Ariz. Dream Act Coal. v. Brewer

• Citation: 945 F.Supp.2d 1049
• Decision Date: 06 June 2013
• Docket Number: No. CV12–02546 PHX DGC.,CV12–02546 PHX DGC.
• Parties: ARIZONA DREAM ACT COALITION; Jesus Castro–Martinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; and Natalia Perez–Gallagos, Plaintiffs, 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; and Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants.
• Court: U.S. District Court — District of Arizona

945 F.Supp.2d 1049

ARIZONA DREAM ACT COALITION; Jesus Castro–Martinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; and Natalia Perez–Gallagos, Plaintiffs,

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; and Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants.

No. CV12–02546 PHX DGC.

United States District Court, D. Arizona.

May 16, 2013.

Order Denying Reconsideration June 6, 2013.

Andrew S. Jacob, Marty Harper, Thomas K. Irvine, Polsinelli Shughart PC, Daniel Joseph Pochoda, James Duff Lyall, Kelly Joyce Flood, ACLU, Phoenix, AZ, Cecillia D. Wang, Jennifer Chang Newell, Michael King Thomas Tan, Rodkangyil Orion Danjuma, ACLU, San Francisco, CA, Karen Cassandra Tumlin, Linton Joaquin, Nicholas David Espiritu, Nora A. Preciado, Shiu–Ming Cheer, National Immigration Law Center, Los Angeles, CA, Lee Gelernt, ACLU, New York, NY, Tanya Broder, National Immigration Law Center, Oakland, CA, Victor Viramontes, MALDEF, Los Angeles, CA, for Plaintiffs.

Doug C. Northup, Sean Thomas Hood, Timothy J. Berg, Fennemore Craig PC, Joseph Sciarrotta, Jr., Office of the Governor, Phoenix, AZ, for Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

This case concerns the constitutionality of the State of Arizona's denial of driver's licenses to persons commonly known as “DREAMers.” ¹ On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (“DHS”), announced the Deferred Action for Childhood Arrivals (“DACA”) program, which provides deferred action for a period of two years to certain eligible DREAMers (hereafter referred to as “DACA recipients”). Deferred action constitutes a discretionary decision by law enforcement authorities to defer legal action that would remove an individual from the country. The DACA program also provides that DACA recipients may work during the period of deferred action and may obtain employment authorization documents, generally known as “EADs,” from the United States Citizenship and Immigration Services (“USCIS”).

Arizona law provides that the Arizona Department of Transportation (“ADOT”) “shall not issue to or renew a driver license ... for a person who does not submit proof satisfactory to the department that the applicant's presence in the United States is authorized under federal law.” A.R.S. § 28–3153(D). Before the announcement of the DACA program, the Motor Vehicle Division (“MVD”) of ADOT accepted all federally-issued EADs as sufficient evidence that a person's presence in the United States was authorized under federal law, and therefore granted driver's licenses to such individuals. After announcementof the DACA program, MVD revised its policy to provide that EADs issued to DACA recipients do not constitute sufficient evidence. MVD continues to accept all other EADs, including those issued to persons who have received other forms of deferred action.

Plaintiffs are the Arizona Dream Act Coalition (“ADAC”), an immigrant youth-led community organization, and five individual DACA recipients. They allege that Defendants' driver's license policy violates the Supremacy and the Equal Protection Clauses of the United States Constitution. Plaintiffs have filed a motion for preliminary injunction (Doc. 29), and Defendants have filed a motion to dismiss (Doc. 58). The motions are fully briefed, and the Court heard oral argument on March 22, 2013. For reasons stated below, the Court concludes that Plaintiffs have not shown a likelihood of success on the merits of their Supremacy Clause claim. Plaintiffs have shown a likelihood of success on the merits of their equal protection claim, but the Court finds that they have not shown a likelihood of irreparable injury and have not otherwise met the high burden for a mandatory injunction. The Court accordingly will deny Plaintiffs' motion for a preliminary injunction and grant Defendants' motion to dismiss in part.

BACKGROUND

I. Deferred Action and DACA.

The federal government has broad and plenary powers over the subject of immigration and the status of aliens. Arizona v. United States, –––U.S. ––––, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012); see alsoU.S. Const. art. I, § 8, cl. 4. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., Congress has created a complex and detailed federal immigration scheme governing the conditions under which a foreign national may be admitted to and remain in the United States, see, e.g., id. §§ 1181, 1182, 1184, and providing for the removal and deportation of aliens not lawfully admitted to this country, see, e.g., id. §§ 1225, 1227, 1228, 1229, 1231. See generally United States v. Arizona, 703 F.Supp.2d 980, 987–88 (D.Ariz.2010) (describing the federal immigration scheme). The INA charges the Secretary of Homeland Security with the administration and enforcement of all laws relating to immigration and naturalization. 8 U.S.C. § 1103(a)(1). Under this delegation of authority, the Secretary may exercise a form of prosecutorial discretion and decide not to pursue the removal of a person unlawfully in the United States. This exercise of prosecutorial discretion is commonly referred to as deferred action. See Reno v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 483–84 & n. 8, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (recognizing the practice of “deferred action” where the Executive exercises discretion and declines to institute proceedings, terminate proceedings, or execute a final order of deportation for humanitarian reasons or its own convenience).²

On June 15, 2012, Secretary Napolitano issued a memorandum announcing that certain young persons not lawfully present in the United States will be eligible to obtain deferred action if they meet specified criteria under the newly instituted DACA program. Doc. 1, ¶¶ 4–5; Doc. 38–3. Eligible persons must show that they (1) came to the United States under the age of 16; (2) continuously resided in the United States for at least five years preceding the date of the memorandum and were present in the United States on the date of the memorandum; (3) currently attend school, have graduated from high school or obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (4) have not been convicted of a felony offense, a significant misdemeanor, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and (5) are not older than 30. Doc. 38–3 at 2. Eligible persons receive deferred action for two years, subject to renewal, and may obtain an EAD for the period of the deferred action. Doc. 38–3 at 4; see also8 C.F.R. § 274a.12(c)(14). The Napolitano memorandum makes clear that it “confers no substantive right, immigration status or pathway to citizenship[,]” and that “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. An estimated 1.76 million persons are eligible for DACA, with approximately 80,000 residing in Arizona. Doc. 1, ¶ 6.

II. Defendants' Driver's License Policy.

As noted above, A.R.S. § 28–3153(D) provides that non-citizens may obtain Arizona driver's licenses by presenting proof that their presence in the United States is authorized by federal law. MVD policies identify the documentation deemed sufficient to show federal authorization. See Doc. 34–3. Before the policy change at issue in this case, MVD accepted EADs as satisfactory evidence. Doc. 1, ¶ 9; Doc. 34–3; Doc. 60–1 at 12–15, ¶ 25; Doc. 83–5, ¶ 3. Between 2005 and 2012, MVD issued approximately 47,500 driver's licenses to persons who submitted EADs to prove their lawful presence in the United States. Doc. 30 at 26 (citing Doc. 34–7 at 1–5).³

The announcement of the DACA program prompted ADOT Director John S. Halikowski to review the program's potential impact on ADOT's administration of the State's driver's license laws. Doc. 60–1 at 12–15, ¶¶ 5, 7. Halikowski and Assistant Director Stacey K. Stanton were aware that DACA recipients with EADs were eligible to receive driver's licenses under MVD's then-existing policy (Doc. 99–1 at 247–51 ⁴), and Halikowski's declaration states that he had a number of concerns about the DACA program (Doc. 60–1 at 12–15, ¶¶ 8–20).

After Director Halikowski initiated the ADOT policy review, but before the review had reached a conclusion, Governor Brewer issued Executive Order 2012–06 on August 15, 2012 (the “Executive Order”). The Executive Order concluded that “issuance of Deferred Action or Deferred Action USCIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit.” Doc. 1–1 at 2. The Executive Order directed state agencies to “conduct a full statutory, rule-making and policy analysis and ... initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action 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[.]” Id. Governor Brewer stated that the Executive Order was necessary to make clear there would be “no drivers [sic] licenses for illegal people.” Doc. 38, ¶ 13. On September 17, 2012, MVD formally revised its policy to conform to the Governor's order. Doc. 1, ¶ 10; Doc. 1–2.

MOTION FOR PRELIMINARY INJUNCTION

I. Legal Standard.

“A preliminary injunction is an extraordinary remedy never awarded as a matter of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, a plaintiff must show “that he is likely to succeed on...