Attorney General Tom Horne is on the verge of suing the Maricopa County Community College District for allowing in-state tuition for students whose parents brought them to the United States illegally when they were children.
Whether Horne sues depends on the outcome of a closed-door meeting of the school district’s board and its lawyers on Tuesday.
Assistant Attorney General Kevin Ray has notified the district that its policy violates state law, which prohibits colleges and universities from offering in-state tuition to illegal immigrants, and violates a federal law that prohibits illegal immigrants from receiving any state or local public benefit.
The school district, however, is accepting work permits granted through the federal Deferred Action for Childhood Arrivals program to prove “legal presence” in the country.
A work permit is one of several documents the state will accept to prove legal presence for the purposes of receiving public benefits.
Under Deferred Action, illegal immigrants younger than 30 who were brought by their parents to the U.S. before they turned 16 can apply to stay in the country to work for two years without the threat of being deported, but they don’t have legal immigration status.
The district adopted the policy without a board vote in September, which prompted Ray to ask the district’s general counsel, Lee Combs, in an email how he reached his legal conclusion.
Combs referred Ray to a frequently asked questions page of the district’s website, which cites a federal law that says someone who is “not lawfully present” in the U.S. isn’t eligible for in-state tuition.
“But it is clear under Federal law that an immigrant can be “lawfully present in the United States” without holding a valid status,” the website reads.
Ray wrote in a Feb. 7 letter to Combs that the district’s reliance on the work permit is misplaced because a 2010 Attorney General Opinion explained that the list of documents in state law for establishing legal presence “do[es] not satisfy all the citizenship or immigration status requirements that the federal government has established for public benefits other than Medicaid.”
Ray told Combs the Attorney General’s Office would prefer to settle the matter without a lawsuit.
Emails from the Attorney General’s Office show the two sides couldn’t arrange a meeting to discuss the issue because of scheduling conflicts. But Ray pressed Combs for a meeting on March 20 by saying the Attorney General will sue and ask for repayment of “improper payments of public monies” and for a court-order ending the policy if they aren’t on the cusp of an agreement by April 10.
The Attorney General’s Office extended the deadline to Tuesday, when the board meets with attorney in executive session.