Arizona's Policy Barring Driver's Licenses to DACA Recipients Preempted and Permanently Enjoined: Ninth Circuit

Practical Law Legal Update w-001-8760 (Approx. 5 pages)

Arizona's Policy Barring Driver's Licenses to DACA Recipients Preempted and Permanently Enjoined: Ninth Circuit

by Practical Law Labor & Employment

Background

Under DACA, which took effect in August 2012, the Department of Homeland Security 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 or US Immigration and Customs Enforcement. Individuals with approved DACA applications may apply for and receive EADs that permit employment in the US. For more information about DACA, see Practice Note, Deferred Action for Childhood Arrivals.

On the same day that DACA took effect, Arizona's governor Jan Brewer issued an executive order directing Arizona state agencies to prevent DACA recipients from obtaining eligibility to certain taxpayer-funded public benefits and state identification, including driver's licenses. Based on Governor Brewer's executive order, Arizona's Department of Transportation (ADOT) began refusing to accept EADs issued to DACA recipients (Arizona's policy) .

Five individual Arizona residents who were DACA recipients, along with the Arizona DREAM Act Coalition, challenged Arizona's policy in part as violating the Equal Protection Clause. They sought a preliminary injunction in US district court prohibiting the enforcement of Arizona's policy.

Although the district court found that Arizona's policy violated the equal protection clause, it denied the preliminary injunction based on a finding that the plaintiffs had not showed they would suffer irreparable harm. The Ninth Circuit reversed, granting the preliminary injunction and agreeing with the district court that Arizona's policy violated the equal protection clause (see Legal Update, Arizona Enjoined from Enforcing its Policy Preventing DACA Recipients from Obtaining Driver's Licenses: Ninth Circuit).

While the plaintiffs' appeal of the district court's denial of the preliminary injunction was pending, ADOT revised and expanded its policy to refuse drivers' licenses relying on EADs from other deferred action beneficiaries in addition to DACA recipients. The plaintiffs therefore sought a permanent injunction of Arizona's policy and both parties moved for summary judgment. In that action, the district court:

Held that Arizona's policy violated the Equal Protection Clause.
Granted summary judgment to the plaintiffs.
Entered a permanent injunction enjoining Arizona's policy.

Defendants (including ADOT) appealed.

Outcome

The Ninth Circuit:

Affirmed the district court's grant of:
- a permanent injunction enjoining Arizona's policy; and
- summary judgment to plaintiffs.
Held that the permanent injunction of Arizona's policy was warranted because the policy is preempted by the INA. The INA "occupies the field" and prevents states from categorizing immigrants to deny driver's licenses to some immigrants.
Found that:
- DACA recipients are similarly situated to other types of noncitizens who are eligible for Arizona driver's licenses;
- Arizona's policy may violate the Equal Protection Clause because it lacks a rational governmental interest justifying a distinction between DACA recipients and other immigrant categories for purposes of obtaining driver's licenses;
- the plaintiffs are likely to suffer irreparable harm without an injunction on Arizona's policy; and
- the public interest and the absence of adequate remedies at law to compensate the plaintiffs for the harm inflicted by Arizona's policy favor a permanent injunction.
Noted that the principle of constitutional avoidance allows courts not to reach constitutional issues such as equal protection even when those issues may be tied to a plausible, potentially meritorious claim, if there is a "viable alternate, nonconstitutional ground to reach the same result" (Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005); City of L.A. v. Cty. of Kern, 581 F.3d 841, 846 (9th Cir. 2009).

The Ninth Circuit's preemption analysis rested on the following:

The INA:
- provides for an extensive framework regarding the admission, removal, and presence of immigrants; and
- gives the federal government exclusive authority to classify noncitizens.
(Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011).)
The INA provides that an immigrant present in the US beyond a period "authorized by the Attorney General" is "unlawfully present" in the US (INA § 212(a)(9)(B)(ii) (8 U.S.C. § 1182(a)(9)(B)(ii))).
INA regulations provide that deferred action recipients are not considered to be accruing "unlawful presence" time for purposes of calculating when they may seek admission to the US (8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2)).
Based on the INA regulations, deferred action recipients' stay in the US is "authorized by the Attorney General" under the INA.
Arizona's policy, while ostensibly addressing driver's licenses, reflected the state's independent judgment that federal law does not permit DACA recipients to be present in the US and therefore represented a "clear departure from federal immigration classifications" provided for by the INA (ADAC v. Brewer, 757 F.3d 1053 (9th Cir. 2014)).

Practical Implications

The Ninth Circuit's decision in Arizona Dream Act Coalition is its second decision addressing Arizona's policy of refusing to accept EADs issued to DACA recipients to support an Arizona driver's license application. The first time, the Ninth Circuit found the policy violated equal protection and issued a preliminary injunction. This time, the Ninth Circuit relied on preemption by the INA as an alternative basis to permanently enjoin Arizona's policy. This decision holding that Arizona's policy "usurps" the federal government's authority to classify immigrants could dissuade other states from enacting laws or regulations seemingly targeting DACA recipients. Furthermore, the decision assures that Arizona residents with an EAD may continue to obtain a driver's license regardless of the EAD's basis, if otherwise eligible.

Update: On February 2, 2017, in Arizona Dream Act Coalition v. Brewer, the US Court of Appeals for the Ninth Circuit issued an amended opinion that:

Denied the defendants' petition for rehearing en banc, therefore leaving the permanent injunction of Arizona's policy in place.
Was similar to the original opinion from April 5, 2016 and did not change the original panel's decision or reasoning.
Indicated that no further petitions for a rehearing will be accepted.
Included an opinion by Ninth Circuit Judge Alex Kozinski (joined by five other judges) dissenting from the denial of rehearing en banc.

( (9th Cir. Feb. 2, 2017).)

Update: On March 19, 2018, in Brewer v. Arizona Dream Act Coalition, the US Supreme Court denied petition for writ of certiorari ( (U.S. Mar. 19, 2018)).

Arizona's Policy Barring Driver's Licenses to DACA Recipients Preempted and Permanently Enjoined: Ninth Circuit | Practical Law