United States District Court, D. Arizona
G. Campbell United States District Judge
argue that Arizona's policy of denying driver's
licenses to certain deferred action recipients violates the
Supremacy and Equal Protection Clauses of the United States
Constitution. Doc. 1. This Court and the Ninth Circuit
previously held that this same policy violates the
Constitution with respect to individuals who receive deferred
action through the Deferred Action for Childhood Arrivals
(“DACA”) program. Arizona Dream Act Coal. v.
Brewer (“Dream Act III”), 81
F.Supp.3d 795, 799 (D. Ariz. 2015); Arizona Dream Act
Coal. v. Brewer (“Dream Act IV”),
818 F.3d 901 (9th Cir. 2016). Plaintiffs now ask the Court to
consider the constitutionality of Executive Order 2012-06 and
Arizona Department of Transportation's
(“ADOT”) Motor Vehicle Division
(“MVD”) Policy 16.1.4 with respect to individuals
who receive deferred action outside the DACA program and
individuals with deferred enforced departure. Doc. 1.
have filed motions for preliminary injunction (Doc. 30) and
class certification (Doc. 27), and Defendants have filed a
motion to dismiss or, in the alternative, for judgment on the
pleadings (Doc. 37). All motions have been fully briefed, and
the Court heard oral argument on January 20, 2017. The Court
denied the motion for class certification before oral
argument and directed the parties to conduct discovery before
filing renewed briefs on the matter. Doc. 54. For the reasons
set forth below, the Court will deny Defendants' motion
to dismiss and Plaintiffs' motion for preliminary
Defendants' Driver's License Policy and 2013
§ 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. On
August 15, 2012, then Governor Jan Brewer issued Executive
Order 2012-06, which 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.
30-3 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. ADOT
Director John S. Halikowski amended his agency's policies
to conform with this Executive Order, issuing a revised
version of MVD Policy 16.1.4 on September 17, 2012. Doc.
30-4. This version of the policy specifically identified EADs
issued to DACA recipients as insufficient to demonstrate
authorized presence for purposes of obtaining an Arizona
driver's license. Id. at 30-4.
Halikowski continued to review the policy after the 2012
revision and during the pendency of the lawsuit brought by
the Arizona Dream Act Coalition. Dream Act III, 81
F.Supp.3d at 801. Noting concerns about inconsistencies in
ADOT's treatment of EAD holders, Director Halikowski
issued an amended version of the MVD Policy in 2013 that
explicitly identified EADs coded (a)(11), (c)(14), or (c)(33)
as insufficient to demonstrate authorized presence for
purposes of obtaining a driver's license. Id.;
Doc. 27-3. The (c)(33) category applied to DACA recipients,
and the (a)(11) and (c)(14) categories applied to Plaintiffs
in this case. Explaining this amendment, “Director John
S. Halikowski testified that Arizona views an EAD as proof of
presence authorized under federal law only if the EAD
demonstrates: (1) the applicant has formal immigration
status; (2) the applicant is on a path to obtaining formal
immigration status; or (3) the relief sought or obtained is
expressly provided pursuant to the INA.” Dream Act
IV, 818 F.3d at 907.
response to ADOT's refusal to provide driver's
licenses to DACA recipients, the Arizona Dream Act Coalition
brought suit alleging violations of the Equal Protection and
Supremacy Clauses of the United States Constitution. See
Arizona Dream Act Coal. v. Brewer, 945 F.Supp.2d 1049,
1053 (D. Ariz. 2013). This Court held that ADOT's policy
violated the Equal Protection Clause and permanently enjoined
ADOT from denying driver's licenses to DACA recipients.
Dream Act III, 81 F.Supp.3d 795. The Ninth Circuit
affirmed the permanent injunction on the basis of preemption,
but did not overturn the Court's equal protection ruling.
Dream Act IV, 818 F.3d at 920.
Plaintiffs' Deferred Action Status.
each hold an EAD coded (c)(14) based on his or her pending
application for a U-visa or immigration relief under the
Violence Against Women Act (“VAWA”). Docs. 30-7,
30-8, 30-9, 30-10, 30-11. Like DACA recipients, individuals
with EADs coded (c)(14) are recipients of deferred action.
Plaintiffs seek to represent the following class: “All
noncitizens who present or will present an Employment
Authorization Document (EAD) in order to establish authorized
presence and are being denied Arizona driver's licenses
resulting from Defendants' 2013 policy and related
practices pursuant to Executive Order 2012-06, MVD Policy
16.1.4, and MVD Policy 16.1.4's implementing
practices.” Doc. 27 at 8. Plaintiffs made clear during
oral argument that this proposed class includes recipients of
deferred enforced departure who hold EADs coded (a)(11).
Motion to Dismiss and for Judgment on the Pleadings.
contend that Plaintiffs lack standing and the Court therefore
lacks jurisdiction over their claims. “Unless the
jurisdictional issue is inextricable from the merits of a
case, the court may determine jurisdiction on a motion to
dismiss for lack of jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure.” Kingman Reef
Atoll Invs., L.L.C. v. United States, 541 F.3d 1189,
1195 (9th Cir.2008). To resolve a 12(b)(1) motion, the Court
does not presume Plaintiffs' allegations to be true and
may “look to facts outside the pleadings to determine
whether [it] ha[s] jurisdiction.” Cassirer v.
Kingdom of Spain, 616 F.3d 1019, 1043 (9th Cir. 2010).
The Court may “resolv[e] factual disputes where
necessary.” Augustine v. United States, 704
F.2d 1074, 1077 (9th Cir.1983). But “where the
jurisdictional issue and substantive issues are so
intertwined that the question of jurisdiction is dependent on
the resolution of factual issues going to the merits, the
jurisdictional determination should await a determination of
the relevant facts on either a motion going to the merits or
at trial.” Id.
also argue that Plaintiffs' claims against Governor Ducey
are barred by sovereign immunity. They assert that he is not
responsible for the policy at issue in this case and
therefore cannot be sued under the doctrine of Ex parte
Young, 209 U.S. 123 (1908).