Professional Documents
Culture Documents
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DISTRICT OF ARIZONA
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FENNEMORE CRAIG, P.C.
PHOE NI X
v.
No. CV-12-02546-PHX-DGC
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT ON
PLAINTIFFS EQUAL
PROTECTION CLAIM
Oral Argument Requested
INTRODUCTION
Plaintiffs Equal Protection claim fails because Plaintiffs are not similarly situated
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erroneously allege that, as recipients of deferred action pursuant to the DACA Program,
they are similarly situated to other individuals who use Employment Authorization Cards
situated to those EAC holders who are eligible to obtain an Arizona drivers license under
ADOTs policy. DACA recipients do not have authorized presence under federal law,
they do not have immigration status, they are not on a path to formal immigration status,
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and their C33 EACs correspond to relief that does not arise pursuant to an express
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Unlike every form of relief that corresponds to the categories of EACs that ADOT
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will accept to demonstrate authorized presence under federal law, deferring action
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pursuant to the DACA Program is merely the federal executives discretionary decision to
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not enforce federal immigration law with respect to certain individuals who under the
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INAs express terms should be placed into removal proceedings. As Plaintiffs expert Bo
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(SOF) 43]
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Because DACA recipients are not similarly situated to any other group that is
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basis analysis for the Equal Protection claim and summary judgment should be granted.
MEMORANDUM OF POINTS AND AUTHORITIES
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I.
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A.
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The United States Congress has repeatedly declined to enact the Development,
Plaintiffs
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Relief, and Education for Alien Minors Act (DREAM Act). See, e.g., DREAM Act of
2011, S. 952, H.R. 1842, 112th Cong. (2011) (DREAM Act of 2011); DREAM Act of
2010, H.R. 6497, S. 3962, S. 3963, 111th Cong. (2010); DREAM Act of 2007, S. 774,
110th Cong. (2007). The DREAM Act, if enacted, would provide certain alien minors
with a path to obtain permanent resident status under federal immigration law. See, e.g.,
DACA Program to the directors of U.S. Citizenship and Immigration Services (USCIS)
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and U.S. Immigration and Customs Enforcement (ICE) and the acting Commissioner of
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U.S. Customs and Border Protection. [SOF 2] The DACA Memorandum instructs
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ICE officers to refrain from placing certain aliens who are unlawfully present in the
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Instead, the agencies are instructed to grant deferred action to a class of illegal
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immigrants that meet certain criteria, [SOF 4] criteria that are similar to those that would
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have determined eligibility for relief under the DREAM Act. [SOF 6] Accordingly, the
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population eligible for the DACA Program overlaps significantly with the population that
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would have benefited from enactment of the DREAM Act. [SOF 6-7] This grant of
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deferred action pursuant to the DACA Program results only in the temporary,
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The DACA Memorandum further provides that DACA recipients may apply for
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EACs for the period of their deferred action. [SOF 8] The EACs issued to DACA
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recipients are identified with a unique category code C33 that is not issued to any
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[SOF 5]
except for one express category, is not authorized by the INA or any other federal statute.1
[SOF 47]
protection or benefit. [SOF 41] Instead, deferred action is merely the decision to not
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enforce federal immigration law with respect to an individual or, in the case of DACA, a
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group of individuals. [SOF 40] Deferred action perpetuates an ongoing violation of the
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[SOF 46]
B.
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Arizona law expressly vests in Mr. Halikowski, the Director of the Arizona
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administer and enforce Arizonas transportation laws and to exercise any duties or powers
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he deems necessary to carry out the efficient operation of ADOT. See, e.g., A.R.S. 28-
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363 (The director shall [s]upervise and administer the overall activities of the
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department and its divisions and employees [and] [e]xercise other duties or powers as
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the director deems necessary to carry out the efficient operation of the department.); see
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The INA provides for deferred action for derivative children of self-petitioners under the
Violence Against Women Act (VAWA). 8 U.S.C. 1154(a)(1)(D). [SOF 49]
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in ADOT, and ultimately the Director, with respect to drivers license issuance. Arizonas
A.R.S. 28-3153(D) (emphasis added). [SOF 11] Accordingly, Arizona law prohibits
ADOT from issuing a drivers license to an applicant who does not present proof that his
Arizona law vests ADOT, and ultimately the Director, with the authority and the
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After the DACA Memo was issued, but before Governor Brewer issued Executive
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Order 2012-06 (the Executive Order), Director Halikowski and his advisors began
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analyzing whether the EAC issued to DACA recipients would constitute satisfactory proof
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that the applicants presence in the United States was authorized under federal law.
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[SOF 12]. Based on an intensive review of the DACA Program, which included ADOT
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seeking guidance from USCIS, Director Halikowski and ADOT determined that DACA
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recipients did not have authorized presence under federal law. [SOF 18-22]
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On September 17, 2012, ADOT revised Policy 16.1.4 to provide that C33 EACs
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C.
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under federal law. [SOF 14] Federal immigration law is very complicated and, before
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the massive, public change in federal prosecutorial discretion was announced, ADOT did
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not have an understanding that relief corresponding to certain EACs may actually
constitute nothing more than a decision to not enforce federal immigration law. [SOF
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through its investigation and policy review that was prompted by the announcement of the
DACA Program, ADOT learned that there may be other EACs that do not provide
sufficient proof that an applicant has authorized presence under federal law, e.g. Category
Code C14 EACs that are issued to certain deferred action recipients. [SOF 15-16, 28]
Halikowski and ADOT continued to review Policy 16.1.4 to assess whether there are
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EACs that should not be accepted to ensure compliance with Arizona law. [SOF 28-
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that the authorized presence analysis was the same for deferred action recipients as for
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DACA recipients, and the Director wanted to ensure that Policy 16.1.4 was applied
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consistently.
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ongoing review and that further revisions to Policy 16.1.4 were being considered. [SOF
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29]
[SOF 28]
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28-3153(D) and Policy 16.1.4, Director Halikowski determined that an EAC would be
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deemed satisfactory proof to the Department for establishing authorized presence under
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satisfactory to the Department that the applicant has authorized presence under federal law
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if the EAC demonstrates (1) that the applicant has formal immigration status, (2) that the
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applicant is on a path to obtaining a formal immigration status, or (3) that the relief sought
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demonstrate authorized presence under federal law. [SOF 32] Therefore, following
completion of the Directors review, ADOT revised Policy 16.1.4 (the Policy) on
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[SOF 33] ADOT accepts other EACs as proof of presence authorized under federal law
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for the purpose of obtaining an Arizona drivers license. As explained below, holders of
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Category Code C33 EACs are not similarly situated to other EAC holders who are eligible
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II.
STANDARD OF REVIEW.
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fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
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plaintiff fails to raise a triable issue of material fact as to whether he or she was treated
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any differently than others similarly situated. See, e.g., Furnace v. Sullivan, 705 F.3d
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1021, 1031 (9th Cir. 2013); Marcavage v. City of Chicago, 659 F.3d 626, 631-32 (7th Cir.
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resolved on summary judgment when no reasonable fact-finder could determine that the
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Although determining whether Plaintiffs are similarly situated to any other group
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that is eligible to receive Arizona drivers licenses arguably involves mixed questions of
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fact and law, discovery has demonstrated that there is no genuine issue of material fact.
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The uncontroverted facts and relevant law demonstrate that Plaintiffs are not similarly
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situated to other EAC holders who are eligible to obtain an Arizona drivers license.
III.
The Equal Protection Clause prohibits states from denying to any person within its
jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.2 To prevail
on an Equal Protection claim, a plaintiff must make a showing that a class that is
similarly situated has been treated disparately. Christian Gospel Church, Inc. and Cnty.
Of S.F., 896 F.2d 1221, 1225-36 (9th Cir. 1990), superseded on other grounds by 42
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U.S.C. 2000e. To be considered similarly situated, the control group must be prima
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MHM, 2010 WL 94116, *5 (D. Ariz. Jan. 6, 2010) (emphasis added); Nordlinger v. Hahn,
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505 U.S. 1, 10 (1992) (holding that to be similarly situated, persons must be alike in all
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relevant respects).
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The first step in an Equal Protection analysis is determining whether the individual
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Plaintiffs are similarly situated to other unauthorized immigrants holding EACs who are
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eligible to obtain drivers licenses in Arizona. See, e.g., United States v. Armstrong, 517
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U.S. 456, 470 (1996); Christian Gospel Church, Inc., 896 F.2d at 1225. Only if the Court
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determines that DACA recipients are similarly situated to other groups that have been
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issued EACs and are eligible to receive an Arizona drivers license must the Court address
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whether ADOTs Policy is rationally related to a legitimate state interest. Heller v. Doe,
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509 U.S. 312, 319-20 (1993).3 Discovery has confirmed that Plaintiffs claim fails as a
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On May 16, 2013, following an evidentiary hearing, the district court entered an order
that: (1) granted Defendants Motion to Dismiss Plaintiffs Supremacy Clause claim; (2)
denied Defendants Motion to Dismiss Plaintiffs Equal Protection claim; and (3) denied
Plaintiffs Motion for Preliminary Injunction. [SOF 24-27] As a result, the only
remaining claim is Plaintiffs Equal Protection claim. [SOF 24-27]
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Defendants rational bases are not at issue in this Motion because Plaintiffs cannot
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matter of law because DACA recipients are not similarly situated to EAC holders who are
B.
The basis of Plaintiffs Equal Protection Clause claim is that ADOT discriminates
against DACA recipients by singling out and denying drivers licenses to individuals
granted deferred action under the DACA program while granting licenses to all other
the United States. Amended Complaint, 74. Significantly, however, ADOT revised
the Policy in September 2013, providing that neither Category Code C14 EACs (deferred
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action) nor Category Code A11 (deferred enforced departure) are acceptable to
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demonstrate authorized presence just as Category Code C33 EACs are not acceptable.
The Court Must Analyze the Revised Policy, Not the 2012 Policy.
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Where, as here, a challenged policy is revised or amended, the Court must review
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the policy as it now exists in order to avoid issuing an advisory opinion. See, e.g.,
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Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (It is an
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inexorable command of the United States Constitution that the federal courts confine
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Article III is not relaxed in the declaratory judgment or injunctive relief contexts. Id. at
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1129; see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 479 (1990). The United States
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Supreme Court has explained that even where a law is amended pending appellate review,
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courts must review the judgment of the District Court in light of [state] law as it now
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stands, not as it stood when the judgment below was entered. Diffenderfer v. Cent.
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Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414 (1972) (citing several cases that
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satisfy the similarly situated analysis, and because the rational basis analysis in this case is
factually intensive and not suitable for resolution through summary judgment.
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C.
The issue before the Court is whether DACA recipients are similarly situated in
every relevant respect to any other group with EACs who receive Arizona drivers
licenses. In other words, Plaintiffs burden is to establish that they and another group that
is eligible for Arizona drivers licenses are identical in all respects relevant to ADOTs
Policy. See, e.g., Order dated May 16, 2013 (Dkt. 114) (The question is not whether
DACA recipients are identical in every respect to other deferred action recipients, but
whether they are the same in respects relevant to the drivers license policy.) (citing
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who presents a C33 EAC and a holder of any of the EACs that ADOT will accept to
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enforce federal immigration law with respect to the holder, and it does not satisfy any of
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Director Halikowskis three criteria for determining whether an EAC constitutes proof
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satisfactory to the Department that the applicant has authorized presence under federal law
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for purposes of A.R.S. 28-3453(D). [SOF 37] In contrast, every category of EAC that
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applicant is lawfully present in the United States under federal law, A.R.S. 28-
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3153(D), and Director Halikowski has looked to the INA, which is the federal law that
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establishes which foreign nationals are authorized to be present in the United States. The
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DACA Program does not arise pursuant to the INA and, accordingly, Plaintiffs are not
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similarly situated in every relevant respect to groups eligible for Arizona drivers licenses.
Because all groups that Plaintiffs will point to in attempting to find a similarly situated
group either have lawful status, are on a path to lawful status, or have an EAC that is tied
to relief provided for under the INA, Plaintiffs Equal Protection claim fails.
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As an initial matter, Plaintiffs will likely argue that they are entitled to drivers
licenses because their presence is authorized under federal law, which is the requirement
under A.R.S. 28-3453(D) that must be met in order to obtain a drivers license.
Plaintiffs experts argue that DACA recipients presence is authorized under federal law
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by virtue of the INAs general grant of enforcement authority to DHS and as a result of
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the inherent authority to exercise prosecutorial discretion. [SOF 48] This argument is
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erroneous.4 Federal law the INA provides that DACA eligible aliens should be placed
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A grant of deferred action does not arise pursuant to the INA; rather, it is a decision
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to not enforce the INA. [SOF 40] Indeed, deferring a removal action perpetuates an
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ongoing violation of federal immigration law. See, e.g., 8 U.S.C. 1225(b)(2)(A). [SOF
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46] Both Plaintiffs experts and Defendants expert agree that DACA does not confer a
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formal immigration status. [SOF 42-43] The parties experts also agree that DACA
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does not provide a path to obtaining a formal immigration status. [SOF 44-45] Finally,
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the parties experts agree that DACA is not provided for pursuant to the INA. [SOF 47-
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Many of Plaintiffs experts opinions constitute inadmissible legal opinions and are
therefore immaterial to the parties summary judgment briefing, just as they would be
immaterial is the case were to proceed to trial. Fed. R. Civ. P. 56(c)(2) and (4) (facts used
to support or oppose a motion for summary judgment must be admissible in evidence);
Knoell v. Metro. Life Ins. Co., 163 F. Supp. 2d 1072, 1078 (D. Ariz. 2001); Nationwide
Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008). Defendants
address these contentions in this Motion because Plaintiffs can be expected make legal
arguments consistent with their experts legal opinions, and Defendants do not waive any
evidentiary or other objections with respect to these legal opinions. See, e.g., Fed. R. Civ.
P. 56(c)(2) and Fed. R. Evid. 702.
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48]
The Court has already rejected similar arguments made by Plaintiffs in the context
of their Supremacy Clause claim, which was dismissed by this Courts May 16, 2013
(May 16, 2013 Order). The Court rejected Plaintiffs initial argument that the DACA
Memorandum constituted federal law that preempted ADOTs Policy. May 16, 2013
Order at 11-12 (The memorandum does not have the force of law.).
subsequently modified their preemption argument to assert that Policy 16.1.4 conflicts
with Congresss decision to grant discretion to the Executive Branch to enforce the
immigration laws[.] May 16, 2013 Order at 12 (quoting Doc. 99 at 15) (emphasis in the
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original); see also Transcript of March 22, 2013 Oral Argument at 50:17-22. The Court
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rejected this argument as well. May 16, 2013 Order at 12-13. ([T]he Court certainly
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cannot impute the intentions of the DACA program to Congress when Congress itself has
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declined repeatedly to enact legislation that would accomplish the goals of the DACA
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authority is misplaced. In Crane, several ICE agents filed suit alleging that the DACA
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Memorandum, referred to by the court as the Directive, required them to violate federal
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law or face possible discipline for refusing to comply with the Directive. Id. at *3. The
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ICE agents alleged that the Directive expressly violates 8 U.S.C. 1225, which requires
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immigrants who are not clearly and beyond a doubt entitled to be admitted, and that any
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prosecutorial discretion can only be exercised after removal proceedings have been
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After engaging in a thorough analysis of the statute, the court held that Directive-
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eligible aliens would fall under Section 1225(b)(2)(A)s instruction that immigration
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Accordingly, the court found that Plaintiffs were likely to succeed on the merits of their
claim that the Department of Homeland Security has implemented a program contrary to
discretion in the form of deferred action. Id. at *5. The court rejected this argument.
The Court finds that Congresss use of the word shall in Section 1225(b)(2)(A) imposes
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aliens they encounter who are not clearly and beyond a doubt entitled to be admitted.
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Id. at *8. Accordingly, the court found that Congress, by using the mandatory term
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when determining against which applicants for admission it will initiate removal
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as follows:
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Id. at *13 (citing Heckler v. Chaney, 470 U.S. 821, 833 (1985) for the proposition that
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The court later dismissed the claims for lack of subject matter jurisdiction due to the
Collective Bargaining Agreement and the Civil Service Reform Act. Crane v.
Napolitano, 3:12-CV-03247-O, 2013 WL 8211660, *1 (N.D. Tex. July 31, 2013)
(unpublished).
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enforcement authority does not include the discretion to defer removal proceedings
expressly mandated by 8 U.S.C. 1225(b)(2)(A). Id. at *10, *13. Plaintiffs are therefore
wrong as a matter of law when they argue that DHSs general enforcement authority
somehow bestows authorized presence under federal law upon individuals that the INA
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For the foregoing reasons, Plaintiffs argument that a DACA recipient has
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authorized presence under federal law by virtue of the INAs general grant of enforcement
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an ongoing violation of federal law. [SOF 46] Accordingly, Plaintiffs do not have
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2.
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drivers license is materially different from those of the DACA recipients that the holders
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of those EACs are not similarly situated to DACA recipients. For example, Category
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Code C9 EACs are provided to individuals seeking an adjustment of status pursuant to the
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INA. 8 U.S.C. 1255; 8 C.F.R. 274.a.12(c)(9). [SOF 52]. 8 U.S.C. 1255 provides
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residence. Permanent residence results in formal status, and permanent residents receive
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green cards that signify their lawful permanent residency. [SOF 52] Accordingly, a C9
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EAC holder is on a path to obtaining a formal immigration status, and the relief sought is
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expressly provided for pursuant to the INA. A holder of a C33 EAC is therefore not
signifies a discretionary decision to not enforce the INA with respect to the holder.
cancellation of removal and suspension of deportation are forms of relief based in the
INA, although suspension of deportation was abrogated effective April 1, 1997 pursuant
legislative changes to the INA. [SOF 53] 8 U.S.C. 1229b provides for the cancelation
of removal of an alien under certain circumstances and the adjustment of that aliens
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status to that of person admitted for permanent residence. Similarly, former 8 U.S.C.
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1254 provided for the suspension of deportation of an alien under certain circumstances
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and for the adjustment of that aliens status to that of person admitted for permanent
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green card and formal status. Just like a C9 EAC, a C10 EAC satisfies two of Director
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Halikowskis criteria, and holders of C33 EACs are not similarly situated to C10 holders.
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3.
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Category Code C31 EACs are provided to individuals who have filed approved
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self-petitions pursuant to the Violence Against Women Act. [SOF 58]6 Pursuant to
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citizen or the parent of an abused child may file a self-petition to attain the status of an
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alien lawfully admitted to the United States for permanent residence. [SOF 58] This
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constitutes a pathway to formal immigration status and relates to relief expressly afforded
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through the INA, and a C33 EAC holder is therefore not similarly situated to a C31 EAC
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8 C.F.R. 274a.12, the regulation that sets forth the various categories of EACs, has not
been updated to account for the C31 category corresponding to VAWA, just as it has not
been updated to account for the C33 category corresponding to DACA.
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holder.
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Category Code C8 EACs are provided to individuals who have filed a complete
application for asylum pursuant to 8 U.S.C. 1158. [SOF 51] This, again, is relief
not enforce the INA. [SOF 51] Accordingly, a C33 EAC holder is therefore not
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Category Code C11 EACs are provided to individuals who are paroled into the
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United States pursuant to 8 U.S.C. 1182(b)(5)(A). [SOF 55] The period of a parolees
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stay is expressly authorized under federal law, i.e. 8 U.S.C. 1182(b)(5)(A), [SOF 55]
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and a C33 EAC holder is therefore not similarly situated to a C11 EAC holder.
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6.
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Category Code C16 EACs are issued to individuals who have applied to regularize
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their status a process call registry pursuant to 8 U.S.C. 1259. [SOF 56] A
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registry application results in adjustment to permanent resident status and the issuance of
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a green card. [SOF 56] For each of these reasons, a C33 holder is not similarly situated
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Category Code C18 EACs are issued to aliens who receive release under an order
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presence, this relief is expressly provided for pursuant to the INA, 8 U.S.C. 1231(a), and
CONCLUSION
Plaintiffs cannot prevail on an Equal Protection claim because they cannot show
that DACA recipients relying upon the unique and newly created C33 EAC category have
authorized presence and therefore are similarly situated to a group that is eligible to
receive Arizona drivers licenses. Arizona law prohibits ADOT from issuing Arizona
drivers licenses to individuals that cannot demonstrate authorized presence in the United
States under federal law. Plaintiffs are beneficiaries of the federal executive branchs
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discretionary decision not to enforce federal immigration law against them. This does not
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bestow upon Plaintiffs authorized presence under federal law. Plaintiffs, as C33 EAC
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holders, are not similarly situated to holders of the EACs that ADOT accepts because each
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respective form of relief corresponding to these acceptable EACs arises through express
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Defendants rational bases, and Plaintiffs Equal Protection claim is properly resolved
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For the foregoing reasons, Defendants respectfully request that the Court enter
summary judgment in their favor on Plaintiffs Equal Protection claim.
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FENNEMORE CRAIG, P.C.
PHOE NI X
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By s/ Sean T. Hood
Douglas C. Northup
Timothy Berg
Sean T. Hood
Attorneys for Defendants
Governor Janice K. Brewer, John S.
Halikowski and Stacey K. Stanton
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FENNEMORE CRAIG, P.C.
PHOE NI X
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CERTIFICATE OF SERVICE
I hereby certify that on April 30, 2014, I electronically transmitted the attached
document to the Clerks Office using the ECF System for filing and transmittal of a
Notice of Electronic Filing to the following ECF registrants:
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Email: preciado@nilc.org
Email: espiritu@nilc.org
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Tanya Broder
National Immigration Law Center
405 Fourteenth St., Suite 401
Oakland, CA 94612
Email: Broder@nilc.org
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Victor Viramontes
Jorge Martin Castillo
Mexican American Legal
Defense and Educational Fund
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
Email: vviramontes@maldef.org
Email: jcastillo@maldef.org
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s/ Phyllis Warren
An employee of Fennemore Craig, P.C.
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9104303.3
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FENNEMORE CRAIG, P.C.
PHOE NI X
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