Arizona Dream Act Coalition v. JANICE K. BREWER, Governor of the State of Arizona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA DREAM ACT COALITION;
CHRISTIAN JACOBO; ALEJANDRA
LOPEZ; ARIEL MARTINEZ; NATALIA
PEREZ-GALLEGOS; CARLA
CHAVARRIA; JOSE RICARDO
HINOJOS,
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.
No. 15-15307
D.C. No.
2:12-cv-02546-
DGC
OPINION
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

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ARIZ. DREAM ACT COAL. V. BREWER 2
Filed April 5, 2016
Before: Harry Pregerson, Marsha S. Berzon,
and Morgan Christen, Circuit Judges.
Opinion by Judge Pregerson
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of plaintiffs and affirmed the district court’s order
entering a permanent injunction that enjoins Arizona’s policy
of denying Employment Authorization Documents issued
under the Deferred Action for Childhood Arrivals program as
satisfactory proof of authorized presence under federal law in
the United States.
Plaintiffs are five individual recipients of deferred action
under the Deferred Action for Childhood Arrivals (“DACA”)
program, and the Arizona DREAM Act Coalition. 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. In response to the creation of
the DACA program, defendants, including the Arizona
Governor and the Director for the Arizona Department of
Transportation, instituted a policy that rejected the
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ARIZ. DREAM ACT COAL. V. BREWER 3
Employment Authorization Documents issued to DACA
recipients under the DACA program as proof of their
authorized presence for the purpose of obtaining a driver’s
license.
The panel found that DACA recipients are similarly
situated in all relevant respects to other noncitizens eligible
for drivers’ licenses under Arizona’s policy. The panel found
that Arizona’s refusal to rely on Employment Authorization
Documents 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.
The panel, however, applied constitutional avoidance and
found that it could reach the same result on the ground that
the Immigration and Nationality Act occupies the field of
Arizona’s classification of noncitizens with regard to whether
their presence is authorized by federal law. The panel
concluded that the Immigration and Nationality Act preempts
states from engaging in their very own categorization of
immigrants for the purpose of denying some of them drivers’
licenses. The panel further held that plaintiffs had shown that
they suffered irreparable harm from Arizona’s policy and that
remedies at law were inadequate to compensate for that harm.
The panel held that plaintiffs had also shown that a remedy in
equity was warranted and that the public interest would not be
disserved by a permanent injunction.

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ARIZ. DREAM ACT COAL. V. BREWER 4
COUNSEL
Dominic Draye (argued) and John Robert Lopez, IV, Arizona
Attorney General’s Office, Phoenix, Arizona; Timothy Berg,
Sean Hood, and Douglas C. Northup, Fennemore Craig P.C.,
Phoenix, Arizona, for Defendants-Appellants.
Karen Tumlin (argued), Shiu-Ming Cheer, Nicholás Espíritu,
Linton Joaquin, and Nora A. Preciado, National Immigration
Law Center, Los Angeles, California; Tanya Broder, National
Immigration Law Center, Oakland, California; Jorge Martin
Castillo and Victor Viramontes, Mexican American Legal
Defense Educational Fund, Los Angeles, California; Lee
Gelernt and Michael K.T. Tan, American Civil Liberties
Union Foundation Immigrants’ Rights Project, New York,
New York; James Lyall and Daniel J. Pochoda, ACLU of
Arizona, Phoenix, Arizona; Jennifer C. Newell and Cecillia
D. Wang, American Civil Liberties Union Foundation
Immigrants’ Rights Project, San Francisco, California, for
Plaintiffs-Appellees.
Dale Wilcox, Washington, D.C., as and for Amicus Curiae
Immigration Reform Law Institute.
Lindsey Powell, United States Department of Justice,
Washington D.C., for Amicus Curiae United States of
America.

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ARIZ. DREAM ACT COAL. V. BREWER 5
OPINION
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 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

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ARIZ. DREAM ACT COAL. V. BREWER 6
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 (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.

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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, 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

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ARIZ. DREAM ACT COAL. V. BREWER 8
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 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

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ARIZ. DREAM ACT COAL. V. BREWER 9
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 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 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.”

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ARIZ. DREAM ACT COAL. V. BREWER 10
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 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

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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 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

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ARIZ. DREAM ACT COAL. V. BREWER 12
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 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.

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ARIZ. DREAM ACT COAL. V. BREWER 13
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 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 drivers’ licenses purposes.

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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.
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);

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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
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
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”
(November 20, 2014).

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ARIZ. DREAM ACT COAL. V. BREWER 16
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 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
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-departure.

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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.
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

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ARIZ. DREAM ACT COAL. V. BREWER 18
by the INA, pursuant to the prosecutorial discretion
statutorily delegated to the Executive.
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 sufficiently strong to trigger
the constitutional avoidance doctrine we ultimately invoke.
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.

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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).
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

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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.
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
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.

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ARIZ. DREAM ACT COAL. V. BREWER 21
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 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

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ARIZ. DREAM ACT COAL. V. BREWER 22
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 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
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).

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ARIZ. DREAM ACT COAL. V. BREWER 23
analysis as an 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. 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,
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.

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ARIZ. DREAM ACT COAL. V. BREWER 24
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.
For example, in Toll v. Moreno, the Supreme Court held
that preemption 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

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ARIZ. DREAM ACT COAL. V. BREWER 25
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 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

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ARIZ. DREAM ACT COAL. V. BREWER 26
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).
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
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

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ARIZ. DREAM ACT COAL. V. BREWER 27
in this “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.
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
policy. Rather, Arizona’s policy is 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.

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ARIZ. DREAM ACT COAL. V. BREWER 28
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
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
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.

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ARIZ. DREAM ACT COAL. V. BREWER 29
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 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)).

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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
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

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Executive to establish its own enforcement priorities. See
supra, section II. Third parties generally may not contest the
exercise of this discretion, 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 have not
shown that the Department of Homeland Security failed to
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).

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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).
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
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.

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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
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.
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 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.

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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 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

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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 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

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ARIZ. DREAM ACT COAL. V. BREWER 36
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
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

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ARIZ. DREAM ACT COAL. V. BREWER 37
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.
AFFIRMED.

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