FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ARIZONA DREAM ACT COALITION;             No. 15-15307
CHRISTIAN JACOBO; ALEJANDRA
LOPEZ; ARIEL MARTINEZ; NATALIA             D.C. No.
PEREZ-GALLEGOS; CARLA                   2:12-cv-02546-
CHAVARRIA; JOSE RICARDO                      DGC
HINOJOS,
              Plaintiffs-Appellees,
                                         ORDER AND
                 v.                       AMENDED
                                           OPINION
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
2            ARIZ. DREAM ACT COAL. V. BREWER

                     Filed April 5, 2016
                   Amended February 2, 2017

         Before: Harry Pregerson, Marsha S. Berzon,
            and Morgan Christen, Circuit Judges.

                            Order;
              Dissent to Order by Judge Kozinski;
                 Opinion by Judge Pregerson;
                 Concurrence by Judge Berzon


                           SUMMARY*


                            Civil Rights

    The panel amended its prior opinion filed on April 5,
2016, appearing at 818 F.3d 901 (9th Cir. 2016), denied a
petition for rehearing en banc on behalf of the court, and
ordered that no further petitions for rehearing will be
accepted.

    Dissenting from the denial of rehearing en banc, Judge
Kozinski, joined by Judges O’Scannlain, Bybee, Callahan,
Bea and N.R. Smith, disagreed with the conclusion that
President Obama’s program, created by an executive
memorandum, preempted state law. Judge Kozinski noted
that Congress never approved the deferred-action program,
but rather the President adopted it on his own initiative after
Congress repeatedly declined to pass legislation that would

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            ARIZ. DREAM ACT COAL. V. BREWER                   3

have authorized a similar program. Judge Kozinski stated
that the panel opinion failed to show that Congress evinced a
“clear and manifest purpose” to delegate to the executive
branch the authority to preempt state law. Judge Kozinski
stated that Arizona’s control over its drivers’ licenses was
well within the mainstream of the state’s police power.

    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 enjoined 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. The DACA program, authorized by a federal
executive order, permits recipients to remain in the United
States for some period of time as long as they meet certain
conditions.

    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
4           ARIZ. DREAM ACT COAL. V. BREWER

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. Because Arizona created a new immigration
classification when it adopted its policy regarding driver’s
license eligibility, it impermissibly strayed into an exclusive
domain that Congress, through the Immigration and
Nationality Act, delegated to the executive branch.

    Concurring, in light of the dissent from the denial of
rehearing en banc, Judge Berzon stated that she joined the
panel opinion in full, but wrote separately to emphasize that
the law that has preemptive power over Arizona’s policy is
Congress’ conferral of exclusive authority on the executive
branch to defer removal of individuals who lack legal status
and to authorize them to work while temporarily permitted to
remain.     Additionally, Judge Berzon stated that the
preemption issues ultimately decided in this case could be
viewed as embedded in the equal protection analysis, given
the historical and conceptual overlap between equal
protection and preemption concerns in cases involving state
laws that affect immigrants.


                         COUNSEL

Dominic Draye (argued), Deputy Solicitor General; John
Robert Lopez, IV, Solicitor General; Office of the Attorney
General, Phoenix, Arizona; Timothy Berg, Sean Hood, and
Douglas C. Northup, Fennemore Craig P.C., Phoenix,
Arizona; for Defendants-Appellants.
           ARIZ. DREAM ACT COAL. V. BREWER                5

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, Berkeley, California; Jorge Martin
Castillo and Victor Viramontes, Mexican American Legal
Defense Educational Fund, Los Angeles, California; Lee
Gelernt, 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, Michael K.T. Tan, and Cecillia
D. Wang, American Civil Liberties Union Foundation
Immigrants’ Rights Project, San Francisco, California; for
Plaintiffs-Appellees.

Dale Wilcox and Michael M. Hethmon, 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.

John S. Miles, Jeremiah L. Morgan, William J. Olson, Robert
J. Olson, and Herbert W. Titus, William J. Olson P.C.,
Vienna, Virginia; Michael Connelly, U.S. Justice Foundation,
Ramona, California; for Amici Curiae English First
Foundation, English First, U.S. Justice Foundation, Gun
Owners Foundation, Gun Owners of America, Inc., and
Conservative Legal Defense and Education Fund.
6           ARIZ. DREAM ACT COAL. V. BREWER

                          ORDER

     The court’s opinion filed on April 5, 2016, appearing at
818 F.3d 901 (9th Cir. 2016), is hereby amended. An
amended opinion, including a concurrence by Judge Berzon,
is filed herewith.

    Judges Berzon and Christen voted to deny the petition for
rehearing en banc, and Judge Pregerson so recommended.

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

    The petition for rehearing en banc is DENIED, and no
further petitions for rehearing will be accepted.



Circuit Judge KOZINSKI, with whom Circuit Judges
O’SCANNLAIN, BYBEE, CALLAHAN, BEA and N.R.
SMITH join, dissenting from the denial of rehearing en banc:

    At the crossroads between two presidents, we face a
fundamental question of presidential power. President
Obama created, by executive memorandum, a sweeping new
immigration program that gives the benefit of “deferred
action” to millions of illegal immigrants who came to the
United States before the age of sixteen. Deferred action
confers no formal immigration status; it is simply a
commitment not to deport. Arizona, like many states, does
not issue drivers’ licenses to unauthorized aliens, and
           ARIZ. DREAM ACT COAL. V. BREWER                 7

therefore refuses to issue drivers’ licenses to the program’s
beneficiaries.

    Does the Supremacy Clause nevertheless force Arizona to
issue drivers’ licenses to the recipients of the President’s
largesse? There’s no doubt that Congress can preempt state
law; its power to do so in the field of immigration is
particularly broad. But Congress never approved the
deferred-action program: The President adopted it on his
own initiative after Congress repeatedly declined to pass the
DREAM Act—legislation that would have authorized a
similar program. Undeterred, the panel claims that the
President acted pursuant to authority “delegated to the
executive branch” through the Immigration and
Naturalization Act (INA). Amended op. at 36. According to
the panel, Congress gave the President the general authority
to create a sprawling new program that preempts state law,
even though Congress declined to create the same program.

    This puzzling new preemption theory is at odds with the
Supreme Court’s preemption jurisprudence; it is, instead,
cobbled together out of 35-year-old Equal Protection dicta.
It is a theory that was rejected with bemusement by the
district court, see Ariz. Dream Act Coal. v. Brewer, 945 F.
Supp. 2d 1049, 1057 (D. Ariz. 2013), only to be resurrected
by the panel at the eleventh hour and buried behind a 3,000-
word Equal Protection detour. It’s a theory that puts us
squarely at odds with the Fifth Circuit, which held recently
that “the INA flatly does not permit the [executive]
reclassification of millions of illegal aliens as lawfully
present and thereby make them newly eligible for a host of
federal and state benefits.” Texas v. United States, 809 F.3d
134, 184 (5th Cir. 2015), aff’d by an equally divided court,
136 S. Ct. 2271, 2272 (2016) (per curiam). And it’s a theory
8             ARIZ. DREAM ACT COAL. V. BREWER

that makes no mention of the foundational principle of
preemption law: Historic state powers are not preempted
“unless that was the clear and manifest purpose of Congress.”
Arizona v. United States, 132 S. Ct. 2492, 2501 (2012)
(internal quotation omitted).

    The opinion also buckles under the weight of its own
ambiguities. The panel says repeatedly that Arizona has
created “immigration classifications not found in federal
law.” Amended op. at 40 n.8; see also id. at 43, 49. But
Arizona follows federal law to the letter—that is, all laws
passed by Congress and signed by the President. Thus, when
the panel uses the term “law,” it means something quite
different from what that term normally means: The panel in
effect holds that the enforcement decisions of the President
are federal law. Yet the lawfulness of the President’s policies
is an issue that the panel bends over backward not to reach.
See id. at 44–47. I am at a loss to explain how this cake can
be eaten and yet remain on the plate: The President’s policies
may or may not be “lawful” and may or may not be “law,”
but are nonetheless part of the body of “federal law” that
imposes burdens and obligations on the sovereign states.
While the panel suggests other reasons to doubt Arizona’s
response,1 the opinion’s slippery preemption theory simply


    1
      I have little to say about the panel’s lengthy Equal Protection
discussion. While this Equal Protection excursus eclipses the panel’s terse
and enigmatic discussion of preemption, the panel is nonetheless clear that
“we do not ultimately decide the Equal Protection issue.” Amended op.
at 29. I note, however, that there are serious doubts about the coherence
of the Supreme Court’s Equal Protection jurisprudence as applied to
aliens. See, e.g., Korab v. Fink, 797 F.3d 572, 585 (9th Cir. 2014)
(Bybee, J., concurring) (describing this jurisprudence as “riddled with
exceptions and caveats that make consistent judicial review of alienage
classifications difficult,” and suggesting an approach based solely on
               ARIZ. DREAM ACT COAL. V. BREWER               9

isn’t one of them. See, e.g., Noah Feldman, Obama’s Wobbly
Legal Victory on Immigration, Bloomberg (Apr. 6, 2016)
(describing the panel’s “precarious,” “tricky” and “funky”
reasoning that is “vulnerable to reversal by the Supreme
Court”).

                 *            *              *

    In the summer of 2012, the President directed his officers
not to remove certain illegal immigrants who came to the
United States before age sixteen. The program, Deferred
Action for Childhood Arrivals (DACA), did not clear any of
the normal administrative-law hurdles; the memorandum
announcing the program states that it “confers no substantive
right, immigration status or pathway to citizenship” because
“[o]nly the Congress, acting through its legislative authority,
can confer these rights.” DHS Memorandum, Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children, June 15, 2012.

    Arizona responded with an executive order of its own,
stating, in apparent agreement with the DACA memorandum,
that the new federal program “does not and cannot confer
lawful or authorized status or presence upon the unlawful
alien applicants.” Ariz. Exec. Order 2012-06. Because
Arizona law requires that applicants for a driver’s license
submit proof that their presence is “authorized under federal
law,” Ariz. Rev. Stat. § 28-3153(D)—and DACA “confers no
substantive right [or] immigration status”—Arizona felt
justified withholding licenses from illegal immigrants who
happen to be DACA beneficiaries.             Several DACA



preemption).
10           ARIZ. DREAM ACT COAL. V. BREWER

beneficiaries then sued Arizona, claiming, among other
things, that the state’s policy was preempted.

    The panel agrees, holding that Arizona’s policy “strayed
into an exclusive domain that Congress, through the INA,
delegated to the executive branch.” Amended op. at 36
(emphasis added); see also id. at 28. One might think that the
panel would present especially strong evidence of
congressional delegation, such as an express statement to that
effect. After all, it’s rare enough to find that Congress has
kept an entire field to itself, much less ceded one to the
executive. And the bar that preemption must clear is both
well-established and high: The historic police powers of
states are not preempted “unless that was the clear and
manifest purpose of Congress.” E.g., Arizona, 132 S. Ct. at
2501; Wyeth v. Levine, 555 U.S. 555, 565 (2009); Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996); Cipollone v. Liggett
Grp., Inc., 505 U.S. 504, 516 (1992); Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947).

    The panel doesn’t bother showing that Congress evinced
a “clear and manifest purpose” before forcing the states to
accept immigration classifications invented entirely by the
President. Indeed, the panel’s preemption analysis mentions
only two small provisions of the INA, and this thin statutory
evidence cannot possibly carry the heavy burden of field
preemption.2 The panel first notes that the INA refers to an
alien’s “period of stay authorized by the Attorney General,”


  2
    The panel’s only other analysis of the INA, in its non-precedential
Equal Protection discussion, makes the rather unremarkable point that the
executive branch has responsibility for executing the INA. See amended
op. at 25–28. This does not in any way help establish whether Congress
intended the INA to let the executive branch preempt the states.
              ARIZ. DREAM ACT COAL. V. BREWER                          11

beyond which the alien is “deemed to be unlawfully present
in the United States.” Amended op. at 41–42 (quoting 8
U.S.C. § 1182(a)(9)(B)(ii)). But the panel has now corrected
its opinion to explain that this provision actually
contemplates the executive’s ability to “authorize” a period
of stay only for a tiny subset of aliens—those “previously
removed”—and not, as its original opinion suggested, every
class of immigrant covered by the statute.3

    The panel’s second claim is that the REAL ID Act
identifies deferred-action immigrants “as being present in the
United States during a ‘period of authorized stay,’ for the
purpose of issuing state identification cards.” Amended op.
at 42 (citation omitted). This narrow provision also can’t be
authority for the proposition that the INA “delegated to the
executive branch” the wholesale authority to preempt state
law by declaring immigrants legal when they are not. Nor
does this narrow provision conflict with Arizona’s policy:
The provision actually says that a state “may only issue a
temporary driver’s license or temporary identification card”
to deferred-action immigrants—a limit, not a requirement.
REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2)(C)(i)
(emphasis added).




  3
    Compare Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 916 (9th Cir.
2016) with amended op. at 41–42 (adding “at least for purposes of
§ 1182(a)(9)(B)”). As the string of letters and numbers might suggest,
§ 1182(a)(9)(B) is not a large portion of the INA. This subsection also
offers no support for a second reason: Even if it were true that an
immigrant was “unlawfully present” if he stayed beyond a period
approved by the Attorney General, this doesn’t mean he would be
“lawfully present” if he didn’t stay beyond such a period. In formal logic,
the inverse of a conditional cannot be inferred from the conditional.
12            ARIZ. DREAM ACT COAL. V. BREWER

    Nevertheless, the panel insists that this evidence “directly
undermines” Arizona’s response to DACA. Amended op. at
41. That the panel can trawl the great depths of the
INA—one of our largest and most complex statutes—and
return with this meager catch suggests exactly the opposite
conclusion: The INA evinces a “clear and manifest”
intention not to cede this field to the executive. This is
precisely the conclusion that the Fifth Circuit reached in
Texas v. United States. Our sister circuit held that even if the
President’s policies were of the type to which Chevron
deference was owed—which the circuit assumed only for the
sake of argument—such deference would be unavailable
because “the INA expressly and carefully provides legal
designations allowing defined classes of aliens to be lawfully
present.” See Texas, 809 F.3d at 179. In other words, the
INA has spoken directly to the issue and “flatly does not
permit” executive supplementation like the DACA program.
Id. at 184. If what the panel relies on evinces a “clear and
manifest purpose” to cede a field to the executive, it’s hard to
imagine what statute doesn’t.4

                  *                 *                 *

    Perhaps daunted by the lack of support in the statute it
purports to interpret, the panel turns to Supreme Court
precedent, but it doesn’t fare much better here. The primary
case on which the panel relies, Plyler v. Doe, might contain
some impressive-sounding dicta—“The States enjoy no


  4
   And even if it were undeniably the case that Congress delegated the
power of preemption to the President, I am skeptical that such a statute
would be constitutional. The nondelegation doctrine is still waiting in the
wings. See generally Whitman v. Am. Trucking Assocs., 531 U.S. 457
(2001).
              ARIZ. DREAM ACT COAL. V. BREWER                          13

power with respect to the classification of aliens,” 457 U.S.
202, 225 (1982)—but the reasons to reject this dicta are more
impressive still. As the district court put it when it rebuffed
the Plyler theory of preemption: “Plyler is not a preemption
case.” 945 F. Supp. 2d at 1057. Justice Brennan’s 1982
majority opinion—a 5–4 opinion that garnered three
individual concurrences and has been questioned
continuously since publication—never once mentions
preemption. See 457 U.S. at 205–30.5

    The panel’s search for support in the Supreme Court’s
actual preemption jurisprudence is equally misguided. The
panel quotes De Canas v. Bica for the proposition that the
“[p]ower to regulate immigration is unquestionably
exclusively a federal power.” Amended op. at 34 (quoting
424 U.S. 351, 354 (1976)). But the panel overlooks the very
next sentence of De Canas, which notes that “the Court has
never held that every state enactment which in any way deals
with aliens is a regulation of immigration and thus per se pre-
empted.” 424 U.S. at 355. So what’s “a regulation of
immigration” that would be preempted? The De Canas
opinion tells us a couple of sentences later: It’s “essentially
a determination of who should or should not be admitted into
the country, and the conditions under which a legal entrant
may remain.” Id. Denying a driver’s license is not
tantamount to denying admission to the country.6 Like the

 5
   The case was also wrong ab initio and is due to be reconsidered. See,
e.g., Eugene Volokh, Why Justices May Overrule ‘Plyler’ on Illegal
Aliens, L.A. Daily J., Nov. 28, 1994, at 6 (describing objections to Plyler
and reasons why it may be overruled).
 6
  The more recent cases cited by the panel—Lozano v. City of Hazleton,
724 F.3d 297 (3d Cir. 2013), Villas at Parkside Partners v. City of
Farmers Branch, 726 F.3d 524 (5th Cir. 2013), and United States v.
14            ARIZ. DREAM ACT COAL. V. BREWER

state law upheld in De Canas—which prevented California
businesses from hiring illegal immigrants—Arizona’s control
over its drivers’ licenses is well “within the mainstream of
[the state’s] police power.” Id. at 356.

      Indeed, it’s difficult to imagine a preemption case less
helpful to the panel than De Canas. The De Canas majority
states explicitly that it will “not presume that Congress, in
enacting the INA, intended to oust state authority to regulate
. . . in a manner consistent with pertinent federal laws.” Id. at
357. That uncontroversial proposition simply raises once
more the question the panel works hard to avoid: If Arizona
relies on the categories drawn by the INA, but not those of
the executive branch, why isn’t it operating consistently with
“pertinent federal laws”? The panel never says.

                  *                 *                *

    Instead, we’re left with the enigmatic holding we started
with: Arizona “impermissibly strayed into an exclusive
domain that Congress, through the INA, delegated to the
executive branch.” Amended op. at 36. This conclusion
finds no support in the actual text of the INA. It receives no
help from the Court’s preemption jurisprudence. And it is a
brazen renegotiation of our federal bargain. If states must
accept the complete policy classifications of the INA and also
every immigration decision made by the President, then



Alabama, 691 F.3d 1269 (11th Cir. 2012)—are easily distinguishable for
this reason. They involved what the courts held to be an actual regulation
of immigration—that is, “a determination of who should or should not be
admitted into the country, and the conditions under which a legal entrant
may remain.” 424 U.S. at 355.
              ARIZ. DREAM ACT COAL. V. BREWER                          15

we’ve just found ourselves in a world where the President
really can preempt state laws with the stroke of a pen.

    The Constitution gives us a balance where federal laws
“shall be the supreme law of the land,” but powers not
delegated to the federal government “are reserved to the
states.” U.S. Const., art. VI cl. 2; id. amend. X. The political
branches of the federal government must act together to
overcome state laws. Unison gives us clarity about what
federal law consists of and when state law is subordinated.
The vast power to set aside the laws of the sovereign states
cannot be exercised by the President acting alone, with his
power at its “lowest ebb.” Cf. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring).7

    Presidential power can turn on and off like a spigot; what
our outgoing President has done may be undone by our
incoming President acting on his own. The judiciary might
find itself, after years of litigation over a President’s policy,
faced with a change in administration and a case on the verge
of mootness.8 And our precedent may long outlive the
DACA program: We may soon find ourselves with new
conflicts between the President and the states. See, e.g.,


  7
    We are not in the “zone of twilight,” Youngstown, 343 U.S. at 637,
where the distribution of presidential and congressional power is
uncertain. Congress has repeatedly declined to act—refusing time and
time again to pass the DREAM Act—so the President is flying solo.
 8
   Mootness concerns aren’t theoretical. In Texas v. United States—the
direct challenge to the Obama Administration’s immigration policies over
which the Supreme Court split 4–4—the parties filed a joint motion to stay
the merits proceedings until one month after the presidential inauguration.
See Joint Motion to Stay, No. 1:14-cv-00254, Doc. 430 (Nov. 18, 2016).
16          ARIZ. DREAM ACT COAL. V. BREWER

California and Trump Are on a Collision Course Over
Immigrants Here Illegally, L.A. Times, Nov. 11, 2016; Cities
Vow to Fight Trump on Immigration, Even if They Lose
Millions, N.Y. Times, Nov. 27, 2016.

    These looming conflicts should serve as a stark reminder:
Executive power favors the party, or perhaps simply the
person, who wields it. That power is the forbidden fruit of
our politics, irresistible to those who possess it and reviled by
those who don’t. Clear and stable structural rules are the
bulwark against that power, which shifts with the sudden
vagaries of our politics. In its haste to find a doctrine that can
protect the policies of the present, our circuit should
remember the old warning: May all your dreams come true.



                          OPINION

PREGERSON, Senior 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
            ARIZ. DREAM ACT COAL. V. BREWER                  17

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
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.,
18         ARIZ. DREAM ACT COAL. V. BREWER

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 granting summary judgment and entry of a
permanent injunction, on the basis that Arizona’s policy is
preempted by the exclusive authority of the federal
government to classify noncitizens. See Weiser v. United
States, 959 F.2d 146, 147 (9th Cir. 1992) (“[This court] can
affirm the district court on any grounds supported by the
record.”).

              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
           ARIZ. DREAM ACT COAL. V. BREWER                 19

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 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
20          ARIZ. DREAM ACT COAL. V. BREWER

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 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).
            ARIZ. DREAM ACT COAL. V. BREWER                 21

    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.”

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.
22          ARIZ. DREAM ACT COAL. V. BREWER

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
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
            ARIZ. DREAM ACT COAL. V. BREWER                   23

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 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
24          ARIZ. DREAM ACT COAL. V. BREWER

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 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
            ARIZ. DREAM ACT COAL. V. BREWER                   25

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

     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);
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
             ARIZ. DREAM ACT COAL. V. BREWER                         27

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




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

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.

    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

  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.
           ARIZ. DREAM ACT COAL. V. BREWER                29

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.

    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,
30            ARIZ. DREAM ACT COAL. V. BREWER

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.

    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.




     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.
              ARIZ. DREAM ACT COAL. V. BREWER                            31

    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
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


  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.
32          ARIZ. DREAM ACT COAL. V. BREWER

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
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.”).
            ARIZ. DREAM ACT COAL. V. BREWER                   33

    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 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
34            ARIZ. DREAM ACT COAL. V. BREWER

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 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.

 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).
     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.
            ARIZ. DREAM ACT COAL. V. BREWER                   35

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.”).

    Traditionally, federal law preempts state law when:
(1) Congress expressly includes a preemption provision in
federal law; (2) states attempt to “regulat[e] conduct in a field
that Congress, acting within its proper authority, has
determined must be regulated by its exclusive governance”;
or (3) state law conflicts with federal law, either because
“compliance with both federal and state regulations is a
physical impossibility” or “state law ‘stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.” Arizona v. United States, 132 S. Ct.
2492, 2501 (2012) (quoting Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963), and
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

    “The States enjoy no power with respect to the
classification of aliens.” Plyler v. Doe, 457 U.S. 202, 225
(1982). The Supreme Court has also expressly recognized
that the source of preemption in the immigration context is
unique. The “[f]ederal authority to regulate the status of
aliens derives” not from one specific federal law or network
36          ARIZ. DREAM ACT COAL. V. BREWER

of laws, but “from various sources, including the Federal
Government’s power ‘[t]o establish [a] uniform Rule of
Naturalization,’. . . its power ‘[t]o regulate Commerce with
foreign Nations,’ and its broad authority over foreign affairs
. . . .” Toll v. Moreno, 458 U.S. 1, 10 (1982). Supreme Court
precedent explains that “neither a clear encroachment on
exclusive federal power to admit aliens nor a clear conflict
with a specific congressional purpose” is required in order for
federal law to preempt state regulations of immigrants. See
id. at 11 n.16 (internal quotation marks omitted). “Not
surprisingly, . . . [Supreme Court] cases have also been at
pains to note the substantial limitations upon the authority of
the States in making classifications based upon alienage.” Id.
at 10.

    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), and 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). Arizona prohibits the issuance of
drivers’ licenses to anyone who does not submit proof that his
or her presence in the United States is “authorized under
federal law,” Ariz. Rev. Stat. § 28-3153(D), and then purports
to create its own independent definition of “authorized under
federal law,” one that excludes DACA beneficiaries. Because
Arizona created a new immigration classification when it
adopted its policy regarding driver’s license eligibility, it
impermissibly strayed into an exclusive domain that
Congress, through the INA, delegated to the executive
branch.
            ARIZ. DREAM ACT COAL. V. BREWER                    37

    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 Takahashi v. Fish & Game Commission,
the Supreme Court observed that a state regulation of
entitlement to commercial fishing licenses based on
immigration classifications conflicted with the
“constitutionally derived federal power to regulate
immigration.” 334 U.S. 410, 419 (1948). 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). 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 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
38          ARIZ. DREAM ACT COAL. V. BREWER

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).

    Cases involving the allocation of state resources on the
basis of immigration classifications frequently raise both
equal protection and preemption concerns. Some decisions
applying preemption principles have ultimately rested on
equal protection grounds, see, e.g., Takahashi, 334 U.S. 410.
In Toll, however, the Supreme Court noted commentators’
observations “that many of the Court’s decisions concerning
alienage classifications, such as Takahashi, are better
explained in pre-emption than in equal protection terms.”
458 U.S. at 11 n.16.

    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
             ARIZ. DREAM ACT COAL. V. BREWER                          39

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).

    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 an undefined 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




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

classifications according to its own design,8 thereby engaging
in an “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
   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. Nor does this opinion rely on the DACA Memorandum for its
conclusion that Arizona’s policy is preempted by federal law. Rather,
Arizona’s policy is preempted by the supremacy of federal authority under
the INA to create immigration categories. Indeed, 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.
             ARIZ. DREAM ACT COAL. V. BREWER                         41

    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

    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

   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.
42          ARIZ. DREAM ACT COAL. V. BREWER

alien is “deemed to be unlawfully present in the United
States,” at least for purposes of § 1182(a)(9)(B). 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 provisionally
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). We
point to these statutory definitions not as examples of all-
encompassing congressionally authorized decisions about
who may remain in the United States, but as examples of the
federal government exercising its exclusive authority to
classify immigrants.

    Despite Arizona’s clear departure from federal
immigration classifications, Defendants argue Arizona’s
policy is not a “back-door regulation of immigration.” They
            ARIZ. DREAM ACT COAL. V. BREWER                   43

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 because, in determining which
aliens shall be eligible to receive a state benefit, Arizona
created new immigration classifications based on its
independent view of who is authorized under federal law to
be present in the United States.

    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 DACA recipients
as having no authorized presence. 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.
44            ARIZ. DREAM ACT COAL. V. BREWER

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, 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


 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).
             ARIZ. DREAM ACT COAL. V. BREWER                         45

(“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
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,


      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.
46            ARIZ. DREAM ACT COAL. V. BREWER

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
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 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
            ARIZ. DREAM ACT COAL. V. BREWER                     47

    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 to
obtain drivers’ licenses limits their professional opportunities.
In Arizona, it takes an average of over four times as long to


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.
48          ARIZ. DREAM ACT COAL. V. BREWER

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 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),
            ARIZ. DREAM ACT COAL. V. BREWER                  49

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

    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
50          ARIZ. DREAM ACT COAL. V. BREWER

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.

     AFFIRMED.
            ARIZ. DREAM ACT COAL. V. BREWER                   51

BERZON, Circuit Judge, Concurring in light of the Dissent
from the denial of rehearing en Banc:

    I join the panel opinion in full. I write in concurrence to
further explain our holding in light of the dissent from denial
of rehearing en banc.

    I write first to emphasize that the “law” that has
preemptive power over Arizona’s policy is Congress’
conferral of exclusive authority on the executive branch to
defer removal of individuals who lack legal status and to
authorize them to work while temporarily permitted to
remain. Furthermore, I write to highlight that the preemption
issues ultimately decided in this case can be viewed as
embedded in the equal protection analysis, given the
historical and conceptual overlap between equal protection
and preemption concerns in cases involving state laws that
affect immigrants. The serious equal protection concerns
raised by Arizona’s policy bolster our preemption holding,
which was reached in a careful exercise of the principle of
constitutional avoidance.

                               I.

    As the panel opinion makes clear, it is the authority
specifically conferred on the Attorney General by the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
seq., and the associated regulations, that is the body of federal
law that preempts Arizona’s policy, not any particular
exercise of executive authority. The INA, as implemented by
authorized regulations, affirmatively permits the Attorney
General to decide whether undocumented immigrants should
be removed from the country and when, and also whether
they should be authorized to stay and to work if they are not
52          ARIZ. DREAM ACT COAL. V. BREWER

to be immediately removed. Contrary to the Dissent from the
denial of rehearing en banc (“Dissent”), this conferral of
authority is not limited to “only two small provisions of the
INA.” Dissent at 10. See e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II),
(IV) (indicating that certain visa applicants are “eligible for
deferred action and work authorization”); id.
§ 1182(a)(9)(B)(ii) (providing that for purposes of
determining inadmissibility, unlawful presence includes any
time an alien “is present in the United States after the
expiration of the period of stay authorized by the Attorney
General”); id. § 1227(d)(2) (indicating that certain visa
applicants who are denied an administrative stay of removal
can apply for “a stay of removal, deferred action, or a
continuance or abeyance of removal proceedings”); id.
§ 1229b (giving the Attorney General the discretion to cancel
removal for certain inadmissable or removable aliens,
including those who were never lawfully admitted); id.
§ 1324a(h)(3) (defining an “unauthorized alien” for purposes
of employment as an alien who is neither “lawfully admitted
for permanent residence” nor “authorized to be so employed
by [statute] or by the Attorney General”); REAL ID Act of
2005, Pub. L. No. 109-13, div. B, § 202(c)(2)(B)(viii), (C)(ii),
119 Stat. 231, 313 (indicating that persons with “approved
deferred action status” are present in the United States during
a “period of authorized stay” for purposes of issuing state
drivers’ licenses and identification cards); 8 C.F.R.
§ 274a.12(c)(14) (indicating that an “alien who has been
granted deferred action, an act of administrative convenience
to the government which gives some cases lower priority”
may be granted work authorization upon application and a
showing of economic necessity).

   These various provisions, among others, make clear that
Congress has expressly authorized the Attorney General, at
               ARIZ. DREAM ACT COAL. V. BREWER                              53

his discretion, officially to defer removal of individuals who
lack legal status, thereby temporarily authorizing their stay,
and to authorize such individuals to work while temporarily
permitted to remain.1 See Arizona v. United States, 132 S. Ct.
2492, 2506 (2012) (“[T]he removal process is entrusted to the
discretion of the Federal Government.”).

    The Attorney General granted the plaintiffs in this case
deferred action and furnished them with federal employment
authorization documents.2 Arizona’s denial of drivers’
licenses to DACA recipients rests on the premise that their
presence is not “authorized under federal law,” even though
the federal government has decided otherwise, exercising the


 1
   Authorizing someone to work in the country is necessarily to authorize
their presence. The Supreme Court, in Takahashi v. Fish & Game
Commission, 334 U.S. 410, 416 (1948), stated that “[t]he assertion of an
authority to deny to aliens the opportunity of earning a livelihood when
lawfully admitted to the state would be tantamount to the assertion of the
right to deny them entrance and abode, for in ordinary cases they cannot
live where they cannot work.” (quoting Truax v. Raich, 239 U.S. 33, 42
(1915)). The obverse is also true: Authorizing an alien to work in the
country is necessarily authorizing him to remain.
 2
    I note that the Dissent at 7 points treats this case as parallel to Texas v.
United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided
court, 136 S. Ct. 2271 (2016) (per curiam). It decidedly is not. Arizona
raised in the district court no affirmative challenge to the Deferred Action
for Childhood Arrivals (“DACA”) program, whether based on
administrative law concepts or the scope of the executive’s responsibility
to enforce federal laws. Compare id. at 149. (Arizona is a plaintiff in the
Texas v. United States litigation, which does raise such issues and is
ongoing.). Instead, Arizona has asserted the authority to treat some
undocumented individuals with deferred status and federal work
authorization differently from others with the same federal dispensations.
It is the validity of that differential treatment that is at the heart of this
case.
54            ARIZ. DREAM ACT COAL. V. BREWER

powers delegated to it by Congress. Arizona has, therefore,
intruded into an area of decisionmaking entrusted to the
federal government.3

                                    II.

    Critically, our preemption holding reflects a careful
exercise of constitutional avoidance, based on the serious
equal protection concerns raised by Arizona’s policy.
Although we rest our decision on preemption grounds, the
preemption and equal protection concerns raised in this case
are overlapping rather than distinct. And because that is so,
I am convinced that although we wisely did not decide the
equal protection issue, were it necessary to decide the
question I would have held that there was an equal protection
violation.

    Equal protection and preemption concerns have long been
intertwined in cases dealing with state laws that classify
immigrants. See Plyler v. Doe, 457 U.S. 202 (1982); Nyquist
v. Mauclet, 432 U.S. 1 (1977); Graham v. Richardson,
403 U.S. 365 (1971); Takahashi, 334 U.S. 410; Truax,
239 U.S. 33; see also Jenny-Brooke Condon, The Preempting
of Equal Protection for Immigrants?, 73 Wash. & Lee L.
Rev. 77 (2016); David F. Levi, Note, The Equal Treatment of
Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev.
1069 (1979).

  3
   Arizona’s driver’s license statute turns upon whether an immigrant’s
presence is “authorized under federal law” not whether the presence is
“lawful” in the sense of specifically condoned by statute. See Ariz. Rev.
Stat. Ann. § 28-3153(D). If the statute turned on the latter, Arizona could
not, as it does, issue licenses to many undocumented individuals who do
not have lawful status but have been granted work authorization while in
removal proceedings. See Amended op. 29.
            ARIZ. DREAM ACT COAL. V. BREWER                    55

    For example, in Nyquist v. Mauclet, the state asserted that
one of its goals in excluding certain classes of aliens from
eligibility for in-state tuition was to provide incentives for
aliens to naturalize. 432 U.S. at 9–10. In holding the state
law violated the Equal Protection Clause, the Court found that
state purpose “not a permissible one for a State” because
“[c]ontrol over immigration and naturalization is entrusted
exclusively to the Federal Government, and a State has no
power to interfere.” Id. at 10. Similarly in Graham v.
Richardson, another decision that rested on equal protection
grounds, the Court provided that “[s]tate alien residency
requirements that either deny welfare benefits to noncitizens
or condition them on longtime residency, equate with the
assertion of a [state] right, inconsistent with federal policy, to
deny entrance and abode. Since such laws encroach upon
exclusive federal power, they are constitutionally
impermissible.” 403 U.S. at 380. Takahashi v. Fish and Game
Commission likewise held that “[s]tate laws which impose
discriminatory burdens upon the entrance or residence of
aliens lawfully within the United States conflict with [the]
constitutionally derived federal power to regulate
immigration.” 334 U.S. at 419.

    The overlap evident in these cases between the equal
protection and preemption analyses where state laws that
affect immigrants are at issue is no accident. As the equal
protection analysis in the panel opinion illustrates, both the
“similarly situated” and “legitimate state interest” inquiries
required for equal protection analysis necessarily incorporate
recognition of the preeminent, although not exclusive, federal
56            ARIZ. DREAM ACT COAL. V. BREWER

role in immigration matters, the same role distribution
emphasized in immigration preemption cases.4

                                   A.

    The primacy of federal immigration law first informs the
equal protection analysis when we are determining whether
the groups being classified are “similarly situated.” As the
panel opinion states, the Equal Protection Clause prevents the
government from “treating differently persons who are in all
relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10
(1992) (emphasis added). “Relevant respects” are only those
respects that relate to the goals of the challenged state law.

    Classifications adopted by states “must rest upon some
ground of difference having a fair and substantial relation to
the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.” Reed v. Reed, 404 U.S.
71, 76 (1971) (quoting F.S. Royster Guano Co. v. Virginia,
253 U.S. 412, 415 (1920)). Accordingly, to adopt a federal
immigration classification “as a criterion for its own
discriminatory policy, the State must demonstrate that the
classification is reasonably adapted to the purposes for which
the state desires to use it.” Plyler, 457 U.S. at 226 (internal
quotation marks and citations omitted) (emphasis in
original). Those purposes do not properly include making

 4
   Because preemption concerns are embedded in and addressed by equal
protection decisions regarding state laws that affect immigrants, equal
protection decisions like Plyler v. Doe, 457 U.S. 202, are relevant to our
preemption holding. See Condon, supra pp. 5, at 83 (“[T]he Supreme
Court has reinforced the principle that the federal government has
exclusive responsibility for the regulation of immigration, as much
through its equal protection jurisprudence as it has through preemption
decisions.”).
             ARIZ. DREAM ACT COAL. V. BREWER                         57

decisions about who should remain in this country, who
should be removed, or what are the conditions of stay for
those temporarily authorized to be here.

    For example, in Graham v. Richardson, the Court struck
down on equal protection grounds a state law that denied
welfare benefits to non-citizens whom the Court found
similarly situated in all respects relevant to the state welfare
law: non-citizens paid taxes, could be called into the armed
forces, and worked in the state, thereby contributing to the
state’s economic welfare. 403 U.S. at 376. The groups of
residents were “indistinguishable except with respect to
whether they are or are not citizens of this country.” Id. at
371. The two groups were not, of course, similarly situated
in the latter respect — that is, as to whether they were
citizens. And that difference entailed many embedded
distinctions between the non-citizens and citizens, including
the right to vote, to serve on juries, and to remain in the
country even if engaged in criminal activities. But the
citizen/non-citizen distinction was the one that the state had
to justify, not a basis for declaring the two groups not
similarly situated with regard to receiving welfare benefits.

    Similarly, the immigration-related distinction between the
plaintiffs and other undocumented immigrants has no role in
this case at the “similarly situated” juncture.5 Rather, the
pertinent comparisons at this stage concern the other
requirements for obtaining drivers’ licenses — Are the
applicants old enough? Can they pass the written test? Can


 5
    The panel opinion makes this basic point, briefly. Amended op. at 23.
It then goes on for completeness to answer the state’s similarly situated
argument on its own terms, which stressed immigration status differences
between the plaintiffs and other aliens. Amended op. at 23–29.
58          ARIZ. DREAM ACT COAL. V. BREWER

they pass the driving test? Have they violated driving laws in
the past, as by driving without a license or while drunk? The
immigration-related classification is the one the state must
justify at the next stage of equal protection analysis, not the
measure of whether the plaintiffs are otherwise similarly
situated with regard to obtaining drivers’ licenses.

                              B.

    Preemption themes next surface in the equal protection
analysis in the examination of legitimate state interests. A
state interest is only legitimate for equal protection purposes
when it lies within an area of concern within the state’s
authority. When the state law touches on immigration, the
ambit of legitimate state concern is constrained by the federal
government’s preeminent power directly to regulate
immigration — that is, to decide who will be admitted, who
may remain, and who will be removed.

    As stated in Plyler v. Doe, “[a]lthough it is a routine and
normally legitimate part of the business of the Federal
Government to classify on the basis of alien status and to take
into account the character of the relationship between the
alien and this country, only rarely are such matters relevant
to legislation by a State.” 457 U.S. at 225 (internal quotation
marks and citations omitted). Consistently with this view,
Mathews v. Diaz explained that “a division by a State of the
category of persons who are not citizens of that State into
subcategories of United States citizens and aliens has no
apparent justification, whereas, a comparable classification
by the Federal Government is a routine and normally
legitimate part of its business.” 426 U.S. 67, 85 (1976).
            ARIZ. DREAM ACT COAL. V. BREWER                   59

    For this reason, the Supreme Court has long recognized
that federal power over immigration constrains a state’s
legitimate interests in classifying groups of immigrants
differently from one another and then disadvantaging one of
the groups so classified. In Truax v. Raich, 239 U.S. at 42,
for example, the Court admonished that “reasonable
classification implies action consistent with the legitimate
interests of the state, and it will not be disputed that these
cannot be so broadly conceived as to bring them into hostility
to exclusive Federal power.” Truax involved an equal
protection challenge, by an alien lawfully admitted into the
United States, to an Arizona law that required certain
employers to hire a majority of workers who were qualified
electors or native-born United States citizens. Id. at 40.
Truax rejected the argument that the state’s prioritization of
citizens for employment was justified by the state’s power “to
make reasonable classifications in legislating to promote the
health, safety, morals, and welfare of those within its
jurisdiction,” because the state lacked “the authority to deal
with that at which the legislation is aimed.” Id. at 41, 43; see
also Takahashi, 334 U.S. at 420 (noting the “tenuousness of
the state’s claim that it has power to single out and ban its
lawful alien inhabitants . . . from following a vocation simply
because Congress has put some groups in special
classifications in exercise of its broad and wholly
distinguishable powers over immigration and
naturalization.”).

    States assuredly do have authority to regulate
employment, just as they have authority to regulate the
distribution of drivers’ licenses. The state authority lacking in
Truax, and here, is the authority to justify discrimination as
to areas within state power on grounds that are beyond state
60          ARIZ. DREAM ACT COAL. V. BREWER

authority because exclusively within the authority of the
federal government.

    For these reasons, equal protection analysis with regard
to state laws, like Arizona’s, that disadvantage some aliens
compared with others necessarily incorporates distribution-
of-authority concerns that directly parallel those encountered
in preemption analyses. It is in light of this overlap between
preemption and equal protection analyses in the immigration
context that the panel’s equal protection analysis evaluated
the proffered state interests said rationally to justify the denial
of drivers’ licenses to the plaintiffs. And it is in this light that
we rejected any state justification for the classification in
state law that suggested an intent to preclude or discourage
the plaintiffs from remaining and working even though the
federal government allowed them to do so. For the same
reason, we rejected any justification that turned on
immigration status distinctions with no connection to state-
drivers’-license-related concerns (such as the distinction
between aliens holding work authorization while in removal
proceedings and DACA recipients holding work authorization
but not in the process of being removed). Amended op. at
28–29, 33, 36. We then concluded that the remaining
rationales Arizona provided simply are not reasonable.
Amended op. at 29–33.

    In short, the preeminent federal role in immigration
matters thus not only underlies our ultimate preemption
holding, but also directly informs the equal protection
analysis. Given the constraints on a state’s legitimate
interests in classifying groups of immigrants, we could, in my
view, have rested our rejection of the challenged Arizona
statute simply on a rational basis equal protection analysis
(without reaching the question whether a more stringent
             ARIZ. DREAM ACT COAL. V. BREWER                      61

standard of review applies). Were it necessary to reach the
question, I would have held Arizona’s application of its
drivers’ license statute invalid as a denial of equal protection
to DACA recipients, as compared to other undocumented
individuals to whom Arizona does provide drivers’ licenses.
See Amended op. at 29–33.

    The Dissent brushes past these equal protection concerns,
regarding them as an “excursus,” and even suggesting that
over a century of equal protection jurisprudence regarding
state immigration regulations, beginning with Truax in 1915,
be overturned. Dissent at 8–9 n.1, 13 n.5.

    But the panel’s methodology — a careful analysis of the
strength of a constitutional challenge, before turning to an
alternative that avoids definitely deciding that constitutional
question — is one with a long pedigree, grounded in judicial
restraint. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690–96,
699 (2001); Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Const. Trades Council, 485 U.S. 568, 575–78
(1988).6 To criticize the panel’s preemption analysis in a
vacuum, with little recognition of the constitutional
avoidance rationale underlying it, is tantamount to lopping off
the first five floors of a ten story building and then declaring
that the building, thus truncated, is unstable.

   Again, I concur fully in the panel opinion. In addition, in
my view, as we held in the preliminary injunction appeal,


  6
    This court has observed that DeBartolo reached a statutory holding
only “[a]fter considering at some length, but not deciding, the
[constitutional] arguments.” Overstreet v. United Bhd. of Carpenters &
Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1209 (9th Cir.
2005).
62          ARIZ. DREAM ACT COAL. V. BREWER

Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1067
(9th Cir. 2014), and as the district court held as the basis for
the final injunction, Arizona Dream Act Coalition v. Brewer,
81 F. Supp. 3d 795, 808 (D. Ariz. 2015), the equal protection
challenge is independently valid and, if we needed to reach it,
would justify our conclusion that Arizona’s denial of drivers’
licenses to DACA recipients cannot stand.