Dispute may hinge on meaning of 'lawful presence'

Regents Jay Heiler, then-regent Greg Patterson and Bill Ridenour review the letter the board voted Friday to send to President-elect Donald Trump suggesting a way ‘Dreamers’ could remain in this country legally. (Capitol Media Services photo by Howard Fischer)

An appellate court ruling denying in-state tuition to “Dreamers” is based on a flawed reading of the law, the attorney for Maricopa colleges contends.

In new legal papers, attorney Mary O’Grady, who represents the colleges, told the Arizona Supreme Court that the Court of Appeals wrongfully conflated restrictions in a 2006 voter-approved law about services available to people not here legally with what even the U.S. Department of Homeland Security says is the legal status of those in the Deferred Action for Childhood Arrivals program.

Put simply, she argues that the federal government considers DACA recipients to be “lawfully present,” even if they have no legal immigration status. And that, she contends, means there’s nothing illegal about the Maricopa County Community College District allowing them to pay reduced tuition.

What the high court ultimately decides will govern not just the fate of more than 2,000 DACA recipients currently taking classes in the Maricopa system. O’Grady told the justices it also will determine whether Dreamers at the state’s three universities and other community colleges can afford to continue to go to school if they have to pay triple what they are now being charged.

The legal dispute turns on what certain words mean.

In 2006 Arizona voters approved a measure that says any person who is not a U.S. citizen, “legal resident” or “without lawful immigration status” is ineligible to be charged the same tuition at state colleges and universities available to residents.

But O’Grady said neither phrase is defined anywhere in state or federal law. In fact, she said, the federal Illegal Immigration Reform and Immigrant Responsibility Act, to which the state law refers, doesn’t even use those terms.

What that federal law does say is that people who are “not lawfully present” in this country are not entitled to postsecondary education benefits.

O’Grady acknowledged that DACA, a creation of the Obama administration, does not give those in the program formal legal status. Instead, it says that those who came to this country illegally as children are allowed to remain and work if they meet certain other circumstances.

More to the point, O’Grady told the justices that the federal government considers DACA recipients to be “lawfully present.”

That contention is backed by a list of frequently asked questions about DACA published by the U.S. Citizenship and Immigration Services, a branch of the U.S. Department of Homeland Security.

“An individual who has received deferred action is authorized by DHS to be present in the United States,” the document says.

And there’s something else.

O’Grady pointed out that the Legislature put into law a list of documents satisfying a person’s obligation to prove he or she is lawfully present in this country. That includes “a United States citizenship and immigration services employment authorization document” – precisely the work permits that are issued to DACA recipients.

All that, O’Grady said, justifies the decision by the Maricopa colleges governing board to conclude that DACA recipients are lawfully present and entitled to resident tuition.

After a trial judge sided with the college, the Arizona Board of Regents followed suit and agreed to let DACA recipients attend the state’s three universities while paying in-state tuition if they meet other residency requirements. Some other community college systems also have adopted similar policies.

Earlier this year, however, the Court of Appeals unanimously concluded those practices run afoul of state law. That leaves the final decision in the hands of the Supreme Court.

If the justices don’t buy her argument about “lawful presence,” O’Grady has a backup legal argument: The lawsuit challenging the tuition is illegal.

It was Tom Horne who, as attorney general in 2015, filed suit to overturn the Maricopa colleges’ policy. But O’Grady told the justices that nothing in state law gave Horne the authority to sue or allows current Attorney General Mark Brnovich to pursue the legal action.

The appellate judges, in their opinion, did not dispute that.

But they said it did not matter because Jan Brewer, who was governor at the time, did have such power. And they said that Brewer authorized Horne to pursue the legal action, albeit months after he actually went to court, and that Horne was bound to follow her directive.

O’Grady said that logic is legally flawed.

“This statement appears not only to authorize suit by the attorney general when directed by the governor, but to require it,” she told the justices, even though the attorney general is elected independent of the governor. “This was clearly not the relationship envisioned by the framers of Arizona’s Constitution, who specifically empowered the attorney general to exercise only those powers granted by the Legislature.”

O’Grady said this isn’t simply a question of whether DACA recipients will be forced to pay $327 per credit hour, the rate for non-residents, versus the $86 figure for residents.

“The difference between resident and nonresident tuition frequently determines whether a student can afford to start or continue an education,” she told the justices. “This case is not simply about how much it will cost to go to college. It will determine whether many students can go to college at all.”

The petition to the high court comes as Brnovich is being pressured by former state Senate President Russell Pearce to bring another lawsuit, this one against the Arizona Board of Regents, for not only enacting the in-state tuition policy for DACA recipients but allowing it to remain after the Court of Appeals decision.

The Mesa Republican is represented by Judicial Watch, which is using a section of state law which says any citizen can ask the attorney general to act in cases of violation of the law. If Brnovich does not act within 60 days of the demand, made on July 11, that frees Pearce to file his own legal action.

A spokeswoman for Brnovich said Wednesday his agency is reviewing its options.