Why Georgia DACA Students are Entitled to In State Tuition

Ever since President Obama announced the Deferred Action for Childhood Arrivals ("DACA") program the question has been asked in Georgia by DACA beneficiaries, can I now pay "in-state" tuition at Georgia Colleges and Universities?  The question is simple, but the answer is complicated because of the differences between "lawful status" and "lawful presence," terms that are poorly understood outside of the immigration lawyer community. Now that clarifications have been issued by the Department of Homeland Security on "lawful presence" and "lawful status" within the DACA context, it is clear that the Georgia Board of Regents must allow DACA beneficiaries to pay in-state tuition, by the words of their own policy Manual.

BACKGROUND

Initially when this issue percolated through the Georgia state legislature in 2010, and in order to stop actual laws from being enacted on this issue, the Georgia Board of Regents, which is tasked with determining eligibility for in-state tuition, came out with a policy in October 2010 directly affecting undocumented students.  The Board of Regents declared that all institutions in the University System of Georgia must verify the "lawful presence" of all students seeking in-state tuition rates. The Board of Regents also stated that any institution that has not admitted all academically qualified applicants in the two most recent years is not allowed to enroll undocumented students. This rule means that no undocumented students, regardless of what tuition they pay, or their qualifications, is allowed to attend the University of Georgia, Georgia Tech, Georgia State University, Medical College of Georgia, and Georgia College & State University. 

After President Obama released the details on DACA in August 2012, faced with the question of students who now would be "documented," the Board of Regents, again addressed the issue of in-state tuition for DACA eligible students, and again closed the door on them.  The Board of Regents used semantics to bar DACA eligible students from paying in-state tuition.  The problem for DACA students was that DHS had not yet considered whether these students had "lawful presence," but had only addressed the issue of "lawful status."  Let's look at the the specifics for a better understanding.  

The Board in 2010 adopted this language (emphasis added):

Georgia Board of Regents Policy Manual   Policy 4.1.6 - Admission of Persons Not Lawfully Present in the United States

A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons).

At this time, the following institutions fall under Policy

• Georgia College and State University

• Georgia Health Sciences University

• Georgia Institute of Technology

• Georgia State University

• University of Georgia

Students applying to one of the universities listed above will be required to provide verification of their lawful presence in the United States before their admission to the university can be finalized.

Policy 4.3.4 - Verification of Lawful Presence Policy

Each University System institution shall verify the lawful presencee in the United States of every successfully admitted person applying for resident tuition status, as defined in Section 7.3 of this Policy Manual, and of every person admitted to an institution referenced in Section 4.1.6 of this Policy Manual.  Any student requesting to be classified as an in-state student for tuition purposes will be required to provide verification of their lawful presence in the United States in order to be classified as an in-state student.

FREQUENTLY ASKED QUESTIONS (From the Board of Regents Web Site)

What documentation may I be asked to submit?

There are a number of ways for a student’s lawful presence in the United States to be verified. In some instances, the student will not need to submit any additional documentation. For example, if the student completes the Free Application for Federal Student Aid (FAFSA), and the U.S. Department of Education determines that the student is eligible to receive federal student aid, then the student may not need to submit additional documentation as the U.S. Department of Education verifies lawful presence before awarding aid.  

In other situations, a student may need to provide documentation of lawful presence, such as a copy of their U.S. birth certificate (certified copy), Georgia driver’s license (issued after January 1, 2008), United States passport, or Permanent Resident Card, as proof of lawful presence. Students should contact their college or university to learn more about what documentation they may need to submit. 

You will notice that the Board of Regents used the term "lawful presence" in its Manual, NOT the similar, but legally distinct term, "lawful status."  Lawful status typically derives from the fact that someone is in the United States on a specific type of visa (e.g. F-1, H-1B, B-2, L-1), or is a permanent resident of the United States.  However, Congress has given the executive branch a great deal of latitude in allowing people to remain in the United States, and classifies those people who are here and known to the U.S. government as having "lawful presence," even if they do not have lawful status.  So a person can be lawfully present in the United States and NOT be in lawful status.   Granted, this is confusing, but, it should not be confusing to those who truly understand the law and are writing laws dependent upon precise meaning.

The Law on "Lawful Presence"

On January 18, 2013, the Obama administration updated their FAQs about Deferred Action and made it quite clear that individuals granted DACA are "lawfully present" in the United States, even though they do not have "lawful status."  Let's take a look at what DHS says about Deferred Action beneficiaries (emphasis added):

Q1: What is deferred action?

A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. 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.

We see that DHS has made a distinction between Lawful Status and lawful presence.  And it is a distinction with a difference. If the Georgia Board of Regents required that a student be in "lawful status" to pay in-state tuition, there would be no argument here.  But, the Georgia Board of Regents only requires that a student show "lawful presence."  It is undisputed that what defines "lawful presence" is determined by the federal Immigration authorities, since it is a specific legal term of art.  We also see above that the federal Immigration authorities (DHS) has decided that DACA beneficiaries are "lawfully present" in the United States.  

We can come to only one conclusion from the law as written.  DACA beneficiaries in Georgia are legally entitled to pay in-state tuition.  Apparently, the Board of Regents has not yet clarified this fact to the institutions under its authority.  But even without such a clarification, the outcome is certain.  Unless the Board of Regents moves again to deny in-state tuition to qualified DACA beneficiaries (by definition long-term residents of Georgia), these students must be allowed to pay in-state tuition.