On Tuesday, Oct. 24, the Appellate Court of Georgia reversed a lower court’s decision to grant in-state tuition to DACA recipients.
The Deferred Action of Childhood Arrivals (DACA) program was created under the 2012 Obama administration and allowed undocumented immigrants who entered the country before the age of 16 to defer deportation, obtain renewable work permits, and receive legal status.
The appellant, representative of the University System of Georgia (USG), C. Dean Alford, is fighting to keep USG’s right to exercise discretion when granting in-state tuition while the Appellee, Rigo Rivera, is demanding that USG recognize non-citizens with ‘legal presence’ as residents of Georgia who, under board policy, are entitled to in-state tuition.
The initial ruling in February 2017 granted the DACA recipient Rivera, among others, summary judgment (the ability to pay in-state tuition) until USG appealed the decision.
But on Tuesday, the Appellate Court ruled that Rivera did not provide sufficient proof that the DACA program is an established and enforceable federal law, and even if it was, it wouldn’t require USG to offer in-state tuition to DACA students.
Legal Status vs. Legal Presence
Appellate Court Judge Clyde L. Reese wrote in the opinion summary, “Even if DACA had the force of law, it did not create a clear legal duty requiring the students to receive in-state tuition.”
But according to Rivera, the DACA policy was given the same federal power by the government.
“DACA was not an enacted law but a policy,” he said. “It went through the right process to be implemented and Congress has already given the executive [branch] the authority to implement such program.”
And while the Board of Regents (BOR) can decide against granting in-state tuition to anyone who is not a resident, U.S citizen, or holder of legal status, Rivera said the government’s process of enacting the policy makes DACA students none of the above.
The Board’s policy manual, under section 18.104.22.168, reads, “A non-citizen student shall not be classified as in-state for tuition purposes unless the student is legally in this state and there is evidence to warrant consideration of in state classification as determined by the Board of regents.”
“Our argument is that the federal government has said that we have legal presence and that is what the BOR’s policy requires for in-state tuition,” he said.
Therefore, according to Rivera, the BOR is violating their own policy. All USG has to do, he said, is change their policy: “We are only asking the courts to tell the BOR that they are misinterpreting their own policy.”
“If the Supreme Court interprets legal presence correctly, then they are going to order the BOR to follow their policy,” Rivera explained.
The winning arguments
In March 2016, a similar case was brought against USG by the Mexican American Defense and Educational Fund (MALDEF), who sued on grounds that the system should allow DACA students to pay in-state tuition.
The organization lost the case because, as Rivera explained, they sought to accuse USG of a civil rights violation. However, the system is allowed through state legislature to decide who receives in-state tuition based on their legal residency.
But in this case, a violation wasn’t the argument at all, and the courts based the decision on arguments that hadn’t been brought up by either party in this case.
Plaintiff Attorney and immigration lawyer Charles Kuck called the decision bizarre because the grounds the court chose to use weren’t briefed or argued by either party.
“If the Court of Appeals had been truly interested in the issues [they ruled on], one would think it would have asked the lawyers to brief and argue the issue,” he said.
Kuck also said that it is not abnormal to see the state of Georgia rule against a case that could potentially benefit people.
The USG has made no comment yet, but said they plan to publish an official statement about the ruling.
Student and DACA recipient Fernanda Tapia has been in Georgia since she was 3-years-old. She is now 19-years-old and currently attending Chattahoochee Technical Institute. She said the decision just doesn’t make sense.
“If you’ve been here your whole life, I don’t understand why you shouldn’t pay in-state tuition. I’m kind of disgusted by that,” she said on the court decision.
Kuck said the students will be filing an appeal to the Georgia Supreme Court shortly.
Elizabeth Menjivar, Georgia State student, is surrounded by friends under the DACA program and says students are already facing enough challenges.
“Immigration is an emotional issue,” she said. Menjivar explained that while there is a lot of politics regarding the legality of immigrants’ presence, the situation has also created a complicated issue that hits home for many.
But Georgia is a place that many DACA students call home and Menjivar said she doesn’t see why they should pay out-of-state.
“They’ve been here all their lives, and they’ve lived here all their lives, why can’t they pay in-state?” she said.