Arizona's Denial of Driver's Licenses To DACA Recipients Blocked by Ninth Circuit

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By Laura D. Francis  

July 8 — A group of deferred action for childhood arrivals recipients who are being denied driver's licenses in Arizona, which they allege interferes with their federal work authorization, are likely to succeed on the merits of their equal protection claim, a federal appeals court ruled July 7, ordering that a preliminary injunction be issued.

Although postponing the plaintiffs' preemption argument, the three-judge panel found that the plaintiffs—five DACA recipients and one immigrant-serving organization—sufficiently proved that the state's distinction between DACA recipients and applicants for adjustment of status or cancellation of removal violates the equal protection clause of the 14th Amendment to the U.S. Constitution.

The state argued that applicants for adjustment of status, who have employment authorization documents coded (c)(9), and applicants for cancellation of removal, who have EADs coded (c)(10), are on a “path to lawful status,” whereas DACA recipients aren't.

But the court said (c)(9) and (c)(10) immigrants aren't guaranteed that their applications will be approved, and their current status isn't any different from that of DACA recipients.

“Until (c)(9) and (c)(10) noncitizens receive the relief that they have applied for, they are authorized to be present in the United States in the same sense that DACA recipients are authorized to be here: in both cases, the federal government has allowed noncitizens to remain in the United States, has pledged not to remove them during the designated period, and has authorized them to work in the country,” Judge Harry Pregerson wrote.

Because Arizona officials lack the power to classify aliens, “their attempt to distinguish between these noncitizens on the basis of an immigration classification that has no basis in federal law is not likely to withstand equal protection scrutiny,” he said.

Irreparable Harm Established

Unlike the district court, the Ninth Circuit found that the plaintiffs did show a likelihood of irreparable harm justifying a preliminary injunction.

The district court incorrectly held that the injunction would be mandatory—requiring the state to take an affirmative action—and thus required the plaintiffs to meet the corresponding higher burden of “extreme or very serious” harm, the appeals court explained.

But the injunction in fact would be prohibitory—preventing the state from implementing a new policy—the Ninth Circuit said.

Judges Marsha S. Berzon and Morgan Christen joined the opinion.

Christen also wrote a concurrence indicating her belief that the plaintiffs additionally presented a likelihood of success on their preemption claim.

“When it adopted its new policy regarding driver's license eligibility, Arizona did not merely borrow a federal immigration classification; it created a new one,” she said. “By doing so, Arizona ventured into an area—the creation of immigration classifications—that is the exclusive domain of the federal government.”

ACLU Attorney Calls Decision ‘Wake-Up Call.'

“Governor [Jan] Brewer [R] just got a wake-up call: it's time for Arizona to stop standing in the way of these hardworking young adults, who are just trying to achieve the American dream,” Jennifer Chang Newell, senior staff attorney with the American Civil Liberties Union's Immigrants' Rights Project, said in a July 7 statement.

The ACLU, its Arizona affiliate, the Mexican American Legal Defense and Educational Fund and the National Immigration Law Center represented the plaintiffs.

Because more than 87 percent of workers in Arizona commute to work by car, “Defendants' policy obstructs many DACA recipients' ability to work in Arizona,” Judge Pregerson wrote.

“This is a huge victory for the young immigrants who want nothing more than to make meaningful contributions to communities in their home state of Arizona,” ACLU of Arizona Executive Director Alessandra Soler added. “Gov. Brewer chose to play politics with the hopes and dreams of these young people by denying them licenses and we're extremely happy the court saw through this and found there was no rational reason to single them out.”

But Brewer, who issued the executive order banning the licenses Aug. 15, 2012, the same day the DACA program launched, maintained that DACA doesn't create lawful presence.

According to a July 7 statement by Brewer, DACA “simply is a choice by the executive branch not to enforce deportation proceedings as required under existing federal statute. [The Department of Homeland Security] has expressly acknowledged that the DACA Program does not grant any substantive rights and that only Congress can do that.”

Brewer explained that Arizona law doesn't allow driver's licenses to be issued unless an individual's presence is authorized under federal law, and the state's policy is that DACA doesn't provide such authorization.

“Lawless decrees by the President demonstrate animus to Congress, states and the Constitution. It is outrageous, though not entirely surprising, that the Ninth Circuit Court of Appeals has once again dealt a blow to Arizona's ability to enforce its laws,” Brewer said. “I am analyzing options for appealing the misguided court decision. The American people are tired and disgusted by what is happening through our federal government today, but they can be assured Arizona will continue to fight for the rule of law.”

Lawsuit Claims Driving Necessary for Work

The Arizona Dream Act Coalition, an organization made up of young immigrants, and several DACA recipients filed the lawsuit in the U.S. District Court for the District of Arizona in December 2012, asserting that the state's policy of denying licenses to DACA recipients, who have EADs coded (c)(33), but not to other immigrants with EADs, is preempted by federal law and contrary to the 14th Amendment.

Among other things, the plaintiffs argued that the ability to drive is necessary to obtain employment in the state, and so denial of the licenses frustrates the work authorization that comes with DACA approval.

“It is outrageous, though not entirely surprising, that the Ninth Circuit Court of Appeals has once again dealt a blow to Arizona's ability to enforce its laws,” Arizona Gov. Brewer (R) said. “I am analyzing options for appealing the misguided court decision.”

In May 2013, the district court ruled that Arizona lacks a rational basis for denying licenses to DACA recipients but not other deferred action recipients. But the court stopped short of issuing a preliminary injunction after finding that the plaintiffs couldn't show “extreme or very serious” harm if the policy isn't enjoined.

In September 2013, Arizona modified its policy to deny driver's licenses to recipients of other types of deferred action and deferred enforced departure.

Many states are issuing driver's licenses or state identification cards to individuals regardless of immigration status, leaving Arizona and Nebraska as the only two states denying licenses to DACA recipients.

An ACLU lawsuit against Nebraska, filed in June 2013, remains pending in federal district court in Nebraska.

Court Says Preemption Argument ‘Plausible.'

Although declining to rule at the preliminary injunction stage, the Ninth Circuit found “plausible” the plaintiffs' argument that the Arizona policy is conflict preempted by the federal government's discretion to determine when noncitizens may work in the U.S.

According to the court, the Immigration and Nationality Act gives the executive branch “broad discretion” in this area, and that branch has determined that deferred action recipients—including DACA recipients—have work authorization. “In fact, DACA recipients are required to apply for employment authorization, in keeping the Executive's intention that DACA recipients remain ‘productive' members of society,” Pregerson wrote.

And because more than 87 percent of workers in Arizona commute to work by car, “Defendants' policy obstructs many DACA recipients' ability to work in Arizona,” he said.

“If, on the merits, Plaintiffs submit adequate proof that Defendants' policy interferes with the DHS Secretary's directive that DACA recipients be permitted (and, indeed, encouraged) to work, they will, in turn, show that Defendants' policy interferes with Congress's intention that the Executive determine when noncitizens may work in the United States,” Pregerson said.

But the court ultimately relied on the plaintiffs' equal protection claim in finding a preliminary injunction appropriate.

Other Immigrants Similarly Situated

Even after the state revised its policy to deny driver's licenses to recipients of deferred action and deferred enforced departure, other immigrants with EADs—namely (c)(9) applicants for adjustment of status and (c)(10) applicants for cancellation of removal—are similarly situated to DACA recipients and yet permitted to obtain licenses, the court found.

“[L]ike DACA recipients, many noncitizens who have applied for adjustment of status and cancellation of removal possess no formal lawful immigration status, and may never obtain any,” Pregerson said.

“Even considering the revisions to Defendants' policy, we can identify no legitimate state interest that is rationally related to Defendants' decision to treat DACA recipients disparately from noncitizens holding (c)(9) and (c)(10) Employment Authorization Documents,” the court held. Although the state argued that the latter immigrants potentially can obtain lawful immigration status, that doesn't mean they currently have such status, it said.

The appeals court also rejected the state's other arguments for treating DACA recipients differently.

First, the court said, Arizona's concern that it would be subject to liability for issuing 80,000 licenses to undocumented immigrants both was undercut by the numbers—only 14,938 Arizona residents had applied for DACA as of Feb. 14, 2013—and by the lack of situations in which the state faced liability for issuing licenses to unauthorized immigrants.

Second, while the state argued that the licenses could lead to undocumented immigrants unlawfully obtaining state benefits, the court said government witnesses testified that they had “no basis whatsoever” to believe that a driver's license alone could be used to gain access to state or federal benefits to which a person isn't entitled.

Third, the court rejected the state's argument that cancellation of the DACA program, and the subsequent need to revoke the licenses, was sufficient reason to deny them. In fact, it said, it is less likely that such licenses will have to be revoked than the licenses of immigrants with (c)(9) or (c)(10) EADs: “[w]hile Defendants' concern for DACA's longevity is purely speculative, applications for adjustment of status or cancellation of removal are routinely denied.”

Finally, the court dismissed the state's argument that DACA status could be revoked and the recipient deported, leaving those who may have been injured in a car accident without financial recourse. Not only does that concern apply with equal force to holders of (c)(9) and (c)(10) EADs, but it could apply to anyone with a driver's license, who could leave the state following a car accident, the court said.

‘Appears Intended to Express Animus.'

“Defendants' policy appears intended to express animus toward DACA recipients themselves, in part because of the federal government's policy toward them,” Pregerson wrote. “Such animus, however, is not a legitimate state interest.”

The court also found that the plaintiffs established irreparable harm from limits to their professional opportunities if they aren't able to drive to work.

“The irreparable nature of Plaintiffs' injury is heightened by Plaintiffs' young age and fragile socioeconomic position,” Pregerson said. “Setbacks early in their careers are likely to haunt Plaintiffs for the rest of their lives.”

Finally, “by establishing a likelihood that Defendants' policy violates the U.S. Constitution, Plaintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction,” the court held.

Concurring, Christen wrote that Arizona impermissibly is classifying immigrants in ways not contemplated by the federal government.

“Here, the practical effects of Arizona's policy most directly relate to the regulation of state driver's licenses, but this does not shield the policy from preemption if the policy also functions as a regulation of immigration, i.e., a separate determination of alien status,” she said. “Defendants are conspicuously unable to point to any federal statute or regulation that justifies classifying applicants for adjustment of status and cancellation of removal as authorized to be present, while excluding recipients of deferred action or deferred enforced departure.”

Victor Viramontes and Jorge Castillo of MALDEF in Los Angeles; Jennifer C. Newell, Cecilia D. Wang, Araceli Martinez and R. Orion Danjuma in San Francisco and Michael Tan in New York, all of the ACLU Foundation Immigrants' Rights Project; Linton Joaquin, Karen C. Tumlin, Shiu-Ming Cheer, Nora Preciado and Nicholas Espiritu of the National Immigration Law Center in Los Angeles; and Daniel J. Pochoda, Kelly J. Flood and James D. Lyall of the ACLU Foundation of Arizona in Phoenix represented the plaintiffs. Timothy Berg, Douglas C. Northrup and Sean T. Hood of Fennemore Craig and Joseph Sciarrotta Jr. of the Arizona governor's office, all in Phoenix, represented the state defendants.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at