LeClerc v. Webb

CARL E. STEWART, Circuit Judge,

concurring in part and dissenting in part:

I concur in the panel’s majority decision affirming the district courts’ rulings that: (1) Section 3(B) is not preempted by federal immigration or trade policy; (2) the defendants’ jurisdiction arguments should be denied; (3) the plaintiffs’ due process arguments should be dismissed, (4) plaintiff Affleck lacked standing to assert a claim under the NAFTA, and (5) the Le-Clerc plaintiffs’ motion to reconsider should be denied. For the following reasons, I respectfully dissent from the majority’s conclusion that the plaintiffs’ Equal Protection claim should be dismissed.

First, I disagree with the majority’s conclusion that strict scrutiny review should not apply to the issue before us. The Supreme Court in Graham v. Richardson held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.” 403 U.S. 365, 372 , 91 S.Ct. 1848 , 29 L.Ed.2d 534 (1971)(internal citation omitted); see also Application of Griffiths, 413 U.S. 717, 721 , 93 S.Ct. 2851 , 37 L.Ed.2d 910 (1973). It should be noted that not all limitations on aliens are suspect. See Foley v. Connelie, 435 U.S. 291, 294 , 98 S.Ct. 1067 , 55 L.Ed.2d 287 (1978). Although the general rule is that classifications of aliens are suspect and strict scrutiny should apply, the Court has also held that less than strict scrutiny is warranted where a state law discriminates based on alienage classification regarding matters related to the democratic process. Id. (“a democratic society can be ruled by its own people”). Also, because Congress has plenary power to regulate immigration, federal statutes and presidential orders that discriminate against aliens are also reviewed with something less than strict scrutiny. Mathews v. Diaz, 426 U.S. 67, 81 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976) (“the relationship between the U.S. and our alien visitors has been committed to the political branches of the federal government. Since decisions in these matters may implicate our relations with foreign powers ... such decisions are frequently of a character more appropriate to either the Legislature or the Executive branches than to the Judiciary.”). In all other circumstances, the Supreme Court has applied strict scrutiny to classifications based on alienage. Alien-age is defined as the state or condition of being an alien. Black's Law DICTIONARY 79 (8th ed.1999). An alien is “any person not a citizen or national of the United States.” 8 U.S.C. § 1101 (a)(3). The majority is wary about “expanding” strict scrutiny review to nonimmigrant aliens as a distinctive suspect class in the absence of a black letter holding by the U.S. Supreme Court to that effect. I disagree with the majority’s reservations because the Supreme Court’s statement that “alienage is a suspect class” by definition includes nonimmi-grant aliens as part of that class.

The majority emphasizes that, as opposed to the Rule at issue here, “the rule at issue in Griffiths effected a ‘total exclusion [of all] aliens from the practice of law^ *427 in Connecticut.” Proposed Op. at 415. However, the Supreme Court has stated that “[t]he fact that the [challenged] statute is not an absolute bar [against all aliens] does not mean that it does not discriminate against the class.” Nyquist v. Mauclet, 482 U.S. 1, 9 , 97 S.Ct. 2120 , 53 L.Ed.2d 63 (1977). It is only important that the Rule is directed at aliens and only aliens are harmed by it. Id. Section 3(b) only allows citizens and resident aliens to apply for admission to the Louisiana state bar. In re Bourke, 819 So.2d 1020, 1021 (La.2002). Because the Louisiana Supreme Court has defined resident aliens as “aliens who have been granted permanent resident status in the United States,” id., the Rule discriminates against all nonim-migrant aliens. The Rule does discriminate against the class because it is directed at aliens and only aliens are harmed by it.

In discussing the alien suspect class, the Supreme Court has referred to resident aliens, aliens and non-citizens interchangeably. The majority uses the term resident aliens in referring to the suspect class first created in Graham v. Richardson. In order to properly understand the semantics in this case, it is necessary to explore the definitions used in the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 , et seq. All aliens legally admitted in the U.S. fall into one of two categories: immigrant (persons who want to become permanent residents) and non-immigrant (persons granted stay for a limited period of time). David WeissbRodt, Immigration Law AND Prooedure § 5-1 — 6-1 (4th ed.1998). These two broad categories are each further divided into specific types of visas. Id. In the INA, there is no definition of resident alien, only a definition of residence as referring “only to the place of general abode without regard to intention.” 1 See 8 U.S.C. § 1101 (a)(33). Thus, residence and immigration status should be understood as two separate distinctions; one does not necessarily have to do with the other. As the district court noted in Wallace v. Calogero, “the term ‘resident alien’ is broader than the Act’s immigration categories and includes both immigrant and nonimmigrant aliens lawfully residing in the United States.” 286 F.Supp.2d 748, 762 (E.D.La.2003). In other words, a nonimmigrant alien who lives in the United States is but one class of resident alien. I read the term “resident alien,” as it is used in the Supreme Court’s jurisprudence, as simply indicating that the alien resides in the United States. This point is further made clear by Justice Blackmun’s majority opinion in Kleindienst v. Mandel, 408 U.S. 753 , 92 S.Ct. 2576 , 33 L.Ed.2d 683 (1972). Justice Blackmun, the author of the majority opinion in Graham, used the term “nonresident alien” to refer to plaintiff Ernest Mandel, a Belgian citizen who resided in Brussels. 408 U.S. at 762 , 92 S.Ct. 2576 .

The Court has not distinguished between immigrant aliens or nonimmigrants aliens when discussing the alienage suspect class even though the Court has had before it cases which involved extensive *428 review of the Immigration and Naturalization Act and its various classifications for admitted aliens; the Court was not ignorant of the terminology associated with the INA’s alien classifications nor presumably of the distinctions between these classifications. See e.g., Kleindienst, 408 U.S. at 753 , 757 n. 4, 92 S.Ct. 2576 (holding that a Belgian citizen living in Brussels, “as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise”); see also Saxbe v. Bustos, 419 U.S. 65 , 95 S.Ct. 272 , 42 L.Ed.2d 231 (1974) (holding that daily and seasonal alien commuters qualify as immigrant aliens rather than as nonimmi-grant aliens). Despite the Court’s familiarity with the distinction between immigrant and nonimmigrant aliens, the Court has still spoken of a general “alien” suspect class.

The defendants and the majority rely heavily on the fact that the Court’s cases that employ strict scrutiny analysis all involved plaintiffs who were permanent resident aliens. 2 However, I am not persuaded that based on this fact alone, the Court’s strict scrutiny analysis should be restricted to laws that discriminate against permanent resident aliens. Again, the Supreme Court has not explicitly emphasized the alien plaintiffs’ permanent resident status in discussing the alien suspect class. As the majority opinion observes, nonim-migrant aliens have come before the Court asserting Equal Protection claims. Twice the Court found it unnecessary to reach the Equal Protection issue, see Toll v. Moreno, 458 U.S. 1 , 102 S.Ct. 2977 , 73 L.Ed.2d 563 (1982) and De Canas v. Bica, 424 U.S. 351 , 96 S.Ct. 933 , 47 L.Ed.2d 43 (1976), and once the Court applied rational basis review, see Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982). Although the Court applied rational basis review to the aliens in Plyler , as the majority notes, Plyler “is a far different case from the case at bar.” Proposed Op. at 420. Plyler involved illegal aliens. In refusing to grant suspect classification to illegal aliens, the Court focused on their undocumented and unlawfully status. Plyler, 457 U.S. at 219 n. 19, 102 S.Ct. 2382 . The nonimmigrant aliens here, by contrast, are lawfully admitted aliens. The Court’s opinions have applied strict scrutiny review when the plaintiffs at issue are lawfully admitted aliens who reside in the United States, like the plaintiffs here. See e.g., Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420 , 68 S.Ct. 1138 , 92 L.Ed. 1478 (1948); Graham, 403 U.S. at 371 , 91 S.Ct. 1848 .

The majority also relies heavily on the Supreme Court’s statement in Griffiths that “[rjesident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities.” 413 U.S. at 722 , 93 S.Ct. 2851 . Nonimmigrant aliens do pay taxes, support the economy and contribute in other ways to our society. See n.l, supra. Nonetheless, I am not persuaded that an aliens’ ability to serve in the Armed Forces or pay taxes is the primary rationale for affording suspect class designation to aliens; after all aliens were afforded suspect class designation before Griffiths. See Graham, 403 U.S. 365 , 91 S.Ct. 1848 , 29 L.Ed.2d 534 . Instead, the basis for aliens’ class designation seems to be premised on aliens’ inability to vote, and thus their impotence in the political process, and the *429 long history of invidious discrimination against them. See Plyler, 457 U.S. at 218 n. 14, 102 S.Ct. 2382 (citing Graham, 403 U.S. at 372 , 91 S.Ct. 1848 ); see also Erwin Chemerinsky, Constitutional Law 618-19 (1997). See generally Takahashi, 334 U.S. 410 , 68 S.Ct. 1138 , 92 L.Ed. 1478 .

In order to distance nonimmigrant aliens from the class of “aliens” that the Supreme Court has recognized as inherently suspect, the majority emphasizes the temporary and “transient” status of non-immigrant aliens. However, the majority is unable to avoid the Supreme Court’s ruling in Toll v. Moreno, which recognized that nonimmigrant aliens who hold a G-4 visa are aliens with permanent status similar to citizens and immigrant aliens. 458 U.S. 1 , 102 S.Ct. 2977 , 73 L.Ed.2d 563 (1983); see also Elkins v. Moreno, 435 U.S. 647, 663-64 , 98 S.Ct. 1338 , 55 L.Ed.2d 614 (1978). The majority vigorously asserts that G-4 nonimmigrant aliens are distinct from the nonimmigrant aliens here because the aliens here are “transient non-immigrant aliens,” a new alienage classification crafted by the majority’s opinion only. However, the constitutional challenge here is not an as applied challenge to Section 3(b). The plaintiffs assert that the rule discriminates against all nonimmi-grant aliens. Therefore, if one nonimmi-grant alien group does not fit within the opinion’s analysis — that nonimmigrant aliens are not a suspect class because they are not “permanent” residents — then the majority’s argument as a whole must fail.

The majority states that “nonimmigrant aliens — who ordinarily stipulate before entry to this country that they have no intention of abandoning their native citizenship, and who enter with no enforceable claim to establishing permanent residence or ties here — need not be accorded the extraordinary protection of strict scrutiny by virtue of their alien status alone.” Proposed Op. at 417. But, not all nonimmigrant aliens are required to keep a permanent residence abroad and are not allowed to intend to stay in the United States. Besides, G-4 nonimmigrant aliens, the Immigration Act of 1990 states that H-l and L category visa holders (as some of the plaintiffs are here) do not have to pledge an intention to only stay in the United States temporarily, and can seek permanent residence in the United States. 22 C.F.R. § 41.11 ; 8 C.F.R. §§ 214.2 (h)(16), (1)(16); 68 No. 21 Interpreter Releases 681-84 (June 3, 1991). The BIA and the State Department also recognize the doctrine of dual intent, which allows nonimmigrant aliens who are required to keep a permanent residence in their foreign country to both express a short term intent to remain in the United States temporarily (so as to not contravene the requirements of the visa under which they entered) and a long term intent to remain in the United States permanently (so that they may apply for adjustment of status). Matter of Hosseinpour, 1975 WL 31472 , 15 I & N Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456-58 (No. 1, 1993).

I read the Supreme Court’s jurisprudence to provide that nonimmigrant aliens, as persons who are not citizens nor nationals of this country, are part of the alien suspect class and therefore, laws that discriminate against them are inherently suspect and should be subjected to strict scrutiny review. Because of the Court’s opinions, the presumption should be that nonimmigrant aliens are part of the alien suspect class and the defendants should have the burden of proving the opposite. I am not persuaded by the arguments put forth by the defendants that the Supreme Court did not intend to include nonimmi-grant aliens as part of the alienage suspect classification.

Nevertheless, even assuming arguendo that rational basis is the appropriate anal *430 ysis to be used in this case, I disagree with the majority’s holding that the Louisiana rule survives rational basis review. To pass rational basis review, the defendants must show that nonimmigrant aliens pose some special threat to the State’s legitimate interests, in a way that other permitted bar applicants, citizens or immigrant aliens, do not. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447-50 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985) (“it is true that the mentally retarded as a group are indeed different ... [b]ut this difference is largely irrelevant unless the [group home] and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not. Because in our view the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city’s legitimate interests, we affirm the judgment below”).

The majority opinion’s discussion of the equal protection claim is most problematic at this point because it is in essence trying to “push a square peg into a round hole.” The defendants assert that nonimmigrant aliens pose a special threat to the integrity of the Louisiana bar because they could be unexpectedly deported or they could leave and go back to their home country, leaving litigants in the lurch. The defendants assert that unlike citizens and immigrant aliens, nonimmigrant aliens are more susceptible to being “international transients.” The Louisiana Supreme Court would be unable to reach malfeasant attorneys because the Louisiana bar does not have reciprocity with other nations and because nonimmigrant aliens are not able to establish domicile and, therefore, the state courts could not assert jurisdiction.

However true that may be, these concerns apply equally to both citizens and immigrant aliens. Citizens have a constitutional right to travel. Califano v. Gautier Torres, 435 U.S. 1 , 98 S.Ct. 906 , 55 L.Ed.2d 65 (1978). Although the Louisiana state bar may have reciprocity with other states, citizens could leave the country and establish residency abroad, and as the majority states, Louisiana does not have reciprocity with other nations. Likewise, immigrant aliens may travel abroad and not return, leaving clients behind. Moreover, both nonimmigrant aliens and immigrant aliens are subject to deportation; only citizens may not be deported. The majority asserts that nonimmigrant aliens pose a special threat to Louisiana clients because nonimmigrant aliens may not establish domicile or have assets in Louisiana and, therefore, the courts may be precluded from asserting jurisdiction over nonimmigrant attorneys should the need to reach them arise. But the Louisiana bar has no requirement that bar applicants, or bar members, be Louisiana residents or spend any time in Louisiana or in any way have a connection with the state. Therefore, Louisiana courts may also be unable to assert jurisdiction over members of the Louisiana bar who are citizens or immigrant aliens. Moreover, it may be possible for nonimmigrant aliens to be domiciled in Louisiana-as the Supreme Court found that the nonimmigrant alien plaintiffs were in Toll. See 458 U.S. at 17 , 102 S.Ct. 2977 . As the district court in Wallace averred:

The Rule does not restrict membership to the bar to citizens and immigrant aliens who plan to reside permanently in Louisiana. Nonimmigrant aliens as a class are not necessarily more transient than other groups. Citizens and immigrant aliens may be admitted to the bar even if they have no intention of residing in Louisiana. Louisiana attorneys relocate to other states and maintain bar membership in states where they do not *431 reside. Due to advances in technology, attorneys can provide services and representation to clients from virtually anywhere. Louisiana attorneys retire, die, and leave the practice for a myriad of reasons. If the Louisiana Supreme Court were concerned with transience, the Rule would be calculated to address that problem directly. However, the Rule only excludes a fraction of persons who may have temporary residence in the state. The fact that the Plaintiffs must leave on a date certain does not change the analysis. On the contrary, it might be an advantage. Plaintiffs will be able to plan in advance for their departure and make the necessary arrangements to protect the interests of their clients.

Wallace, 286 F.Supp.2d at 763 .

In my view, the Louisiana rule does not pass constitutional muster under even the exceedingly permissive rational basis standard of review. The Rule at issue is purported to be a prophylactic remedy to insulate potential clients from lawyers who are forced to leave the country unexpectedly, or who leave the country voluntarily, without an available means for the state courts to assert jurisdiction to reach the malfeasant attorneys. However, if the purpose of the Rule is to protect court dockets from disruption and protect the state’s citizens from lawyers who may leave suddenly, the Rule is not the least restrictive way to do it nor, as the district court in Wallace noted, is the Rule in fact calculated to achieve this purpose.

For the foregoing reasons, I respectfully dissent from the majority’s dismissal of the plaintiffs’ Equal Protection claim and the reversal of the district court’s judgment in Wallace v. Calogero.

. Resident alien is essentially a tax distinction. See 26 U.S.C. § 7701 (b). There are primarily two ways to determine whether one is a resident alien for tax purposes. The first is the green card test, if you have a green card, and therefore are a permanent resident, you are a resident under tax law. Id. at § 7701(b)(l)(A)(i). The other is the substantial presence test. Under the substantial presence test you will be considered a U.S. resident if you were physically present in the U.S. for at least 31 calendar days during the course of the year and 183 days during the 3 year period that includes the current year and two previous years immediately before it. Id. at § 7701(b)(3). Considering H-1B visa holders, for example, can stay in the country for up to 6 years, it is possible for an alien to be both a non-immigrant and pay taxes as a resident alien.

. It should be noted that in some of the Supreme Court’s opinions, the exact nature of the plaintiffs immigration status is unclear or not discussed. See e.g., Takahashi v. Fish & Game Comm’n, 334 U.S. 410 , 68 S.Ct. 1138 , 92 L.Ed. 1478 (1948).