Dandamudi v. Tisch
| Decision Date | 10 July 2012 |
| Docket Number | Docket No. 10–4397–cv. |
| Citation | 115 Fair Empl.Prac.Cas. (BNA) 978,686 F.3d 66 |
| Parties | Venkat Rao DANDAMUDI, Naveen Parupalli, Sunitha Talluri, Nareen Adusumelli, Jitendra Kumar Patel, Lavanya Akula, Hareen Karra, Holly Elizabeth Benoit, Yecham Kumaraswamy, Grace Chan, Herng Yih Lai, Jitendra Keshavlal Patel, Sumirkumar S. Talati, Sireesh K. Thummalapally, Kaichuan Yeh, Plaintiffs–Appellees, Vishnu Akula, Balaji Duddukuru, Murali Kothuri, Alanna Farrell, Consolidated Plaintiffs–Appellees, Lakshman Rao Paidi, Nitasha Khurana, Young Mee Lee, Xuan Uyen Nghiem, Sirisha Parupalli, Yvonne May Perry, Harinath Talampally, Ravi Kumar Chenna, Getu Nagasa, Phuong Giang, Ngoc Bui, Seong Mi Seo Kim, Krishna Kishore Inapuri, Plaintiffs, v. Merryl H. TISCH, Chancellor of the New York State Board of Regents, David Steiner, Commissioner of Education, Defendants–Appellants, Richard P. Mills, Commissioner of Education, New York State Department of Education, Robert M. Bennett, Chancellor of the New York State Board of Regents, New York State Board of Regents, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Held Unconstitutional
N.Y.McKinney's Education Law § 6805(1)(6)Andrew B. Ayers, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Denise A. Hartman, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants–Appellants.
Margaret A. Catillaz (Jeffrey A. Wadsworth, on the brief), Harter Secrest & Emery LLP, Rochester, NY, for Plaintiff–Appellee Alanna Farrell.
Krishnan Chittur, Chittur & Associates, P.C., New York, NY, for remaining Plaintiffs–Appellees.
Before: WESLEY, HALL, Circuit Judges, UNDERHILL, District Judge. *
This case involves a state regulatory scheme that seeks to prohibit some legally admitted aliens from doing the very thing the federal government indicated they could do when they came to the United States—work. Plaintiffs–Appellees are a group of nonimmigrant aliens who have been authorized by the federal government to reside and work as pharmacists in the United States. All currently reside in New York and are licensed pharmacists there. Plaintiffs obtained pharmacist's licenses from New York pursuant to a statutory waiver to New York Education Law § 6805(1)(6)'s requirement that only U.S. Citizens or Legal Permanent Residents (“LPRs”) are eligible to obtain a pharmacist's license in New York. The waiver provision was set to expire in 2009. In response, plaintiffs sued various state officials 1 responsible for enforcing the law in the United States District Court for the Southern District of New York.
Plaintiffs allege that § 6805(1)(6) is unconstitutional because it violates the Equal Protection and Supremacy Clauses of the United States Constitution. In a thorough and well-reasoned opinion, the district court granted plaintiffs' motion for summary judgment and permanently enjoined defendants from enforcing the law. See Adusumelli v. Steiner, 740 F.Supp.2d 582 (S.D.N.Y.2010).
On appeal, New York asks us to abrogate the Supreme Court's general rule that state statutes that discriminate based on alienage are subject to strict scrutiny review. The state argues that the statute at issue here, which discriminates against nonimmigrant aliens should be reviewed only to determine if there is a rational basis that supports it. In our view, however, a state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently. Applying strict scrutiny, therefore, and finding, as the state concedes, that there are no compelling reasons for the statute's discrimination based on alienage, we hold the New York statute to be unconstitutional. We affirm the district court's grant of summary judgment for plaintiffs.
Most of the plaintiffs have H–1B temporary worker visas. Under the Immigration and Nationality Act (“INA”), H–1B visas may be given to aliens who come “temporarily to the United States to perform services ... in a specialty occupation.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). The remaining plaintiffs have what is known as “TN” status. “TN” status is a temporary worker status created by federal law pursuant to the North American Free Trade Agreement (“NAFTA”). NAFTA permits “a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level” to enter the United States and work here pursuant to the requirements of the TN status. 8 C.F.R. § 214.6(a).
These provisions technically grant plaintiffs admission to the United States for a finite period. Because plaintiffs' status grants them the right to reside and work in the United States only temporarily, plaintiffs are part of the group of aliens the immigration law refers to as nonimmigrants. 8 U.S.C. § 1101(a)(15). And, although plaintiffs had to indicate that they did not intend to stay here permanently to obtain their visas, the truth is that many (if not all) actually harbor a hope (a dual intention) that some day they will acquire the right to stay here permanently. The BIA and the State Department both recognize this doctrine of dual intent, which allows aliens to express an intention to remain in the United States temporarily (to satisfy the requirements of their temporary visas) while also intending to remain permanently, which allows them to apply for an adjustment of status. Matter of Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456–58 (Nov. 1, 1993).
For purposes of both the H1–B and TN visas, the initial period during which the visa-holder can legally remain and work in the United States is three-years. 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1) (H1–B visa), 214.6(e) (TN status). Each visa status also permits a three-year extension of the initial period. Id. at §§ 214.2(h)(15)(ii)(B), 214.6(h). But an alien with an H1–B visa is limited to one such extension, essentially restricting H1–B status to a six-year period.2Id. at § 214.2(h)(15)(ii)(B)(1). In practice, however, federal law permits many aliens with TN or H1–B status to maintain their temporary worker authorization for a period greater than six years. All plaintiffs in this case, for example, have been legally authorized to reside and work in the United States for more than six years. And, six plaintiffs have been authorized to reside and work in the United States for more than ten years.
Several factors contribute to the difference between the technical limitations on H1–B and TN status and the length of time these aliens remain authorized to reside and work in the United States. Many aliens who receive temporary worker authorization are former students who entered the United States with a student visa and who have made their home in the United States for many years before entering the professional world.3 Many nonimmigrant aliens are also often eligible to apply for LPR status. This process is typically quite slow, and the federal government therefore regularly issues Employment Authorization Documents (“EADs”), which extend the time period during which these aliens are eligible to work in the United States while they await their green cards. 8 C.F.R. § 274a.12(c)(9).
Twenty-two plaintiffs have applied for Permanent Resident status.4 Sixteen have received EADs because they have exhausted the six-year maximum authorization provided by H1–B status.
Based on their visa status, all plaintiffs currently reside in the United States legally and have permission to work here. All are pharmacists who were granted a pharmacist's license (albeit a “limited” one) pursuant to a previous version of the New York statute at issue here.5Section 6805(1)(6), in its current incarnation, provides that to be eligible for a pharmacist's license in New York, an applicant must be either a U.S. Citizen or a LPR. 6 The statute bars all other aliens, including those with work-authorization who legally reside in the United States, from becoming licensed pharmacists.
New York argues that neither the Equal Protection Clause nor the Supremacy Clause prevents a state from prohibiting a group of aliens who are legally authorized to reside and work in the United States from working in certain professions. The state relies principally on two decisions from our sister circuits. See League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 531–34, 536–37 (6th Cir.2007); LeClerc v. Webb, 419 F.3d 405, 415 (5th Cir.2005), reh'g en banc denied,444 F.3d 428 (2006). 7 The Fifth and Sixth Circuits viewed nonimmigrant aliens as distinct from aliens with LPR status and applied a rational scrutiny test to determine if the state statutes in question ran afoul of the Equal Protection Clause. In both cases, the courts “decline[d] to extend” the protections of LPRs to certain nonimmigrants. LULAC, 500 F.3d at 533;LeClerc, 419 F.3d at 419. We disagree; the Supreme Court has repeatedly affirmed the general principle that alienage is a suspect classification and has only ever created two exceptions to that view. We decline to create a third in a case where the statute discriminates against aliens who have been granted the legal right to reside and work in the United States. Under a strict scrutiny analysis, § 6805(1)(6) of the New York Education Law violates the Equal Protection Clause.
The Fourteenth Amendment provides that states may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Under the Fourteenth Amendment, a law that “impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class ” is reviewed...
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