RICHARD J. HOLWELL, District Judge:
New York Education Law § 6805(1)(6) provides that "[t]o qualify for a pharmacist's license, an applicant shall ... be a United States citizen or an alien lawfully admitted for permanent residence in the United States." The phrase "lawfully admitted for permanent residence" refers to aliens who have obtained their green cards—that is, aliens who have gained "legal permanent resident" ("LPR") status under federal law. See 8 U.S.C. § 1101(a)(20). The New York statute excludes all other aliens from the pharmacy profession, including those who have received authorization from the federal government to work in the United States temporarily.
The Supreme Court, relying on both the Equal Protection Clause and the exclusivity of the federal immigration power, has traditionally applied strict scrutiny to strike down state laws that discriminate against aliens. See Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 602, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). Two United States circuit courts, however, recently distinguished this precedent and upheld state laws discriminating against non-LPR aliens on the theory that alienage classifications are not suspect so long as they do not discriminate against LPRs. League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405 (5th Cir.2005). The Second Circuit has not decided the issue.
The facts of these consolidated actions are not disputed. Plaintiffs are twenty-six aliens with temporary authorization from the federal government to work in the United States. Twenty-two of them obtained visas known as H-1B temporary worker visas, which under the Immigration and Nationality Act may be given to aliens who come "temporarily to the United States to perform services ... in a specialty occupation...." 8 U.S.C. § 1101(a)(15)(H)(i)(b); Def. 56.1 ¶ 4. The other four plaintiffs obtained "TN" temporary
Plaintiffs are known in the parlance of immigration law as "nonimmigrant aliens" because they are authorized to stay in the country for only a finite period. Both H-1B and TN status grant admission to the United States for an initial period of no more than three years. 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1) (H-1B visa), 214.6(e) (TN status). Both statuses also permit three-year extensions of this initial period, but an alien may not remain in the country on an H-1B visa for more than a total of six years (in other words, an H-1B visa may only be extended once). Id. at § 214.2(h)(15)(ii)(B)(1).
Defendants are the Commissioner of Education and the Chancellor of the Board of Regents (collectively, "the State")—the leaders of the two New York agencies responsible for enforcing § 6805(1)(6).
(Def. Mem. at 18-19.)
Plaintiffs argue § 6805(1)(6) violates the Equal Protection Clause; unconstitutionally encroaches upon the federal immigration power; conflicts with federal immigration law; violates substantive due process; and violates the right to interstate travel. They seek a judgment declaring the statute unconstitutional and permanently enjoining the defendants from enforcing it. The parties filed cross motions for summary judgment. Because the Court agrees with plaintiffs' first two arguments, it does not reach the others.
"State classifications based on alienage are subject to `strict judicial scrutiny.'" Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 602, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (quoting Graham v.
403 U.S. at 372, 91 S.Ct. 1848. The Graham court applied this principle to declare unconstitutional two welfare statutes, one that denied benefits to all non-citizens and another that allowed aliens to receive benefits only if they met a 15-year residency requirement. Id. at 367-69, 91 S.Ct. 1848. In the ensuing six years, the Court struck down four similar alienage classifications: a New York law that excluded non-citizens from a portion of the civil service, Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); a Connecticut law that made non-citizens ineligible to take the bar exam, In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); a Puerto Rico law that excluded non-citizens from the private practice of engineering, Flores de Otero, 426 U.S. at 576, 96 S.Ct. 2264; and a New York law that limited public financial aid for higher education to citizens and aliens who had applied for citizenship or who declared an intent to apply when eligible. Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). Justice Blackmun authored all of these opinions except Griffiths, and he summarized their rationales in Flores de Otero:
426 U.S. at 602, 96 S.Ct. 2264 (citations omitted). Since Nyquist, the Supreme Court has upheld state laws discriminating against aliens only in two distinct circumstances that it has determined warrant
Here, the State does not argue that § 6805(1)(6) falls into either of these established exceptions; instead the State seeks to distinguish the rule that alienage classifications draw strict scrutiny on the ground that the rule should only apply to laws that discriminate against LPRs. Unlike the Graham line of cases—most of which concerned laws that distinguished between citizens and non-citizens and all of which concerned statutes that disfavored at least some LPRs—§ 6805(1)(6) draws a slightly different line by immigration status, one that treats LPRs and citizens alike and places all other aliens into a disfavored class. Justice Rehnquist raised this distinction in his dissent in Toll v. Moreno, 458 U.S. 1, 44-45, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982)—where the majority held that a Maryland law drawing a similar line between LPRs and other aliens violated the Supremacy Clause—but no majority of the Court has ever recognized it.
The Court will consider the LPR distinction's relevance to each of Justice Blackmun's rationales in turn.
The State's Equal Protection argument turns on differences in the rights and obligations of LPRs, on the one hand, and nonimmigrant aliens, on the other hand. According to the State, LPRs "share essential benefits and burdens of citizenship"—they pay taxes like citizens, they can volunteer for or be conscripted into the military, and they have authorization to live and work in the country indefinitely—while other aliens lawfully within the country do not have as much in common with citizens. (Def. Mem. at 13 (quoting LeClerc, 419 F.3d at 415).) Nonimmigrants
LeClerc and LULAC support the State's argument. In LeClerc, a divided Fifth Circuit panel upheld a Louisiana law that barred all aliens except LPRs from taking the state bar exam. 419 F.3d 405 (5th Cir.2005). The LeClerc court found that Equal Protection only requires strict scrutiny of alienage classifications that differentiate between LPRs and citizens:
Id. at 418. The court reasoned that non-LPRs do not bear the same badges of quasi-citizenship and that laws discriminating against non-LPRs as a class are therefore not suspect. Id. In LULAC, a divided Sixth Circuit panel relied on the reasoning in LeClerc to uphold a similar Tennessee law, which rendered non-LPR aliens ineligible to obtain driver's licenses. 500 F.3d at 533-34.
LeClerc and LULAC's adoption of the LPR distinction has prompted criticism from jurists and commentators. In both circuit cases, dissenting judges argued that alienage is a suspect classification for reasons that apply to LPRs and nonimmigrants alike. "[T]he basis for aliens' suspect class designation seems to be premised on aliens' inability to vote, and thus their impotence in the political process, and the long history of invidious discrimination
The disagreement over the LPR distinction encompasses two disputed questions. First, what are the differences between LPRs and nonimmigrant aliens? And second, do those differences properly distinguish the underpinnings of the doctrine that aliens are a suspect class? The first question is factual, but it has generated disagreement nonetheless. Both the LeClerc and LULAC courts relied upon a series of purported differences between LPRs and nonimmigrants. LeClerc summarized those differences as follows:
419 F.3d at 418-19. LULAC used a similar formulation:
500 F.3d at 533.
As the dissenters noted, aspects of these summaries are misleading. First, nonimmigrants like plaintiffs do pay taxes, often on the same terms as citizens and LPRs. Nonimmigrants are considered U.S. residents for tax purposes so long as they are "physically present in the U.S. for at least 31 calendar days during the course of the
The Circuit majorities' descriptions of nonimmigrants' transience are also inaccurate. LeClerc stated "[n]onimmigrant aliens are admitted to the United States only for the duration of their status, and on the express condition they have `no intention of abandoning' their countries of origin and do not intend to seek permanent residence in the United States." 419 F.3d at 418-19. But many nonimmigrants, including many of the plaintiffs here, are in the process of applying for green cards. And the nonimmigrant veterinarian-plaintiff in Kirk actually became an LPR by the time the case reached the Second Circuit, prompting the circuit to vacate the district court's decision for mootness. No. 08-3683-CV (2d Cir. June 24, 2009) ("We find this appeal to be moot in light of the United States's grant of permanent legal residency status to Plaintiff."). Such are the effects of the State Department's doctrine of dual intent, under which nonimmigrants may "both express a short term intent to remain in the United States temporarily (so as not to contravene the requirements of the visa under which they entered) and a long term intent to remain in the United States permanently (so that they may apply for adjustment of status)." LeClerc, 419 F.3d at 429 (Stewart, J., dissenting). Thus, though nonimmigrants are perhaps more likely than LPRs to leave the United States, the distinctions between the two immigration statuses are not quite as LeClerc and LULAC presented them. Both LPRs and nonimmigrants have foreign citizenship and might opt to leave the United States permanently for their country of citizenship in the future. Similarly, both might remain in the United States permanently—a nonimmigrant by obtaining LPR status, and an LPR by simply exercising his right to permanent residence. The difference between the two statuses (and it is a difference) is that a nonimmigrant may not be able to remain in the United States if he wishes.
As for the other features of nonimmigrant status that the circuit majorities relied upon—ineligibility for military service and certain federal benefits, and limited work permission (in other words, permission to work only in a specified field)— neither the circuits nor defendants here explain how these federally imposed restrictions relate to state policy or otherwise impact the Equal Protection analysis. See Takahashi, 334 U.S. at 419, 68 S.Ct. 1138 ("It does not follow ... that because the United States regulates immigration and naturalization ... a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living."). In this Court's view, then, the oft-discussed differences between LPR and nonimmigrant status boil down to one potentially important difference—nonimmigrants have not yet obtained permission to reside in the United States permanently—and a slew of other differences of uncertain relevance (nonimmigrants are
The remaining question is whether these differences properly distinguish the constitutional rule that alienage-based classifications are suspect under the Equal Protection Clause. The Graham court, by providing only the most limited explanation of why it designated aliens a suspect class, left significant room for disagreement over this issue. Graham declared aliens a "discrete and insular minority." But what does it mean to be a discrete and insular minority? And why do aliens as a class fit that description? Graham did not clarify. See Toll, 458 U.S. at 40, 102 S.Ct. 2977 (Rehnquist, J., dissenting) ("Apart from the abbreviated conclusion that `aliens as a class are a prime example of a discrete and insular minority,' the [Graham] Court did not elaborate on the justification for `heightened judicial solicitude.'") (quoting Graham, 403 U.S. at 372, 91 S.Ct. 1848). In Foley, Justice Burger suggested that aliens' "discreteness and insularity" derived from their inability to vote, 435 U.S. at 294, 98 S.Ct. 1067, and Justice Rehnquist proposed the same theory in his Toll dissent. 458 U.S. at 40, 102 S.Ct. 2977 ("One could infer that rigorous judicial scrutiny [of alienage classifications] normally was necessary because aliens were barred from asserting their interests in the governmental body responsible for imposing burdens upon them."). Other opinions suggest aliens are discrete and insular due to the history of invidious discrimination against them. See Flores de Otero, 426 U.S. at 603, 96 S.Ct. 2264 (canvassing history of "[o]fficial discrimination against lawfully admitted aliens").
Perhaps the best way to read Graham's use of the hoary phrase, "discrete and insular minority," is as a signifier that denotes a group of criteria for determining the proper scrutiny level under the Equal Protection Clause, rather than a single dispositive rationale. Justice Brennan proposed this broader reading in Plyler:
457 U.S. at 217 n. 14, 102 S.Ct. 2382. This language touches all the familiar premises for strict scrutiny under the Equal Protection clause. Such scrutiny is warranted if a legal classification (1) turns on a characteristic that is generally irrelevant to policy goals and has been the
The first scrutiny criterion is the most prevalent. The Supreme Court draws upon history and context to make a preliminary assessment of the legislature's likely motives for classifying people by a particular characteristic, and if that preliminary assessment reveals red flags, the Court applies heightened scrutiny. For example, race is seldom relevant to policy, and our history reveals examples of legislative enactments motivated by irrational racial prejudice, so the Court is suspicious of any law that classifies by race. See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ("[R]ace, alienage, or national origin... are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others."). Of course, this explanation portrays the Court as putting the cart before the horse by considering the likely rationality of a law before deciding how closely to scrutinize the rationality of the law. But there is no doubt that the Court does, in fact, use this method to choose between scrutiny levels. See id.; Frontiero v. Richardson, 411 U.S. 677, 684-86, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) ("[W]hat differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society."). Moreover, the Court's heightened scrutiny of alienage classifications appears to derive in part from such a preliminary assessment of their likely irrationality:
Toll, 458 U.S. at 20-21, 102 S.Ct. 2977 (Blackmun, J., concurring).
The State's argument, as the Court construes it, is that alienage classifications
Somewhat persuasively, this argument seeks to tie the LPR distinction to the criteria for determining scrutiny in a way that the LeClerc and LULAC opinions do not. But the Court is not convinced that the differences between LPRs and nonimmigrants are substantial enough to remove non-LPR classifications from the ambit of judicial suspicion. First, the Supreme Court has already considered and rejected a state law discriminating against a sub-class of aliens characterized by potential transience. In Nyquist, the Court struck down a New York law that discriminated against LPRs who had not yet applied for citizenship and who did not intend to apply for citizenship once they qualified to do so. 432 U.S. at 10, 97 S.Ct. 2120. Because an LPR must renounce foreign citizenship to become a U.S. citizen, id. at 5 n. 5, 97 S.Ct. 2120, the discrimination reached only those LPRs who refused to declare an intent to sever foreign ties.
The Nyquist law and § 6805(1)(6) implicate transience in different ways—the Nyquist law by excluding aliens who refused to declare an irrevocable commitment to the United States, and § 6805(1)(6) by excluding aliens whom the federal government may still force to leave after a finite period. But the point remains: the affected sub-class of aliens in Nyquist was distinctly more likely to leave the United States than the unaffected remainder of the citizen/LPR population, yet the Supreme Court applied strict scrutiny anyway.
Second, the State's argument addresses only one of the two factors the Supreme Court considers in assessing a law's likely rationality for choice-of-scrutiny purposes. Even if one accepts the premise that nonimmigrants have a higher potential for transience than LPRs and that this fact has policy relevance, no one would argue that nonimmigrant aliens are any less likely to suffer irrational discrimination than their LPR counterparts. Indeed, under the State's reasoning, the opposite is true: because nonimmigrants generally have enjoyed less time to assimilate, they are logically more likely to suffer xenophobic animosity. In other contexts, where a distinguishing characteristic has policy relevance but has also been an axis of irrational discrimination, the Supreme Court has applied other forms of heightened scrutiny. Gender classifications receive intermediate scrutiny because of this mix of possible policy relevance and bad history:
United States v. Virginia, 518 U.S. 515, 531-33, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Under this framework, intermediate scrutiny would seem the lowest possible standard of review for non-LPR classifications, because while such classifications might, in some circumstances, implicate a relevant difference between people, they also implicate a history in which aliens have been denied rights and opportunities simply because they are aliens. See, e.g., Takahashi, 334 U.S. 410, 68 S.Ct. 1138; Yick Wo, 118 U.S. 356, 6 S.Ct. 1064.
Of course, one might believe that § 6805(1)(6), rather than extending this unfortunate history, seeks only to further the legitimate purposes the State ascribes to it here—that is, that the law aims to enhance professional discipline and ensure the availability of malpractice remedies,
The non-LPR distinction is even less relevant to the other criteria for heightened scrutiny—fairness and political powerlessness. The Court's alienage jurisprudence invokes these criteria in tandem. See Griffiths, 413 U.S. at 722, 93 S.Ct. 2851 ("Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities.");
Based on the foregoing considerations, the Court concludes that § 6805(1)(6), by denying non-LPR aliens the opportunity to obtain a pharmacy license, triggers strict or intermediate scrutiny. The Court need not choose between these levels of heightened scrutiny because § 6805(1)(6) fails them both. Under intermediate scrutiny, the government bears the burden of proving that the classification serves "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Nguyen v. Immigration and Naturalization Service, 533 U.S. 53, 60-61, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (quoting Virginia, 518 U.S. at 533, 116 S.Ct. 2264). Here, the State has argued only that § 6805(1)(6) meets the rational basis test and has not put forth any evidence to show that the law withstands more exacting review; there is no evidence, for example, that transience amongst New York pharmacists threatens public health or that nonimmigrant pharmacists, as a class, are in fact considerably more transient than LPR and citizen pharmacists. And even if the Court were to forgive this failure of proof, the State's justification for the law demonstrates by itself that its "discriminatory means" are not "substantially related" to its governmental objectives. The State says it seeks to protect "the health and safety of [New York] residents by monitoring, regulating and enforcing compliance with professional disciplinary rules and ensuring the availability of malpractice actions against pharmacists where appropriate." (Def. Mem. at 18.) Section 6805(1)(6)'s exclusion of non-LPRs
"[States] can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens within the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with th[e] constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." Toll, 458 U.S. at 11, 102 S.Ct. 2977 (quoting Takahashi, 334 U.S. at 419, 68 S.Ct. 1138); DeCanas v. Bica, 424 U.S. 351, 358 n. 6, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (same). This rule, established in Takahashi and relied upon in Graham and Flores de Otero, flows from two constitutional provisions: the Naturalization Clause, which gives Congress power to "establish an uniform Rule of Naturalization," Art. I, § 8, cl. 4; and the Supremacy Clause. Art. VI, cl. 2. See Flores de Otero, 426 U.S. at 602, 96 S.Ct. 2264.
In DeCanas, the Court limited the Takahashi rule somewhat, but not in any way that affects its implications for § 6805(1)(6). DeCanas held that a California law prohibiting employment of illegal aliens was a valid exercise of the state's police power and did not encroach on the federal immigration power. 424 U.S. at 352-53, 96 S.Ct. 933 ("[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted.... [S]tanding alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration...."). But in carving out
Under these principles, Section 6805(1)(6) is even more clearly unconstitutional than under the Equal Protection Clause. Indeed, in light of Toll, the LPR distinction is not a distinction at all.
The State makes two arguments. First, it contends that the following provision of federal immigration law shows that § 6805(1)(6)'s discrimination is congressionally sanctioned: "If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien ... seeking [a temporary visa to work] in that occupation must have that license prior to approval of the petition." 8 C.F.R. § 214.2(h)(4)(v)(A). The State interprets this licensure requirement to mean that it may deny nonimmigrants the opportunity to practice pharmacy or other occupations based on their immigration status, because the provision leaves professional licensing decisions to the states. Under this reading, the federal laws creating H-1B and TN visa status are advisory: they indicate that nonimmigrants should be admitted to the country to practice specialty occupations, but they also allow the states to decide whether nonimmigrants (as a class, not as individuals) should be permitted to practice specialty occupations. And if every state decided, like New York, that nonimmigrants should not enjoy this privilege, then they would write H-1B and TN status out of the United States Code. A far more logical interpretation is that the licensure provision prescribes an old and familiar division of labor: the federal government decides which aliens may enter and with what restrictions, and the states decide which individuals have the professional competence and qualifications to obtain pharmacy and other licenses. See Watson v. Maryland, 218 U.S. 173, 176, 30 S.Ct. 644, 54 L.Ed. 987 (1910) ("[T]he police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.... [T]he power of the state may be exerted to see that only properly qualified persons shall undertake [the] responsible and difficult duties [of such professions].").
Second, the State relies on a passage of dicta from Toll to distinguish that case's holding:
458 U.S. at 12-13, 102 S.Ct. 2977. The plaintiffs in Toll had nonimmigrant G-4 visas, which cover the employees of certain international organizations (such as the
There are two problems with this argument. First, most of the plaintiffs here are in all relevant respects similarly situated to the Toll plaintiffs. H-1B aliens, like G-4 aliens, need not demonstrate an intent not to abandon a foreign residence. See LeClerc, 419 F.3d at 411 n. 4. And G-4 visa holders, like H-1B visa holders, are admitted to the country for a finite period of time: G-4 holders for the duration of their employment at a qualifying international organization, see 8 C.F.R. § 214.2(g)(1), and H-1B holders for an initial term of three years. 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1). Thus, Toll's dicta does not apply to the twenty-two H-1B plaintiffs in this case.
More to the point, the passage of dicta from Toll is quite a small platform for the State's case. The passage does not actually say that states may impose auxiliary burdens on nonimmigrant aliens as a class. And here, the federal government has in fact done something "more than permit [plaintiffs] to enter the country temporarily"—it has permitted them to enter the country temporarily for the purpose of practicing specialty occupations like pharmacy. By declaring that plaintiffs may not practice pharmacy, New York law unmistakably imposes "additional burdens not contemplated by Congress" and thus unconstitutionally encroaches upon the federal immigration power. DeCanas, 424 U.S. at 358 n. 6, 96 S.Ct. 933.
A final point. The State argues that the four TN plaintiffs cannot argue preemption because the NAFTA Implementation Act provides that only the United States may bring actions attacking state laws that are inconsistent with NAFTA. See 19 U.S.C. § 3312(b)(2). The Court finds it unnecessary to resolve this issue for two reasons. First, 6805(1)(6) is unconstitutional as applied to the TN plaintiffs because it violates their Equal Protection rights, so it does not matter whether they may assert a preemption challenge. Second, the argument that § 6805(1)(6) encroaches upon the federal immigration power does not actually depend on a conflict between state and federal law. The doctrine is that "state laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with th[e] constitutionally derived federal power to regulate immigration ...." Toll, 458 U.S. at 11, 458 U.S. 1 (quoting Takahashi, 334 U.S. at 419, 68 S.Ct. 1138) (emphasis supplied). That § 6805(1)(6) conflicts with or obstructs federal law is a separate argument that the Court does not address given its acceptance of plaintiffs' Equal Protection and Takahashi arguments.
For the foregoing reasons, plaintiffs' motions for summary judgment [
SO ORDERED.
Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir.2010). The two forms of heightened scrutiny are (1) strict scrutiny, under which a law will be upheld only if it is "narrowly tailored" to meet "compelling government objectives;" and (2) intermediate scrutiny, which requires that a law be "substantially related" to "important government objectives." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).
The differences between the Court's gender and alienage doctrines are in the end of little practical import, because under both frameworks the Court differentiates between permissible policy initiatives, on the one hand, and laws that strike too close to antipathy and irrational discrimination, on the other hand. But in the alienage context, the Court uses a doctrine of exceptions instead of intermediate scrutiny to accomplish that differentiation. The State seems to argue that the LPR distinction should create a third categorical exception to the alienage-equal protection doctrine, alongside the Foley and Plyler exceptions. But the foundation of the LPR distinction is too shoddy to support a bright categorical distinction. While an undocumented alien's ipso facto violation of federal law marks a stark distinction from other state residents, a nonimmigrant alien's potential transience is based on probabilities—many nonimmigrants, like the plaintiffs here who have lived in this country for more than ten years and are in the process of applying for permanent residence, stay in the United States longer than many LPRs. The nonimmigrant's potential transience does not carry the patent salience of the Plyler and Foley distinctions.
