Arizona Enjoined from Enforcing its Policy Preventing DACA Recipients from Obtaining Driver's Licenses: Ninth Circuit | Practical Law

Arizona Enjoined from Enforcing its Policy Preventing DACA Recipients from Obtaining Driver's Licenses: Ninth Circuit | Practical Law

In Arizona Dream Act Coalition v. Brewer, the US Court of Appeals for the Ninth Circuit upheld the district court's ruling that the Arizona Department of Transportation's (ADOT) policy of refusing to accept Employment Authorization Documents (EADs) issued to Deferred Action for Childhood Arrivals (DACA) recipients to support an Arizona driver's license application, violates the Equal Protection Clause. The Ninth Circuit also reversed the district court's denial of a preliminary injunction, holding that the plaintiffs (five DACA recipients and the Arizona DREAM Act Coalition) are likely to suffer irreparable harm unless the ADOT's policy is enjoined.

Arizona Enjoined from Enforcing its Policy Preventing DACA Recipients from Obtaining Driver's Licenses: Ninth Circuit

by Practical Law Labor & Employment
Published on 15 Jul 2014 • USA (National/Federal)
In Arizona Dream Act Coalition v. Brewer, the US Court of Appeals for the Ninth Circuit upheld the district court's ruling that the Arizona Department of Transportation's (ADOT) policy of refusing to accept Employment Authorization Documents (EADs) issued to Deferred Action for Childhood Arrivals (DACA) recipients to support an Arizona driver's license application, violates the Equal Protection Clause. The Ninth Circuit also reversed the district court's denial of a preliminary injunction, holding that the plaintiffs (five DACA recipients and the Arizona DREAM Act Coalition) are likely to suffer irreparable harm unless the ADOT's policy is enjoined.
On July 7, 2014, in Arizona Dream Act Coalition v. Brewer, the US Court of Appeals for the Ninth Circuit upheld the district court's ruling that the Arizona Department of Transportation's (ADOT) policy of refusing to accept Employment Authorization Documents (EADs) issued to Deferred Action for Childhood Arrivals" (DACA) recipients to support an Arizona driver's license application violates the Equal Protection Clause. The Ninth Circuit also reversed the district court's denial of a preliminary injunction, holding that the plaintiffs (five DACA recipients and the Arizona DREAM Act Coalition) are likely to suffer irreparable harm unless the ADOT's policy is enjoined. (13-16248, (9th Cir. July 7, 2014).)

Background

On June 15, 2012, the Department of Homeland Security (DHS) issued a memorandum announcing a new program, called DACA. Under this program, the DHS exercises prosecutorial discretion to grant deferred action to individuals without lawful status who were brought into the US when they were children. "Deferred action" refers to the deferral of removal (encompassing what was formerly known as exclusion and deportation) proceedings by US Citizenship and Immigration Service (USCIS) or US Immigration and Customs Enforcement (ICE).
DACA took effect on August 15, 2012. For more information about DACA, see Practice Note, Deferred Action for Childhood Arrivals.
On August 15, 2012, the same day that the DACA policy took effect, Arizona's governor Janice Brewer issued Executive Order 2012-06, "Re-Affirming Intent of Arizona law In Response to the Federal Government's Deferred Action Program" (Aug 15, 2012), directing state agencies to prevent DACA recipients from "obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver's license."
Under the Governor's Executive Order, the ADOT revised its policy, stating that it would refuse to accept EADs issued to DACA recipients (identified by the USCIS category code (c)(33), see 8 C.F.R. § 274a.12(c)(33)) as satisfactory proof that the applicant's presence in the US is authorized under federal law (Ariz. Rev. Stat. Ann. § 28-3153(D)). At that time, the ADOT continued to accept all other federally issued EADs as proof of lawful presence in the US.
The plaintiffs in this case are five individual Arizona residents, each of whom are DACA recipients with category code (c)(33) EADs, and the Arizona DREAM Act Coalition. The plaintiffs:
  • Alleged that ADOT's policy violates the US Constitution's:
    • Equal Protection Clause; and
    • Supremacy Clause.
  • Sought a preliminary injunction prohibiting the enforcement of the ADOT policy.
The district court:
  • Found that the ADOT policy deprives the plaintiffs of driver's licenses for no rational reason and therefore violates the Equal Protection Clause.
  • Denied plaintiffs' motion for a preliminary injunction, finding that plaintiffs had not shown a likelihood of irreparable harm.
The plaintiffs appealed to the Ninth Circuit.
While plaintiffs' appeal to the Ninth Circuit was pending, the defendants revised their policy, stating that in addition to refusing to accept category code (c)(33) EADs as proof of authorized presence in the US, it would also now refuse to accept EADs with category codes (c)(14) and (a)(11), codes that designate other types of deferred status by the USCIS (8 C.F.R. §§ 274a.12(c)(14) and (a)(11)). For more information, see ADOT News Release, The Facts on the Revised ADOT Deferred Action Policy (Sept 20, 2013).

Outcome

The Ninth Circuit:
  • Upheld the district court's ruling that the plaintiffs demonstrated a likelihood of success on the merits of their equal protection claim.
  • Reversed the district court's denial of a preliminary injunction, holding that plaintiffs are likely to suffer irreparable harm unless the ADOT's policy is enjoined.
  • Remanded the case for entry of a preliminary injunction prohibiting defendants from enforcing ADOT's policy.
The Ninth Circuit found that:
  • Despite the defendants' recent revision of their policy adding USCIS category code (c)(14) and (a)(11) EADs to the list they refuse to accept, the policy continues to permit the use of EADs for two large groups of non-citizens who are similarly situated to DACA recipients, those holding (c)(9) and (c)(10) category EADs (8 C.F.R. §§ 274a.12(c)(9) and (c)(10)). Therefore the ADOT policy violates the Equal Protection Clause.
  • Under the Constitution, Congress has the power to preempt state law. State law that is in conflict with federal law is preempted when:
    • it is impossible to comply with both state and federal law; or
    • it stands in the way of the accomplishment and execution of the full purposes and objectives of Congress.
  • The plaintiffs' conflict-preemption theory, that the ADOT policy is preempted because it interferes with Congress's intent that the Executive Branch have discretion to determine when non-citizens can work in the US, is plausible. If the plaintiffs can prove the link between driver's licenses and the ability to work in Arizona, the ADOT policy would be conflict-preempted, even though it does not explicitly prohibit the DACA recipients from working. That is, if the practical effect of the policy is to prevent the plaintiffs from working, it is conflict-preempted.
  • Plaintiffs have shown that in the absence of a preliminary injunction, they would suffer irreparable harm. For example, they have shown that their lack of driver's licenses has severely hampered their professional opportunities. The ability to drive is integral to work in Arizona, since 87% of Arizona's workers commute to work by car. The lack of a driver's license prevented the plaintiffs from applying for certain jobs, and prevented one plaintiff from expanding his own business to new customers who live further from his home. The loss of opportunity to pursue their chosen professions constitutes irreparable harm. This harm is heightened by the plaintiffs' youth and fragile socioeconomic positions, since early-career setbacks may haunt them for the rest of their careers.
  • Defendants' argument that plaintiffs could drive illegally and therefore they cannot suffer harm from their inability to obtain a driver's license should be rejected. Laws are not irrelevant simply because they can be disobeyed.
  • By establishing a likelihood that defendants' policy violates their constitutional rights, plaintiffs have also established that the other factors of injunction, public interest and balance of the equities, favor a preliminary injunction. It is neither equitable nor in the public's interest to allow Arizona to violate the requirements of federal law, particularly where there is no other adequate remedy available.

Practical Implications

The ADOT policy prevented DACA recipients in Arizona with EAD work authorization from taking on positions where a legal Arizona driving license was a requirement of the job. In addition, some jobs in Arizona require driver's licenses as a condition of hire. It also prevented these workers from fundamentally getting to work, since in Arizona, a state with limited public transport options, many workers are reliant on their cars for their daily commute. In fact, as the Ninth Circuit notes in this opinion, more than 87% of Arizona's workforce commutes to work by car whereas only about 2% commute using public transportation. Arizona employers who wish to employ DACA recipients with EAD work authorization should be encouraged that some of the roadblocks have been lifted.