The Maricopa County Community College District Board (“MCCCD”) granted resident tuition to students who reside in Arizona and participate in the federal Deferred Action for Childhood Arrivals (“DACA”) program, which defers the removal of certain unauthorized aliens who entered the United States as children.
A federal statute, 8 U.S.C. § 1623(a), provides that an alien “not lawfully present” in the U.S. cannot receive a postsecondary education benefit (such as resident tuition) on the basis of state residence unless all U.S. citizens and nationals receive the same benefit regardless of residence. The statute does not define “lawfully present.” However, another statute in that subchapter, § 1621(d), equates the phrase “lawfully present” to eligibility for state or local public benefits under § 1621(a), a category limited to (1) qualified aliens as defined is § 1641, (2) nonimmigrants under the Immigration and Nationality Act (“INA”), or (3) aliens paroled into the United States under § 1182(d)(5) for less than one year.
The Arizona Supreme Court concluded that only those aliens who are benefits-eligible under § 1621(a) are “lawfully present” for the purposes of § 1623(a). The Court rejected the argument that the phrase “not lawfully present” in § 1623(a) should be construed in accordance with the definition of “unlawfully present” in § 1182(a)(9)(B)(ii), which is the only definition of “lawfully present” or “unlawfully present” in the INA, because the definition applied to that paragraph only, and nothing in the statutory framework suggests that Congress intended to apply it in another context.
DACA students are not benefits-eligible under § 1621(a), and therefore they are not “lawfully present” for the purposes of § 1623(a). Arizona has not made resident tuition available to all U.S. citizens and nationals regardless of residence. Therefore, the Court held that DACA students are ineligible for resident tuition pursuant to federal law.
Chief Justice Bales authored the unanimous opinion with Judge Espinosa sitting in place of Justice Lopez.
Posted by: Andrea M. Taylor
Disclosure: Osborn Maledon attorneys were involved with this case.