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State ex rel. Brnovich v. Maricopa County Community College District Board

Supreme Court of Arizona

May 1, 2018

State of Arizona, ex rel. Attorney General Mark Brnovich, Plaintiff/Counter-Defendant/Appellant,
v.
Maricopa County Community College District Board, Defendant/Appellee, Abel Badillo and Bibiana Vazquez, Intervenor-Defendants/Counter-Plaintiffs/Appellees.

          Appeal from the Superior Court in Maricopa County The Honorable Arthur T. Anderson, Judge No. CV2013-009093

         Opinion of the Court of Appeals, Division One 242 Ariz. 325 (App. 2017)

          COUNSEL:

          Mark Brnovich, Arizona Attorney General, Kevin D. Ray, Section Chief Counsel, Education and Health Section, Rusty D. Crandell (argued), Kevin D. Ray, Assistant Solicitor General, Phoenix, Attorneys for State of Arizona

         Mary R. O'Grady (argued), Lynne C. Adams, Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for Maricopa County Community College District Board

          Eileen Dennis GilBride, Georgia A. Staton, Jones, Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Amicus Curiae Pima Community College

          Julia A. Gomez, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; José de Jesús Rivera, Nathan J. Fidel, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Phoenix; Daniel R. Ortega, Jr., Ortega STATE V. MARICOPA CTY. CMTY. COLL. DIST. BD. Opinion of the Court Law Firm, P.C., Phoenix; Noel Fidel, Law Office of Noel Fidel, Phoenix, Attorneys for Abel Badillo and Bibiana Vazquez

          Steven A. Ellis, Goodwin Procter LLP, Los Angeles, CA; Laurel Kilgour, Goodwin Procter LLP, San Francisco, CA, Attorneys for Amicus Curiae Year Up, Inc.

          Andrew S. Gordon, Roopali H. Desai, Coppersmith Brockelman, PLC, Phoenix; Attorneys for Amicus Curiae Year Up, Inc. and Amicus Curiae Arizona Education Association

          CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE ESPINOSA joined. [*]

          BALES CHIEF JUSTICE

         ¶1 We here consider whether Arizona students granted deferred removal action by the United States Department of Homeland Security ("DHS") under its Deferred Action for Childhood Arrivals ("DACA") policy are eligible for in-state college tuition. "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States, 567 U.S. 387, 394 (2012). Because Congress has not identified DACA recipients as "lawfully present" for purposes of public benefits eligibility under 8 U.S.C. § 1621, and Arizona has not made in-state tuition available to all citizens and nationals regardless of residence, we hold that DACA recipients are not eligible for in-state tuition in Arizona.

         I.

         ¶2 In 2012, DHS initiated the DACA program by exercising its prosecutorial discretion to defer the deportation of certain unauthorized aliens who entered the country as children. The program provided neither long-term authorization to remain in this country nor a path to citizenship, ¶3 DACA recipients must apply to DHS for employment authorization documents ("EADs"), and the Maricopa County Community College District Board ("MCCCD") began accepting those EADs as evidence of residency for students to receive in-state tuition. Federal law generally bars granting in-state tuition to students based on state residency when they are not lawfully present in the United States. See 8 U.S.C. § 1623(a). Similarly, Arizona law bars in-state classification of certain students lacking lawful immigration status. A.R.S. § 15-1803(B). (Arizona statutes contemplate reduced tuition for "in-state" university ...


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