United States District Court, D. Arizona
G. Campbell United States District Judge
have filed a motion to certify a class of noncitizens who
possess certain categories of federally-issued Employment
Authorization Documents, but nonetheless are denied Arizona
driver's licenses or required to present additional
documents to obtain them. Doc. 125. The motion is fully
briefed, and the Court heard oral argument on December 1,
2017. Docs. 140, 141. For reasons stated below, the Court
will grant the motion in part.
law states that noncitizens may obtain Arizona driver's
licenses by presenting proof that their presence in the
United States is “authorized under federal law.”
A.R.S. § 28-3153(D). Plaintiffs are noncitizen residents
of Arizona who have deferred action designations from the
federal government - meaning that they presently are not
subject to removal from the United States - and who have been
issued Employment Authorization Documents
(“EADs”) from the U.S. Citizenship and
Immigration Services (“USCIS”). Plaintiffs'
EADs are coded “(c)(14)” and authorize them to
work in the United States.
current policy requires (c)(14) EAD holders to satisfy
procedural requirements that other EAD holders need not
satisfy to obtain an Arizona driver's license. Plaintiffs
assert that this policy violates the Supremacy and Equal
Protection Clauses of the U.S. Constitution. Doc. 1.
Plaintiffs seek to represent a class of (c)(14) holders in
Arizona. Plaintiffs also seek to represent holders of (a)(11)
EADs who are prohibited entirely from obtaining Arizona
Plaintiffs filed this case in September 2016, Defendants'
Policy 16.1.4 stated that EADs coded (a)(11), (c)(14), or
(c)(33) were insufficient to prove federally authorized
presence in the United States, while all other categories of
EADs were sufficient. See Doc. 27-4 at
This Court and the Ninth Circuit prohibited Defendants from
enforcing the policy with respect to noncitizens possessing
(c)(33) EADs pursuant to the Deferred Action for Childhood
Arrivals (“DACA”) program. See Ariz. Dream
Act Coal. v. Brewer, 81 F.Supp.3d 795, 799 (D. Ariz.
2015), aff'd 855 F.3d 963 (9th Cir. 2017).
Plaintiffs in this case seek similar declaratory and
injunctive relief prohibiting Defendants from enforcing their
policy with respect to (c)(14) and (a)(11) EADs. Doc. 125 at
relevant version of Policy 16.1.4 was issued in 2013 and
remained unchanged for several years. See Docs.
27-4, 125-12. In February 2017, in response to questions from
this Court at oral argument on another motion in this case,
Defendants issued a revised version of the policy. Doc.
125-13 at 17; Doc. 125-12. The 2017 version, like the 2013
version, contains section “S, ” which addresses
certain categories of EADs. Doc. 125-12 at 5; Doc. 27-4 at 5.
Consistent with the rulings in the Dream Act case,
the 2017 version eliminates any reference to (c)(33) EADs.
The policy continues to provide, however, that (a)(11) EADs
are unacceptable as proof of authorized presence, and states
that (c)(14) EAD holders “may be eligible” for a
driver's license or other identification if they are a
derivative of a self-petitioner under the Violence Against
Women Act (“VAWA”) or have an application pending
for a visa or change of status. Doc. 125-12 at 5. To prove
that they fall into one of these categories, (c)(14) EAD
holders must present an acceptable document in addition to
his or her EAD, which “may include” a USCIS
Notice of Action identifying the EAD holder as a VAWA
derivative or an I-918 petition for a U nonimmigrant visa.
Id. Defendants' website adds that “there
may be alternative forms of documentation sufficient to
establish authorized presence when accompanied with a C14
[EAD].” Doc. 125-15.
Plaintiffs' Proposed Class.
seek to certify the following class under Federal Rule of
Civil Procedure 23(b)(2):
All noncitizens who are being denied or will be denied the
ability to present their [EADs] as sufficient proof of
federally authorized presence to obtain an Arizona
driver's license as a result of Defendants' 2013 and
2017 policies and related practices pursuant to Executive
Order 2012-06, . . . Policy 16.1.4, and . . . Policy
Doc. 125 at 6. Because the only classes of EAD holders who
are denied the right to obtain driver's licenses solely
on the basis of their EADs are (a)(11) and (c)(14) holders,
those are the two categories that would be included in this
several reasons, Plaintiffs cannot include (a)(11) EAD
holders in their proposed class. First, no Plaintiff holds an
(a)(11) EAD. As a result, no Plaintiff has been injured by
Defendants' (a)(11) policy and no Plaintiff has standing
to challenge that policy. Second, no Plaintiff has a claim
typical of an (a)(11) EAD holder's claim. The gravamen of
Plaintiffs' complaint is that Defendants are imposing
burdens on (c)(14) EAD holders in the form of additional
paperwork not required of other EAD holders. This is quite
different from the complaint of (a)(11) EAD holders who are
barred entirely from obtaining licenses. Third, no Plaintiff
can adequately represent (a)(11) EAD holders because no
Plaintiff can present an (a)(11) claim at trial. For these
reasons, the Court concludes that (a)(11) EAD holders cannot
be included in the class, and will focus the rest of this
order on (c)(14) EAD holders.
arguing that Plaintiffs are not adequate class
representatives, Defendants assert that Plaintiffs lack
standing to pursue their claims. Doc. 140 at 13-14.
Defendants argue that Plaintiffs, as (c)(14) holders under
the VAWA and U visa programs, have obtained or can obtain
driver's licenses under the Arizona policy. Although
true, the Court is not persuaded that this fact deprives
Plaintiffs of standing.
Supreme Court has recognized that equal protection is denied
not only when government denies a benefit to a particular
class, but also when government imposes a barrier to
obtaining the benefit that is not imposed on others:
When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than
it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that
he would have obtained the benefit but for the barrier in
order to establish standing. The “injury in fact”
in an equal protection case of this variety is the denial of
equal treatment resulting from the imposition of the barrier,
not the ultimate inability to obtain the benefit.
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 666 (1993).
Even if noncitizens with (c)(14) EADs ultimately succeed in
obtaining driver's licenses, Defendants' policy
subjects them to requirements not applied to other EAD
holders. Plaintiffs are treated differently from other EAD
holders who can simply present their EADs as sufficient proof
of authorized presence. This is an “injury in
fact” as explained in the above
standing defeated by the fact that some Plaintiffs have
obtained licenses. Defendants agreed at oral argument that
(c)(14) EAD holders must renew their driver's licenses
every year or two. Thus, Plaintiffs who presently have
licenses will be required to comply with Defendants'
policy when they seek to renew those licenses.
more, “[i]n a class action, standing is satisfied if at
least one named plaintiff meets the requirements.”
Bates v. United Parcel Serv., Inc., 511 F.3d 974,
985 (9th Cir. 2007) (citing Armstrong v. Davis, 275
F.3d 849, 860 (9th Cir.2001)). Plaintiff Araceli Franco
Gonzalez received a (c)(14) EAD in August 2017 based on her
pending application for a U visa. Doc. 125-23 ¶ 2. The
next month, Ms. Franco Gonzalez went to an Arizona motor
vehicle division (“MVD”) office to obtain a
driver's license. Id. ¶ 3. She presented
her EAD and social security card, but was told that she would
need additional documentation. Id. Ms. Franco
Gonzalez contacted her attorney, asking what additional
documents she needed. Id. ¶ 4. Her attorney
e-mailed her a copy of her U-visa deferred action approval
letter. Id. She returned to the MVD, but again was
denied because she did not have the original letter.
Franco Gonzalez suffered a concrete, particularized harm when
she encountered a barrier to obtaining a driver's license
that is not faced by other EAD holders. This injury resulted
directly from Defendants' policy and would be redressed
by an injunction requiring Arizona to accept EADs as
sufficient proof of authorized presence in the United States.
And similar injury is likely to recur in the future - Ms.
Franco Gonzalez will continue to hold a (c)(14) EAD during
the pendency of her visa ...