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Court: NY aliens entitled to equal protection

Jeffrey A. Wadsworth

New York state cannot prohibit licensed alien pharmacists from working in the state when the federal government says they may, according to the U.S. Court of Appeals for the Second Circuit.

The court Tuesday, in Paidi v. Mills (10-43970-cv), declared a section of New York state’s professional licensing law unconstitutional under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

“We were very pleased with the decision,” said Jeffrey A. Wadsworth, a partner at Harter Secrest & Emery LLP’s Rochester office, who represented Alanna Farrell, one of 32 plaintiff pharmacists. “We think it’s a great victory for our client and hospitals and nursing homes throughout the state who can now employ pharmacists who are here legally, who they couldn’t employ before.”

The Second Circuit affirmed a 2010 decision of the U.S. District Court for the Southern District that permanently enjoined the state Education Department and Board of Regents from enforcing Section 6805 (1) (6) with respect to 32 plaintiff pharmacists, see Adusumelli v. Steiner, 740 F. Supp. 2d 582. The district court had also granted the pharmacists summary judgment to continue working in New York state.

The qualifications to apply for a pharmacist’s license under Section 6805 (1) (6) of Education Law require the applicant to be a United States citizen or an alien lawfully admitted for permanent residence in the United States.

The pharmacists, led by Lakshman Rao Paidi, are legally admitted aliens who brought suit against the New York State Education Department; its commissioner, Richard P. Mills; the Board of Regents and its chancellor, Robert M. Bennett.

“This case involves a state regulatory scheme that seeks to prohibit some legally admitted aliens from doing the very thing the federal government indicated they could do when they came to the United States — work,” the 35-page decision states.

The pharmacists, who reside throughout the state, obtained their licenses under a statutory waiver provision that was set to expire in 2009, prompting the suit against various state officials, which the Second Circuit noted it considers appropriate to collectively refer to those parties as “the state” or “New York.”

“On appeal, New York asks us to abrogate the Supreme Court’s general rule that state statutes that discriminate based on alienage are subject to strict scrutiny review,” the panel wrote.

It points out the state argued its statute, “which discriminates against nonimmigrant aliens,” should be reviewed only to determine if there is a rational basis that supports it.

“In our view, however, a state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently,” the Second Circuit ruled, saying there are no compelling reasons for the statute’s discrimination based on alienage.

Because the pharmacists’ immigration status allowed them to live and work in the United States temporarily, the law refers to them as nonimmigrants. Many, if not all, the decision states, plan to stay permanently, but the process “is typically quite slow” so the federal government regularly issues Employment Authorization Documents to extend their eligibility to work in the United States while they await their green cards.

“New York argues that neither the Equal Protection Clause nor the Supremacy Clause prevents a state from prohibiting a group of aliens who are legally authorized to reside and work in the United States from working in certain professions,” according to court documents.

The state relied on cases from the Fifth and Sixth circuits, respectively: LeClerc v. Webb, 419 F.3d 405 (2005), reh’g en banc denied, 444 F.3d 428 (2006); and League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (2007) which, according to the Second Circuit, viewed nonimmigrant aliens as distinct from those with legal permanent resident status.

“We disagree,” the panel wrote. “The Supreme Court has repeatedly affirmed the general principle that alienage is a suspect classification and has only ever created two exceptions to that view,” the panel wrote. “We decline to create a third in a case where the statute discriminates against aliens who have been granted the legal right to reside and work in the United States.”

The 14th Amendment provides that states cannot deny anyone equal protection of federal laws and the Supreme Court has ruled that it applies to all aliens.

The Supreme Court has recognized only two exceptions to a rule that resulted from Graham v. Richardson, 403 U.S. 365 (1971), which struck down two state statutes that prevented immigrants from receiving public assistance.

The first allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review. The second allows states broader latitude to deny opportunities and benefits to undocumented aliens.

The Second Circuit rejected New York’s argument that the Supreme Court’s strict scrutiny analysis of classifications based on “alienage” is inapplicable to classifications of nonimmigrant aliens and that only rational basis review of the statute is required.

“The state’s argument that suspect class protection extends no further than to LPRs simply has no mooring in the High Court’s prior ventures into this area,” the decision states. “New York disagrees and urges us to follow the lead of the Fifth and Sixth circuits, both of which drew a distinction between LPRs and citizens, on the one hand, and other lawfully admitted aliens, on the other.”

The Second Circuit noted the Supreme Court has never made a distinction between discrimination against LPRs and other lawfully present aliens, but has noted that legal aliens are, in many ways, indistinguishable from citizens, in that they pay taxes, may be called into the armed forces and may live and work in a state, contributing to its economic growth.

“The court, in essence, pointed out that because LPRs and citizens have much in common, treating them differently does not pass muster under the 14th Amendment,” the Second Circuit reasoned, citing LeClerc. “Nothing in the Supreme Court’s precedent counsels us to ‘judicially craft a subset of aliens, scaled by how [we] perceive the aliens’ proximity to citizenship. Rather, the court’s precedent supports drawing a distinction among aliens only as between lawfully admitted aliens and those who are in the United States illegally,” see Plyler v. Doe, 457 U.S. 202 91982).

“But, even if the state’s argument — that Supreme Court precedent allows for a distinction based on a subclass’ similarity to citizens — had some traction, we conclude strict scrutiny still applies.”

The Second Circuit said it agreed with the district court that the state’s argument “boil[ed] down” to differentiating nonimmigrants who have not yet obtained permanent status.

The plaintiffs also challenged the state law under the Supremacy and Preemption clauses which the Second Circuit addressed, but noted its decision was constrained to the Equal Protection grounds.

“We agree with the district court that (Section) 6805 (1) (6) ‘is even more clearly unconstitutional than under the Equal Protection Clause,” the panel wrote with respect to the Supremacy Clause.

As for preemption, it notes the federal power to determine immigration policy is well settled and recently affirmed in Arizona v. United States; that it is extensive and predominant.

“New York cannot, in effect, drive from the state nonimmigrants who have federal permission to enter the United States to work,” the Second Circuit concluded.

“It’s a major decision,” Wadsworth said, “both for the constitutional issues that it decides, as well as the impact of improving health care in the state of New York. It’s going to impact a lot of pharmacists directly. It’s going to impact patients greatly at hospitals and nursing homes who rely on pharmacists daily.”

Working with Wadsworth on the case was Margaret A. Catillaz, another HSE partner in the Rochester office.

Krishnan Chittur

Paidi and the remaining plaintiffs are represented by Krishnan Chittur of the New York City firm Chittur & Associates PC.

“We’re absolutely delighted,” Chittur said of the decision, noting the plaintiffs are highly skilled immigrants. “The state cannot discriminate between legal immigrants. Once the federal government says you can come here and work, then it’s not up to the state to say you can’t work here. People are being punished for no fault of their own.”

Chittur said many of the pharmacists are licensed in other states too. He also noted the federal government takes a long time to process green card applications.

“The point here is that here is a guy, a hard-working taxpayer, who is penalized because the federal government did not grant a green card,” Chittur said, noting the decision could impact thousands of people.

He suggested the reason New York was going to allow the waiver provision to expire in 2009 came down to politics and other members of the profession seeking self preservation.

The decision applies to pharmacists, technically speaking, Chittur added, but he does not see how the state can justify the requirement with respect to other professions.

Wadsworth said Catillaz and A. Paul Britton, another HSE attorney, had a similar victory for veterinarians a few years ago in the U.S. District Court for the Western District of New York in Kirk v. N.Y. State Dept. of Educ., 562 F. Supp. 3d 405 (2008). In that case, the plaintiff obtained his permanent resident before the state’s appeal could be decided, rendering it moot.

Because the three circuits differ, Wadsworth said the case could go to the U.S. Supreme Court. Besides seeking certiorari, he said the state could petition for a rehearing.

The state was represented by the Office of Attorney General Eric T. Schneiderman which declined to comment at this time.

With respect to the Supremacy Clause, Chittur said, “I don’t think they’ve got a snowball’s chance in hell of getting certified for that.”

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