Tag Archive for: preemption

Cyrus Mehta

California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional

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The Trump administration has ramped up its ire against California by filing a lawsuit against three different California laws that aims to protect immigrants from the harsh effects of federal enforcement. The three laws are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which  limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and  A.B. 103, which subjects local detention facilities to twice-yearly inspections by the Attorney General’s office.

The lawsuit, United States of America v. California, claims that the California laws render it impossible for the federal government to deport people not born in the United States who live in California. It alleges that California has obstructed the United States’ ability to enforce laws that Congress has created, and that the California protections violate the constitutional principle that federal immigration law is the supreme law of the land. All three laws were signed during the Trump administration. Governor Brown signed the Immigration Worker Protection Act and the California Values Act in October 2017, and A.B. 103 in June 2017.The lawsuit, which also names Governor Brown and AG Becerra as defendant, calls for a declaration that the provisions are invalid, as well as preliminary and permanent injunctions. Under the preemption doctrine, when a state law obstructs or conflicts with federal law, the state law is invalidated.

Remarkably the Trump administration has relied on Arizona v. United States, a 2012 Supreme Court decision that held that Arizona had overstepped its limits by enacting immigration laws that penalized non-citizens that undermined federal immigration law. When the Obama administration  launched this lawsuit against Arizona, it was criticized by Republicans as undermining state rights,  and it is thus ironic that the Trump administration is relying on Arizona v. United States to attack the laws of California that are the opposite of Arizona’s, which are friendly towards immigrants.

While advocates in favor of more friendly immigration laws, including yours truly, cheered when the Supreme Court found most of Arizona’s laws preempted by federal immigration law, this is not a case of double standards when the same advocates are critical of the Trump administration’s latest lawsuit against California. Arizona’s SB 1070 truly conflicted with federal immigration law, according to the Supreme Court, and were contrary to the federal immigration scheme that was enacted by Congress. Those laws literally usurped federal immigration law. For instance, Section 3 of SB 1070 penalized non-citizens for failure to carry registration documents even though there was a similar comprehensive federal requirement to carry registration documents. Section 5(c) criminalized unauthorized immigrants who applied for work. The federal scheme criminalized only employers, but not the individual for unauthorized work, and thus 5(c) stood as an obstacle to the objectives of Congress. Section 6 allowed Arizona police officers to make warrantless arrests based on probable cause that a non-citizen was removable from the United States. This too was preempted because under the federal scheme being removable is not a criminal offense. Still, Arizona was a mixed decision. Section 2(B), the most controversial provision of SB 1070 known as the “show me your papers” law, was upheld. The Supreme Court held that 2(B) was not creating a new state immigration law unlike the other provisions that were found unconstitutional; it only allowed Arizona police officers to determine if someone was unlawfully present by inquiring about person’s status with DHS, and such communication and exchange of information had not been foreclosed by Congress.

Would California’s laws, even if friendly towards immigrants, be preempted under Arizona v. US? The fact that a state may pass an immigrant friendly law rather than a punitive law is not determinative in analyzing whether the law has been preempted if those laws still pose an obstacle to the enforcement of federal law or are in conflict with it.

Under the doctrine of preemption, which is based on the Supremacy Clause in the US Constitution, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law. Notwithstanding the sweeping Constitutional mandate in favor federal laws being the supreme law of the country, states too possess sovereignty concurrent with the federal government. Therefore, the Intent of Congress is the key. When there is an express preemption provision in a federal statute, courts will identify the domain expressly preempted by that language.

When there is no express provision in a federal statute, a state law can also be impliedly preempted under field preemption or conflict preemption. Under field preemption, it must be demonstrated that the federal government has fully occupied the field it has chosen to regulate. In the case of conflict preemption, if there is a conflict between the state law and the federal law, it must be demonstrated that compliance with both federal and state law is a physical impossibility or that the state law stands as an obstacle to the purposes of Congress.

Relying on Arizona v. United States, the complaint in United States v. California claims that the United States has broad authority to establish immigration laws, the execution of which states cannot obstruct or discriminate against. The complaint further asserts that Congress has created laws that provide broad authority to the federal government to investigate, arrest, detain and remove non-citizens suspected to being or found to be unlawfully in the US. The complaint also states that consultation between the federal and state governments is an important feature of the immigration system, and thus a state may not prohibit its official from providing information to the DHS regarding the citizenship or immigration status of an individual. Finally, the complaint notes that Congress has enacted a comprehensive framework for combatting the employment of illegal aliens, and can penalize employers for not verifying the employment status of employees or for knowingly hiring unauthorized workers.

Although California will make extensive arguments in defending its laws, some preliminary observations can be made. The California laws have been enacted to protect the constitutional and civil rights of all people living in the state of California. While the federal government is authorized to enforce the immigration laws, there have been many instances of egregious abuses by ICE agents that violate the rights of California residents. California is not interfering in the enforcement federal immigration laws or usurping them like Arizona did, but is providing a constitutional baseline for federal agents when enforcing federal law. A state can pass laws with the objective of protecting its residents. Thus, in De Canas v. Bica, the Supreme Court held that a state law regulating non-citizens is not per se preempted as a regulation of federal immigration law, which is essentially a determination of who should or not be admitted in the country. States possess broad police powers to regulate the employment relationship and to protect workers within the state. Even if the California laws mildly frustrate federal authority, they only ensure that the civil rights of California residents subjected to heavy handed enforcement are protected. According to its website, the Civil Rights Enforcement Section in the California Attorney General’s office is committed to the strong and vigorous enforcement of federal and state civil rights laws.  Thus, the California laws have been enacted to protect a legitimate state interest – the constitutional and civil rights of its residents – rather than to oust the federal government from enforcing immigration laws. Federal ICE agents are still free to enter California to enforce the immigration law in order to apprehend, detain and deport non-citizens who are not lawfully in the US.

The California Values Act prohibits state and local officials from providing information regarding a person’s release, unless there is a judicial warrant or a judicial probable cause determination or the individual has been convicted of certain felonies or other serious crimes. It is well within the constitutional rights of a state to refuse to provide such information.   Pursuant to Printz v. United States, 521 U.S. 898 (1997), the federal government cannot commandeer states to enact or administer a federal regulatory program under the Tenth Amendment.  In that case, sheriffs challenged the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. Justice Antonin Scalia, writing for the majority, held that the sheriffs, as well as states, cannot be commandeered under federal law enforcement schemes with which they disagreed. Moreover, the underpinning behind the California Values Act is to keep communities safe by ensuring that local police can function effectively within the community by not betraying the trust of immigrants who may cooperate as crime victims. If local police were required to provide information regarding non-citizens, they would not be able combat crimes effectively.

The Immigrant Worker Protection Act prevents employers from voluntarily consenting to an immigration enforcement agent form entering the workplace or providing access to the employer’s records, unless the agent has a judicial warrant or consent is otherwise required by federal law. The law also requires employers to notify employees within 72 hours off receiving a notice of inspection. While the Trump administration argues that preventing an employer from voluntarily consenting to an agent from entering the workplace or providing records undermines the ability of enforcement agents from enforcing the employer sanctions provisions under the Immigration and Nationality Act, what the California law does is to again set a baseline that would protect the constitutional and civil rights of California workers. The law does not prevent the federal government from enforcing federal law, it only insists that agents obtain a judicial warrant and workers be provided notice. It is well settled that ICE needs a judicial warrant under the Fourth Amendment in order to enter a private place without consent. Although the Immigrant Worker Protection Act precludes an employer from providing voluntary consent, which may be viewed as interfering with the federal scheme, a judicial warrant could still be justified as the workers may not have consented to a federal agent entering the work place even if the employer may have.

Similarly, California’s AB 103 requiring state officials to review county, local or private locked detention facilities in which noncitizens are being detained is to ensure that the detention facilities meet the constitutional standards. There have been far too many cases of non-citizens being detained for purposes of civil proceedings being abused and mistreated. Again, AB 103’s motivation is not to prevent the detention of non-citizens but to ensure that their detention meets minimum constitutional standards.

Although Attorney General Sessions on behalf of the Trump administration believes that California’s laws ought to be preempted based on Arizona v. United States, they are essentially civil rights laws. A state may enact laws ensuring the civil rights of its residents, including non-citizens, whether legal or not. Civil rights flow from the US Constitution, as well as California’s Constitution, and they ought not to be preempted, especially in light of egregious abuses by ICE agents in enforcing federal immigration law.  Ensuring civil rights to all is a bedrock American principle. Some believe that California may have gone too far, but it can be legitimately argued that a state law upholding civil rights should never be in conflict with a federal law or be an obstacle to federal immigration law enforcement. Civil rights must be adhered to by all government officials, including federal immigration authorities. The preemption doctrine cannot be invoked by federal authorities as an excuse for violating civil rights.

 

 

 

 

 

 

 

Cyrus Mehta

Cross Currents In Federal Preemption of State and Local Immigration Law Under Trump

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Preemption of federal immigration law over punitive state immigration laws was a hot topic until very recently, especially when Arizona enacted a tough enforcement law known as SB1070. The Obama administration fiercely challenged the law under the preemption doctrine, which ended up in the Supreme Court in Arizona v. USA. Although the majority opinion found most of the provisions of SB1070 preempted, the Supreme Court nevertheless upheld Section 2B, popularly referred to as the “show me your papers law.” The Court’s logic of upholding Section 2B was that it did not create a new state immigration law, but merely allowed state enforcement personnel to obtain a federal determination as to whether a person they had lawfully apprehended was lawfully present in the United States. Many other states introduced copycat “show me your papers laws.”

Texas just passed a law SB 4 that includes not only “show me your papers” provisions, but also imposes sanctions on sheriffs, local police and even campus police departments if they do not share information with federal immigration authorities, do not honor a detainer or prevent a state enforcement officer from seeking a determination of immigration status of a person under a lawful detention or arrest. The sanctions include civil penalties and criminal penalties, as well as removal of persons holding elective or appointed positions who violate the law.

Will the Trump administration challenge similar state encroachments on federal immigration law like President Obama did? Or do we need to be writing the obituary of the preemption doctrine when it relates to federal immigration law? Even if the Texas law goes unchallenged by the federal government which it likely will, will private plaintiffs be able to challenge the law under the preemption doctrine? Preemption stems from the Supremacy Clause of the United States Constitution (Article VI, Clause 2), which establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. While there are notable exceptions when a state immigration law is not preempted, a state law that conflicts with federal immigration law stands a good chance of being preempted under the Supremacy Clause.

A good test of how preemption will play out in the future is Arizona’s appeal of the Ninth Circuit decision in Arizona Dream Act Coalition v. Brewer. The Ninth Circuit held that Arizona was precluded from discriminating against an employment authorization document (EAD) issued to a recipient under President Obama’s Deferred Action for Childhood Arrival (DACA) program as valid proof of eligibility for an Arizona driver’s license. Under DACA, young people who came to the United States before the age of 16 and fell out status could apply for deferred action and an EAD.

On August 15, 2012, when DACA took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an EAD issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus toward DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Coalition found that these arbitrary classifications defining authorized status were preempted under federal law and put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Since the Ninth Circuit’s ruling in Arizona Dream Act Coalition, there has been a dramatic shift in the way unauthorized immigrants are viewed since Trump’s presidency. As part of his election campaign against unauthorized immigrants, Trump railed against DACA as a vivid example of President Obama’s unconstitutional usurpation of powers from Congress. But after his inauguration, Trump did a volte face stating that he would not immediately rescind DACA and would deal with these kids “with heart.” DACA’s fate tenuously hangs in balance, and completely subject to the whims of a tempestuous president. Still, unauthorized immigrants who crossed the border are conflated with criminals, and any crimes that may have been perpetrated by such a noncitizen is viewed as preventable if the individual was either deported before the crime occurred or was not let in at all. The Trump administration issued an Executive Order that beefs up enforcement, essentially reverses carefully calibrated enforcement priorities of the Obama administration and threatens to sanction sanctuary jurisdictions by cutting off federal funds.

Arizona, perhaps emboldened after Trump’s presidency, recently challenged the Ninth Circuit ruling in the Supreme Court. In its March 29, 2017 petition for a writ of certiorari, Arizona contended that the Ninth Circuit erred by assuming that President Obama’s DACA program that granted deferred action to young adults brought to the U.S. illegally as minors was a valid “federal law” that can trump state police power. The granting of licenses is a state concern and cannot be preempted by an unlawful exercise by Obama, Arizona further argued.  Fourteen states have joined Arizona’s bid to overturn the Ninth Circuit ruling by filing an amicus brief. Texas Attorney General Ken Paxton affirmed when unveiling the amicus brief, “We stand with Arizona against illegal federal overreach by the former president, who bypassed Congress to enact an immigration program he did not have the authority to create.” It is unlikely that the Trump administration will come in the way of these states in their challenge.

Still, despite the Trump’s administration’s reluctance to defend preemption and DACA, the rule of law ought to trump presidential caprice. Although Texas v. USA challenging President Obama’s Deferred Action for Parental Accountability (DAPA) ended up as a 4-4 draw in an 8-member Supreme Court after Justice Scalia’s death, there are other robust decisions that uphold preemption by virtue of the fact that the federal government has the ability to exercise discretion regarding immigration enforcement.  In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the conservative Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a   person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

However, the lower Fifth Circuit decision in Texas v. USA upholding the preliminary injunction still provides ammunition to those who wish to bolster state immigration laws. The states’ amicus brief in support of Arizona’s challenge in Arizona Dream Coalition draws heavily from the Fifth Circuit decision in asserting that DACA, like DAPA which conferred deferred action on undocumented parents of citizen or resident children, was viewed as unlawful. The states amicus argues that President Obama created a category that gave lawful presence to aliens who were otherwise not authorized to remain in the United States. Like DAPA, which was successfully challenged, DACA, according to the amicus brief, also cannot bestow lawful presence by the Executive, and thus DACA cannot preempt Arizona state law in not recognizing an EAD of a DACA recipient. If the Supreme Court decides to hear Arizona Dream Coalition, it will be pitted against Arizona v. United States.

Till then, notwithstanding the Trump administration disavowing prosecutorial discretion to broad classes of people, the federal government’s discretionary authority as a basis for preemption still stands, as poignantly articulated by the Supreme Court in Arizona v. United States:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Given strong precedents in favor of preemption, there is hope that state immigration enforcement laws can still be successfully challenged. On the other hand, it is not clear whether the broad discretion in federal immigration enforcement as recognized in Arizona v. USA be applicable to a federal program like DAPA or even DACA, and if DAPA or DACA is viewed as overstepping executive authority, whether they could be used as a basis for preempting a state law that does not accord recognition to recipients of such programs for state benefits such as driver’s licenses. Now that Justice Gorsuch is the ninth nominee, it remains to be seen whether the Supreme Court’s majority will uphold the reasoning of the Fifth Circuit in Texas v. USA or continue to uphold the federal government’s broad discretion, as recognized in Arizona v. USA. Clearly, the current Trump administration would have no interest in again pursuing Texas v. USA on its merits even though it has not rescinded President Obama’s DAPA memorandum of November 20, 2014. The current decision in Texas v. USA is a preliminary injunction and not a decision on the merits.

There is yet another emerging trend that is worthy of observation. In the Trump era, immigration friendly states and localities, known as sanctuary jurisdictions, have decided not to cooperate with federal immigration authorities with respect to routinely sharing information of foreign nationals who may be arrested in the state penal system or honoring a federal immigration detainer. In San Francisco v. Trump, San Francisco and Santa Clara Country successfully challenged  Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which, in addition to outlining a number of immigration enforcement policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” and to establish a procedure whereby “sanctuary jurisdictions” shall be ineligible to receive federal grants.” In the preliminary injunction order, the court in San Francisco v. Trump, among other things, held (citing Printz v. United States, 521 U.S. 898 (1997)) that the federal government cannot compel the states to enact or administer a federal regulatory program under the Tenth Amendment. The new Texas law SB 4 was enacted by the state, and so it will be difficult to argue under Printz v. US that the federal government cannot compel a state to do its bidding. It is uncertain whether the show me your papers part of SB 4 can be preempted in light of Arizona v. USA upholding s similar show me your papers provision, Section 2B of SB 1070. A challenge will have to be brought by a private plaintiff that the Texas SB 4 law is preempted as it forces state entities to get into the business federal immigration enforcement, which is a purely federal matter. It also makes the state’s compliance with a detainer mandatory, when federal courts have held that such compliance is not mandatory. See e.g. Galazara v. Szalezyj. At the same time, because Section 2B was upheld in Arizona v. USA, it may be difficult to challenge the similar show me your paper provision in SB 4. Still, a way to challenge this is to demonstrate that it penalizes an entity for preventing an officer from making such a determination, and so challenging the penalty rather than the ability of a local enforcement authority to make the determination of the immigration status may be a way to thread the needle. Moreover, Arizona’s 2B was upheld as a preliminary injunction before the law took effect. If there are instances of egregious violations, 2B and other similar provisions can be challenged again.

There is some irony that those who disfavor Arizona style immigration enforcement laws, including yours truly, cheered when the federal district court ruled in favor of San Francisco and Santa Clara County. Upon careful reflection, this is not a case of double standards. From a policy perspective, state immigration enforcement laws ought to be preempted as they can lead to discrimination and uneven enforcement when untrained state police mistakenly detain people, including potentially US citizens, who may be here lawfully. Even state laws that “indirectly” enforce immigration law through landlord-tenant ordinances or by penalizing employers who hire unauthorized immigrants, state enforcers are more likely to make errors in determining who is authorized to remain in the United States and who is not. In Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s employment sanction law as it fell under a savings clause of a federal statutory provision, 8 U.S.C. § 1324a(h)(2), that otherwise preempted state law. Even in Whiting, Chief Justice Roberts assumed that there would be no errors in verifying the status of employees as the state would check with a federal database pursuant to 8 USC 1373(c). If the federal determination revealed the person was a US citizen, that would make it obvious that the person was authorized to work. Conversely, if the federal determination revealed that the person has been removed, the Chief Justice erroneously assumed that this would reveal that the person is not authorized to work. However, even those with removal orders can obtain work authorization in many instances, a prime example being one who is under an order of supervision pursuant to 8 CFR 274a.12(c)(18).  David Isaacson astutely points out, “The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable.” On the other hand, the federal government should not be compelling states to share information as it would undermine trust in local the local policy who may need to work with local communities, including undocumented immigrants, in preventing crime. Even if there are a few cases of undocumented immigrants who have perpetrated crimes, using the immigration system as a pretext for preventing crimes is not the solution. Crimes are committed in every community, and even by Americans.  Immigrants do not have a propensity to commit more crimes. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. There is a role for immigration enforcement under the INA by the federal government and states should not be in the same business.

There is a lot of turbulence in preemption doctrine, with some states passing immigrant unfriendly laws and others passing immigrant friendly laws. The prior Obama administration directed its ire at immigrant unfriendly states while the Trump administration is directing its ire at immigrant friendly states. Now is certainly not the time to close the book on the tumultuous story of preemption as a new chapter is being written.

Cyrus Mehta

Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs

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On August 15, 2012, when the Deferred Action for Childhood Arrival (DACA) program took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an employment authorized document (EAD) issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus to DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Act Coalition v. Brewer held that these arbitrary classifications defining authorized status were preempted under federal law and has finally put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court also found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. The latest ruling permanently enjoins Arizona’s policy of depriving DACA and other deferred action recipients driver’s licenses, following an earlier ruling that affirmed a preliminary injunction of the same executive order.

While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Arizona Dream Act Coalition thus provides another basis for the Supreme Court in United States v. Texas to uphold the expanded deferred action programs as part of President Obama’s November 20, 2014 executive actions, especially the Deferred Action for Parental Accountability (DAPA) and extended DACA. There is simply no difference between an EAD granted under DACA as an EAD granted based on an application for relief, such as adjustment of status or cancellation or removal. Indeed, it is INA section 274A(h)(3), which provides the authority for a granting of EADs under both DACA and based on application for adjustment of status or cancellation of removal. According to the Ninth Circuit ruling, “DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for some period of time, provided they comply with certain conditions.”

INA 274A(h)(3) provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General

If INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit in Texas v. USA for the purpose of justifying a grant of EADs under DAPA ,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a is that the authority for most of them has always been thought to stem from INA 274A(h)(3). While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA and extended DACA as part of its broad authority to exercise prosecutorial discretion, and its authority to grant EADs under INA 274A(h)(3). While on first brush Texas v. USA is not a preemption case, the  Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately, which can be deployed to preclude states from opposing this federal authority under dubious standing theories:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The Ninth Circuit, on the eve of oral arguments to be presented before the Supreme Court on April 18, 2016 in United States v. Texas, has provided added impetus for the upholding of President Obama’s deferred action programs. A grant of an EAD under DACA or DAPA is not any less than a grant of EAD to an applicant seeking lawful status through an adjustment of status application or by seeking cancellation of removal. All of these EADs stem from INA 274A(h)(3), which ought to be upheld as a legal basis for the executive to grant work authorization to noncitizens as part of its discretionary authority. Moreover,  it should also not make a difference whether the EAD stems from an application that would ultimately result in permanent residence, such as adjustment of status or cancellation of removal, or through a grant of deferred action. The executive branch has equal authority to grant adjustment of status or deferred action, provided certain conditions are met, from which separately ensue EADs to a noncitizen. The latest Ninth Circuit ruling in Arizona Dream Coalition could not have made this clearer.