Arizona Dream Act Coalition, et al v. Janice Brewer, et al
Filed order and amended opinion (HARRY PREGERSON, MARSHA S. BERZON and MORGAN B. CHRISTEN) (Judge Kozinski, dissenting from the filing of the Order. Judge Berzon, concurring in the Amended Opinion.) The court s opinion filed on April 5, 2016, appearing at 818 F.3d 901 (9th Cir. 2016), is hereby amended. An amended opinion, including a concurrence by Judge Berzon, is filed herewith. Judges Berzon and Christen voted to deny the petition for rehearing en banc, and Judge Pregerson so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED, and no further petitions for rehearing will be accepted.(SEE ATTACHED ORDER, DISSENT, AMENDED OPINION AND CONCURRENCE FOR FULL TEXT) 
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FEB 02 2017
Arizona Dream Act Coalition v. Brewer, 15-15307
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERZON, Circuit Judge, Concurring in light of the Dissent from the denial of
rehearing en Banc:
I join the panel opinion in full. I write in concurrence to further explain our
holding in light of the dissent from denial of rehearing en banc.
I write first to emphasize that the “law” that has preemptive power over
Arizona’s policy is Congress’ conferral of exclusive authority on the executive
branch to defer removal of individuals who lack legal status and to authorize them
to work while temporarily permitted to remain. Furthermore, I write to highlight
that the preemption issues ultimately decided in this case can be viewed as
embedded in the equal protection analysis, given the historical and conceptual
overlap between equal protection and preemption concerns in cases involving state
laws that affect immigrants. The serious equal protection concerns raised by
Arizona’s policy bolster our preemption holding, which was reached in a careful
exercise of the principle of constitutional avoidance.
As the panel opinion makes clear, it is the authority specifically conferred on
the Attorney General by the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1101 et seq., and the associated regulations, that is the body of federal law that
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preempts Arizona’s policy, not any particular exercise of executive authority. The
INA, as implemented by authorized regulations, affirmatively permits the Attorney
General to decide whether undocumented immigrants should be removed from the
country and when, and also whether they should be authorized to stay and to work
if they are not to be immediately removed. Contrary to the Dissent from the denial
of rehearing en banc (“Dissent”), this conferral of authority is not limited to “only
two small provisions of the INA.” Dissent at 6. See e.g., 8 U.S.C.
§ 1154(a)(1)(D)(i)(II), (IV) (indicating that certain visa applicants are “eligible for
deferred action and work authorization”); id. § 1182(a)(9)(B)(ii) (providing that for
purposes of determining inadmissibility, unlawful presence includes any time an
alien “is present in the United States after the expiration of the period of stay
authorized by the Attorney General”); id. § 1227(d)(2) (indicating that certain visa
applicants who are denied an administrative stay of removal can apply for “a stay
of removal, deferred action, or a continuance or abeyance of removal
proceedings”); id. § 1229b (giving the Attorney General the discretion to cancel
removal for certain inadmissable or removable aliens, including those who were
never lawfully admitted); id. § 1324a(h)(3) (defining an “unauthorized alien” for
purposes of employment as an alien who is neither “lawfully admitted for
permanent residence” nor “authorized to be so employed by [statute] or by the
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Attorney General”); REAL ID Act of 2005, Pub. L. No. 109-13, div. B, §
202(c)(2)(B)(viii), (C)(ii), 119 Stat. 231, 313 (indicating that persons with
“approved deferred action status” are present in the United States during a “period
of authorized stay” for purposes of issuing state drivers’ licenses and identification
cards); 8 C.F.R. § 274a.12(c)(14) (indicating that an “alien who has been granted
deferred action, an act of administrative convenience to the government which
gives some cases lower priority” may be granted work authorization upon
application and a showing of economic necessity).
These various provisions, among others, make clear that Congress has
expressly authorized the Attorney General, at his discretion, officially to defer
removal of individuals who lack legal status, thereby temporarily authorizing their
stay, and to authorize such individuals to work while temporarily permitted to
remain.1 See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012) (“[T]he
removal process is entrusted to the discretion of the Federal Government.”).
Authorizing someone to work in the country is necessarily to authorize
their presence. The Supreme Court, in Takahashi v. Fish & Game Commission,
334 U.S. 410, 416 (1948), stated that “[t]he assertion of an authority to deny to
aliens the opportunity of earning a livelihood when lawfully admitted to the state
would be tantamount to the assertion of the right to deny them entrance and abode,
for in ordinary cases they cannot live where they cannot work.” (quoting Truax v.
Raich, 239 U.S. 33, 42 (1915)). The obverse is also true: Authorizing an alien to
work in the country is necessarily authorizing him to remain.
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The Attorney General granted the plaintiffs in this case deferred action and
furnished them with federal employment authorization documents.2 Arizona’s
denial of drivers’ licenses to DACA recipients rests on the premise that their
presence is not “authorized under federal law,” even though the federal
government has decided otherwise, exercising the powers delegated to it by
Congress. Arizona has, therefore, intruded into an area of decisionmaking
entrusted to the federal government.3
I note that the Dissent at points treats this case as parallel to Texas v.
United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136
S. Ct. 2271 (2016) (per curiam). It decidedly is not. Arizona raised in the district
court no affirmative challenge to the Deferred Action for Childhood Arrivals
(“DACA”) program, whether based on administrative law concepts or the scope of
the executive’s responsibility to enforce federal laws. Compare id. at 149. (Arizona
is a plaintiff in the Texas v. United States litigation, which does raise such issues
and is ongoing.). Instead, Arizona has asserted the authority to treat some
undocumented individuals with deferred status and federal work authorization
differently from others with the same federal dispensations. It is the validity of that
differential treatment that is at the heart of this case.
Arizona’s driver’s license statute turns upon whether an immigrant’s
presence is “authorized under federal law” not whether the presence is “lawful” in
the sense of specifically condoned by statute. See Ariz. Rev. Stat. Ann. §
28–3153(D). If the statute turned on the latter, Arizona could not, as it does, issue
licenses to many undocumented individuals who do not have lawful status but have
been granted work authorization while in removal proceedings. See Amended op.
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Critically, our preemption holding reflects a careful exercise of
constitutional avoidance, based on the serious equal protection concerns raised by
Arizona’s policy. Although we rest our decision on preemption grounds, the
preemption and equal protection concerns raised in this case are overlapping rather
than distinct. And because that is so, I am convinced that although we wisely did
not decide the equal protection issue, were it necessary to decide the question I
would have held that there was an equal protection violation.
Equal protection and preemption concerns have long been intertwined in
cases dealing with state laws that classify immigrants. See Plyler v. Doe, 457 U.S.
202 (1982); Nyquist v. Mauclet, 432 U.S. 1 (1977); Graham v. Richardson, 403
U.S. 365 (1971); Takahashi, 334 U.S. 410; Truax, 239 U.S. 33; see also JennyBrooke Condon, The Preempting of Equal Protection for Immigrants?, 73 Wash.
& Lee L. Rev. 77 (2016); David F. Levi, Note, The Equal Treatment of Aliens:
Preemption or Equal Protection?, 31 Stan. L. Rev. 1069 (1979).
For example, in Nyquist v. Mauclet, the state asserted that one of its goals in
excluding certain classes of aliens from eligibility for in-state tuition was to
provide incentives for aliens to naturalize. 432 U.S. at 9-10. In holding the state
law violated the Equal Protection Clause, the Court found that state purpose “not a
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permissible one for a State” because “[c]ontrol over immigration and naturalization
is entrusted exclusively to the Federal Government, and a State has no power to
interfere.” Id. at 10. Similarly in Graham v. Richardson, another decision that
rested on equal protection grounds, the Court provided that “[s]tate alien residency
requirements that either deny welfare benefits to noncitizens or condition them on
longtime residency, equate with the assertion of a [state] right, inconsistent with
federal policy, to deny entrance and abode. Since such laws encroach upon
exclusive federal power, they are constitutionally impermissible.” 403 U.S. at 380.
Takahashi v. Fish and Game Commission likewise held that “[s]tate laws which
impose discriminatory burdens upon the entrance or residence of aliens lawfully
within the United States conflict with [the] constitutionally derived federal power
to regulate immigration.” 334 U.S. at 419.
The overlap evident in these cases between the equal protection and
preemption analyses where state laws that affect immigrants are at issue is no
accident. As the equal protection analysis in the panel opinion illustrates, both the
“similarly situated” and “legitimate state interest” inquiries required for equal
protection analysis necessarily incorporate recognition of the preeminent, although
not exclusive, federal role in immigration matters, the same role distribution
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emphasized in immigration preemption cases.4
The primacy of federal immigration law first informs the equal protection
analysis when we are determining whether the groups being classified are
“similarly situated.” As the panel opinion states, the Equal Protection Clause
prevents the government from “treating differently persons who are in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added).
“Relevant respects” are only those respects that relate to the goals of the challenged
Classifications adopted by states “must rest upon some ground of difference
having a fair and substantial relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71,
76 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
Accordingly, to adopt a federal immigration classification “as a criterion for its
Because preemption concerns are embedded in and addressed by equal
protection decisions regarding state laws that affect immigrants, equal protection
decisions like Plyler v. Doe, 457 U.S. 202, are relevant to our preemption holding.
See Condon, supra pp. 5, at 83 (“[T]he Supreme Court has reinforced the principle
that the federal government has exclusive responsibility for the regulation of
immigration, as much through its equal protection jurisprudence as it has through
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own discriminatory policy, the State must demonstrate that the classification is
reasonably adapted to the purposes for which the state desires to use it.” Plyler,
457 U.S. at 226 (internal quotation marks and citations omitted) (emphasis in
original). Those purposes do not properly include making decisions about who
should remain in this country, who should be removed, or what are the conditions
of stay for those temporarily authorized to be here.
For example, in Graham v. Richardson, the Court struck down on equal
protection grounds a state law that denied welfare benefits to non-citizens whom
the Court found similarly situated in all respects relevant to the state welfare law:
non-citizens paid taxes, could be called into the armed forces, and worked in the
state, thereby contributing to the state’s economic welfare. 403 U.S. at 376. The
groups of residents were “indistinguishable except with respect to whether they are
or are not citizens of this country.” Id. at 371. The two groups were not, of course,
similarly situated in the latter respect — that is, as to whether they were citizens.
And that difference entailed many embedded distinctions between the non-citizens
and citizens, including the right to vote, to serve on juries, and to remain in the
country even if engaged in criminal activities. But the citizen/non-citizen
distinction was the one that the state had to justify, not a basis for declaring the two
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groups not similarly situated with regard to receiving welfare benefits.
Similarly, the immigration-related distinction between the plaintiffs and
other undocumented immigrants has no role in this case at the “similarly situated”
juncture.5 Rather, the pertinent comparisons at this stage concern the other
requirements for obtaining drivers’ licenses — Are the applicants old enough? Can
they pass the written test? Can they pass the driving test? Have they violated
driving laws in the past, as by driving without a license or while drunk? The
immigration-related classification is the one the state must justify at the next stage
of equal protection analysis, not the measure of whether the plaintiffs are otherwise
similarly situated with regard to obtaining drivers’ licenses.
Preemption themes next surface in the equal protection analysis in the
examination of legitimate state interests. A state interest is only legitimate for
equal protection purposes when it lies within an area of concern within the state’s
authority. When the state law touches on immigration, the ambit of legitimate state
concern is constrained by the federal government’s preeminent power directly to
The panel opinion makes this basic point, briefly. Amended op. at 11-13. It
then goes on for completeness to answer the state’s similarly situated argument on
its own terms, which stressed immigration status differences between the plaintiffs
and other aliens. Amended op. at 13-17.
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regulate immigration — that is, to decide who will be admitted, who may remain,
and who will be removed.
As stated in Plyler v. Doe, “[a]lthough it is a routine and normally legitimate
part of the business of the Federal Government to classify on the basis of alien
status and to take into account the character of the relationship between the alien
and this country, only rarely are such matters relevant to legislation by a State.”
457 U.S. at 225 (internal quotation marks and citations omitted). Consistently with
this view, Mathews v. Diaz explained that “a division by a State of the category of
persons who are not citizens of that State into subcategories of United States
citizens and aliens has no apparent justification, whereas, a comparable
classification by the Federal Government is a routine and normally legitimate part
of its business.” 426 U.S. 67, 85 (1976).
For this reason, the Supreme Court has long recognized that federal power
over immigration constrains a state’s legitimate interests in classifying groups of
immigrants differently from one another and then disadvantaging one of the groups
so classified. In Truax v. Raich, 239 U.S. at 42, for example, the Court
admonished that “reasonable classification implies action consistent with the
legitimate interests of the state, and it will not be disputed that these cannot be so
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broadly conceived as to bring them into hostility to exclusive Federal power.”
Truax involved an equal protection challenge, by an alien lawfully admitted into
the United States, to an Arizona law that required certain employers to hire a
majority of workers who were qualified electors or native-born United States
citizens. Id. at 40. Truax rejected the argument that the state’s prioritization of
citizens for employment was justified by the state’s power “to make reasonable
classifications in legislating to promote the health, safety, morals, and welfare of
those within its jurisdiction,” because the state lacked “the authority to deal with
that at which the legislation is aimed.” Id. at 41, 43; see also Takahashi, 334 U.S.
at 420 (noting the “tenuousness of the state’s claim that it has power to single out
and ban its lawful alien inhabitants . . . from following a vocation simply because
Congress has put some groups in special classifications in exercise of its broad and
wholly distinguishable powers over immigration and naturalization.”).
States assuredly do have authority to regulate employment, just as they have
authority to regulate the distribution of drivers’ licenses. The state authority
lacking in Truax, and here, is the authority to justify discrimination as to areas
within state power on grounds that are beyond state authority because exclusively
within the authority of the federal government.
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For these reasons, equal protection analysis with regard to state laws, like
Arizona’s, that disadvantage some aliens compared with others necessarily
incorporates distribution-of-authority concerns that directly parallel those
encountered in preemption analyses. It is in light of this overlap between
preemption and equal protection analyses in the immigration context that the
panel’s equal protection analysis evaluated the proffered state interests said
rationally to justify the denial of drivers’ licenses to the plaintiffs. And it is in this
light that we rejected any state justification for the classification in state law that
suggested an intent to preclude or discourage the plaintiffs from remaining and
working even though the federal government allowed them to do so. For the same
reason, we rejected any justification that turned on immigration status distinctions
with no connection to state-drivers’-license-related concerns (such as the
distinction between aliens holding work authorization while in removal
proceedings and DACA recipients holding work authorization but not in the
process of being removed). Amended op. at 17-18, 22, 26-27. We then concluded
that the remaining rationales Arizona provided simply are not reasonable.
Amended op. at 18-22.
In short, the preeminent federal role in immigration matters thus not only
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underlies our ultimate preemption holding, but also directly informs the equal
protection analysis. Given the constraints on a state’s legitimate interests in
classifying groups of immigrants, we could, in my view, have rested our rejection
of the challenged Arizona statute simply on a rational basis equal protection
analysis (without reaching the question whether a more stringent standard of
review applies). Were it necessary to reach the question, I would have held
Arizona’s application of its drivers’ license statute invalid as a denial of equal
protection to DACA recipients, as compared to other undocumented individuals to
whom Arizona does provide drivers’ licenses. See Amended op. at 18-23.
The Dissent brushes past these equal protection concerns, regarding them as
an “excursus,” and even suggesting that over a century of equal protection
jurisprudence regarding state immigration regulations, beginning with Truax in
1915, be overturned. Dissent at 3 n.1, 9 n.5
But the panel’s methodology — a careful analysis of the strength of a
constitutional challenge, before turning to an alternative that avoids definitely
deciding that constitutional question — is one with a long pedigree, grounded in
judicial restraint. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690-96, 699 (2001);
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485
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U.S. 568, 575-78 (1988).6 To criticize the panel’s preemption analysis in a
vacuum, with little recognition of the constitutional avoidance rationale underlying
it, is tantamount to lopping off the first five floors of a ten story building and then
declaring that the building, thus truncated, is unstable.
Again, I concur fully in the panel opinion. In addition, in my view, as we
held in the preliminary injunction appeal, Arizona Dream Act Coalition v. Brewer,
757 F.3d 1053, 1067 (9th Cir. 2014), and as the district court held as the basis for
the final injunction, Arizona Dream Act Coalition v. Brewer, 81 F. Supp. 3d 795,
808 (D. Ariz. 2015), the equal protection challenge is independently valid and, if
we needed to reach it, would justify our conclusion that Arizona’s denial of
drivers’ licenses to DACA recipients cannot stand.
This court has observed that DeBartolo reached a statutory holding only
“[a]fter considering at some length, but not deciding, the [constitutional]
arguments.” Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local
Union No. 1506, 409 F.3d 1199, 1209 (9th Cir. 2005).
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