Arizona Appeals Court overturns in-state tuition for 'dreamers'

Oscar Hernandez has just one year left before he completes his degree in public policy at Arizona State University.

But his education hit a sudden roadblock on Tuesday when the Arizona Court of Appeals ruled that undocumented students such as Hernandez are not eligible for lower in-state tuition.

The ruling means tuition could more than double this fall for Hernandez and several thousands of students like him currently enrolled in community colleges and state universities in Arizona with protection from deportation known as DACA, or Deferred Action for Childhood Arrivals.

Tuesday's ruling caught Hernandez off-guard. After DACA recipients won the right first to obtain diver's licenses in 2014 and then in-state tuition benefits in 2015, the ruling underscored how Republican-led court battles to revoke those privileges are not over.

"It reminds us of how vulnerable we are with DACA status," said Hernandez, who was brought to the U.S. from Mexico City, Mexico, when he was 9 and has lived in Arizona ever since.

"Now we are sort of backtracking. It feels like with DACA, we were given the opportunity to truly reach for our American Dream, and now with all these state policies and politics there are more hurdles now."

Hernandez said he is determined to finish his degree. He pays for tuition with a scholarship created for students with DACA and with money he earns from an on-campus job. But paying out-of-state tuition could extend the time it takes to graduate by several years.

"Realistically, if I still pay in-state tuition, I could finish within a year," said Hernandez, 20. "If I have to pay double that, it probably will take the next two or three because I wouldn’t be able to take the full 15-credit load. I would have to just take maybe two or three classes at a time, instead of five or more, and that is simply because of finances."

The state appellate court on Tuesday overturned a lower-court judge's 2015 decision that young immigrants known as "dreamers" were considered legally present in the U.S. and therefore qualify for state benefits.

Presiding Judge Kenton Jones wrote that the 2012 Deferred Action for Childhood Arrivals program, signed into law by former President Barack Obama, did not confer that status. He said federal immigration law allows each state to decide on optional benefits for DACA recipients, and Arizona law bars in-state tuition.

The state challenged the tuition breaks in 2013 after Maricopa Community Colleges, Arizona's largest community-college system, allowed dreamers with work permits to pay in-state rates.

Impact on current students

About 240 current DACA students at the state's universities and a little more than 2,000 DACA students in Maricopa Community Colleges are receiving lower, in-state tuition rates. There are nearly 28,000 DACA recipients in Arizona.

Dreamers have been able to receive lower, in-state tuition rates at the state's three universities — Arizona State University, University of Arizona and Northern Arizona University — since 2015. The rates are substantially less than what non-resident students pay. For example, the in-state rate for undergraduate students at ASU is $10,640 this year compared with $26,470 for non-resident students.

At Maricopa Community Colleges, the in-state rate is $86 per credit hour vs. $241 for non-residents.

Karina Ruiz, board president of the Arizona Dream Act Coalition, a group that advocates for young children brought to the U.S. illegally as children, criticized the state for trying to take away in-state tuition from DACA recipients.

Advocate: 'This is all hate'

“This is all hate,” Ruiz said. “There is nothing else. There is no reason for the state to be fighting students that want to get educated. This is wrong. The state should be using the resources and the money and the tax dollars on fighting for things like teachers’ pay instead of fighting kids who just want to go to school.”

The organization is exploring legal options to overturn the Appeals Court ruling so that students with DACA will be able to continue to pay in-state tuition rather than more costly out-of-state tuition.

Ruiz predicted that many DACA students will be forced to drop out of community colleges or the state universities if the ruling stands and they are forced to pay higher out-of-state tuition rates.

Ruiz graduated from ASU in 2015 with a degree in biochemistry. Because she was forced to pay out-of-state tuition, she said it took her 12 years to graduate because she could only take one class at a time.

“Exactly the nightmare that I lived, not being able to go to school and move on with my life, is what is going to happen to other students if this does not get reverted. It’s impossible to afford three times the tuition. There aren’t a lot of scholarships out there. I know a lot of dreamers who are working to afford their tuition and this is going to make it impossible for them.”

Arizona Attorney General Mark Brnovich, who appealed the 2015 ruling, said more than 70 percent of Arizona voters approved Proposition 300, the 2006 law prohibiting in-state tuition rates to students without legal status.

"I am sympathetic to all young adults looking to improve their lives, but as attorney general my job is to defend the law and not second-guess the will of Arizona voters," he said in a statement.

The long road to Tuesday's ruling

The issue of dreamers and tuition has been a controversial one in Arizona.

By approving Proposition 300 in 2006, Arizonans voted to deny in-state tuition rates to students without legal status.

In 2012, Obama created a policy that allows young people brought to the U.S. illegally as children to apply for deportation deferments and work permits. Department of Homeland Security officials have emphasized that work permits granted to people approved for DACA bestow legal presence, but not legal status.

Maricopa Community Colleges took the position that dreamers with work permits were eligible for lower, in-state tuition. Then-state Attorney General Tom Horne sued the colleges in 2013, arguing that the college district violated the state law enacted by voters.

Maricopa County Superior Court Judge Arthur Anderson ruled on that lawsuit in May 2015, saying Arizona law doesn't bar benefits to immigrants lawfully in the country.

Under federal law, the DACA students are lawfully present, he wrote.

"Federal law, not state law, determines who is lawfully present in the U.S. ... The circumstance under which a person enters the U.S. does not determine that person's lawful presence here," Anderson wrote.

That ruling prompted the Arizona Board of Regents, who oversee the state universities, to begin offering lower, in-state tuition to dreamers in 2015.

Regents President Eileen Klein said the regents are reviewing the decision for further developments, including any decisions made by Maricopa Community Colleges.

If Tuesday's ruling stands, DACA students will no longer be eligible for in-state tuition at the universities, Klein said in a statement. However, DACA students may be eligible for a non-resident tuition rate for Arizona high-school graduates. That rate would be 150 percent of undergraduate in-state tuition.

Klein's statement added, "It is imperative that we fight for meaningful federal immigration reform. Chief among those reforms should be the enactment of the Dream Act or similar legislation. The time has come to end the uncertainty that our dreamers live with every day."

Big impact at community colleges

The regents reported in December 2016 that 240 DACA students were enrolled at the state universities: 186 at ASU, 45 at UA and nine at NAU.

Maricopa Community Colleges has 2,056 DACA students, said Matthew Hasson, a college spokesman.

He said college officials are reviewing the Appeals Court ruling with attorneys, and the college's governing board will meet next week in executive session to discuss the matter.

"The Maricopa County Community College District is built on a foundation of providing access to higher education for diverse students and communities, and we continue to be committed to that mission," Hasson said in a statement.

Victor Viramontes, national senior counsel at the Mexican American Legal Defense and Educational Fund, a civil-rights organization, said one legal option may be to file an appeal with the Arizona Supreme Court.

In 2013, MALDEF intervened in the lawsuit, defending the Maricopa Community College's decision to allow students with DACA to pay in-state tuition, arguing they were no different than other people with deportation deferments allowed to pay in-state tuition in the past.

MALDEF also filed a countersuit against the state on behalf of DACA students defending their right to pay in-state tuition.

Viramontes said Tuesday’s Appeals Court ruling applies specifically to students enrolled in Maricopa Community Colleges. He said other community colleges and the state’s three universities will have to review the ruling and decide whether they should follow the decision as well.

At least 20 states offer in-state tuition to some unauthorized immigrant students, many of those by legislative action and some through their state university systems.

The Associated Press contributed to this article.

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