855 F.3d 957 (9th Cir. 2017), 15-15307, Arizona Dream Act Coalition v. Brewer

Docket Nº:15-15307
Citation:855 F.3d 957
Opinion Judge:Harry Pregerson, Senior Circuit Judge
Party Name:ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS, Plaintiffs-Appellees, v. JANICE K. BREWER, Governor of the State of Arizona, in her official capacity; JOHN S. HALIKOWSKI, Director of the Arizona Department of Transportation, in his official capacity; ...
Attorney:Dominic Draye (argued), Deputy Solicitor General; John Robert Lopez, IV, Solicitor General; Office of the Attorney General, Phoenix, Arizona; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, Arizona; for Defendants-Appellants. Karen Tumlin (argued), Shiu-Ming Cheer,...
Judge Panel:Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges. Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges. Opinion by Judge Harry Pregerson, Senior Circuit Judge. Circuit Judge KOZINSKI, with whom Circuit Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA and N.R. SMITH joi...
Case Date:February 02, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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855 F.3d 957 (9th Cir. 2017)

ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS, Plaintiffs-Appellees,

v.

JANICE K. BREWER, Governor of the State of Arizona, in her official capacity; JOHN S. HALIKOWSKI, Director of the Arizona Department of Transportation, in his official capacity; STACEY K. STANTON, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants-Appellants

No. 15-15307

United States Court of Appeals, Ninth Circuit

February 2, 2017

Argued and Submitted: July 16, 2015, Pasadena, California

Petition for certiorari filed at, 03/29/2017

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:12-cv-02546-DGC. David G. Campbell, District Judge, Presiding.

SUMMARY[*]

Civil Rights

The panel amended its prior opinion filed on April 5, 2016, appearing at 818 F.3d 901 (9th Cir. 2016), denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions for rehearing will be accepted.

Dissenting from the denial of rehearing en banc, Judge Kozinski, joined by Judges O'Scannlain, Bybee, Callahan, Bea and N.R. Smith, disagreed with the conclusion that President Obama's program, created by an executive memorandum, preempted state law. Judge Kozinski noted that Congress never approved the deferred-action program, but rather the President adopted it on his own initiative after Congress repeatedly declined to pass legislation that would have authorized a similar program. Judge Kozinski stated that the panel opinion failed to show that Congress evinced a " clear and manifest purpose" to delegate to the executive branch the authority to preempt state law. Judge Kozinski stated that Arizona's control over its drivers' licenses was well within the mainstream of the state's police power.

The panel affirmed the district court's summary judgment in favor of plaintiffs and affirmed the district court's order entering a permanent injunction that enjoined Arizona's policy of denying Employment Authorization Documents issued under the Deferred Action for Childhood Arrivals program as satisfactory proof of authorized presence under federal law in the United States.

Plaintiffs are five individual recipients of deferred action under the Deferred Action for Childhood Arrivals (" DACA" ) program, and the Arizona DREAM Act Coalition. DACA recipients are noncitizens who were brought to this country as children. The DACA program, authorized by a federal executive order, permits recipients to remain in the United States for some period of time as long as they meet certain conditions.

The panel found that DACA recipients are similarly situated in all relevant respects to other noncitizens eligible for drivers' licenses under Arizona's policy. The panel found that Arizona's refusal to rely on Employment Authorization Documents from DACA recipients for purposes of establishing eligibility for drivers' licenses may well violate the Equal Protection Clause for lack of a rational governmental interest justifying the distinction relied upon. The panel, however, applied constitutional avoidance and found that it could reach the same result on the ground that the Immigration and Nationality Act occupies the field of Arizona's classification of noncitizens with regard to whether their presence is authorized by federal law. The panel concluded that the Immigration and Nationality Act preempts states from engaging in their very own categorization of immigrants for the purpose of denying some of them drivers' licenses. Because Arizona created a new immigration classification when it adopted its policy regarding driver's license eligibility, it impermissibly strayed into an exclusive domain that Congress, through the Immigration and Nationality Act, delegated to the executive branch.

Concurring, in light of the dissent from the denial of rehearing en banc, Judge Berzon stated that she joined the panel opinion in full, but wrote separately 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. Additionally, Judge Berzon stated that the preemption issues ultimately decided in this case could 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.

Dominic Draye (argued), Deputy Solicitor General; John Robert Lopez, IV, Solicitor General; Office of the Attorney General, Phoenix, Arizona; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, Arizona; for Defendants-Appellants.

Karen Tumlin (argued), Shiu-Ming Cheer, Nicholas Espiritu, Linton Joaquin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA; Tanya Broder, National Immigration Law Center, Oakland, CA; Jorge Martin Castillo and Victor Viramontes, Mexican American Legal Defense Educational Fund, Los Angeles, CA; Rodkangyil Danjuma, ACLU Foundation of Northern California, San Francisco, CA; Lee Gelernt and Michael K.T. Tan, American Civil Liberties Union, New York, NY; James Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix, AZ; Jennifer C. Newell and Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA; Kelly Flood, ASU Alumni Law Group, Phoenix, AZ, for Plaintiffs-Appellees.

Dale Wilcox and Michael M. Hethmon, Washington, D.C., as and for Amicus Curiae Immigration Reform Law Institute.

Dominic Draye (argued) and John Robert Lopez, IV, Arizona Attorney General's Office, Phoenix, AZ; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, AZ, for Defendants-Appellants.

Dale Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform Law Institute.

Lindsey Powell, Washington D.C. for Amicus Curiae United States of America.

John S. Miles, Jeremiah L. Morgan, William J. Olson, Robert J. Olson, and Herbert W. Titus, William J. Olson P.C., Vienna, Virginia; Michael Connelly, U.S. Justice Foundation, Ramona, California; for Amici Curiae English First Foundation, English First, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Inc., and Conservative Legal Defense and Education Fund.

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges. Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges. Opinion by Judge Harry Pregerson, Senior Circuit Judge. Circuit Judge KOZINSKI, with whom Circuit Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA and N.R. SMITH join, dissenting from the denial of rehearing en banc. BERZON, Circuit Judge, Concurring in light of the Dissent from the denial of rehearing en Banc.

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AMENDED OPINION

Harry Pregerson, Senior Circuit Judge:

Plaintiffs are five individual recipients of deferred action under the Deferred Action for Childhood Arrivals (" DACA" ) program, and the Arizona DREAM Act Coalition (" ADAC" ), an organization that advances the interests of young immigrants. DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court's ruling that the federal government " has broad, undoubted power over the subject of immigration and the status of aliens" under the Constitution. Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012).

In response to the creation of the DACA program, Defendants--the Governor of the State of Arizona; the Arizona Department of Transportation (" ADOT" ) Director; and the Assistant Director of the

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Motor Vehicle Division--instituted a policy that rejected the Employment Authorization Documents (" EADs" ) issued to DACA recipients under the DACA program as proof of authorized presence for the purpose of obtaining a driver's license. Plaintiffs seek permanently to enjoin Defendants from categorically denying drivers' licenses to DACA recipients. The district court ruled that Arizona's policy was not rationally related to a legitimate government purpose and thus violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted Plaintiffs' motion for summary judgment and...

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