Update on DACA, tuition, and other unlawfully-present issues, 4/16/13—On the eve of the Senate release of its Comprehensive Immigration Reform legislation
On the eve of the Senate release of its Comprehensive Immigration Reform legislation, I summarize legal and other governance issues concerning immigration/liminal categories such as DACA/and resident tuition/other higher education.
I have long argued that Deferred Action, asylum, refugee status, TPS, and other forms of PRUCOL-like categories will serve to make such persons eligible for the various benefits and forms of status available to those who hold this liminal, in-between form of presence. Some of this is due to the vague and inconsistent nature of the specific form of relief, especially if it affects the "unlawfully present" clock, and some of it is the opposite—as when a state says that a benefit or form of status is available to such a non-citizen if they hold a Social Security Number, or are who are deemed to be "lawfully present." Anticipating that there would be very few such persons who could get a SSN or that virtually none would ever be found to be "lawfully present," states such as Arizona, Texas, and many others have had longstanding provisions that these benefits or status would be available for these select few. You see where I am going with this?
When DA was rarely used and sparingly given, and did not give an SSN or EAD, very few DA recipients could present plausible cases that they could get instate tuition, drivers' licenses, or other state aid or resources. However, as in a number of respects, DACA is a game-changer. ICE has held, for example:
For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence. US CIS FAQ about DACA, at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
This is longstanding federal policy as well. As just one example, 8 U.S.C. § 1623(a) provides "Notwithstanding any other provision of law, an alien who is not lawfully presentin 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." In addition, 8 U.S.C. § 1621 (d) notes: "State authority to provide for eligibility of illegal aliens for State and local public benefits. A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."
This and §1621 (see below*) and 8 USC § 1641 (see below**), when read together, appear on their face to allow DA (hence DACA) recipients to be eligible for a much broader range of benefits and status than is widely known. (And if these were available to those who were "not lawfully present," how much more eligibility is there for those now reconstituted as "lawfully present"?) And Arizona is pushing back by trying to end-run DA thorough Gov. Brewer's Executive Action that has interpreted DACA not to trigger the state's DA benefits. These matters are in litigation in Arizona and Michigan federal courts. I have attached the filings above: Arizona Dream Act Coalition, et al. v. Brewer, et al. (Nov. 29, 2012 class-action lawsuit challenging Arizona's unconstitutional policy denying driver's licenses to DACA holders) and One Michigan, et al. v. Johnson (Dec. 19, 2012 challenge to Michigan's policy of denying driver's licenses to DACA recipients).
My readings of the 1621 and 1623 provisions for instate and resident tuition are consistent with all the state and federal cases construing them (no state has lost such a matter). See, e.g., Michael A. Olivas, IIRIRA, The DREAM Act, and Undocumented College Student Residency, 30 Journal of College & University Law, 435-464 (2004). In addition, I have kept all of you abreast of litigation and legislation in NJ and FL having to do with such benefits/tuition status for USC children of undocumented adults. The issue was also litigated in HICA v Alabama (striking down the restrictive college admissions policy that would have ruled out even refugees from enrolling), and the use of the professional licensing provisions of 1621/1623 are in play with the State Supreme Courts in FL and CA for lawyer admission of undocumented applicants (CA) and DACA recipients (FL).HICA: http://www.ca11.uscourts.gov/opinions/ops/201114535.pdf (p. 9 of 27)
So, when section 15-1803(B) of the Arizona Revised Statutes uses "lawful presence" as one of its eligibility criteria for higher education benefits, it should render all DACA recipients eligible for resident tuition (should they meet the durational requirements, set at 12 month). This reasoning led one large Arizona two-year college to use EAD granted to DACA recipients for state resident tuition (Statement by Maricopa Community Colleges Regarding Deferred Action for Childhood Arrivals, MARICOPA COMMUNITY COLLEGES: http://www.maricopa.edu/residency/statement.php; DACA Frequently Asked Questions, MARICOPA COMMUNITY COLLEGES., http://www.maricopa.edu/residency/dacafaq.php . See Daniel Gonzalez, Young Migrants May Get Arizona College Tuition Break, ARIZ. REPUB., http://www.azcentral.com/news/articles/20120912young-migrants-may-get-arizona-college-tuition-break.html ("The executive order did not address tuition specifically, but Brewer said afterward that allowing illegal immigrants to pay in-state tuition even if they receive deferred action and work permits would violate state law.").
Michael A. Olivas
*8 U.S.C. § 1621:
(a) In general
Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not—
(1) a qualified alien (as defined in section 1641 of this title),
(2) a nonimmigrant under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], or
(3) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C. 1182(d)(5)] for less than one year,
is not eligible for any State or local public benefit (as defined in subsection (c) of this section).
Subsection (a) of this section shall not apply with respect to the following State or local public benefits:
(1) Assistance for health care items and services that are necessary for the treatment of an emergency medical condition (as defined in section 1396b(v)(3) of title 42) of the alien involved and are not related to an organ transplant procedure.
(2) Short-term, non-cash, in-kind emergency disaster relief.
(3) Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.
(4) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which
(A) deliver in-kind services at the community level, including through public or private nonprofit agencies;
(B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and
(C) are necessary for the protection of life or safety.
(c) "State or local public benefit" defined
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term "State or local public benefit" means—
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and
(B) any 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, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.
(2) Such term shall not apply—
(A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99–239 or 99–658 (or a successor provision) is in effect;
(B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Secretary of State, after consultation with the Attorney General; or
(C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States.
(3) Such term does not include any Federal public benefit under section 1611(c) of this title.
(d) State authority to provide for eligibility of illegal aliens for State and local public benefits
A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.
8 USC § 1641
(a) In general
Except as otherwise provided in this chapter, the terms used in this chapter have the same meaning given such terms in section 101(a) of the Immigration and Nationality Act [8 U.S.C. 1101(a)].
(b) Qualified alien
For purposes of this chapter, the term "qualified alien" means an alien who, at the time the alien applies for, receives, or attempts to receive a Federal public benefit, is—
(1)an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.],
(2)an alien who is granted asylum under section 208 of such Act [8 U.S.C. 1158],
(3)a refugee who is admitted to the United States under section 207 of such Act [8 U.S.C. 1157],
(4)an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C. 1182(d)(5)] for a period of at least 1 year,
(5)an alien whose deportation is being withheld under section 243(h) of such Act [8 U.S.C. 1253] (as in effect immediately before the effective date of section 307 of division C of Public Law 104–208) or section 241(b)(3) of such Act [8 U.S.C. 1231(b)(3)] (as amended by section 305(a) of division C of Public Law 104–208),
(6)an alien who is granted conditional entry pursuant to section 203(a)(7) of such Act [8 U.S.C. 1153(a)(7)] as in effect prior to April 1, 1980;  or
(7)an alien who is a Cuban and Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980).