Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 1 of 20

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FENNEMORE CRAIG, P.C.
Douglas C. Northup (No. 013987)
Timothy Berg (No. 004170)
Sean T. Hood (No. 022789)
2394 E. Camelback Road, Suite 600
Phoenix, AZ 85016-3429
Telephone: (602) 916-5000
Email: dnorthup@fclaw.com
Email: tberg@fclaw.com
Email: shood@fclaw.com
Attorneys for Defendants
Governor Janice K. Brewer, John S. Halikowski
and Stacey K. Stanton
Joseph Sciarrotta, Jr. (No. 017481)
Office of Governor Janice K. Brewer
1700 West Washington St., 9th Floor
Phoenix, AZ 85007
Telephone: (602) 542-1586
Email: jsciarrotta@az.gov
Co-Counsel for Defendant
Governor Janice K. Brewer

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Arizona Dream Act Coalition; Jesus
Castro-Martinez; Christian Jacobo;
Alejandra Lopez; Ariel Martinez; Natalia
Perez-Gallegos; Carla Chavarria; and
Jose Ricardo Hinojos,
Plaintiffs,

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FENNEMORE CRAIG, P.C.
PHOE NI X

v.

No. CV-12-02546-PHX-DGC
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON
PLAINTIFFS’ EQUAL
PROTECTION CLAIM
Oral Argument Requested

Janice K. Brewer, Governor of the State of
Arizona, in her official capacity; John S.
Halikowski, Director of the Arizona
Department of Transportation, in his
official capacity; and Stacey K. Stanton,
Assistant Director of the Motor Vehicle
Division of the Arizona Department of
Transportation, in her official capacity,
Defendants.

(Assigned to the Honorable David G.
Campbell)

Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 2 of 20

INTRODUCTION

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Plaintiffs’ Equal Protection claim fails because Plaintiffs are not similarly situated

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to other individuals who are eligible to obtain Arizona driver’s licenses.

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erroneously allege that, as recipients of deferred action pursuant to the DACA Program,

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they are similarly situated to other individuals who use Employment Authorization Cards

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(“EACs”) to obtain an Arizona driver’s license.

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situated to those EAC holders who are eligible to obtain an Arizona driver’s license under

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ADOT’s policy. DACA recipients do not have authorized presence under federal law,

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they do not have immigration status, they are not on a path to formal immigration status,

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and their C33 EACs correspond to relief that does not arise pursuant to an express

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provision of the Immigration and Nationality Act (the “INA”).

DACA recipients are not similarly

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Unlike every form of relief that corresponds to the categories of EACs that ADOT

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will accept to demonstrate authorized presence under federal law, deferring action

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pursuant to the DACA Program is merely the federal executive’s discretionary decision to

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not enforce federal immigration law with respect to certain individuals who under the

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INA’s express terms should be placed into removal proceedings. As Plaintiffs’ expert Bo

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Cooper described, “DACA provides nothing more than an exercise of prosecutorial

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discretion in the form of deferred action.” [Defendants’ Separate Statement of Facts

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(“SOF”) ¶ 43]

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Because DACA recipients are not similarly situated to any other group that is

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eligible to receive Arizona driver’s licenses, it is unnecessary to proceed to the rational

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basis analysis for the Equal Protection claim and summary judgment should be granted.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

UNDISPUTED MATERIAL FACTS.

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A.

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The United States Congress has repeatedly declined to enact the Development,

Deferred Action and the DACA Program.

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Plaintiffs

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Relief, and Education for Alien Minors Act (“DREAM Act”). See, e.g., DREAM Act of

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2011, S. 952, H.R. 1842, 112th Cong. (2011) (“DREAM Act of 2011”); DREAM Act of

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2010, H.R. 6497, S. 3962, S. 3963, 111th Cong. (2010); DREAM Act of 2007, S. 774,

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110th Cong. (2007). The DREAM Act, if enacted, would provide certain alien minors

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with a path to obtain permanent resident status under federal immigration law. See, e.g.,

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DREAM Act of 2011. [SOF ¶ 1]

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On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland

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Security (“DHS”), issued a memorandum (the “DACA Memorandum”) announcing the

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DACA Program to the directors of U.S. Citizenship and Immigration Services (“USCIS”)

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and U.S. Immigration and Customs Enforcement (“ICE”) and the acting Commissioner of

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U.S. Customs and Border Protection. [SOF ¶ 2] The DACA Memorandum “instructs

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ICE officers to refrain from placing certain aliens who are unlawfully present in the

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United States into removal proceedings.” Crane v. Napolitano, 3:12-CV-03247-O, 2013

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WL 1744422, *2 (N.D. Tex. Apr. 23, 2013) (unpublished) (emphasis added).

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Instead, the agencies are instructed to grant deferred action to a class of illegal

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immigrants that meet certain criteria, [SOF ¶ 4] criteria that are similar to those that would

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have determined eligibility for relief under the DREAM Act. [SOF ¶ 6] Accordingly, the

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population eligible for the DACA Program overlaps significantly with the population that

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would have benefited from enactment of the DREAM Act. [SOF ¶¶ 6-7] This grant of

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deferred action pursuant to the DACA Program results only in the temporary,

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discretionary deferral of removal proceedings. [SOF ¶ 3]

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The DACA Memorandum further provides that DACA recipients may apply for

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EACs for the period of their deferred action. [SOF ¶ 8] The EACs issued to DACA

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recipients are identified with a unique category code – C33 – that is not issued to any

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other group of individuals. [SOF ¶ 8]

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The DACA Memorandum concludes as follows:

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This memorandum confers no substantive right, immigration
status or pathway to citizenship. Only the Congress, acting
through its legislative authority, can confer these rights. It
remains for the executive branch, however, to set forth policy
for the exercise of discretion within the framework of the
existing law. I have done so here.

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[SOF ¶ 5]

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Deferred action is a form of prosecutorial discretion. [SOF ¶ 40] Deferred action,

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except for one express category, is not authorized by the INA or any other federal statute.1

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[SOF ¶ 47]

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protection or benefit. [SOF ¶ 41] Instead, deferred action is merely the decision to not

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enforce federal immigration law with respect to an individual or, in the case of DACA, a

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group of individuals. [SOF ¶ 40] Deferred action perpetuates an ongoing violation of the

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immigration laws and “result[s] in an alien’s continued presence in violation of law.”

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[SOF ¶ 46]
B.

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Deferred action does not provide an individual with any substantive

ADOT Determines That DACA Recipients Are Not Eligible For
Driver’s Licenses.

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Arizona law expressly vests in Mr. Halikowski, the Director of the Arizona

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Department of Transportation (“ADOT”), broad statutory authority and discretion to

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administer and enforce Arizona’s transportation laws and to exercise any duties or powers

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he deems necessary to carry out the efficient operation of ADOT. See, e.g., A.R.S. § 28-

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363 (“The director shall… [s]upervise and administer the overall activities of the

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department and its divisions and employees… [and] [e]xercise other duties or powers as

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the director deems necessary to carry out the efficient operation of the department.”); see

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also A.R.S. § 28-364. [SOF ¶¶ 9-10]
More specifically, Arizona law vests significant statutory authority and discretion

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The INA provides for deferred action for derivative children of self-petitioners under the
Violence Against Women Act (“VAWA”). 8 U.S.C. § 1154(a)(1)(D). [SOF ¶ 49]

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in ADOT, and ultimately the Director, with respect to driver’s license issuance. Arizona’s

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statute governing driver’s license issuance provides in pertinent part as follows:

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Notwithstanding any other law, the department shall not issue
to or renew a driver license or nonoperating identification
license for a person who does not submit proof satisfactory to
the department that the applicant’s presence in the United
States is authorized under federal law.

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A.R.S. § 28-3153(D) (emphasis added). [SOF ¶ 11] Accordingly, Arizona law prohibits

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ADOT from issuing a driver’s license to an applicant who does not present proof that his

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or her presence in the United States is authorized under federal law.

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Arizona law vests ADOT, and ultimately the Director, with the authority and the

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responsibility to determine what proof shall be deemed satisfactory to demonstrate that an

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applicant’s presence is authorized under federal law. A.R.S. § 28-3153(D).

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After the DACA Memo was issued, but before Governor Brewer issued Executive

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Order 2012-06 (the “Executive Order”), Director Halikowski and his advisors began

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analyzing whether the EAC issued to DACA recipients would constitute satisfactory proof

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“that the applicant’s presence in the United States” was “authorized under federal law.”

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[SOF ¶ 12]. Based on an intensive review of the DACA Program, which included ADOT

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seeking guidance from USCIS, Director Halikowski and ADOT determined that DACA

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recipients did not have authorized presence under federal law. [SOF ¶¶ 18-22]

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On September 17, 2012, ADOT revised Policy 16.1.4 to provide that C33 EACs

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would not be accepted as proof of authorized presence for purposes of obtaining an

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Arizona’s driver’s license (the “2012 Policy”). [SOF ¶ 23]

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C.

Director Halikowski’s Further Review and Amendment of ADOT’s
Policy.

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ADOT previously and erroneously accepted EACs as proof of authorized presence

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under federal law. [SOF ¶ 14] Federal immigration law is very complicated and, before

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the massive, public change in federal prosecutorial discretion was announced, ADOT did

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Furthermore,

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not have an understanding that relief corresponding to certain EACs may actually

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constitute nothing more than a decision to not enforce federal immigration law. [SOF

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¶¶ 15-16]

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through its investigation and policy review that was prompted by the announcement of the

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DACA Program, ADOT learned that there may be other EACs that do not provide

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sufficient proof that an applicant has authorized presence under federal law, e.g. Category

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Code C14 EACs that are issued to certain deferred action recipients. [SOF ¶¶ 15-16, 28]

As Director Halikowski stated in his Declaration dated January 9, 2013,

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Accordingly, subsequent to ADOT’s policy change in September 2012, Director

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Halikowski and ADOT continued to review Policy 16.1.4 to assess whether there are

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EACs that should not be accepted to ensure compliance with Arizona law. [SOF ¶¶ 28-

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31] Director Halikowski considered immigration practitioners’ media statements stating

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that the authorized presence analysis was the same for deferred action recipients as for

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DACA recipients, and the Director wanted to ensure that Policy 16.1.4 was applied

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consistently.

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ongoing review and that further revisions to Policy 16.1.4 were being considered. [SOF ¶

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29]

[SOF ¶ 28]

Defendants notified the Court and Plaintiffs of ADOT’s

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In connection with his review of the “authorized presence” requirement of A.R.S.

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§ 28-3153(D) and Policy 16.1.4, Director Halikowski determined that an EAC would be

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deemed satisfactory proof to the Department for establishing authorized presence under

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federal law if it met one of three criteria. [SOF ¶ 30]

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satisfactory to the Department that the applicant has authorized presence under federal law

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if the EAC demonstrates (1) that the applicant has formal immigration status, (2) that the

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applicant is on a path to obtaining a formal immigration status, or (3) that the relief sought

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or obtained is expressly provided for pursuant to the INA. [SOF ¶ 31]

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Applying these three criteria, Director Halikowski determined that EACs

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corresponding to DACA, deferred action, and deferred enforced departure do not

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An EAC constitutes proof

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demonstrate authorized presence under federal law. [SOF ¶ 32] Therefore, following

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completion of the Director’s review, ADOT revised Policy 16.1.4 (the “Policy”) on

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September 17, 2013. The Policy states, in pertinent part:

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A. USCIS Employment Authorization Card (EAC) with one
of the following category codes is not acceptable:

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Category A11 (deferred enforced departure),

Category C14 (deferred action), or

Category C33 (deferred action for childhood arrivals)

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[SOF ¶ 33] ADOT accepts other EACs as proof of presence authorized under federal law

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for the purpose of obtaining an Arizona driver’s license. As explained below, holders of

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Category Code C33 EACs are not similarly situated to other EAC holders who are eligible

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to obtain an Arizona driver’s license.

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II.

STANDARD OF REVIEW.

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Summary judgment is appropriate if “there is no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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Equal Protection claims are appropriately resolved on summary judgment where a

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plaintiff fails to raise a triable issue of material fact as to whether he or she was treated

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any differently than others similarly situated. See, e.g., Furnace v. Sullivan, 705 F.3d

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1021, 1031 (9th Cir. 2013); Marcavage v. City of Chicago, 659 F.3d 626, 631-32 (7th Cir.

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2011) (“Whether persons are similarly-situated is a question of fact that is appropriately

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resolved on summary judgment when no reasonable fact-finder could determine that the

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plaintiffs have met their burden on the issue.”).

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Although determining whether Plaintiffs are similarly situated to any other group

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that is eligible to receive Arizona driver’s licenses arguably involves mixed questions of

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fact and law, discovery has demonstrated that there is no genuine issue of material fact.

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The uncontroverted facts and relevant law demonstrate that Plaintiffs are not similarly

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situated to other EAC holders who are eligible to obtain an Arizona driver’s license.

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III.

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PLAINTIFFS’ EQUAL PROTECTION CLAIM FAILS AS A MATTER OF
LAW.
A.

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Legal Standard For An Equal Protection Claim.

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The Equal Protection Clause prohibits states from “denying to any person within its

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jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.2 To prevail

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on an Equal Protection claim, a plaintiff “must make a showing that a class that is

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similarly situated has been treated disparately.” Christian Gospel Church, Inc. and Cnty.

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Of S.F., 896 F.2d 1221, 1225-36 (9th Cir. 1990), superseded on other grounds by 42

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U.S.C. § 2000e. “To be considered ‘similarly situated,’ the control group must be ‘prima

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facie identical in all relevant respects.’” Wilkins v. City of Tempe, CV09-00752-PHX-

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MHM, 2010 WL 94116, *5 (D. Ariz. Jan. 6, 2010) (emphasis added); Nordlinger v. Hahn,

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505 U.S. 1, 10 (1992) (holding that to be similarly situated, persons must be alike “in all

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relevant respects”).

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The first step in an Equal Protection analysis is determining whether the individual

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Plaintiffs are similarly situated to other unauthorized immigrants holding EACs who are

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eligible to obtain driver’s licenses in Arizona. See, e.g., United States v. Armstrong, 517

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U.S. 456, 470 (1996); Christian Gospel Church, Inc., 896 F.2d at 1225. Only if the Court

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determines that DACA recipients are similarly situated to other groups that have been

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issued EACs and are eligible to receive an Arizona driver’s license must the Court address

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whether ADOT’s Policy is rationally related to a legitimate state interest. Heller v. Doe,

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509 U.S. 312, 319-20 (1993).3 Discovery has confirmed that Plaintiffs’ claim fails as a

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On May 16, 2013, following an evidentiary hearing, the district court entered an order
that: (1) granted Defendants’ Motion to Dismiss Plaintiffs’ Supremacy Clause claim; (2)
denied Defendants’ Motion to Dismiss Plaintiffs’ Equal Protection claim; and (3) denied
Plaintiffs’ Motion for Preliminary Injunction. [SOF ¶¶ 24-27] As a result, the only
remaining claim is Plaintiffs’ Equal Protection claim. [SOF ¶¶ 24-27]
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Defendants’ rational bases are not at issue in this Motion because Plaintiffs cannot

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matter of law because DACA recipients are not similarly situated to EAC holders who are

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eligible to obtain an Arizona driver’s license.

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B.

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The basis of Plaintiffs’ Equal Protection Clause claim is that ADOT “discriminates

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against DACA recipients by singling out and denying driver’s licenses to individuals

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granted deferred action under the DACA program while granting licenses to all other

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individuals granted deferred action or other forms of temporary authorization to remain in

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the United States.” Amended Complaint, ¶ 74. Significantly, however, ADOT revised

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the Policy in September 2013, providing that neither Category Code C14 EACs (deferred

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action) nor Category Code A11 (deferred enforced departure) are acceptable to

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demonstrate authorized presence just as Category Code C33 EACs are not acceptable.

The Court Must Analyze the Revised Policy, Not the 2012 Policy.

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Where, as here, a challenged policy is revised or amended, the Court must review

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the policy as it now exists in order to avoid issuing an advisory opinion. See, e.g.,

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Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (“It is an

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inexorable command of the United States Constitution that the federal courts confine

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themselves to deciding actual cases and controversies.”). The jurisdictional limitation of

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Article III is not relaxed in the declaratory judgment or injunctive relief contexts. Id. at

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1129; see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 479 (1990). The United States

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Supreme Court has explained that even where a law is amended pending appellate review,

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courts “must review the judgment of the District Court in light of [state] law as it now

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stands, not as it stood when the judgment below was entered.” Diffenderfer v. Cent.

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Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414 (1972) (citing several cases that

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stand for the same proposition).

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satisfy the similarly situated analysis, and because the rational basis analysis in this case is
factually intensive and not suitable for resolution through summary judgment.

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C.

DACA Recipients Are Not Similarly Situated In Every Relevant
Respect To Any Other Group Eligible For Arizona Driver’s Licenses.

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The issue before the Court is whether DACA recipients are similarly situated in

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every relevant respect to any other group with EACs who receive Arizona driver’s

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licenses. In other words, Plaintiffs’ burden is to establish that they and another group that

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is eligible for Arizona driver’s licenses are identical in all respects relevant to ADOT’s

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Policy. See, e.g., Order dated May 16, 2013 (Dkt. 114) (“The question is not whether

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DACA recipients are identical in every respect to other deferred action recipients, but

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whether they are the same in respects relevant to the driver’s license policy.”) (citing

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Nordlinger, 505 U.S. at 10).

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There is a significant and highly relevant dissimilarity between a DACA recipient

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who presents a C33 EAC and a holder of any of the EACs that ADOT will accept to

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demonstrate authorized presence. A C33 EAC corresponds to a mere decision to not

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enforce federal immigration law with respect to the holder, and it does not satisfy any of

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Director Halikowski’s three criteria for determining whether an EAC constitutes proof

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satisfactory to the Department that the applicant has authorized presence under federal law

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for purposes of A.R.S. § 28-3453(D). [SOF ¶ 37] In contrast, every category of EAC that

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ADOT accepts to demonstrate authorized presence satisfies at least one of Director

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Halikowski’s criteria. [SOF ¶ 38]

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corresponds to relief expressly afforded through the INA. [SOF ¶ 39]

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In fact, every category of EAC that ADOT accepts

This dissimilarity is directly relevant to ADOT’s Policy.

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requires the Director to determine what proof is satisfactory to demonstrate that an

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applicant is “lawfully present in the United States under federal law,” A.R.S. § 28-

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3153(D), and Director Halikowski has looked to the INA, which is the federal law that

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establishes which foreign nationals are authorized to be present in the United States. The

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DACA Program does not arise pursuant to the INA and, accordingly, Plaintiffs are not

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Arizona state law

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similarly situated in every relevant respect to groups eligible for Arizona driver’s licenses.

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Because all groups that Plaintiffs will point to in attempting to find a similarly situated

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group either have lawful status, are on a path to lawful status, or have an EAC that is tied

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to relief provided for under the INA, Plaintiffs’ Equal Protection claim fails.

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1.

Plaintiffs Do Not Have Authorized Presence Under Federal Law.

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As an initial matter, Plaintiffs will likely argue that they are entitled to driver’s

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licenses because their presence is authorized under federal law, which is the requirement

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under A.R.S. § 28-3453(D) that must be met in order to obtain a driver’s license.

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Plaintiffs’ experts argue that DACA recipients’ presence is authorized under “federal law”

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by virtue of the INA’s general grant of enforcement authority to DHS and as a result of

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the inherent authority to exercise prosecutorial discretion. [SOF ¶ 48] This argument is

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erroneous.4 Federal law – the INA – provides that DACA eligible aliens should be placed

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into removal proceedings. See, e.g., 8 U.S.C. § 1225(b)(2)(A).

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A grant of deferred action does not arise pursuant to the INA; rather, it is a decision

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to not enforce the INA. [SOF ¶ 40] Indeed, deferring a removal action perpetuates an

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ongoing violation of federal immigration law. See, e.g., 8 U.S.C. § 1225(b)(2)(A). [SOF

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¶ 46] Both Plaintiffs’ experts and Defendants’ expert agree that DACA does not confer a

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formal immigration status. [SOF ¶¶ 42-43] The parties’ experts also agree that DACA

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does not provide a path to obtaining a formal immigration status. [SOF ¶¶ 44-45] Finally,

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the parties’ experts agree that DACA is not provided for pursuant to the INA. [SOF ¶¶ 47-

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Many of Plaintiffs’ experts’ opinions constitute inadmissible legal opinions and are
therefore immaterial to the parties’ summary judgment briefing, just as they would be
immaterial is the case were to proceed to trial. Fed. R. Civ. P. 56(c)(2) and (4) (facts used
to support or oppose a motion for summary judgment must be admissible in evidence);
Knoell v. Metro. Life Ins. Co., 163 F. Supp. 2d 1072, 1078 (D. Ariz. 2001); Nationwide
Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008). Defendants
address these contentions in this Motion because Plaintiffs can be expected make legal
arguments consistent with their experts’ legal opinions, and Defendants do not waive any
evidentiary or other objections with respect to these legal opinions. See, e.g., Fed. R. Civ.
P. 56(c)(2) and Fed. R. Evid. 702.

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48]

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The Court has already rejected similar arguments made by Plaintiffs in the context

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of their Supremacy Clause claim, which was dismissed by this Court’s May 16, 2013

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(“May 16, 2013 Order”). The Court rejected Plaintiffs’ initial argument that the DACA

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Memorandum constituted “federal law” that preempted ADOT’s Policy. May 16, 2013

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Order at 11-12 (“The memorandum does not have the force of law.”).

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subsequently modified their preemption argument to assert that Policy 16.1.4 “‘conflicts

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with Congress’s decision to grant discretion to the Executive Branch to enforce the

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immigration laws[.]’” May 16, 2013 Order at 12 (quoting Doc. 99 at 15) (emphasis in the

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original); see also Transcript of March 22, 2013 Oral Argument at 50:17-22. The Court

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rejected this argument as well. May 16, 2013 Order at 12-13. (“[T]he Court certainly

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cannot impute the intentions of the DACA program to Congress when Congress itself has

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declined repeatedly to enact legislation that would accomplish the goals of the DACA

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program.”) (citing DREAM Act of 2011).

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Crane v. Napolitano, 3:12–cv–03247–O, 2013 WL 1744422 (N.D. Tex. Apr. 23,

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2013) demonstrates conclusively that Plaintiffs’ reliance on DHS’s general enforcement

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authority is misplaced. In Crane, several ICE agents filed suit alleging that the DACA

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Memorandum, referred to by the court as the “Directive,” required them to violate federal

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law or face possible discipline for refusing to comply with the Directive. Id. at *3. The

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ICE agents alleged that the Directive expressly violates 8 U.S.C. § 1225, which “requires

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immigration officers to initiate removal proceedings when they encounter illegal

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immigrants who are not ‘clearly and beyond a doubt entitled to be admitted,’ and that any

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‘prosecutorial discretion’ can only be exercised after removal proceedings have been

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initiated.” Id. at *5 (quoting § 1225).

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After engaging in a thorough analysis of the statute, the court held that “Directive-

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eligible aliens would fall under Section 1225(b)(2)(A)’s instruction that immigration

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Plaintiffs

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officers ‘shall’ initiate removal proceedings under Section 1229a.”

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Accordingly, the court found that “Plaintiffs were likely to succeed on the merits of their

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claim that the Department of Homeland Security has implemented a program contrary to

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congressional mandate.” Id. at *1.5

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Secretary Napolitano argued that nothing in 8 U.S.C. § 1225(b)(2)(A) abrogated

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DHS’s general enforcement authority, including the capacity to exercise prosecutorial

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discretion in the form of deferred action. Id. at *5. The court rejected this argument.

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“The Court finds that Congress’s use of the word ‘shall’ in Section 1225(b)(2)(A) imposes

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a mandatory obligation on immigration officers to initiate removal proceedings against

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aliens they encounter who are not ‘clearly and beyond a doubt entitled to be admitted.’”

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Id. at *8. Accordingly, the court found “that Congress, by using the mandatory term

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‘shall’ in Section 1225(b)(2)(A), has circumscribed ICE’s power to exercise discretion

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when determining against which ‘applicants for admission’ it will initiate removal

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proceedings.” Id. at *9 (quoting 8 U.S.C. § 1225(b)(2)(A)). The court elaborated further

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as follows:

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Because immigration law is not “within [the Executive’s] domain and
beyond control by Congress,” Congress has the ability to eliminate DHS’s
discretion with respect to when to initiate removal proceedings against an
alien, and DHS cannot implement measures that are incompatible with
Congressional intent….
*
*
*
Because Congress has the power to legislate in the area of immigration law
and has expressed its intent to require the initiation of removal proceedings
against aliens when the requirements of Section 1225(b)(2)(A) are satisfied,
the Court finds that DHS does not have discretion to refuse to initiate
removal proceedings when the requirements of Section 1225(b)(2)(A) are
satisfied.

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Id. at *13 (citing Heckler v. Chaney, 470 U.S. 821, 833 (1985) for the proposition that
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The court later dismissed the claims for lack of subject matter jurisdiction due to the
Collective Bargaining Agreement and the Civil Service Reform Act. Crane v.
Napolitano, 3:12-CV-03247-O, 2013 WL 8211660, *1 (N.D. Tex. July 31, 2013)
(unpublished).

FENNEMORE CRAIG, P.C.
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Id. at *10.

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“Congress may limit an agency’s exercise of enforcement power if it wishes, either by

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setting substantive priorities, or by otherwise circumscribing an agency’s power to

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discriminate among issues or cases it will pursue”) (emphasis added).

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The court’s thorough analysis in Crane demonstrates that DHS’s general

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enforcement authority does not include the discretion to defer removal proceedings

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expressly mandated by 8 U.S.C. § 1225(b)(2)(A). Id. at *10, *13. Plaintiffs are therefore

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wrong as a matter of law when they argue that DHS’s general enforcement authority

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somehow bestows authorized presence under federal law upon individuals that the INA

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mandates be placed into removal proceedings.

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For the foregoing reasons, Plaintiffs’ argument that a DACA recipient has

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authorized presence under federal law by virtue of the INA’s general grant of enforcement

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authority to DHS and the inherent authority to exercise prosecutorial discretion is

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erroneous as a matter of law. Indeed, declining to initiate removal proceedings results in

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an ongoing violation of federal law. [SOF ¶ 46] Accordingly, Plaintiffs do not have

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authorized presence under federal law.

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2.

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DACA Recipients Are Not Similarly Situated to Holders of C9
(Adjustment of Status) or C10 EACs (Cancellation of Removal /
Suspension of Deportation).

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Each of the categories of EAC that is deemed by ADOT to be sufficient to obtain a

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drivers’ license is materially different from those of the DACA recipients that the holders

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of those EACs are not similarly situated to DACA recipients. For example, Category

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Code C9 EACs are provided to individuals seeking an adjustment of status pursuant to the

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INA. 8 U.S.C. § 1255; 8 C.F.R. § 274.a.12(c)(9). [SOF ¶ 52]. 8 U.S.C. § 1255 provides

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for “[a]djustment of status of nonimmigrant to that of person admitted for permanent

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residence.” Permanent residence results in formal status, and permanent residents receive

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green cards that signify their lawful permanent residency. [SOF ¶ 52] Accordingly, a C9

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EAC holder is on a path to obtaining a formal immigration status, and the relief sought is

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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 15 of 20

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expressly provided for pursuant to the INA. A holder of a C33 EAC is therefore not

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similarly situated to a holder of a C9 EAC, because, by contrast, a C33 EAC merely

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signifies a discretionary decision to not enforce the INA with respect to the holder.

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Category Code C10 EACs correspond to cancellation of removal and suspension of

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deportation. 8 U.S.C. § 1229b; 8 C.F.R. § 274.a.12(c)(10). Like adjustment of status,

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cancellation of removal and suspension of deportation are forms of relief based in the

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INA, although suspension of deportation was abrogated effective April 1, 1997 pursuant

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legislative changes to the INA. [SOF ¶ 53] 8 U.S.C. § 1229b provides for the cancelation

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of removal of an alien under certain circumstances and the adjustment of that alien’s

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status to that of person admitted for permanent residence. Similarly, former 8 U.S.C. §

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1254 provided for the suspension of deportation of an alien under certain circumstances

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and for the adjustment of that alien’s status to that of person admitted for permanent

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residence. In both instances, achieving permanent residence results in the issuance of a

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green card and formal status. Just like a C9 EAC, a C10 EAC satisfies two of Director

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Halikowski’s criteria, and holders of C33 EACs are not similarly situated to C10 holders.

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3.

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DACA Recipients Are Not Similarly Situated to Holders of C31
EACs (VAWA Self-Petitioners).

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Category Code C31 EACs are provided to individuals who have filed approved

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self-petitions pursuant to the Violence Against Women Act. [SOF ¶ 58]6 Pursuant to

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8 U.S.C. § 1154(a)(1), an abused spouse or child of a lawful permanent resident or a U.S.

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citizen or the parent of an abused child may file a self-petition to attain the status of an

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alien lawfully admitted to the United States for permanent residence. [SOF ¶ 58] This

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constitutes a pathway to formal immigration status and relates to relief expressly afforded

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through the INA, and a C33 EAC holder is therefore not similarly situated to a C31 EAC

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6

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8 C.F.R. § 274a.12, the regulation that sets forth the various categories of EACs, has not
been updated to account for the C31 category corresponding to VAWA, just as it has not
been updated to account for the C33 category corresponding to DACA.

FENNEMORE CRAIG, P.C.
PHOE NI X

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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 16 of 20

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holder.
4.

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DACA Recipients Are Not Similarly Situated to Holders of C8
EACs (Asylum).

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Category Code C8 EACs are provided to individuals who have filed a complete

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application for asylum pursuant to 8 U.S.C. § 1158. [SOF ¶ 51] This, again, is relief

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expressly provided for pursuant to federal law, as opposed to a discretionary decision to

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not enforce the INA. [SOF ¶ 51] Accordingly, a C33 EAC holder is therefore not

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similarly situated to a C11 EAC holder.

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5.

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DACA Recipients Are Not Similarly Situated to Holders of C11
EAC Holders (Parole)

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Category Code C11 EACs are provided to individuals who are paroled into the

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United States pursuant to 8 U.S.C. § 1182(b)(5)(A). [SOF ¶ 55] The period of a parolee’s

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stay is expressly authorized under federal law, i.e. 8 U.S.C. § 1182(b)(5)(A), [SOF ¶ 55]

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and a C33 EAC holder is therefore not similarly situated to a C11 EAC holder.

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6.

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DACA Recipients Are Not Similarly Situated to Holders of C16
EACs (Registry).

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Category Code C16 EACs are issued to individuals who have applied to regularize

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their status – a process call “registry” – pursuant to 8 U.S.C. § 1259. [SOF ¶ 56] A

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registry application results in adjustment to permanent resident status and the issuance of

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a green card. [SOF ¶ 56] For each of these reasons, a C33 holder is not similarly situated

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to a holder of a C16 EAC.

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7.

DACA Recipients Are Not Similarly Situated to Holders of C18
EACs (Order of Supervision).

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Category Code C18 EACs are issued to aliens who receive release under an order

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of supervision. 8 U.S.C. § 1231(a); 8 C.F.R. § 274a.12(c)(18). [SOF ¶ 57] As with the

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relief corresponding to the other EACs accepted by ADOT to demonstrate authorized

FENNEMORE CRAIG, P.C.
PHOE NI X

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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 17 of 20

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presence, this relief is expressly provided for pursuant to the INA, 8 U.S.C. § 1231(a), and

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a C33 holder is therefore not similarly situated to a holder of a C18 EAC.

3

CONCLUSION

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Plaintiffs cannot prevail on an Equal Protection claim because they cannot show

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that DACA recipients relying upon the unique and newly created C33 EAC category have

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authorized presence and therefore are similarly situated to a group that is eligible to

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receive Arizona driver’s licenses. Arizona law prohibits ADOT from issuing Arizona

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driver’s licenses to individuals that cannot demonstrate authorized presence in the United

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States under federal law. Plaintiffs are beneficiaries of the federal executive branch’s

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discretionary decision not to enforce federal immigration law against them. This does not

11

bestow upon Plaintiffs authorized presence under federal law. Plaintiffs, as C33 EAC

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holders, are not similarly situated to holders of the EACs that ADOT accepts because each

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respective form of relief corresponding to these acceptable EACs arises through express

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provisions of the INA.

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Defendants’ rational bases, and Plaintiffs’ Equal Protection claim is properly resolved

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through summary judgment.

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Accordingly, it is unnecessary for this Court to address

For the foregoing reasons, Defendants respectfully request that the Court enter
summary judgment in their favor on Plaintiffs’ Equal Protection claim.

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FENNEMORE CRAIG, P.C.
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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 18 of 20

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DATED this 30th day of April, 2014.
FENNEMORE CRAIG, P.C.

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By s/ Sean T. Hood
Douglas C. Northup
Timothy Berg
Sean T. Hood
Attorneys for Defendants
Governor Janice K. Brewer, John S.
Halikowski and Stacey K. Stanton

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- and –

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Joseph Sciarrotta, Jr.
Office of Governor Janice K. Brewer
Co-Counsel for Defendant
Governor Janice K. Brewer

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FENNEMORE CRAIG, P.C.
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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 19 of 20

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CERTIFICATE OF SERVICE

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I hereby certify that on April 30, 2014, I electronically transmitted the attached
document to the Clerk’s Office using the ECF System for filing and transmittal of a
Notice of Electronic Filing to the following ECF registrants:

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Jennifer Chang Newell
Cecillia D. Wang
Araceli Martinez-Olguin
Michael Tan
Christine P. Sun
R. Orion Danjuma
American Civil Liberties Union Foundation
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
Email: jnewell@aclu.org
Email: cwang@aclu.org
Email: amartinez-olguin@aclu.org
Email: mtan@aclu.org
Email: csun@aclu.org
Email: odanjuma@aclu.org
Lee Gelernt
Jessica Polansky
American Civil Liberties Union Foundation
Immigrants’ Rights
Project
125 Broad St., 18th Floor
New York, NY 1004
Email: lgelernt@aclu.org
Email: irp_jp@aclu.org
Daniel J. Pochoda
James Duff Lyall
ACLU Foundation of Arizona
3707 N. Seventh St., Suite 235
Phoenix, AZ 85014
Email : dpochoda@acluaz.org
Email: jlyall@acluaz.org
Linton Joaquin
Karen C. Tumlin
Shiu-Ming Cheer
Nora A. Preciado
Nicholas Espirtu
National Immigration Law Center
3435 Wilshire Blvd., Suite 2850
Los Angeles, CA 90010
Email: joaquin@nilc.org
Email: tumlin@nilc.org
Email: cheer@nilc.org

FENNEMORE CRAIG, P.C.
PHOE NI X

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Case 2:12-cv-02546-DGC Document 247 Filed 04/30/14 Page 20 of 20

Email: preciado@nilc.org
Email: espiritu@nilc.org

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Tanya Broder
National Immigration Law Center
405 Fourteenth St., Suite 401
Oakland, CA 94612
Email: Broder@nilc.org

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Victor Viramontes
Jorge Martin Castillo
Mexican American Legal
Defense and Educational Fund
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
Email: vviramontes@maldef.org
Email: jcastillo@maldef.org

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s/ Phyllis Warren
An employee of Fennemore Craig, P.C.

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9104303.3

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FENNEMORE CRAIG, P.C.
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