In an Equal Protection claim for benefits, like plaintiffs' claim, the injury asserted is "the right to receive benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of impermissible criteria." Day v. Bond, 500 F.3d 1127, 1133 (10th Cir. 2007) (citations, quotations, and alterations omitted). The injury is the "existence of a government-erected barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group."

¶19 Section 1623 never mentions, much less creates and confers, any enforceable private right for individual, non-resident students. The Tenth Circuit captured the point in Day v. Bond, 500 F.3d 1127, 1139 (10th Cir. 2007), when it explained: "Section 1623 does not provide that 'No nonresident citizen shall be denied a benefit' afforded to an illegal alien, but rather imposes a limit on the authority of postsecondary educational institutions.

For standing purposes, we ask only if there was an injury in fact, caused by the challenged action and redressable in court."), cert. denied , 549 U.S. 1245, 127 S.Ct. 1254, 167 L.Ed.2d 145 (2007) ; Day v. Bond , 500 F.3d 1127, 1137 (10th Cir. 2007) (" ‘For purposes of standing,’ we noted [in Walker ], ‘the question cannot be whether the Constitution, properly interpreted, extends protection to the plaintiff's asserted right or interest,’ because that would be a determination of the merits of the plaintiffs' claim under the guise of an evaluation of their standing."). Tellingly, one of the cases the government cites for this proposition is Largess , in which the First Circuit explicitly decided it could not deny individuals standing under the Guarantee Clause because the standing issue was "intertwined and inseparable from the merits of the underlying claim."

The Tenth Circuit has held that where an individual would have been denied a benefit because they failed to satisfy lawful, nondiscriminatory qualifications for the benefit, the individual lacks standing to challenge the denial of the benefit. See Day v. Bond, 500 F.3d 1127, 1134 (10th Cir. 2007); Wilson v. Glenwood Intermountain Props., 98 F.3d 590, 594 (10th Cir. 1996); Fuller v. Norton, 86 F.3d 1016, 1027 (10th Cir. 1996). Therefore, if Mr. Green's visa denial was based on both misrepresentation and failing to overcome his presumption of immigrant status, the Plaintiffs' arguments centering around the consular officer's improper application of the misrepresentation standard, or the 90-day rule would be irrelevant.

In certain equal protection cases, the right being asserted is not the right to any specific amount of denied governmental benefits; it is “ ‘the right to receive benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of [impermissible criteria].’ ” See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir.2007) (quoting Heckler v. Mathews, 465 U.S. 728, 737, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984)). In such cases, the “injury in fact ... is the denial of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the ultimate inability to obtain the benefit.”

Specifically, they argue the Alliance has not alleged a cognizable injury because the Act does not create a private right of action, and Defendants' actions therefore invade no legally protected interest of the Alliance. See Day v. Bond, 500 F.3d 1127, 1139 (10th Cir. 2007). Defendants additionally argue that the Alliance cannot demonstrate causation sufficient for standing because no act of Defendants caused the Alliance's injury; instead, any injury suffered by the Alliance was caused by the legislature's deregulation of the utility industry.

450 F.3d 1082, 1093 (10th Cir. 2006) (en banc); see also Day v. Bond, 500 F.3d 1127, 1137-38 (10th Cir. 2007) ("Practically speaking, Walker mandates that we assume, during the evaluation of the plaintiff's standing, that the plaintiff will prevail on [the] merits argument-that is, that the defendant has violated the law.").

The district court dismissed each of the relevant claims for lack of standing. See Day v. Bond, 500 F.3d 1127 (10th Cir. 2007), for a full discussion of the facts in this case. On appeal, we affirmed the district court's dismissal of Plaintiffs' equal protection claim for lack of standing.

Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1182 (10th Cir. 2010) (quoting Day v. Bond, 500 F.3d 1127, 1132 (10th Cir. 2007)).

” Day v. Bond, 500 F.3d 1127, 1132 (10th Cir. 2007). For their part, “[a]s the party seeking to invoke federal jurisdiction, the plaintiff ... has the burden of establishing each of the[ ] three elements of Article III standing.”