Georgia Appeals Court denies in-state tuition for DACA recipients

Georgia’s Court of Appeals has reversed a lower court’s decision that said the state must permit residents who have been granted a special reprieve from deportation to pay in-state tuition at state colleges and universities.

At issue is the Obama administration’s Deferred Action for Childhood Arrivals Program, or DACA, which grants two-year work permits and deportation deferrals to immigrants who were brought here illegally as children. Last month, President Donald Trump announced his administration would phase out DACA, a decision that could affect 21,600 people in Georgia.

Issued Tuesday, the state court’s 21-page decision says the DACA recipients who sued for in-state tuition in Georgia “have failed to carry their burden of showing that the DACA policy had the force and effect of a federal law.”

The court also said the plaintiffs had failed to show “that, even if the DACA policy had the force of law, it created a clear legal duty that required” the Board of Regents to grant them in-state tuition. Further, the board’s tuition rules, the court said, give it “broad discretion.” Those rules closely track a 2008 state law that says noncitizens cannot pay the in-state rate unless they are “legally in this state.” The plaintiffs in the case pointed to federal records that say DACA recipients are lawfully present in the U.S.

Fulton County Superior Court Chief Judge Gail Tusan agreed with them in her ruling released in January, writing officials of the University System of Georgia are “hereby compelled to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA recipients and to grant them in-state tuition status.”

Tusan continued: “Defendants have refused to accept the federally established lawful presence of plaintiffs and many other similarly situated students — students who are Georgia taxpayers, workers, and graduates of Georgia public high schools pursuing an affordable option for higher education. Such refusal of a faithful performance of their duties is unreasonable and creates a defect of legal justice that has already negatively impacted thousands of Georgia students.”

The Board of Regents appealed Tusan’s ruling.

This is the plaintiffs’ second attempt to reverse the tuition policy for DACA recipients. Last year, the Georgia Supreme Court unanimously rejected their first attempt, saying sovereign immunity — the legal doctrine that protects state agencies from being sued — shields the Board of Regents from such lawsuits.

Charles Kuck, the attorney representing the DACA recipients in the case, said they would appeal, bringing the case back to the Georgia Supreme Court.

Rigoberto Rivera, a plaintiff and Roswell High School graduate who was brought to the U.S. from Mexico as a child, wrote on Facebook that the appeals court’s decision was “erroneous and an injustice” to the DACA recipients in Georgia who “pay taxes and that have fought for the past four years for their right to in-state tuition.”

“The Georgia Undocumented Youth Alliance will continue the fight in court,” he said.

A spokeswoman for the Georgia Attorney General’s Office, which represented the Board of Regents in the case, had no comment other than to say the appeals court’s decision speaks for itself. A spokesman for the Board of Regents declined to comment.

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