USG appeals court’s DACA in-state tuition decision

The University System of Georgia Board of Regents (BOR) has appealed a court decision that would have allowed DACA students to pay in-state tuition for Georgia’s public universities.

In the  Dec. 30 decision, Judge Gail S. Tusan, Chief Judge of the Fulton County Superior Court, ruled in favour of Deferred Action for Childhood Arrivals (DACA) students and granted them in-state tuition, forcing Georgia’s Board of Regents (BOR) to follow the federal government’s definition of lawful presence for the students.

In a statement released to The Signal, USG spokesperson Charles Sutlive  announced the board’s plans to appeal the decision.

“We have reviewed the Court’s decisions with the Office of the Attorney General, and we plan to appeal. We believe our policy follows the law. As the Superior Court’s decision will remain on hold during the appeals process, our current in-state tuition policy will remain in effect.”

And USG made their claims true on Jan. 6 when they appealed the decision to the Court of Appeals.

The original ruling, released on Jan. 3, stated that the “Defendants are hereby compelled to perform their duty in applying the federal definition of lawful presence at it relates to students who are DACA recipients and to grant them in-state tuition status”.

DACA is a 2012 Obama administration policy which grants minors under 16 years old who entered the country as undocumented immigrants a two-year renewable work permit and deferred action from deportation. According to the federal government, DACA provides lawful presence throughout the country.

But according to the University System of Georgia policy 4.3.4, “each university system institution shall verify the lawful presence in the United States of every successfully admitted person applying for resident tuition status”. But for the board, DACA students did not make the cut.

Before the ruling, the BOR did not recognize DACA recipients as lawfully present in the United States, following a 2008 Georgia law which disallowed non-citizens from paying in-state tuition.

Charles Kuck, the immigration lawyer of the case said that even if USG appealed the decision, DACA students are still to pay in-state tuition until the court date.

In an article on the Kuck Immigration Partners website, Kuck wrote that during the time before the appeal court date, the decision which the court has made should stay in place. A decision which Kuck said, he’s grateful for.

“The students who will benefit from Judge Tusan’s order are grateful to have had their position affirmed. They should have been allowed to pay in-state tuition as DACA recipients for the last four years,” he said. “We are grateful that now these students can pay in-state tuition for the time they remain DACA approved. No one loses here, because no one loses when someone is educated, a principal that America has long sustained. We are honored to have represented this exemplary young women and men.”

Along with their appeal, USG has filed for an ‘Application for Supersedeas’, which aims to put the judge’s decision on hold, therefore continuing to demand out-of-state tuition from DACA students.

“If the judge does not rule on the Application on Monday, or if she denies the Board of Regents Application, then on Tuesday the state MUST [accept] in-state tuition payments for qualified DACA students, and, of course, return any monies already overpaid for out-of-state tuition (for the coming semester) when in-state tuition should have been paid. If the judge grants the Board of Regents Application, all DACA students will have [to] pay out-of-state tuition until the appeals process completes (or if DACA is ended by President Trump),” Kuck wrote in an updated blog post.

The lawsuits

This is one of three lawsuits the BOR is facing since September, when three DACA students partnered with the Mexican American Legal Defense and Educational Fund (MALDEF) and sued the Board of Regents on its 2010 policy which disallowed undocumented immigrants from enrolling in the state’s top universities, as well as paying out-of-state tuition.

The third lawsuit was first filed on Aug. 1, 2013 by a group of DACA students including Rigo Rivera, at the Superior Court of  DeKalb County, and about a year later, Superior Court Judge John Goger ruled against the students.They appealed, until the case reached the Georgia Supreme Court on April 8, 2015 where the same decision was made. The students filed their new lawsuit in April 2016, where they sued each of the BOR members individually.

While the lawsuit against the BOR admissions ban is still pending, Rivera said this decision will affect the result.

“Our lawsuit is in the same concept as that lawsuit, since we are only arguing legal presence,” he said. “They will have to change the ban policy since it goes against the findings of the judge.”

The court decision came weeks after Sen. Josh McKoon, R-Columbus, said he would introduce bill which he predicted, according to AJC, could make the two lawsuits “go away”.

The senator’s proposed bill would draw a distinction between the state’s definition of legal presence, and the purpose of DACA, which he said was the government’s way of saying, “we know you are guilty of a crime, in this case the crime of being in the country illegally or without legal status, but we are choosing not to exercise our discretion to have you deported”. And according to McKoon, the policy did not, in fact, make the students legally present.

McKoon’s proposed bill would have banned undocumented students from receiving in-state tuition, since he said they were illegal.

“To qualify for in-state tuition at a Georgia public college or university you have to be not only in Georgia – a Georgia resident – but you have to have legal status within the United States,” McKoon told WABE.

Last updated Sunday, Jan. 8, 2017 8:25 p.m. to include USG appeal