JERRY E. SMITH, Circuit Judge:
The Louisiana State Board of Practical Nurse Examiners (the "Board") denied a license to Esthee Van Staden solely on account of her immigration status; she is an alien who has applied for permanent residence. She sued the Board, claiming its status requirement violates the Constitution. The district court granted the Board summary judgment on all grounds. Because applicants for permanent resident status do not constitute a suspect class under the Equal Protection Clause, and a rational basis supports the immigration-status requirement, we affirm.
Van Staden, a citizen of the Republic of South Africa, has lived in the United States since 2001. She is a licensed practical nurse ("LPN") in Texas but moved to Louisiana in February 2007. She applied to the Board for a license but was allegedly rejected solely for immigration status; as currently written,
This case is controlled by LeClerc, in which the majority interpreted the Supreme Court's alienage jurisprudence to indicate that nonimmigrant aliens are not "a suspect class entitled to have state legislative classifications concerning them subjected to strict scrutiny." LeClerc, 419 F.3d at 419. LeClerc need not be extended to cover the facts of this case; it need only be restated.
In LeClerc, this court heard two consolidated appeals involving nonimmigrant aliens
The Supreme Court's reasons for the distinction help illuminate the case at hand. According to the LeClerc majority,
Id. at 417. The first condition applies because permanent resident aliens are "a prime example of a `discrete and insular' minority for . . . whom [ ] heightened judicial solicitude is appropriate." Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)). "Characterizing resident aliens as a Carolene Products minority reconciles the breadth of rights and responsibilities they enjoy with their lack of political capacity." LeClerc, 419 F.3d at 417.
The "breadth of rights and responsibilities" satisfies the second condition, the similarity of permanent resident aliens to citizens. In LeClerc we read Supreme Court precedent as recognizing that permanent resident aliens "are similarly situated to citizens in their economic, social, and civic (as opposed to political) conditions. . . . Like citizens, resident aliens may not be deported, are entitled to reside permanently in the United States, may serve, voluntarily or by conscription, in the military, are entitled to state aid benefits, and pay taxes on the same bases as citizens." Id. at 418 (citation and footnotes omitted).
Nonimmigrant aliens satisfy neither of the conditions triggering strict scrutiny. They differ from permanent resident aliens in that their lack of political capacity "is tied to their temporary connection to this country. Moreover, the numerous variations among nonimmigrant aliens' admission status make it inaccurate to describe them as a class that is `discrete' or `insular.'" Id. at 417 (footnote omitted). Nor are nonimmigrants "virtual citizens": "They are admitted, remain, and must depart at the discretion of the Attorney General. . . . [N]onimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits." Id. at 419.
LeClerc draws a clean line between permanent resident aliens and nonimmigrant aliens. Applicants for lawful permanent residence ("LPR applicants") like Van Staden fall into the latter category, even if close to the former. "[T]he submission of an application does not connote that the alien's immigration status has changed, as the very real possibility exists that [USCIS] will deny the alien's application altogether." United States v. Lucio, 428 F.3d 519, 525 (5th Cir.2005).
The LPR application is designed to help discern whether an applicant is fit for the "virtual citizenship" entailed by permanent resident alien status. Sample subjects asked about indicate how USCIS investigates whether an LPR applicant is objectively likely to contribute to the common good as a "virtual citizen":
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, FORM I-485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS 3-5 (2011). Even when verified by USCIS investigation, the LPR application cannot identify which applicants would be model "virtual citizens." But it does identify the most readily discernable reasons why an applicant would not be fit for the "breadth of rights and responsibilities" possessed by permanent resident aliens. Determining an applicant's fitness for permanent resident alien status takes time, but until that status is granted, an applicant cannot claim its benefits.
As the law of this circuit, LeClerc has interpreted the Supreme Court's alienage jurisprudence to mean that the Equal Protection Clause generally treats only permanent resident aliens as a suspect class.
Because, under Fifth Circuit precedent, LPR applicants are not in a suspect or quasi-suspect class, state laws that treat them unfavorably compared to citizens and permanent resident aliens need only pass rational basis review.
Viewed through this deferential lens, section 37:970(2) rests on the same rational basis as the bar rule upheld in LeClerc, both bearing "a rational relationship to legitimate state interests—Louisiana's substantial interest in regulating the practice of those it admits to its" professions. Id. Specifically, the Board's "ability to monitor, regulate, and, when necessary, discipline and sanction [LPN's] requires that it be able to locate [LPN's] under its jurisdiction. The State's determination that the easily terminable status of nonimmigrant aliens would impair these interests and their enforcement capacity is not irrational." Id. In other words, the law seeks to protect Louisiana residents from LPN's who may have previously left the jurisdiction to avoid the Board's disciplinary controls on the profession.
Van Staden argues that section 37:970(2) is irrationally underinclusive because it does not protect the state interest in quality care from citizen and permanent resident alien LPN's who leave the jurisdiction. But the Board is more likely able to take disciplinary measures against citizens and permanent resident aliens who move to another state or country, either by interstate agreements or by Louisiana courts' exercising jurisdiction over the departed, based on their prior in-state domicile. With nonimmigrants, however, "Louisiana courts would have questionable ability to exercise jurisdiction," because nonimmigrants "may not establish domicile in the United States and will usually have limited assets here." Id.
The legislature may rationally deem nonimmigrants as categorically more transient. Even if, like Van Staden, they are LPR applicants and thus signal their willingness to reside here permanently, nonimmigrants have not been vetted by USCIS in the manner outlined above. By definition, an LPR applicant is someone whom federal immigration authorities have not yet confirmed as fit for the virtual citizenship of permanent residence, given Congressional quotas; moreover, the federal government has not yet surrendered its right to deport the applicant.
Van Staden also cites the lack of any immigration requirement in section 37:920, from the licensing statute for registered nurses ("RN's"), as further evidence that section 37:970(2) is unconstitutionally irrational. We observe, however, that better disciplinary control (via tighter immigration requirements) may also constrict the supply of nurses available. The legislature could rationally conclude that ensuring a greater supply was more important than additional quality control when it comes to RN's but not LPN's.
AFFIRMED.
LeClerc, 419 F.3d at 410 n. 2. As shown below, the Supreme Court has used the terms "resident alien," "permanent resident alien," and "immigrant" almost interchangeably. We employ "permanent resident alien" except where quotations use a different term.
