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Valenzuela v. Ducey

United States District Court, D. Arizona

June 20, 2018

Lucrecia Rivas Valenzuela, et al., Plaintiffs,
Doug Ducey, et al., Defendants.



         This class action challenges Arizona's policy of denying driver's licenses, or requiring additional documentation before issuing licenses, to noncitizens with federally issued Employment Authorization Documents (“EADs”) containing the code “(c)(14).” On December 6, 2017, the Court certified the following class under Rule 23(b)(2) of the Federal Rules of Civil Procedure:

All noncitizens holding [EADs] coded (c)(14) who are being denied or will be denied the ability to present their EADs alone as sufficient proof of federally authorized presence in order 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, Arizona Department of Transportation (ADOT) Policy 16.1.4, and ADOT Policy 16.1.4's implementation.

Doc. 153 at 14.

         Defendants have filed a motion to amend the class definition (Doc. 155), and the parties have filed cross-motions for summary judgment (Docs. 157, 165). The motions are fully briefed, and the Court heard oral argument on June 13, 2018. Doc. 191. For reasons that follow, the Court will deny the motion to amend, grant Defendants' motion for summary judgment on behalf of Governor Ducey, grant Plaintiffs' motion for summary judgment, and enter a permanent injunction.

         I. Background.

         A. History of Defendants' Policy Changes.

         Arizona law allows noncitizens to obtain driver's licenses by presenting “proof satisfactory to [Arizona Department of Transportation (“ADOT”)] that the applicant's presence in the United States is authorized under federal law.” A.R.S. § 28-3153(D). ADOT Policy 16.1.4, which will be referred to in this Order as “the Policy, ” explains how noncitizens can show authorized presence and obtain licenses. Before June 2012, the Policy provided that noncitizens could obtain driver's licenses by presenting any federally issued EAD, with any code.

         In June 2012, the Secretary of the Department of Homeland Security (“DHS”) issued a memorandum announcing the Deferred Action for Childhood Arrivals (“DACA”) program. See Memorandum from DHS Secretary Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). Deferred action is a discretionary decision by DHS to defer removing an individual from the United States. Id. The DACA program granted deferred action to noncitizens brought to the United States as children, allowing them to remain in the country for renewable two-year periods if they satisfied certain conditions. Id. DACA recipients can apply to work in the United States. Id. If approved, they receive EADs coded “(c)(33).”

         Arizona Governor Janice Brewer took exception to the DACA program. In August 2012, she issued Executive Order 2012-06 (the “Executive Order”), expressing Arizona's view that the “issuance of Deferred Action or Deferred Action 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. 189 at 4-5. In other words, the Governor concluded that the DHS announcement did not mean that DACA recipients were authorized to be present in the United States under federal law. She directed Arizona agencies, including ADOT, to “conduct a full statutory, rule-making and policy analysis and, to the extent not prohibited by state or federal law, 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. at 4.

         In September 2012, ADOT changed the Policy. Doc. 125-3. Although ADOT previously had permitted all persons with federally issued EADs to obtain driver's licenses - apparently because it deemed the EADs to be sufficient proof of authorized presence in the United States - the new Policy announced that EADs issued to DACA recipients were not sufficient to prove authorized presence. Id.

         In November 2012, a group of DACA recipients and the Arizona Dream Act Coalition brought suit challenging the denial of driver's licenses. Ariz. Dream Act Coal. v. Brewer, No. 12-CV-02546-PHX-DGC. This Court granted ultimately summary judgment to the plaintiffs, finding that denying licenses to DACA recipients when all other EAD holders were allowed to obtain licenses violated the Equal Protection Clause. Ariz. Dream Act Coal. v. Brewer, 81 F.Supp.3d 795 (D. Ariz. 2015). The Ninth Circuit affirmed, but on different grounds. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017), cert. denied, 138 S.Ct. 1279 (2018). It held that the revised Policy violated the Supremacy Clause because it “encroache[d] on the exclusive federal authority to create immigration classifications” and was therefore displaced by the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Id. at 971.

         During the course of the Dream Act case, the Court issued an order finding that the DACA recipients were likely to prevail on their equal protection claim. The Court noted that ADOT denied licenses to DACA recipients with the (c)(33) category while granting licenses to other deferred action recipients, including those with the (c)(14) category:

Defendants have identified nothing about the (c)(33) category code to suggest that DACA recipients are somehow less authorized to be present in the United States than are other deferred action recipients. Nor have Defendants shown that the DHHS policy is based on DACA recipients being less authorized. All deferred action recipients are permitted to remain in the country without removal for a temporary period of time[.]

Arizona Dream Act Coal. v. Brewer, 945 F.Supp.2d 1049, 1061 (D. Ariz. 2013). After this order was issued, ADOT changed the Policy to deny licenses not only to deferred action recipients with EAD category (c)(33), but also to those with categories (c)(14) and (a)(11). Doc. 158-1 at 71-74. EADs coded (c)(14) are issued to individuals who receive deferred action treatment outside of the DACA program. See 8 C.F.R. § 274(c)(14). EADs coded (a)(11) are issued to recipients of deferred enforced departure. See 8 C.F.R. § 274(a)(11).

         ADOT's director, John Halikowski, testified that this 2013 Policy change relied on a three-part test created by ADOT to determine whether an individual has authorized presence in the United States for purposes of § 28-3153(D). Doc. 189 at 51. That test asks whether the individual (1) has formal immigration status, (2) is on a path to obtaining formal immigration status, or (3) has sought or been granted relief specifically authorized by the INA. Id. at 46, 87. Director Halikowski testified that he began formulating this test in 2012 and finalized it in 2013. Id. at 46-47.

         In December 2014, following the final orders of this Court and the Ninth Circuit in the Dream Act case, ADOT changed its Policy to accept EADs from DACA recipients. But the Policy continued to deny licenses to noncitizens with (c)(14) and (a)(11) EADs. See Doc. 158-1 at 76-79.

         In January 2015, Plaintiff Marcos Gonzalez presented his (c)(14) EAD at a Motor Vehicle Division (“MVD”) location and was denied a license. Doc. 189 at 82, 167. He contacted his attorneys, and they sent a letter to Director Halikowski and Governor Ducey in April 2015. Id. at 82-84, 168. The letter stated that Mr. Gonzalez received deferred action as a relative of a domestic violence survivor. Id. at 83. Director Halikowski responded that ADOT would issue Mr. Gonzalez a license because it appeared that he was a derivative beneficiary of a self-petitioner under the Violence Against Women Act (“VAWA”). Id. at 85. Mr. Gonzalez was issued a license in June 2015 (id. at 168), but no change was made to the Policy. When Mr. Gonzalez returned to the MVD to renew his license in February 2016, the license was denied. Id. at 168.

         Plaintiffs brought this lawsuit in September 2016, challenging the denial of licenses to noncitizens with EADs coded (c)(14) and (a)(11). Doc. 1. The following month, Defendants' counsel sent a letter to Plaintiffs' counsel explaining that each of the named plaintiffs was eligible for a license under Defendants' existing policy. Doc. 189 at 86-89. The letter stated that VAWA derivative beneficiaries (like Mr. Gonzalez) were eligible because “immigration relief as a VAWA derivative is expressly provided for under the INA[, ]” and U-visa applicants awaiting the availability of a visa (like the remaining named plaintiffs) were eligible because they are “on a path to obtaining a formal immigration status” and they seek relief “expressly provided for under the INA.” Id. at 87-88. No. update was made to the Policy at that time.

         On January 20, 2017, the Court held a hearing in this case on Plaintiffs' motion for a preliminary injunction. Doc. 55. Counsel for Defendants asserted that each of the Plaintiffs could obtain driver's licenses by presenting additional documentation. But when the Court asked defense counsel where this ADOT policy could be found - where it had been made public in any form - counsel was unable to identify a public statement of the policy. See Doc. 59 at 11-12. A few weeks later, in February 2017, ADOT changed the Policy to provide that certain categories of (c)(14) EAD holders - categories that correspond precisely to the Plaintiffs in this case - could obtain licenses by presenting additional documents. See Doc. 187 ¶ 21; Doc. 158-1 at 86-89. The Policy continued to state that holders of (a)(11) EADs cannot receive licenses.

         Given this history, the Court concludes that ADOT's policy changes have been made either because of Governor Brewer's disagreement with the federal government's DACA program or in an effort to defend the resulting policy in court. As noted, ADOT long accepted deferred action EADs as sufficient proof of authorized presence in the United States for purposes of A.R.S. § 28-3153(D). ADOT changed this policy and denied licenses only to DACA recipients after Governor Brewer issued her Executive Order. Once this Court noted in the Dream Act case that equal protection problems arise from denying licenses to some deferred action recipients while granting them to others, ADOT changed its policy to add (c)(14) and (a)(11) EADs to the ban that already applied to DACA recipients. This change allowed ADOT to argue, as it later did, that DACA recipients were not the only deferred action recipients who were denied licenses.

         ADOT changed its policy with respect to DACA recipients when ordered to do so in the Dream Act case, but left in place the ban on (c)(14) and (a)(11) recipients - that is, until this lawsuit was filed. When Plaintiffs brought this case, ADOT argued that they had no injury because they could obtain licenses by presenting additional documents. This assertion, however, was not supported by any change to the Policy. Only after this Court questioned defense counsel on where the alleged policy could be found did ADOT formally amend the Policy. Again, it appears that ADOT changed its policy to bolster its defense in court.

         ADOT disputes that the 2017 change was a change at all, instead characterizing it as a “clarification” of already existing policies. See Doc. 125-13 at 17; Doc. 187 ¶¶ 21-22. But Defendants had no written policy regarding the availability of licenses to (c)(14) holders until the 2017 changes, and Director Halikowski testified that he did not know whether any ADOT employee other than himself was aware that (c)(14) holders might be eligible before those changes. Doc. 189 at 70-71. Indeed, Defendants can identify no person holding a (c)(14) EAD who was granted a license between September 2013 and February 2017 other than Mr. Gonzalez, who received a license only after his lawyer contacted the agency. What is more, ADOT's Rule 30(b)(6) witness, Madelene Carbajal, testified that persons holding (c)(14) EADs between the 2013 and 2017 Policy changes would have been turned away at the MVD's greeter station, and that the issuance of Mr. Gonzalez's license in 2015 violated the Policy. Doc. 176-2 at 19-22, 25-27, 34; see also Doc. 184 at 4 n.4.

         B. Additional Background.

         The February 2017 version of the Policy states that holders of (c)(14) EADs “may be eligible” if they are a derivative of a self-petitioner under VAWA or have a pending application for a visa or change of immigration status. Doc. 158-1 at 94. It further states:

         Documents sufficient to establish authorized presence may include:

1. Form I-797 Notice of Action that identifies the EAC holder as a derivative child named in a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
2. Form I-918 Petition for U Nonimmigrant Status (U Visa) that has been received by [the U.S. Citizenship and Immigration Services (“USCIS”)].

Doc. 158-1 at 89. In July 2017, ADOT amended the Policy to add that “[a]n original form I-797 may be accepted when the receipt and/or case number is redacted.” Doc. 158-1 at 94 (emphasis omitted). The February and July 2017 versions are otherwise identical. See Doc. 158-1 at 86-89, 91-94.

         The named plaintiffs are noncitizen residents of Arizona who have deferred action designations and have been issued (c)(14) EADs from USCIS, which authorize them to remain and work in the United States. Of the six named plaintiffs, one is a VAWA derivative beneficiary, three have pending U-visa applications, and two have been granted U visas. Three named plaintiffs - Marcos Gonzalez, Maria Aceituno Lopez, and Araceli Franco Gonzalez - continue to hold (c)(14) EADs and have attempted to obtain licenses using their (c)(14) EADs (and, in some instances, additional documents) at an MVD location.

         Plaintiffs represent a class of all (c)(14) EAD holders. When the Court certified the class, it declined to include (a)(11) holders because no named plaintiffs held an (a)(11) EAD. Doc. 153. Plaintiffs challenge ADOT and MVD policies and practices which require them to present documentation in addition to their EADs to prove authorized presence. Plaintiffs assert that the policies violate the Equal Protection and Supremacy Clauses of the U.S. Constitution. Doc. 93 ¶¶ 61-85. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants from enforcing the challenged policies. Id. ¶¶ 85(A)-(E).

         Defendants argue that the Court should narrow the class definition to exclude certain (c)(14) EAD holders who suffer a different injury from Plaintiffs. Doc. 155. Defendants also argue that they are entitled to summary judgment because the claims against the Governor are barred by sovereign immunity, and the claims against the remaining defendants fail on the merits. Doc. 157. Plaintiffs assert that they are entitled to summary judgment, a permanent injunction, and declaratory relief. Doc. 165.

         II. Motion to Amend the Class Definition.

         Defendants seek to narrow the class definition to (c)(14) EAD holders who are VAWA derivative beneficiaries and U-visa applicants. Defendants argue that including all (c)(14) EAD holders in the class is improper because they are not all treated alike. The named plaintiffs may obtain licenses by providing additional documents, but, Defendants assert, other (c)(14) EAD holders cannot obtain licenses. Doc. 155. ...

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