Arizona Dream Act Coalition v. Janice Brewer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA DREAM ACT COALITION; No. 13-16248

JESUS CASTRO-MARTINEZ;

CHRISTIAN JACOBO; ALEJANDRA D.C. No.

LOPEZ; ARIEL MARTINEZ; NATALIA 2:12-cv-02546-

PEREZ-GALLEGOS, DGC

Plaintiffs-Appellants,

v. OPINION

JANICE K. BREWER, Governor of the

State of Arizona, in her official

capacity; JOHN S. HALIKOWSKI,

Director of the Arizona Department

of Transportation, in his official

capacity; STACEY K. STANTON,

Assistant Director of the Motor

Vehicle Division of the Arizona

Department of Transportation, in her

official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

December 3, 2013—Pasadena, California

2 ARIZONA DREAM ACT COALITION V. BREWER

Filed July 7, 2014

Before: Harry Pregerson, Marsha S. Berzon,

and Morgan Christen, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Christen

SUMMARY*

Civil Rights

The panel reversed the district court’s denial of a motion

for a preliminary injunction and remanded in an action

challenging an Arizona policy which prohibits recipients of

the federal program called the “Deferred Action for

Childhood Arrivals” from obtaining driver’s licenses by using

Employment Authorization Documents as proof of their

authorized presence in the United States.

The Deferred Action for Childhood Arrivals (DACA)

program authorizes certain immigrants, who came without

permission to the United States as children, to remain in the

United States. The panel stated that although on the current

record, it was unable to resolve whether plaintiffs had

established a likelihood of success on the merits of their

preemption claim, plaintiffs had shown that they were likely

to succeed on the merits of their equal protection claim. The

panel held that even applying a rational basis of review, it

*

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

been prepared by court staff for the convenience of the reader.

ARIZONA DREAM ACT COALITION V. BREWER 3

could identify no legitimate state interest that was rationally

related to defendants’ decision to treat DACA recipients

disparately from other noncitizens who were permitted to use

their Employment Authorization Documents as proof of their

authorized presence in the United States when applying for

driver’s licenses.

The panel further held that plaintiffs had shown that they

were likely to suffer irreparable harm unless defendants’

policy was enjoined, and that both the balance of equities and

the public interest favored an injunction. The panel remanded

with instructions that the district court enter a preliminary

injunction prohibiting defendants from enforcing any policy

by which the Arizona Department of Transportation refuses

to accept plaintiffs’ Employment Authorization Documents,

issued to plaintiffs under DACA, as proof that plaintiffs are

authorized under federal law to be present in the United

States.

Joining in the majority opinion and concurring as to Part

II.A, Judge Christen stated that she agreed that plaintiffs

demonstrated a likelihood of success on the merits of their

equal protection claim. Judge Christen further agreed that

plaintiffs had shown a likelihood of irreparable injury, and

satisfied the other prerequisites for injunctive relief. She

wrote separately to express her view that plaintiffs had also

demonstrated a likelihood of success on their preemption

claim because Arizona’s policy regulates immigration by

creating a new classification of alien status.

4 ARIZONA DREAM ACT COALITION V. BREWER

COUNSEL

Victor Viramontes (argued) and Jorge M. Castillo, Mexican

American Legal Defense and Educational Fund, Los Angeles,

California; Jennifer Chang Newell, Cecillia D. Wang, Araceli

Martínez, Michael Tan, and R. Orion Danjuma, American

Civil Liberties Union Foundation Immigrants’ Rights Project,

San Francisco, California; Linton Joaquin, Karen C. Tumlin,

Shiu-Ming Cheer, Nora A. Preciado, and Nicholás Espíritu,

National Immigration Law Center, Los Angeles, California;

Daniel J. Pochoda, Kelly J. Flood, and James Duff Lyall,

ACLU Foundation of Arizona, Phoenix, Arizona, for

Plaintiffs-Appellants.

Timothy Berg (argued), Douglas C. Northup, and Sean T.

Hood, Fennemore Craig, P.C., Phoenix, Arizona; Joseph

Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix,

Arizona, for Defendants-Appellees.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae

Eagle Forum Education & Legal Defense Fund.

OPINION

PREGERSON, Circuit Judge:

The federal government has enacted a program called

“Deferred Action for Childhood Arrivals” (“DACA”), which

authorizes certain immigrants who came to the United States

as children, without permission, to remain in the United

States. In response, Arizona officials — Defendants here —

implemented a policy that prevents DACA recipients from

obtaining Arizona driver’s licenses.

ARIZONA DREAM ACT COALITION V. BREWER 5

Plaintiffs — five individual DACA recipients living in

Arizona, plus an organization promoting the interests of

young immigrants — sought a preliminary injunction

prohibiting Defendants from enforcing their policy, arguing

that the policy violates the Equal Protection Clause and is

preempted. The district court found that Defendants’ policy

deprives Plaintiffs of driver’s licenses for no rational reason,

and thus violates the Equal Protection Clause. The district

court nonetheless denied the preliminary injunction, because

it found Plaintiffs were not likely to suffer irreparable harm

from this constitutional violation.

We agree that Plaintiffs have demonstrated a likelihood

of success on the merits of their equal protection claim. And

contrary to the district court’s conclusion, we hold that

Plaintiffs are likely to suffer irreparable harm unless

Defendants’ policy is enjoined. The remaining injunction

factors — the public interest and the balance of the equities

— also tip in Plaintiffs’ favor. We therefore reverse the

district court’s denial of a preliminary injunction. We

remand for entry of a preliminary injunction prohibiting

Defendants from enforcing its policy by which the Arizona

Department of Transportation refuses to accept Plaintiffs’

Employment Authorization Documents, issued to Plaintiffs

under DACA, for purposes of obtaining an Arizona driver’s

license.

BACKGROUND

Deferred Action for Childhood Arrivals

Many immigrants come to the United States as children,

without permission, and subsequently remain in this country

as they mature into adults. The Secretary of Homeland

6 ARIZONA DREAM ACT COALITION V. BREWER

Security has determined that our nation’s immigration laws

were not designed “to remove productive young people to

countries where they may not have lived or even speak the

language” — particularly when “many of these young people

have already contributed to our country in significant ways.”

Memorandum from Janet Napolitano, Sec’y of Homeland

Sec., on Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as Children (June

15, 2012). On June 15, 2012, the Secretary announced that

her Department would begin exercising prosecutorial

discretion in immigration cases involving these young people.

Specifically, the Department of Homeland Security (DHS)

would offer “certain young people who were brought to this

country as children and know only this country as home” a

form of deferred action, which would allow them to remain

present in the United States without fear of removal. This

policy came to be known as “Deferred Action for Childhood

Arrivals,” or “DACA.”

To be eligible for DACA, immigrants must have come to

the United States before the age of sixteen and have been

under thirty-one years old as of June 15, 2012; they must

have been living in the United States when DACA was

announced and have continuously resided in the United States

for at least the previous five years; and they must have

graduated from high school, or obtained a GED, or have been

honorably discharged from the United States Armed Forces

or the Coast Guard, or be currently enrolled in school.

Additionally, they must not pose any threat to public safety:

anyone who has been convicted of multiple misdemeanors, a

single significant misdemeanor, or any felony offense is

ineligible for DACA.

ARIZONA DREAM ACT COALITION V. BREWER 7

Like recipients of other forms of deferred action, DACA

recipients enjoy no formal immigration status. Nevertheless,

DACA recipients are permitted by DHS to remain in the

United States for a renewable two-year period. DHS

considers DACA recipients not to be unlawfully present in

the United States because their deferred action is a period of

stay authorized by the Attorney General. See 8 U.S.C.

§ 1182(a)(9)(B)(ii); 8 C.F.R. 214.14(d)(3); U.S. Immigration

and Naturalization Servs., Adjudicator’s Field Manual Ch.

40.9.2(b)(3)(J). DACA recipients are also eligible to receive

Employment Authorization Documents, allowing them to

work in the United States. Indeed, would-be DACA

recipients are required to apply for employment authorization

when they apply for DACA.

Arizona Law and Defendants’ Policy

Arizona law prohibits the Arizona Department of

Transportation from issuing driver’s licenses to anyone “who

does not submit proof satisfactory to the department that the

applicant’s presence in the United States is authorized under

federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D). Arizona

does not further define “presence . . . authorized under federal

law,” except through an Arizona Department of

Transportation policy listing the documents it accepts as

establishing authorized presence. Ariz. Dep’t of Transp.

Policy 16.1.2. Until August 2012, that policy listed all

Employment Authorization Documents issued by the federal

government as sufficient to establish “that the applicant’s

presence in the United States is authorized under federal law”

within the meaning of this Arizona statute.

On August 15, 2012 — the same day the federal

government’s DACA policy took effect — Arizona Governor

8 ARIZONA DREAM ACT COALITION V. BREWER

Janice Brewer issued an executive order. Executive Order

2012-06, “Re-Affirming Intent of Arizona Law In Response

to the Federal Government’s Deferred Action Program,”

(Aug. 15, 2012). The executive order warned that, under

DACA, the federal government “plan[ned] to issue

employment authorization documents to certain unlawfully

present aliens . . . .” The order directed state agencies to

prevent DACA recipients from becoming eligible for any

“state identification, including a driver’s license.” Governor

Brewer later explained that her executive order was designed

to ensure that there would be “no driver licenses for illegal

people.” In Governor Brewer’s words, DACA recipients “are

here illegally and unlawfully in the state of Arizona . . . . The

Obama amnesty plan doesn’t make them legally here.”

Pursuant to Governor Brewer’s executive order, the

Arizona Department of Transportation’s Motor Vehicle

Division revised its relevant policy to ensure that DACA

recipients would not become eligible for Arizona driver’s

licenses. Specifically, the Motor Vehicle Division announced

that it would not accept Employment Authorization

Documents issued to DACA recipients — identified by the

category code (c)(33) — as proof “that the applicant’s

presence in the United States is authorized under federal

law,” pursuant to Ariz. Rev. Stat. Ann. § 28-3153(D). At the

time, the Motor Vehicle Division continued to accept all other

federally issued Employment Authorization Documents as

proof of lawful presence.

The Present Case

Plaintiffs are five individual DACA recipients (all of

whom reside in Arizona) and the Arizona DREAM Act

Coalition, an organization that seeks to promote the interests

ARIZONA DREAM ACT COALITION V. BREWER 9

of young immigrants. All five individual Plaintiffs possess

Employment Authorization Documents issued under DACA.

Thus, all five individual Plaintiffs are prevented from

obtaining Arizona driver’s licenses under Defendants’ policy.

Together, Defendants are responsible for implementing

and enforcing the policy by which Plaintiffs are unable to

obtain Arizona driver’s licenses. Plaintiffs sued Defendants

in the U.S. District Court for the District of Arizona.

Plaintiffs alleged that Defendants’ policy violates the Equal

Protection Clause and the Supremacy Clause of the U.S.

Constitution, and sought (inter alia) a preliminary injunction

prohibiting defendants from enforcing their policy.

The district court denied Plaintiffs’ motion for a

preliminary injunction. The district court agreed that

Plaintiffs had established a likelihood of success on their

equal protection claim, but it concluded that Plaintiffs had not

shown a likelihood of irreparable harm. The district court

also concluded that Plaintiffs had not shown a likelihood of

success on their preemption claim, and that neither the public

interest nor the balance of the equities strongly favored either

side. Plaintiffs appealed.

Revision of Defendants’ Policy

While Plaintiffs’ appeal was pending, Defendants revised

their policy. Under Defendants’ revised policy, the Motor

Vehicle Division still refuses to accept Employment

Authorization Documents with category code (c)(33) — i.e.,

Employment Authorization Documents issued under DACA

— as proof of authorized presence. Now, however, the

Motor Vehicle Division also refuses to accept Employment

Authorization Documents with category codes (c)(14) (issued

10 ARIZONA DREAM ACT COALITION V. BREWER

to recipients of other forms of deferred action, see 8 C.F.R.

§ 274a.12(c)(14)) and (a)(11) (issued to recipients of deferred

enforced departure, see 8 C.F.R. § 274a.12(a)(11)).

Defendants contend that, as revised, their policy does not

violate the Equal Protection Clause.

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

STANDARD OF REVIEW

We review the district court’s denial of a preliminary

injunction for abuse of discretion. Sw. Voter Registration

Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)

(en banc). “A court abuses its discretion when it applies an

incorrect legal rule or relies upon a factual finding that is

illogical, implausible, or without support in inference that

may be drawn from the record.” Valle del Sol Inc. v. Whiting,

732 F.3d 1006, 1014 (9th Cir. 2013) (internal quotation marks

and alterations omitted).

DISCUSSION

“A plaintiff seeking a preliminary injunction must

establish that he [or she] is likely to succeed on the merits,

that he [or she] is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips

in his [or her] favor, and that an injunction is in the public

interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.

7, 20 (2008). Plaintiffs here have made all four of these

showings.

ARIZONA DREAM ACT COALITION V. BREWER 11

Before we discuss the Winter factors, however, we must

decide whether Plaintiffs’ requested injunction is mandatory

or prohibitory.

I. Type of Injunction Sought

Defendants argue that Plaintiffs’ requested injunction is

mandatory, and thus subject to a heightened burden of proof.

Defendants are mistaken.

“A mandatory injunction orders a responsible party to

take action,” while “[a] prohibitory injunction prohibits a

party from taking action and preserves the status quo pending

a determination of the action on the merits.” Marlyn

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

873, 878–79 (9th Cir. 2009) (internal quotation marks and

alteration omitted). The relevant status quo is that “between

the parties pending a resolution of a case on the merits.”

McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.

2012). As this language from McCormack suggests, the

“status quo” refers to the legally relevant relationship

between the parties before the controversy arose. See id. at

1020.

Here, Plaintiffs contest the enforceability of Defendants’

new policy. The status quo before Defendants’ revised their

policy in response to DACA was that Plaintiffs were subject

to a legal regime under which all holders of federal

Employment Authorization Documents were eligible for

Arizona driver’s licenses. By revising their policy in

response to DACA, Defendants affirmatively changed this

status quo.

12 ARIZONA DREAM ACT COALITION V. BREWER

The district court erred in defining the status quo ante

litem as a situation in which “Defendants did not issue

driver’s licenses to Plaintiffs.” Plaintiffs do not challenge

any particular refusal to grant driver’s licenses to them as

individuals. Instead, Plaintiffs challenge the Arizona

Department of Transportation’s driver’s license eligibility

standards, in general. The result of an injunction here may be

that, under state law, Arizona will ultimately provide driver’s

licenses to DACA recipients. But an injunction will not

“order[]” Defendants to take this step. See Marlyn

Nutraceuticals, 571 F.3d at 879.

Likewise, it does not matter that DACA recipients only

became eligible for Employment Authorization Documents

pursuant to a new federal policy, or that Defendants timed

their new policy to come into effect before Plaintiffs could

obtain Employment Authorization Documents. An action by

a third party (here, the federal government) that will not be

affected by this litigation cannot define the status quo

between the parties.

Plaintiffs’ requested preliminary injunction is not

mandatory. Instead, like other injunctions that prohibit

enforcement of a new law or policy, Plaintiffs’ requested

injunction is prohibitory. See, e.g., Bay Area Addiction

Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725,

727–30, 732 n.13 (9th Cir. 1999).

II. Likelihood of Success on the Merits

A. Preemption Claim

“A fundamental principle of the Constitution is that

Congress has the power to preempt state law.” Crosby v.

ARIZONA DREAM ACT COALITION V. BREWER 13

Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)

(citing, inter alia, U.S. Const., art. VI, cl. 2; Gibbons v.

Ogden, 9 Wheat. 1 (1824)). Under this principle, “state law

is naturally preempted to the extent of any conflict with a

federal statute.” Id. State law is conflict-preempted when it

is impossible to comply with both state law and federal law.

See, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142–43 (1963). Additionally, even if it is

possible to comply with both state and federal law, state law

is conflict-preempted whenever it “stands as an obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress.” Arizona v. United States, 132 S. Ct.

2492, 2501 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52,

67 (1941)).

Plaintiffs argue that Defendants’ policy is conflict-

preempted because it interferes with Congress’s intent that

the Executive Branch possess discretion to determine when

noncitizens may work in the United States. While we are

unable to resolve this issue conclusively on the record now

before us, we agree that Plaintiffs’ conflict-preemption theory

is plausible.

Congress has given the Executive Branch broad discretion

to determine when noncitizens may work in the United

States.1 See, e.g., 8 U.S.C. § 1324a(h)(3) (defining

“unauthorized alien,” for employment purposes, as an alien

who is neither a lawful permanent resident nor “authorized to

be . . . employed by this chapter or by the Attorney General”);

8 U.S.C. § 1324a(h)(1) (providing that Attorney General is

1

Conversely, determining when noncitizens may work is not within the

states’ traditional police power. See Truax v. Raich, 239 U.S. 33, 42

(1915).

14 ARIZONA DREAM ACT COALITION V. BREWER

responsible for certifying aliens’ right to work in the United

States); 8 U.S.C. § 1324a(b)(1)(C)(ii) (providing that a

document is valid as evidence of employment authorization

if “the Attorney General finds [it], by regulation, to be

acceptable” for that purpose); see also 8 U.S.C. § 1103(g)(2)

(authorizing Attorney General to “perform such other acts as

the Attorney General determines to be necessary” to enforce

the nation’s immigration laws); 8 C.F.R. § 274a.12

(establishing classes of noncitizens authorized to work in the

United States). Exercising this discretion, the Executive

Branch has determined that deferred action recipients —

including DACA recipients — are ordinarily authorized to

work in the United States. 8 C.F.R. § 274a.12(c)(14). In fact,

DACA recipients are required to apply for employment

authorization, in keeping with the Executive’s intention that

DACA recipients remain “productive” members of society.

Plaintiffs’ conflict preemption argument is that although

Congress has given the Executive discretion to determine

when noncitizens may work in the United States, and the

Executive has determined that DACA recipients may —

indeed, should — work in the United States, Defendants’

policy obstructs many DACA recipients’ ability to work in

Arizona. By ensuring that DACA recipients are unable to

drive, Plaintiffs maintain, Defendants’ policy severely

curtails DACA recipients’ ability to work.

As a practical matter, the ability to drive may be a virtual

necessity for people who want to work in Arizona. The

record shows that more than eighty-seven percent of

Arizona’s workforce commutes to work by car. (By contrast,

only about two percent of Arizonans commute to work using

public transportation.) Indeed, with one exception, the

individual Plaintiffs in this case — like the vast majority of

ARIZONA DREAM ACT COALITION V. BREWER 15

working Arizonans — rely on cars in commuting to work.2

And beyond the need for transportation, the link between

driver’s licenses and the ability to work is heightened by the

fact that some jobs — including jobs for which two Plaintiffs

wished to apply — require driver’s licenses as a condition of

hire. If Plaintiffs can ultimately show adequate proof of the

link between driver’s licenses and the ability to work in

Arizona, we agree that Defendants’ policy would be conflict-

preempted.

It does not matter that Defendants’ policy does not

formally prohibit DACA recipients from working.

“[P]reemption analysis must contemplate the practical result

of the state law, not just the means that a state utilizes to

accomplish the goal.” United States v. Alabama, 691 F.3d

1269, 1296 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022

(2013). In considering whether a state law is conflict-

preempted, “we ‘consider the relationship between state and

federal laws as they are interpreted and applied, not merely as

they are written.’” Ting v. AT&T, 319 F.3d 1126, 1137 (9th

Cir. 2003) (quoting Jones v. Rath Packing Co., 430 U.S. 519,

526 (1977)). If the practical result of the application of

Defendants’ policy is that DACA recipients in Arizona are

generally obstructed from working — despite the Executive’s

determination, backed by a delegation of Congressional

authority, that DACA recipients throughout the United States

may work — then Defendants’ policy is preempted.

2

One Plaintiff does not commute to work by car only because she does

not work at all: her lack of a driver’s license prevents her from pursuing

employment. Another Plaintiff is compelled to spend four hours each day

commuting via public transportation because he is unable to obtain a

driver’s license. Previously, this same Plaintiff relied on a third party to

drive him to and from work each day. The remaining three individual

Plaintiffs all commute to work by car.

16 ARIZONA DREAM ACT COALITION V. BREWER

Likewise, it does not matter that DACA recipients in

Arizona may drive to work illegally, without possessing valid

Arizona driver’s licenses. “[P]re-emption cases ordinarily

assume compliance with the state-law duty in question.”

Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 882

(2000) (emphasis omitted). State law is preempted whenever

its application would frustrate the objectives and purposes of

Congress, even if the state law’s own application is frustrated

by individuals’ noncompliance.

If, on the merits, Plaintiffs submit adequate proof that

Defendants’ policy interferes with the DHS Secretary’s

directive that DACA recipients be permitted (and, indeed,

encouraged) to work, they will, in turn, show that

Defendants’ policy interferes with Congress’s intention that

the Executive determine when noncitizens may work in the

United States. In this way, Defendants’ policy would “stand[

] as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Arizona, 132 S.

Ct. at 2501.

We need not rely on Plaintiffs’ preemption claim,

however, in determining whether Plaintiffs have established

a likelihood of success on the merits of their challenge to

Defendants’ policy. As we next explain — and as the district

court held — Plaintiffs have established a likelihood of

success on the merits of their Equal Protection Clause claim.3

3

We need not, and do not, reach Plaintiffs’ other preemption arguments

at this preliminary stage in the litigation. The fact that we do not reach

Plaintiffs’ other preemption arguments, however, does not mean that

Judges Pregerson and Berzon disagree with Judge Christen’s thoughtful

and persuasive concurrence. On the contrary, for the reasons Judge

Christen notes, see Concurring Opinion at 35 n.7, Plaintiffs may well

succeed on their argument that Defendants’ policy is conflict-preempted

ARIZONA DREAM ACT COALITION V. BREWER 17

As we also conclude that the other requisites for injunctive

relief are met, we must reverse the district court’s denial of a

preliminary injunction whether or not the record on Plaintiffs’

work authorization conflict preemption theory is now

adequate to establish a likelihood of success on that theory.

B. Equal Protection Claim

“The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall ‘deny to any

person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing

Plyler v. Doe, 457 U.S. 202, 216 (1982)). Plaintiffs may

prevail on their equal protection claim by showing “that a

class that is similarly situated has been treated disparately.”

Christian Gospel Church, Inc. v. City and Cnty. of San

Francisco, 896 F.2d 1221, 1225 (9th Cir. 1990).

“The first step in equal protection analysis is to identify

the state’s classification of groups.” Country Classic Dairies,

Inc. v. Milk Control Bureau, 847 F.2d 593, 596 (9th Cir.

1988). “The groups must be comprised of similarly situated

persons so that the factor motivating the alleged

discrimination can be identified.” Thornton v. City of St.

Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). The groups

in that it conflicts with the federal understanding that DACA recipients

enjoy “authorized” presence in the United States. Additionally, Judges

Pregerson and Berzon might well agree with Judge Christen’s insightful

field preemption analysis, if Judges Pregerson and Berzon were convinced

that Plaintiffs had raised this variety of preemption argument as a ground

for preliminary relief.

18 ARIZONA DREAM ACT COALITION V. BREWER

need not be similar in all respects, but they must be similar in

those respects relevant to the Defendants’ policy. See

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

We agree with the district court that DACA recipients are

similarly situated to other categories of noncitizens who may

use Employment Authorization Documents to obtain driver’s

licenses in Arizona. Even under Defendants’ revised policy,

Arizona issues driver’s licenses to noncitizens holding

Employment Authorization Documents with category codes

(c)(9) and (c)(10). These (c)(9) and (c)(10) Employment

Authorization Documents are issued to noncitizens who have

applied for adjustment of status and cancellation of removal,

respectively. See 8 C.F.R. § 274a.12(c)(9)–(10). As the

district court held, these noncitizens are likely similarly

situated to DACA recipients.

Defendants look to the statutory and regulatory

availability of immigration relief for the (c)(9) and (c)(10)

groups as a point of distinction. But individuals with (c)(10)

employment authorization, for example, are not in the United

States pursuant to any statutory provision while their

applications are pending. With regard to adjustment of status,

we have noted that “the submission of an application does not

connote that the alien’s immigration status has changed, as

the very real possibility exists that the INS will deny the

alien’s application altogether.” Vasquez de Alcantar v.

Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (quoting United

States v. Elrawy, 448 F.3d 309, 313 (5th Cir. 2006)).

In sum, like DACA recipients, many noncitizens who

have applied for adjustment of status and cancellation of

removal possess no formal lawful immigration status, and

may never obtain any. See Guevara v. Holder, 649 F.3d

ARIZONA DREAM ACT COALITION V. BREWER 19

1086, 1095 (9th Cir. 2011). Like DACA recipients,

noncitizens who have applied for adjustment of status and

cancellation of removal often have little hope of obtaining

formal immigration status in the foreseeable future. Indeed,

those with (c)(10) documents are already in removal

proceedings, while many DACA recipients are not —

suggesting that individuals in the (c)(10) category are more,

not less, likely to be removed in the near future than are

DACA recipients. In the relevant respects, then, noncitizens

with (c)(9) and (c)(10) employment authorization documents

are similarly situated to DACA recipients.

Unlike DACA recipients, however, noncitizens holding

(c)(9) and (c)(10) Employment Authorization Documents

may use those documents when applying for Arizona driver’s

licenses to prove — to the satisfaction of the Arizona

Department of Transportation — that their presence in the

United States is authorized under federal law. As the district

court found, these two groups of noncitizens account for more

than sixty-six percent of applicants who obtained Arizona

driver’s licenses using Employment Authorization

Documents during the past seven years. Although DACA

recipients are similarly situated to noncitizens holding (c)(9)

and (c)(10) Employment Authorization Documents, they have

been treated disparately.

Having concluded that Defendants’ revised policy targets

DACA recipients for disparate treatment, as compared to

other persons who are similarly situated, we would ordinarily

determine which standard of scrutiny to apply to Defendants’

policy. See, e.g., Country Classic Dairies, 847 F.2d at 596.

Here, however, we need not decide what standard of scrutiny

applies to Defendants’ policy: as the district court concluded,

20 ARIZONA DREAM ACT COALITION V. BREWER

Defendants’ policy is likely to fail even rational basis

review.4

To survive rational basis review, Defendants’ disparate

treatment of DACA recipients must be “rationally related to

a legitimate state interest.” City of Cleburne, 473 U.S. at 440.

Even considering the revisions to Defendants’ policy, we can

identify no legitimate state interest that is rationally related to

Defendants’ decision to treat DACA recipients disparately

from noncitizens holding (c)(9) and (c)(10) Employment

Authorization Documents. Defendants suggest that it is

rational to accept (c)(9) and (c)(10) Employment

Authorization Documents as proof that the holder’s “presence

. . . is authorized under federal law,” Ariz. Rev. Stat. Ann.

§ 28-3153(D), because persons with (c)(9) and (c)(10)

documents “[are] on a path to lawful status,” while DACA

recipients are not. As an initial matter, we are unconvinced

that Defendants have defined “a path to lawful status” in a

meaningful way. After all, noncitizens’ applications for

adjustment of status or cancellation of removal are often

denied, so the supposed “path” may lead to a dead end. But

even if we were to accept the premise of Defendants’

argument, we would still reject the conclusion. Defendants’

policy must be rationally related to a legitimate state interest

in treating noncitizens holding (c)(9) and (c)(10) Employment

4

Though we need not decide what standard of scrutiny to apply here, we

note that the Supreme Court has consistently required the application of

strict scrutiny to state action that discriminates against noncitizens

authorized to be present in the United States. See Nyquist v. Mauclet,

432 U.S. 1 (1977); Graham v. Richardson, 403 U.S. 365 (1971);

Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948). Conversely,

alienage-based discrimination is subject to rational basis review only when

the aliens targeted by that discrimination are “presen[t] in this country in

violation of federal law.” Plyler v. Doe, 457 U.S. 202, 223 (1982).

ARIZONA DREAM ACT COALITION V. BREWER 21

Authorization Documents as authorized to be present in the

United States under federal law, while refusing to so treat

Plaintiffs.

We discern no rational relationship between Defendants’

policy and a legitimate state interest. Instead, in purporting

to distinguish between these categories, Arizona assumes for

itself the federal prerogative of classifying noncitizens —

despite the fact that “[t]he States enjoy no power with respect

to the classification of aliens.” Plyler, 457 U.S. at 225.

Unless there is some basis in federal law for viewing

(c)(9) and (c)(10) Employment Authorization recipients as

having federally authorized presence that DACA recipients

lack, Arizona’s attempt at rationalizing this discrimination

fails. See id. We can see no such basis: we see no reason

why Employment Authorization Documents held by (c)(9)

and (c)(10) noncitizens demonstrate federally authorized

presence, while DACA recipients’ Employment

Authorization Documents do not. Defendants assert that

“unlike deferred action recipients, [Employment

Authorization Document] holders with all other codes either

have lawful status, are on a path to lawful status, or have an

[Employment Authorization Document] that is tied to relief

provided for under the [Immigration and Nationality Act].”

But Employment Authorization Documents merely “tied” to

the potential for relief do not indicate that the document

holder has current federally authorized presence, as Arizona

law expressly requires. Ariz. Rev. Stat. Ann. § 28-3153(D).

Nor is it apparent why, if Employment Authorization

Documents held by (c)(9) and (c)(10) noncitizens do establish

that their bearers are currently authorized to be present in the

United States, the same is not true of Plaintiffs’ Employment

22 ARIZONA DREAM ACT COALITION V. BREWER

Authorization Documents. Until (c)(9) and (c)(10)

noncitizens receive the relief that they have applied for, they

are authorized to be present in the United States in the same

sense that DACA recipients are authorized to be here: in both

cases, the federal government has allowed noncitizens to

remain in the United States, has pledged not to remove them

during the designated period, and has authorized them to

work in this country. Defendants’ “enjoy no power with

respect to the classification of aliens,” Plyler, 457 U.S. at

225, so their attempt to distinguish between these noncitizens

on the basis of an immigration classification that has no basis

in federal law is not likely to withstand equal protection

scrutiny.

Defendants advance four other justifications for their

policy, all of which were also raised in — and rejected by —

the district court. These additional justifications purport to

rely on Defendants’ judgment as to the wisdom of granting

driver’s licenses to DACA recipients, to explain Defendants’

differential treatment of otherwise equivalent federal

immigration classifications.

We agree with the district court that Defendants’ other

justifications for their policy are unlikely to survive rational

basis review. The granting or withholding of driver’s licenses

is tangential to the classification before us. Defendants’

“rel[iance] on a classification” — the classification of DACA

recipients as federally unauthorized and noncitizens with

(c)(9) and (c)(10) Employment Authorization Documents as

federally authorized — “whose relationship to an asserted

goal” — limiting access to driver’s licenses — “is so

attenuated as to render the distinction arbitrary or irrational,”

is not likely to withstand rational basis review. City of

Cleburne, 473 U.S. at 446.

ARIZONA DREAM ACT COALITION V. BREWER 23

First, Defendants suggest that issuing driver’s licenses to

DACA recipients might expose the Arizona Department of

Transportation to legal liability “for issuing driver’s licenses

to 80,000 unauthorized immigrants.” As the district court

noted, however, “this concern has not been borne out by the

numbers”: as of February 14, 2013, only 14,938 Arizona

residents had applied for DACA. (Meanwhile, between 2005

and 2012, Arizona issued approximately 47,500 driver’s

licenses to holders of non-DACA Employment Authorization

Documents.) Also, as the district court noted, Defendants are

unable to identify instances in which the Arizona Department

of Transportation has faced liability for issuing licenses to

noncitizens not authorized to be present in the United States.

Second, Defendants suggest that issuing driver’s licenses

to DACA recipients might allow DACA recipients to access

state and federal benefits to which they are not entitled. As

the district court observed, however, Defendant Halikowski

(Director of the Arizona Department of Transportation) and

Defendant Stanton (Assistant Director for the Motor Vehicle

Division) testified that they had no basis whatsoever for

believing that a driver’s license alone could be used to

establish eligibility for such benefits. It follows that

Defendants have no rational basis for any such belief.

Third, Defendants suggest that the DACA program might

be canceled, requiring Arizona to revoke DACA recipients’

driver’s licenses.5 If anything, however, it is less likely that

5

In the same vein, Defendants argue for the first time on appeal that

their policy avoids “unduly burdening [the Arizona Department of

Transportation] with processing an extremely large number of license

applications from groups that are not lawfully authorized to be in the

United States . . . .” As noted, the numbers do not bear out this fear,

24 ARIZONA DREAM ACT COALITION V. BREWER

Arizona will need to revoke DACA recipients’ driver’s

licenses, compared to driver’s licenses issued to noncitizens

holding (c)(9) and (c)(10) Employment Authorization

Documents. While Defendants’ concern for DACA’s

longevity is purely speculative, applications for adjustment of

status or cancellation of removal are routinely denied.

Fourth, Defendants suggest that DACA recipients may

have their authorized presence revoked at any time, and

thereafter may be quickly removed from the United States,

leaving those they may have injured in automobile accidents

with no financial recourse. Here too, however, Defendants’

professed concern applies with equal force to noncitizens

holding (c)(9) and (c)(10) Employment Authorization

Documents. Noncitizens who have applied for adjustment of

status or cancellation of removal may find their applications

denied at any time, and thereafter may be quickly removed

from the United States, leaving those they may have injured

in automobile accidents with no financial recourse.

Nevertheless, Defendants’ policy allows noncitizens holding

(c)(9) and (c)(10) Employment Authorization Documents to

obtain driver’s licenses, while prohibiting DACA recipients

from doing the same.6

especially when compared to the non-DACA holders of Employment

Authorization Documents who have received licenses.

6

Indeed, Defendants’ professed concern applies to practically every

driver that Arizona now licenses. Any driver — regardless of his or her

citizenship or immigration status — could flee Arizona after an

automobile accident, in an effort to avoid financial responsibility for that

accident.

To mitigate this risk, Arizona already requires every driver to carry

proof of financial responsibility, such as car insurance. See Ariz. Rev.

ARIZONA DREAM ACT COALITION V. BREWER 25

The record does suggest one additional reason for

Defendants’ policy, but that reason does not establish that

Defendants’ classification of DACA recipients is rationally

related to a legitimate state interest. Defendants’ policy

appears intended to express animus toward DACA recipients

themselves, in part because of the federal government’s

policy toward them. Such animus, however, is not a

legitimate state interest. “If the constitutional conception of

‘equal protection of the laws’ means anything, it must at the

very least mean that a bare desire to harm a politically

unpopular group cannot constitute a legitimate governmental

interest.” Romer v. Evans, 517 U.S. 620, 634 (1996)

(alterations and ellipsis omitted; emphasis in original).

In short, we agree with the district court that Plaintiffs

demonstrated a likelihood of success on their equal protection

claim. The subsequent revision of Defendants’ policy does

not undermine this conclusion. The current policy continues

to permit the use of Employment Authorization Documents

as proof of authorized presence for two sizeable groups of

noncitizens similarly situated to DACA recipients. The

district court relied, in part, on that comparison in concluding

that the Defendants’ policy likely violates the Equal

Protection Clause. We agree that comparison remains apt,

the partial change in policy notwithstanding.

In short, Defendants’ policy remains likely to violate the

Equal Protection Clause.

Stat. Ann. § 28-4135. In light of this financial responsibility requirement,

we are skeptical of Defendants’ suggestion that DACA recipients’

removal would leave accident victims without financial recourse.

26 ARIZONA DREAM ACT COALITION V. BREWER

III. Likelihood of Irreparable Harm

Plaintiffs have also shown that, in the absence of a

preliminary injunction, they are likely to suffer irreparable

harm.

Irreparable harm is traditionally defined as harm for

which there is no adequate legal remedy, such as an award of

damages. See Rent-A-Ctr., Inc. v. Canyon Television &

Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).

Because intangible injuries generally lack an adequate legal

remedy, “intangible injuries [may] qualify as irreparable

harm.” Id.

Plaintiffs in this case have produced ample evidence that

Defendants’ policy causes them to suffer irreparable harm.

In particular, Plaintiffs’ inability to obtain driver’s licenses

likely causes them irreparable harm by limiting their

professional opportunities. Plaintiffs’ ability to drive is

integral to their ability to work — after all, eighty-seven

percent of Arizona workers commute to work by car. It is

unsurprising, then, that Plaintiffs’ inability to obtain driver’s

licenses has hurt their ability to advance their careers.

Plaintiffs’ lack of driver’s licenses has prevented them from

applying for desirable entry-level jobs, and from remaining

in good jobs where they faced possible promotion. Likewise,

one Plaintiff — who owns his own business — has been

unable to expand his business to new customers who do not

live near his home. Plaintiffs’ lack of driver’s licenses has,

in short, diminished their opportunity to pursue their chosen

professions. This “loss of opportunity to pursue [Plaintiffs’]

chosen profession[s]” constitutes irreparable harm. Enyart v.

Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165

ARIZONA DREAM ACT COALITION V. BREWER 27

(9th Cir. 2011); see also Chalk v. U.S. Dist. Ct., 840 F.2d 701,

709–10 (9th Cir. 1988).

The irreparable nature of Plaintiffs’ injury is heightened

by Plaintiffs’ young age and fragile socioeconomic position.

Setbacks early in their careers are likely to haunt Plaintiffs for

the rest of their lives. Thus, “a delay, even if only a few

months, pending trial represents . . . productive time

irretrievably lost” to these young Plaintiffs. Chalk, 840 F.2d

at 710. Plaintiffs’ entire careers may be constrained by

professional opportunities they are denied today.

We are unpersuaded by Defendants’ argument that

Plaintiffs’ ability to drive illegally means they cannot suffer

harm from their inability to obtain driver’s licenses. Laws are

not irrelevant simply because they may be disobeyed. There

can be no serious dispute that Defendants’ policy hinders

Plaintiffs’ ability to drive, and that this (in turn) hinders

Plaintiffs’ ability to work and engage in other everyday

activities.

No award of damages can compensate Plaintiffs’ for the

myriad personal and professional harms caused by their

inability to obtain driver’s licenses. Thus, Plaintiffs are likely

to suffer irreparable harm in the absence of an injunction.

In arriving at a contrary conclusion, the district court

applied the wrong legal standard. The district court required

Plaintiffs to show that the harm they suffered in the absence

of an injunction was “extreme or very serious,” and not

merely that this harm was irreparable. The district court

required this “extreme” level of harm because it incorrectly

believed Plaintiffs’ requested injunction was mandatory.

Plaintiffs’ requested injunction is, in fact, prohibitory. See

28 ARIZONA DREAM ACT COALITION V. BREWER

supra, Part I. In this light, the district court erred by

attempting to evaluate the severity of the harm to Plaintiffs,

rather than simply determining whether the harm to Plaintiffs

was irreparable.

When the correct legal standard is applied, the record

makes clear that Plaintiffs are likely to suffer irreparable

harm unless Defendants’ policy is enjoined.

IV. Other Injunction Factors

Finally, by establishing a likelihood that Defendants’

policy violates the U.S. Constitution, Plaintiffs have also

established that both the public interest and the balance of the

equities favor a preliminary injunction. “[I]t is clear that it

would not be equitable or in the public’s interest to allow the

state . . . to violate the requirements of federal law, especially

when there are no adequate remedies available.” Valle del

Sol, 732 F.3d at 1029 (alteration and ellipsis in original). On

the contrary, the public interest and the balance of the equities

favor “prevent[ing] the violation of a party’s constitutional

rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

2012).

CONCLUSION

Plaintiffs have shown that they are likely to succeed on

the merits of their equal protection claim, that they are likely

to suffer irreparable harm unless Defendants’ policy is

enjoined, and that both the balance of the equities and the

public interest favor an injunction. Thus, we REVERSE the

district court’s denial of a preliminary injunction. We

REMAND with instructions to enter a preliminary injunction

prohibiting Defendants from enforcing any policy by which

ARIZONA DREAM ACT COALITION V. BREWER 29

the Arizona Department of Transportation refuses to accept

Plaintiffs’ Employment Authorization Documents, issued to

Plaintiffs under DACA, as proof that Plaintiffs are authorized

under federal law to be present in the United States.

REVERSED and REMANDED.

CHRISTEN, Circuit Judge, joining the majority opinion and

concurring as to Part II.A:

For the reasons explained in Judge Pregerson’s opinion,

I agree plaintiffs have demonstrated a likelihood of success

on the merits of their equal protection claim. I further agree

they have shown a likelihood of irreparable injury, and have

satisfied the other prerequisites for injunctive relief. I write

separately to express my view that plaintiffs have also

demonstrated a likelihood of success on their preemption

claim because Arizona’s policy regulates immigration by

creating a new classification of alien status. Arizona

prohibits the issuance of driver’s licenses to anyone who does

not submit proof that his or her presence in the United States

is “authorized under federal law,” yet Arizona’s newly-

crafted definition of “authorized presence” is unmoored from

and unsupported by federal law. When it adopted its new

policy regarding driver’s license eligibility, Arizona did not

merely borrow a federal immigration classification; it created

a new one. By doing so, Arizona ventured into an area—the

creation of immigration classifications—that is the exclusive

domain of the federal government.

* * *

30 ARIZONA DREAM ACT COALITION V. BREWER

“[T]he ‘power to regulate immigration is unquestionably

. . . a federal power.’” Chamber of Commerce of U.S. v.

Whiting, 131 S. Ct. 1968, 1974 (2011) (quoting De Canas v.

Bica, 424 U.S. 351, 354 (1976)). Though not all state

regulations touching on immigration are preempted, id., states

may not directly regulate immigration, Valle del Sol Inc. v.

Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied,

134 S. Ct. 1876 (2014).

Arizona’s policy does not expressly dictate who may be

present in the United States; it ostensibly regulates who can

get a state driver’s license. But the policy embodies the

State’s independent judgment that recipients of Deferred

Action for Childhood Arrivals (DACA) are not “authorized”

to be present in the United States “under federal law.” Ariz.

Rev. Stat. Ann. § 28-3153(D) (emphasis added). Interpreting

this statutory language and, by necessity, federal law, the

governor of Arizona announced in Executive Order 2012-06,

that: “the Deferred Action program does not and cannot

confer lawful or authorized status or presence” (emphasis

added). The Executive Order also announced the view that

“[t]he issuance of Deferred Action or Deferred Action . . .

employment authorization documents to unlawfully present

aliens does not confer upon them any lawful or authorized

status” (emphasis added).

In accord with the Executive Order, Arizona revised its

driver’s license policy in response to the announcement of the

federal DACA program. Arizona’s revised policy reflects its

position that beneficiaries of three types of relief from

removal—DACA, regular deferred action, and deferred

enforced departure—all lack authorized presence under

federal law. On appeal, defendants forthrightly acknowledge

that this determination does not follow directly from any

ARIZONA DREAM ACT COALITION V. BREWER 31

particular federal law, but only from Arizona’s separate

interpretation of the federal immigration scheme. According

to this interpretation: “DACA, regular deferred action, and

deferred enforced departure have no basis in [federal] statute

or regulation but rather reflect the federal executive’s

discretionary decision not to enforce federal law.”1

Paradoxically, Arizona classifies as “authorized” two

other groups of aliens that similarly lack lawful immigration

status under federal law—recipients of (c)(9) and (c)(10)

employment authorization documents—because, defendants

claim, these groups are on a “path to legal status.”2 The terms

“deferred action,” “deferred enforced departure,” and “lawful

immigration status” all expressly appear in federal law. See,

e.g., 8 U.S.C. § 1227(d)(2) (deferred action); 8 C.F.R.

§ 1245.9(g)(4) (deferred enforced departure); 8 C.F.R.

§ 245.1(d)(1) (lawful immigration status). But no federal law

expressly articulates or even implies the distinct concept of a

“path to legal status.” This novel gloss on the federal

immigration scheme underlies Arizona’s sub-classification of

aliens lacking lawful status into two new groups, one of

which it deems authorized to be present, and the other it

deems “not authorized.”

Plaintiffs argue that Arizona’s policy is preempted by the

United States Constitution as an impermissible regulation of

1

The existence of this discretion is recognized in both the United States

Code and the Code of Federal Regulations. See, e.g., 8 U.S.C.

§ 1154(a)(1)(D)(i)(II), (VI); 8 U.S.C. § 1227(d)(2); 8 C.F.R.

§ 245a.2(b)(5).

2

As our opinion notes, recipients of (c)(9) and (c)(10) documents are

noncitizens who have applied for adjustment of status and cancellation of

removal, respectively. See 8 C.F.R. § 274a.12(c)(9)–(10).

32 ARIZONA DREAM ACT COALITION V. BREWER

immigration status. They claim that the Constitution reserves

regulation of immigration to the federal government.3

Plaintiffs point to language from the Supreme Court’s

decision in De Canas suggesting that a direct state regulation

of immigration would be “constitutionally proscribed.”

424 U.S. at 356; see id. at 352–56; cf. Toll v. Moreno,

458 U.S. 1, 10 (1982) (“[T]he preeminent role of the Federal

Government with respect to the regulation of aliens. . . .

derives from various sources, including the Federal

Government’s power ‘[t]o establish [a] uniform Rule of

Naturalization,’ U.S. Const., Art. I, § 8, cl. 4, its power ‘[t]o

regulate Commerce with foreign Nations,’ id., cl. 3, and its

broad authority over foreign affairs.”). De Canas described

“a regulation of immigration” as “essentially a determination

of who should or should not be admitted into the country, and

the conditions under which a legal entrant may remain.”

424 U.S. at 355. In Whiting, the Court cited De Canas and

reaffirmed that regulation of immigration is a federal power.

131 S. Ct. at 1974. Even more recently, the Court in Arizona

v. United States recognized that “[t]he federal power to

determine immigration policy is well settled.” 132 S. Ct.

2492, 2498 (2012).

It is unnecessary in this case to resolve whether a

regulation of immigration is preempted under the

Constitution or merely by statutory law. Even if such a

regulation would not be directly preempted by the

3

Arizona mischaracterizes plaintiffs’ position as being that “any state

law touching on immigration is constitutionally preempted.” But plaintiffs

recognize that the mere “fact that aliens are the subject of a state statute

does not render it a regulation of immigration.” See De Canas, 424 U.S.

at 355.

ARIZONA DREAM ACT COALITION V. BREWER 33

Constitution,4 it would still be subject to preemption based on

“[t]he comprehensiveness of the [Immigration &

Naturalization Act (INA)] scheme for regulation of

immigration and naturalization.”5 De Canas, 424 U.S. at 359;

see Whiting, 131 S. Ct. at 1973; see also Clare Huntington,

The Constitutional Dimension of Immigration Federalism, 61

Vand. L. Rev. 787, 852 (2008) (arguing that “federal

exclusivity in the admission and removal of non-citizens is

better understood to rest on ordinary statutory preemption”).

The Supreme Court’s immigration jurisprudence

recognizes that the occupation of a regulatory field may be

“inferred from a framework of regulation ‘so pervasive . . .

that Congress left no room for the States to supplement it.’”

Arizona, 132 S. Ct. at 2501 (quoting Rice v. Sante Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). The Supreme

Court has indicated that the INA provides a pervasive

framework with regard to the admission, removal, and

presence of aliens. See Whiting, 131 S. Ct. at 1973 (quoting

De Canas, 424 U.S. at 353, 359); cf. Arizona, 132 S. Ct. at

2499 (“Federal governance of immigration and alien status is

extensive and complex.”). “The States enjoy no power with

respect to the classification of aliens.” Plyler v. Doe,

457 U.S. 202, 225 (1982). The Court continues to recognize

that determinations regarding the presence of aliens in the

4

I express no view on this question.

5

But see Valle del Sol Inc., 732 F.3d at 1023 (stating in dicta that “direct

regulation of immigration” is “constitutionally proscribed”).

34 ARIZONA DREAM ACT COALITION V. BREWER

United States “must be made with one voice.”6 Arizona, 132

S. Ct. at 2506–07.

Defendants counter that the State is free to adopt federal

classifications in regulations concerning state matters, such as

driver’s licenses. But this raises the question whether this is

all Arizona’s new policy does, or whether it really amounts

to an “additional or auxiliary regulation[]” of alien status.

See Arizona, 132 S. Ct. at 2502 (quoting Hines v. Davidowitz,

6

The panel majority and I have different views of the scope of the

arguments plaintiffs raised in support of their motion for a preliminary

injunction. There is no doubt that plaintiffs’ memorandum in support of

their motion unambiguously argued Arizona’s policy is an impermissible

regulation of immigration that intrudes upon the exclusive federal power

to classify aliens for purposes of admission, removal, and presence.

District Court Docket No. 30. Plaintiffs did expressly disavow that they

are “asserting that the federal government has occupied the field of

regulation of driver’s licenses.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss,

District Court Docket No. 91 at 8 n.6 (emphasis added). But the

“regulation of immigration” argument addressed here is completely

different, and plaintiffs raised it point-blank. The district court considered

the argument at length, and rejected it. That plaintiffs did not frame their

“regulation of immigration” argument specifically in terms of statutory

preemption is consistent with their position that it is well established the

Constitution directly preempts state regulation of immigration. My

conclusion that plaintiffs’ argument is likely to succeed is not based

strictly on a statutory field preemption analysis. Rather, because this

appeal should be resolved on the narrowest grounds available, it is not

necessary to decide, at the preliminary injunction stage, whether the

proper basis for preemption of Arizona’s policy is statutory or

constitutional. This prudential consideration does not mean I address a

different argument from the one plaintiffs raised; plaintiffs expressly

argued to the district court that Arizona’s policy amounts to a regulation

of immigration. Because the argument was “raised sufficiently for the

trial court to rule on it,” it was not waived. Whittaker Corp. v. Execuair

Corp., 953 F.2d 510, 515 (9th Cir. 1992) (citation and internal quotation

marks omitted).

ARIZONA DREAM ACT COALITION V. BREWER 35

312 U.S. 52, 66–67 (1941)). Defendants contend that the

State may employ its concept of a “path to status” to arrange

existing federal classifications into its own definition of

“authorized presence,” so long as this definition does not

stand “in direct conflict with formal immigration statuses and

classifications that the INA expressly created.” But the

classifications in federal immigration law are not Lego pieces

that the State may shape into new patterns in an exercise of

regulatory bricolage. “Where Congress occupies an entire

field, . . . even complementary state regulation is

impermissible.”7 Id.

Even a law ostensibly addressing a traditional subject of

state concern, like driver’s licenses, may effect an

impermissible regulation of immigration. This conclusion is

consistent with Supreme Court precedent and decisions from

other jurisdictions. In Toll, for example, the Court held that

preemption principles applied to a state policy concerning the

imposition of tuition charges and fees at a state university on

the basis of immigration status. 458 U.S. at 16–17. Also, the

Third Circuit recently held that municipal laws preventing

unauthorized aliens from renting housing constituted an

7

That this case involves classes of aliens the Executive has permitted to

remain in the country pursuant to its discretion is a further consideration

weighing against allowing a complementary state regulation of

immigration here. The Supreme Court has emphasized that “[a] principal

feature of the removal system is the broad discretion exercised by

immigration officials.” Arizona, 132 S. Ct. at 2499. And the Court has

specifically recognized that federal statutes contemplate and protect the

discretion of the Executive Branch when making determinations

concerning deferred action. See Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 484–86 (1999). The discretion that is built into

statutory removal procedures suggests that auxiliary state regulations

regarding the presence of aliens in the United States would be particularly

intrusive on the overall federal statutory immigration scheme.

36 ARIZONA DREAM ACT COALITION V. BREWER

impermissible regulation of immigration and were field

preempted by the INA. Lozano v. City of Hazleton, 724 F.3d

297, 317 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).

Though these housing laws did not directly dictate who

should or should not be admitted to this country, the Third

Circuit concluded that they nonetheless “intrude[d] on the

regulation of residency and presence of aliens in the United

States.” Id. (emphasis added). Similarly, the Fifth Circuit

recently held that an ordinance “allow[ing] state courts to

assess the legality of a non-citizen’s presence” in the United

States was preempted because it “open[ed] the door to

conflicting state and federal rulings on the question.” Villas

at Parkside Partners v. City of Farmers Branch, 726 F.3d

524, 536 (5th Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).

The Fifth Circuit’s decision was based on its recognition that

“[t]he federal government alone . . . has the power to classify

non-citizens.” Id. Here, the practical effects of Arizona’s

policy most directly relate to the regulation of state driver’s

licenses, but this does not shield the policy from preemption

if the policy also functions as a regulation of immigration,

i.e., a separate determination of alien status. See United

States v. Alabama, 691 F.3d 1269, 1292–96 (11th Cir. 2012),

cert. denied, 133 S. Ct. 2022 (2013) (holding that a state law

prohibiting courts from recognizing contracts involving

unlawfully present aliens was preempted as “a thinly veiled

attempt to regulate immigration under the guise of contract

law”).

Defendants are conspicuously unable to point to any

federal statute or regulation that justifies classifying

applicants for adjustment of status and cancellation of

removal as authorized to be present, while excluding

recipients of deferred action or deferred enforced departure.

All of these groups similarly lack formal immigration status

ARIZONA DREAM ACT COALITION V. BREWER 37

but are allowed to live and work in the country for a period of

time by the federal government. Lacking a specific

foundation in federal statutory or regulatory law, defendants

cite other sources to show that Arizona’s definition of

“authorized presence” at least tracks the federal scheme, but

these efforts are equally unpersuasive.

First, defendants point to the “Frequently Asked

Questions” (FAQ) section of the website for the United States

Citizenship and Immigration Services. The answer to one of

the questions states that although DACA recipients “do not

accrue unlawful presence (for admissibility purposes) during

the period of deferred action, deferred action does not confer

any lawful status.” But the position articulated on this

website is entirely consistent with the Executive’s

discretionary authority to defer prosecution of some

individuals without changing their formal immigration status.

The “answer” in the FAQ section lends no support to Arizona

because the terms “presence” and “status” are terms of art in

the scheme of federal immigration law, and they are not

necessarily interchangeable. See Chaudhry v. Holder,

705 F.3d 289, 291 (7th Cir. 2013) (“The Board [of

Immigration Appeals has] acknowledged that ‘unlawful

presence’ and ‘unlawful status’ are distinct concepts.”);

Dhuka v. Holder, 716 F.3d 149, 154–59 (5th Cir. 2013)

(accepting the Board’s distinction between presence and

status and rejecting argument that an authorized stay pursuant

to 8 U.S.C. § 1182(a)(9)(B)(ii) is equivalent to lawful status).

More fundamentally, of course, it cannot be disputed that the

FAQ section of a federal website is not a source of “federal

law,” nor would an interpretation announced there be subject

to deference by a court.

38 ARIZONA DREAM ACT COALITION V. BREWER

Defendants also point to a Congressional Research

Service Memorandum remarking that “[m]any observers

characterize foreign nationals with relief from removal who

obtain temporary work authorizations as ‘quasi-legal’

unauthorized migrants.” The Memorandum states that such

persons “may be considered ‘lawfully present’ for some very

narrow purposes under the INA . . . but are otherwise

unlawfully present.” But the Memorandum cites no statutory

or regulatory provision in support of this statement, and a

research memorandum, like a website, is not federal law. It

should also be noted that if Arizona were actually relying on

the Memorandum’s purported classification of “quasi-legal”

unauthorized migrants, Arizona would not have made driver’s

licenses accessible to noncitizens with (c)(9) and (c)(10) work

authorizations, because these noncitizens would also appear

to fall under the purported “quasi-legal” classification.8

Not only does Arizona’s classification of aliens with

authorized presence lack a specific anchor in federal law, but

the primary federal law concerning the status of aliens, the

INA, points away from Arizona’s interpretation. For

purposes of determining the admissibility of aliens other than

those lawfully admitted for permanent residence, the INA

states that if an alien is present in the United States beyond a

“period of stay authorized by the Attorney General” or

without being admitted or paroled, the alien is “deemed to be

unlawfully present in the United States.” 8 U.S.C.

§ 1182(a)(9)(B)(ii) (emphases added). The administrative

regulations implementing this section of the INA, to which

8

Under the classification suggested by the Memorandum, recipients of

(c)(9) and (c)(10) authorizations are, like DACA recipients, “foreign

nationals with relief from removal who obtain temporary work

authorizations.”

ARIZONA DREAM ACT COALITION V. BREWER 39

we owe deference, establish that deferred action recipients do

not accrue “unlawful presence” under § 1182(a)(9)(B) for

purposes of calculating when they may seek admission to the

United States. 8 C.F.R. § 214.14(d)(3), 28 C.F.R.

§ 1100.35(b)(2). Because such recipients are present without

being admitted or paroled, their stay must be considered

“authorized by the Attorney General,” at least for purposes of

§ 1182(a)(9)(B).9

Defendants argue that the INA’s definition of “unlawful

presence” applies only “for the narrow purpose of stopping

the accrual of unlawful presence used to calculate future bars

to admissibility.” They claim that, under the federal

immigration scheme, DACA recipients may be “authorized”

for some purposes but not others.10 From there, defendants

assert that Arizona “could separately and validly determine

DACA recipients do not have authorized or lawful presence

for purposes of Arizona’s driver’s license statute, without

running afoul of any federal immigration laws” (emphasis

added). But as discussed, where Congress has created a

9

Another federal statute, the REAL ID Act, is also consistent with the

INA’s definition of “unlawful presence.” REAL ID Act of 2005, Pub. L.

No. 109-13, div. B, 119 Stat. 231. This law provides that states may issue

a driver’s license or identification card to persons who can demonstrate an

“authorized stay in the United States.” Id. § 202(c)(2)(C)(i)–(ii). Persons

with “approved deferred action status” are expressly identified as being

present in the United States during a “period of authorized stay,” for the

purpose of issuing state identification cards. Id. § 202(c)(2)(B)(viii),

(C)(ii). The REAL ID Act further weighs against Arizona’s efforts to

justify its classification under federal law.

10

For example, Arizona notes that a Department of Health and Human

Services regulation has carved out DACA recipients from the definition

of “lawful presence” for purposes of eligibility for certain benefits under

the Affordable Care Act. 45 C.F.R. § 152.2(8).

40 ARIZONA DREAM ACT COALITION V. BREWER

pervasive regulatory scheme, such as for the classification of

alien status, a state may not “supplement” federal law.

Arizona, 132 S. Ct. at 2501.

In sum, defendants offer no plausible foundation for an

interpretation of federal law that classifies individuals with

(c)(9) and (c)(10) work authorization documents as having

“authorized presence,” but not DACA recipients. At the

same time, defendants ignore the use of the terms

“authorized” and “presence” in the INA, the statute that

provides the most comprehensive scheme relating to the

admissibility and status of aliens. See Whiting, 131 S. Ct. at

1973. Finally, defendants appear to have conflated the

statutory terms “presence” and “status,” while also applying

them inconsistently.

Plaintiffs are therefore likely to succeed in their argument

that Arizona’s policy for issuing driver’s licenses is an

impermissible regulation of immigration status because the

policy relies on Arizona’s separate and unsupported

determination of who is authorized to be present in the United

States under federal law. It is unnecessary at this stage to

decide whether the appropriate basis for the preemption of

state regulation of immigration lies in the federal constitution

or in the comprehensive statutory scheme for the

determination of alien status. Our panel is only called upon

to gauge whether plaintiffs are entitled to preliminary

injunctive relief. Because the Supreme Court has consistently

cautioned that the regulation of immigration is an exclusively

federal function, and because plaintiffs have persistently and

persuasively argued that Arizona’s revised policy creates a

new classification of alien status, I conclude that plaintiffs are

entitled to preliminary injunctive relief under this theory.