PHOENIX (CN) – The Arizona Supreme Court indicated Monday that the question of whether undocumented immigrants with deferred deportation status are allowed to pay in-state tuition rates hinges on whether they are considered lawfully present in the United States.
Justices posed questions about other facets of the law that may lend clarity into what sort of legal status recipients of the Deferred Action for Childhood Arrivals, or DACA, program do have and if that status amounts to tuition benefits.
"If somebody believed that they were under DACA, but yet Department of Homeland Security decides to deport that person, would they have rights to say yes, under DACA, I must stay here?" asked Justice Ann Scott Timmer.
"I don't know, your honor, if we've seen those cases yet, but what they have now is undeniably the ability to live here and work here," said Mary O'Grady, an attorney for the Maricopa County Community College District.
Then-Arizona Attorney General Tom Horne sued the district in 2013 to stop it from granting in-state tuition benefits to undocumented immigrants protected by the Obama administration's DACA program. The district is one of the largest education providers in the U.S., with more than 200,000 enrolled students.
"If I were to drive five miles over the speed limit and there is a police officer watching me and decided not to cite me, does that mean that I'm lawfully driving?" Justice Clint Bolick asked O'Grady.
O'Grady said Bolick's example does not equate to the case before the court.
"This lawsuit is not about a challenge to DACA," O'Grady said.
Lawful presence applies to people who are in the country within the federal government's authority, she said.
They are no longer lawfully present "if they overstay that stay, if DACA no longer exists," O'Grady explained.
Before President Donald Trump upended the program, individuals qualified for DACA if they were younger than 30, came to the United States before they were 16 and lived in the county for at least five years before the program was initiated.
The Arizona Court of Appeals ruled last year that DACA recipients are not eligible for in-state college tuition rates.
“[E]ven accepting DACA recipients’ positive societal attributes, Congress has not defined them, or deferred-action recipients generally, as ‘qualified aliens’ who are ‘lawfully present’ and thereby eligible to receive in-state tuition benefits,” the state appellate court ruled.
That decision upended a Maricopa County Superior Court ruling in 2015 that DACA recipients were lawfully present and could receive in-state tuition benefits.
“Federal law, not state law, determines who is lawfully present in the U.S,” Judge Arthur Anderson wrote. “The state cannot establish subcategories of ‘lawful presence,’ picking and choosing when it will consider DACA recipients lawfully present and when it will not.”
Arizona Assistant Attorney General Rusty Crandell told the court Monday that federal law allows Arizona to deny in-state tuition benefits to dreamers.
Under DACA, recipients are given employment documents that allow them to lawfully hold jobs.
"Doesn't that indicate lawful presence?" Timmer asked.
"Work authorization does not always mean lawful presence under federal law," Crandell said. "Work authorization can be granted to aliens who are not lawfully present."
The court did not say when it will issue a ruling.
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