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Arizona Dream Act Coalition v. Brewer

United States District Court, D. Arizona

January 22, 2015

Arizona Dream Act Coalition; Jesus Castro-Martinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; Natalia Perez-Gallagos; Carla Chavarria; and Jose Ricardo Hinojos, 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

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For Arizona Dream Act Coalition, Christian Jacobo, Alejandra Lopez, Ariel Martinez, Natalia Perez-Gallegos, Jose Ricardo Hinojos, Plaintiffs: Cecillia D Wang, Jennifer Chang Newell, Michael King Thomas Tan, Rodkangyil Orion Danjuma, LEAD ATTORNEYS, Araceli Martinez-Olguin, Christine Patricia Sun, ACLU - San Francisco, CA, San Francisco, CA; Daniel Joseph Pochoda, James Duff Lyall, LEAD ATTORNEYS, ACLU - Phoenix, AZ, Phoenix, AZ; Jorge Martin Castillo, Victor Viramontes, LEAD ATTORNEYS, MALDEF - Los Angeles, CA, Los Angeles, CA; Karen Cassandra Tumlin, Linton Joaquin, LEAD ATTORNEYS, National Immigration Law Ctr, Los Angeles, CA; Lee Gelernt, LEAD ATTORNEY, Jessica Polansky, ACLU - New York, NY, New York, NY; Nicholas David Espiritu, Nora A Preciado, Shiu-Ming Cheer, LEAD ATTORNEYS, National Immigration Law Center, Los Angeles, CA; Tanya Broder, LEAD ATTORNEY, National Immigration Law Center - Oakland, CA, Oakland, CA.

For Carla Chavarria, Plaintiff: Andrew S Jacob, Marty Harper, LEAD ATTORNEYS, Polsinelli PC - Phoenix, AZ, Phoenix, AZ; Araceli Martinez-Olguin, Cecillia D Wang, Jennifer Chang Newell, Michael King Thomas Tan, Rodkangyil Orion Danjuma, LEAD ATTORNEYS, Christine Patricia Sun, ACLU - San Francisco, CA, San Francisco, CA; Daniel Joseph Pochoda, James Duff Lyall, LEAD ATTORNEYS, ACLU - Phoenix, AZ, Phoenix, AZ; Jorge Martin Castillo, Victor Viramontes, LEAD ATTORNEYS, MALDEF - Los Angeles, CA, Los Angeles, CA; Karen Cassandra Tumlin, Linton Joaquin, LEAD ATTORNEYS, National Immigration Law Ctr, Los Angeles, CA; Lee Gelernt, LEAD ATTORNEY, Jessica Polansky, ACLU - New York, NY, New York, NY; Nicholas David Espiritu, Nora A Preciado, LEAD ATTORNEYS, National Immigration Law Center, Los Angeles, CA; Shiu-Ming Cheer, LEAD ATTORNEY, National Immigration Law Center - Los Angeles, CA, Los Angeles, CA; Tanya Broder, LEAD ATTORNEY, National Immigration Law Center - Oakland, CA, Oakland, CA.

For 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: Ashley Morgan Gomez, Doug C Northup, Sean Thomas Hood, Timothy J Berg, LEAD ATTORNEYS, Fennemore Craig PC - Phoenix, AZ, Phoenix, AZ.

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ORDER AND PERMANENT INJUNCTION

David G. Campbell, United States 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, the 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 (referred to here 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 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" ).

Under Arizona law, 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 these individuals. After announcement of the DACA program, MVD revised its policy to provide that EADs issued to DACA recipients did not constitute sufficient evidence of authorized presence, even though the MVD continued to accept all other EADs, including those issued to persons who had received other forms of deferred action. MVD later revised its policy so that two other categories of deferred action recipients -- those with (a)(11) and (c)(14) deferrals -- could not use EADs to obtain driver's licenses.

Plaintiffs are the Arizona Dream Act Coalition (the " Coalition" ), which is an immigrant youth-led community organization, and six individual DACA recipients. They allege that Defendants' driver's license policy violates the Equal Protection Clause of the United States Constitution.[2] Plaintiffs sought a preliminary injunction barring Defendants from enforcing their policy. Doc. 29. The Court found that Defendants were likely to succeed on the merits of their equal protection claim, but that they had not shown a likelihood of irreparable harm sufficient to justify preliminary injunctive relief. Doc. 114. The Ninth Circuit reversed, Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (" ADAC " ), and the Court entered a preliminary injunction on remand. Doc. 295.

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The parties have filed and briefed motions for summary judgment. Docs. 247, 251, 259-2, 261, 267-1, 273, 278-1. At the Court's request, the parties also filed memoranda addressing the effect of ADAC on the merits of this case. Docs. 287, 289. The Court heard oral argument on January 7, 2015. For the reasons that follow, the Court will grant summary judgment to Plaintiffs and enter a permanent injunction.

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, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012); see also U.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 foreign nationals 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, 1227-29, 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, 119 S.Ct. 936, 142 L.Ed.2d 940 & n.8 (1999) (recognizing the practice of " deferred action" where the Executive exercises discretion and declines to institute proceedings for deportation).

On June 15, 2012, the DHS Secretary 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. 259-5 at 131-33. 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 have been honorably discharged from 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. See id. at 131-33, 208-13. Eligible persons could receive deferred action for two years, subject to renewal, and could obtain an EAD for the period of the deferred action. Id. at 132-33. The DHS 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. at 133.

II. Defendants' Driver's License Policy.

As noted above, A.R.S. § 28-3153(D) states that non-citizens may obtain Arizona driver's licenses by presenting proof that their presence in the United States is authorized under federal law. MVD policies identify the documentation deemed sufficient

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to show federal authorization. See Doc. 259-6 at 13. Before DACA, MVD accepted EADs as satisfactory evidence. Doc. 259-3, ¶ 31; Doc. 267-2, ¶ 31. Between 2005 and 2012, MVD issued tens of thousands of driver's licenses to persons who submitted EADs to prove their lawful presence in the United States. Doc. 259-6 at 8-11.

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. 248-1 at 48. After Director Halikowski initiated the ADOT policy review, but before the review had been concluded, Governor Brewer issued Executive Order 2012-06 on August 15, 2012 (the " Executive Order" ). Doc. 259-5 at 231-32. 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." Id. 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. On September 17, 2012, ADOT formally revised its policy to conform to the Governor's order. Id. at 254-57.

III. 2013 Revision.

After the 2012 revision and during the pendency of this lawsuit, Director Halikowski continued to review ADOT's driver's license policy. See Doc. 248, ¶ ¶ 28-33. He was concerned about possible inconsistencies in ADOT's treatment of EAD holders. See Doc. 248-1 at 65-67. To resolve these inconsistencies, ADOT developed three criteria for determining which EADs would be deemed sufficient proof that the EAD holder had authorized presence under federal law. Id. Under these criteria, an EAD is sufficient proof of authorized presence if the EAD demonstrates: " (1) that the applicant has formal immigration status, (2) that the applicant is on a path to obtaining a formal immigration status, or (3) that the relief sought or obtained is expressly provided for in the INA." Doc. 248, ¶ 31 (citing Doc. 248-1 at 67). Applying these criteria, ADOT revised its policy on September 16, 2013. Doc. 172-1 at 3-6. The newly revised policy continued to deny driver's licenses to DACA recipients, who have EADs with a category code of (c)(33). Id. at 6. The revised policy also refused to accept EADs with a category code of (c)(14), which are issued to recipients of other forms of deferred action, and (a)(11), which are issued to recipients of deferred enforced departure. Id.; see also 8 CFR § 274a.12 (listing category codes of EAD holders). The revised policy continued to accept EADs with other category codes as sufficient proof of authorized presence under federal law. See Doc. 172-1 at 6. Defendants argue that, as revised, the 2013 policy does not violate the Equal Protection Clause. Doc. 247. The Ninth Circuit considered the revised policy and found, at the preliminary injunction stage, a likelihood that the policy violates the Equal Protection Clause. ADAC, 757 F.3d at 1063-67.

IV. Present Position of Case.

Plaintiffs and Defendants have filed motions for summary judgment. Docs. 247, 251. Defendants' motion rests entirely on their argument that DACA recipients are not similarly situated to other EAD holders

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who may obtain driver's licenses under Arizona's revised policy. Plaintiffs' motion argues that DACA recipients are similarly situated to other EAD holders who may obtain driver's licenses. Plaintiffs also argue that although a heightened scrutiny should apply to Arizona's denial of driver's licenses to DACA recipients, Defendants' driver's license policy fails under any standard of review. Plaintiffs seek summary judgment in their favor and a permanent injunction.

The parties filed and briefed these motions before the Ninth Circuit had ruled on Plaintiffs' motion for a preliminary injunction. Although the Ninth Circuit's DACA decision does not control the outcome of the motions for summary judgment where new ...


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