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Estrada v. Becker

United States Court of Appeals, Eleventh Circuit

March 6, 2019

ELLY MARISOL ESTRADA, SALVADOR ALVARADO, DIANA UMANA, each an individual, Plaintiffs-Appellants,
v.
MARK BECKER, President of Georgia State University, in his individual and official capacity, STEVE MICHAEL DORMAN, President of Georgia College and State University, in his individual and official capacity, BROOKS A. KEEL, President of Augusta University, in his individual and official capacity, JERE W. MOREHEAD, President of the University of Georgia, in his individual and official capacity, G.P. BUD PETERSON, President of the Georgia Institute of Technology, in his individual and official capacity, et al., Defendants-Appellees.

          Appeal from the United States District Court No. 1:16-cv-03310-TWT for the Northern District of Georgia

          Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, [*] District Judge.

          TJOFLAT, CIRCUIT JUDGE

         This case is about a Policy[1] that the Georgia Board of Regents ("Regents") set. The Policy requires Georgia's three most selective colleges and universities to verify the "lawful presence" of all the students they admit. Under the Policy, applicants who received deferred action pursuant to the Deferred Action for Childhood Arrivals memorandum ("DACA Memo") cannot attend Georgia's selective schools. Appellants are students who are otherwise qualified to attend these schools, and they filed suit to challenge the Policy. At the heart of their suit is whether they are "lawfully present" in the United States. They say they are lawfully present based on the DACA Memo. Thus, appellants claim the Regents' Policy is preempted by federal law, and they argue the Policy violates their equal protection rights. The District Court found that appellants are not lawfully present, and it dismissed the suit.

         After careful consideration of the record, and with the benefit of oral argument, we affirm the District Court's decision.

         I.

         Back in 2012, the Secretary of the Department of Homeland Security ("DHS") issued the DACA Memo, which encouraged government officials not to enforce federal immigration laws against certain children who came to the United States before age 16. Instead, officials were encouraged to exercise their "prosecutorial discretion" and to focus on higher-priority cases. The DACA Memo explicitly pointed out that it "confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, c[ould] confer these rights." The DACA Memo simply set forth a policy that would guide officials when exercising discretion.

         The individuals who meet the DACA Memo's criteria qualify for what is called "deferred action." We refer to those individuals who ultimately get deferred action as "DACA recipients." Under the Regents' Policy (explained below), DACA recipients cannot attend Georgia's most selective colleges and universities.

         Under Georgia law, the Regents set the policies that govern the University System of Georgia. O.C.G.A. § 50-36-1(d)(7). The Policy at issue here limits who can attend the more selective schools in the University System. It prevents any person "who is not lawfully in the United States" from attending any school that "did not admit all academically qualified applicants"-in other words, the selective schools-"for the two most recent academic years."[2]

         The Policy then requires these selective schools to verify the lawful presence of every student it admits. There are several ways that a school can verify lawful presence.[3] The Policy explicitly says that DACA recipients "are not considered lawfully present in the United States."

         Appellants are DACA recipients[4] who are qualified to attend and want to apply to these selective schools, but the Policy prevents them from doing so. They filed suit against the selective schools' presidents and the Regents and allege two causes of action. Appellants allege that the Policy violates the Supremacy Clause based on three theories: the Policy is an unconstitutional regulation of immigration, the Policy is conflict preempted, and the Policy is field preempted. Appellants also allege that the Policy violates the Equal Protection Clause.

         The District Court dismissed the case. It rejected appellants' regulation of immigration claim and field preemption claim because it found that the Policy adopts the immigration classifications that Congress set out in the Immigration and Nationality Act ("Act"). The District Court rejected the conflict preemption claim because the DACA Memo conferred no substantive rights, and the Policy is thus consistent with federal immigration law. Finally, the District Court rejected the equal protection claim because it found that appellants are not similarly situated to other noncitizens who are eligible to attend the selective schools. The District Court noted that appellants have no lawful status and are not lawfully present in the United States. By contrast, the other noncitizens who are eligible have lawful status or otherwise are lawfully present.

         This appeal followed, and appellants challenge the dismissal of both causes of action. We address each in turn.

         II.

         We review de novo the District Court's order dismissing appellants' complaint for failure to state a claim. Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). We assume the factual allegations of the complaint are true, and we construe them in the light most favorable to appellants. Id. We do not assume that any legal conclusions are true. Id.

         A.

         Under the Supremacy Clause, the Constitution and the laws of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. From this Clause we have the preemption doctrine, and any state law that "interfere[s] with, or [is] contrary to," federal law is preempted. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23, 82 (1824).

         There are at least three ways Congress may preempt state law. First, Congress may pass a statute with an express preemption provision. Arizona v. United States, 567 U.S. 387, 399, 132 S.Ct. 2492, 2500-01 (2012). Second, Congress may decide that a field will be regulated exclusively by the federal government. Id. In that case, there is no express preemption provision. Instead, we may infer an "intent to displace state law altogether" where "a framework of regulation [is] 'so pervasive . . . that Congress left no room for the States to supplement it' or where there is a 'federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id., 132 S.Ct. at 2501 (second and third alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152 (1947)). Third, federal law preempts state law when the two conflict. Id. That is, when "compliance with both federal and state regulations is a physical impossibility," id. (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1218 (1963)), or when "state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, '" id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404 (1941)).

         In the immigration context, there is another preemption consideration. The Supreme Court has said that the "[p]ower to regulate immigration is unquestionably exclusively a federal power," and any state law that "regulat[es] . . . immigration" is unconstitutional. DeCanas v. Bica, 424 U.S. 351, 354-55, 96 S.Ct. 933, 936 (1976). That is, unlike field preemption, the Constitution itself preempts any state effort to regulate immigration, even if Congress has not expressly or impliedly preempted the state regulation. See id. at 355, 96 S.Ct. at 936. "[A] regulation of immigration . . . is 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.

         Appellants make three arguments: (1) the Policy amounts to an unconstitutional regulation of immigration, (2) the Policy is field preempted, and (3) the Policy is conflict preempted.

         1.

         The Supreme Court has said that a law is a "regulation of immigration" if it "essentially . . . determin[es]" (1) "who should or should not be admitted into the country" or (2) "the conditions under which a legal entrant may remain." Id. Appellants claim the Policy does both.

         First, appellants argue the Policy is an unconstitutional regulation of immigration because it "classif[ies] noncitizens in a manner that does not conform to federal immigration classifications."[5] Appellants claim they are "lawfully present" under the Act, but they are not considered "lawfully present" under the Policy. Thus, appellants conclude, the Policy's classification of "lawfully present" is inconsistent with federal classifications. And the Supreme Court has instructed that "[t]he States enjoy no power with respect to the classification of aliens." Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 2399 (1982).[6]

         We begin by noting that "lawfully present" is not a standalone immigration classification, and it is not defined anywhere in the Act. Nor does the Policy define "lawfully present."[7] Instead, the Policy instructs the selective schools to "verify" a person's lawful status based on determinations made by Congress.[8]That is, the Policy borrows from federal standards to verify lawful presence.

         For example, a covered institution may use an applicant's eligibility for federal student aid to verify his or her lawful status. But Congress, not the State of Georgia, set the eligibility standard for federal student aid. 20 U.S.C. § 1091.[9] A selective school may also use an applicant's status as a naturalized citizen, immigrant, or nonimmigrant to verify his or her lawful status. Again, Congress decided who is eligible to become a naturalized citizen, see, e.g., 8 U.S.C. §§ 1421-1459; to receive an immigrant visa, 8 U.S.C. §§ 1101(a)(15), 1201(a)(1)(A), 1202(a)-(b); and to receive a nonimmigrant visa, 8 U.S.C. §§ 1101(a)(15), 1201(a)(1)(B), 1202(c)-(d). The Policy clearly looks to federal standards to verify lawful presence, and it does not require a state agent to make any independent determination. See, e.g., League of United Latin Am. Citizens v. Wilson, 908 F.Supp. 755, 772 (C.D. Cal. 1995) (finding that a subsection of a state statute is an impermissible regulation of immigration because the state classification "is not in any way tied to federal standards"), on reconsideration in part, 997 F.Supp. 1244 (C.D. Cal. 1997); see also id. (explaining that the same subsection requires state agents to make independent determinations based on "state-created criteria").

         Appellants rely on a discrete definition of "unlawful presence" in the Act to support their argument, and the argument proceeds in two steps. First, appellants argue the Act delegates to the DHS the authority to enforce the statute. As part of this delegation, appellants say, the Executive has authority to issue discretionary grants of deferred action. In support, appellants cite 8 U.S.C. § 1103(a)(3), which allows the DHS Secretary to "perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter." Of course, this provision does not explicitly allow DHS to issue discretionary grants of deferred action, but it is well known that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials," Arizona, 567 U.S. at 396, 132 S.Ct. at 2499. Second, appellants argue that aliens are lawfully present in the United States-under the Act-if they have been granted deferred action by the Executive Branch.

         Appellants rely on 8 U.S.C. § 1182(a)(9)(B)(ii) to support their deferred-action-means-lawful-presence argument. Section 1182 is titled "Inadmissible aliens," and ...


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