Arizona AG Sticking With Lawsuit Against In-State Tuition for DACA Recipients

Arizona AG Sticking With Lawsuit Against In-State Tuition for DACA Recipients

Arizona Attorney General Mark Brnovich is in no way backing down from the state's lawsuit that seeks to end in-state tuition for young people who have been granted relief from deportation.

Although many Deferred Action for Childhood Arrivals (DACA) recipients in Arizona have been educated their entire lives in Arizona public schools, the Attorney General's Office under former AG Tom Horne sued the Maricopa County Community College board last year in an attempt to end the practice of granting in-state tuition for students who are DACA recipients.

New Times heard from Brnovich's office earlier this month that he intends to continue on with the lawsuit. In response to a public call from three Democratic members of Congress to end the lawsuit, Brnovich issued a public response of his own, saying, no.

See also: -Gallego Calls for End to Lawsuit Against In-State Tuition for DACA Recipients

Brnovich cites Arizona's Proposition 300 -- in which voters banned Arizona college students from getting in-state tuition if they don't have a lawful immigration status -- as the reason for going forward with the lawsuit.

"Thank you for your letter dated March 3rd, 2015, concerning in-state tuition for those without lawful status in the United States," Brnovich says in his letter to Congress members Raul Grijalva, Ann Kirkpatrick, and Ruben Gallego. "In November of 2006, Proposition 300 was approved with more than 70% of the vote, reserving certain taxpayer funded benefits to citizens, legal residents, and persons who otherwise have lawful immigration status."

(See the entire letter at the bottom of this post.)

On the other side of the issue, Congressman Gallego brought two DACA recipients to the steps of the county courthouse in downtown Phoenix to make a public call for Brnovich to end the lawsuit, saying this lawsuit would be "throwing away" 12 years of investment made in these children as they went through Arizona public schools.

The two sides of the argument disagree about whether these young people who have been granted relief from deportation have the immigration status required to get in-state tuition.

From the Democrats' letter:

In its FAQ updated in October 2014, USCIS explicitly notes that DACA beneficiaries are deemed to be lawfully present.

But Brnovich says:

The United States Citizenship and Immigration Service, which you cite with authority, makes clear that "[D]eferred Action does not confer lawful status upon an individual." In Arizona Dream Act Coalition v. Brewer the 9th Circuit Court of Appeals ruled that "DACA recipients enjoy no formal immigration status." Indeed, the Constitution reserves this power for Congress.

Indeed, the USCIS provides some goofy, non-committed explanations of these terms. Here's one such frequently asked question on the USCIS website:

Q5: If my case is deferred, am I in lawful status for the period of deferral?

A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.

Apart from the immigration laws, "lawful presence," "lawful status" and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.

Thus, Brnovich says he's just trying to uphold the will of the voters. It appears that will be settled in court, where the case is starting to get going, a couple years after being filed by Brnovich's predecessor, Tom Horne.

Horne's move was not received well by young immigrants, who held a series of demonstrations at Horne's office, including a stunt in which they said Horne was trying to make their high school degrees worthless, so they set fire to copies of them on the steps of the AG's office.

Gallego's spokeswoman Pili Tobar tells New Times she's not surprised by the Brnovich letter.

"Attorney General Brnovich's response is nothing new or surprising," Tobar says. "Brnovich refuses to acknowledge this lawsuit as the political maneuver and attack that it is. In our letter to Brnovich, we explain that 'In its FAQ updated in October 2014, USCIS explicitly notes that DACA beneficiaries are deemed to be lawfully present.' Therefore as long as they can prove Arizona residency, they qualify for in state tuition under MDCCC policy. But rather than dropping the lawsuit and helping provide affordable education to Arizona's youth, the Attorney General would rather spend taxpayer dollars on a lawsuit to attack our own."

Below is Brnovich's full letter to the congressmen explaining his stance. Click here to read the congressmen's initial letter:

Hon. Raul Grijalva Hon. Ann Kirkpatrick Hon. Ruben Gallego 1218 Longworth House Office Building Washington, D.C. 20515

To Raul Grijalva, Ann Kirkpatrick, and Ruben Gallego, members of congress:

Thank you for your letter dated March 3rd, 2015, concerning in-state tuition for those without lawful status in the United States. In November of 2006, Proposition 300 was approved with more than 70% of the vote, reserving cetiain taxpayer funded benefits to citizens, legal residents, and persons who otherwise have lawful immigration status. The voters were clear on this subject:

"A person who is not a citizen of the United States, who is without lawful immigration status and who is enrolled as a student at any university under the jurisdiction of the Arizona board of regents or at any community college under the jurisdiction of a community college district in this state is not entitled to tuition waivers, fee waivers, grants, scholarship assistance, financial aid, tuition assistance or any other type of financial assistance that is subsidized or paid in whole or in patt with state monies." (A.R.S. § 15-1825(A)).

The United States Citizenship and Immigration Service, which you cite with authority, makes clear that "[D]eferred Action does not confer lawful status upon an individual." In Arizona Dream Act Coalition v. Brewer the 9th Circuit Court of Appeals ruled that "DACA recipients enjoy no formal immigration status." Indeed, the Constitution reserves this power for Congress.

("The Congress shall have the power to ... establish a uniform rule of naturalization." Article I, Section 8, Clause 4).

As the Attorney General I have taken an oath to uphold and enforce the law and to defend the Constitutions of Arizona and of the United States. Here, the people of Arizona have spoken unambiguously and their elected and appointed representatives, including the community colleges and my office, are bound to follow.

Sincerely, Mark Brnovich Attorney General of Arizona

Got a tip? Send it to: Matthew Hendley.

Follow Valley Fever on Twitter at @ValleyFeverPHX. Follow Matthew Hendley at @MatthewHendley.


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