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No. 15-15211, 15-15213, 15-15215
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,
Plaintiffs-Appellees,
v.
JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,
Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona
The Honorable David G. Campbell
No. 2:14—CV-01356 (DGC) (PHX)

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF
SUPPORTING PLAINTIFFS-APPELLEES’ PETITION FOR PANEL
REHEARING OR REHEARING EN BANC

Nicholas Espíritu
Melissa Keaney
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Blvd., Suite 1600
Los Angeles, CA 90010
espiritu@nilc.org
keaney@nilc.org
Telephone: (213) 639-3900
Facsimile: (213) 639-3911

Charanya Krishnaswami
PUBLIC COUNSEL
610 S. Ardmore Ave.
Los Angeles, CA 90005
ckrishnaswami@publiccounsel.org
Telephone: (213) 385-2977
Facsimile: (213) 385-9089

Counsel for Amici Curiae

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Under Federal Rule of Appellate Procedure 29(a) and Ninth Circuit Rule 293, amici curiae the National Immigration Law Center (“NILC”) and co-amici, as
listed in Appendix A, move for leave to file the concurrently submitted amicus
brief in support of panel rehearing or rehearing en banc. Amici urge
reconsideration of the panel’s ruling. All parties have consented to this filing and
this motion is unopposed.
Amici are nonprofit organization that litigate in a variety of issue areas,
including immigration, workers’ rights, constitutional law, and preemption. All
share a common interest in ensuring that plaintiffs can vindicate their civil rights
through facial challenges, which are a critical tool in constitutional litigation. They
submit this brief to provide perspective on the dramatic implications of the panel’s
decision, which departs from established precedent articulating the standard for
facial challenges, and in so doing, undermines civil rights plaintiffs’ ability to seek
court invalidation of unconstitutional statutes. The panel’s holding also departs
from settled Circuit and Supreme Court precedent in the realm of immigration
preemption and creates a circuit split.
///
///
///
1

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Based on the foregoing, amici seek permission from this Court to file the
brief accompanying this motion.
Date: May 26, 2016

Respectfully Submitted,
NATIONAL IMMIGRATION LAW CENTER
s/ Nicholas Espíritu
Nicholas Espíritu, SBN 237665
3435 Wilshire Blvd., Suite 1600
Los Angeles, CA 90010
espiritu@nilc.org
Telephone: (213) 639-3900
Facsimile: (213) 639-3911
Counsel for Amici Curiae

2

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Motion for Leave to
File Amici Curiae Brief Supporting Plaintiffs-Appellees’ Petition for Panel
Rehearing or Rehearing En Banc with the Clerk of the Court for the United States
Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on
May 26, 2016. Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.

NATIONAL IMMIGRATION LAW CENTER
Date: May 26, 2016

/s Nicholas Espíritu
Nicholas Espíritu
Nicholas Espíritu, SBN 237665
3435 Wilshire Blvd., Suite 1600
Los Angeles, CA 90010
espiritu@nilc.org
Telephone: (213) 639-3900
Facsimile: (213) 639-3911
Counsel for Amici Curiae

3

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No. 15-15211, 15-15213, 15-15215
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,
Plaintiffs-Appellees,
v.
JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,
Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona
The Honorable David G. Campbell
No. 2:14—CV-01356 (DGC) (PHX)

BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION LAW
CENTER ET AL. SUPPORTING PLAINTIFFS-APPELLEES’
PETITION FOR PANEL REHEARING OR REHEARING EN BANC

Nicholas Espíritu
Melissa Keaney
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Blvd., Suite 1600
Los Angeles, CA 90010
espiritu@nilc.org
keaney@nilc.org
Telephone: (213) 639-3900
Facsimile: (213) 639-3911

Charanya Krishnaswami
PUBLIC COUNSEL
610 S. Ardmore Ave.
Los Angeles, CA 90005
ckrishnaswami@publiccounsel.org
Telephone: (213) 385-2977
Facsimile: (213) 385-9089

Counsel for Amici Curiae

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TABLE OF CONTENTS
Page No.
TABLE OF AUTHORITIES .................................................................................... ii
IDENTITY AND INTERESTS OF AMICI ..............................................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................3
I. By Applying Salerno in a Novel and Unprecedented Manner, the Panel
Opinion Creates Unwarranted Obstacles for Plaintiffs Challenging
Unconstitutional Laws. .....................................................................................3
A.

The panel’s application of Salerno departs from controlling precedent
examining how the Court is to address facial challenges. .........................4

B.

The panel’s unprecedented holding undermines the ability of civil rights
plaintiffs to rely on courts to invalidate unconstitutional laws. .................7

II.

The Panel’s Decision Deviates from Controlling Precedent in the Realm
of Immigration Preemption and Creates an Inter-Circuit Split..................9

A.

The panel’s decision conflicts with the Arizona decisions issued by this
Court and the Supreme Court. ....................................................................9

B.

The panel’s opinion creates an inter-circuit conflict................................13

CONCLUSION ........................................................................................................15
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................16
STATEMENT OF RELATED CASES ...................................................................16
APPENDIX A ............................................................................................................1

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TABLE OF AUTHORITIES
Page No.
Cases
American Ins. Ass'n v. Garamendi,
539 U.S. 396 (2003) ................................................................................................2
Arizona v. United States,
132 S. Ct. 2492 (2012) .................................................................................. passim
City of Chicago v. Morales,
527 U.S. 41 (1999) ..................................................................................................8
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................8
City of Los Angeles v. Patel,
135 S. Ct. 2443 (2015) ............................................................................................5
Crosby v. Nat'l Foreign Trade Council,
530 U.S. 363 (2000) ................................................................................................2
Farrakhan v. Gregoire,
623 F.3d 990 (9th Cir. 2010) ..................................................................................7
Hunter v. Underwood,
471 U.S. 222 (1985) ................................................................................................7
Jackson v. City & Cnty. of San Francisco,
746 F.3d 953 (9th Cir. 2014) ..................................................................................5
Lopez-Valenzuela v. Arpaio,
770 F.3d 772 (9th Cir. 2014) ........................................................................ passim
Lozano v. City of Hazleton,
724 F.3d 297 (3d Cir. 2013) .................................................................................13
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Misic v. Building Serv. Empl. Health & Welfare Trust,
789 F.2d 1374 (9th Cir. 1986) ................................................................................3
Shelby County v. Holder,
133 S. Ct. 2612 (2013) ............................................................................................6
United States v. Arizona,
641 F.3d 339 (9th Cir. 2011) ....................................................................... passim
United States v. Salerno,
481 U.S. 739 (1987) ...................................................................................... passim
Villas at Parkside Partners v. City of Farmers Branch, Tex.,
726 F.3d 524 (5th Cir. 2013) .......................................................................... 13,14
Other Authorities
David H. Gans, Strategic Facial Challenges,
85 B.U. L. REV. 1334 (2005).................................................................................15
Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges,
99 CAL. L. REV. 915 (2011) ..................................................................................15
Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus
Invalidating Statutes in Toto, 98 VA. L. REV. 301 (2012) ....................................11

iii

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IDENTITY AND INTERESTS OF AMICI 1
Amici curiae National Immigration Law Center, Asian Americans
Advancing Justice, Asian Americans Advancing Justice Los Angeles, Center for
Constitutional Rights, Latino Justice, Lawyers’ Committee for Civil Rights of the
San Francisco Bay Area, Legal Aid Society Employment Law Center, Service
Employees International Union, Southern Poverty Law Center, and Western
Center on Law and Poverty are nonprofit legal organizations who litigate in a
variety of issue areas, including immigration, workers’ rights, constitutional law,
and preemption. All share a common interest in ensuring that plaintiffs can
vindicate their civil rights through facial challenges, which are a critical tool in
constitutional litigation. They urge rehearing of this case because the panel’s
decision departs from established precedent articulating the standard for facial
challenges, and in so doing, undermines civil rights plaintiffs’ ability to seek
court invalidation of unconstitutional statutes. The panel’s holding also departs
from settled Circuit and Supreme Court precedent in the realm of immigration
preemption and creates a circuit split.

1

No party or party’s counsel authored this brief in whole or in part or contributed
money intended to fund preparing or submitting this brief. No person, other than
amici, their members, or counsel, contributed money intended to fund preparing
or submitting this brief.

1

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SUMMARY OF ARGUMENT
Rehearing of this case is warranted to correct the panel’s erroneous
application of United States v. Salerno, 481 U.S. 739 (1987), to facial preemption
challenges. 2 In Salerno, the Supreme Court held that, to facially invalidate a
statute, the challenger must demonstrate there is “no set of circumstances” in
which the law is valid. Id. at 745.
The panel opinion holds that Arizona’s “identity theft laws are not facially
preempted because they have obvious constitutional applications.” Slip Opinion
(“Slip Op.”) at 14. This analysis misses the mark: Salerno does not let state laws
that conflict with federal law stand merely because there are some conceivable
non-preempted applications of the challenged statute. Rather, as this Court has
previously explained, “there can be no constitutional application of a statute that,
on its face, conflicts with Congressional intent and therefore is preempted by the

2

Whether applying the Salerno standard makes sense in the preemption context
is an open question. See United States v. Arizona, 641 F.3d 339, 345 n.3 (9th Cir.
2011), aff’d in part, rev’d in part and remanded, 132 S. Ct. 2492 (observing that
that the Supreme Court’s analogous facial preemption decisions in Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000), and American Insurance
Association v. Garamendi, 539 U.S. 396 (2003), “[n]either cite[] Salerno nor
mention[] its standard in the opinions, concurrences, or dissents.”). Though amici
do not concede that Salerno applies in the facial preemption context, for the
purposes of this brief, they assume the Salerno “no set of circumstances”
standard as controlling.

2

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Supremacy Clause.” United States v. Arizona, 641 F.3d 339, 346 (9th Cir. 2011),
aff’d in part, rev’d in part and remanded, 132 S. Ct. 2492 (2012); 3 see also
Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 789 (9th Cir. 2014).
The panel’s decision should be reexamined for two reasons. First, the
panel’s reading of Salerno is both normatively and descriptively incorrect: it
applies the Salerno standard in an unprecedented manner that will hinder
plaintiffs’ ability to challenge laws violating their constitutional rights. It also
conflicts with established precedent in this circuit and others assessing facial
challenges in the context of immigration preemption.
ARGUMENT
I.

By Applying Salerno in a Novel and Unprecedented Manner, the Panel
Opinion Creates Unwarranted Obstacles for Plaintiffs Challenging
Unconstitutional Laws.
The panel reads Salerno for the proposition that potentially “constitutional

applications” of a statute can immunize it from facial challenge, thus declining to
find the Arizona false identification statutes preempted on their face because they

3

The Supreme Court affirmed this Court’s Arizona decision in part, reversed it in
part, and remanded. See Arizona v. United States, 132 S. Ct. 2492, 2510-11
(2012). Because the Supreme Court did not overrule the panel’s approach as to
the application of Salerno in its review of the facial constitutionality of Section 6,
it remains valid and precedential. See Misic v. Building Serv. Empl. Health &
Welfare Trust, 789 F.2d 1374, 1379 (9th Cir. 1986).
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could be applied in a manner that would not directly infringe upon the federal
immigration employment framework.
But that is not how Salerno works. Rather, where a challenger succeeds in
showing that a law itself – as judged by its text or the circumstances surrounding
its passage – violates the relevant constitutional rule, the entire statute fails.
Lopez-Valenzuela, 770 F.3d at 789 & n.13. Thus, courts regularly invalidate
statutes on their face even if they can be applied to individuals whose conduct
can be regulated by the lawmaking body under a different, constitutional law. By
departing from this settled understanding of how facial challenges are to be
evaluated, the panel opinion creates unprecedented obstacles for plaintiffs
challenging statutes that, by their text and purpose, violate constitutional
principles.
A.

The panel’s application of Salerno departs from controlling
precedent examining how the Court is to address facial
challenges.

In assessing whether a statute should be invalidated on its face, courts ask:
does the statute implicate a constitutional provision, and, if so, does it comport
with the rule that determines whether that constitutional provision is violated?
See Lopez-Valenzuela, 770 F.3d at 789 & n.13 (citing Scott A. Keller & Misha
Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in
Toto, 98 VA. L. REV. 301, 322-24 (2012)). For example, a bail law that infringes
4

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upon an individual’s liberty must be “narrowly tailored,” see id., while a gun law
may not place an impermissible burden on an individual’s right to bear arms, see
Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 962 (9th Cir. 2014).
This inquiry “direct[s] courts to examine the statute at issue and not the facts of
enforcement.” Keller & Tseytlin, Applying Constitutional Decision Rules, at 322.
Recent facial challenges decided by this Court and the Supreme Court
illustrate this point. For example, in Lopez-Valenzuela, this Court, sitting en banc,
held that an Arizona bail law categorically denying bail to undocumented
immigrants was invalid because it was not sufficiently narrowly tailored to meet
the state’s interest in ensuring that undocumented immigrants appeared at their
criminal hearings; instead, it was a “‘scattershot attempt’ at addressing flight
risk.” 770 F.3d at 791. The Court acknowledged that some individuals subject to
detention under the bail law could conceivably be denied bail under a different,
constitutional law, but nevertheless struck down the law on its face. Id. at 789.
Under the panel’s application of Salerno, however, the bail law may well have
survived a facial challenge because of its apparent “constitutional applications.”
Slip Op. at 14.
Similarly, in City of Los Angeles v. Patel, the plaintiff challenged a city
ordinance that empowered officers to demand hotel operators’ records without a
warrant. 135 S. Ct. 2443, 2447-48 (2015). The Supreme Court held that this law
5

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facially violated the Fourth Amendment and rejected the idea that Salerno
categorically barred challenges under this constitutional provision. Id. at 2449.
Yet under the panel’s rule, this ordinance, too, could have been immune to facial
attack because there were conceivable instances in which law enforcement
officers could have constitutionally demanded the records without a warrant. See
id. at 2464-66 (Alito, J., dissenting) (suggesting purported constitutional
applications of the city ordinance).
Likewise, in Shelby County v. Holder, 133 S. Ct. 2612 (2013), the
Supreme Court facially invalidated a provision of the Voting Rights Act on the
basis that Congress exceeded its power under the Fifteenth Amendment in
enacting the coverage formula – even though there was evidence that Alabama
had engaged in voting discrimination and could therefore “justifiab[ly]” have
been subject to a preclearance requirement. Id. at 2646 (Ginsburg, J., dissenting).
The Court distinguished between facial and as-applied challenges, explaining that
“Shelby County’s claim is that the coverage formula here is unconstitutional in
all its applications” because it failed to comply with the relevant constitutional
rule. Id. at 2629-30 (emphasis added). In other words, the fact that the
preclearance requirement could be validly applied even as to its challenger was
irrelevant.

6

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Finally, although laws that disenfranchise individuals with felony
convictions have been held to be constitutional, see Farrakhan v. Gregoire, 623
F.3d 990, 993 (9th Cir. 2010) (en banc), if a law characterized as a “felon
disenfranchisement” measure was in fact substantially motivated by a racially
discriminatory purpose (such as to disenfranchise minority voters), it violates the
Equal Protection Clause on its face, see Hunter v. Underwood, 471 U.S. 222, 233
(1985). In Hunter, the Court struck down a facially neutral voter
disenfranchisement statute because a “substantial or motivating factor” was
discrimination against African Americans. Id. at 228 (internal citations and
quotation marks omitted). Unlike the panel’s decision here, Hunter did not
analyze potentially valid applications of the statute. Instead, it considered the
purpose and effect of the underlying law to determine whether the law violated
the relevant constitutional rule. Id. at 227.
B.

The panel’s unprecedented holding undermines the ability of
civil rights plaintiffs to rely on courts to invalidate
unconstitutional laws.

By applying Salerno in a manner that deviates from precedent, the panel’s
opinion hinders plaintiffs’ ability to mount facial challenges. This is a problem
because facial challenges are critically important to the protection of
constitutional rights. “When asserting a facial challenge, a party seeks to
vindicate not only his own rights, but those of others who may also be adversely
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impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41,
109 n.22 (1999). The “very purpose” of a facial constitutional challenge is to
“protect the rights of all subject to the law, particularly absent parties who might
lose their rights under a case-by-case regime.” David H. Gans, Strategic Facial
Challenges, 85 B.U. L. REV. 1334, 1341 (2005) (emphasis added).4
By contrast, as-applied adjudications, in which each plaintiff must
individually suffer (or imminently face) the impact of an unconstitutional statute
and can only then bring suit, is a “cumbersome” process. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 476 (1985) (Marshall, J., dissenting). Asapplied challenges have a “distorting” effect, “caus[ing] a court to lose sight of a
larger constitutional injury.” Gans, 85 B.U. L. REV. at 1348. Yet the doctrinal
confusion wrought by the panel’s opinion – which conflates unconstitutional
rules and their applications – will make it much more difficult for plaintiffs to
facially challenge unconstitutional laws.
Because the panel’s opinion misapplies Salerno and could render facial
challenges significantly more difficult to mount – and, concomitantly,

4

Not only are facial challenges important, they are also common. Richard H.
Fallon, Jr., Fact and Fiction About Facial Challenges, 99 CAL. L. REV. 915, 91718 (2011) (observing that facial challenges enjoy a 44 percent success rate,
compared with a 38 percent success rate for as-applied challenges).
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constitutional rights significantly more difficult to vindicate – it should be
reconsidered.
II.

The Panel’s Decision Deviates from Controlling Precedent in the
Realm of Immigration Preemption and Creates an Inter-Circuit
Split.
The panel’s application of Salerno suffers from an additional infirmity: is

at odds with this Court and the Supreme Court’s precedent, and creates a conflict
with two out-of-circuit decisions, in the realm of immigration preemption.
Before the panel’s decision here, this Court had held, uniformly with
others, that the relevant question in immigration preemption cases was whether
the state or local ordinance “disrupt[s] the federal framework,” either because the
framework is so “pervasive . . . that Congress left no room for the states to
supplement it,” or because the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”
Arizona v. United States, 132 S. Ct. 2492, 2501-02 (2012). None of these cases
held, as the panel did here, that if just one application of a statute does not offend
the federal scheme, the statute is immune from facial invalidation.
A.

The panel’s decision conflicts with the Arizona decisions
issued by this Court and the Supreme Court.

The panel’s decision conflicts with the decisions of this Court and the
Supreme Court in Arizona v. United States, 641 F.3d 339, 346 (9th Cir. 2011),
aff’d in part and rev’d in part, 132 S. Ct. 2492. In Arizona, this Court addressed a
9

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facial immigration preemption challenge to S.B. 1070, a state law that, among
other measures, authorized state and local law enforcement to arrest those
suspected of committing immigration violations, and which was passed with the
express legislative purpose of encouraging “attrition through enforcement.” Id. at
343. In its discussion of “general preemption principles,” the Court specifically
addressed how Salerno’s “no set of circumstances” test was to be applied in the
context of a facial preemption-based challenge. Id. at 345. Rejecting the
interpretation of Salerno that Arizona officials advanced in that litigation, the
Court “stress[ed]” that the critical question was not “whether state and local law
enforcement officials c[ould] apply the statute in a constitutional way”:
Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not
preempted on its face, and then points out allegedly permissible
applications of it. This formulation misses the point: there can be no
constitutional application of a statute that, on its face, conflicts with
Congressional intent and therefore is preempted by the Supremacy
Clause.
Id. at 346 (emphasis added).
In other words, if the statute aims to regulate in a realm the federal
government has reserved exclusively for itself, or in a manner that conflicts with
the federal scheme, it is immaterial whether there could be isolated instances in
which the application of the statute could operate without infringing upon the
federal scheme.

10

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The Arizona dissent advocated for a position similar to that taken by the
panel here. It argued that Section 6 of S.B. 1070, which allowed peace officers to
arrest individuals suspected of violating the federal immigration laws, was
facially constitutional because there was a “set of circumstances” under which
the provision permitted arrests which also authorized by federal law. Id. at 384
(Bea, J., dissenting in part). The dissent reasoned that in these instances, S.B.
1070 would not conflict with federal law. But, as the panel majority explained,
this is not the test: the “question” is instead “whether federal law likely
preempt[ed] Arizona from allowing its officers to effect warrantless arrests based
on probable cause of removability.” Id. at 361 (emphasis added). In other words,
it was the state legislature’s empowerment of officers to act in a manner
preempted by federal law that rendered the statute invalid, notwithstanding
applications of the statute that might not directly conflict with the federal scheme.
The panel’s decision here also conflicts with the Supreme Court’s Arizona
opinion, which upheld the injunction against Section 6 of S.B. 1070,
notwithstanding its hypothetically valid applications, because it interfered with
the federal scheme. 132 S. Ct. at 2506-07. It was irrelevant that, as the dissenting
Justices suggested, there were “plenty of permissible applications” of this
provision, and that Arizona could limit the provision by “identify[ing] specific
crimes for which there is no doubt an alien would be removable,” thereby
11

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avoiding infringement upon the federal scheme. Id. at 2534-35 (Alito, J.,
dissenting in relevant part). Rather, because the purpose and effect of the state
law were in conflict with the federal scheme, the law was facially preempted. See
id. at 2507.
The panel’s approach here is at odds with both this Court and the Supreme
Court’s immigration preemption holdings in Arizona. Instead of considering the
explicit purpose of the law – which was to target the employment of
undocumented immigrants, see Dkt. 126 at 9 – the panel first searched for a small
handful of hypothetically valid applications of the statute and then concluded
these immunized the statute from Plaintiffs’ facial attack. See Slip Op. at 14-15.
This was precisely the approach rejected in both Arizona decisions. See 132 S.
Ct. at 2534-35 (Alito, J., dissenting in relevant part) (arguing law could be
implemented “in a way that would avoid any conflicts with federal law” by
articulating hypothetical applications); 641 F.3d at 383 (Bea, J., dissenting)
(arguing that SB 1070’s warrantless arrest provision was not preempted because
it could be lawfully applied to an immigrant convicted of murder, who would
undoubtedly be removable under federal law). Because both this Court and the
Supreme Court rejected this reasoning in Arizona, the fact that certain
prosecutions under the Arizona false identification statutes could fall outside the
purview of the federal scheme is not sufficient to reject this facial preemption12

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based challenge. By holding otherwise, the panel’s opinion deviates from
controlling precedent in this Circuit and the Supreme Court.
B. The panel’s opinion creates an inter-circuit conflict.
Not only is the panel’s opinion inconsistent with the precedent of this
Court and the Supreme Court, it also directly contradicts the Third Circuit’s
recent opinion in Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), and
Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524 (5th
Cir. 2013), both of which rejected an interpretation of Salerno that the panel
advances here in the context of facial immigration preemption challenges. The
panel’s holding therefore unnecessarily creates a circuit split.
Lozano involved a challenge to a series of immigration-related ordinances
passed by the city council in a Pennsylvania town, including a provision that
made it unlawful to hire undocumented immigrants. See 724 F.3d at 301-02.
After carefully considering the effect of the Supreme Court’s Arizona decision,
the Third Circuit held the state measure was preempted. See id. at 309-12. It
forcefully rejected the city’s argument that because there were hypothetically
valid applications of the law, the facial attack failed Salerno’s “no set of
circumstances” test. Id. at 313 n.22. The court explained that the city’s approach
“would reject a conflict preemption claim in a facial challenge whenever a

13

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defendant c[ould] conjure up just one hypothetical factual scenario in which
implementation of the state law would not directly interfere with federal law.” Id.
Similarly, the Fifth Circuit recently upheld a permanent injunction against
a city ordinance restricting rental housing to individuals based on immigration
status. Villas at Parkside Partners, 726 F.3d at 528-29. In so doing, it rejected the
dissent’s position that the provision survived the facial preemption challenge
because of its conceivably permissible application to citizens and “legally
resident aliens.” See id. at 564-65 (Jones, J. dissenting) (arguing that “[u]nder
Salerno, if there are any permissible applications of the Ordinance, [the Court]
should not completely invalidate it on the basis of a facial challenge”).
The panel’s opinion here departs from the sound reasoning of the Third
and Fifth Circuits. It does exactly what those courts declined to do, engaging in
speculation about valid applications of the statute, while ignoring the statute’s
clear purpose of infringing upon a comprehensively regulated federal scheme.
Because the panel’s opinion deviates from controlling immigration preemption
precedent in this Circuit and creates a split with two others, it should be reheard.
///
///
///
///
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CONCLUSION
For the foregoing reasons, amici respectfully request this Court grant
Plaintiffs’ request for rehearing.
Date: May 26, 2016

Respectfully Submitted,
NATIONAL IMMIGRATION LAW CENTER
/s Nicholas Espíritu
Nicholas Espíritu
Melissa Keaney
3435 Wilshire Blvd., Suite 2850
Los Angeles, CA 90010
espiritu@nilc.org
keaney@nilc.org
Telephone: 213.639.3900
Facsimile: 213.639.3911
Charanya Krishnaswami
PUBLIC COUNSEL
610 S. Ardmore Ave.
Los Angeles, CA 90005
ckrishnaswami@publiccounsel.org
Telephone: (213) 385-2977
Facsimile: (213) 385-9089
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
This brief complies with the type-volume limitation of Fed. R. App. P.
29(d) and 32(a)(7)(B), because this brief contains 3,168 words excluding the
parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Rule 32(a)(5) and
the type style requirements of Rule 32(a)(6) because this brief has been prepared
in a proportionally spaced typeface using Microsoft Word in 14-point Times New
Roman font.
STATEMENT OF RELATED CASES
Amici are not aware of any related cases pending in this Court.

Date: May 26, 2016

NATIONAL IMMIGRATION LAW CENTER
/s Nicholas Espíritu
Nicholas Espíritu

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APPENDIX A
Pursuant to Federal Rules of Appellate Procedure 29(c) and 26.1, amici
provide the following statement. All are nonprofit organizations with no parent
corporations or publicly traded stock, including the following:
The National Immigration Law Center (“NILC”) is the primary
national organization in the United States exclusively dedicated to defending and
advancing the rights and opportunities of low-income immigrants and their
families. Over the past 35 years, NILC has won landmark legal decisions
protecting fundamental rights, and advanced policies that reinforce our nation’s
values of equality, opportunity, and justice. NILC’s interest in the outcome of
this case arises from its work in federal immigration preemption cases and its
strong interest in ensuring civil rights litigants can continue to safeguard
constitutional rights by mounting facial challenges.
Asian Americans Advancing Justice | AAJC (“Advancing Justice |
AAJC”) is a national nonprofit, non-partisan organization working to advance
the human and civil rights of Asian Americans and build and promote a fair and
equitable society for all. Founded in 1991 and based in Washington, D.C.,
Advancing Justice | AAJC engages in litigation, public policy advocacy, and
community education and outreach on a range of issues, including immigration
and equal opportunity for Asian-American communities.
Appendix A, Page 1

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Asian Americans Advancing Justice - Los Angeles (“Advancing Justice
– LA”), formerly the Asian Pacific American Legal Center, is the nation’s largest
legal and civil rights organization for Asian Americans, Native Hawaiians, and
Pacific Islanders (NHPI). Advancing Justice - LA serves more than 15,000
individuals every year, including Asian Americans and NHPIs who lack effective
access to the courts. Through direct services, impact litigation, policy advocacy
and capacity building, Advancing Justice - LA focuses on vulnerable members of
Asian American and NHPI communities while also building a strong voice for
civil rights and social justice. Advancing Justice – LA has a long history of
challenging unconstitutional laws that infringe on the most fundamental rights of
low-income communities of color.
The Center for Constitutional Rights is a national nonprofit legal,
educational and advocacy organization dedicated to advancing and protecting the
rights guaranteed by the United States Constitution and the Universal Declaration
of Human Rights. Founded in 1966, the Center has litigated numerous landmark
civil and human rights cases which have focused on racial and immigrant justice,
law enforcement accountability, and the protection of vulnerable populations
from state and municipal efforts to undercut federal constitutional rights. We
currently serve as plaintiffs’ counsel in Hassan v. City of New York, 804 F.3d 277
(3d Cir. 2015), which held that a police department’s surveillance of Muslims as
Appendix A, Page 2

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a class was subject to heightened equal-protection review; Floyd v. City of New
York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013), which found that the New York
Police Department’s “stop and frisk” policy systematically violated the Fourth
and Fourteenth Amendment rights of Blacks and Latinos; and Immigrant Defense
Project v. ICE (14-cv-6117) (S.D.N.Y.), which seeks information on the
Department of Homeland Security’s practice of raiding homes to make
immigration arrests.
LATINOJUSTICE PRLDEF is a national Latino civil rights legal
defense fund that has engaged in law reform litigation, advocacy, and education
to defend the civil and constitutional rights of Latinos since 1972. We champion
an equitable society through advancing Latino civil engagement, cultivating
leadership and protecting civil rights and equality in the areas of voting rights,
immigrant rights, and fair access to housing, education and employment. Past
immigrants’ rights litigation matters include the Lozano v. City of Hazleton
landmark case upholding federal preemption of local immigration ordinances
seeking to regulate and restrict Latino residents in the areas of rental housing and
employment cited in the brief herein.
The Lawyers’ Committee for Civil Rights of the San Francisco Bay
Area (“LCCR”) works to advance, protect, and promote the rights of
communities of color, low-income persons, immigrants, and refugees through the
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provision of direct legal services, policy advocacy, and litigation. Throughout its
45-year history, LCCR has challenged various state and local government actions
that infringe upon the rights secured by the U.S. Constitution and federal statutes
to immigrants and other historically disadvantaged groups. LCCR’s interest in
this case stems from its commitment to protecting the rights of its client
communities within the U.S. federal system.
The Legal Aid Society-Employment Law Center (“LAS-ELC”),
founded in 1916, is a national legal services nonprofit that advances and defends
the rights of low-wage workers through a combination of impact and
enforcement litigation, direct services, and administrative and legislative
advocacy. LAS-ELC offers direct assistance to thousands of low-wage workers
and has prosecuted numerous wage and hour, employment discrimination, and
disability rights class actions in the state and federal courts. Through its
Immigration and National Origin Program, LAS-ELC provides legal assistance to
immigrant and other workers who face employment discrimination based on their
national origin. Given LAS-ELC’s extensive work on behalf of immigrant
workers, including regarding immigration-based workplace retaliation, it has a
strong interest in the preemption issues presented by this case.
The Service Employees International Union (“SEIU”) is an
international labor organization representing approximately two million working
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men and women in the United States and Canada employed in the private and
public sectors. Many of SEIU’s members are foreign-born U.S. citizens, lawful
permanent residents, or immigrants authorized to work in the United States.
Many of SEIU’s members have mixed-status families. SEIU and its members
have an interest in Arizona's two identity theft in employment statutes as they
undermine federal labor and employment protections.
The Southern Poverty Law Center (SPLC) has provided pro bono civil
rights representation to low income persons since 1971, with particular emphasis
on combating discrimination by state and local governments. SPLC frequently
litigates challenges to unconstitutional government action in federal district and
appellate courts throughout the nation. SPLC thus has a strong interest in
ensuring that civil rights litigants are able to bring facial challenges to
unconstitutional state laws.
Western Center on Law and Poverty is the oldest and largest statewide
support center for legal services advocates in California. Western Center
represents California’s poorest residents in litigation to advance access to
housing, health, public benefits, jobs and justice. Western Center has frequently
represented clients mounting facial challenges to ordinances and
statutes. Ensuring that such challenges are evaluated under reasonable standards
is critical to Western Center’s racial justice and anti-poverty mission.
Appendix A, Page 5