Interestingly, the Court struck down the law on equal protec tion grounds rather than conflict-preemption. Generally, courts use preemption analysis to strike down a conflicting state law acting to regulate immigration. In a concurrence, Circuit Court Judge Christen analyzed the case’s conflict-preemption argument and found that Arizona’s policy effectively created a new class of noncitizens who are not under “authorized presence” – a descriptor not recognized in immigration law.
The act of creating a new immigration classification, in Judge Christen’s view, is preempted by federal law because states may not directly regulate immigration. Id. at *13, citing Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014). Moreover, in footnote 3, the Court notes that Judges Pregerson and Berzon agree with the concurring opinion, and specifically that the plaintiffs in the case could succeed on a conflict preemption argument.
Here, however, the Court’s majority analyzed Arizona’s law from an equal protection perspective, which gives it lasting and powerful impact. By going this route, the 9th Circuit recognized DACA recipients to be part of a protected class. This can have huge implications for any other state laws that purport to discriminate against this now recognized protected class of noncitizens.
Moreover, the Court, in footnote 4, acknowledged that the Supreme Court in other cases applied strict scrutiny standard of review when state action discriminates against noncitizens authorized to be present in the U.S., see e.g. Graham v. Richardson, 403 U.S. 365 (1971). But here, the Court states it did not have to analyze under strict scrutiny review because Arizona could not even make its case under the lower rational basis test. In its analysis the Court found it could “identify no legitimate state interest that is rationally related to Defendant’s decision to treat DACA recipients disparately from noncitizens holding (c) (9) and (c) (10) Employment Authorization Documents” Arizona Dream Act Coalition at *8. (Emphasis added).
It is also worthwhile to note that, unlike the Arizona district court which also held that the Arizona government’s arguments failed a rational basis review, the 9th Circuit found that the protected class, here the DACA recipients, would likely suffer irreparable harm in the absence of a preliminary injunction.
The irreparable harm was the limiting of the DACA recipients’ professional opportunities, hurting their abilities to seek or maintain a job in a state where 87 percent of its workers commute by car.
The decision lays bare the type of backlash that occurred after the Obama administration introduced DACA. Conservative pundits and anti-immigration groups believe that these young people should receive no acknowledgement or benefits from a country to which they do not belong.
This type of thinking is not only wrong, but it fuels hatred toward a group that, for all intents and purposes, took no part in the decision to enter the U.S. without inspection or to overstay visas.
The point of the DACA policy is to respond to the cries from millions of young immigrants brought into the U.S. as children, who have grown up in the U.S., but who are forced to stay in hiding. They are punished for someone else’s sins.
I have personally processed over 100 DACA applications in the past two years. When talking to these young immigrants and their families, it is often impossible to tell apart the individuals who were born here and the ones who were brought here. DACA requestors speak like Americans, look like Americans, and dream the American dream like native-born Americans.
It is hard to put into words the unfairness of their lives: to live in a country that is oftentimes the only one they have known, and yet to be denied full recognition and basic equal treatment. Worse, they are called “illegal” and are made to feel unwanted and unwelcome. This treatment is confusing and painful to many of these young people who had no choice about coming to the U.S. Yet they are undoubtedly the future of this country.
They will help shape the U.S. cultural, economic, and political landscape. And we are not doing enough to acknowledge their presence, since they are here to stay, and provide them with the tools to be full active members of American society.
The Obama administration has implemented regulations and executive policies to alleviate some of the pain from long-standing immigration problems that Congress has time and again failed to address.
DACA, for instance, was the Executive’s response to Congress’s failure to pass the DREAM Act in 2010. Recently President Obama spoke out angrily against Congress’s ability to compromise on immigration reform, calling it the reason behind his decision to direct more resources to address the ongoing crisis of unaccompanied children. As has been pointed out on this blog,
(http://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html) , Obama can expand the use of Executive action to confront problems in immigration law while we wait for Congress pass CIR. The Obama administration can do more than just grant deferred action to young immigrants. DHS could grant deferred action to DACA parents. The Department of Education could grant federal student loans to DACA recipients.
Paradoxically, the Obama administration has specifically rendered DACA recipients ineligible for healthcare benefits under the Affordable Care Act even though prior to the August 2013 rule, DACA recipients would have been eligible. There are myriad ways Executive action, such as DACA, can provide relief to millions of immigrants who live and work beside us every day. Until such time that Congress takes action, the Executive will have to be the branch taking action, and immigrants must be content with its limitations.
Because the basis of a deferred action grant is DHS’s policy of prosecutorial discretion, it remains only in the form of executive action and it is not an actual law passed by Congress and signed by the President. DACA and any other executive action are thus vulnerable to attacks from groups and individuals who consider them an overreach by the Obama administration.
These attacks, such as Arizona’s driver’s license law, are often informed by fear and a fundamental misunderstanding of immigration law. Litigation to strike down these anti-immigrant and anti-immigration state laws, which are arguably preempted by federal law, can sometimes take years. Moreover, executive action while necessary in the face of Congressional inaction is limited in scope: it cannot grant visas or permanent residence, which only Congress can do by expanding the eligibility categories for permanent residence.
Meanwhile, immigrants languish in backlogged visa lines, wait months and years for hearings before an immigration judge, face harsh vitriol from anti-immigration groups, and DACA recipients still do not have a way to become fully integrated into American life.
Michelle S. Velasco
Continued from last week
Concluded
