No IN THE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT

Transcription

1 No IN THE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT IN THE MATTER OF THE APPLICATION OF CESAR ADRIAN VARGAS, AN APPLICANT FOR ADMISSION TO THE NEW YORK STATE BAR BRIEF FOR THE UNITED STATES AS AMICUS CURIAE JOYCE R. BRANDA Acting Assistant Attorney General MARK B. STERN DANIEL TENNY (202) Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

2 TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY... 1 STATEMENT... 2 A. Statutory and Regulatory Background Alien Eligibility for State and Local Public Benefits Deferred Action for Childhood Arrivals... 4 B. Factual Background... 6 ARGUMENT... 7 I. The operation of 8 U.S.C is consistent with equal protection principles of the United States Constitution... 7 II. The New York State Constitution has no bearing on the operation of a federal statute CONCLUSION CERTIFICATE OF COMPLIANCE ATTORNEY S AFFIRMATION OF SERVICE

3 TABLE OF AUTHORITIES Cases: Page Arizona v. United States, 132 S. Ct (2012)... 4 FCC v. Beach Commc ns, Inc., 508 U.S. 307 (1993)... 8, 11 Florida Bd. of Bar Examiners re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar, 134 So. 3d 432 (Fla. 2014)... 6 In re Garcia, 315 P.3d 117 (Cal. 2014)... 4 Mathews v. Diaz, 426 U.S. 67 (1976)... 9 M Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Personnel Adm r of Mass. v. Feeney, 442 U.S. 256 (1979) Plyler v. Doe, 457 U.S. 202 (1982)... 8 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)... 4 Schweiker v. Wilson, 450 U.S. 221 (1981)... 7 ii

4 U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980)... 8 United States v. Baer, 235 F.3d 561 (10th Cir. 2000) United States v. Clark, 195 F.3d 446 (9th Cir. 1999)... 7 United States v. Leach, 639 F.3d 769 (7th Cir. 2011) Constitution: U.S. Const. art. VI, cl Statutes: 8 U.S.C. 1101(a)(15)...2, 3 8 U.S.C. 1182(a)(6)-(7) U.S.C. 1182(d)(5) U.S.C. 1227(a)(1)(A) U.S.C. 1227(a)(1)(C) U.S.C , 9 8 U.S.C , 3, 7, 8, 13 8 U.S.C. 1621(a)... 3, 6, 9 8 U.S.C. 1621(c)...3, 9 iii

5 8 U.S.C. 1621(d) U.S.C Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No , 110 Stat Fla. Stat (3)... 4 Regulations: 8 C.F.R. 274a.12(c)(14)... 6 Other Authorities: Memorandum from Janet Napolitano, Sec y, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf... 5 U.S. Customs & Immigration Serv., Form I-821D, Consideration of Deferred Action for Childhood Arrivals, available at form/i-821dinstr.pdf...5, 6 iv

6 IN THE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT No IN THE MATTER OF THE APPLICATION OF CESAR ADRIAN VARGAS, AN APPLICANT FOR ADMISSION TO THE NEW YORK STATE BAR BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTRODUCTION AND SUMMARY The United States respectfully submits this brief as amicus curiae to address the question posed by this Court s letter of September 18, A federal statute, 8 U.S.C. 1621, generally limits the categories of aliens who may receive a professional license from a State, unless the State affirmatively provides for eligibility for such licenses. The application of that restriction to prohibit this Court from issuing a law license in this case raises no constitutional concern. Congress established a default rule regarding the provision of all types of government benefits to certain categories of aliens. The statute does not draw distinctions based on the type of work in which an alien

7 might wish to engage, but rather comprehensively addresses the availability of government benefits. Even if Congress might be thought to have been distinguishing among types of workers, the statute would easily withstand the deferential review to which provisions of this type are subject. The Supreme Court of the United States has repeatedly emphasized the broad latitude that Congress enjoys in drawing distinctions where, as here, no fundamental right or protected class is involved. STATEMENT A. Statutory and Regulatory Background 1. Alien Eligibility for State and Local Public Benefits In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act ( PRWORA ), Pub. L. No , 110 Stat Title IV of the PRWORA prohibits certain categories of aliens from obtaining certain public benefits, unless a state enactment directs otherwise. The statute first states that aliens are not eligible for any State or local public benefit unless they are qualified alien[s] (as defined in 8 U.S.C. 1641), nonimmigrant aliens (a term defined in 8 U.S.C. 2

8 1101(a)(15)), or aliens who are paroled into the United States (under 8 U.S.C. 1182(d)(5)) for less than one year. 8 U.S.C. 1621(a). Other categories of aliens, including those who lack lawful immigration status, are ineligible for such benefits unless the State takes action as discussed below. A parallel statute, 8 U.S.C. 1611, makes the same categories of aliens ineligible for benefits provided by the federal government. The federal statute defines the State or local public benefit[s] for which these other categories of aliens are ineligible. That category of benefits includes, subject to certain exceptions that are not relevant here, any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government. 8 U.S.C. 1621(c). The matter currently before this Court concerns the application of 8 U.S.C to prohibit the issuance of a law license. The statute also provides that a State may make additional categories of aliens eligible for public benefits. A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section. Id. 1621(d). The statute clarifies, 3

9 however, that a State may do so only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility. Id.; see In re Garcia, 315 P.3d 117, (Cal. 2014) (noting passage of such legislation in California); Fla. Stat (3) (similar legislation in Florida). 2. Deferred Action for Childhood Arrivals Under federal immigration law, aliens may be removed for having entered the United States without authorization. See 8 U.S.C. 1227(a)(1)(A), (C), 1182(a)(6) (7). Federal officials... must decide whether it makes sense to pursue removal at all, and, [i]f removal proceedings commence, whether to grant discretionary relief allowing [the alien] to remain in the country or at least to leave without formal removal. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). One way in which such discretion is exercised is through grants of deferred action, in which, on a case-by-case basis, the U.S. Department of Homeland Security ( DHS ) may decline to institute removal proceedings, may terminate proceedings, or may decline to execute a final order of removal. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, (1999). 4

10 Pursuant to this authority, on June 15, 2012, DHS announced the Deferred Action for Childhood Arrivals ( DACA ) policy, which directs DHS officials to consider, on a case-by-case basis, exercising discretion in favor of certain aliens who were brought to the United States as children and who have resided here for at least five years. See Memorandum from Janet Napolitano, Sec y, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, at 1 (June 15, 2012). 1 The Secretary s memorandum states that if the exercise of discretion with respect to a particular alien is appropriate, DHS officials should not initiate removal proceedings or should defer for a renewable period of two years any removal proceedings already initiated. Id. at 2. Qualifying aliens not already in removal proceedings may also apply for this deferred action status. Id. at 2 3. Individuals applying for deferred action under the DACA policy are also required to apply for federal employment authorization. See USCIS Form I-821D, Consideration of Deferred Action for Childhood 1 5

11 Arrivals 2 ( All individuals filing Form I-821D... must also file Form I-765, Application for Employment Authorization[.] ); see also 8 C.F.R. 274a.12(c)(14) (providing for employment authorization for those who obtain deferred action). But deferred action is not an immigration status or category described in 8 U.S.C. 1621(a), and recipients of deferred action thus remain ineligible to obtain public benefits provided by state and local governments in the absence of affirmative legislation providing for their eligibility. See Florida Bd. of Bar Examiners re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar, 134 So. 3d 432, 437 (Fla. 2014). B. Factual Background This Court solicited the views of the United States on a question that arose in connection with the application of Cesar Adrian Vargas to obtain admission to the New York State Bar. Mr. Vargas has graduated from law school, has passed the bar examination, and has been found to possess the character and fitness for potential membership in the Bar. Court s Letter of September 18, 2014, at 1. Mr. Vargas has obtained deferred action under the DACA policy described above. Id

12 In evaluating Mr. Vargas s application for bar admission, this Court invited the Attorney General of the United States, the Attorney General of the State of New York, and Mr. Vargas s counsel to submit briefs on a single question: whether the disparate treatment of DACA undocumented immigrants requiring professional licenses for their work, compared with DACA undocumented immigrants that require no professional licenses for their work, constitutes a violation of the Equal Protection Clause of the United States Constitution and/or the New York State Constitution. Id. at 2. ARGUMENT I. The operation of 8 U.S.C is consistent with equal protection principles of the United States Constitution. The Fifth Amendment s Due Process Clause imposes on the federal government an obligation to comply with equal protection principles. See Schweiker v. Wilson, 450 U.S. 221, 226 n.6 (1981). The federal statute at issue here readily satisfies the relevant standard. Persons in need of professional licenses are not a protected class, and there is no fundamental right to become a lawyer. See United States v. Clark, 195 F.3d 446, 451 (9th Cir. 1999) ( [L]awyers are not a protected class.... ). 7

13 In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commc ns, Inc., 508 U.S. 307, 313 (1993); see also id. at 315 ( [B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. ). The only question is whether Congress achieved its purpose in a patently arbitrary or irrational way. U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 177 (1980). The statute at issue here is not arbitrary or irrational. As an initial matter, it is not even clear that the statute makes a classification between those aliens needing professional licenses and other aliens. The only distinction drawn in 8 U.S.C is between those who are qualified aliens and those who are not. The permissibility of that distinction, which reflects the reasoned judgment of the federal government that different categories of aliens are not similarly situated, has not been questioned here. See Plyler v. Doe, 457 U.S. 202, 225 (1982) (noting that it is a routine and 8

14 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 (quoting Mathews v. Diaz, 426 U.S. 67, 80, 85 (1976)) (citation omitted)). As to the category of aliens to which the prohibition applies, the statute draws no classifications. It prohibits such aliens from obtaining any State or local public benefit, 8 U.S.C. 1621(a), and it defines State or local public benefit broadly to include any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government, id. 1621(c). The statute thus constitutes a comprehensive ban on the receipt of benefits from the State (and complements a statute prohibiting the receipt of benefits from the federal government, see id. 1611). 9

15 The federal statute does not distinguish among individuals based on the work they wish to pursue. Although the effect of the statute may be to disadvantage people who need a license or other benefit from the State to perform their preferred occupation as compared to people who need no such public benefit, that result is an incidental effect of a comprehensive prohibition on the receipt of benefits from a State. There is no basis for suggesting that Congress meant to distinguish between categories of workers, much less that Congress was motivated by animus toward those who required professional licenses. See Personnel Adm r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (statute does not violate equal protection principles unless it was enacted at least in part because of, not merely in spite of, its adverse effects upon an identifiable group ). Even if it could be said that Congress was distinguishing among categories of workers, its actions here would easily satisfy the rational-basis standard. The federal statute merely makes licenses and certain other benefits issued by States unavailable to certain aliens (absent an affirmative enactment from the State to the contrary). It thus affects only those who require such benefits. In determining which types of prohibitions to enact, Congress had to draw the line somewhere, and that necessity renders 10

16 the precise coordinates of the resulting legislative judgment virtually unreviewable, since the legislature must be allowed leeway to approach a perceived problem incrementally. Beach Commc ns, 508 U.S. at 316. It is entirely rational to draw the line at restricting benefits provided by governments. In addition, Congress could rationally distinguish between the general provision of federal employment authorization, on the one hand, and licensure by a State for fitness to engage in a particular profession, on the other. II. The New York State Constitution has no bearing on the operation of a federal statute. Under the Supremacy Clause, the Constitution of the United States, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2; see also M Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 327 (1819) ( The constitution... declares, that the constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall 11

17 control all state legislation and state constitutions, which may be incompatible therewith. ). Thus, regardless of what the state constitution might require with respect to state enactments, it has no bearing on the legitimacy of an Act of Congress. See United States v. Leach, 639 F.3d 769, 772 (7th Cir. 2011) ( The Supremacy Clause establishes that state constitutional provisions cannot override federal statutes. ); United States v. Baer, 235 F.3d 561, 562 (10th Cir. 2000) ( [U]nder the Supremacy Clause, state constitutional provisions cannot override federal criminal statutes unless incorporated into federal law. ). The United States takes no position on the proper interpretation of the Equal Protection Clause of the New York Constitution, or on how that provision might affect any state-law issues under consideration by this Court. 12

18 CONCLUSION For the foregoing reasons, the application of 8 U.S.C in this matter presents no constitutional concern. Respectfully submitted, JOYCE R. BRANDA Acting Assistant Attorney General MARK B. STERN DANIEL TENNY (202) Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C NOVEMBER

19 CERTIFICATE OF COMPLIANCE This brief was prepared on a computer using Book Antiqua typeface, size 14, double-spaced. According to the word count of the Microsoft Word, this brief contains 2,236 words.

20 ATTORNEY S AFFIRMATION OF SERVICE I, Jeffrey E. Sandberg, an attorney admitted to the practice of law before the courts of the State of New York, affirm the following to be true under the penalties of perjury pursuant to CPLR 2106: On the 13th day of November, 2014, I served one copy of the foregoing Brief for the United States upon the following persons by Federal Express, overnight delivery service: Jose Luis Perez Deputy General Counsel LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY Andrew Ayers Office of the Attorney General The Capitol Albany, NY Dated: Washington, DC November 13, 2014 Jeffrey E. Sandberg