Case: 10-30882 Document: 00511681825 Page: 1 Date Filed: 12/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 1, 2011
No. 10-30882
Lyle W. Cayce
Clerk
ESTHEE VAN STADEN,
Plaintiff-Appellant,
versus
EUGENE ST. MARTIN, Medical Doctor in His Official Capacity as
Chairman of the Louisiana State Board of Practical Nurse Examiners,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
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
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for permanent resident status do not constitute a suspect class under the Equal
Protection Clause, and a rational basis supports the immigration-status require-
ment, we affirm.
I.
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,1 LA.
REV. STAT. § 37:970(2) requires that LPN applicants “[b]e a permanent resident
or citizen of the United States.” In July 2007, Van Staden applied to United
States Citizenship and Immigration Services (“USCIS”) to become a permanent
resident alien. She has not yet received that status, though she is authorized to
work in the United States.2
Van Staden sued the Board, alleging section 37:970(2) to be unconstitu-
tional. Her complaint averred that the law improperly discriminates against ali-
ens in violation of the Constitution’s equal protection, due process, and right to
travel guarantees and Supremacy and Dormant Commerce Clauses. She then
moved for summary judgment. Claiming that LeClerc v. Webb, 419 F.3d 405 (5th
Cir. 2005), controls, the Board also moved for summary judgment. The district
court granted the Board’s motion on the basis of LeClerc. On appeal, Van Staden
maintains only her equal-protection argument.
1
The law was amended after the district court’s ruling, liberalizing the immigration
requirement somewhat, but not enough to moot Van Staden’s claim. See LA. REV. STAT.
§ 37:970(2) (1968) (amended June 25, 2010) (requiring that an LPN applicant “[b]e a citizen
of the United States or have taken out his first citizenship papers”).
2
Van Staden’s counsel represented at oral argument that USCIS has approved her
application, but Van Staden must still wait until a visa number becomes available to receive
permanent resident alien status.
2
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II.
A.
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 concern-
ing 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.3
In LeClerc, this court heard two consolidated appeals involving nonimmi-
grant aliens4 challenging a Louisiana Supreme Court rule that allowed only citi-
zens and permanent resident aliens to apply for admission to that state’s bar.
Resolving “some ambiguity in [United States] Supreme Court precedent,” id. at
415, this court combed through the Court’s alienage jurisprudence to conclude
3
Insofar as Van Staden asks this panel to overturn LeClerc, her argument fails. Our
rule of orderliness prevents one panel from overruling the decision of a prior panel. Teague
v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999). LeClerc may be overruled only by
this court sitting en banc or by the Supreme Court. Almost as surprising as Van Staden’s
request, however, is the Board’s argument that the denial of certiorari in LeClerc is “[p]erhaps
the best evidence in support of the proposition that the Supreme Court has in fact not held
that all classifications based on alienage, like those based on nationality or race, are inher-
ently suspect and subject to close judicial scrutiny.” The Board is incorrect: “[D]enial of certi-
orari by the United States Supreme Court carries no implication concerning the merits of the
case.” Sunbeam Corp. v. Masters of Miami, Inc., 225 F.2d 191, 196 (5th Cir. 1955) (citation
omitted).
4
We have explained the immigrant/nonimmigrant distinction as follows:
The Immigration and Nationality Act distinguishes between immigrant and
nonimmigrant aliens, negatively defining an immigrant alien as “every alien
except an alien who is within one of the following classes of nonimmigrant ali-
ens.” 8 U.S.C. § 1101(a)(15) . . . . An alien falling into one of fifteen exclusion-
ary categories is a nonimmigrant alien, a class generally delimited by a lack of
intention to abandon his foreign country residence and entry into the United
States for specific and temporary purposes.
LeClerc, 419 F.3d at 410 n.2. As shown below, the Supreme Court has used the terms “resi-
dent alien,” “permanent resident alien,” and “immigrant” almost interchangeably. We employ
“permanent resident alien” except where quotations use a different term.
3
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that “the Supreme Court has reviewed with strict scrutiny only state laws affect-
ing permanent resident aliens.” Id. At no point has the Supreme Court ever
“applied strict scrutiny review to a state law affecting any other alienage classifi-
cations, e.g., illegal aliens, the children of illegal aliens, or nonimmigrant aliens.
In such cases, the Court has either foregone Equal Protection analysis . . . or has
applied a modified rational basis review.” Id. at 416 (citations omitted).
The Supreme Court’s reasons for the distinction help illuminate the case
at hand. According to the LeClerc majority,
The Court has uniformly focused on two conditions particular to res-
ident alien status in justifying strict scrutiny review of state laws
affecting resident aliens: (1) the inability of resident aliens to exert
political power in their own interest given their status as virtual
citizens; and (2) the similarity of resident aliens and citizens.
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
(1971) (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4
(1938)). “Characterizing resident aliens as a Carolene Products minority recon-
ciles the breadth of rights and responsibilities they enjoy with their lack of politi-
cal 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
4
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scrutiny. They differ from permanent resident aliens in that their lack of politi-
cal 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 admit-
ted, 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 nonim-
migrant 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”:
• Associational membership, including military service;
• Criminal history;
• Prior immigration history;
• Use of public assistance programs;
• Support for persons or organizations involved in “sabotage, kidnapping,
political assassination, hijacking, or any other form of terrorist activity”;
• Intent to commit espionage, overthrow the government by force, or violate
5
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export controls;
• Affiliation with the Communist Party or other totalitarian parties, including
any history of having assisted Nazi Germany and its allies with any
persecution;
• Draft-dodging;
• Intent to practice polygamy; and
• Participation in torture, genocide, homicide, sexual assault, religious persecu-
tion, or arms trafficking.
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 read-
ily discernable reasons why an applicant would not be fit for the “breadth of
rights and responsibilities” possessed by permanent resident aliens. Determin-
ing an applicant’s fitness for permanent resident alien status takes time, but
until that status is granted, an applicant cannot claim its benefits.5
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.6 An LPR applicant is
not a permanent resident alien and is thus not a member of that suspect class.
Therefore, occupational licensing regimes such as section 37:970(2), open to citi-
5
Even if USCIS has completed its vetting, applicants may not claim permanent resi-
dent alien status until a visa number becomes available. Per its broad power to regulate
immigration, Congress is entitled to set quotas that “limit the number of aliens who can be
admitted to the United States for permanent residence.” Elkins v. Moreno, 435 U.S. 647, 664
(1978).
6
“Nonimmigrant aliens may, of course, qualify for anti-discrimination protection based
on race, sex, national origin and religious adherence, just as they may otherwise enjoy the
benefits of American law.” LeClerc, 419 F.3d at 417.
6
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zens and permanent resident aliens but not LPR applicants or other aliens, are
not subject to strict scrutiny under the Equal Protection Clause.7
B.
Because, under Fifth Circuit precedent, LPR applicants are not in a sus-
pect or quasi-suspect class, state laws that treat them unfavorably compared to
citizens and permanent resident aliens need only pass rational basis review.8
“Under traditional rational basis analysis, a state law classification that neither
burdens a fundamental right nor targets a suspect class will be upheld so long
as it bears a rational relation to some legitimate end.” LeClerc, 419 F.3d at 421
(citation, emphasis, and internal quotation marks omitted). “The key principle
is the deference to legislative policy decisions embodied in courts’ reluctance to
judge the wisdom, fairness, logic or desirability of those choices.” Id.
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 rela-
7
Van Staden does not argue on appeal that nonimmigrants are a quasi-suspect class
or that state laws affecting them are subject to intermediate scrutiny. LeClerc gave this issue
brief attention when it held that United States v. Virginia, 518 U.S. 515 (1996), “furnishes no
authority for the application of intermediate Equal Protection analysis to alienage classifica-
tions.” LeClerc, 419 F.3d at 420 (citing Virginia, 518 U.S. at 532-33). LeClerc’s cursory treat-
ment of intermediate scrutiny is not strictly necessary to resolve this case, however, because
Van Staden’s failure to raise the issue on appeal constitutes waiver of that argument. United
States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000); Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
8
The Supreme Court has applied “heightened” rational basis review in one relevant
case, Plyler v. Doe, 457 U.S. 202 (1982). LeClerc’s interpretation of Plyler, however, bars this
court from applying heightened rational basis review here. The Plyler Court found “the chil-
dren of illegal aliens, having no culpability for or control over their condition, are worthy of
‘special judicial solicitude’ in the form of heightened rational basis review.” LeClerc, 419 F.3d
at 420 (citing Plyler, 457 U.S. at 223). Moreover, the children in Plyler were facing the “debili-
tating” hurdle of “denial of primary and secondary education.” Id. In LeClerc, this court found
“[n]othing in Plyler compel[ling] the determination that nonimmigrant alien law students and
temporary workers are similarly situated to the children of illegal aliens, and, thus, entitled
to similar heightened rational basis review.” Id. at 421. Van Staden has made no attempt to
justify heightened rational basis review here.
7
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tionship to legitimate state interests—Louisiana’s substantial interest in regu-
lating the practice of those it admits to its” professions. Id. Specifically, the
Board’s “ability to monitor, regulate, and, when necessary, discipline and sanc-
tion [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 con-
trols 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 per-
manent resident alien LPN’s who leave the jurisdiction. But the Board is more
likely able to take disciplinary measures against citizens and permanent resi-
dent aliens who move to another state or country, either by interstate agree-
ments 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 vet-
ted 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
8
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37:920, from the licensing statute for registered nurses (“RN’s”), as further evi-
dence that section 37:970(2) is unconstitutionally irrational. We observe, how-
ever, 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.9 The “deference to legisla-
tive policy decisions” in rational-basis review prevents us from second-guessing
the legislative judgment made in applying differing immigration requirements.10
AFFIRMED.
9
Indeed, Van Staden’s counsel conceded the existence of this tradeoff at oral argument
before the district court. See R. 1055 (“If you’re a registered nurse you don’t have to be a citi-
zen or even a permanent resident and that’s because the hospitals wanted people from the
Philippines and all other places, there was a shortage of registered nurses.”).
10
The same deference prevents this court from declaring section 37:970(2) irrational
on the ground that neighboring Texas and Mississippi do not require LPN’s to be citizens or
permanent resident aliens. The Louisiana legislature may rationally make a different judg-
ment from that of its sister states.
9