State of Texas et al v. United States of America et al

Filing 64

REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew)

EXHIBIT 3

App. 0050

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 1 of 24

No. 13-16248

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA DREAM ACT COALITION et al.,
v.

Plaintiffs-Appellants,

JANICE K. BREWER et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES’ BRIEF AS AMICUS CURIAE
IN OPPOSITION TO REHEARING EN BANC
JOYCE R. BRANDA
Acting Assistant Attorney General
JOHN S. LEONARDO
United States Attorney
BETH S. BRINKMANN
Deputy Assistant Attorney General
MARK B. STERN
LINDSEY POWELL
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7226
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

App. 0051

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 2 of 24

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY .............................................................................. 1
STATEMENT ........................................................................................................................ 3
1.

Federal Law ................................................................................................................ 3

2.

State Law ...................................................................................................................... 5

3.

Procedural History ...................................................................................................... 6

ARGUMENT ......................................................................................................................... 8
Arizona’s Policy Is Preempted by Federal Law....................................................... 8
CONCLUSION ................................................................................................................... 17
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

App. 0052

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 3 of 24

TABLE OF AUTHORITIES
Cases:

Page

Arizona v. United States,
132 S. Ct. 2492 (2012) ................................................................................................ 3, 4, 9
Chamber of Commerce of the U.S. v. Whiting,
131 S. Ct. 1968 (2011) ............................................................................................ 3, 10, 11
DeCanas v. Bica,
424 U.S. 351 (1976)...............................................................................................10, 11, 13
Hampton v. Mow Sun Wong,
426 U.S. 88 (1976) ............................................................................................................... 9
Lopez-Valenzuela v. Cnty. of Maricopa,
719 F.3d 1054 (9th Cir. 2013).......................................................................................... 10
Mathews v. Diaz,
426 U.S. 67 (1976) ........................................................................................................... 8, 9
Plyler v. Doe,
457 U.S. 202 (1982)........................................................................................ 7, 8, 9, 11, 13
Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999)......................................................................................................... 4, 9
Toll v. Moreno,
458 U.S. 1 (1982) ................................................................................................................. 9
Vasquez de Alcantar v. Holder,
645 F.3d 1097 (9th Cir. 2011).......................................................................................... 14
Statutes:
8 U.S.C. § 1101.................................................................................................................... 3, 9
8 U.S.C. §§ 1151 et seq. ....................................................................................................... 3, 9
ii
App. 0053

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 4 of 24

8 U.S.C. §§ 1181 et seq. ....................................................................................................... 3, 9
8 U.S.C. § 1227(a)(1)(A) ........................................................................................................ 4
8 U.S.C. § 1227(a)(1)(C) ......................................................................................................... 4
8 U.S.C. § 1182(a)(6) .............................................................................................................. 4
8 U.S.C. § 1182(a)(7) .............................................................................................................. 4
Immigration and Nationality Act,
Pub. L. No. 82-414, 66 Stat. 163 ....................................................................................... 3
REAL ID Act of 2005,
Pub. L. No. 109-13, Div. B., § 202, 119 Stat. 231 ................................................... 11, 16
Ariz. Rev. Stat. Ann. § 28-3153(D) ......................................................................1, 5, 12, 13
Rule:
FED. R. APP. P. 35(a) ........................................................................................................ 3, 17
Regulations:
8 C.F.R. pt. 214 ................................................................................................................... 3, 9
8 C.F.R. § 274a.12(a) .............................................................................................................. 6
8 C.F.R. § 274a.12(a)(11) ....................................................................................................... 6
8 C.F.R. § 274a.12(c) .............................................................................................................. 6
8 C.F.R. § 274a.12(c)(9) ......................................................................................................... 6
8 C.F.R. § 274a.12(c)(10) ....................................................................................................... 6
8 C.F.R. § 274a.12(c)(14) ....................................................................................................... 6

iii
App. 0054

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 5 of 24

Other Authorities:
Ariz. Dep’t of Transp. Policy 16.1.2 .......................................................................... 1, 5, 12
Arizona Executive Order 2012-06 ................................................................................... 1, 6
Charles Gordon et al., Immigration Law and Procedure (1998) .............................................. 4
Memorandum from Secretary Napolitano, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States
as Children, at 1 (June 15, 2012) ................................................................................... 4, 5
USCIS Form I-821D, Consideration of Deferred Action for
Childhood Arrivals, http://www.uscis.gov/sites/default/files/files
/form/i-821dinstr.pdf ........................................................................................................ 5

iv
App. 0055

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 6 of 24

INTRODUCTION AND SUMMARY
The United States submits this brief in response to the Court’s order of August
1, 2014. For the reasons set out below, the government respectfully suggests that the
panel’s opinion does not merit rehearing en banc.
Arizona law prohibits the issuance of a driver’s license to anyone “who does
not submit proof satisfactory to the department [of transportation] that the applicant’s
presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann.
§ 28-3153(D). The Arizona Department of Transportation publishes a list of
acceptable documentation for establishing presence “authorized under federal law.”
Ariz. Dep’t of Transp. Policy 16.1.2. That list previously included all employment
authorization documents issued by the federal government.
On August 15, 2012, Arizona Governor Janice Brewer issued an executive
order barring the Arizona Department of Transportation from accepting certain
federal employment authorization documents as evidence that an applicant’s presence
in the United States is authorized under federal law. Arizona Executive Order 201206. The order targets beneficiaries of the Deferred Action for Childhood Arrivals
(DACA) policy, under which the U.S. Department of Homeland Security (DHS)
exercises its enforcement discretion to provide deferred action to certain aliens who
came to the United States as children. In light of the executive order, the Arizona
Department of Transportation revised its policy so that it no longer accepts federal
employment authorization documents issued to DACA recipients as proof of

App. 0056

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 7 of 24

authorized presence in the United States. During the pendency of this litigation, the
State further revised its policy to preclude the use of federal employment
authorization documents issued to any recipient of deferred action.
The Immigration and Nationality Act and its implementing regulations,
together with the enforcement authority and discretion committed to the Executive
Branch, provide a federal scheme for alien classification and enforcement. A State
may disagree with the federal government’s enactment or implementation of federal
law—as Arizona has made clear it does. But a State may not respond to that
disagreement by conditioning eligibility for driver’s licenses on its own notions of
“authorized presence” and distinguishing among holders of federal employment
authorization documents for that purpose, at least without a substantial state interest.
Although States have significant discretion in determining what documentation is
appropriate to establish eligibility for a driver’s license, the reasons Arizona has given
for denying licenses to DACA recipients and other deferred action grantees do not
reflect substantial state interests in that area of traditional state regulation. The
absence of a substantial state purpose supporting the distinctions Arizona seeks to
draw indicates that its regulation of driver’s licenses is a regulation of immigration and
thus preempted by federal law.
The United States is of the view that review by the full Court is unwarranted.
The panel reached the correct result, although the United States bases that conclusion
on preemption principles without addressing the question of equal protection. The
2

App. 0057

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 8 of 24

panel’s holding does not conflict with decisions of the Supreme Court, this Court, or
any other court of appeals. And the case does not present an issue warranting review
by the full Court. See Fed. R. App. P. 35(a). The interlocutory posture of the appeal
further weighs against en banc review. The preemption and equal protection issues
can be more fully developed on proceedings on a permanent injunction, and the
district court can additionally consider the intervening revisions to the State’s policy at
that time.
STATEMENT
1. Federal Law
The Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163,
as amended (codified at 8 U.S.C. §§ 1101 et seq.), “established a comprehensive federal
statutory scheme for regulation of immigration and naturalization and set the terms
and conditions of admission to the country and the subsequent treatment of aliens
lawfully in the country.” Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968,
1973 (2011) (internal quotation marks and citation omitted). The INA provides a
detailed and complex scheme of alien classification. See, e.g., 8 U.S.C. §§ 1101, 1151 et
seq., 1181 et seq. Regulations further refining these classifications and enforcement
decisions by the Executive Branch are part of the federal scheme. See 8 C.F.R. pt. 214
(establishing classifications); Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (“A
principal feature of the [INA’s] removal system is the broad discretion exercised by

3

App. 0058

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 9 of 24

immigration officials.”); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
483-84 (1999) (same).
Under this scheme, aliens may be removed for having entered the country
without authorization. See 8 U.S.C. §§ 1227(a)(1)(A) & (C), 1182(a)(6) & (7). “Federal
officials . . . must decide whether it makes sense to pursue removal at all,” and, “[i]f
removal proceedings commence,” whether to grant “discretionary relief allowing [the
alien] to remain in the country or at least to leave without formal removal.” Arizona,
132 S. Ct. at 2499. One way in which such discretion is exercised is through grants of
deferred action, in which, on a case-by-case basis, the U.S. Department of Homeland
Security may decline to institute removal proceedings, may terminate proceedings, or
may decline to execute a final order of removal. See American Arab Anti-Discrimination
Comm., 525 U.S. at 483-84 (1999). The practice of making such determinations has a
long history, see id. (citing 6 Charles Gordon et al., Immigration Law and Procedure
§ 72.03[2][h] (1998)), and such decisions are an integral part of the federal immigration
framework, Arizona, 132 S. Ct. at 2499.
Pursuant to this authority, on June 15, 2012, DHS announced the Deferred
Action for Childhood Arrivals policy, which directs DHS officials to consider, on a
case-by-case basis, exercising discretion in favor of certain aliens who were brought to
the United States as children and who have resided here for at least five years. See
Memorandum from Secretary Napolitano, Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children, at 1 (June 15,
4

App. 0059

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 10 of 24

2012). The Secretary’s memorandum states that if the exercise of discretion with
respect to a particular alien is appropriate, DHS officials should not initiate removal
proceedings or should defer for a renewable period of two years any removal
proceedings already initiated. Id. at 2. Qualifying aliens not already in removal
proceedings may also apply for this deferred action status. Id. at 2-3. Individuals
applying for deferred action under the DACA policy are also required to apply for
federal employment authorization. See USCIS Form I-821D, Consideration of
Deferred Action for Childhood Arrivals, http://www.uscis.gov/sites/default/files/
files/form/i-821dinstr.pdf (“All individuals filing Form I-821D . . . must also file
Form I-765, Application for Employment Authorization[.]”).
2. State Law
Arizona law prohibits the issuance of a driver’s license to anyone “who does
not submit proof satisfactory to the department [of transportation] that the applicant’s
presence in the United States is authorized under federal law.” Ariz. Rev. Stat. Ann.
§ 28-3153(D). A list published by the Arizona Department of Transportation
identifies the documentation that it will accept as establishing authorized presence.
Ariz. Dep’t of Transp. Policy 16.1.2.
Prior to the announcement of the DACA policy, the Department’s list of
acceptable documents included all employment authorization documents issued by
the federal government. See Slip op. 7. On August 15, 2012, the day the DACA
policy took effect, Arizona Governor Janice Brewer issued an executive order
5

App. 0060

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 11 of 24

directing state agencies to bar DACA recipients from obtaining any public benefit or
state identification. Arizona Executive Order 2012-06. Following the issuance of the
executive order, the Arizona Department of Transportation announced that it would
not accept federal employment authorization documents issued to DACA recipients
as proof of authorized presence. See id. at 8. The Department subsequently revised it
policy, see id. at 9-10, to preclude the use of federal employment authorization
documents issued to other recipients of deferred action, see 8 C.F.R. § 274a.12(c)(14).
The Department continues to accept as proof of authorized presence federal
employment authorization documents issued to other aliens, including applicants for
adjustment of status or cancellation of removal, see id. § 274a.12(c)(9)-(10).1
3. Procedural History
Plaintiffs filed suit in the U.S. District Court for the District of Arizona, urging
that Arizona’s policy of denying driver’s licenses to DACA recipients is preempted by
federal law and inconsistent with principles of equal protection. The district court
denied plaintiffs’ motion for a preliminary injunction, holding that plaintiffs were

1

Eligibility for federal employment authorization documents is not limited to
the above-referenced individuals. Many other aliens may apply for and obtain such
documents, 8 C.F.R. § 274a.12(c), and some individuals are entitled to such
documents as an incident to their immigration status, id. § 274a.12(a). Arizona
continues to accept all federal employment authorization documents as proof of
authorized presence except for those issued to recipients of deferred action or
deferred enforced departure, id. § 274.12(a)(11).

6

App. 0061

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 12 of 24

likely to succeed on the merits of their equal protection claim but unlikely to suffer
irreparable harm if the policy remained in effect during the pendency of the litigation.
A unanimous panel of this Court reversed and remanded with instructions to
enter a preliminary injunction. The panel first suggested that plaintiffs could likely
prevail on their preemption claim if they could adequately develop the record. Slip
op. 13-15. It further held that Arizona’s policy is likely inconsistent with principles of
equal protection because the State has offered no justification for treating DACA
recipients differently from similarly situated individuals with federal employment
authorization documents. Id. at 18-19. Relying on many of the same observations
that underlie a preemption analysis, the panel concluded that Arizona’s policy could
not withstand review because there was no support in federal law for the State’s
disparate treatment of similarly situated aliens. Id. at 21. Instead, Arizona had
“assume[d] 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.’” Id.
(quoting Plyler v. Doe, 457 U.S. 202, 225 (1982)). The panel also rejected the State’s
other proffered grounds for denying driver’s licenses to deferred action recipients,
holding that none served to explain the distinction drawn by the State. Id. at 23-25.
After further concluding that the likelihood of irreparable harm and other preliminary
injunction factors weighed in plaintiffs’ favor, the Court held that plaintiffs were
entitled to a preliminary injunction. Id. at 26-28.

7

App. 0062

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 13 of 24

Judge Christen filed a concurring opinion stressing that, in her view, plaintiffs
had already demonstrated a likelihood of success on their preemption claim. Slip op.
29. The concurrence observed that “Arizona’s newly-crafted definition of ‘authorized
presence’ is unmoored from and unsupported by federal law.” Id. Arizona has thus
“ventured into an area—the creation of immigration classifications—that is the
exclusive domain of the federal government.” Id. The panel majority indicated its
agreement with the substance of this analysis. See id. at 16-17 n.3.
ARGUMENT
Arizona’s Policy Is Preempted by Federal Law
The panel reached the correct result in this case. Although the United States
bases that conclusion on preemption principles without addressing equal protection,
much of the panel’s equal protection analysis supports a holding for plaintiffs on their
preemption claim. The district court will have the opportunity to consider the
preemption and equal protection arguments further on proceedings on a permanent
injunction. Accordingly, review by the full Court is not warranted at this time.
A. The federal government’s exclusive authority to establish immigration
classifications is not controverted. See Plyler v. Doe, 457 U.S. 202, 225 (1982); Mathews
v. Diaz, 426 U.S. 67, 81 (1976). That power is plainly “committed to the political
branches of the Federal Government.” Plyler, 457 U.S. at 225 (quoting Mathews, 426
U.S. at 81). Drawing upon its “plenary authority with respect to foreign relations and
international commerce, and upon the inherent power of a sovereign to close its
8

App. 0063

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 14 of 24

borders, Congress has developed a complex scheme governing admission to our
Nation and status within our borders.” Id.; see, e.g., 8 U.S.C. §§ 1101, 1151 et seq., 1181
et seq. Regulations further refining these classifications, as well as enforcement
decisions by the Executive Branch, are part of the federal scheme. See 8 C.F.R.
pt. 214 (establishing classifications); Arizona v. United States, 132 S. Ct. 2492, 2499
(2012). The Executive Branch has long exercised its discretion to decline to pursue
removal of particular aliens based on humanitarian concerns, resource constraints, and
other policy considerations. See Reno v. American-Arab Anti-Discrimination Comm., 525
U.S. 471, 483-84 (1999).
While 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.” Plyler, 457 U.S. at 225 (quoting
Mathews, 426 U.S. at 80, 85). As a general matter, “[t]he States enjoy no power with
respect to the classification of aliens.” Id.; Toll v. Moreno, 458 U.S. 1, 10 (1982) (“[O]ur
cases have . . . been at pains to note the substantial limitations upon the authority of
the States in making classifications based upon alienage.”); see also Hampton v. Mow Sun
Wong, 426 U.S. 88, 100 (1976) (recognizing the “overriding national interests which
justify selective federal legislation that would be unacceptable for an individual State”).
Accordingly, under the Supremacy Clause, States may not establish classifications that
distinguish among aliens whom the federal government has treated similarly, or that
9

App. 0064

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 15 of 24

are not otherwise supported by federal law. See Lopez-Valenzuela v. Cnty. of Maricopa,
719 F.3d 1054, 1070-71 (9th Cir. 2013). Doing so effectively creates a new
classification and intrudes on this exclusively federal prerogative.
It is of course not the case that “every state enactment which in any way deals
with aliens is a regulation of immigration and thus per se pre-empted” by the federal
power to regulate immigration. DeCanas v. Bica, 424 U.S. 351, 355 (1976). “[S]tanding
alone, the fact that aliens are the subject of a state statute does not render it a
regulation of immigration, which is essentially a determination of who should or
should not be admitted into the country, and the conditions under which a legal
entrant may remain.” Id. The States retain power to regulate in areas that do not
directly bear on immigration, even when they touch on that subject or in the course of
their administration borrow certain standards from the federal scheme.
When the Supreme Court has sustained state laws that indirectly bear upon
immigration, it has emphasized that the statutes at issue incorporate existing federal
classifications of alien status and do not create new ones. For example, in upholding
an Arizona law that directed courts to suspend or revoke the business licenses of instate employers that employ unauthorized aliens, the Court in Chamber of Commerce of
the United States v. Whiting, 131 S. Ct. 1968, 1981 (2011), emphasized that the State had
been careful to “ensur[e] that its law closely track[ed] IRCA’s provisions in all material
respects.” As the Court observed, the licensing law at issue in that case “beg[an] by
adopting the federal definition of who qualifies as an ‘unauthorized alien.’” Id.; see also
10

App. 0065

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 16 of 24

Plyler, 457 U.S. at 226 (acknowledging that “[t]he State may borrow the federal
classification.”). In considering whether state regulations are preempted, the Supreme
Court has also looked to the strength of the state interest being vindicated. See, e.g.,
DeCanas, 424 U.S. at 356-57. A state law that serves a substantial state interest in an
area of traditional state concern is less likely to encroach on federal immigration law.
B. States generally enjoy substantial leeway in setting policies for licensing
drivers within their jurisdiction. The provision of state driver’s licenses is not an area
of “dominant federal concern,” Whiting, 131 S. Ct. at 1983, and most state regulations
of driver’s licenses do not impinge on the implementation of federal law. This may be
true even if a state licensing scheme distinguishes among classes of aliens, at least if
the classifications are borrowed from federal law and further a substantial state
purpose. See id. at 1981; cf. Plyler, 457 U.S. at 226. Indeed, federal law contemplates
that States may take federal alien classifications into account in administering their
licensing schemes. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., § 202, 119
Stat. 231, 312 (49 U.S.C. § 30301 note).
Where, however, a State makes the operation of its licensing scheme depend on
new alien classifications not supported by federal law, the preemption analysis is
different. The broad authority States enjoy in regulating pursuant to their police
power does not extend to the creation of alien classifications in furtherance of those
interests. Plyler, 457 U.S. at 225 (“The States enjoy no power with respect to the
classification of aliens.”). Because the power to enact alien classifications is exclusive
11

App. 0066

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 17 of 24

to the federal government, even State laws relating to matters otherwise within the
core of the police power will generally be preempted where they distinguish among
aliens in ways inconsistent with federal law so as to effectively establish novel
classifications.
Arizona has established classifications that find no support in federal law. As
Judge Christen’s concurrence observed, “Arizona did not merely borrow a federal
immigration classification; it created a new one.” Slip op. 29; see id. at 21. Arizona law
prohibits the issuance of a driver’s license or a nonoperating identification license 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). Although the state statute does not define what it means for
an applicant’s “presence” to be “authorized,” Arizona Department of Transportation
policy provides that federal employment authorization documents constitute “proof
satisfactory” to establish such presence for some individuals but not for others. Ariz.
Dep’t of Transp. Policy 16.1.2. Since August 2012, the Department has not accepted
employment authorization documents issued to DACA recipients as proof of
authorized presence, even as it continues to accept employment authorization
documents issued to other aliens, including applicants for adjustment of status or
cancellation of removal, as proof sufficient to make the required showing. By
drawing such distinctions, the State has impermissibly “assume[d] for itself the federal
prerogative of classifying noncitizens.” Slip op. 21.
12

App. 0067

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 18 of 24

The State has urged that its scheme merely incorporates federal law because its
statute conditions eligibility for a license on a showing that an applicant’s presence is
“authorized under federal law.” Ariz. Rev. Stat. Ann. § 28-3153(D) (emphasis added).
Federal law does not, however, include a classification of persons with “authorized
presence.” Arizona has sought to give content to that concept by treating federal
employment authorization documents, among other documentation, as sufficient
evidence of “authorized presence.” But by selectively incorporating aspects of federal
law, Arizona has engaged in a “sub-classification of aliens lacking lawful status into
two new groups,” Slip op. 31 (Christen, J., concurring), and impermissibly intruded on
the exclusive domain of the federal government to make and administer alien
classifications.
C. In considering state laws that touch on immigration, courts also look to the
strength of the state interest being vindicated. See, e.g., DeCanas, 424 U.S. at 356-57.
Where a State law serves a substantial state interest in an area of traditional state
concern, a court is less likely to find that it encroaches on federal immigration law and
its implementation by the Executive Branch. Accordingly, a State wishing to regulate
in this area must identify a substantial state interest and show that its regulation is
“reasonably adapted to the purposes for which the state desires to use it.” Plyler, 457
U.S. at 226 (emphasis and internal quotation marks omitted). Arizona has failed to
make that showing in this case.

13

App. 0068

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 19 of 24

There is no dispute that the State has granted tens of thousands of driver’s
licenses to aliens based on their provision of federal employment authorization
documents. The State has failed to identify any reason why the same documents
should not similarly suffice for plaintiffs. As the panel concluded, it is not apparent
why, if such documents are sufficient to establish that some bearers are currently
authorized to be present in the United States, they are not adequate to make that
showing for all bearers. Slip op. 21.
The State endeavors to justify its distinction on the ground that individuals with
pending applications for adjustment of status or cancellation of removal are “‘on a
path to lawful status,’ while DACA recipients are not.” Slip op. 20. But this
proffered justification simply reflects another state judgment about the classification
of aliens. As the panel observed, the State has not “defined ‘a path to lawful status’ in
a meaningful way,” id., and certainly not in a way that finds support in federal law.
Individuals with pending applications for adjustment of status or cancellation of
removal “are not in the United States pursuant to any statutory provision while their
applications are pending.” Id. at 18. This Court has previously observed with regard
to adjustment of status 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.” Id. (quoting Vasquez de Alcantar v.
Holder, 645 F.3d 1097, 1103 (9th Cir. 2011)). Arizona has not explained how the
potential for future relief relates to a current classification of “authorized presence.”
14

App. 0069

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 20 of 24

The other bases for the distinction offered by the State similarly fail to
demonstrate that the denial of driver’s licenses to plaintiffs relates to a substantial
state purpose and does not intrude on federal immigration law. Arizona has
suggested that if the DACA policy were rescinded, it might be necessary for the State
to revoke driver’s licenses issued to DACA recipients. The State further urges that if
these individuals were subsequently removed from the country, persons injured by
their conduct might be left without recourse. But, as the panel concluded, that logic
applies with equal force to individuals with pending applications for adjustment of
status or cancellation of removal, whose applications may be denied at any time, and
yet the State has determined to provide licenses to such individuals if they can present
federal employment authorization documents. Slip op. 23-24.
Other explanations offered by the State are at odds with the record. For
example, although Arizona expressed concern that DACA recipients may use a
driver’s license to improperly access state benefits for which they are ineligible, state
officials admitted that they have no basis for believing that might happen. Slip op. 23.
Similarly, there is no apparent basis for the State’s assertion that issuing licenses to
DACA recipients might expose the State to legal liability for 80,000 unauthorized
immigrant drivers. The State has not identified what the basis for legal liability would
be. Although the State has already issued approximately 47,500 licenses to holders of
federal employment authorization documents, it has not identified a single instance in
which it has faced liability for issuing a license to a noncitizen. Id. In addition, the
15

App. 0070

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 21 of 24

reference to “80,000” is significantly at variance with the fact that fewer than 15,000
Arizonans had applied for deferred action under the DACA policy at the time of the
panel’s decision. Id.
The foregoing suggests that Arizona’s policy is motivated by disagreement with
federal immigration policy. This is not a legitimate state interest. Arizona may not
substitute its judgment for the federal government’s when it comes to establishing
classifications of alien status. This is all the more true in these circumstances, where
Congress, through the REAL ID Act, has expressed its judgment that “approved
deferred action status” is “lawful status” that affords a period of “authorized stay” for
purposes of issuing identification. The Act establishes minimum standards for
participating States to adopt in order for state-issued driver’s licenses to satisfy federal
security criteria. Under the Act, approved deferred action status is listed among the
“lawful status[es]” for which participating States may issue licenses. Pub. L. No. 10913, Div. B., § 202(c)(2)(B) (capitalization omitted). The Act additionally provides that,
for individuals with temporary status, like deferred action grantees, States should issue
a temporary license that “shall be valid only during the period of time of the
applicant’s authorized stay in the United States.” Id. § 202(c)(2)(C)(ii) (emphasis added).
That States are not required to participate in this program does not detract from
Congress’s judgment for these purposes that deferred action recipients are
“authorized” to stay in the United States for the period of the deferral. Under these
circumstances, a State must at the very least advance a substantial justification in an
16

App. 0071

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 22 of 24

area of traditional state concern in order to justify classifications different from those
proposed by Congress. Arizona has not done so here.
In sum, the result reached by the panel is correct; its holding does not conflict
with any decision of the Supreme Court, this Court, or another court of appeals; and
the case does not present an issue warranting review by the full Court. The petition
for rehearing en banc therefore should be denied. See Fed. R. App. P. 35(a).
CONCLUSION
For the foregoing reasons, the full Court should not rehear this case.
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
JOHN S. LEONARDO
United States Attorney
BETH S. BRINKMANN
Deputy Assistant Attorney General
MARK B. STERN
s/ Lindsey Powell
LINDSEY POWELL
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7226
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
SEPTEMBER 2014

17

App. 0072

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 23 of 24

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Brief for the United States as Amicus Curiae
contains 4,158 words according to the count of this office’s word processing system.

s/ Lindsey Powell
LINDSEY POWELL
Counsel for the United States

App. 0073

Case: 13-16248, 09/30/2014, ID: 9260114, DktEntry: 75, Page 24 of 24

CERTIFICATE OF SERVICE
I hereby certify that on September 30, 2014, I filed the foregoing by causing a
digital version to be filed electronically via the CM/ECF system. Counsel will be
automatically served by the CM/ECF system.

s/ Lindsey Powell
LINDSEY POWELL
Counsel for the United States

App. 0074