Skip to main content

When Can A DACA Student Pay In-State Tuition In Georgia? Now!

On December 30, 2016, Judge Gail S. Tusan, Chief Judge of the Fulton County Superior Court ordrered the Georgia Board of Regents:
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. This is the Court's final order in this matter . . . .
There are thousands of students in Georgia affected by this Order and they all want to know what this order means.

Generally speaking, under Georgia law, a trial court judgment is automatically stayed for 10 days after its entry and, during this 10 day period, enforcement of the judgment is prohibited. What this might normally mean,  is that students cannot seek in-state tuition under this order until January 10, 2017, pursuant to Ga Code 9-11-62(a).

However, this section has typically been read to apply only to monetary judgments, not to orders like this case, which is an order of action to a state agency in a mandamus case.  Arguably, the order is effective immediately, and the Board of Regents should begin to allow qualified students to pay in-state tuition today. They may not do so, now, but we are only few days away from January 10, 2017.

If the Board of Regents appeals (and they have announced that they will appeal but have not done so yet), they will have to appeal directly to the Supreme Court of Georgia, which is where all appeals of mandamus cases are heard pursuant to Ga Code 9-6-28.

More importantly, there is no automatic stay in place simply by filing an appeal to the Supreme Court.  The Georgia Supreme Court, almost 100 years ago, made clear the rules on mandamus appeals in the case of  Smith v. Lott, 156 Ga. 590 (1923), which concerned a writ of mandamus requiring county commissioners to collect a property tax. The commissioners ignored the writ because they had appealed and did not feel that they also needed to secure a stay; instead, they believed that they did not need to abide by the judgment until this Court had disposed of their appeal. Id. at 592. In rejecting that position, the Georgia Supreme Court noted that “the pendency of a writ of error does not impair or affect the judgment of the superior court. It is binding until reversed,
and, when affirmed, is binding ab initio.” Id.

There is a long line of cases after this making it clear that there is no automatic stay in place, and it is our position that all qualified DACA students should be allowed to pay in-state tuition today. Subsequent Georgia Supreme Court decisions make clear that one appealing a writ of mandamus must move for and secure a stay of the judgment pending appeal in order to avoid complying with the writ while it is being  reviewed. Cf. Bd. of Comm'rs of Richmond Cnty. v. Cooper, 259 Ga. 785 (1990) (analogizing to law concerning injunctions and noting that appellant's failure to move for and secure a stay pending appeal meant that it had to issue license as mandamus required and that that issuance rendered appeal moot); City of Atlanta v. League of Women Voters of Atlanta-Fulton Cnty., Inc., 244 Ga. 796, 797-98 (1979) (noting that after issuing a writ of mandamus, superior court granted the city a stay of the judgment pending appeal).

The Georgia Supreme Court's jurisprudence for the past century has been clear: In a mandamus case, appealing alone does not and cannot trigger the automatic supersedeas provision in O.C.G.A. § 5-6-46. Instead, litigants appealing a mandamus case must either comply or move for and receive a stay of the judgment pending appeal. .

The bottom line is this:  If you are otherwise qualified for in-state tuition, and you are a DACA student ,and you have been denied the right to pay in-state tuition at any university or college under the Board of Regents control, please note whom  you have spoken with that denied you this right, the time and date of that call or meeting, and email this information along with your contact information to

Thank you all the heroic DACA recipients who have been part of this fight since the beginning, and to all those who are part of the fight now. It is for you that act.  No one is harmed by seeking and receiving an education.


  1. I recently contacted my school, Middle Georgia State University, and was told that they were instructed to wait and might not offer in state tuition until spring or as late as fall this year. Do I need to pursue this further?


Post a Comment

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America. The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds. Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups: Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence. The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens
Si usted es inmigrante (incluso un ciudadano de los EE.UU.), aquí hay 9 cosas que usted debe saber. ¿Es usted un ciudadano estadounidense naturalizado, residente legal permanente, titular de una visa o inmigrante indocumentado? Le recomendamos que tome los siguientes pasos para protegerse de nuestra versión actual de América. Las últimas semanas hemos recordado a los inmigrantes, incluso a los ciudadanos estadounidenses naturalizados, que no nacieron en los Estados Unidos. Nuestra oficina ha recibido innumerables llamadas telefónicas, mensajes de correo electrónico y mensajes de medios sociales de personas preocupadas por el futuro de su familia en los Estados Unidos. La mayoría de gente quiere saber qué puede hacer ahora para protegerse de lo que promete ser una ola de actividad anti-inmigración por parte del gobierno federal. La orden ejecutiva de Trump sobre la aplicación de la ley interior tiene algunas disposiciones que deberían hacer temblar a la mayoría de los estadou