128 - Amicus Brief of NILC Et Al

8/16/2019 128 - Amicus Brief of NILC Et Al

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No. 15-15211, 15-15213, 15-15215

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,Plaintiffs-Appellees,

v.JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona

The Honorable David G. Campbell

No. 2:14—CV-01356 (DGC) (PHX)

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

SUPPORTING PLAINTIFFS-APPELLEES’ PETITION FOR PANEL

REHEARING OR REHEARING EN BANC

Nicholas EspírituMelissa Keaney NATIONAL IMMIGRATION LAWCENTER3435 Wilshire Blvd., Suite 1600Los Angeles, CA [email protected]@nilc.orgTelephone: (213) 639-3900Facsimile: (213) 639-3911

Charanya KrishnaswamiPUBLIC COUNSEL610 S. Ardmore Ave.Los Angeles, CA [email protected]: (213) 385-2977Facsimile: (213) 385-9089

Counsel for Amici Curiae

Case: 15-15211, 05/26/2016, ID: 9993034, DktEntry: 128, Page 1 of 29


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Under Federal Rule of Appellate Procedure 29(a) and Ninth Circuit Rule 29-

3, amici curiae the National Immigration Law Center (“NILC”) and co-amici, as

listed in Appendix A, move for leave to file the concurrently submitted amicus

brief in support of panel rehearing or rehearing en banc. Amici urge

reconsideration of the panel’s ruling. All parties have consented to this filing and

this motion is unopposed.

Amici are nonprofit organization that litigate in a variety of issue areas,

including immigration, workers’ rights, constitutional law, and preemption. All

share a common interest in ensuring that plaintiffs can vindicate their civil rights

through facial challenges, which are a critical tool in constitutional litigation. They

submit this brief to provide perspective on the dramatic implications of the panel’s

decision, which departs from established precedent articulating the standard for

facial challenges, and in so doing, undermines civil rights plaintiffs’ ability to seek

court invalidation of unconstitutional statutes. The panel’s holding also departs

from settled Circuit and Supreme Court precedent in the realm of immigration

preemption and creates a circuit split.

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Based on the foregoing, amici seek permission from this Court to file the

brief accompanying this motion.

Date: May 26, 2016 Respectfully Submitted,

NATIONAL IMMIGRATION LAW CENTER

s/ Nicholas Espíritu Nicholas Espíritu, SBN 2376653435 Wilshire Blvd., Suite 1600Los Angeles, CA [email protected]: (213) 639-3900

Facsimile: (213) 639-3911Counsel for Amici Curiae



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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Motion for Leave to

File Amici Curiae Brief Supporting Plaintiffs-Appellees’ Petition for Panel

Rehearing or Rehearing En Banc with the Clerk of the Court for the United States

Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on

May 26, 2016. Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.


Date: May 26, 2016 /s Nicholas Espíritu Nicholas Espíritu Nicholas Espíritu, SBN 2376653435 Wilshire Blvd., Suite 1600Los Angeles, CA [email protected]

Telephone: (213) 639-3900Facsimile: (213) 639-3911Counsel for Amici Curiae



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No. 15-15211, 15-15213, 15-15215

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,Plaintiffs-Appellees,

v.JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona

The Honorable David G. Campbell

No. 2:14—CV-01356 (DGC) (PHX)

BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION LAW

CENTER ET AL. SUPPORTING PLAINTIFFS-APPELLEES’

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

Nicholas EspírituMelissa Keaney NATIONAL IMMIGRATION LAWCENTER3435 Wilshire Blvd., Suite 1600Los Angeles, CA [email protected]@nilc.orgTelephone: (213) 639-3900Facsimile: (213) 639-3911

Charanya KrishnaswamiPUBLIC COUNSEL610 S. Ardmore Ave.Los Angeles, CA [email protected]: (213) 385-2977Facsimile: (213) 385-9089




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i

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES .................................................................................... ii

IDENTITY AND INTERESTS OF AMICI ..............................................................1

SUMMARY OF ARGUMENT .................................................................................2

ARGUMENT .............................................................................................................3

I. By Applying Salerno in a Novel and Unprecedented Manner, the Panel

Opinion Creates Unwarranted Obstacles for Plaintiffs ChallengingUnconstitutional Laws. .....................................................................................3

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

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

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

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

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

CONCLUSION ........................................................................................................15

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................16

STATEMENT OF RELATED CASES ...................................................................16

APPENDIX A ............................................................................................................1



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TABLE OF AUTHORITIES

Page No.

Cases

American Ins. Ass'n v. Garamendi,539 U.S. 396 (2003) ................................................................................................2

Arizona v. United States,132 S. Ct. 2492 (2012) .................................................................................. passim

City of Chicago v. Morales,527 U.S. 41 (1999) ..................................................................................................8

City of Cleburne v. Cleburne Living Ctr.,473 U.S. 432 (1985) ................................................................................................8

City of Los Angeles v. Patel,135 S. Ct. 2443 (2015) ............................................................................................5

Crosby v. Nat'l Foreign Trade Council,530 U.S. 363 (2000) ................................................................................................2

Farrakhan v. Gregoire,623 F.3d 990 (9th Cir. 2010) ..................................................................................7

Hunter v. Underwood ,471 U.S. 222 (1985) ................................................................................................7

Jackson v. City & Cnty. of San Francisco,746 F.3d 953 (9th Cir. 2014) ..................................................................................5

Lopez-Valenzuela v. Arpaio,770 F.3d 772 (9th Cir. 2014) ........................................................................ passim

Lozano v. City of Hazleton,724 F.3d 297 (3d Cir. 2013) .................................................................................13



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iii

Misic v. Building Serv. Empl. Health & Welfare Trust ,789 F.2d 1374 (9th Cir. 1986) ................................................................................3

Shelby County v. Holder ,133 S. Ct. 2612 (2013) ............................................................................................6

United States v. Arizona,641 F.3d 339 (9th Cir. 2011) ....................................................................... passim

United States v. Salerno,481 U.S. 739 (1987) ...................................................................................... passim

Villas at Parkside Partners v. City of Farmers Branch, Tex.,726 F.3d 524 (5th Cir. 2013) .......................................................................... 13,14

Other Authorities

David H. Gans, Strategic Facial Challenges,85 B.U. L. R EV. 1334 (2005).................................................................................15

Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges,

99 CAL. L. R EV. 915 (2011) ..................................................................................15

Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 VA. L. R EV. 301 (2012) ....................................11



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IDENTITY AND INTERESTS OF AMICI1

Amici curiae National Immigration Law Center, Asian Americans

Advancing Justice, Asian Americans Advancing Justice Los Angeles, Center for

Constitutional Rights, Latino Justice, Lawyers’ Committee for Civil Rights of the

San Francisco Bay Area, Legal Aid Society Employment Law Center, Service

Employees International Union, Southern Poverty Law Center, and Western

Center on Law and Poverty are nonprofit legal organizations who litigate in a

variety of issue areas, including immigration, workers’ rights, constitutional law,

and preemption. All share a common interest in ensuring that plaintiffs can

vindicate their civil rights through facial challenges, which are a critical tool in

constitutional litigation. They urge rehearing of this case because the panel’s

decision departs from established precedent articulating the standard for facial

challenges, and in so doing, undermines civil rights plaintiffs’ ability to seek

court invalidation of unconstitutional statutes. The panel’s holding also departs

from settled Circuit and Supreme Court precedent in the realm of immigration

preemption and creates a circuit split.

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



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SUMMARY OF ARGUMENT

Rehearing of this case is warranted to correct the panel’s erroneous

application of United States v. Salerno, 481 U.S. 739 (1987), to facial preemption

challenges.2 In Salerno, the Supreme Court held that, to facially invalidate a

statute, the challenger must demonstrate there is “no set of circumstances” in

which the law is valid. Id. at 745.

The panel opinion holds that Arizona’s “identity theft laws are not facially

preempted because they have obvious constitutional applications.” Slip Opinion

(“Slip Op.”) at 14. This analysis misses the mark: Salerno does not let state laws

that conflict with federal law stand merely because there are some conceivable

non-preempted applications of the challenged statute. Rather, as this Court has

previously explained, “there can be no constitutional application of a statute that,

on its face, conflicts with Congressional intent and therefore is preempted by the

2 Whether applying the Salerno standard makes sense in the preemption contextis an open question. See United States v. Arizona, 641 F.3d 339, 345 n.3 (9th Cir.2011), aff’d in part, rev’d in part and remanded , 132 S. Ct. 2492 (observing thatthat the Supreme Court’s analogous facial preemption decisions in Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000), and American Insurance Association v. Garamendi, 539 U.S. 396 (2003), “[n]either cite[] Salerno normention[] its standard in the opinions, concurrences, or dissents.”). Though amicido not concede that Salerno applies in the facial preemption context, for the purposes of this brief, they assume the Salerno “no set of circumstances”standard as controlling.



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Supremacy Clause.” United States v. Arizona, 641 F.3d 339, 346 (9th Cir. 2011),

aff’d in part, rev’d in part and remanded , 132 S. Ct. 2492 (2012); 3 see also

Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 789 (9th Cir. 2014).

The panel’s decision should be reexamined for two reasons. First, the

panel’s reading of Salerno is both normatively and descriptively incorrect: it

applies the Salerno standard in an unprecedented manner that will hinder

plaintiffs’ ability to challenge laws violating their constitutional rights. It also

conflicts with established precedent in this circuit and others assessing facial

challenges in the context of immigration preemption.

ARGUMENT

I. By Applying Salerno in a Novel and Unprecedented Manner, the Panel

Opinion Creates Unwarranted Obstacles for Plaintiffs Challenging

Unconstitutional Laws.

The panel reads Salerno for the proposition that potentially “constitutional

applications” of a statute can immunize it from facial challenge, thus declining to

find the Arizona false identification statutes preempted on their face because they

3 The Supreme Court affirmed this Court’s Arizona decision in part, reversed it in part, and remanded. See Arizona v. United States, 132 S. Ct. 2492, 2510-11(2012). Because the Supreme Court did not overrule the panel’s approach as tothe application of Salerno in its review of the facial constitutionality of Section 6,it remains valid and precedential. See Misic v. Building Serv. Empl. Health &Welfare Trust , 789 F.2d 1374, 1379 (9th Cir. 1986).



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could be applied in a manner that would not directly infringe upon the federal

immigration employment framework.

But that is not how Salerno works. Rather, where a challenger succeeds in

showing that a law itself – as judged by its text or the circumstances surrounding

its passage – violates the relevant constitutional rule, the entire statute fails.

Lopez-Valenzuela, 770 F.3d at 789 & n.13. Thus, courts regularly invalidate

statutes on their face even if they can be applied to individuals whose conduct

can be regulated by the lawmaking body under a different, constitutional law. By

departing from this settled understanding of how facial challenges are to be

evaluated, the panel opinion creates unprecedented obstacles for plaintiffs

challenging statutes that, by their text and purpose, violate constitutional

principles.

A. The panel’s application of Salerno departs from controlling

precedent examining how the Court is to address facial

challenges.

In assessing whether a statute should be invalidated on its face, courts ask:

does the statute implicate a constitutional provision, and, if so, does it comport

with the rule that determines whether that constitutional provision is violated?

See Lopez-Valenzuela, 770 F.3d at 789 & n.13 (citing Scott A. Keller & Misha

Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in

Toto, 98 VA. L. R EV. 301, 322-24 (2012)). For example, a bail law that infringes



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upon an individual’s liberty must be “narrowly tailored,” see id., while a gun law

may not place an impermissible burden on an individual’s right to bear arms, see

Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 962 (9th Cir. 2014).

This inquiry “direct[s] courts to examine the statute at issue and not the facts of

enforcement.” Keller & Tseytlin, Applying Constitutional Decision Rules, at 322.

Recent facial challenges decided by this Court and the Supreme Court

illustrate this point. For example, in Lopez-Valenzuela, this Court, sitting en banc,

held that an Arizona bail law categorically denying bail to undocumented

immigrants was invalid because it was not sufficiently narrowly tailored to meet

the state’s interest in ensuring that undocumented immigrants appeared at their

criminal hearings; instead, it was a “‘scattershot attempt’ at addressing flight

risk.” 770 F.3d at 791. The Court acknowledged that some individuals subject to

detention under the bail law could conceivably be denied bail under a different,

constitutional law, but nevertheless struck down the law on its face. Id. at 789.

Under the panel’s application of Salerno, however, the bail law may well have

survived a facial challenge because of its apparent “constitutional applications.”

Slip Op. at 14.

Similarly, in City of Los Angeles v. Patel, the plaintiff challenged a city

ordinance that empowered officers to demand hotel operators’ records without a

warrant. 135 S. Ct. 2443, 2447-48 (2015). The Supreme Court held that this law



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facially violated the Fourth Amendment and rejected the idea that Salerno

categorically barred challenges under this constitutional provision. Id. at 2449.

Yet under the panel’s rule, this ordinance, too, could have been immune to facial

attack because there were conceivable instances in which law enforcement

officers could have constitutionally demanded the records without a warrant. See

id. at 2464-66 (Alito, J., dissenting) (suggesting purported constitutional

applications of the city ordinance).

Likewise, in Shelby County v. Holder , 133 S. Ct. 2612 (2013), the

Supreme Court facially invalidated a provision of the Voting Rights Act on the

basis that Congress exceeded its power under the Fifteenth Amendment in

enacting the coverage formula – even though there was evidence that Alabama

had engaged in voting discrimination and could therefore “justifiab[ly]” have

been subject to a preclearance requirement. Id. at 2646 (Ginsburg, J., dissenting).

The Court distinguished between facial and as-applied challenges, explaining that

“Shelby County’s claim is that the coverage formula here is unconstitutional in

all its applications” because it failed to comply with the relevant constitutional

rule. Id. at 2629-30 (emphasis added). In other words, the fact that the

preclearance requirement could be validly applied even as to its challenger was

irrelevant.



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Finally, although laws that disenfranchise individuals with felony

convictions have been held to be constitutional, see Farrakhan v. Gregoire, 623

F.3d 990, 993 (9th Cir. 2010) (en banc), if a law characterized as a “felon

disenfranchisement” measure was in fact substantially motivated by a racially

discriminatory purpose (such as to disenfranchise minority voters), it violates the

Equal Protection Clause on its face, see Hunter v. Underwood , 471 U.S. 222, 233

(1985). In Hunter , the Court struck down a facially neutral voter

disenfranchisement statute because a “substantial or motivating factor” was

discrimination against African Americans. Id. at 228 (internal citations and

quotation marks omitted). Unlike the panel’s decision here, Hunter did not

analyze potentially valid applications of the statute. Instead, it considered the

purpose and effect of the underlying law to determine whether the law violated

the relevant constitutional rule. Id . at 227.

B. The panel’s unprecedented holding undermines the ability of

civil rights plaintiffs to rely on courts to invalidate

unconstitutional laws.

By applying Salerno in a manner that deviates from precedent, the panel’s

opinion hinders plaintiffs’ ability to mount facial challenges. This is a problem

because facial challenges are critically important to the protection of

constitutional rights. “When asserting a facial challenge, a party seeks to

vindicate not only his own rights, but those of others who may also be adversely



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impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41,

109 n.22 (1999). The “very purpose” of a facial constitutional challenge is to

“protect the rights of all subject to the law, particularly absent parties who might

lose their rights under a case-by-case regime.” David H. Gans, Strategic Facial

Challenges, 85 B.U. L. R EV. 1334, 1341 (2005) (emphasis added).4

By contrast, as-applied adjudications, in which each plaintiff must

individually suffer (or imminently face) the impact of an unconstitutional statute

and can only then bring suit, is a “cumbersome” process. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 476 (1985) (Marshall, J., dissenting). As-

applied challenges have a “distorting” effect, “caus[ing] a court to lose sight of a

larger constitutional injury.” Gans, 85 B.U. L. R EV. at 1348. Yet the doctrinal

confusion wrought by the panel’s opinion – which conflates unconstitutional

rules and their applications – will make it much more difficult for plaintiffs to

facially challenge unconstitutional laws.

Because the panel’s opinion misapplies Salerno and could render facial

challenges significantly more difficult to mount – and, concomitantly,

4 Not only are facial challenges important, they are also common. Richard H.Fallon, Jr., Fact and Fiction About Facial Challenges, 99 CAL. L. R EV. 915, 917-18 (2011) (observing that facial challenges enjoy a 44 percent success rate,compared with a 38 percent success rate for as-applied challenges).



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constitutional rights significantly more difficult to vindicate – it should be

reconsidered.

II. The Panel’s Decision Deviates from Controlling Precedent in the

Realm of Immigration Preemption and Creates an Inter-Circuit

Split.

The panel’s application of Salerno suffers from an additional infirmity: is

at odds with this Court and the Supreme Court’s precedent, and creates a conflict

with two out-of-circuit decisions, in the realm of immigration preemption.

Before the panel’s decision here, this Court had held, uniformly with

others, that the relevant question in immigration preemption cases was whether

the state or local ordinance “disrupt[s] the federal framework,” either because the

framework is so “pervasive . . . that Congress left no room for the states to

supplement it,” or because the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Arizona v. United States, 132 S. Ct. 2492, 2501-02 (2012). None of these cases

held, as the panel did here, that if just one application of a statute does not offend

the federal scheme, the statute is immune from facial invalidation.

A. The panel’s decision conflicts with the Arizona decisions

issued by this Court and the Supreme Court.

The panel’s decision conflicts with the decisions of this Court and the

Supreme Court in Arizona v. United States, 641 F.3d 339, 346 (9th Cir. 2011),

aff’d in part and rev’d in part , 132 S. Ct. 2492. In Arizona, this Court addressed a



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facial immigration preemption challenge to S.B. 1070, a state law that, among

other measures, authorized state and local law enforcement to arrest those

suspected of committing immigration violations, and which was passed with the

express legislative purpose of encouraging “attrition through enforcement.” Id. at

343. In its discussion of “general preemption principles,” the Court specifically

addressed how Salerno’s “no set of circumstances” test was to be applied in the

context of a facial preemption-based challenge. Id. at 345. Rejecting the

interpretation of Salerno that Arizona officials advanced in that litigation, the

Court “stress[ed]” that the critical question was not “whether state and local law

enforcement officials c[ould] apply the statute in a constitutional way”:

Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissibleapplications of it. This formulation misses the point: there can be noconstitutional application of a statute

that, on its face, conflicts withCongressional intent and therefore is preempted by the SupremacyClause.

Id. at 346 (emphasis added).

In other words, if the statute aims to regulate in a realm the federal

government has reserved exclusively for itself, or in a manner that conflicts with

the federal scheme, it is immaterial whether there could be isolated instances in

which the application of the statute could operate without infringing upon the

federal scheme.



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The Arizona dissent advocated for a position similar to that taken by the

panel here. It argued that Section 6 of S.B. 1070, which allowed peace officers to

arrest individuals suspected of violating the federal immigration laws, was

facially constitutional because there was a “set of circumstances” under which

the provision permitted arrests which also authorized by federal law. Id. at 384

(Bea, J., dissenting in part). The dissent reasoned that in these instances, S.B.

1070 would not conflict with federal law. But, as the panel majority explained,

this is not the test: the “question” is instead “whether federal law likely

preempt[ed] Arizona from allowing its officers to effect warrantless arrests based

on probable cause of removability.” Id. at 361 (emphasis added). In other words,

it was the state legislature’s empowerment of officers to act in a manner

preempted by federal law that rendered the statute invalid, notwithstanding

applications of the statute that might not directly conflict with the federal scheme.

The panel’s decision here also conflicts with the Supreme Court’s Arizona

opinion, which upheld the injunction against Section 6 of S.B. 1070,

notwithstanding its hypothetically valid applications, because it interfered with

the federal scheme. 132 S. Ct. at 2506-07. It was irrelevant that, as the dissenting

Justices suggested, there were “plenty of permissible applications” of this

provision, and that Arizona could limit the provision by “identify[ing] specific

crimes for which there is no doubt an alien would be removable,” thereby



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avoiding infringement upon the federal scheme. Id. at 2534-35 (Alito, J.,

dissenting in relevant part). Rather, because the purpose and effect of the state

law were in conflict with the federal scheme, the law was facially preempted. See

id. at 2507.

The panel’s approach here is at odds with both this Court and the Supreme

Court’s immigration preemption holdings in Arizona. Instead of considering the

explicit purpose of the law – which was to target the employment of

undocumented immigrants, see Dkt. 126 at 9 – the panel first searched for a small

handful of hypothetically valid applications of the statute and then concluded

these immunized the statute from Plaintiffs’ facial attack. See Slip Op. at 14-15.

This was precisely the approach rejected in both Arizona decisions. See 132 S.

Ct. at 2534-35 (Alito, J., dissenting in relevant part) (arguing law could be

implemented “in a way that would avoid any conflicts with federal law” by

articulating hypothetical applications); 641 F.3d at 383 (Bea, J., dissenting)

(arguing that SB 1070’s warrantless arrest provision was not preempted because

it could be lawfully applied to an immigrant convicted of murder, who would

undoubtedly be removable under federal law). Because both this Court and the

Supreme Court rejected this reasoning in Arizona, the fact that certain

prosecutions under the Arizona false identification statutes could fall outside the

purview of the federal scheme is not sufficient to reject this facial preemption-



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based challenge. By holding otherwise, the panel’s opinion deviates from

controlling precedent in this Circuit and the Supreme Court.

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

Not only is the panel’s opinion inconsistent with the precedent of this

Court and the Supreme Court, it also directly contradicts the Third Circuit’s

recent opinion in Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), and

Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524 (5th

Cir. 2013), both of which rejected an interpretation of Salerno that the panel

advances here in the context of facial immigration preemption challenges. The

panel’s holding therefore unnecessarily creates a circuit split.

Lozano involved a challenge to a series of immigration-related ordinances

passed by the city council in a Pennsylvania town, including a provision that

made it unlawful to hire undocumented immigrants. See 724 F.3d at 301-02.

After carefully considering the effect of the Supreme Court’s Arizona decision,

the Third Circuit held the state measure was preempted. See id. at 309-12. It

forcefully rejected the city’s argument that because there were hypothetically

valid applications of the law, the facial attack failed Salerno’s “no set of

circumstances” test. Id. at 313 n.22. The court explained that the city’s approach

“would reject a conflict preemption claim in a facial challenge whenever a



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defendant c[ould] conjure up just one hypothetical factual scenario in which

implementation of the state law would not directly interfere with federal law.” Id.

Similarly, the Fifth Circuit recently upheld a permanent injunction against

a city ordinance restricting rental housing to individuals based on immigration

status. Villas at Parkside Partners, 726 F.3d at 528-29. In so doing, it rejected the

dissent’s position that the provision survived the facial preemption challenge

because of its conceivably permissible application to citizens and “legally

resident aliens.” See id. at 564-65 (Jones, J. dissenting) (arguing that “[u]nder

Salerno, if there are any permissible applications of the Ordinance, [the Court]

should not completely invalidate it on the basis of a facial challenge”).

The panel’s opinion here departs from the sound reasoning of the Third

and Fifth Circuits. It does exactly what those courts declined to do, engaging in

speculation about valid applications of the statute, while ignoring the statute’s

clear purpose of infringing upon a comprehensively regulated federal scheme.

Because the panel’s opinion deviates from controlling immigration preemption

precedent in this Circuit and creates a split with two others, it should be reheard.

///

///

///

///



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CONCLUSION

For the foregoing reasons, amici respectfully request this Court grant

Plaintiffs’ request for rehearing.

Date: May 26, 2016 Respectfully Submitted,


/s Nicholas Espíritu Nicholas EspírituMelissa Keaney3435 Wilshire Blvd., Suite 2850

Los Angeles, CA [email protected]@nilc.orgTelephone: 213.639.3900Facsimile: 213.639.3911

Charanya KrishnaswamiPUBLIC COUNSEL610 S. Ardmore Ave.

Los Angeles, CA [email protected]: (213) 385-2977Facsimile: (213) 385-9089




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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

29(d) and 32(a)(7)(B), because this brief contains 3,168 words excluding the

parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Rule 32(a)(5) and

the type style requirements of Rule 32(a)(6) because this brief has been prepared

in a proportionally spaced typeface using Microsoft Word in 14-point Times New

Roman font.

STATEMENT OF RELATED CASES

Amici are not aware of any related cases pending in this Court.

Date: May 26, 2016 NATIONAL IMMIGRATION LAW CENTER

/s Nicholas Espíritu Nicholas Espíritu



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Appendix A, Page 1

APPENDIX A

Pursuant to Federal Rules of Appellate Procedure 29(c) and 26.1, amici

provide the following statement. All are nonprofit organizations with no parent

corporations or publicly traded stock, including the following:

The National Immigration Law Center (“NILC”) is the primary

national organization in the United States exclusively dedicated to defending and

advancing the rights and opportunities of low-income immigrants and their

families. Over the past 35 years, NILC has won landmark legal decisions

protecting fundamental rights, and advanced policies that reinforce our nation’s

values of equality, opportunity, and justice. NILC’s interest in the outcome of

this case arises from its work in federal immigration preemption cases and its

strong interest in ensuring civil rights litigants can continue to safeguard

constitutional rights by mounting facial challenges.

Asian Americans Advancing Justice | AAJC (“Advancing Justice |

AAJC”) is a national nonprofit, non-partisan organization working to advance

the human and civil rights of Asian Americans and build and promote a fair and

equitable society for all. Founded in 1991 and based in Washington, D.C.,

Advancing Justice | AAJC engages in litigation, public policy advocacy, and

community education and outreach on a range of issues, including immigration

and equal opportunity for Asian-American communities.



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Appendix A, Page 2

Asian Americans Advancing Justice - Los Angeles (“Advancing Justice

– LA”), formerly the Asian Pacific American Legal Center, is the nation’s largest

legal and civil rights organization for Asian Americans, Native Hawaiians, and

Pacific Islanders (NHPI). Advancing Justice - LA serves more than 15,000

individuals every year, including Asian Americans and NHPIs who lack effective

access to the courts. Through direct services, impact litigation, policy advocacy

and capacity building, Advancing Justice - LA focuses on vulnerable members of

Asian American and NHPI communities while also building a strong voice for

civil rights and social justice. Advancing Justice – LA has a long history of

challenging unconstitutional laws that infringe on the most fundamental rights of

low-income communities of color.

The Center for Constitutional Rights is a national nonprofit legal,

educational and advocacy organization dedicated to advancing and protecting the

rights guaranteed by the United States Constitution and the Universal Declaration

of Human Rights. Founded in 1966, the Center has litigated numerous landmark

civil and human rights cases which have focused on racial and immigrant justice,

law enforcement accountability, and the protection of vulnerable populations

from state and municipal efforts to undercut federal constitutional rights. We

currently serve as plaintiffs’ counsel in Hassan v. City of New York , 804 F.3d 277

(3d Cir. 2015), which held that a police department’s surveillance of Muslims as



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Appendix A, Page 3

a class was subject to heightened equal-protection review; Floyd v. City of New

York , 959 F. Supp. 2d 540 (S.D.N.Y. 2013), which found that the New York

Police Department’s “stop and frisk” policy systematically violated the Fourth

and Fourteenth Amendment rights of Blacks and Latinos; and Immigrant Defense

Project v. ICE (14-cv-6117) (S.D.N.Y.), which seeks information on the

Department of Homeland Security’s practice of raiding homes to make

immigration arrests.

LATINOJUSTICE PRLDEF is a national Latino civil rights legal

defense fund that has engaged in law reform litigation, advocacy, and education

to defend the civil and constitutional rights of Latinos since 1972. We champion

an equitable society through advancing Latino civil engagement, cultivating

leadership and protecting civil rights and equality in the areas of voting rights,

immigrant rights, and fair access to housing, education and employment. Past

immigrants’ rights litigation matters include the Lozano v. City of Hazleton

landmark case upholding federal preemption of local immigration ordinances

seeking to regulate and restrict Latino residents in the areas of rental housing and

employment cited in the brief herein.

The Lawyers’ Committee for Civil Rights of the San Francisco Bay

Area (“LCCR”) works to advance, protect, and promote the rights of

communities of color, low-income persons, immigrants, and refugees through the



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Appendix A, Page 4

provision of direct legal services, policy advocacy, and litigation. Throughout its

45-year history, LCCR has challenged various state and local government actions

that infringe upon the rights secured by the U.S. Constitution and federal statutes

to immigrants and other historically disadvantaged groups. LCCR’s interest in

this case stems from its commitment to protecting the rights of its client

communities within the U.S. federal system.

The Legal Aid Society-Employment Law Center (“LAS-ELC”),

founded in 1916, is a national legal services nonprofit that advances and defends

the rights of low-wage workers through a combination of impact and

enforcement litigation, direct services, and administrative and legislative

advocacy. LAS-ELC offers direct assistance to thousands of low-wage workers

and has prosecuted numerous wage and hour, employment discrimination, and

disability rights class actions in the state and federal courts. Through its

Immigration and National Origin Program, LAS-ELC provides legal assistance to

immigrant and other workers who face employment discrimination based on their

national origin. Given LAS-ELC’s extensive work on behalf of immigrant

workers, including regarding immigration-based workplace retaliation, it has a

strong interest in the preemption issues presented by this case.

The Service Employees International Union (“SEIU”) is an

international labor organization representing approximately two million working



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men and women in the United States and Canada employed in the private and

public sectors. Many of SEIU’s members are foreign-born U.S. citizens, lawful

permanent residents, or immigrants authorized to work in the United States.

Many of SEIU’s members have mixed-status families. SEIU and its members

have an interest in Arizona's two identity theft in employment statutes as they

undermine federal labor and employment protections.

The Southern Poverty Law Center (SPLC) has provided pro bono civil

rights representation to low income persons since 1971, with particular emphasis

on combating discrimination by state and local governments. SPLC frequently

litigates challenges to unconstitutional government action in federal district and

appellate courts throughout the nation. SPLC thus has a strong interest in

ensuring that civil rights litigants are able to bring facial challenges to

unconstitutional state laws.

Western Center on Law and Poverty is the oldest and largest statewide

support center for legal services advocates in California. Western Center

represents California’s poorest residents in litigation to advance access to

housing, health, public benefits, jobs and justice. Western Center has frequently

represented clients mounting facial challenges to ordinances and

statutes. Ensuring that such challenges are evaluated under reasonable standards

is critical to Western Center’s racial justice and anti-poverty mission.


Documents

128 - Amicus Brief of NILC Et Al