United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE
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.
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.
History of Defendants' Policy Changes.
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.
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
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.
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.
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.
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
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).
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.
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.
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.
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
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.
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.
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.
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.
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:
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,
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
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).
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.
Motion to Amend the Class Definition.
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. ...