STATE OF ARIZONA ex rel. Attorney General Mark Brnovich, Plaintiff/Counter-Defendant/Appellant,
MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD, Defendant/Appellee, ABEL BADILLO and BIBIANA VAZQUEZ, Intervenor-Defendants/Counter-Plaintiffs/Appellees.
from the Superior Court in Maricopa County No. CV2013-009093
The Honorable Arthur T. Anderson, Judge
Arizona Attorney General's Office, Phoenix By Kevin D.
Ray, Rusty D. Crandell Counsel for
Maledon, P.A., Phoenix By Mary R. O'Grady, Lynne C.
Adams, Eric M. Fraser Counsel for Defendant/Appellee
Law Firm PC, Phoenix, By Daniel R. Ortega, Jr. Co-Counsel for
Miller, Pitt, Feldman & McAnally, P.C., Phoenix By
José de Jesus Rivera, Nathan J. Fidel Co-Counsel for
Mexican American Legal Defense and Educational Fund, Los
Angeles, CA By Victor Viramontes, Martha L. Gomez Co-Counsel
Office of Noel Fidel, Phoenix By Noel Fidel Co-Counsel for
Presiding Judge Kenton D. Jones delivered the Opinion of the
Court, in which Judge Paul J. McMurdie joined and Judge
Patricia K. Norris specially concurred.
In 1996, Congress enacted two federal statutes intended to
restrict welfare and public benefits for aliens. The Personal
Responsibility and Work Opportunity Reconciliation Act
(PRWORA) defines which aliens qualify for eligibility to
receive state and local public benefits. Although PRWORA also
generally allows the states to define alien eligibility for
public benefits, part of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) does not allow any
state to provide nonqualified aliens with postsecondary
education benefits based upon their residence within the
state. Ten years later, Arizona voters passed Proposition 300
(Prop 300) which, in relevant part, incorporates IIRIRA's
prohibition on providing the quintessential residence-based,
postsecondary education benefit - in-state tuition - to
In 2012, the U.S. Department of Homeland Security (DHS),
through a lawful exercise of its prosecutorial discretion,
elected to defer deportation of unauthorized aliens who
entered the country as children, a departmental policy
otherwise known as Deferred Action for Childhood Arrivals
(DACA). Congress permits DHS to issue employment
authorization documents (EADs) to DACA recipients but has not
specified whether DACA recipients qualify for in-state
tuition or other state and local public benefits. Thereafter,
the Maricopa County Community College District (MCCCD) began
accepting EADs from DACA recipients as evidence that they
qualified for residence-based, in-state tuition benefits. The
Arizona Attorney General (AAG) objected, but the trial court
upheld MCCCD's actions in a subsequent declaratory
The AAG now appeals the trial court's orders denying its
motion for judgment on the pleadings and granting summary
judgment in favor of MCCCD and partial summary judgment in
favor of Abel Badillo and Bibiana Vazquez (the Students). In
reconciling federal and Arizona law, we hold DACA recipients
are not eligible to receive in-state tuition benefits and
therefore reverse the court's orders and remand with
AND PROCEDURAL HISTORY
In June 2012, DHS initiated the DACA policy, which allowed
DHS to defer the removal of certain unauthorized
aliens and redirect immigration enforcement
resources away from those individuals who lacked unlawful
intent in entering the United States and have since
demonstrated productive use of their time. See
generally Memorandum from Janet Napolitano, Sec'y,
DHS, to David V. Aguilar, Acting Comm'r, U.S. Customs
& Border Patrol, Alejandro Mayorkas, Dir., U.S.
Citizenship & Immigration Servs., and John Morton, Dir.,
U.S. Immigration & Customs Enf't (Jun. 15, 2012),
(Napolitano Memo). DACA originally applied to unauthorized
aliens who: (1) came to the United States under the age of
sixteen; (2) had continuously resided in the United States
for at least five years preceding DACA's institution; (3)
were not older than thirty before June 2012; (4) were
currently in school, had graduated from high school or
received a GED, or had been honorably discharged from the
U.S. military; and (5) had not been convicted of a felony or
significant or multiple misdemeanors. Id.
Individuals qualifying for deferment under DACA are required
to apply for an EAD from the United States Citizenship and
Immigration Services (USCIS). See 8 C.F.R. §
Shortly after the implementation of DACA, MCCCD began
accepting EADs from DACA recipients as evidence of residency
for purposes of receiving in-state tuition benefits. In 2013,
the AAG filed a declaratory action, seeking a determination
that MCCCD's policy violates Arizona law and an
injunction prohibiting MCCCD from allowing DACA recipients to
obtain subsidized tuition rates. The Students, two DACA
recipients attending MCCCD colleges and benefitting from
in-state tuition benefits, successfully intervened and
asserted constitutional defenses in addition to MCCCD's
Both MCCCD and the Students filed motions for summary
judgment. After briefing and oral argument, the trial court
concluded that, under the relevant federal and state law,
DACA recipients are "lawfully present" and
therefore eligible for in-state tuition benefits. Because it
granted Appellees' motions on statutory grounds, the
court did not decide the constitutional claims presented in
the Students' motion. The AAG timely appealed. This Court
has jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(1).
The AAG's Authority to Bring Suit
As an initial matter, MCCCD argues the trial court's
orders must be affirmed because the AAG had neither statutory
nor constitutional authority to initiate its suit. Whether a
party has standing to sue presents a question of law we
review de novo. Pawn 1st, L.L.C. v. City of Phx.,
231 Ariz. 309, 311, ¶ 11 (App. 2013) (citing Ctr.
Bay Gardens, L.L.C. v. City of Tempe City Council 214
Ariz. 353, 356, ¶ 15 (App. 2007)).
The AAG's powers derive solely from the Arizona
Constitution or Arizona statutes. State ex rel. Woods v.
Block, 189 Ariz. 269, 272 (1997) (quoting Fund
Manager, Pub. Safety Pers. Ret. Sys. v. Corbin, 161
Ariz. 348, 354 (App. 1988), and citing Ariz. State Land
Dep't v. McFate, 87 Ariz. 139, 142 (1960)). In
asserting its authority to pursue this litigation, the AAG
relies upon A.R.S. § 41-193(A)(2), which states
"[a]t the direction of the governor or when deemed
necessary by the attorney general, [the AAG shall] prosecute
and defend any proceeding in a state court . . . in which the
state or an officer thereof is a party or has an
interest." This section "does not permit the
Attorney General, in the absence of specific statutory power,
to initiate an original proceeding." McFate, 87
Ariz. at 140, 145.
We find no law, however, prohibiting the chief executive of
Arizona from directing a lesser executive officer to enforce
a statute. Indeed, Arizona's governor is tasked with
supervising the official conduct of all State officers and
"is obligated and empowered to protect the interests of
the people and the State by taking care that the laws are
faithfully executed." Yes on Prop 200 v.
Napolitano, 215 Ariz. 458, 470, ¶ 35 (App. 2007)
(quoting McFate, 87 Ariz. at 148); see also
Ariz. Const. art. 5, § 4; A.R.S. § 41-101(A)(1).
Therefore, "the governor's order is the highest
executive voice within this state and may not be ignored by a
lesser officer of the executive branch." Id.
(quoting State v. Hooker, 128 Ariz. 479, 481 (App.
Here, after the AAG filed this action, then-Governor Jan
Brewer directed the AAG to take "all legal actions"
to enforce the laws regarding aliens' eligibility for
in-state tuition benefits, which she interpreted as
proscribing students without lawful immigration status from
receiving in-state tuition benefits or other financial aid,
and to continue this litigation to its conclusion. The
Governor had an interest in the outcome because, by virtue of
her position, she was obligated to protect the public's
interest by ensuring the laws were faithfully executed. With
that interest in mind, the Governor directed the AAG to
"prosecute" the current proceeding within the
meaning of A.R.S. § 41-193(A)(2).
Contrary to MCCCD's contention, there is no evidence the
Governor used the take-care clause of the Arizona
Constitution, see Ariz. Const. art. 5, § 4
("The governor . . . shall take care that the laws be
faithfully executed."), to create statutory standing for
the AAG, thereby making a legislative decision in violation
of her executive authority, see Litchfield Elementary
Sch. Dist. No. 79 v. Babbitt, 125 Ariz. 215, 220 (App.
1980) (citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 587-88 (1952)). Pursuant to her
constitutional and statutory authority as chief executive,
the Governor ordered the AAG to serve as her proxy in
enforcing Arizona's laws. The AAG, therefore, had a legal
right, derived from the Governor's command, to seek a
judicial determination that MCCCD acted unlawfully. We
conclude the AAG had standing to bring the underlying
declaratory and injunctive actions against MCCCD.
DACA Recipients' Eligibility for In-State
The AAG argues the trial court erred in interpreting state
and federal law in a manner that permits DACA recipients to
qualify for in-state tuition benefits. We review the
interpretation and application of statutes de
novo. See John Munic Enters., Inc. v. Laos, 235
Ariz. 12, 15, ¶ 5 (App. 2014) (citing First Credit
Union v. Courtney, 233 Ariz. 105, 107, ¶ 9 (App.
PRWORA, IIRIRA, and Prop 300: Defining Alien Eligibility
for Welfare and Public Benefits
A brief examination of the history and content of the
relevant federal and state statutes is instructive.
In 1996, Congress passed PRWORA, Pub. L. No. 104-193, tit.
IV, §§ 400-51, 110 Stat. 2105, 2260-77 (1996)
(partially codified as amended at 8 U.S.C. §§ 1601
to -1646), and IIRIRA, Pub. L. No. 104-208, div. C, §
505, 110 Stat. 3009, 3681 (1996) (codified as 8 U.S.C. §
1623). PRWORA was generally enacted "to remove the
incentive for illegal immigration provided by the
availability of public benefits, " 8 U.S.C. §
1601(6), and specifically delineates which aliens are
eligible for state and local public benefits, see 8
U.S.C. §§ 1621(a), 1641(b)-(c). In relevant part,
PRWORA defines state and local public benefits as:
[A]ny retirement, welfare, health, disability, public or
assisted housing, postsecondary education, food assistance,
unemployment benefit, or any other similar benefit for which
payments or assistance are provided to an individual . . . by
an agency of a State or local government or by appropriated
funds of a State or local government.
8 U.S.C. § 1621(c)(1)(B).
Under PRWORA, unless an alien is "(1) a qualified alien
(2) a nonimmigrant . . ., or (3) an alien who is paroled into
the United States" for urgent humanitarian reasons or
significant public benefit, he or she is not eligible for
state or local public benefits. 8 U.S.C. §§
1621(a), 1641(b). "Qualified aliens" are
statutorily defined to include: (1) aliens lawfully admitted
for permanent residence; (2) aliens granted asylum; (3)
refugees; (4) aliens whose deportations are withheld because
removal would threaten the alien's life or freedom; (5)
certain Cuban and Haitian entrants; (6) certain battered
aliens, or their spouses or children; and (7) certain victims
of sex trafficking. 8 U.S.C. § 1641(b)-(c). For ease of
reference, we refer to these groups, collectively, as
qualified aliens. We likewise refer to aliens who do not fit
within these specifically defined groups as non-qualified
Although the individual states retain the authority under
PRWORA to enact a statute that would affirmatively provide
"an alien who is not lawfully present" eligibility
for state and local public benefits "for which such
alien would otherwise be ineligible under [8 U.S.C. §
1621(a)], " 8 U.S.C. § 1621(d),  this general
grant of authority is limited by IIRIRA, which provides:
Notwithstanding any other provision of law, an alien who is
not lawfully present in the United States shall not be
eligible on the basis of residence within a State (or a
political subdivision) for any postsecondary education
benefit unless a citizen or national of the United States is
eligible for such a benefit (in no less an amount, duration,
and scope) without regard to whether the citizen or national
is such a resident.
8 U.S.C. § 1623(a). IIRIRA has been interpreted as
applying to in-state tuition benefits. See Martinez v.
Regents of the Univ. of Cal., 241 P.3d 855, 865 (Cal.
2010) ("[Section 1623(a)] provides that illegal aliens
are not eligible for in-state tuition rates at public
institutions of higher education.") (quoting H.R. Rep.
No. 104-828, at 240 (1996) (Conf. Rep.)); see generally
Day v. Bond, 500 F.3d 1127 (10th Cir. 2007) (presuming
in-state tuition is a benefit governed by IIRIRA but
concluding the plaintiffs lacked standing to pursue a claim).
Ten years after PRWORA and IIRIRA were enacted, Arizona
voters approved Prop 300 to ostensibly prohibit unauthorized
aliens from receiving in-state tuition or educational
financial aid derived from publicly appropriated funds.
See generally Public Program Eligibility, 2006 Ariz.
Legis. Serv. Sen. Conc. Res. 1031 (2d Reg. Sess.). Thus,
pursuant to A.R.S. § 15-1803(B):
In accordance with [IIRIRA], a person who [i]s not a citizen
or legal resident of the United States or who is without
lawful immigration status is not entitled to classification
as an instate student pursuant to [A.R.S.] § 15-1802 or
entitled to classification as a county resident pursuant to
[A.R.S.] § 15-1802.01.
Section 15-1825(A) similarly prohibits a student seeking
postsecondary education in Arizona "who is not a citizen
of the United States [or] is without lawful immigration
status" from receiving "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 part with state
monies." Section 15-1825(B) further requires each
community college and university to report the total number
of students not entitled to educational financial aid because
they are "not lawfully present."
In sum: (1) PRWORA grants eligibility for state and local
public benefits only to "qualified" aliens who are
"lawfully present, " but separately permits the
states, individually, to extend state and local public
benefits to non-qualified aliens; (2) IIRIRA restricts the
states' authority to extend a specific public benefit -
residence-based, in-state tuition - to aliens "not
lawfully present"; and (3) Arizona statutes, adopted at
the direction of Arizona voters, affirmatively deny in-state
tuition benefits to persons "without lawful immigration
status." Whether DACA recipients are eligible for
in-state tuition benefits turns on whether they are