Estrada v. Becker, 030619 FED11, 17-12668

Docket Nº:17-12668
Opinion Judge:TJOFLAT, CIRCUIT JUDGE
Party Name:ELLY MARISOL ESTRADA, SALVADOR ALVARADO, DIANA UMANA, each an individual, Plaintiffs-Appellants, v. MARK BECKER, President of Georgia State University, in his individual and official capacity, STEVE MICHAEL DORMAN, President of Georgia College and State University, in his individual and official capacity, BROOKS A. KEEL, President of Augusta ...
Judge Panel:Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, District Judge.
Case Date:March 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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ELLY MARISOL ESTRADA, SALVADOR ALVARADO, DIANA UMANA, each an individual, Plaintiffs-Appellants,

v.

MARK BECKER, President of Georgia State University, in his individual and official capacity, STEVE MICHAEL DORMAN, President of Georgia College and State University, in his individual and official capacity, BROOKS A. KEEL, President of Augusta University, in his individual and official capacity, JERE W. MOREHEAD, President of the University of Georgia, in his individual and official capacity, G.P. BUD PETERSON, President of the Georgia Institute of Technology, in his individual and official capacity, et al., Defendants-Appellees.

No. 17-12668

United States Court of Appeals, Eleventh Circuit

March 6, 2019

Appeal from the United States District Court No. 1:16-cv-03310-TWT for the Northern District of Georgia

Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, [*] District Judge.

TJOFLAT, CIRCUIT JUDGE

This case is about a Policy1 that the Georgia Board of Regents ("Regents") set. The Policy requires Georgia's three most selective colleges and universities to verify the "lawful presence" of all the students they admit. Under the Policy, applicants who received deferred action pursuant to the Deferred Action for Childhood Arrivals memorandum ("DACA Memo") cannot attend Georgia's selective schools. Appellants are students who are otherwise qualified to attend these schools, and they filed suit to challenge the Policy. At the heart of their suit is whether they are "lawfully present" in the United States. They say they are lawfully present based on the DACA Memo. Thus, appellants claim the Regents' Policy is preempted by federal law, and they argue the Policy violates their equal protection rights. The District Court found that appellants are not lawfully present, and it dismissed the suit.

After careful consideration of the record, and with the benefit of oral argument, we affirm the District Court's decision.

I.

Back in 2012, the Secretary of the Department of Homeland Security ("DHS") issued the DACA Memo, which encouraged government officials not to enforce federal immigration laws against certain children who came to the United States before age 16. Instead, officials were encouraged to exercise their "prosecutorial discretion" and to focus on higher-priority cases. The DACA Memo explicitly pointed out that it "confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, c[ould] confer these rights." The DACA Memo simply set forth a policy that would guide officials when exercising discretion.

The individuals who meet the DACA Memo's criteria qualify for what is called "deferred action." We refer to those individuals who ultimately get deferred action as "DACA recipients." Under the Regents' Policy (explained below), DACA recipients cannot attend Georgia's most selective colleges and universities.

Under Georgia law, the Regents set the policies that govern the University System of Georgia. O.C.G.A. § 50-36-1(d)(7). The Policy at issue here limits who can attend the more selective schools in the University System. It prevents any person "who is not lawfully in the United States" from attending any school that "did not admit all academically qualified applicants"-in other words, the selective schools-"for the two most recent academic years."2

The Policy then requires these selective schools to verify the lawful presence of every student it admits. There are several ways that a school can verify lawful presence.[3] The Policy explicitly says that DACA recipients "are not considered lawfully present in the United States."

Appellants are DACA recipients4 who are qualified to attend and want to apply to these selective schools, but the Policy prevents them from doing so. They filed suit against the selective schools' presidents and the Regents and allege two causes of action. Appellants allege that the Policy violates the Supremacy Clause based on three theories: the Policy is an unconstitutional regulation of immigration, the Policy is conflict preempted, and the Policy is field preempted. Appellants also allege that the Policy violates the Equal Protection Clause.

The District Court dismissed the case. It rejected appellants' regulation of immigration claim and field preemption claim because it found that the Policy adopts the immigration classifications that Congress set out in the Immigration and Nationality Act ("Act"). The District Court rejected the conflict preemption claim because the DACA Memo conferred no substantive rights, and the Policy is thus consistent with federal immigration law. Finally, the District Court rejected the equal protection claim because it found that appellants are not similarly situated to other noncitizens who are eligible to attend the selective schools. The District Court noted that appellants have no lawful status and are not lawfully present in the United States. By contrast, the other noncitizens who are eligible have lawful status or otherwise are lawfully present.

This appeal followed, and appellants challenge the dismissal of both causes of action. We address each in turn.

II.

We review de novo the District Court's order dismissing appellants' complaint for failure to state a claim. Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). We assume the factual allegations of the complaint are true, and we construe them in the light most favorable to appellants. Id. We do not assume that any legal conclusions are true. Id.

A.

Under the Supremacy Clause, the Constitution and the laws of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. From this Clause we have the preemption doctrine, and any state law that "interfere[s] with, or [is] contrary to," federal law is preempted. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23, 82 (1824).

There are at least three ways Congress may preempt state law. First, Congress may pass a statute with an express preemption provision. Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 2500-01 (2012). Second, Congress may decide that a field will be regulated exclusively by the federal government. Id. In that case, there is no express preemption provision. Instead, we may infer an "intent to displace state law altogether" where "a framework of regulation [is] 'so pervasive . . . that Congress left no room for the States to supplement it' or where there is a 'federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id., 132 S.Ct. at 2501 (second and third alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152 (1947)). Third, federal law preempts state law when the two conflict. Id. That is, when "compliance with both federal and state regulations is a physical impossibility," id. (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1218 (1963)), or when "state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, '" id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404 (1941)).

In the immigration context, there is another preemption consideration. The Supreme Court has said that the "[p]ower to regulate immigration is unquestionably exclusively a federal power," and any state law that "regulat[es] . . . immigration" is unconstitutional. DeCanas v. Bica, 424 U.S. 351, 354-55, 96 S.Ct. 933, 936 (1976). That is, unlike field preemption, the Constitution itself preempts any state effort to regulate immigration, even if Congress has not expressly or impliedly preempted the state regulation. See id. at 355, 96 S.Ct. at 936. "[A] regulation of immigration . . . is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id.

Appellants make three arguments: (1) the Policy amounts to an unconstitutional regulation of immigration, (2) the Policy is field preempted, and (3) the Policy is conflict preempted.

1.

The Supreme Court has said that a law is a "regulation of immigration" if it "essentially . . . determin[es]" (1) "who should or should not be admitted into the country" or (2) "the conditions under which a legal entrant may remain." Id. Appellants claim the Policy does both.

First, appellants argue the Policy is an unconstitutional regulation of...

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