FILED

FOR PUBLICATION APR 05 2016

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA DREAM ACT COALITION; No. 15-15307

CHRISTIAN JACOBO; ALEJANDRA

LOPEZ; ARIEL MARTINEZ; NATALIA D.C. No. 2:12-cv-02546-DGC

PEREZ-GALLEGOS; CARLA

CHAVARRIA; JOSE RICARDO

HINOJOS, OPINION

Plaintiffs - Appellees,

v.

JANICE K. BREWER, Governor of the State of Arizona, in her official capacity; JOHN S. HALIKOWSKI, Director of the Arizona Department of Transportation, in his official capacity; STACEY K. STANTON, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity,

Defendants - Appellants.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted July 16, 2015 Pasadena, California Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges.

Opinion by Judge Harry Pregerson, Circuit Judge:

Plaintiffs are five individual recipients of deferred action under the Deferred

Action for Childhood Arrivals (“DACA”) program, and the Arizona DREAM Act

Coalition (“ADAC”), an organization that advances the interests of young

immigrants. DACA recipients are noncitizens who were brought to this country as

children. Under the DACA program, they are permitted to remain in the United

States for some period of time as long as they meet certain conditions. Authorized

by federal executive order, the DACA program is administered by the Department

of Homeland Security and is consistent with the Supreme Court’s ruling that the

federal government “has broad, undoubted power over the subject of immigration

and the status of aliens” under the Constitution. Arizona v. United States, 132 S.

Ct. 2492, 2498 (2012).

In response to the creation of the DACA program, Defendants—the

Governor of the State of Arizona; the Arizona Department of Transportation

(“ADOT”) Director; and the Assistant Director of the Motor Vehicle

Division—instituted a policy that rejected the Employment Authorization

Documents (“EADs”) issued to DACA recipients under the DACA program as

2 proof of authorized presence for the purpose of obtaining a driver’s license.

Plaintiffs seek permanently to enjoin Defendants from categorically denying

drivers’ licenses to DACA recipients. The district court ruled that Arizona’s policy

was not rationally related to a legitimate government purpose and thus violated the

Equal Protection Clause of the Fourteenth Amendment. The district court granted

Plaintiffs’ motion for summary judgment and entered a permanent injunction.

Defendants appealed.

We agree with the district court that DACA recipients are similarly situated

to other groups of noncitizens Arizona deems eligible for drivers’ licenses. As a

result, Arizona’s disparate treatment of DACA recipients may well violate the

Equal Protection Clause, as our previous opinion indicated is likely the case.

Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014). The

district court relied on this ground when it issued the permanent injunction.

Applying the principle of constitutional avoidance, however, we need not and

should not come to rest on the Equal Protection issue, even if it “is a plausible, and

quite possibly meritorious” claim for Plaintiffs, so long as there is a viable

alternate, nonconstitutional ground to reach the same result. Overstreet v. United

Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1211

3 (9th Cir. 2005) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568, 576–78 (1988)).

We conclude that there is. Arizona’s policy classifies noncitizens based on

Arizona’s independent definition of “authorized presence,” classification authority

denied the states under the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1101, et seq. We therefore affirm the district court’s order that Arizona’s policy is

preempted by the exclusive authority of the federal government to classify

noncitizens.

FACTUAL BACKGROUND

I. The DACA Program

On June 15, 2012, the Department of Homeland Security announced the

DACA program pursuant to the DACA Memorandum. Under the DACA program,

the Department of Homeland Security exercises its prosecutorial discretion not to

seek removal of certain young immigrants. The DACA program allows these

young immigrants, including members of ADAC, to remain in the United States

for some period of time as long as they meet specified conditions.

To qualify for the DACA program, immigrants must have come to the

United States before the age of sixteen and must have been under the age of thirty-

one by June 15, 2012. See Memorandum from Secretary Janet Napolitano,

4 Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children (June 15, 2012). They must have been living in the

United States at the time the DACA program was announced and must have

continuously resided here for at least the previous five years. Id. Additionally,

DACA-eligible immigrants must be enrolled in school, have graduated from high

school, have obtained a General Educational Development certification, or have

been honorably discharged from the U.S. Armed Forces or Coast Guard. Id. They

must not pose a threat to public safety and must undergo extensive criminal

background checks. Id.

If granted deferred action under DACA, immigrants may remain in the

United States for renewable two-year periods. DACA recipients enjoy no formal

immigration status, but the Department of Homeland Security does not consider

them to be unlawfully present in the United States and allows them to receive

federal EADs.

II. Arizona’s Executive Order

On August 15, 2012, the Governor of Arizona issued Arizona Executive

Order 2012–06 (“Arizona Executive Order”). Executive Order 2012–06, “Re-

Affirming Intent of Arizona Law In Response to the Federal Government’s

Deferred Action Program” (Aug. 15, 2012). A clear response to DACA, the

5 Arizona Executive Order states that “the Deferred Action program does not and

cannot confer lawful or authorized status or presence upon the unlawful alien

applicants.” Id. at 1. The Arizona Executive Order announced that “[t]he issuance

of Deferred Action or Deferred Action USCIS 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.” Id.

The Order directed Arizona state agencies, including ADOT, to “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.

III. Arizona’s Driver’s License Policy

To implement the Arizona Executive Order, officials at ADOT and its Motor

Vehicle Division initiated changes to Arizona’s policy for issuing drivers’ licenses.

Under Arizona state law, applicants can receive a driver’s license only if they can

“submit proof satisfactory to the department that the applicant’s presence in the

United States is authorized under federal law.” Ariz. Rev. Stat. Ann.

§ 28–3153(D). Prior to the Arizona Executive Order, ADOT Policy 16.1.2

included all federally issued EADs as “proof satisfactory” that an applicant’s

6 presence was “authorized under federal law.” The Motor Vehicle Division

therefore issued drivers’ licenses to all individuals with such documentation.

After the Arizona Executive Order, the Motor Vehicle Division announced

that it would not accept EADs issued to DACA recipients—coded by the

Department of Homeland Security as (c)(33)—as proof that their presence in the

United States is “authorized under federal law.” The Motor Vehicle Division

continued to accept federally issued EADs from all other noncitizens as proof of

their lawful presence, including individuals who received deferred action outside

of the DACA program and applicants coded (c)(9) (individuals who have applied

for adjustment of status), and (c)(10) (individuals who have applied for

cancellation of removal).

In 2013, ADOT revised its policy again. Explaining this change, ADOT

Director John S. Halikowski testified that Arizona views an EAD as proof of

presence authorized under federal law only if the EAD demonstrates: (1) the

applicant has formal immigration status; (2) the applicant is on a path to obtaining

formal immigration status; or (3) the relief sought or obtained is expressly

provided pursuant to the INA. Using these criteria, ADOT began to refuse driver’s

license applications that relied on EADs, not only from DACA recipients, but also

from beneficiaries of general deferred action and deferred enforced departure. It

7 continued to accept as proof of authorized presence for purposes of obtaining

drivers’ licenses EADs from applicants with (c)(9) and (c)(10) status. We refer to

the policy that refuses EADs from DACA recipients as “Arizona’s policy.”

IV. Preliminary Injunction

On November 29, 2012, Plaintiffs sued Defendants in federal district court,

alleging that Arizona’s policy of denying drivers’ licenses to DACA recipients

violates the Equal Protection Clause and the Supremacy Clause of the U.S.

Constitution. Plaintiffs sought declaratory relief and a preliminary injunction

prohibiting Defendants from enforcing their policy against DACA recipients. On

May 16, 2013, the district court ruled that Arizona’s policy likely violated the

Equal Protection Clause but it declined to grant the preliminary injunction because

Plaintiffs had not shown irreparable harm. ADAC v. Brewer, 945 F. Supp. 2d 1049

(D. Ariz. 2013) (“ADAC I”), reversed by ADAC v. Brewer, 757 F.3d 1053 (9th Cir.

2014) (“ADAC II”). It also granted Defendants’ motion to dismiss the Supremacy

Clause claim. Id. at 1077–78. Plaintiffs appealed the district court’s denial of a

preliminary injunction.

V. Permanent Injunction

While Plaintiffs’ appeal of the preliminary injunction ruling was pending,

Plaintiffs sought a permanent injunction in district court on Equal Protection

8 grounds and moved for summary judgment. Defendants also moved for summary

judgment, arguing that DACA recipients are not similarly situated to other

noncitizens who are eligible for drivers’ licenses under Arizona’s policy.

We reversed the district court’s decision on the motion for preliminary

injunction, agreeing with the district court that Arizona’s policy likely violated the

Equal Protection Clause and holding that Plaintiffs had established that they would

suffer irreparable harm as a result of its enforcement. See ADAC II, 757 F.3d at

1064. In a concurring opinion, one member of our panel concluded that Plaintiffs

also demonstrated a likelihood of success on their claim that Arizona’s policy was

preempted. Id. at 1069 (Christen, J., concurring). On January 22, 2015, the district

court granted Plaintiffs’ motion for summary judgment and entered a permanent

injunction. ADAC v. Brewer, 81 F. Supp. 3d 795 (D. Ariz. 2015) (“ADAC III”).

We affirm the district court’s order.

STANDARD OF REVIEW

We review the district court’s grant or denial of motions for summary

judgment de novo. Besinga v. United States, 14 F.3d 1356, 1359 (9th Cir. 1994).

We determine whether there are any genuine issues of material fact and review the

district court’s application of substantive law. Gerhart v. Lake Cty., Mont., 637

F.3d 1013, 1019 (9th Cir. 2011). We “may affirm a grant of summary judgment on

9 any ground supported by the record.” Curley v. City of N. Las Vegas, 772 F.3d

629, 631 (9th Cir. 2014).

We review the district court’s decision to grant a permanent injunction for

abuse of discretion. La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d

867, 879 (9th Cir. 2014) (citing Interstellar Starship Servs., Ltd. v. Epix, Inc., 304

F.3d 936, 941 (9th Cir. 2002)). We review questions of law underlying the district

court’s decision de novo. See Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003).

“If the district court ‘identified and applied the correct legal rule to the relief

requested,’ we will reverse only if the court’s decision ‘resulted from a factual

finding that was illogical, implausible, or without support in inferences that may be

drawn from the facts in the record.’” Herb Reed Enters., LLC v. Fla. Entm’t

Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013) (quoting United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).

DISCUSSION

I. Equal Protection

A. Similarly Situated

“The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall ‘deny to any person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons similarly situated should be

10 treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To prevail on an Equal

Protection claim, plaintiffs must show “that a class that is similarly situated has

been treated disparately.” Christian Gospel Church, Inc. v. City & Cty. of S.F.,

896 F.2d 1221, 1225 (9th Cir. 1990), superseded on other grounds by 42 U.S.C. §

2000e.

“The first step in equal protection analysis is to identify the state’s

classification of groups.” Country Classic Dairies, Inc. v. Milk Control Bureau,

847 F.2d 593, 596 (9th Cir. 1988). “The groups must be comprised of similarly

situated persons so that the factor motivating the alleged discrimination can be

identified.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

In this instance, DACA recipients do not need to be similar in all respects to other

noncitizens who are eligible for drivers’ licenses, but they must be similar in those

respects that are relevant to Arizona’s own interests and its policy. See Nordlinger

v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid

classifications. It simply keeps governmental decisionmakers from treating

differently persons who are in all relevant respects alike.” (emphasis added)).

We previously held that DACA recipients and other categories of

noncitizens who may rely on EADs are similarly situated with regard to their right

11 to obtain drivers’ licenses in Arizona. See ADAC II, 757 F.3d at 1064. The

material facts and controlling authority remain the same from the preliminary

injunction stage. Thus, we again hold that in all relevant respects DACA recipients

are similarly situated to noncitizens eligible for drivers’ licenses under Arizona’s

policy. Nonetheless, for clarity and completeness, we address once more

Defendants’ arguments.

Defendants assert that DACA recipients are not similarly situated to other

noncitizens eligible for drivers’ licenses under Arizona’s policy because DACA

recipients neither received nor applied for relief provided by the INA, or any other

relief authorized by federal statute. Particularly relevant here, Defendants note that

eligible noncitizens under the categories of (c)(9) and (c)(10) are tied to relief

expressly found in the INA: adjustment of status (INA § 245; 8 U.S.C. § 1255; 8

C.F.R. § 274a.12(c)(9)) and cancellation of removal (INA § 240A; 8 U.S.C. §

1229b; 8 C.F.R. § 274a.12(c)(10)), respectively. In contrast, Defendants contend

that DACA recipients’ presence in the United States does not have a connection to

federal law but rather reflects the Executive’s discretionary decision not to enforce

the INA.

We continue to disagree. See ADAC II, 757 F.3d at 1061. As explained

below, Arizona has no cognizable interest in making the distinction it has for

12 drivers’ licenses purposes. The federal government, not the states, holds exclusive

authority concerning direct matters of immigration law. DeCanas v. Bica, 424

U.S. 351, 354 (1976), superseded by statute on other grounds as recognized in

Arizona, 132 S. Ct. at 2503–04. The states therefore may not make immigration

decisions that the federal government, itself, has not made, Plyler, 457 U.S. at 225

(citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Arizona’s encroachment into

immigration affairs—making distinctions between groups of immigrants it deems

not to be similarly situated, despite the federal government’s decision to treat them

similarly—therefore seems to exceed its authority to decide which aliens are

similarly situated to others for Equal Protection purposes. In other words, the

“similarly situated” analysis must focus on factors of similarity and distinction

pertinent to the state’s policy, not factors outside the realm of its authority and

concern.

Putting aside that limitation, the INA explicitly authorizes the Secretary of

Homeland Security to administer and enforce all laws relating to immigration and

naturalization. INA § 103(a)(1); 8 U.S.C. § 1103(a)(1). As part of this authority, it

is well settled that the Secretary can exercise deferred action, a form of

prosecutorial discretion whereby the Department of Homeland Security declines to

pursue the removal of a person unlawfully present in the United States.

13 The INA expressly provides for deferred action as a form of relief that can

be granted at the Executive’s discretion. For example, INA § 237(d)(2); 8 U.S.C. §

1227(d)(2), allows a noncitizen who has been denied an administrative stay of

removal to apply for deferred action. Certain individuals are also “eligible for

deferred action” under the INA if they qualify under a set of factors. See INA §

204(a)(1)(D)(i)(II); 8 U.S.C. § 1154(a)(1)(D)(i)(II). Deferred action is available to

individuals who can make a showing of “exceptional circumstances.” INA §

240(e); 8 U.S.C. § 1229a(e). By necessity, the federal statutory and regulatory

scheme, as well as federal case law, vest the Executive with very broad discretion

to determine enforcement priorities.1

1 Pursuant to this discretion, the Department of Homeland Security and its predecessor, the Immigration and Naturalization Service (“INS”), established a series of general categorical criteria to guide enforcement. For example, the 1978 INS Operating Instructions outlined five criteria for officers to consider in exercising prosecutorial discretion, including “advanced or tender age.” O.I. 103.1(a)(1)(ii); see also Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983). Discretion can also cut the other way. For example, the 2011 Morton Memo highlighted “whether the person poses national security or public safety concern,” Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), and the 2014 Johnson Memo identifies the “highest [enforcement] priority” as noncitizens who might represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (continued...)

14 Congress expressly charged the Department of Homeland Security with the

responsibility of “[e]stablishing national immigration enforcement policies and

priorities.” 6 U.S.C. § 202(5). The Department of Homeland Security regulations

describe deferred action as “an act of administrative convenience to the

government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).

Additionally, the Supreme Court has made it clear that “an agency’s decision not to

prosecute or enforce, whether through civil or criminal process, is a decision

generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470

U.S. 821, 831 (1985). The Supreme Court has explained that the Secretary has

discretion to exercise deferred action at each stage of the deportation process, and

has acknowledged the long history of the Executive “engaging in a regular practice

. . . of exercising that discretion for humanitarian reasons or simply for its own

convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

483–84 (1999); see also id. n.8; Arizona, 132 S. Ct. at 2499 (noting that “[a]

principal feature of the removal system is the broad discretion exercised by” the

Executive); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (noting the

1 (...continued) (November 20, 2014).

15 State of Texas’s concession that the INA “places no substantive limits on the

Attorney General and commits enforcement of the INA to her discretion”).2

Defendants’ argument fails because they attempt to distinguish categories of

EAD-holders in a way that does not amount to any relevant difference. Like

adjustment of status, (c)(9), and cancellation of removal, (c)(10), deferred action is

a form of relief grounded in the INA. Moreover, the exercise of prosecutorial

discretion in deferred action flows from the authority conferred on the Secretary by

the INA.

2 In the past, the Department of Homeland Security and the INS have granted deferred action to different groups of noncitizens present in the United States. In 1977, the Attorney General granted stays of removal to 250,000 nationals of certain countries (known as “Silva Letterholders”). Silva v. Levi, No. 76-C4268 (N.D. Ill. 1977), modified on other grounds sub nom. Silva v. Bell, 605 F.2d 978 (7th Cir.1979). In 1990, the INS instituted the “Family Fairness” program that deferred the deportation of 1.5 million family members of noncitizens who were legalized through the Immigration Reform and Control Act. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, “Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens” (Feb. 2, 1990). In 1992, President Bush directed the Attorney General to grant deferred enforced departure to 190,000 Salvadorans. See Immigration Act of 1990 § 303, Public Law 101-649 (Nov. 29, 1990); https://www.gpo.gov/fdsys/pkg/FR- 1994-12-06/html/94-30088.htm. And nationals of Liberia were granted deferred enforced departure until September 30, 2016, http://www.uscis.gov/humanitarian/ temporary-protected-status-deferred-enforced-departure/deferred-enforced-departu re.

16 Defendants provide two criteria to explain when they deem an EAD

satisfactory proof of authorized presence: the applicant has formal immigration

status, or the applicant is on the path to formal immigration status. Neither criteria

suffices to render DACA recipients not similarly situated to other EAD-holders on

any basis pertinent to Arizona’s decision whether to grant them drivers’ licenses.

Like DACA recipients, many noncitizens who apply for adjustment of status and

cancellation of removal—including individuals with (c)(9) and (c)(10) EADs—do

not, and may never, possess formal immigration status. See Guevara v. Holder,

649 F.3d 1086, 1095 (9th Cir. 2011).

Additionally, “submission of an application does not connote that the alien’s

immigration status has changed.” Thus, merely applying for immigration relief

does not signal a clear path to formal immigration status. Vasquez de Alcantar v.

Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (quoting United States v. Elrawy, 448

F.3d 309, 313 (5th Cir. 2006)). Indeed, given how frequently these applications

are denied, “the supposed ‘path’ may lead to a dead end.” ADAC II, 757 F.3d at

1065. In this regard, noncitizens holding (c)(9) and (c)(10) EADs are no different

from DACA recipients. And as discussed above, DACA recipients have a

temporary reprieve—deferred action—that is provided for by the INA, pursuant to

the prosecutorial discretion statutorily delegated to the Executive.

17 Therefore, in all relevant respects, DACA recipients are similarly situated to

other categories of noncitizens who may rely on EADs to obtain drivers’ licenses

under Arizona’s policy.

B. State Interest

The next step in an Equal Protection analysis is to determine the applicable

level of scrutiny. Country Classic Dairies, 847 F.2d at 596. Although we do not

ultimately decide the Equal Protection issue, we remain of the view, articulated in

our preliminary injunction opinion, that Arizona’s policy may well fail even

rational basis review. So, as before, we need not reach what standard of scrutiny

applies.3 See ADAC II, 757 F.3d at 1065.

Arizona’s policy must be “rationally related to a legitimate state interest” to

withstand rational basis review. City of Cleburne, 473 U.S. at 440. On appeal,

Defendants advance six rationales for Arizona’s policy, none of which persuade us

that Plaintiffs’ argument under the Equal Protection Clause is not at least

3 In cases involving alleged discrimination against noncitizens authorized to be present in the United States, the Supreme Court has consistently applied strict scrutiny to the state action at issue. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Graham v. Richardson, 403 U.S. 365, 372 (1971). Where the alleged discrimination targets noncitizens who are not authorized to be present, the Supreme Court applies rational basis review. See Plyler, 457 U.S. at 223–24.

18 sufficiently strong to trigger the constitutional avoidance doctrine we ultimately

invoke.

First, Defendants argue that Arizona’s policy is rationally related to the

State’s concern that it could face liability for improperly issuing drivers’ licenses

to DACA recipients. But as the district court observed, the depositions of ADOT

Director John S. Halikowski and Assistant Director of the Motor Vehicle Division

Stacey K. Stanton did not yield support for this rationale. Neither witness was able

to identify any instances in which the state faced liability for issuing licenses to

noncitizens not authorized to be present in the country. ADAC III, 81 F. Supp. 3d

at 807. So the record probably does not establish that there is a rational basis for

this concern.

Second, Defendants contend that Arizona’s policy serves the State’s interest

in preventing DACA recipients from making false claims for public assistance. As

the district court noted, however, Director Halikowski and Assistant Director

Stanton testified that they had no basis for believing that drivers’ licenses could be

used to access state and federal benefits. It follows that this concern is probably

not a rational basis justifying Arizona’s policy either. Id. (citing ADAC II, 757

F.3d at 1066).

19 Third, Defendants claim that Arizona’s policy is meant to reduce the

administrative burden of issuing drivers’ licenses to DACA recipients, only to have

to revoke them once the DACA program is terminated. The district court found

this argument lacked merit, noting this court’s observation that it is less likely that

Arizona will need to revoke the licenses of DACA recipients than of noncitizens

holding (c)(9) and (c)(10) EADs, because applications for adjustment of status or

cancellation of removal are routinely denied.4 ADAC III, 81 F. Supp. 3d at 807

(citing ADAC II, 757 F.3d at 1066–67). Indeed, noncitizens with (c)(10) EADs are

already in removal proceedings, which means they are further along in the

deportation process than are many DACA recipients. The administrative burden of

issuing and revoking drivers’ licenses for DACA recipients is not greater than the

burden of issuing and revoking drivers’ licenses for noncitizens holding (c)(9) and

(c)(10) EADs. Certainly, the likelihood of having to do so does not distinguish

these two classes of noncitizens, as (c)(9) and (c)(10) applications for relief are

frequently denied.

4 Defendants suggest “later-developed facts” indicate that noncitizens holding (c)(9) and (c)(10) EADs are on the path to permanent residency. We are not convinced that achieving certain forms of relief (adjustment of status or cancellation of removal) alters the fact that applications for such relief are regularly denied in very great numbers.

20 Fourth, Defendants argue that Arizona has an interest in avoiding financial

harm to individuals who may be injured in traffic accidents by DACA recipients.

Defendants contend that individuals harmed by DACA recipients may be left

without recourse when the DACA program is terminated and DACA recipients are

removed from the country. But this rationale applies equally to individuals with

(c)(9) and (c)(10) EADs. These noncitizens may find their applications for

immigration relief denied and may be quickly removed from the country, leaving

those injured in traffic accidents exposed to financial harm. Nevertheless, Arizona

issues drivers’ licenses to noncitizens holding (c)(9) and (c)(10) EADs.

Fifth, Defendants contend that denying licenses to DACA recipients serves

the goal of consistently applying ADOT policy. But ADOT inconsistently applies

its own policy by denying licenses to DACA recipients while providing licenses to

holders of (c)(9) and (c)(10) EADs. Arizona simply has no way to know what

“path” noncitizens in any of these categories will eventually take. DACA

recipients appear similar to individuals who are eligible under Arizona’s policy

with respect to all the criteria ADOT relies on. ADOT thus applies its own

immigration classification with an uneven hand by denying licenses only to DACA

recipients. See, e.g., Yick Wo. v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[I]f [the

law] is applied and administered by public authority with an evil eye and an

21 unequal hand, so as practically to make unjust and illegal discriminations between

persons in similar circumstances, material to their rights, the denial of equal justice

is still within the prohibition of the constitution.”).

Sixth, Defendants claim that Arizona’s policy is rationally related to

ADOT’s statutory obligation to administer the state’s driver’s license statute.

ADOT’s disparate treatment of DACA recipients pursuant to the driver’s license

statute relies on the premise that federal law does not authorize DACA recipients’

presence in the United States. This rationale is essentially an assertion of the

state’s authority to decide whether immigrants’ presence is authorized under

federal law. Rather than evaluating that assertion as part of the Equal Protection

analysis, we defer doing so until our discussion of our ultimate, preemption ground

for decision, which we adopt as part of our constitutional avoidance approach.

Before proceeding to that discussion, it bears noting, once again, see ADAC

II, 757 F.3d at 1067, that the record does suggest an additional reason for

Arizona’s policy: a dogged animus against DACA recipients. The Supreme Court

has made very clear that such animus cannot constitute a legitimate state interest,

and has cautioned against sowing the seeds of prejudice. See Romer v. Evans, 517

U.S. 620, 634 (1996); see also City of Cleburne, 473 U.S. at 464 (Marshall, J.,

concurring in the judgment in part, and dissenting in part) (“Prejudice, once let

22 loose, is not easily cabined.”). “The Constitution’s guarantee of equality must at

the very least mean that a bare . . . desire to harm a politically unpopular group

cannot justify disparate treatment of that group.” United States v. Windsor, 133 S.

Ct. 2675, 2681 (2013) (citation omitted).

II. Preemption

We do not “decide federal constitutional questions where a dispositive

nonconstitutional ground is available.” City of L.A. v. Cty. of Kern, 581 F.3d 841,

846 (9th Cir. 2009) (quoting Correa v. Clayton, 563 F. 2d 396, 400 (9th Cir.

1977)). While preemption derives its force from the Supremacy Clause of the

Constitution, “it is treated as ‘statutory’ for purposes of our practice of deciding

statutory claims first to avoid unnecessary constitutional adjudications.” Douglas

v. Seacoast Prods., 431 U.S. 265, 271–72 (1977).5 Given the formidable Equal

Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an

5 Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance. See Hotel Emps. & Rest. Emps. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1512 (9th Cir. 1993) (holding that Pullman abstention was not warranted for preemption claims because “preemption is not a constitutional issue.”); Knudsen Corp. v. Nev. State Dairy Comm’n, 676 F.2d 374, 377 (9th Cir. 1982) (same).

23 alternative to resting our decision on the Equal Protection Clause.6 Doing so, we

conclude that Arizona’s policy encroaches on the exclusive federal authority to

create immigration classifications and so is displaced by the INA.

The “[p]ower to regulate immigration is unquestionably exclusively a

federal power.” DeCanas, 424 U.S. at 354. The Supreme Court’s immigration

jurisprudence recognizes that the occupation of a regulatory field may be “inferred

from a framework of regulation ‘so pervasive . . . that Congress left no room for

the States to supplement it.’” Arizona, 132 S. Ct. at 2501 (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). The Supreme Court has also indicated

that the INA provides a pervasive framework with regard to the admission,

removal, and presence of aliens. See Chamber of Commerce of U.S. v. Whiting,

131 S. Ct. 1968, 1973 (2011) (quoting DeCanas, 424 U.S. at 353, 359); cf.

6 In their opening brief, Defendants argue preemption is not properly before this court because Plaintiffs did not appeal the district court’s dismissal of their preemption claim. But at oral argument, defense counsel offered to provide supplemental briefing on the issue. Separately, Plaintiffs noted that Defendants raised the Take Care argument for the first time on appeal and argued it ought not be considered because it was not presented to the district court. Following oral argument, we requested and the parties submitted supplemental briefing on both issues. Defendants’ supplemental brief conceded that, in light of the considerations articulated in Olympia Pipe Line Co. v. City of Seattle, 437 F.3d 872 (9th Cir. 2006), we may properly consider preemption in this case.

24 Arizona, 132 S. Ct. at 2499 (“Federal governance of immigration and alien status is

extensive and complex.”).

To be sure, not all state regulations touching on immigration are preempted.

See Chamber of Commerce, 131 S. Ct. at 1974. But states may not directly

regulate immigration. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir.

2013). In particular, the power to classify aliens for immigration purposes is

“committed to the political branches of the Federal Government.” Plyler, 457 U.S.

at 225 (quoting Mathews, 426 U.S. at 81). “The States enjoy no power with

respect to the classification of aliens.” Plyler, 457 U.S. at 225. Because Arizona

created a new immigration classification when it adopted its policy regarding

driver’s license eligibility, it impermissibly strayed into the exclusive domain of

the INA.

States can regulate areas of traditional state concern that might impact

noncitizens. See DeCanas, 424 U.S. at 355. Permissible state regulations include

those that mirror federal objectives and incorporate federal immigration

classifications. Plyler, 457 U.S. at 225–26. But a law that regulates an area of

traditional state concern can still effect an impermissible regulation of

immigration. principles foreclosed a state policy concerning the imposition of tuition charges

and fees at a state university on the basis of immigration status. 458 U.S. 1, 16–17

(1982). Similarly, the Third Circuit has held that municipal ordinances preventing

unauthorized aliens from renting housing constituted an impermissible regulation

of immigration and were preempted by the INA. Lozano v. City of Hazleton, 724

F.3d 297, 317 (3d Cir. 2013) (emphasis added). Although the housing ordinances

did not directly regulate immigration in the sense of dictating who could or could

not be admitted into the United States, the Third Circuit concluded that they

impermissibly “intrude[d] on the regulation of residency and presence of aliens in

the United States.” Id. (emphasis added).

Similarly, the Fifth Circuit has held that an ordinance “allow[ing] state

courts to assess the legality of a non-citizen’s presence” in the United States was

preempted because it “open[ed] the door to conflicting state and federal rulings on

the question.” Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d

524, 536 (5th Cir. 2013). The Fifth Circuit’s decision was based on its recognition

that “[t]he federal government alone . . . has the power to classify non-citizens.”

Id. In accord with these decisions, the Eleventh Circuit held that a state law

prohibiting courts from recognizing contracts involving unlawfully present aliens

26 was preempted as “a thinly veiled attempt to regulate immigration under the guise

of contract law.” See United States v. Alabama, 691 F.3d 1269, 1292–96 (11th

Cir. 2012).

Here, Arizona’s policy ostensibly regulates the issuance of drivers’ licenses,

admittedly an area of traditional state concern. See Chamber of Commerce, 131 S.

Ct. at 1983. But its policy necessarily “embodies the State’s independent judgment

that recipients of [DACA] are not ‘authorized’ to be present in the United States

‘under federal law.’” ADAC II, 757 F.3d at 1069 (Christen, J., concurring).

Indeed, the Arizona Executive Order declared that “the Deferred Action program

does not and cannot confer lawful or authorized . . . presence upon the unlawful

alien applicants.” Executive Order 2012–06 at 1. The Order also announced

Arizona’s view that “[t]he issuance of Deferred Action or Deferred Action . . .

[EADs] to unlawfully present aliens does not confer upon them any lawful or

authorized status.” Id. (emphasis added). To implement the Order, ADOT

initiated a policy of denying licenses to DACA recipients pursuant to Arizona’s

driver’s license statute, which requires that applicants “submit proof satisfactory to

the department that the applicant’s presence in the United States is authorized

under federal law.” Ariz. Rev. Stat. Ann. § 28–3153(D) (emphasis added).

27 Arizona points to three criteria to justify treating EAD recipients differently

than individuals with (c)(9) and (c)(10) EADs,7 even though the federal

government treats their EADs the same in all relevant respects. But Arizona’s

three criteria—that an applicant: has formal status; is on a path to formal status; or

has applied for relief expressly provided for in the INA—cannot be equated with

“authorized presence” under federal law. 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.

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.8 Arizona engages in this

7 As we have noted, recipients of (c)(9) and (c)(10) documents are noncitizens who have applied for adjustment of status and cancellation of removal, respectively. See 8 C.F.R. § 274a.12(c)(9)–(10). 8 Defendants’ continual insistence that Arizona’s policy is not preempted because the DACA program lacks “the force of law” reflects a misunderstanding of the preemption question. Preemption is not a gladiatorial contest that pits the DACA Memorandum against Arizona’s policy. Rather, Arizona’s policy is (continued...)

28 “exercise of regulatory bricolage,” ADAC II, 757 F.3d at 1072 (Christen, J.,

concurring), despite the fact that “States enjoy no power with respect to the

classification of aliens,” Plyler, 457 U.S. at 225.

That this case involves classes of aliens the Executive has, as a matter of

discretion, placed in a low priority category for removal is a further consideration

weighing against the validity of Arizona’s policy. The Supreme Court has

emphasized that “[a] principal feature of the removal system is the broad discretion

exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. And the Court

has specifically recognized that federal statutes contemplate and protect the

discretion of the Executive Branch when making determinations concerning

deferred action. See Reno, 525 U.S. at 484–86. The discretion built into statutory

removal procedures suggests that auxiliary state regulations regarding the presence

of aliens in the United States are particularly intrusive on the overall federal

statutory immigration scheme.

8 (...continued) preempted by the supremacy of federal authority under the INA to create immigration categories. Additionally, because Arizona’s novel classification scheme includes not just DACA recipients but also recipients of regular deferred action and deferred enforced departure, our conclusion that Arizona’s scheme impermissibly creates immigration classifications not found in federal law is not dependent upon the continued vitality of the DACA program.

29 Unable to point to any federal statute or regulation that justifies classifying

individuals with (c)(9) and (c)(10) EADs as authorized to be present while

excluding recipients of deferred action or deferred enforced departure, Defendants

argue that Arizona properly relied on statements by the U.S. Citizenship and

Immigration Service that “make clear that deferred action does not confer a lawful

immigration status.” These statements take the form of an email from a local U.S.

Citizenship and Immigration Service Community Relations Officer in response to

an inquiry from ADOT. In the email, the officer notes that DACA recipients

applying for work authorization should fill in category “C33” and not category

“C14,” which is the category for regular deferred action.

This email does nothing to further Defendants’ argument. The officer’s

statement in no way suggests that federal law supports Arizona’s novel

classifications. And even if it did, an email from a local U.S. Citizenship and

Immigration Services Officer is not a source of “federal law,” nor an official

statement of the government’s position.9

9 In ADAC II, Defendants also argued that a “Frequently Asked Questions” section of the U.S. Citizenship and Immigration Services Website and a Congressional Research Service Memorandum demonstrated that Arizona’s classification found support in federal law. See 757 F.3d at 1073. We understand Defendants to have abandoned these arguments. But even if they had not, neither source is a definitive statement of federal law.

30 The INA, indeed, directly undermines Arizona’s novel classifications. For

purposes of determining the admissibility of aliens other than those lawfully

admitted for permanent residence, the INA states that if an alien is present in the

United States beyond a “period of stay authorized by the Attorney General” or

without being admitted or paroled, the alien is “deemed to be unlawfully present in

the United States.” INA § 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B)(ii) (emphases

added). The administrative regulations implementing this section of the INA, to

which we owe deference, establish that deferred action recipients do not accrue

“unlawful presence” for purposes of calculating when they may seek admission to

the United States. 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2). Because

such recipients are present without being admitted or paroled, their stay must be

considered “authorized by the Attorney General,” for purposes of this statute. INA

§ 212(a)(9)(B)(ii); 8 U.S.C. § 1182(a)(9)(B).

The REAL ID Act, which amended the INA, further undermines Arizona’s

interpretation of “authorized presence.” REAL ID Act of 2005, Pub. L. No. 109-

13, div. B, 119 Stat. 231. The Real ID Act amendments provide that states may

issue a driver’s license or identification card to persons who can demonstrate they

are “authorized [to] stay in the United States.” Id. § 202(c)(2)(C)(i)–(ii). Persons

with “approved deferred action status” are expressly identified as being present in

31 the United States during a “period of authorized stay,” for the purpose of issuing

state identification cards. Id. § 202(c)(2)(B)(viii), (C)(ii).

Despite Arizona’s clear departure from federal immigration classifications,

Defendants argue Arizona’s policy is not a “back-door regulation of immigration.”

They compare it to the Louisiana Supreme Court policy the Fifth Circuit upheld in

LeClerc v. Webb, which prohibited any alien lacking permanent resident status

from joining the state bar. 419 F.3d 405, 410 (5th Cir. 2005). But the Louisiana

Supreme Court did not create a novel immigration classification as Arizona does

here. Rather, it permissibly borrowed from existing federal classifications,

distinguishing “those aliens who have attained permanent resident status in the

United States” from those who have not. Id. (quoting In re Bourke, 819 So. 2d

1020, 1022 (La. 2002)).

Defendants also argue that sections of the INA granting states discretion to

provide public benefits to certain aliens, including deferred action recipients,

suggest that Congress “has not intended to occupy a field so vast that it precludes

all state regulations that touch upon immigration.” See 8 U.S.C. §§ 1621, 1622.

But we do not conclude that Congress has preempted all state regulations that

touch upon immigration. Arizona’s policy is preempted not because it denies state

32 benefits to aliens, but because the classification it uses to determine which aliens

receive benefits does not mirror federal law.

In sum, Defendants offer no foundation for an interpretation of federal law

that classifies individuals with (c)(9) and (c)(10) EADs as having “authorized

presence,” but not DACA recipients. Arizona’s policy of denying drivers’ licenses

to DACA recipients based on its own notion of “authorized presence” is preempted

by the exclusive authority of the federal government under the INA to classify

noncitizens.

III. Constitutionality of the DACA Program

We decline to rule on the constitutionality of the DACA program, as the

issue is not properly before our court; only the lawfulness of Arizona’s policy is in

question.

We note, however, that the discussion above is quite pertinent to both of

Defendants’ primary arguments undergirding their challenge to the

constitutionality of the DACA program. First, Defendants argue that the Executive

has no power, independent of Congress, to enact the DACA program. But as we

have discussed, the INA is replete with provisions that confer prosecutorial

discretion on the Executive to establish its own enforcement priorities. See supra,

section II. Third parties generally may not contest the exercise of this discretion,

33 see Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), including in the

immigration context, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984).10

Second, Defendants contend that the DACA program amounts to a

wholesale suspension of the INA’s provisions, which in turn violates the

President’s obligation to “take Care that the Laws be faithfully executed.” U.S.

Const. art. II, § 3 (“the Take Care Clause”). But, according to an amicus brief filed

by the Department of Justice, the Department of Homeland Security only has

funding annually to remove a few hundred thousand of the 11.3 million

undocumented aliens living in the United States. Constrained by these limited

resources, the Department of Homeland Security must make difficult decisions

about whom to prioritize for removal. Despite Defendants’ protestations, they

10 Congress’s failure to pass the Development, Relief, and Education for Alien Minors (“DREAM”) Act does not signal the illegitimacy of the DACA program. The Supreme Court has admonished that an unenacted bill is not a reliable indicator of Congressional intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969). Moreover, the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief (i.e., the DREAM Act would have granted conditional residency that could lead to permanent residency, whereas the DACA program offers a more limited, temporary deferral of removal).

34 have not shown that the Department of Homeland Security failed to comply with

its responsibilities to the extent its resources permit it to do so.11

For that reason, this case is nothing like Train v. City of New York, a case

relied upon by Defendants, in which the Supreme Court affirmed an order directing

a presidential administration to spend money allocated by Congress for certain

projects. 420 U.S. 35, 40 (1975). Here, by contrast, the Department of Justice

asserts that Congress has not appropriated sufficient funds to remove all 11.3

million undocumented aliens, and several prior administrations have adopted

programs, like DACA, to prioritize which noncitizens to remove. See supra n.2.

“The power to decide when to investigate, and when to prosecute, lies at the core

of the Executive’s duty to see to the faithful execution of the laws . . . .” Cmty. for

Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see

Arpaio v. Obama, 797 F.3d 11, 18 (D.C. Cir. 2015).

11 Indeed, the Department of Justice’s brief reports that the administration has removed approximately 2.4 million noncitizens from the country from 2009 to 2014, a number the government states is “unprecedented.” Prioritizing those removal proceedings for noncitizens who represent a threat to “national security, border security, and public safety,” Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (November 20, 2014), cannot fairly be described as abdicating the agency’s responsibilities.

35 Further, as we have noted, the Supreme Court has acknowledged the history

of the Executive engaging in a regular practice of prosecutorial discretion in

enforcing the INA. See Reno, 525 U.S. at 483–84 & n.8 (“To ameliorate a harsh

and unjust outcome, the INS may decline to institute proceedings, terminate

proceedings, or decline to execute a final order of deportation. This commendable

exercise in administrative discretion, . . . is now designated as deferred action.”

(quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and

Procedure § 72.03 [2][h] (1998))). This history includes “general policy” non-

enforcement, such as deferred action granted to foreign students affected by

Hurricane Katrina, U.S. Citizenship and Immigration Services, Interim Relief for

Certain Foreign Academic Students Adversely Affected by Hurricane Katrina:

Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005), and deferred action for

certain widows and widowers of U.S. citizens, Memorandum for Field Leadership,

U.S. Citizenship and Immigration Services, from Donald Neufeld, Acting

Associate Director, U.S. Citizenship and Immigration Services, “Guidance

Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children” at 1

(Sept. 4, 2009).12

12 The recent ruling in Texas v. United States, 809 F.3d 134 (5th Cir. 2015) petition for cert. granted sub nom. United States v. Texas, — S. Ct. — , 2016 WL (continued...)

36 We reiterate that, in the end, Arizona’s policy is preempted not because the

DACA program is or is not valid, but because the policy usurps the authority of the

federal government to create immigrant classifications.

IV. Permanent Injunction

Before a court may grant a permanent injunction, the plaintiff must satisfy a

four-factor test, demonstrating:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 141 (2010) (quoting eBay

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

Plaintiffs have proven that they suffer irreparable injury as a result of

Arizona’s policy, and that remedies available at law are inadequate to compensate

them for that injury. In particular, Plaintiffs have demonstrated that their inability

12 (...continued) 207257 (U.S. Nov. 20, 2015) (mem.), is also inapposite to Defendants’ constitutional claims. There, several states challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), including DAPA recipients’ eligibility for certain public benefits such as drivers’ licenses and work authorization. Id. at 149. The court concluded that the states were likely to succeed on their procedural and substantive claims under the Administrative Procedure Act, and expressly declined to reach the Take Care Clause issue. Id. at 146 & n.3, 149.

37 to obtain drivers’ licenses limits their professional opportunities. In Arizona, it

takes an average of over four times as long to commute to work by public transit

than it does by driving, and public transportation is not available in most localities.

One ADAC member had to miss full days of work so that she could take her son to

his doctors’ appointments by bus. Another ADAC member finishes work after

midnight but the buses by her workplace stop running at 9 p.m. And as the district

court noted, another Plaintiff is a graphic designer whose inability to obtain a

driver’s license caused her to decline work from clients, while yet another Plaintiff

wants to pursue a career as an Emergency Medical Technician but is unable to do

so because the local fire department requires a driver’s license for employment.

ADAC III, 81 F. Supp. 3d at 809.

Plaintiffs’ inability to obtain drivers’ licenses hinders them in pursuing new

jobs, attending work, advancing their careers, and developing business

opportunities. They thus suffer financial harm and significant opportunity costs.

And as we have previously found, the irreparable nature of this injury is

exacerbated by Plaintiffs’ young age and fragile socioeconomic status. ADAC II,

757 F.3d at 1068. Setbacks early in their careers can have significant impacts on

Plaintiffs’ future professions. Id. This loss of opportunity to pursue one’s chosen

profession constitutes irreparable harm. Enyart v. Nat’l Conference of Bar

38 Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011); see also Chalk v. U.S. Dist. Ct.

Cent. Dist. of Cal., 840 F.2d 701, 709–10 (9th Cir. 1988) (holding that plaintiff’s

transfer to a less satisfying job created emotional injury that constituted irreparable

harm). Since irreparable harm is traditionally defined as harm for which there is

no adequate legal remedy, such as an award of damages, see Rent-A-Ctr., Inc. v.

Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991),

Plaintiffs have also shown that remedies available at law are inadequate to

compensate them.

Plaintiffs have also demonstrated that, after considering the balance of

hardships, a remedy in equity is warranted and that the public interest would not be

disserved by a permanent injunction. We conclude that Arizona’s policy is

preempted by federal law. “[I]t is clear that it would not be equitable or in the

public’s interest to allow the state to violate the requirements of federal law,

especially when there are no adequate remedies available.” Valle del Sol, 732 F.3d

at 1029 (quoting Arizona, 641 F.3d at 366) (alterations omitted). The public

interest and the balance of the equities favor “prevent[ing] the violation of a party’s

constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

(citation omitted).

CONCLUSION

39 In sum, we find that DACA recipients are similarly situated in all relevant

respects to other noncitizens eligible for drivers’ licenses under Arizona’s policy.

And Arizona’s refusal to rely on EADs from DACA recipients for purposes of

establishing eligibility for drivers’ licenses may well violate the Equal Protection

Clause for lack of a rational governmental interest justifying the distinction relied

upon. Invoking the constitutional avoidance doctrine, we construe the INA as

occupying the field of Arizona’s classification of noncitizens with regard to

whether their presence is authorized by federal law, and as therefore preempting

states from engaging in their very own categorization of immigrants for the

purpose of denying some of them drivers’ licenses. Plaintiffs have shown that they

suffer irreparable harm from Arizona’s policy and that remedies at law are

inadequate to compensate for that harm. Plaintiffs have also shown that a remedy

in equity is warranted and that the public interest would not be disserved by a

permanent injunction.

Accordingly, we AFFIRM the district court’s grant of summary judgment in

favor of Plaintiffs. We also AFFIRM the district court’s order entering a

permanent injunction that enjoins Arizona’s policy of denying the EADs issued

under the DACA program as satisfactory proof of authorized presence under

federal law in the United States.

40

AFFIRMED.

41

COUNSEL

Karen Tumlin (argued), Shiu-Ming Cheer, Nicholas Espiritu, Linton Joaquin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA; Tanya Broder, National Immigration Law Center, Oakland, CA; Jorge Martin Castillo and Victor Viramontes, Mexican American Legal Defense Educational Fund, Los Angeles, CA; Rodkangyil Danjuma, ACLU Foundation of Northern California, San Francisco, CA; Lee Gelernt and Michael K.T. Tan, American Civil Liberties Union, New York, NY; James Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix, AZ; Jennifer C. Newell and Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, CA; Kelly Flood, ASU Alumni Law Group, Phoenix, AZ, for Plaintiffs-Appellees.

Dominic Draye (argued) and John Robert Lopez, IV, Arizona Attorney General’s Office, Phoenix, AZ; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, AZ, for Defendants-Appellants.

Dale Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform Law Institute.

Lindsey Powell, Washington D.C. for Amicus Curiae United States of America.

42