-6.)

Defendant does not use the term standing or mootness or cite any cases, but it appears Defendant

is arguing these two Plaintiffs’ claims are moot.

The Supreme Court has made clear that Article III requires ‘an actual controversy must be

extant at all stages of review, not merely at the time the complaint is filed.’”” Unan, 853 F.3d at

284-85 (citing Preiser v. Newkirk, 422 U.S. 395 (1975)). A case becomes moot when the issues

6 Because of the Court’s conclusions herein, it is unnecessary to address Plaintiffs’ Equal Protection claim. Ashwander

v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936); Burton v. United States, 196 U.S. 283, 295 (“It is not the habit

of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”).

21

are no longer “live” or “the parties lack a legally cognizable interest in the outcome.” Jd. (citing

United States. Parole Comm’ns v. Geraghty, 445 U.S. 388, 396 (1980)).

The “[m]ootness doctrine, however, is flexible in the case of class actions.” Jd. (internal

citations omitted); see also Wilson, 822 F.3d at 941-42. Generally, once a class is certified, the

mooting of the named Plaintiff’s claim will not moot the action. Jd. Additionally, while generally

the mooting of the named Plaintiffs claim prior to class certification moots the entire case, the

Sixth Circuit recognizes exceptions including defendants “picking-off” the named plaintiff and

claims which are “inherently transitory.” Jd. Importantly, “[i]f the Court determines that any one

of the [p]laintiffs has standing, the court ha[s] jurisdiction and may proceed with the case.” Miller

v. Blackwell, 348 F. Supp. 2d 916, 920 (S.D. Ohio 2004); see also Carey v. Population Servs. Int'l,

431 U.S. 678, 682 n.2 (2015) (recognizing that where at least one plaintiff has standing, courts

need not determine the standing of the other plaintiffs).

Defendant argues that the Policy requires both an I-94 that is less than two years old and a

Form I-797 or a Form I-797C. (Def.’s Resp. 5-6, ECF No 48.) Thus, Defendant contends, when

Rahouma and Ibrahim initially attempted to obtain driver’s licenses, they should have been

permitted to obtain them. (/d.) Further, the error the BMV made has since been corrected and

Rahouma obtained an identification card and Ibrahim obtained a driver’s license. (/d.) Thus, there

is no standing to bring a claim. (/d.)

In contrast, Plaintiffs argue first that Defendant’s recitation of the Policy is incorrect. (Pls.’

Reply at 1-2.) Plaintiffs contend the BMV policy requires a I-797, not an I-797C. Additionally,

Plaintiffs argue Defendant attempted to “pick-off” Plaintiffs by having its counsel reach out to

Plaintiffs’ counsel to assist them in obtaining licenses and the claims are inherently transitory. (/d.

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at 2-3(citing Miller, 348 F. Supp. 2d at 920).) Finally, Plaintiffs point out that even if Rahouma

and Ibrahim’s claims are now moot, CRIS’s claim is properly before this court.

Plaintiff's arguments regarding the BMV’s policy and the application of the mootness

exceptions are well-taken. The Court already found the inherently transitory exception to

mootness applies. See infra III.A.3. Most importantly, however, CRIS has standing. Defendant

does not contest this. CRIS has been injured, and continues to be injured, through the resources it

has expended, and continues to expend, advocating for its constituents to get driver’s licenses and

identification cards. Miami Valley Fair Housing Ctr., Inc. v. Connor Grp, 725 F.3d 571 576 (6th

Cir. 2013) (“[A] drain on an organization’s resources . . . constitutes a concrete and demonstrable

injury for standing purposes.”). CRIS has standing, and thus, the Court need not address Rahouma

and Ibrahim’s standing and can move to the case’s merits. Miller, 348 F. Supp. 2d at 920; see also

Carey, 431 U.S. at 682 n.2.

B. Supremacy Clause

Plaintiffs argue the Policy is preempted by federal law and thus, they are entitled to judgment

as a matter of law. (Pls.” Mot. Summ. J. at 12.)

The United States Supreme Court has “long held that federal courts may in some

circumstances grant injunctive relief against state officers who are violating, or planning to violate,

federal law.” Armstrong v. Exceptional Child Ctr, Inc., 135 S. Ct. 1378, 1384 (2015) (citations

omitted); see also Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 728 (S.D. Ind.

2016), aff'd, 838 F.3d 902, 904 (7th Cir. 2016) (indicating that after Armstrong, courts may

exercise equitable power to enjoin state action that is preempted by federal immigration law).

“Federalism, central to the constitutional design, adopts the principle that both the National and

State Governments have elements of sovereignty the other is bound to respect.” Arizona v. United

23

States, 567 U.S. 387, 398-99 (2012) (citations omitted). “From the existence of two sovereigns

follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause

provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the Judges in

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

Contrary notwithstanding.” Jd. (quoting U.S. Const., Art. VI, cl. 2). “Under this principle,

Congress has the power to preempt state law.” Id. at 399.

When federal preemption is alleged, the analysis starts with “the assumption that the

historic police powers of the States were not to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.” City of Columbus v. Ours Garage & Wrecker Serv.,

Inc., 536 U.S. 424, 438 (2002) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). While

there is a strong presumption against preemption of a state law by a federal regulation, Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), Congress may preempt a state law by enacting

its own specific laws. Arizona, 567 U.S. at 399 (citing Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363, 372 (2000)). The “[p]ower to regulate immigration is unquestionably exclusively a

federal power.” De Canas vy. Bica, 424 U.S. 351, 354 (1976); see Art. I, Section 8, U.S. Const.

(“The Congress shall have Power . . . To establish an uniform Rule of Naturalization . . . .”).

Plaintiffs argue this policy is preempted because it creates an impermissible subclass of

refugees, which unlawfully encroaches on the federal government’s exclusive right to regulate

immigration. (Pls.’ Mot. Summ. J. at 12.) Plaintiffs argue the impermissible class created by the

policy consists of individuals who hold refugee status but were issued their I-94 more than two

years ago. (/d.)

Defendant contends:

By requiring refugee applicants to submit their Form I-979 receipt notice, the

BMV is simply verifying that Plaintiffs are still authorized to stay in the United

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States. Thus, the BMV is acting within its police power to regulate driver’s licenses

in order to comply with the requirements of the REAL ID Act and is not creating a

separate sub-classification of refugee.

(Def.’s Resp. at 11.) Defendant’s arguments are not well-taken.

In its ordering denying Defendant’s Motion to Dismiss, this Court found the Policy was

preempted by federal law. The Court stated:

[T]he BMV policy on refugee I-94 expiration does create a subclassification of

immigration status that is preempted by federal law. The Registrar creates a new

category for determining whether a refugee is lawfully present, that is independent

of and has no analogue in federal law. Specifically, the policy creates a category

of lawful immigration status that requires a valid I-94 that was issued more than

two years ago and additional documentary evidence in the form of an I-797

approval notice. Thus, those lawfully present refugees are stripped of the status of

lawfully present refugees for purposes of obtaining a REAL ID Act-compliant

driver’s license. Federal immigration law, however, does not strip refugees of

refugee status nor render them unlawfully present in the United States if they do

not apply for or receive approval of an adjustment of status.

In separating refugees into two categories, those who have I-94s that are more

than two years old and those who have I-94s that are less than two years old, the

BMV policy impermissibly encroaches on the federal government’s exclusive

authority to make immigration classifications and determine immigration status.

Plyler v. Doe, 457 U.S. 202, 225 (1982) (“The States enjoy no power with respect

to the classification of aliens. ... This power is ‘committed to the political branches

of the Federal government.’” (citations omitted). “Although 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.” Jd. (internal citations omitted) (citing Mathews

v. Diaz, 426 U.S. 67, 84-85 (1976); Nyquist v. Mauclet, 432 U.S. 1, 7, n. 8 (1977)).

The extensive federal statutory and regulatory scheme governing immigration

classifications leaves no room for supplemental state laws or policies that classify

non-citizens. States have no authority to create immigration classifications that do

not exist in federal law, nor to assess the legality of a non-citizen’s presence or

status in the United States separately from the federal government.

(Opinion & Order Mot. Dismiss at 10-12, ECF No. 31.) This question of preemption is

predominantly legal, with factual development often being unnecessary. Pac. Gas & Elec. Co. v.

State Energy Res. Conservation, 461 U.S. 190, 201 (1983).

25

The Court also responded to Defendant’s argument that it was simply complying with the

REAL ID Act:

The Registrar’s reliance on the REAL ID Act to support its argument is

misplaced. As set forth above, the REAL ID Act enumerates nine categories of

federally-created “lawful” immigration statuses under which individuals are

entitled to REAL ID Act-compliant licenses. One of those categories includes an

alien who “has an approved application for asylum in the United States or has

entered into the United States in refugee status.” Pub. L. No. 109-13-

202(c)(2)(B)(iv); 119 Stat. 313; (49 U.S.C. § 30301 codified as note); 6 C.F.R. §

37.3 (2016). Congress made no distinction in this category between refugees

admitted before a certain period of time and refugees admitted more recently. The

Court agrees with Plaintiffs’ assessment that this statutory scheme reflects the

federal government’s clear intent to convey that 1) refugees do not lose their

refugee status simply because they have been in the United States for a certain

period of time, and 2) there is no subclassification in federal law between refugees

admitted more than two years ago and refugees admitted within the past two years.

(id. at 12-13.)

Since the Court’s decision denying Defendant’s motion to dismiss, the Registrar has

provided no record evidence to support any argument to the contrary.’ In contrast, Plaintiffs

provide evidence that this policy is preempted. Plaintiffs point out that Defendant testified, in its

Federal Rule of Civil Procedure 30(b)(6) deposition, that “other than current BMV policy” there

would be no reason not to issue a license to an individual who provided a I-94 document that was

greater than two years old. (Casper Dep. 177:12-20, ECF No. 41.) This effectively concedes that

the REAL ID Act does not require the I-94 to be issued within the last two years in order to show

presence.

There is no genuine issue of material fact. Plaintiffs are thus entitled to judgment as a matter

of law and their motion for summary judgment is GRANTED.

7 Defendant offers an affidavit from a BMV customer service assistant indicating than an I-797C should be accepted

for an applicant seeking a driver’s license. This affidavit does not change the Court’s analysis.

26

VI

For the reasons set forth above, Plaintiffs’ Supplemental Motion for Class Certification

(ECF No. 39) is GRANTED. Additionally, Plaintiffs’ Motion for Summary Judgment (ECF No.

47) is GRANTED. The Clerk is DIRECTED to enter judgment and close this case.

IT IS SO ORDERED.

X~ AO-AOAO — > r

DATED EDMU . SARGUS, JR.

UNITED STATES DISTRICT JUDGE

27