Paidi v. Mill, No. 10-4397 (2d Cir. 2012)
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Plaintiffs are non-immigrant aliens, authorized by the federal government to reside and work as pharmacists in the U.S. All reside in New York and are licensed pharmacists there pursuant to a statutory waiver to New York Education Law 6805(1)(6)’s requirement that only U.S. citizens or Legal Permanent Residents are eligible to obtain a pharmacist’s license in New York. The waiver provision was set to expire in 2009. The district court permanently enjoined the state from enforcing the law. The Second Circuit affirmed. A state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently. Applying strict scrutiny and finding, as the state conceded, that there are no compelling reasons for the statute’s discrimination based on alienage, the court found the statute unconstitutional.
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10-4397-cv PAIDI v. MILLS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: January 9, 2012 Decided: July 10, 2012) Docket No. 10-4397-cv VENKAT RAO DANDAMUDI, NAVEEN PARUPALLI, SUNITHA TALLURI, NAREEN ADUSUMELLI, JITENDRA KUMAR PATEL, LAVANYA AKULA, HAREEN KARRA, HOLLY ELIZABETH BENOIT, YECHAM KUMARASWAMY, GRACE CHAN, HERNG YIH LAI, JITENDRA KESHAVLAL PATEL, SUMIRKUMAR S. TALATI, SIREESH K. THUMMALAPALLY, KAICHUAN YEH, Plaintiffs-Appellees, VISHNU AKULA, BALAJI DUDDUKURU, MURALI KOTHURI, ALANNA FARRELL, Consolidated Plaintiffs-Appellees, LAKSHMAN RAO PAIDI, NITASHA KHURANA, YOUNG MEE LEE, XUAN UYEN NGHIEM, SIRISHA PARUPALLI, YVONNE MAY PERRY, HARINATH TALAMPALLY, RAVI KUMAR CHENNA, GETU NAGASA, PHUONG GIANG, NGOC BUI, SEONG MI SEO KIM, KRISHNA KISHORE INAPURI, Plaintiffs, v. MERRYL H. TISCH, Chancellor of the New York State Board of Regents, DAVID STEINER, Commissioner of Education, Defendants-Appellants, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 RICHARD P. MILLS, Commissioner of Education, NEW YORK STATE DEPARTMENT OF EDUCATION, ROBERT M. BENNETT, Chancellor of the New York State Board of Regents, NEW YORK STATE BOARD OF REGENTS, Defendants. Before: WESLEY, HALL, Circuit Judges, UNDERHILL, District Judge.* Appeal from an order of the United States District Court for the Southern District of New York (Holwell, J.), entered on September 30, 2010, granting plaintiffs motions for summary judgment and enjoining defendants from applying or enforcing New York Education Law § 6805(1)(6) against plaintiffs. AFFIRMED. ANDREW B. AYERS, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Denise A. Hartman, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for DefendantsAppellants. MARGARET A. CATILLAZ (Jeffrey A. Wadsworth, on the brief), Harter Secrest & Emery LLP, Rochester, NY, for Plaintiff-Appellee Alanna Farrell. KRISHNAN CHITTUR, Chittur & Associates, P.C., New York, NY, for remaining Plaintiffs-Appellees. * Judge Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation. 2 1 WESLEY, Circuit Judge: 2 This case involves a state regulatory scheme that seeks 3 to prohibit some legally admitted aliens from doing the very 4 thing the federal government indicated they could do when 5 they came to the United States work. 6 are a group of nonimmigrant aliens who have been authorized 7 by the federal government to reside and work as pharmacists 8 in the United States. 9 are licensed pharmacists there. Plaintiffs-Appellees All currently reside in New York and Plaintiffs obtained 10 pharmacist s licenses from New York pursuant to a statutory 11 waiver to New York Education Law § 6805(1)(6) s requirement 12 that only U.S. Citizens or Legal Permanent Residents 13 ( LPRs ) are eligible to obtain a pharmacist s license in 14 New York. 15 In response, plaintiffs sued various state officials1 16 responsible for enforcing the law in the United States 17 District Court for the Southern District of New York. The waiver provision was set to expire in 2009. 18 1 Although we recognize that the State of New York is not explicitly named as a party to this case, the arguments made by appellants here are clearly made on behalf of the state and the statute at issue was defended on appeal by the Solicitor General s Office of the State of New York. We think it appropriate, therefore, to refer to the parties bringing the appeal collectively as the state or New York. 3 1 Plaintiffs allege that § 6805(1)(6) is unconstitutional 2 because it violates the Equal Protection and Supremacy 3 Clauses of the United States Constitution. 4 and well-reasoned opinion, the district court granted 5 plaintiffs motion for summary judgment and permanently 6 enjoined defendants from enforcing the law. 7 v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010). 8 9 In a thorough See Adusumelli On appeal, New York asks us to abrogate the Supreme Court s general rule that state statutes that discriminate 10 based on alienage are subject to strict scrutiny review. 11 The state argues that the statute at issue here, which 12 discriminates against nonimmigrant aliens should be reviewed 13 only to determine if there is a rational basis that supports 14 it. 15 discriminates against aliens who have been lawfully admitted 16 to reside and work in the United States should be viewed in 17 the same light under the Equal Protection Clause as one 18 which discriminates against aliens who enjoy the right to 19 reside here permanently. 20 therefore, and finding, as the state concedes, that there 21 are no compelling reasons for the statute s discrimination 22 based on alienage, we hold the New York statute to be In our view, however, a state statute that Applying strict scrutiny, 4 1 unconstitutional. 2 summary judgment for plaintiffs. 3 4 We affirm the district court s grant of I. BACKGROUND Most of the plaintiffs have H-1B temporary worker 5 visas. Under the Immigration and Nationality Act ( INA ), 6 H-1B visas may be given to aliens who come temporarily to 7 the United States to perform services . . . in a specialty 8 occupation. 9 remaining plaintiffs have what is known as TN status. 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 10 TN status is a temporary worker status created by federal 11 law pursuant to the North American Free Trade Agreement 12 ( NAFTA ). 13 seeks temporary entry as a business person to engage in 14 business activities at a professional level to enter the 15 United States and work here pursuant to the requirements of 16 the TN status. 17 NAFTA permits a citizen of Canada or Mexico who 8 C.F.R. § 214.6(a). These provisions technically grant plaintiffs admission 18 to the United States for a finite period. 19 plaintiffs status grants them the right to reside and work 20 in the United States only temporarily, plaintiffs are part 21 of the group of aliens the immigration law refers to as 22 nonimmigrants. 8 U.S.C. § 1101(a)(15). 5 Because And, although 1 plaintiffs had to indicate that they did not intend to stay 2 here permanently to obtain their visas, the truth is that 3 many (if not all) actually harbor a hope (a dual intention) 4 that some day they will acquire the right to stay here 5 permanently. 6 recognize this doctrine of dual intent, which allows aliens 7 to express an intention to remain in the United States 8 temporarily (to satisfy the requirements of their temporary 9 visas) while also intending to remain permanently, which The BIA and the State Department both 10 allows them to apply for an adjustment of status. 11 Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975); 70 No. 42 12 Interpreter Releases 1444, 1456-58 (Nov. 1, 1993). 13 Matter of For purposes of both the H1-B and TN visas, the initial 14 period during which the visa-holder can legally remain and 15 work in the United States is three-years. 16 §§ 214.2(h)(9)(iii)(A)(1) (H1-B visa), 214.6(e) (TN status). 17 Each visa status also permits a three-year extension of the 18 initial period. 19 But an alien with an H1-B visa is limited to one such 20 extension, essentially restricting H1-B status to a six-year 21 period.2 8 C.F.R. Id. at §§ 214.2(h)(15)(ii)(B), 214.6(h). Id. at § 214.2(h)(15)(ii)(B)(1). 2 In practice, Although not applicable in the instant case, an H-1B visa holder who is involved in a DOD research and development or co- 6 1 however, federal law permits many aliens with TN or H1-B 2 status to maintain their temporary worker authorization for 3 a period greater than six years. 4 case, for example, have been legally authorized to reside 5 and work in the United States for more than six years. 6 six plaintiffs have been authorized to reside and work in 7 the United States for more than ten years. 8 9 All plaintiffs in this And, Several factors contribute to the difference between the technical limitations on H1-B and TN status and the 10 length of time these aliens remain authorized to reside and 11 work in the United States. 12 temporary worker authorization are former students who 13 entered the United States with a student visa and who have 14 made their home in the United States for many years before 15 entering the professional world.3 16 are also often eligible to apply for LPR status. 17 process is typically quite slow, and the federal government 18 therefore regularly issues Employment Authorization Many aliens who receive Many nonimmigrant aliens This production project may maintain his H-1B visa status for a total of 10 years. 8 C.F.R. § 214.2(h)(15)(ii)(B)(2). 3 Initially entering the United States on a student visa extends the amount of time a nonimmigrant alien can remain in the United States because the time limitations for H1-B status and TN status are not impacted by time previously spent residing in the United States pursuant to a student visa. 7 1 Documents ( EADs ), which extend the time period during 2 which these aliens are eligible to work in the United States 3 while they await their green cards. 4 § 274a.12(c)(9). 5 8 C.F.R. Twenty-two plaintiffs have applied for Permanent 6 Resident status.4 7 have exhausted the six-year maximum authorization provided 8 by H1-B status. 9 Sixteen have received EADs because they Based on their visa status, all plaintiffs currently 10 reside in the United States legally and have permission to 11 work here. 12 pharmacist s license (albeit a limited one) pursuant to a 13 previous version of the New York statute at issue here.5 14 Section 6805(1)(6), in its current incarnation, provides All are pharmacists who were granted a 4 During the pendency of this appeal, plaintiff-appellee Gutu Nagasa was granted a green card, making the appeal moot as to him. And, in a previous case, we dismissed an appeal raising identical issues with regard to New York s analogous law restricting professional veterinarian licenses to citizens and LPRs because the plaintiff-appellee was granted permanent resident status while the appeal was pending. See Kirk v. N.Y. State Dep t of Educ., 644 F.3d 134, 136 (2d Cir. 2011). 5 A previous version of the statute included a three-year waiver of the citizenship/LPR requirement for otherwise qualified pharmacists. It also permitted a one-year extension of that waiver. The waiver provision expired in October 2006. Pursuant to the expiration requirement, plaintiffs pharmacist s licenses were set to expire in 2009 and were not eligible for renewal. Plaintiffs licenses were renewed pending the outcome of this litigation. 8 1 that to be eligible for a pharmacist s license in New York, 2 an applicant must be either a U.S. Citizen or a LPR.6 3 statute bars all other aliens, including those with work- 4 authorization who legally reside in the United States, from 5 becoming licensed pharmacists. 6 7 The II. DISCUSSION New York argues that neither the Equal Protection 8 Clause nor the Supremacy Clause prevents a state from 9 prohibiting a group of aliens who are legally authorized to 10 reside and work in the United States from working in certain 11 professions. 12 from our sister circuits. 13 Citizens (LULAC) v. Bredesen, 500 F.3d 523, 531-34, 536-37 14 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405, 415 (5th 15 Cir. 2005), reh g en banc denied, 444 F.3d 428 (2006).7 16 Fifth and Sixth Circuits viewed nonimmigrant aliens as The state relies principally on two decisions See League of United Latin Am. 6 The Similar provisions of the New York Education Law preclude non-LPR aliens from other professions. See N.Y. Educ. Law §§ 6524(6) (physicians), 6554(6) (chiropractors), 6604(6) (dentists), 6609(6) (dental hygienists), 6704(6) (veterinarians), 6711(6) (veterinary technicians), 6955(1)(6) (midwives), 7206(1)(6) (engineers), 7206-a(1)(6) (land surveyors), 7324(1)(6) (landscape architects), 7504(1)(6) (certified shorthand reporters), 7804(5) (massage therapists). 7 The plaintiffs in LeClerc were aliens with J-1 student visas and H1-B worker visas. 419 F.3d at 410-12. 9 1 distinct from aliens with LPR status and applied a rational 2 scrutiny test to determine if the state statutes in question 3 ran afoul of the Equal Protection Clause. 4 the courts decline[d] to extend the protections of LPRs to 5 certain nonimmigrants. 6 F.3d at 419. 7 affirmed the general principle that alienage is a suspect 8 classification and has only ever created two exceptions to 9 that view. In both cases, LULAC, 500 F.3d at 533; LeClerc, 419 We disagree; the Supreme Court has repeatedly We decline to create a third in a case where the 10 statute discriminates against aliens who have been granted 11 the legal right to reside and work in the United States. 12 Under a strict scrutiny analysis, § 6805(1)(6) of the New 13 York Education Law violates the Equal Protection Clause. 14 15 The Equal Protection Clause The Fourteenth Amendment provides that states may not 16 deny to any person within its jurisdiction the equal 17 protection of the laws. 18 Under the Fourteenth Amendment, a law that impermissibly 19 interferes with the exercise of a fundamental right or 20 operates to the peculiar disadvantage of a suspect class is 21 reviewed under the strict scrutiny standard. 22 Ret. v. Murgia, 427 U.S. 307, 312 (1976) (emphasis added) U.S. Const. amend. XIV, § 1. 10 Mass. Bd. of 1 (footnote omitted); see Weinstein v. Albright, 261 F.3d 127, 2 140 (2d Cir. 2001). 3 There is no question that the Fourteenth Amendment 4 applies to all aliens. See, e.g., Plyler v. Doe, 457 U.S. 5 202, 215 (1982). 6 that states cannot discriminate on the basis of alienage. 7 Aliens as a class are a prime example of a discrete and 8 insular minority, the Court reasoned in Graham v. 9 Richardson, [and] the power of a state to apply its laws Indeed, the Supreme Court has long held 10 exclusively to its alien inhabitants as a class is confined 11 within narrow limits. 12 quotation marks omitted). 13 403 U.S. 365, 372 (1971) (internal In Graham, the Court struck down two state statutes 14 that prevented immigrants from receiving public assistance. 15 Id. at 376. 16 Pennsylvania law barred non-citizens from a welfare program, 17 while an Arizona law required that aliens reside in the 18 state for fifteen years before they could collect money from 19 the state both achieved the same result. 20 Thus, aliens were denied access to a benefit available to 21 citizens. 22 unconstitutional. The statutes erected different barriers a Id. at 367-68. Graham held this two class system Id. at 371. 11 1 Graham is considered the lodestar of the Court s 2 alienage discrimination doctrine, but the opinion invokes a 3 case decided decades before. 4 Commission, the Supreme Court struck down a California 5 statute that denied fishing licenses to any person 6 ineligible [for] citizenship. 7 The law originally targeted Japanese fishermen, but the 8 state legislature feared that such a clearly discriminatory 9 classification might run afoul of the Equal Protection 10 Clause and amended the statute to prohibit immigrants 11 ineligible [for] citizenship from obtaining fishing 12 licenses. 13 concurring). 14 groups based solely on the members immigration status 15 without any mention of race or nationality. 16 that treating groups differently based on the members 17 alienage was akin to discriminating against a group because 18 of their race or color. 19 Amendment] has been held to extend to aliens as well as to 20 citizens, the Court reasoned, [and] all persons lawfully 21 in this country shall abide . . . on an equality of legal 22 privileges with all citizens. 23 added). In Takahashi v. Fish and Game 334 U.S. 410, 413 (1948). Id.; see also id. at 422-27 (Murphy, J., The provision drew a distinction between The Court held The protection of [the Fourteenth 12 Id. at 419-20 (emphasis 1 The Graham Court saw Pennsylvania and Arizona s 2 restrictions on welfare as exacting the same toll as 3 California s unconstitutional fishing-license regime; the 4 Court thus followed Takahashi to hold that the welfare 5 statutes were subject to strict scrutiny. 6 at 372. 7 Graham, 403 U.S. In the years after Graham, the Court continued to apply 8 strict scrutiny to statutes discriminating on the basis of 9 alienage. It invalidated a New York statute that prohibited 10 immigrants from working in the civil service, Sugarman v. 11 Dougall, 413 U.S. 634, 642-43 (1973), a Connecticut statute 12 that barred immigrants from sitting for the bar, In re 13 Griffiths, 413 U.S. 717, 721-22, 729 (1973), a Puerto Rico 14 law that denied licenses to immigrant engineers, Examining 15 Board of Engineers, Architects and Surveyors v. Flores de 16 Otero, 426 U.S. 572, 601-06 (1976), and a New York law that 17 required immigrants to pledge to become citizens before they 18 could receive financial aid, Nyquist v. Mauclet, 432 U.S. 1, 19 7, 12 (1977). 20 by reasserting its commitment to the holding in Graham: laws 21 that single out aliens for disparate treatment are 22 presumptively unconstitutional absent a showing that the In each case, the Court began its discussion 13 1 classification was necessary to fulfill a constitutionally 2 permissible and substantial purpose. 3 413 U.S. at 721-22.8 4 In re Griffiths, The Court has recognized only two exceptions to 5 Graham s rule. The first exception allows states to exclude 6 aliens from political and governmental functions as long as 7 the exclusion satisfies a rational basis review. 8 v. Connelie, the Court upheld a statute that prohibited 9 aliens from working as police officers. In Foley 435 U.S. 291, 295- 10 96. 11 state must have the power to preserve the basic conception 12 of a political community, and states can limit certain 13 important nonelective executive, legislative, and judicial 14 positions [to] officers who participate directly in the 15 formulation, execution, or review of broad public policy. 16 Id. at 296 (internal quotation marks omitted). 17 For a democracy to function, the Court reasoned, a The second exception crafted by the Court allows states 18 broader latitude to deny opportunities and benefits to 19 undocumented aliens. See, e.g., Plyler, 457 U.S. at 219; 8 Each of these cases was a facial challenge: Plaintiffs argued that the statutes were unconstitutional on their face because they drew explicit distinctions between citizens and non-citizens, not just because a state had interpreted a statute to deny benefits to a group of aliens. 14 1 see also DeCanas v. Bica, 424 U.S. 351 (1976), superseded by 2 statute on other grounds as stated in Chamber of Comm. v. 3 Whiting, 131 S. Ct. 1968 (2011). 4 declined to apply strict scrutiny to a statute that 5 prohibited undocumented alien children from attending public 6 school. 7 Graham placed a heavy burden on state statutes targeting 8 lawful aliens, but reasoned that undocumented aliens fell 9 outside of Graham s reach because their presence in this 457 U.S. at 223. In Plyler, the Court The Court acknowledged that 10 country in violation of federal law is not a constitutional 11 irrelevancy. 12 that the plaintiffs unlawful status eliminated them from 13 the suspect class of aliens generally; nevertheless, the 14 Court applied a heightened rational basis standard to the 15 Texas law denying free public education to undocumented 16 alien children and found the law unconstitutional.9 17 457 U.S. at 230 (holding that the state had to show that the 18 statute furthered some substantial goal of the state ). 19 20 Id. (citations omitted). The Court held Plyler, Thus, statutes that deny opportunities or benefits to aliens are subject to strict scrutiny unless they fall 9 In Plyler, the Court explained that undocumented aliens are not a suspect class, but noted that it was reluctant to punish undocumented alien children for their parents decision to break the law. Id. at 219-20. 15 1 within two narrow exceptions. 2 exclude aliens from certain civic roles that directly affect 3 the political process. 4 who reside in the United States without authorization may be 5 treated differently than those who are here legally. 6 The first allows states to The second acknowledges that people The state acknowledges that neither exception applies 7 here. Without an existing basis for distinguishing Graham s 8 requirement that such statutes are strictly scrutinized, New 9 York proposes a third exception the Fourteenth Amendment s 10 strongest protections should apply only to virtual citizens, 11 like LPRs, and not to other lawfully admitted aliens who 12 require a visa to remain in this country. 13 that the Supreme Court s strict scrutiny analysis of 14 classifications based on alienage is inapplicable to 15 classifications of nonimmigrant aliens and that only 16 rational basis review of the statute is required. 17 Defendants argue The state reasons that the Supreme Court has never 18 explicitly applied strict scrutiny review to a statute 19 discriminating against nonimmigrant aliens. 20 but that argument ignores the underlying reasoning of the 21 Court in its prior decisions as well as the fact that the 22 Court has never held that lawfully admitted aliens are 16 That is true, 1 outside of Graham s protection. 2 distinguished between classes of legal resident aliens.10 3 The state s argument that suspect class protection extends 4 no further than to LPRs simply has no mooring in the High 5 Court s prior ventures into this area. 6 Indeed, the Court has never New York disagrees and urges us to follow the lead of 7 the Fifth and Sixth Circuits, both of which drew a 8 distinction between LPRs and citizens, on the one hand, and 9 other lawfully admitted aliens, on the other. In LeClerc, 10 the Fifth Circuit upheld a Louisiana Supreme Court rule that 11 required applicants for admission to the Louisiana State Bar 12 to be citizens or LPRs. 13 noted that [l]ike citizens, [permanent] resident aliens may 14 not be deported, are entitled to reside permanently in the 15 United States, may serve . . . in the military, . . . and 16 pay taxes on the same bases as citizens. 419 F.3d at 422. 10 The majority Id. at 418. Notably, it was in his dissent in Toll v. Moreno, 458 U.S. 1, 44-45 (1982) (Rehnquist, J., dissenting), that Justice Rehnquist pointed out such a distinction. There he wrote: In each case in which the Court has tested state alienage classifications . . . the question has been the extent to which the States could permissibly distinguish between citizens and permanent resident aliens. . . . [T]he need for strict scrutiny simply does not apply to state policies that distinguish between permanent resident aliens and nonimmigrants. 17 1 In LULAC, the Sixth Circuit upheld a Tennessee law that 2 conditioned issuance of a driver s license on proof of 3 United States citizenship or LPR status. 4 The Sixth Circuit, like the Fifth, held that nonimmigrant 5 aliens are not a suspect class because, unlike citizens and 6 LPRs, they are admitted to the United States only for the 7 duration of their authorized status, are not permitted to 8 serve in the U.S. military, are subject to strict employment 9 restrictions, incur differential tax treatment, and may be 500 F.3d at 533. 10 denied federal welfare benefits. 11 419 F.3d at 418-19. 12 courts and narrow Graham s holding to reach only those 13 aliens who are indistinguishable from citizens. 14 argument, however, misconstrues both law and fact. 15 Id.; see also LeClerc, The state would have us join these This Ultimately, for three reasons, we reject the state s 16 argument that this Court should follow the rationale of the 17 Fifth and Sixth Circuits. 18 listing in Graham of the similarities between citizens and 19 aliens refuted the state s argument that it did have a 20 compelling reason for its law, but this language does not 21 articulate a test for determining when state discrimination 22 against any one subclass of lawful immigrants is subject to First, the Supreme Court s 18 1 strict scrutiny. 2 subclass of aliens, and the Supreme Court recognizes aliens 3 generally as a discrete and insular minority without 4 significant political clout. 5 to determine that the appropriate level of scrutiny by which 6 to analyze the discrimination should be based on the 7 nonimmigrant aliens similarity (or proximity) to citizens, 8 we would still apply strict scrutiny in this case because 9 nonimmigrant aliens are sufficiently similar to citizens 10 that discrimination against them in the context presented 11 here must be strictly scrutinized. 12 Second, nonimmigrant aliens are but one Third, even if this Court were Despite the fact that the Supreme Court has never 13 cabined its precedent in this area to distinguish between 14 discrimination against LPRs and discrimination against other 15 lawfully present aliens and has never distinguished 16 Takahashi, the Fifth and Sixth Circuits justified narrowing 17 Graham by resting their analysis on the closing words of 18 Graham s discussion of the Equal Protection Clause. 19 passage, the Court noted: Aliens like citizens pay taxes 20 and may be called into the armed forces. 21 short-term residents in Shapiro, aliens may live within a 22 state for many years, work in the state and contribute to 19 In that Unlike the 1 the economic growth of the state. Graham, 403 U.S. at 376 2 (internal quotation marks omitted).11 3 Viewing that language from Graham as an analytical 4 tool, however, reveals the danger of separating the words of 5 an opinion from the context in which they were employed. 6 Graham drew a comparison between LPRs and citizens to refute 7 the states arguments that there was a compelling interest 8 in the restrictive legislation the states had limited funds 9 and the benefits in question should go to citizens to the 10 exclusion of LPRs. Id. The states contended that they had 11 a legitimate interest in preserving welfare funds for their 12 citizens individuals who participated in economic activity 13 within the state and thereby generated tax revenue that 14 supported the benefits. 15 a State s desire to preserve limited welfare benefits for 16 its own citizens is inadequate to justify [the state s 17 discriminatory laws]. 18 aliens are in many ways indistinguishable from citizens and The Court was quick to reply that Id. at 374. 11 It noted that legal We see no connection between practicing law in Louisiana or driving a car in Tennessee and military service, restricted job opportunities, or differences in taxation. Neither did Louisiana or Tennessee as neither state statute restricted the privileges in question to those citizens who had served in the military, worked, or paid taxes. The classifications in question focused on a distinct and identifiable minority even though there was no constitutionally relevant reason for the distinction. 20 1 2 3 4 5 6 7 8 9 10 11 then provided a few examples of that fact: [T]he justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years, work in the state and contribute to the economic growth of the state. Id. (internal quotation marks omitted). The Court in essence pointed out that, because LPRs 12 and citizens have much in common, treating them differently 13 does not pass muster under the Fourteenth Amendment. 14 converse of this rationale, however, does not become a 15 litmus test for determining whether a particular group of 16 aliens is a suspect class. 17 identical or even virtually identical to citizens to be 18 fully protected by the Fourteenth Amendment. 19 citizens and aliens may be sufficiently similar merely 20 because they are both lawful residents. 21 that the list of similarities is meant as a litmus test for 22 lower courts to apply to a subclass of lawfully admitted 23 aliens for purposes of determining how similar they are to 24 citizens before applying strict scrutiny the greatest level 25 of Fourteenth Amendment protection to analyze discrimination 26 against that subclass. The A group of aliens need not be 21 Indeed, Nor do we think 1 Nothing in the Supreme Court s precedent counsels us to 2 judicially craft[] a subset of aliens, scaled by how [we] 3 perceive the aliens proximity to citizenship. 4 Webb, 444 F.3d 428, 429 (5th Cir. 2006) (Higginbotham, J., 5 dissenting from the denial of reh g en banc).12 6 Court s precedent supports drawing a distinction among 7 aliens only as between lawfully admitted aliens and those 8 who are in the United States illegally.13 LeClerc v. Rather, the See Plyler, 457 12 Neither are we persuaded by the state s claim that the statute must be reviewed under a rational basis framework because it only discriminates against a subset of aliens. The Court roundly rejected such an argument in Nyquist, 432 U.S. at 7-9. There, the Court explained that the mere fact that the legislature distinguished only within the heterogenous class of aliens and . . . not . . . between citizens and aliens vel non did not remove the statute from strict scrutiny review because the important consideration was that the statute was directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class. Id. at 8-9 (internal quotation marks omitted). 13 That aliens are a suspect class not merely because they bear all, or most, of the responsibilities of citizenship is evident from the Court s other pronouncements regarding why aliens are a suspect class. The Supreme Court noted in Flores de Otero, for example, that The underpinnings of the Court s constitutional decisions defining the circumstances under which state and local governments may favor citizens of this country by denying lawfully admitted aliens equal rights and opportunities have been two. The first, based squarely on the concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment, recognizes that (a)liens as a class are a prime example of a discrete and insular minority . . . for whom . . . heightened judicial solicitude is appropriate. The second, grounded in the 22 1 U.S. at 223 (utilizing a heightened rational basis review 2 for a state law discriminating against undocumented alien 3 children). 4 Any other distinction ignores that the Fourteenth 5 Amendment is written broadly as protecting all persons and 6 that aliens necessarily constitute a discrete and insular 7 minority because of their impotence in the political 8 process, and the long history of invidious discrimination 9 against them. LeClerc, 419 F.3d at 428-29 (Stewart, J., 10 dissenting) (citing Plyler, 457 U.S. at 218 n.14). Notably, 11 the bedrock of the Supreme Court s decisions in this area is 12 the fact that although lawfully admitted aliens and citizens 13 are not constitutionally distinguishable, aliens constitute 14 a discrete and insular minority because of their limited 15 role in the political process. 16 (Stewart, J. dissenting) (citing Plyler, 457 U.S. at 218 17 n.14; Erwin Chemerinsky, Constitutional Law 618-19 (1997)); 18 see also Foley, 435 U.S. at 294. 19 aliens cannot be said to suffer less from these limitations LeClerc, 419 F.3d at 428-29 Certainly, nonimmigrant Supremacy Clause, Const., Art. VI, cl. 2, and in the naturalization power, Art. I, § 8, cl. 4, recognizes the Federal Government s primary responsibility in the field of immigration and naturalization. 426 U.S. at 602 (quoting Graham, 403 U.S. at 372). 23 1 than LPRs and indeed, likely are more powerless and 2 vulnerable to state predations more discrete and insular. 3 See Constitutional Law - Equal Protection - Fifth Circuit 4 Holds that Louisiana Can Prevent Nonimmigrant Aliens from 5 Sitting for the Bar, 119 Harv. L. Rev. 669, 674 (2005) 6 (internal quotation marks omitted). 7 But even if the state s argument that Supreme Court 8 precedent allows for a distinction based on a subclass s 9 similarity to citizens had some traction, we conclude strict 10 scrutiny still applies. Nonimmigrants do pay taxes, often 11 on the same terms as citizens and LPRs, and certainly on 12 income earned in the United States. 13 § 7701(b); see also LeClerc, 419 F.3d at 427 n.1 (Stewart, 14 J., dissenting). 15 permanency of residence is equally disingenuous. 16 it is certainly true that nonimmigrants must indicate an 17 intent not to remain permanently in the United States, this 18 ignores the dual intent doctrine nonimmigrant aliens are 19 lawfully permitted to express an intent to remain 20 temporarily (to obtain and maintain their work visas) as 21 well as an intent to remain permanently (when they apply for 22 LPR status). See 26 U.S.C. Further, any claimed distinction based on Although LeClerc, 419 F.3d at 429 (Stewart, J., 24 1 dissenting). 2 permission is wholly irrelevant where, as here, the state 3 seeks to prohibit aliens from engaging in the very 4 occupation for which the federal government granted the 5 alien permission to enter the United States.14 6 And the final distinction limited work Because most of the distinctions the state would have 7 us make between LPRs and nonimmigrants are either 8 inapplicable or without constitutional relevance, we agree 9 with the district court that the state s argument boil[s] 10 down to one potentially important difference nonimmigrants 11 have not yet obtained permission to reside in the United 12 States permanently and a slew of other differences of 13 uncertain relevance. 14 Adusumelli, 740 F. Supp. 2d at 592. The core of the state s argument (and the analytical 15 pivot of LeClerc and LULAC) is transience. 16 argues that the nonimmigrant s transient immigration status 17 distinguishes nonimmigrant aliens from LPRs and introduces 18 legitimate state concerns that would allow for rational 14 The state Some of the other distinctions relied on by the Fifth and Sixth Circuits (military service and ineligibility for federal benefits) simply lack legislative relevance. Certainly the federal government, which bears the constitutional responsibility of regulating immigration, has much broader latitude to distinguish among subclasses of aliens. But this latitude does not give states carte blanche to do the same. See Takahashi, 334 U.S. at 420. 25 1 basis review of the statute. This focus on transience is 2 overly formalistic and wholly unpersuasive. 3 issue here are transient in name only. 4 status under which they were admitted to the United States 5 was of limited duration. 6 different. 7 the United States for much longer than six years and many 8 ultimately apply for, and obtain, permanent residence.15 9 These practicalities are not irrelevant. The aliens at Certainly the But the reality is quite A great number of these professionals remain in They demonstrate 10 that there is little or no distinction between LPRs and the 11 lawfully admitted nonimmigrant plaintiffs here. 12 even if the Supreme Court s precedent were read to require a 13 determination that the subclass of aliens at issue is 14 similar to LPRs or citizens, strict scrutiny would apply. 15 Therefore, Finally, creating a third exception to strict scrutiny 16 analysis for statutes discriminating against lawfully 17 admitted aliens would create odd, some might say absurd, 18 results. If statutes discriminating against lawfully 15 This fact is borne out by the realities of the case before us as well as the previous appeal in Kirk. Here, one of the plaintiffs was granted permanent resident status during the pendency of this appeal. And, in Kirk, we held the appeal moot because the plaintiff was granted permanent resident status during the pendency of the appeal. Kirk, 644 F.3d at 136. As much as the state wants to lump nonimmigrants in the same category as tourists such a classification makes no sense. 26 1 admitted nonimmigrant aliens were reviewed under a rational 2 basis framework that would mean that a class of unlawful 3 aliens would receive greater protection against state 4 discriminatory statutes than those lawfully present. 5 Plyler, 457 U.S. at 202. 6 heightened rational basis test to invalidate a Texas statute 7 excluding undocumented immigrant children from public 8 schools. 9 exception to the Supreme Court s precedent that would result Id. at 230. See In Plyler the Court applied a We see no reason to create an 10 in such illogical results that clearly contradict the 11 federal government s determination as to which individuals 12 have a legal right to be here. 13 The Supreme Court has repeatedly announced a general 14 rule that classifications based on alienage are suspect and 15 subject to strict scrutiny review. 16 advocated in his LULAC dissent, we should tak[e] the 17 Supreme Court at its word. 18 state s reasoning nor that of the Fifth and Sixth Circuit 19 majority opinions persuades us that creating a third 20 exception to the general rule that alienage classifications 21 are suspect is warranted here. 22 subclass of aliens known as nonimmigrants who are lawfully As Judge Gilman 500 F.3d at 542. 27 Neither the Therefore, we hold that the 1 admitted to the United States pursuant to a policy granting 2 those aliens the right to work in this country are part of 3 the suspect class identified by Graham. 4 by the state against this group is subject to strict 5 scrutiny review. 6 Any discrimination The statute here, which prohibits nonimmigrant aliens 7 from obtaining a pharmacist s license in New York, is not 8 narrowly tailored to further a compelling government 9 interest. As noted above, appellants concede that New York 10 has no compelling justification for barring the licensed 11 pharmacist plaintiffs from practicing in the state. 12 Further, we agree with the district court that there is no 13 evidence that transience amongst New York pharmacists 14 threatens public health or that nonimmigrant pharmacists, as 15 a class, are in fact considerably more transient than LPR 16 and citizen pharmacists. 17 598. 18 guarantee that a citizen or LPR professional will remain in 19 New York (or the United States for that matter), have funds 20 available in the event of malpractice, or have the necessary 21 skill to perform the task at hand.16 Adusumelli, 740 F. Supp. 2d at Citizenship and Legal Permanent Residency carry no 16 In Flores de Otero, defendants contended that the statute preventing alien engineers from engaging in private practice was 28 1 The statute is also far from narrowly tailored. As the 2 Court in Flores de Otero pointed out, there are other ways 3 (i.e., malpractice insurance) to limit the dangers of 4 potentially transient professionals. 5 such, the statute unconstitutionally discriminates against 6 plaintiffs in violation of their Fourteenth Amendment 7 rights. 426 U.S. at 606. 8 The Supremacy Clause and Preemption 9 As In addition to challenging the New York statute on 10 Fourteenth Amendment grounds, plaintiffs raise Supremacy 11 Clause and preemption concerns. 12 stated below, we are constrained to decide this case on 13 Equal Protection grounds, we nonetheless address these 14 arguments. 15 § 6805(1)(6) is even more clearly unconstitutional [under 16 the principles of the Supremacy Clause] than under the Equal Although, for the reasons We agree with the district court that warranted because of the aliens transience, which results in their tenuous connection to the United States. 426 U.S. at 60506. Defendant s claimed that the classification provided engineering clients an assurance of financial accountability if a building for which the engineer is responsible collapses within 10 years of construction. Id. at 605. The Court flatly rejected any such rationale, observing that: United States citizenship is not a guarantee that a civil engineer will continue to reside in Puerto Rico or even in the United States, and it bears no particular or rational relationship to skill, competence, or financial responsibility. Id. at 606 (citations omitted). 29 1 Protection Clause. 2 Adusumelli, 740 F. Supp. 2d at 600. The federal power to determine immigration policy is 3 well settled. Immigration policy can affect trade, 4 investment, tourism, and diplomatic relations for the entire 5 Nation, as well as the perceptions and expectations of 6 aliens in this country who seek the full protection of its 7 laws. 8 2368661, *5 (June 25, 2012). 9 decisions [about immigration] involve policy choices that Arizona v. United States, 567 U.S. ___, 2012 WL Because discretionary 10 bear on this Nation s international relations, the Supreme 11 Court in Arizona v. United States recently reaffirmed that 12 the federal power over immigration is extensive and 13 predominant. 14 Id. at *6. When Congress occupies an entire field, even 15 complementary state regulation is impermissible. Id. at 16 *9. 17 the Court has confirmed the well-settled proposition that a 18 state law is preempted where it stands as an obstacle to 19 the accomplishment and execution of the full purposes and 20 objectives of Congress. 21 Davidowitz, 312 U.S. 52, 67 (1941)). 22 lawful alien context, the Court has held that state But even if Congress does not occupy an entire field, Id. at *12 (quoting Hines v. 30 Specifically in the 1 regulation not congressionally sanctioned that discriminates 2 against aliens lawfully admitted to the country is 3 impermissible if it imposes additional burdens not 4 contemplated by Congress. 5 (1976). 6 DeCanas, 424 U.S. at 358 n.6 The state contends that § 6805(1)(6) does not impose 7 additional burdens not sanctioned by Congress because 8 although the federal immigration law controls the 9 determination of which aliens should be lawfully admitted 10 for the purpose of working in a specialty occupation, it 11 leaves to the states the determination of what 12 qualifications are required to practice that profession. 13 New York cites to the portion of the regulation that 14 provides that [i]f an occupation requires a state or local 15 license for an individual to fully perform the duties of the 16 occupation, an alien . . . seeking [a temporary visa to 17 work] in that occupation must have that license prior to 18 approval of the petition. 19 It argues that this language contemplates, and leaves room 20 for, the state to determine whether an individual is 21 qualified for the profession; according to the state, 22 immigration status can be one such qualification. 8 C.F.R. § 214.2(h)(4)(v)(A). 31 1 The state s argument misunderstands the nature of this 2 licensure provision. Federal law recognizes that states 3 have a legitimate interest in ensuring that an individual 4 applicant has the necessary educational and experiential 5 qualifications for the position sought. 6 traditional police power cannot morph into a determination 7 that a certain subclass of immigrants is not qualified for 8 licensure merely because of their immigration status. 9 view makes no sense. But that That As the district court pointed out, it 10 would make the federal laws creating H-1B and TN visa 11 status . . . advisory because the federal law at once 12 indicate[s] that nonimmigrants should be admitted to the 13 country to practice speciality occupations, . . . [and] 14 allow[s] the states to decide whether nonimmigrants (as a 15 class, not as individuals) should be permitted to practice 16 speciality occupations. 17 600. Adusumelli, 740 F. Supp. 2d at 18 New York s law stands as an obstacle to the 19 accomplishment and execution of the full purposes and 20 objectives of Congress. 21 U.S. 280, 287 (1995) (quoting Hines, 312 U.S. 67). 22 the INA, Congress exercised its immigration power to permit Freightliner Corp. v. Myrick, 514 32 Through 1 non-LPRs and non-citizens to become lawful residents of the 2 United States and to participate in certain occupations so 3 long as they are professionally qualified to engage in the 4 particular speciality occupation they seek to practice. 5 U.S.C. § 1184(i)(2)(A). 6 professional qualification, and thereby causing the group of 7 non-citizens and non-LPRs Congress intended to allow to 8 practice specialty occupations to be ineligible to do so, 9 the New York statute has created an obstacle to the 10 11 8 By making immigration status a accomplishment and execution of the INA. We are also unpersuaded by the state s other arguments: 12 that the statute does not regulate who may be admitted to 13 the country and that Toll s prescription that states may not 14 be prohibited from imposing additional burdens when 15 Congress has done nothing more than permit a class of aliens 16 to enter the country temporarily applies here. 17 U.S. at 12-13. 18 The Court there only questioned whether a state could impose 19 additional burdens if Congress only permitted aliens to 20 enter temporarily. 21 definitively allowed to impose such burdens. 22 Congress has done more than merely allow the nonimmigrants Toll, 458 The state s reliance on Toll is misplaced. It did not hold that states were 33 In this case, 1 to enter temporarily. 2 work in certain occupations. 3 of Toll s potential exception. 4 obstacles posed by the state statute to accomplishing the 5 purposes of the INA, there are serious Supremacy Clause and 6 preemption problems at issue. 7 at *6-18. 8 9 It has granted them permission to That alone takes this case out Ultimately, because of the See Arizona, 2012 WL 2368661, Yet, while we recognize the preemption and Supremacy Clause issues in this case and also the Court s preference 10 that Supremacy Clause issues be decided before Equal 11 Protection Clause claims, see generally Toll, 458 U.S. at 9- 12 10, we must decide this case on Equal Protection grounds. 13 The plaintiffs with TN status cannot argue that the state 14 law is preempted because the NAFTA Implementation Act allows 15 only the United States to bring actions against state laws 16 inconsistent with NAFTA. 17 See 19 U.S.C. § 3312(b)(2). In summary, we agree substantially with the district 18 court s well-reasoned opinion below, the dissenting opinions 19 filed in the panel decisions in LeClerc and LULAC, and the 20 dissent from denial of rehearing en banc in LeClerc. 21 find no reason to create a third exception to the rule that 22 alienage is a suspect classification. 34 We 1 As the Supreme Court noted in Takahashi, [t]he 2 assertion of an authority to deny to aliens the opportunity 3 of earning a livelihood when lawfully admitted to the state 4 would be tantamount to the assertion of the right to deny 5 them entrance and abode, for in ordinary cases they cannot 6 live where they cannot work. 7 New York cannot, in effect, drive from the state 8 nonimmigrants who have federal permission to enter the 9 United States to work. 10 11 12 13 Takahashi, 334 U.S. at 416. New York Education Law § 6805(1)(6) is unconstitutional. III. CONCLUSION The district court s order of September 30, 2010 granting summary judgment to plaintiffs is hereby AFFIRMED. 35
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