ELLY MARISOL ESTRADA, SALVADOR ALVARADO, DIANA UMANA, each an individual, Plaintiffs-Appellants,
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.
from the United States District Court No. 1:16-cv-03310-TWT
for the Northern District of Georgia
TJOFLAT and JORDAN, Circuit Judges, and HUCK, [*] District Judge.
TJOFLAT, CIRCUIT JUDGE
case is about a Policy 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.
careful consideration of the record, and with the benefit of
oral argument, we affirm the District Court's decision.
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.
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.
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
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. The Policy
explicitly says that DACA recipients "are not considered
lawfully present in the United States."
are DACA recipients 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
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.
appeal followed, and appellants challenge the dismissal of
both causes of action. We address each in turn.
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.
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).
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,
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.
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.
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.
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." 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).
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." Instead, the Policy instructs the
selective schools to "verify" a person's lawful
status based on determinations made by
Congress.That is, the Policy borrows from federal
standards to verify lawful presence.
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. 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
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.
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 ...