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Colleges say court erred in its DACA ruling
Attorney argues ‘Dreamers’ are qualified to receive in-state tuition

Carlos Esteban, 31, of Woodbridge, Va., a nursing student and recipient of Deferred Action for Childhood Arrivals, known as DACA, rallies with others in support of DACA outside of the White House, in Washington, Tuesday, Sept. 5, 2017. (Jacquelyn Martin/AP Photo)

Carlos Esteban, 31, of Woodbridge, Va., a nursing student and recipient of Deferred Action for Childhood Arrivals, known as DACA, rallies with others in support of DACA outside of the White House, in Washington, Tuesday, Sept. 5, 2017. (Jacquelyn Martin/AP Photo)

PHOENIX — The Arizona Court of Appeals got it wrong in concluding “Dreamers” are not entitled to in-state tuition, the lawyer for the state’s second-largest community college system contends.

In a new legal brief, Eileen GilBride, attorney for Pima Community College, told the Arizona Supreme Court that the only thing required under both Arizona and federal law is that students be “lawfully present” in the country to qualify for the lower tuition.

More to the point, she said state statutes spell out that an “Employer Authorization Document” issued by federal immigration officials is sufficient to prove “lawful presence.” And GilBride said that’s precisely the document that is given to those who qualify for the Deferred Action for Childhood Arrivals program.

The filing comes as Pima has joined with the Maricopa County Community College District in a bid to overturn a ruling earlier this year by the appellate court which concluded that DACA recipients are ineligible for education at the same rate charged to other Arizona residents. But what the high court decides will affect the policies of community colleges statewide.

At the heart of the fight is Proposition 300, a 2006 voter-approved law that says in-state tuition is reserved only for those with “lawful immigration status.”

Six years later, the Obama administration created the DACA program. It allows those who were brought here illegally as children and meet other conditions to remain without fear of deportation.

Most significant for the purposes of this fight is those in the program got those employment documents.

Based on that, the Maricopa colleges decided DACA recipients were qualified for in-state status. Pima Community College followed suit effective with the fall semester of 2013.

That year, Tom Horne, then the attorney general, filed suit, charging the school with violating the law.

Two years later, Maricopa County Superior Court Judge Arthur Anderson, noting those employment documents, ruled in favor of the college.

Following that ruling, some other schools as well as the state Board of Regents voted to implement similar policies. But Mark Brnovich, who succeeded Horne, pursued the matter.

The result was a unanimous ruling earlier this year by the Court of Appeals overturning Anderson’s findings.

Judge Kenton Jones said the 2006 ballot measure reserves in-state tuition only for those with “lawful immigration status.” And he said the decisions by the Obama administration to DACA recipient remain — and even to work — “do not translate into the recipients’ eligibility for in-state tuition or other state or local public benefits.”

The Maricopa colleges are seeking Supreme Court review. And now they are doing it with the back of their Pima counterpart.

GilBride, in her filing, told the justices her client and the students they serve have an interest in the outcome of the case.

It starts with pure numbers: Residents pay $81.50 per credit hour up to a maximum of $1,222.50. But those who do not qualify as residents pay $303 a credit hour, with a cap of $4,545.

She estimated there are approximately 6,000 people who are eligible for DACA living in Pima County, though the actual number who actually have qualified is less than that.

“In PCC’s opinion, this is a significant source of unrealized potential talent,” GilBride wrote. But even at current tuition, there are just 171 DACA students in the system.

“Interpreting the relevant statutes to prohibit DACA students from paying in-state tuition will mean that the number of those students attending college will certainly not grow,” she told the justices. “Indeed, for most if not all of them, college will become utterly unattainable.”

GilBride is not just relying on claims of hardship in her arguments. She also contends the appellate court is misreading — or at least misinterpreting — the law.

She concedes that the statute approved by voters in 2006 does say someone needs “lawful immigration status” to qualify for in-state tuition. And she does not dispute that Congress has not provided such status for DACA recipients.

But she also said the statutory restriction has to be interpreted “in accordance with the (federal) Illegal Immigration Reform and Responsibility Act of 1996.” GilBride contends that law “dictates that lawful presence controls eligibility,” not immigration status.

And if the issue is “lawful presence,” that leads back to the other Arizona law which says those with Employment Authorization Documents are considered lawfully present.

But Jones, in writing for the appellate court, said he and his colleagues read the 2006 law to require that students have “legal status” to get in-state tuition, meaning something approved by Congress. He said that does not include DACA recipients.

“They are more aptly described as beneficiaries of an executive branch policy designed to forego deportation of those who lacked unlawful intent in entering the country and have, since their arrival, led productive lives,” he said. But Jones said that, absent some congressional action giving them legal status, they are ineligible to receive the benefit of in-state tuition.

GilBride has one other legal theory in her bid to convince the Supreme Court that DACA recipients who meet other residency standards are eligible for in-state tuition.

She notes that another law at issue says those without lawful immigration status are not entitled tuition assistance “subsidized or paid in whole or part with state monies.” But GilBride points out that the Legislature no longer provides any state aid to Pima.

If nothing else, GilBride told the justices they need to provide clarity to colleges throughout the state.

She said a review of web sites for Cochise, Eastern Arizona and Yavapai colleges say that those seeking in-state tuition must prove their “lawful immigration status,” the phrase she said which is not used in federal law.

“Central Arizona College dedicates a page of its website to its residence guidelines, and notes the ‘complexity interpreting this law,’” GilBride writes. Northland Pioneer College, she said, cites the 2006 law and says students must prove legal U.S. residency yet accepts the EAD as such proof.

And she said the Coconino Community College web site contains links to the voter-approved law but also says that “each petition is individually reviewed.”

“Clearly, a definitive resolution is needed from this court,” GilBride said.

The justices have not yet set a date to review the case.

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