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Venkat Rao Dandamudi, Naveen Parupalli, Sunitha v. Merryl H. Tisch


July 10, 2012


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.

The opinion of the court was delivered by: Wesley, Circuit Judge:



Argued: January 9, 2012

Before: WESLEY, HALL, Circuit Judges, UNDERHILL, District Judge.*fn1


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. Plaintiffs-Appellees 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. All currently reside in New York and 9 are licensed pharmacists there. 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. The waiver provision was set to expire in 2009.

15 In response, plaintiffs sued various state officials*fn2 16 responsible for enforcing the law in the United States 17 District Court for the Southern District of New York.

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. In a thorough 4 and well-reasoned opinion, the district court granted 5 plaintiffs' motion for summary judgment and permanently 6 enjoined defendants from enforcing the law. See Adusumelli 7 v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010).

8 On appeal, New York asks us to abrogate the Supreme 9 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. In our view, however, a state statute that 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. Applying strict scrutiny, 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 1 unconstitutional. We affirm the district court's grant of 2 summary judgment for plaintiffs.


4 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." 8 U.S.C. § 1101(a)(15)(H)(i)(b). The 9 remaining plaintiffs have what is known as "TN" status. 10 "TN" status is a temporary worker status created by federal 11 law pursuant to the North American Free Trade Agreement 12 ("NAFTA"). NAFTA permits "a citizen of Canada or Mexico who 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. 8 C.F.R. § 214.6(a).

17 These provisions technically grant plaintiffs admission 18 to the United States for a finite period. Because 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 non-immigrants. 8 U.S.C. § 1101(a)(15). 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. The BIA and the State Department both 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 10 allows them to apply for an adjustment of status. Matter of 11 Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975); 70 No. 42 12 Interpreter Releases 1444, 1456-58 (Nov. 1, 1993).

13 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. 8 C.F.R. 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. Id. at §§ 214.2(h)(15)(ii)(B), 214.6(h). 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.*fn3 Id. at § 214.2(h)(15)(ii)(B)(1). In practice, 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. All plaintiffs in this 4 case, for example, have been legally authorized to reside 5 and work in the United States for more than six years. And, 6 six plaintiffs have been authorized to reside and work in 7 the United States for more than ten years.

8 Several factors contribute to the difference between 9 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. Many aliens who receive 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.*fn4 Many nonimmigrant aliens 16 are also often eligible to apply for LPR status. This 17 process is typically quite slow, and the federal government 18 therefore regularly issues Employment Authorization 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. 8 C.F.R. 4 § 274a.12(c)(9).

5 Twenty-two plaintiffs have applied for Permanent 6 Resident status.*fn5 Sixteen have received EADs because they 7 have exhausted the six-year maximum authorization provided 8 by H1-B status.

9 Based on their visa status, all plaintiffs currently 10 reside in the United States legally and have permission to 11 work here. All are pharmacists who were granted a 12 pharmacist's license (albeit a "limited" one) pursuant to a 13 previous version of the New York statute at issue here.*fn6 14 Section 6805(1)(6), in its current incarnation, provides 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.*fn7 The 3 statute bars all other aliens, including those with work- 4 authorization who legally reside in the United States, from 5 becoming licensed pharmacists.


7 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. The state relies principally on two decisions 12 from our sister circuits. See League of United Latin Am. 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).*fn8 The 16 Fifth and Sixth Circuits viewed nonimmigrant aliens as 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. In both cases, 4 the courts "decline[d] to extend" the protections of LPRs to 5 certain non-immigrants. LULAC, 500 F.3d at 533; LeClerc, 419 6 F.3d at 419. We disagree; the Supreme Court has repeatedly 7 affirmed the general principle that alienage is a suspect 8 classification and has only ever created two exceptions to 9 that view. 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 The Equal Protection Clause

15 The Fourteenth Amendment provides that states may not 16 "deny to any person within its jurisdiction the equal 17 protection of the laws." U.S. Const. amend. XIV, § 1. 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. Mass. Bd. of 22 Ret. v. Murgia, 427 U.S. 307, 312 (1976) (emphasis added) 10 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). Indeed, the Supreme Court has long held 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 10 exclusively to its alien inhabitants as a class is confined 11 within narrow limits." 403 U.S. 365, 372 (1971) (internal 12 quotation marks omitted).

13 In Graham, the Court struck down two state statutes 14 that prevented immigrants from receiving public assistance. 15 Id. at 376. The statutes erected different barriers--a 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. Id. at 367-68. 20 Thus, aliens were denied access to a benefit available to 21 citizens. Graham held this "two class" system 22 unconstitutional. Id. at 371.

1 Graham is considered the lodestar of the Court's 2 alienage discrimination doctrine, but the opinion invokes a 3 case decided decades before. In Takahashi v. Fish and Game 4 Commission, the Supreme Court struck down a California 5 statute that denied fishing licenses to any "person 6 ineligible [for] citizenship." 334 U.S. 410, 413 (1948).

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. Id.; see also id. at 422-27 (Murphy, J., 13 concurring). The provision drew a distinction between 14 groups based solely on the members' immigration status 15 without any mention of race or nationality. The Court held 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. "The protection of [the Fourteenth 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." Id. at 419-20 (emphasis 23 added).

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. Graham, 403 U.S. 6 at 372.

7 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). In each case, the Court began its discussion 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 1 classification was "necessary" to fulfill a constitutionally 2 "permissible" and "substantial" purpose. In re Griffiths, 3 413 U.S. at 721-22.*fn9

4 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. In Foley 8 v. Connelie, the Court upheld a statute that prohibited 9 aliens from working as police officers. 435 U.S. 291, 295- 10 96. For a democracy to function, the Court reasoned, a 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 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; 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). In Plyler, the Court 4 declined to apply strict scrutiny to a statute that 5 prohibited undocumented alien children from attending public 6 school. 457 U.S. at 223. The Court acknowledged that 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 10 country in violation of federal law is not a 'constitutional 11 irrelevancy.'" Id. (citations omitted). The Court held 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.*fn10 Plyler, 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 Thus, statutes that deny opportunities or benefits to 20 aliens are subject to strict scrutiny unless they fall 1 within two narrow exceptions. The first allows states to 2 exclude aliens from certain civic roles that directly affect 3 the political process. The second acknowledges that people 4 who reside in the United States without authorization may be 5 treated differently than those who are here legally.

6 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. Defendants argue 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 The state reasons that the Supreme Court has never 18 explicitly applied strict scrutiny review to a statute 19 discriminating against nonimmigrant aliens. That is true, 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 1 outside of Graham's protection. Indeed, the Court has never 2 distinguished between classes of legal resident aliens.*fn11 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 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. 419 F.3d at 422. The majority 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." Id. at 418.

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. 500 F.3d at 533.

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 10 denied federal welfare benefits." Id.; see also LeClerc, 11 419 F.3d at 418-19. The state would have us join these 12 courts and narrow Graham's holding to reach only those 13 aliens who are indistinguishable from citizens. This 14 argument, however, misconstrues both law and fact.

15 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. First, the Supreme Court's 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 1 strict scrutiny. Second, nonimmigrant aliens are but one 2 subclass of aliens, and the Supreme Court recognizes aliens 3 generally as a discrete and insular minority without 4 significant political clout. Third, even if this Court were 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 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. In that 19 passage, the Court noted: "Aliens like citizens pay taxes 20 and may be called into the armed forces. Unlike the 21 short-term residents in Shapiro, aliens may live within a 22 state for many years, work in the state and contribute to 1 the economic growth of the state." Graham, 403 U.S. at 376 2 (internal quotation marks omitted).*fn12

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. The Court was quick to reply that 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]." Id. at 374. It noted that legal 18 aliens are in many ways indistinguishable from citizens and 1 then provided a few examples of that fact: 2 [T]he justification of limiting expenses is particularly 3 inappropriate and unreasonable when the discriminated 4 class consists of aliens. Aliens like citizens pay taxes 5 and may be called into the armed forces. Unlike the 6 short-term residents in Shapiro, aliens may live within 7 a state for many years, work in the state and contribute 8 to the economic growth of the state.

10 Id. (internal quotation marks omitted).

11 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. The 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. A group of aliens need not be 17 identical or even virtually identical to citizens to be 18 fully protected by the Fourteenth Amendment. Indeed, 19 citizens and aliens may be sufficiently similar merely 20 because they are both lawful residents. Nor do we think 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.

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." LeClerc v. 4 Webb, 444 F.3d 428, 429 (5th Cir. 2006) (Higginbotham, J., 5 dissenting from the denial of reh'g en banc).*fn13 Rather, the 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.*fn14 See Plyler, 457 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. LeClerc, 419 F.3d at 428-29 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. Certainly, nonimmigrant 19 aliens cannot be said to suffer less from these limitations 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. Non-immigrants do pay taxes, often 11 on the same terms as citizens and LPRs, and certainly on 12 income earned in the United States. See 26 U.S.C. 13 § 7701(b); see also LeClerc, 419 F.3d at 427 n.1 (Stewart, 14 J., dissenting). Further, any claimed distinction based on 15 permanency of residence is equally disingenuous. Although 16 it is certainly true that non-immigrants 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). LeClerc, 419 F.3d at 429 (Stewart, J., 1 dissenting). And the final distinction--limited work 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.*fn15 6 Because most of the distinctions the state would have 7 us make between LPRs and non-immigrants 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--non-immigrants 11 have not yet obtained permission to reside in the United 12 States permanently--and a slew of other differences of 13 uncertain relevance." Adusumelli, 740 F. Supp. 2d at 592.

14 The core of the state's argument (and the analytical 15 pivot of LeClerc and LULAC) is "transience." The state 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 1 basis review of the statute. This focus on transience is 2 overly formalistic and wholly unpersuasive. The aliens at 3 issue here are "transient" in name only. Certainly the 4 status under which they were admitted to the United States 5 was of limited duration. But the reality is quite 6 different. A great number of these professionals remain in 7 the United States for much longer than six years and many 8 ultimately apply for, and obtain, permanent residence.*fn16

9 These practicalities are not irrelevant. They demonstrate 10 that there is little or no distinction between LPRs and the 11 lawfully admitted nonimmigrant plaintiffs here. Therefore, 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 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 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. See 5 Plyler, 457 U.S. at 202. In Plyler the Court applied a 6 heightened rational basis test to invalidate a Texas statute 7 excluding undocumented immigrant children from public 8 schools. Id. at 230. We see no reason to create an 9 exception to the Supreme Court's precedent that would result 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. As Judge Gilman 16 advocated in his LULAC dissent, we should "tak[e] the 17 Supreme Court at its word." 500 F.3d at 542. Neither the 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. Therefore, we hold that the 22 subclass of aliens known as non-immigrants who are lawfully 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. Any discrimination 4 by the state against this group is subject to strict 5 scrutiny review.

6 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." Adusumelli, 740 F. Supp. 2d at 17 598. Citizenship and Legal Permanent Residency carry no 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.*fn17

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. 426 U.S. at 606. As 5 such, the statute unconstitutionally discriminates against 6 plaintiffs in violation of their Fourteenth Amendment 7 rights.

8 The Supremacy Clause and Preemption

9 In addition to challenging the New York statute on 10 Fourteenth Amendment grounds, plaintiffs raise Supremacy 11 Clause and preemption concerns. Although, for the reasons 12 stated below, we are constrained to decide this case on 13 Equal Protection grounds, we nonetheless address these 14 arguments. We agree with the district court that 15 § 6805(1)(6) "is even more clearly unconstitutional [under 16 the principles of the Supremacy Clause] than under the Equal 1 Protection Clause." Adusumelli, 740 F. Supp. 2d at 600. 2 "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." Arizona v. United States, 567 U.S. ___, 2012 WL 8 2368661, *5 (June 25, 2012). Because "discretionary 9 decisions [about immigration] involve policy choices that 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. Id. at *6.

14 When Congress occupies an entire field, "even 15 complementary state regulation is impermissible." Id. at 16 *9. But even if Congress does not occupy an entire field, 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.'" Id. at *12 (quoting Hines v. 21 Davidowitz, 312 U.S. 52, 67 (1941)). Specifically in the 22 lawful alien context, the Court has held that "state 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." DeCanas, 424 U.S. at 358 n.6 5 (1976).

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." 8 C.F.R. § 214.2(h)(4)(v)(A). 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.

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. But that 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. That 9 view makes no sense. 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 non-immigrants should be admitted to the 13 country to practice specialty occupations, . . . [and] 14 allow[s] the states to decide whether non-immigrants (as a 15 class, not as individuals) should be permitted to practice 16 specialty occupations." Adusumelli, 740 F. Supp. 2d at 17 600.

18 New York's law "stands as an obstacle to the 19 accomplishment and execution of the full purposes and 20 objectives of Congress." Freightliner Corp. v. Myrick, 514 21 U.S. 280, 287 (1995) (quoting Hines, 312 U.S. 67). Through 22 the INA, Congress exercised its immigration power to permit 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 specialty occupation they seek to practice. 8 5 U.S.C. § 1184(i)(2)(A). By making immigration status 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 accomplishment and execution of the INA.

11 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. Toll, 458 17 U.S. at 12-13. The state's reliance on Toll is misplaced. 18 The Court there only questioned whether a state could impose 19 additional burdens if Congress only permitted aliens to 20 enter temporarily. It did not hold that states were 21 definitively allowed to impose such burdens. In this case, 22 Congress has done more than merely allow the non-immigrants 1 to enter temporarily. It has granted them permission to 2 work in certain occupations. That alone takes this case out 3 of Toll's potential exception. Ultimately, because of the 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. See Arizona, 2012 WL 2368661, 7 at *6-18.

8 Yet, while we recognize the preemption and Supremacy 9 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. See 19 U.S.C. § 3312(b)(2).

17 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. We 21 find no reason to create a third exception to the rule that 22 alienage is a suspect classification.

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." Takahashi, 334 U.S. at 416. 7 New York cannot, in effect, drive from the state 8 non-immigrants who have federal permission to enter the 9 United States to work. New York Education Law § 6805(1)(6) 10 is unconstitutional.


12 The district court's order of September 30, 2010 13 granting summary judgment to plaintiffs is hereby AFFIRMED.

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