As with any such list, this one is a work-in-progress, with new stuff appearing every week. It contains all the immigration-related college law cases since 2004 (with a passing reference to the important earlier 1997 LULAC v. Wilson), both in federal court and state courts or tribunals. It separates the nearly-3 dozen such cases into DACA cases (Direct and indirect challenges, education tuition and financial aid, drivers licenses, and occupational licenses), cases involving the undocumented and immigrant educational and related status and benefits matters, and other immigration-related postsecondary education, including several on the issue of educational befits to USC children with undocumented children. I will post this list in the usual places, as well as my list of all 8 U.S. C. Secs. 1621 and 1623 (a separate but occasionally-overlapping list). I have several works in progress using these data, and so many people have asked me for them that I have put together the tallies, and will prepare tables with more detail and nuance. When I do so, I will post them to www.law.uh.edu/ihelg , as always. The November, 2014 expansion of DACA and its new companion program (DAPA) will surely add to the list, and already have done so in the challenges to Deferred Action. Because so many cases turn on legislation, I use the term in the Table, but these are actual cases filed and underway or completed.
One thing is evident: this is a very highly contested terrain, with a growing number of overlapping issues, such as the criminal case in Pennsylvania that somehow morphed into one Article III judge’s riff on DACA, not even in play in the case, and the Sheriff Arpaio challenge to DACA on the grounds that it make his job more difficult. If any of you see cases that are missing, or ones that do not belong here (not all are directly on point, but are close enough: pero tu sabes), please contact me. Some of these cases have never been reported before this listing or analyzed, so there are miles to go before we sleep. My thanks and a shout-out to UHLC Research Librarian extraordinaire Katy Stein Badeaux, who has helped me so much on this snipe hunt.
Michael
Michael A. Olivas
State and Federal Immigration-related Litigation and Legislation Concerning Higher Education, 2004-2015
While Comprehensive Immigration reform and the DREAM Act will be federal inititiaves, it is clear that much of the political and legislative action on immigration is taking place in the States, some of it nativist and restrictionist, but increasingly, also accomodationionist. These actions are a counterstory to the national deadlock, epitomized by the failure of the House to take up immigration legislation, even as the Senate version of CIR was enacted in 2012. In a growing undertow, state and local officials have begun to recognize that many useful actions are possible in the mixed immigration political economy, especially in the areas of in-state resident college tuition and self-imposed limits on law enforcement not to cooperate with federal immigration enforcement efforts or immigration detainers. In addition, the Deferred Action for Childhood Arrivals (DACA) program has provided both federal and state eligibility for certain benefits and status by its provision of legal presence for the nearly 700,000 recipients who have navigated this process in the first 18 months of its existence. Financial aid has also been litigated, in a variety of immigration-related dimensions.
While I will not elaborate on the criminal law-related immigration issues, I note that part of the larger undertow is the disenchantment with the harsh consequences of federal detention practices. Thus, a number of states and local jurisdictions have shunned cooperation with the federal immigration detention authorities, retreated from the variety of policing cooperative agreements such as Secure Communities, and declared their unwillimngness to detain immigrants who have not committed criminal acts. Even as conservatives in Congress have refused to acknowledge the unprecedented deportation and removal acxtons by President Obama’s admisinistration or to appreciate the metrics of border and employment enforcement, dozens of jurisdcitions have turned away from the harsh practices and refused to cooperate.
To be sure, there are outlier states that have employed faulty judgments in ramping up their laws and practices,only to see SCOTUS and other courts strike them down, such as Arizona, Georgia, and Alabama, all of which are litigating their state laws against accommodationist legal challenges. These states are engaged in or recently lost challenges to higher education statutes on various immigration bases, including DACA, the undocumented, and higher education benefits or participation:
Challenges to DACA program, direct or collateral:
Arpaio v. Obama, D.D.C. [Memorandum Opinion, Civil Action No. 14-01966 (BAH), December 23, 2014] (striking down AZ sheriff challenge to DACA)
United States v. Elionardo Juarez-Escobar, Case 2:14-cr-00180-AJS (W. D. Penn., 2014) [Memorandum Opinion and Order of Court Re: Applicability of President Obama’s November 20, 2014 Executive Action on Immigration to this Defendant]
Texas v. United States, No. 1:14-cv-00254 (S.D. Tex. Dec. 3, 2014) (states challenge DACA constitutionality)
Judicial Watch, Inc. v. U.S. Dep't of Justice, No. 1:12-cv-01350-BAH, 2014 WL 794220 (D.D.C. Feb. 28, 2014) (Court upholds FOIA Exemption 5 withholding of privileged DACA deliberative memos).
Crane v. Napolitano, 920 F. Supp. 2d 724 (N. D. Tex. 2013) (challenge to DACA dismissed under Civil Service Reform Act (“CSRA”)); on appeal to Fifth Circuit.
Common Cause v. Biden, 909 F. Supp. 2d 9 (D.D.C. 2012) (dismissing Senate debate/filibuster rules, re immigration reform).
Challenges to benefit/status denial re USC children of undocumented parents:
Rocha Herrera v. Finan, U.S. District Court for the District of South Carolina (Spartanburg Division), June 2014 (resident tuition and financial aid case concerning USC children and undocumented parents).
Ruiz v. Robinson, 892 F. Supp. 2d 1321 (S.D. Fla. 2012) (FL resident tuition case concerning USC children and undocumented parents; State did not appeal further, and changed practice)
A.Z. ex rel. B.Z. v. Higher Educ. Student Assistance Auth., 48 A.3d 1151 (N.J. Super. Ct. App. Div. 2012) (NJ financial aid case concerning USC children and undocumented parents); consolidated with
Cortes v. Higher Educ. Student Assistance Auth., No. A-2142-11-T1 (N.J. Super. Ct. App. Div. 2012) (State did not appeal further, but has not changed practice)
Consent Decree, Student Advocates for Higher Educ. v. Bd. of Trs. of Cal. State Univ., No. CPF-06-506755 (Cal. Super. Ct. Apr. 19, 2007) (financial aid case concerning USC children and undocumented parents; State settled and changed practice)
Immigration-related challenges to financial aid/residency:
Immigration Reform Coal. of Texas (IRCOT) v. Texas, 706 F. Supp. 2d 760 (S.D. Tex. 2010) (removed to state court); re-filed as Lone Star Coll. Sys. v. Immigration Reform Coal. of Texas (IRCOT), 418 S.W.3d 263 (Tex. App.—Houston [14 Dist.] 2013) (standing and procedural issues). Lone Star College System and Richard Carpenter v. Immigration Reform Coalition of Texas (IRCOT), Case No. 14-0031 DATE: Oct. 24, 2014: 14-12-00819-CV TC#: 2009-79110 (Supreme Court of Texas denied petition for review; Motion to Re-Urge Intervention and Motion to File Brief dismissed as moot)
Complaint for Declaratory Relief, Orellana v. State Council of Higher Educ. for Virginia, No. CL13003086-00 (Va. Cir. Ct. Dec. 17, 2013) (seeking to have DACA recipients considered eligible for resident tuition, unopposed motion for nonsuit granted Feb. 12, 2014)
Mashiri v. Dep’t of Educ., 709 F.3d 1299 (9th Cir. 2013) (Stafford Loan eligibility)
Tobin v. Rea, 291 P.3d 983 (Ariz. 2013) (upholding challenge to Legislative Council's analysis of Prop. 204 [resident tuition bill] and ordering revisions to published analysis)
Hispanic Interest Coal. of Alabama v. Governor of Alabama, 691 F. 3d 1236 (11th Cir. 2012), cert den. Alabama v. U.S., 133 S. Ct. 2022 (2013), Scalia diss. (Ala. Code § 31-13-27); Dismissal Order and Stipulated Permanent Injunction, Hispanic Interest Coal. of Alabama v. Bentley, No. 5:11-cv-2484-SLB (N.D. Ala. Nov. 25, 2013).
Marderosian v. Topinka, No. 1:12-cv-2262 (N.D. Ill. June 19, 2012) (challenge to Illinois in-state tuition law for undocumented students) [withdrawn, re-filed as Ardash Marderosian Trust v. Quinn, No. 1:12-cv-06869, 2013 WL 5405705 (N.D. Ill. Sept. 25, 2013) (challenge to Illinois scholarship law for undocumented student scholarship fund, including scholarship funded by original gift)]
DACA Beneficiary Georgia Coll. Students v. Univ. Sys. of Georgia’s Bd. of Regents, No. 14-cv-243077(Ga. Super. Ct. Fulton Cnty. Feb. 28, 2014), venue transferred from Olvera v. Univ. Sys. of Georgia's Bd. of Regents, No. 13-CV-8311-9 (Ga. Super. Ct. DeKalb Cnty. Aug. 1, 2013)
Complaint for Declarative and Injunctive Relief, Arizona v. Maricopa Cnty. Cmty. Coll. Dist. Governing Bd. (“MCCCD”) No. CV-13-9093 (Ariz. Super. Ct. June 25, 2013) (MCCCD challenge by state on resident tuition policy for DACA students).
Doe v. Maryland State Bd. of Elections, No. O2-C11-163050 (Md. Cir. Ct. Feb. 17, 2012) (unsuccessful challenge to the state ballot measure “freezing” the 2011 Maryland Dream Act implementation), affirmed on appeal, Doe v. Maryland State Bd. of Elections, 53 A.3d 1111 (Md. 2012)
Thomas v. Henry, 260 P.3d 1251 (Okla. 2011) (resident tuition)
Opinion and Order, Philips v. Bd. of Trustees of Montgomery Coll., No. C-342882 (Md. Cir. Ct. Aug. 16, 2011) (dismissing challenge to Montgomery College tuition policy for undocumented in-district residents)
Sanchez v. Hall, No. 5:10-CT-3027-D, 2011 WL 6369821 (E.D.N.C. Dec. 19, 2011) (community college enrollment)
Martinez v. Regents of the Univ. of California, 241 P.3d 855 (Cal. 2010), cert. den. 131 S.Ct. 2961 (June 6, 2011) (upholding CA resident tuition policy for undocumented students).
Order of Dismissal, Mannschreck v. Clare, No. Ci 10-8 (Neb. Dist. Ct. Dec. 17, 2010) (striking down challenge to Nebraska residency statute).
Notice of Withdrawal, Dominguez v. Texas, No. 5:07-cv-00549 (W.D. Tex. Nov. 6, 2008) (settlement agreement with notice of withdrawal regarding TX veterans college benefit).
Day v. Sebelius, 376 F. Supp. 2d 1022 (D. Kansas, 2005); Day v. Bond, 511 F.3d 1030 (10th Cir. 2007) (denying request for rehearing); Day v. Bond, 500 F. 3d 1127 (10th Cir. 2007) (dismissing challenge to Kansas state residency requirement)
McPherson v. McCabe, No. 5:04-CT-990-FL, 2007 WL 4246582 (E.D.N.C. Apr. 10, 2007) aff'd, 241 F. Appx 963 (4th Cir. 2007) (education benefits)
Equal Access Education v. Merten, 325 F. Supp. 2d 655 (2004) (state need not enact state law to offer resident tuition for undocumented students)
League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244 (C.D. Cal. 1997) (residency tuition) [case settled by Gov.]
DACA challenges to drivers’ license policies:
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ( Arizona drivers’ license ban in Arizona, pending a decision on motion for rehearing/rehearing en banc--Arizona claim that DACA is not Deferred action concerning drivers licenses).
Notice of Voluntary Dismissal Without Prejudice, One Michigan v. Johnson, No. 2:12-cv-15551 (E.D. Mich. Dec. 19, 2012) (challenge to Michigan policy of denying driver's licenses to DACA recipients) (dismissed after Michigan reversed policy).
Complaint and Petition for Declaratory Judgment, Hernandez v. Heineman, No. CI-13-2124 (Neb. Dist. Ct. June 10, 2013) (challenge to Nebraska policy of denying driver's licenses to DACA recipients).
Occupational Licensing/Bar admissions, Employment, DACA or undocumented:
In re Sergio Garcia on Admission, 315 P.3d 117 (Cal. 2014) (recognizing CA statute to admit undocumented applicant to CA bar); 58 Cal. 4th 440 (2014) (bar license)
In re Florida Bd. of Bar Examiners, No. SC11–256, 2014 WL 866065 (Fla. Mar. 6, 2014) (not admitting DACA applicant to FL bar); 134 So. 3d 432 (Fla. 2014)
Cesar Vargas, No. ___________ (N.Y. App. Div. 2014).
Juarez v. Nw. Mut. Life Ins. Co., Inc., 14-CV-5107 KBF, 2014 WL 6363919 (S.D.N.Y. Nov. 14, 2014) (refusal to recognize EAD for hiring)
( c ) Michael A. Olivas, January 18, 2015