     10-4397-cv
     PAIDI v. MILLS
 1
 2                    UNITED STATES COURT OF APPEALS
 3
 4                        FOR THE SECOND CIRCUIT
 5
 6
 7
 8                          August Term, 2011
 9
10     (Argued: January 9, 2012           Decided: July 10, 2012)
11
12                        Docket No. 10-4397-cv
13
14
15     VENKAT RAO DANDAMUDI, NAVEEN PARUPALLI, SUNITHA TALLURI,
16      NAREEN ADUSUMELLI, JITENDRA KUMAR PATEL, LAVANYA AKULA,
17    HAREEN KARRA, HOLLY ELIZABETH BENOIT, YECHAM KUMARASWAMY,
18       GRACE CHAN, HERNG YIH LAI, JITENDRA KESHAVLAL PATEL,
19     SUMIRKUMAR S. TALATI, SIREESH K. THUMMALAPALLY, KAICHUAN
20                                YEH,
21
22                                          Plaintiffs-Appellees,
23
24         VISHNU AKULA, BALAJI DUDDUKURU, MURALI KOTHURI,
25                         ALANNA FARRELL,
26
27                             Consolidated Plaintiffs-Appellees,
28
29      LAKSHMAN RAO PAIDI, NITASHA KHURANA, YOUNG MEE LEE, XUAN
30    UYEN NGHIEM, SIRISHA PARUPALLI, YVONNE MAY PERRY, HARINATH
31     TALAMPALLY, RAVI KUMAR CHENNA, GETU NAGASA, PHUONG GIANG,
32        NGOC BUI, SEONG MI SEO KIM, KRISHNA KISHORE INAPURI,
33
34                                                      Plaintiffs,
35
36                                –v.–
37
38    MERRYL H. TISCH, Chancellor of the New York State Board of
39       Regents, DAVID STEINER, Commissioner of Education,
40
41                                           Defendants-Appellants,
42
43
44
 1
 2    RICHARD P. MILLS, Commissioner of Education, NEW YORK STATE
 3     DEPARTMENT OF EDUCATION, ROBERT M. BENNETT, Chancellor of
 4   the New York State Board of Regents, NEW YORK STATE BOARD OF
 5                              REGENTS,
 6
 7                                                       Defendants.
 8
 9
10   Before:
11       WESLEY, HALL, Circuit Judges, UNDERHILL, District Judge.*
12
13        Appeal from an order of the United States District
14   Court for the Southern District of New York (Holwell, J.),
15   entered on September 30, 2010, granting plaintiffs’ motions
16   for summary judgment and enjoining defendants from applying
17   or enforcing New York Education Law § 6805(1)(6) against
18   plaintiffs.
19
20       AFFIRMED.
21
22
23
24            ANDREW B. AYERS, Assistant Solicitor General
25                 (Barbara D. Underwood, Solicitor General,
26                 Denise A. Hartman, Assistant Solicitor
27                 General, on the brief), for Eric T.
28                 Schneiderman, Attorney General of the State of
29                 New York, Albany, NY, for Defendants-
30                 Appellants.
31
32            MARGARET A. CATILLAZ (Jeffrey A. Wadsworth, on the
33                 brief), Harter Secrest & Emery LLP, Rochester,
34                 NY, for Plaintiff-Appellee Alanna Farrell.
35
36            KRISHNAN CHITTUR, Chittur & Associates, P.C., New
37                 York, NY, for remaining Plaintiffs-Appellees.
38
39
40

         *
          Judge Stefan R. Underhill, of the United States
     District Court for the District of Connecticut, sitting by
     designation.
                                    2
 1   WESLEY, Circuit Judge:

 2        This case involves a state regulatory scheme that seeks

 3   to prohibit some legally admitted aliens from doing the very

 4   thing the federal government indicated they could do when

 5   they came to the United States—work.     Plaintiffs-Appellees

 6   are a group of nonimmigrant aliens who have been authorized

 7   by the federal government to reside and work as pharmacists

 8   in the United States.    All currently reside in New York and

 9   are licensed pharmacists there.    Plaintiffs obtained

10   pharmacist’s licenses from New York pursuant to a statutory

11   waiver to New York Education Law § 6805(1)(6)’s requirement

12   that only U.S. Citizens or Legal Permanent Residents

13   (“LPRs”) are eligible to obtain a pharmacist’s license in

14   New York.   The waiver provision was set to expire in 2009.

15   In response, plaintiffs sued various state officials1

16   responsible for enforcing the law in the United States

17   District Court for the Southern District of New York.

18



          1
            Although we recognize that the State of New York is not
     explicitly named as a party to this case, the arguments made by
     appellants here are clearly made on behalf of the state and the
     statute at issue was defended on appeal by the Solicitor
     General’s Office of the State of New York. We think it
     appropriate, therefore, to refer to the parties bringing the
     appeal collectively as “the state” or “New York.”

                                    3
 1         Plaintiffs allege that § 6805(1)(6) is unconstitutional

 2   because it violates the Equal Protection and Supremacy

 3   Clauses of the United States Constitution.    In a thorough

 4   and well-reasoned opinion, the district court granted

 5   plaintiffs’ motion for summary judgment and permanently

 6   enjoined defendants from enforcing the law.    See Adusumelli

 7   v. Steiner, 740 F. Supp. 2d 582 (S.D.N.Y. 2010).

 8         On appeal, New York asks us to abrogate the Supreme

 9   Court’s general rule that state statutes that discriminate

10   based on alienage are subject to strict scrutiny review.

11   The state argues that the statute at issue here, which

12   discriminates against nonimmigrant aliens should be reviewed

13   only to determine if there is a rational basis that supports

14   it.   In our view, however, a state statute that

15   discriminates against aliens who have been lawfully admitted

16   to reside and work in the United States should be viewed in

17   the same light under the Equal Protection Clause as one

18   which discriminates against aliens who enjoy the right to

19   reside here permanently.   Applying strict scrutiny,

20   therefore, and finding, as the state concedes, that there

21   are no compelling reasons for the statute’s discrimination

22   based on alienage, we hold the New York statute to be


                                   4
 1   unconstitutional.     We affirm the district court’s grant of

 2   summary judgment for plaintiffs.

 3                             I. BACKGROUND

 4       Most of the plaintiffs have H-1B temporary worker

 5   visas.   Under the Immigration and Nationality Act (“INA”),

 6   H-1B visas may be given to aliens who come “temporarily to

 7   the United States to perform services . . . in a specialty

 8   occupation.”     8 U.S.C. § 1101(a)(15)(H)(i)(b).   The

 9   remaining plaintiffs have what is known as “TN” status.

10   “TN” status is a temporary worker status created by federal

11   law pursuant to the North American Free Trade Agreement

12   (“NAFTA”).     NAFTA permits “a citizen of Canada or Mexico who

13   seeks temporary entry as a business person to engage in

14   business activities at a professional level” to enter the

15   United States and work here pursuant to the requirements of

16   the TN status.     8 C.F.R. § 214.6(a).

17       These provisions technically grant plaintiffs admission

18   to the United States for a finite period.      Because

19   plaintiffs’ status grants them the right to reside and work

20   in the United States only temporarily, plaintiffs are part

21   of the group of aliens the immigration law refers to as

22   nonimmigrants.     8 U.S.C. § 1101(a)(15).   And, although


                                     5
 1   plaintiffs had to indicate that they did not intend to stay

 2   here permanently to obtain their visas, the truth is that

 3   many (if not all) actually harbor a hope (a dual intention)

 4   that some day they will acquire the right to stay here

 5   permanently.   The BIA and the State Department both

 6   recognize this doctrine of dual intent, which allows aliens

 7   to express an intention to remain in the United States

 8   temporarily (to satisfy the requirements of their temporary

 9   visas) while also intending to remain permanently, which

10   allows them to apply for an adjustment of status.        Matter of

11   Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975); 70 No. 42

12   Interpreter Releases 1444, 1456-58 (Nov. 1, 1993).

13        For purposes of both the H1-B and TN visas, the initial

14   period during which the visa-holder can legally remain and

15   work in the United States is three-years.     8 C.F.R.

16   §§ 214.2(h)(9)(iii)(A)(1) (H1-B visa), 214.6(e) (TN status).

17   Each visa status also permits a three-year extension of the

18   initial period.   Id. at §§ 214.2(h)(15)(ii)(B), 214.6(h).

19   But an alien with an H1-B visa is limited to one such

20   extension, essentially restricting H1-B status to a six-year

21   period.2   Id. at § 214.2(h)(15)(ii)(B)(1).    In practice,

          2
           Although not applicable in the instant case, an H-1B visa
     holder who is involved in a “DOD research and development or co-

                                    6
 1   however, federal law permits many aliens with TN or H1-B

 2   status to maintain their temporary worker authorization for

 3   a period greater than six years.    All plaintiffs in this

 4   case, for example, have been legally authorized to reside

 5   and work in the United States for more than six years.       And,

 6   six plaintiffs have been authorized to reside and work in

 7   the United States for more than ten years.

 8        Several factors contribute to the difference between

 9   the technical limitations on H1-B and TN status and the

10   length of time these aliens remain authorized to reside and

11   work in the United States.     Many aliens who receive

12   temporary worker authorization are former students who

13   entered the United States with a student visa and who have

14   made their home in the United States for many years before

15   entering the professional world.3    Many nonimmigrant aliens

16   are also often eligible to apply for LPR status.      This

17   process is typically quite slow, and the federal government

18   therefore regularly issues Employment Authorization


     production project” may maintain his H-1B visa status for a total
     of 10 years. 8 C.F.R. § 214.2(h)(15)(ii)(B)(2).
          3
            Initially entering the United States on a student visa
     extends the amount of time a nonimmigrant alien can remain in the
     United States because the time limitations for H1-B status and TN
     status are not impacted by time previously spent residing in the
     United States pursuant to a student visa.

                                    7
 1   Documents (“EADs”), which extend the time period during

 2   which these aliens are eligible to work in the United States

 3   while they await their green cards.     8 C.F.R.

 4   § 274a.12(c)(9).

 5        Twenty-two plaintiffs have applied for Permanent

 6   Resident status.4   Sixteen have received EADs because they

 7   have exhausted the six-year maximum authorization provided

 8   by H1-B status.

 9        Based on their visa status, all plaintiffs currently

10   reside in the United States legally and have permission to

11   work here.   All are pharmacists who were granted a

12   pharmacist’s license (albeit a “limited” one) pursuant to a

13   previous version of the New York statute at issue here.5

14   Section 6805(1)(6), in its current incarnation, provides

          4
           During the pendency of this appeal, plaintiff-appellee Gutu
     Nagasa was granted a green card, making the appeal moot as to
     him. And, in a previous case, we dismissed an appeal raising
     identical issues with regard to New York’s analogous law
     restricting professional veterinarian licenses to citizens and
     LPRs because the plaintiff-appellee was granted permanent
     resident status while the appeal was pending. See Kirk v. N.Y.
     State Dep’t of Educ., 644 F.3d 134, 136 (2d Cir. 2011).
          5
           A previous version of the statute included a three-year
     waiver of the citizenship/LPR requirement for otherwise qualified
     pharmacists. It also permitted a one-year extension of that
     waiver. The waiver provision expired in October 2006. Pursuant
     to the expiration requirement, plaintiffs’ pharmacist’s licenses
     were set to expire in 2009 and were not eligible for renewal.
     Plaintiffs’ licenses were renewed pending the outcome of this
     litigation.

                                     8
 1   that to be eligible for a pharmacist’s license in New York,

 2   an applicant must be either a U.S. Citizen or a LPR.6      The

 3   statute bars all other aliens, including those with work-

 4   authorization who legally reside in the United States, from

 5   becoming licensed pharmacists.

 6                           II. DISCUSSION

 7        New York argues that neither the Equal Protection

 8   Clause nor the Supremacy Clause prevents a state from

 9   prohibiting a group of aliens who are legally authorized to

10   reside and work in the United States from working in certain

11   professions.   The state relies principally on two decisions

12   from our sister circuits.    See League of United Latin Am.

13   Citizens (LULAC) v. Bredesen, 500 F.3d 523, 531-34, 536-37

14   (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405, 415 (5th

15   Cir. 2005), reh’g en banc denied, 444 F.3d 428 (2006).7        The

16   Fifth and Sixth Circuits viewed nonimmigrant aliens as



          6
           Similar provisions of the New York Education Law preclude
     non-LPR aliens from other professions. See N.Y. Educ. Law
     §§ 6524(6) (physicians), 6554(6) (chiropractors), 6604(6)
     (dentists), 6609(6) (dental hygienists), 6704(6) (veterinarians),
     6711(6) (veterinary technicians), 6955(1)(6) (midwives),
     7206(1)(6) (engineers), 7206-a(1)(6) (land surveyors), 7324(1)(6)
     (landscape architects), 7504(1)(6) (certified shorthand
     reporters), 7804(5) (massage therapists).
          7
           The plaintiffs in LeClerc were aliens with J-1 student
     visas and H1-B worker visas. 419 F.3d at 410-12.

                                     9
 1   distinct from aliens with LPR status and applied a rational

 2   scrutiny test to determine if the state statutes in question

 3   ran afoul of the Equal Protection Clause.     In both cases,

 4   the courts “decline[d] to extend” the protections of LPRs to

 5   certain nonimmigrants.     LULAC, 500 F.3d at 533; LeClerc, 419

 6   F.3d at 419.     We disagree; the Supreme Court has repeatedly

 7   affirmed the general principle that alienage is a suspect

 8   classification and has only ever created two exceptions to

 9   that view.     We decline to create a third in a case where the

10   statute discriminates against aliens who have been granted

11   the legal right to reside and work in the United States.

12   Under a strict scrutiny analysis, § 6805(1)(6) of the New

13   York Education Law violates the Equal Protection Clause.

14                      The Equal Protection Clause

15       The Fourteenth Amendment provides that states may not

16   “deny to any person within its jurisdiction the equal

17   protection of the laws.”     U.S. Const. amend. XIV, § 1.

18   Under the Fourteenth Amendment, a law that “impermissibly

19   interferes with the exercise of a fundamental right or

20   operates to the peculiar disadvantage of a suspect class” is

21   reviewed under the strict scrutiny standard.     Mass. Bd. of

22   Ret. v. Murgia, 427 U.S. 307, 312 (1976) (emphasis added)


                                     10
 1   (footnote omitted); see Weinstein v. Albright, 261 F.3d 127,

 2   140 (2d Cir. 2001).

 3       There is no question that the Fourteenth Amendment

 4   applies to all aliens.     See, e.g., Plyler v. Doe, 457 U.S.

 5   202, 215 (1982).    Indeed, the Supreme Court has long held

 6   that states cannot discriminate on the basis of alienage.

 7   “Aliens as a class are a prime example of a discrete and

 8   insular minority,” the Court reasoned in Graham v.

 9   Richardson, “[and] the power of a state to apply its laws

10   exclusively to its alien inhabitants as a class is confined

11   within narrow limits.”    403 U.S. 365, 372 (1971) (internal

12   quotation marks omitted).

13       In Graham, the Court struck down two state statutes

14   that prevented immigrants from receiving public assistance.

15   Id. at 376.    The statutes erected different barriers—a

16   Pennsylvania law barred non-citizens from a welfare program,

17   while an Arizona law required that aliens reside in the

18   state for fifteen years before they could collect money from

19   the state—both achieved the same result.     Id. at 367-68.

20   Thus, aliens were denied access to a benefit available to

21   citizens.     Graham held this “two class” system

22   unconstitutional.     Id. at 371.


                                     11
 1       Graham is considered the lodestar of the Court’s

 2   alienage discrimination doctrine, but the opinion invokes a

 3   case decided decades before.     In Takahashi v. Fish and Game

 4   Commission, the Supreme Court struck down a California

 5   statute that denied fishing licenses to any “person

 6   ineligible [for] citizenship.”      334 U.S. 410, 413 (1948).

 7   The law originally targeted Japanese fishermen, but the

 8   state legislature feared that such a clearly discriminatory

 9   classification might run afoul of the Equal Protection

10   Clause and amended the statute to prohibit immigrants

11   “ineligible [for] citizenship” from obtaining fishing

12   licenses.   Id.; see also id. at 422-27 (Murphy, J.,

13   concurring).   The provision drew a distinction between

14   groups based solely on the members’ immigration status

15   without any mention of race or nationality.      The Court held

16   that treating groups differently based on the members’

17   alienage was akin to discriminating against a group because

18   of their race or color.   “The protection of [the Fourteenth

19   Amendment] has been held to extend to aliens as well as to

20   citizens,” the Court reasoned, “[and] all persons lawfully

21   in this country shall abide . . . on an equality of legal

22   privileges with all citizens.”      Id. at 419-20 (emphasis

23   added).

                                    12
 1       The Graham Court saw Pennsylvania and Arizona’s

 2   restrictions on welfare as exacting the same toll as

 3   California’s unconstitutional fishing-license regime; the

 4   Court thus followed Takahashi to hold that the welfare

 5   statutes were subject to strict scrutiny.   Graham, 403 U.S.

 6   at 372.

 7       In the years after Graham, the Court continued to apply

 8   strict scrutiny to statutes discriminating on the basis of

 9   alienage.   It invalidated a New York statute that prohibited

10   immigrants from working in the civil service, Sugarman v.

11   Dougall, 413 U.S. 634, 642-43 (1973), a Connecticut statute

12   that barred immigrants from sitting for the bar, In re

13   Griffiths, 413 U.S. 717, 721-22, 729 (1973), a Puerto Rico

14   law that denied licenses to immigrant engineers, Examining

15   Board of Engineers, Architects and Surveyors v. Flores de

16   Otero, 426 U.S. 572, 601-06 (1976), and a New York law that

17   required immigrants to pledge to become citizens before they

18   could receive financial aid, Nyquist v. Mauclet, 432 U.S. 1,

19   7, 12 (1977).   In each case, the Court began its discussion

20   by reasserting its commitment to the holding in Graham: laws

21   that single out aliens for disparate treatment are

22   presumptively unconstitutional absent a showing that the


                                   13
 1   classification was “necessary” to fulfill a constitutionally

 2   “permissible” and “substantial” purpose.     In re Griffiths,

 3   413 U.S. at 721-22.8

 4         The Court has recognized only two exceptions to

 5   Graham’s rule.   The first exception allows states to exclude

 6   aliens from political and governmental functions as long as

 7   the exclusion satisfies a rational basis review.      In Foley

 8   v. Connelie, the Court upheld a statute that prohibited

 9   aliens from working as police officers.     435 U.S. 291, 295-

10   96.   For a democracy to function, the Court reasoned, a

11   state must have the power to “preserve the basic conception

12   of a political community,” and states can limit certain

13   “important nonelective executive, legislative, and judicial

14   positions [to] officers who participate directly in the

15   formulation, execution, or review of broad public policy.”

16   Id. at 296 (internal quotation marks omitted).

17         The second exception crafted by the Court allows states

18   broader latitude to deny opportunities and benefits to

19   undocumented aliens.   See, e.g., Plyler, 457 U.S. at 219;



           8
            Each of these cases was a facial challenge: Plaintiffs
     argued that the statutes were unconstitutional on their face
     because they drew explicit distinctions between citizens and
     non-citizens, not just because a state had interpreted a statute
     to deny benefits to a group of aliens.

                                    14
 1   see also DeCanas v. Bica, 424 U.S. 351 (1976), superseded by

 2   statute on other grounds as stated in Chamber of Comm. v.

 3   Whiting, 131 S. Ct. 1968 (2011).    In Plyler, the Court

 4   declined to apply strict scrutiny to a statute that

 5   prohibited undocumented alien children from attending public

 6   school.   457 U.S. at 223.   The Court acknowledged that

 7   Graham placed a heavy burden on state statutes targeting

 8   lawful aliens, but reasoned that undocumented aliens fell

 9   outside of Graham’s reach because “their presence in this

10   country in violation of federal law is not a ‘constitutional

11   irrelevancy.’”   Id. (citations omitted).    The Court held

12   that the plaintiffs’ unlawful status eliminated them from

13   the suspect class of aliens generally; nevertheless, the

14   Court applied a heightened rational basis standard to the

15   Texas law denying free public education to undocumented

16   alien children and found the law unconstitutional.9     Plyler,

17   457 U.S. at 230 (holding that the state had to show that the

18   statute furthered “some substantial goal of the state”).

19        Thus, statutes that deny opportunities or benefits to

20   aliens are subject to strict scrutiny unless they fall

          9
            In Plyler, the Court explained that undocumented aliens
     are not a suspect class, but noted that it was reluctant to
     punish undocumented alien children for their parents’ decision to
     break the law. Id. at 219-20.

                                    15
 1   within two narrow exceptions.        The first allows states to

 2   exclude aliens from certain civic roles that directly affect

 3   the political process.   The second acknowledges that people

 4   who reside in the United States without authorization may be

 5   treated differently than those who are here legally.

 6       The state acknowledges that neither exception applies

 7   here.   Without an existing basis for distinguishing Graham’s

 8   requirement that such statutes are strictly scrutinized, New

 9   York proposes a third exception—the Fourteenth Amendment’s

10   strongest protections should apply only to virtual citizens,

11   like LPRs, and not to other lawfully admitted aliens who

12   require a visa to remain in this country.        Defendants argue

13   that the Supreme Court’s strict scrutiny analysis of

14   classifications based on “alienage” is inapplicable to

15   classifications of nonimmigrant aliens and that only

16   rational basis review of the statute is required.

17       The state reasons that the Supreme Court has never

18   explicitly applied strict scrutiny review to a statute

19   discriminating against nonimmigrant aliens.        That is true,

20   but that argument ignores the underlying reasoning of the

21   Court in its prior decisions as well as the fact that the

22   Court has never held that lawfully admitted aliens are


                                     16
 1   outside of Graham’s protection.     Indeed, the Court has never

 2   distinguished between classes of legal resident aliens.10

 3   The state’s argument that suspect class protection extends

 4   no further than to LPRs simply has no mooring in the High

 5   Court’s prior ventures into this area.

 6        New York disagrees and urges us to follow the lead of

 7   the Fifth and Sixth Circuits, both of which drew a

 8   distinction between LPRs and citizens, on the one hand, and

 9   other lawfully admitted aliens, on the other.     In LeClerc,

10   the Fifth Circuit upheld a Louisiana Supreme Court rule that

11   required applicants for admission to the Louisiana State Bar

12   to be citizens or LPRs.    419 F.3d at 422.   The majority

13   noted that “[l]ike citizens, [permanent] resident aliens may

14   not be deported, are entitled to reside permanently in the

15   United States, may serve . . . in the military, . . . and

16   pay taxes on the same bases as citizens.”     Id. at 418.



          10
            Notably, it was in his dissent in Toll v. Moreno, 458 U.S.
     1, 44-45 (1982) (Rehnquist, J., dissenting), that Justice
     Rehnquist pointed out such a distinction. There he wrote:
             In each case in which the Court has tested state
             alienage classifications . . . the question has
             been the extent to which the States could
             permissibly distinguish between citizens and
             permanent resident aliens. . . . [T]he need for
             strict scrutiny simply does not apply to state
             policies that distinguish between permanent
             resident aliens and nonimmigrants.

                                    17
 1       In LULAC, the Sixth Circuit upheld a Tennessee law that

 2   conditioned issuance of a driver’s license on proof of

 3   United States citizenship or LPR status.   500 F.3d at 533.

 4   The Sixth Circuit, like the Fifth, held that nonimmigrant

 5   aliens are not a suspect class because, unlike citizens and

 6   LPRs, they “are admitted to the United States only for the

 7   duration of their authorized status, are not permitted to

 8   serve in the U.S. military, are subject to strict employment

 9   restrictions, incur differential tax treatment, and may be

10   denied federal welfare benefits.”   Id.; see also LeClerc,

11   419 F.3d at 418-19.   The state would have us join these

12   courts and narrow Graham’s holding to reach only those

13   aliens who are indistinguishable from citizens.   This

14   argument, however, misconstrues both law and fact.

15       Ultimately, for three reasons, we reject the state’s

16   argument that this Court should follow the rationale of the

17   Fifth and Sixth Circuits.   First, the Supreme Court’s

18   listing in Graham of the similarities between citizens and

19   aliens refuted the state’s argument that it did have a

20   compelling reason for its law, but this language does not

21   articulate a test for determining when state discrimination

22   against any one subclass of lawful immigrants is subject to


                                   18
 1   strict scrutiny.   Second, nonimmigrant aliens are but one

 2   subclass of aliens, and the Supreme Court recognizes aliens

 3   generally as a discrete and insular minority without

 4   significant political clout.   Third, even if this Court were

 5   to determine that the appropriate level of scrutiny by which

 6   to analyze the discrimination should be based on the

 7   nonimmigrant aliens’ similarity (or proximity) to citizens,

 8   we would still apply strict scrutiny in this case because

 9   nonimmigrant aliens are sufficiently similar to citizens

10   that discrimination against them in the context presented

11   here must be strictly scrutinized.

12       Despite the fact that the Supreme Court has never

13   cabined its precedent in this area to distinguish between

14   discrimination against LPRs and discrimination against other

15   lawfully present aliens and has never distinguished

16   Takahashi, the Fifth and Sixth Circuits justified narrowing

17   Graham by resting their analysis on the closing words of

18   Graham’s discussion of the Equal Protection Clause.     In that

19   passage, the Court noted: “Aliens like citizens pay taxes

20   and may be called into the armed forces.   Unlike the

21   short-term residents in Shapiro, aliens may live within a

22   state for many years, work in the state and contribute to


                                    19
 1   the economic growth of the state.”       Graham, 403 U.S. at 376

 2   (internal quotation marks omitted).11

 3        Viewing that language from Graham as an analytical

 4   tool, however, reveals the danger of separating the words of

 5   an opinion from the context in which they were employed.

 6   Graham drew a comparison between LPRs and citizens to refute

 7   the states’ arguments that there was a compelling interest

 8   in the restrictive legislation—the states had limited funds

 9   and the benefits in question should go to citizens to the

10   exclusion of LPRs.   Id.    The states contended that they had

11   a legitimate interest in preserving welfare funds for their

12   citizens–individuals who participated in economic activity

13   within the state and thereby generated tax revenue that

14   supported the benefits.    The Court was quick to reply that

15   “a State’s desire to preserve limited welfare benefits for

16   its own citizens is inadequate to justify [the state’s

17   discriminatory laws].”     Id. at 374.   It noted that legal

18   aliens are in many ways indistinguishable from citizens and


          11
            We see no connection between practicing law in Louisiana
     or driving a car in Tennessee and military service, restricted
     job opportunities, or differences in taxation. Neither did
     Louisiana or Tennessee as neither state statute restricted the
     privileges in question to those citizens who had served in the
     military, worked, or paid taxes. The classifications in question
     focused on a distinct and identifiable minority even though there
     was no constitutionally relevant reason for the distinction.

                                     20
 1   then provided a few examples of that fact:

 2     [T]he justification of limiting expenses is particularly
 3     inappropriate and unreasonable when the discriminated
 4     class consists of aliens. Aliens like citizens pay taxes
 5     and may be called into the armed forces. Unlike the
 6     short-term residents in Shapiro, aliens may live within
 7     a state for many years, work in the state and contribute
 8     to the economic growth of the state.
 9
10   Id. (internal quotation marks omitted).

11        The Court in essence pointed out that, because LPRs

12   and citizens have much in common, treating them differently

13   does not pass muster under the Fourteenth Amendment.     The

14   converse of this rationale, however, does not become a

15   litmus test for determining whether a particular group of

16   aliens is a suspect class.   A group of aliens need not be

17   identical or even virtually identical to citizens to be

18   fully protected by the Fourteenth Amendment.   Indeed,

19   citizens and aliens may be sufficiently similar merely

20   because they are both lawful residents.   Nor do we think

21   that the list of similarities is meant as a litmus test for

22   lower courts to apply to a subclass of lawfully admitted

23   aliens for purposes of determining how similar they are to

24   citizens before applying strict scrutiny—the greatest level

25   of Fourteenth Amendment protection—to analyze discrimination

26   against that subclass.


                                   21
1        Nothing in the Supreme Court’s precedent counsels us to

2   “judicially craft[] a subset of aliens, scaled by how [we]

3   perceive the aliens’ proximity to citizenship.”      LeClerc v.

4   Webb, 444 F.3d 428, 429 (5th Cir. 2006) (Higginbotham, J.,

5   dissenting from the denial of reh’g en banc).12     Rather, the

6   Court’s precedent supports drawing a distinction among

7   aliens only as between lawfully admitted aliens and those

8   who are in the United States illegally.13    See Plyler, 457


         12
           Neither are we persuaded by the state’s claim that the
    statute must be reviewed under a rational basis framework because
    it only discriminates against a subset of aliens. The Court
    roundly rejected such an argument in Nyquist, 432 U.S. at 7-9.
    There, the Court explained that the mere fact that the
    legislature distinguished “only within the heterogenous class of
    aliens and . . . not . . . between citizens and aliens vel non”
    did not remove the statute from strict scrutiny review because
    the important consideration was that the statute was “directed at
    aliens and that only aliens are harmed by it. The fact that the
    statute is not an absolute bar does not mean that it does not
    discriminate against the class.” Id. at 8-9 (internal quotation
    marks omitted).
         13
           That aliens are a suspect class not merely because they
    bear all, or most, of the responsibilities of citizenship is
    evident from the Court’s other pronouncements regarding why
    aliens are a suspect class. The Supreme Court noted in Flores de
    Otero, for example, that
       The underpinnings of the Court’s constitutional decisions
       defining the circumstances under which state and local
       governments may favor citizens of this country by denying
       lawfully admitted aliens equal rights and opportunities have
       been two. The first, based squarely on the concepts embodied
       in the Equal Protection Clause of the Fourteenth Amendment and
       in the Due Process Clause of the Fifth Amendment, recognizes
       that “(a)liens as a class are a prime example of a ‘discrete
       and insular’ minority . . . for whom . . . heightened judicial
       solicitude is appropriate.      The second, grounded in the

                                   22
 1   U.S. at 223 (utilizing a heightened rational basis review

 2   for a state law discriminating against undocumented alien

 3   children).

 4       Any other distinction ignores that the Fourteenth

 5   Amendment is written broadly as protecting all persons and

 6   that aliens necessarily constitute a “discrete and insular”

 7   minority because of their “impotence in the political

 8   process, and the long history of invidious discrimination

 9   against them.”   LeClerc, 419 F.3d at 428-29 (Stewart, J.,

10   dissenting) (citing Plyler, 457 U.S. at 218 n.14).      Notably,

11   the bedrock of the Supreme Court’s decisions in this area is

12   the fact that although lawfully admitted aliens and citizens

13   are not constitutionally distinguishable, aliens constitute

14   a discrete and insular minority because of their limited

15   role in the political process.      LeClerc, 419 F.3d at 428-29

16   (Stewart, J. dissenting) (citing Plyler, 457 U.S. at 218

17   n.14; Erwin Chemerinsky, Constitutional Law 618-19 (1997));

18   see also Foley, 435 U.S. at 294.     Certainly, nonimmigrant

19   aliens cannot be said to suffer less from these limitations



        Supremacy Clause, Const., Art. VI, cl. 2, and in the
        naturalization power, Art. I, § 8, cl. 4, recognizes the
        Federal Government’s primary responsibility in the field of
        immigration and naturalization.
     426 U.S. at 602 (quoting Graham, 403 U.S. at 372).

                                    23
 1   than LPRs and indeed, likely are “more powerless and

 2   vulnerable to state predations—more discrete and insular.”

 3   See Constitutional Law - Equal Protection - Fifth Circuit

 4   Holds that Louisiana Can Prevent Nonimmigrant Aliens from

 5   Sitting for the Bar, 119 Harv. L. Rev. 669, 674 (2005)

 6   (internal quotation marks omitted).

 7       But even if the state’s argument—that Supreme Court

 8   precedent allows for a distinction based on a subclass’s

 9   similarity to citizens—had some traction, we conclude strict

10   scrutiny still applies.   Nonimmigrants do pay taxes, often

11   on the same terms as citizens and LPRs, and certainly on

12   income earned in the United States.   See 26 U.S.C.

13   § 7701(b); see also LeClerc, 419 F.3d at 427 n.1 (Stewart,

14   J., dissenting).   Further, any claimed distinction based on

15   permanency of residence is equally disingenuous.    Although

16   it is certainly true that nonimmigrants must indicate an

17   intent not to remain permanently in the United States, this

18   ignores the dual intent doctrine—nonimmigrant aliens are

19   lawfully permitted to express an intent to remain

20   temporarily (to obtain and maintain their work visas) as

21   well as an intent to remain permanently (when they apply for

22   LPR status).   LeClerc, 419 F.3d at 429 (Stewart, J.,


                                   24
 1   dissenting).   And the final distinction—limited work

 2   permission—is wholly irrelevant where, as here, the state

 3   seeks to prohibit aliens from engaging in the very

 4   occupation for which the federal government granted the

 5   alien permission to enter the United States.14

 6        Because most of the distinctions the state would have

 7   us make between LPRs and nonimmigrants are either

 8   inapplicable or without constitutional relevance, we agree

 9   with the district court that the state’s argument “boil[s]

10   down to one potentially important difference—nonimmigrants

11   have not yet obtained permission to reside in the United

12   States permanently—and a slew of other differences of

13   uncertain relevance.”   Adusumelli, 740 F. Supp. 2d at 592.

14        The core of the state’s argument (and the analytical

15   pivot of LeClerc and LULAC) is “transience.”     The state

16   argues that the nonimmigrant’s transient immigration status

17   distinguishes nonimmigrant aliens from LPRs and introduces

18   legitimate state concerns that would allow for rational


          14
            Some of the other distinctions relied on by the Fifth and
     Sixth Circuits (military service and ineligibility for federal
     benefits) simply lack legislative relevance. Certainly the
     federal government, which bears the constitutional responsibility
     of regulating immigration, has much broader latitude to
     distinguish among subclasses of aliens. But this latitude does
     not give states carte blanche to do the same. See Takahashi, 334
     U.S. at 420.

                                    25
 1   basis review of the statute.    This focus on transience is

 2   overly formalistic and wholly unpersuasive.     The aliens at

 3   issue here are “transient” in name only.     Certainly the

 4   status under which they were admitted to the United States

 5   was of limited duration.    But the reality is quite

 6   different.    A great number of these professionals remain in

 7   the United States for much longer than six years and many

 8   ultimately apply for, and obtain, permanent residence.15

 9   These practicalities are not irrelevant.     They demonstrate

10   that there is little or no distinction between LPRs and the

11   lawfully admitted nonimmigrant plaintiffs here.      Therefore,

12   even if the Supreme Court’s precedent were read to require a

13   determination that the subclass of aliens at issue is

14   similar to LPRs or citizens, strict scrutiny would apply.

15        Finally, creating a third exception to strict scrutiny

16   analysis for statutes discriminating against lawfully

17   admitted aliens would create odd, some might say absurd,

18   results.     If statutes discriminating against lawfully


          15
            This fact is borne out by the realities of the case before
     us as well as the previous appeal in Kirk. Here, one of the
     plaintiffs was granted permanent resident status during the
     pendency of this appeal. And, in Kirk, we held the appeal moot
     because the plaintiff was granted permanent resident status
     during the pendency of the appeal. Kirk, 644 F.3d at 136. As
     much as the state wants to lump nonimmigrants in the same
     category as tourists such a classification makes no sense.

                                     26
 1   admitted nonimmigrant aliens were reviewed under a rational

 2   basis framework that would mean that a class of unlawful

 3   aliens would receive greater protection against state

 4   discriminatory statutes than those lawfully present.      See

 5   Plyler, 457 U.S. at 202.   In Plyler the Court applied a

 6   heightened rational basis test to invalidate a Texas statute

 7   excluding undocumented immigrant children from public

 8   schools.   Id. at 230.   We see no reason to create an

 9   exception to the Supreme Court’s precedent that would result

10   in such illogical results that clearly contradict the

11   federal government’s determination as to which individuals

12   have a legal right to be here.

13       The Supreme Court has repeatedly announced a general

14   rule that classifications based on alienage are suspect and

15   subject to strict scrutiny review.      As Judge Gilman

16   advocated in his LULAC dissent, we should “tak[e] the

17   Supreme Court at its word.”   500 F.3d at 542.     Neither the

18   state’s reasoning nor that of the Fifth and Sixth Circuit

19   majority opinions’ persuades us that creating a third

20   exception to the general rule that alienage classifications

21   are suspect is warranted here.      Therefore, we hold that the

22   subclass of aliens known as nonimmigrants who are lawfully


                                    27
 1   admitted to the United States pursuant to a policy granting

 2   those aliens the right to work in this country are part of

 3   the suspect class identified by Graham.        Any discrimination

 4   by the state against this group is subject to strict

 5   scrutiny review.

 6          The statute here, which prohibits nonimmigrant aliens

 7   from obtaining a pharmacist’s license in New York, is not

 8   narrowly tailored to further a compelling government

 9   interest.        As noted above, appellants concede that New York

10   has no compelling justification for barring the licensed

11   pharmacist plaintiffs from practicing in the state.

12   Further, we agree with the district court that there is no

13   evidence “that transience amongst New York pharmacists

14   threatens public health or that nonimmigrant pharmacists, as

15   a class, are in fact considerably more transient than LPR

16   and citizen pharmacists.”        Adusumelli, 740 F. Supp. 2d at

17   598.        Citizenship and Legal Permanent Residency carry no

18   guarantee that a citizen or LPR professional will remain in

19   New York (or the United States for that matter), have funds

20   available in the event of malpractice, or have the necessary

21   skill to perform the task at hand.16

            16
            In Flores de Otero, defendants contended that the statute
     preventing alien engineers from engaging in private practice was

                                        28
 1        The statute is also far from narrowly tailored.      As the

 2   Court in Flores de Otero pointed out, there are other ways

 3   (i.e., malpractice insurance) to limit the dangers of

 4   potentially transient professionals.     426 U.S. at 606.   As

 5   such, the statute unconstitutionally discriminates against

 6   plaintiffs in violation of their Fourteenth Amendment

 7   rights.

 8                The Supremacy Clause and Preemption

 9        In addition to challenging the New York statute on

10   Fourteenth Amendment grounds, plaintiffs raise Supremacy

11   Clause and preemption concerns.     Although, for the reasons

12   stated below, we are constrained to decide this case on

13   Equal Protection grounds, we nonetheless address these

14   arguments.   We agree with the district court that

15   § 6805(1)(6) “is even more clearly unconstitutional [under

16   the principles of the Supremacy Clause] than under the Equal


     warranted because of the aliens’ transience, which results in
     their tenuous connection to the United States. 426 U.S. at 605-
     06. Defendant’s claimed that the classification provided
     engineering clients “an assurance of financial accountability if
     a building for which the engineer is responsible collapses within
     10 years of construction.” Id. at 605. The Court flatly
     rejected any such rationale, observing that: “United States
     citizenship is not a guarantee that a civil engineer will
     continue to reside in Puerto Rico or even in the United States,
     and it bears no particular or rational relationship to skill,
     competence, or financial responsibility.” Id. at 606 (citations
     omitted).

                                    29
 1   Protection Clause.”    Adusumelli, 740 F. Supp. 2d at 600.

 2         “The federal power to determine immigration policy is

 3   well settled.   Immigration policy can affect trade,

 4   investment, tourism, and diplomatic relations for the entire

 5   Nation, as well as the perceptions and expectations of

 6   aliens in this country who seek the full protection of its

 7   laws.”   Arizona v. United States, 567 U.S. ___, 2012 WL

 8   2368661, *5 (June 25, 2012).   Because “discretionary

 9   decisions [about immigration] involve policy choices that

10   bear on this Nation’s international relations,” the Supreme

11   Court in Arizona v. United States recently reaffirmed that

12   the federal power over immigration is extensive and

13   predominant.    Id. at *6.

14         When Congress occupies an entire field, “even

15   complementary state regulation is impermissible.”      Id. at

16   *9.   But even if Congress does not occupy an entire field,

17   the Court has confirmed the “well-settled proposition that a

18   state law is preempted where it ‘stands as an obstacle to

19   the accomplishment and execution of the full purposes and

20   objectives of Congress.’”    Id. at *12 (quoting Hines v.

21   Davidowitz, 312 U.S. 52, 67 (1941)).   Specifically in the

22   lawful alien context, the Court has held that “state


                                    30
 1   regulation not congressionally sanctioned that discriminates

 2   against aliens lawfully admitted to the country is

 3   impermissible if it imposes additional burdens not

 4   contemplated by Congress.”   DeCanas, 424 U.S. at 358 n.6

 5   (1976).

 6       The state contends that § 6805(1)(6) does not impose

 7   additional burdens not sanctioned by Congress because

 8   although the federal immigration law controls the

 9   determination of which aliens should be lawfully admitted

10   for the purpose of working in a specialty occupation, it

11   leaves to the states the determination of what

12   qualifications are required to practice that profession.

13   New York cites to the portion of the regulation that

14   provides that “[i]f an occupation requires a state or local

15   license for an individual to fully perform the duties of the

16   occupation, an alien . . . seeking [a temporary visa to

17   work] in that occupation must have that license prior to

18   approval of the petition.”   8 C.F.R. § 214.2(h)(4)(v)(A).

19   It argues that this language contemplates, and leaves room

20   for, the state to determine whether an individual is

21   qualified for the profession; according to the state,

22   immigration status can be one such qualification.


                                   31
 1          The state’s argument misunderstands the nature of this

 2   licensure provision.    Federal law recognizes that states

 3   have a legitimate interest in ensuring that an individual

 4   applicant has the necessary educational and experiential

 5   qualifications for the position sought.    But that

 6   traditional police power cannot morph into a determination

 7   that a certain subclass of immigrants is not qualified for

 8   licensure merely because of their immigration status.     That

 9   view makes no sense.    As the district court pointed out, it

10   would make “the federal laws creating H-1B and TN visa

11   status . . . advisory” because the federal law at once

12   “indicate[s] that nonimmigrants should be admitted to the

13   country to practice speciality occupations, . . . [and]

14   allow[s] the states to decide whether nonimmigrants (as a

15   class, not as individuals) should be permitted to practice

16   speciality occupations.”    Adusumelli, 740 F. Supp. 2d at

17   600.

18          New York’s law “stands as an obstacle to the

19   accomplishment and execution of the full purposes and

20   objectives of Congress.”    Freightliner Corp. v. Myrick, 514

21   U.S. 280, 287 (1995) (quoting Hines, 312 U.S. 67).    Through

22   the INA, Congress exercised its immigration power to permit


                                    32
 1   non-LPRs and non-citizens to become lawful residents of the

 2   United States and to participate in certain occupations so

 3   long as they are professionally qualified to engage in the

 4   particular speciality occupation they seek to practice.     8

 5   U.S.C. § 1184(i)(2)(A).   By making immigration status a

 6   professional qualification, and thereby causing the group of

 7   non-citizens and non-LPRs Congress intended to allow to

 8   practice specialty occupations to be ineligible to do so,

 9   the New York statute has created an obstacle to the

10   accomplishment and execution of the INA.

11       We are also unpersuaded by the state’s other arguments:

12   that the statute does not regulate who may be admitted to

13   the country and that Toll’s prescription that states may not

14   be prohibited from imposing additional burdens “when

15   Congress has done nothing more than permit a class of aliens

16   to enter the country temporarily” applies here.   Toll, 458

17   U.S. at 12-13.   The state’s reliance on Toll is misplaced.

18   The Court there only questioned whether a state could impose

19   additional burdens if Congress only permitted aliens to

20   enter temporarily.   It did not hold that states were

21   definitively allowed to impose such burdens.   In this case,

22   Congress has done more than merely allow the nonimmigrants


                                   33
 1   to enter temporarily.   It has granted them permission to

 2   work in certain occupations.     That alone takes this case out

 3   of Toll’s potential exception.       Ultimately, because of the

 4   obstacles posed by the state statute to accomplishing the

 5   purposes of the INA, there are serious Supremacy Clause and

 6   preemption problems at issue.        See Arizona, 2012 WL 2368661,

 7   at *6-18.

 8       Yet, while we recognize the preemption and Supremacy

 9   Clause issues in this case and also the Court’s preference

10   that Supremacy Clause issues be decided before Equal

11   Protection Clause claims, see generally Toll, 458 U.S. at 9-

12   10, we must decide this case on Equal Protection grounds.

13   The plaintiffs with TN status cannot argue that the state

14   law is preempted because the NAFTA Implementation Act allows

15   only the United States to bring actions against state laws

16   inconsistent with NAFTA.   See 19 U.S.C. § 3312(b)(2).

17       In summary, we agree substantially with the district

18   court’s well-reasoned opinion below, the dissenting opinions

19   filed in the panel decisions in LeClerc and LULAC, and the

20   dissent from denial of rehearing en banc in LeClerc.        We

21   find no reason to create a third exception to the rule that

22   alienage is a suspect classification.


                                     34
 1       As the Supreme Court noted in Takahashi, “[t]he

 2   assertion of an authority to deny to aliens the opportunity

 3   of earning a livelihood when lawfully admitted to the state

 4   would be tantamount to the assertion of the right to deny

 5   them entrance and abode, for in ordinary cases they cannot

 6   live where they cannot work.”        Takahashi, 334 U.S. at 416.

 7   New York cannot, in effect, drive from the state

 8   nonimmigrants who have federal permission to enter the

 9   United States to work.    New York Education Law § 6805(1)(6)

10   is unconstitutional.

11                            III. CONCLUSION

12       The district court’s order of September 30, 2010

13   granting summary judgment to plaintiffs is hereby AFFIRMED.




                                     35
