Students walk between classes on the Locust Walk on the campus of the University of Pennsylvania in Philadelphia, Pa., September 25, 2017. (Charles Mostoller/Reuters)

The Eleventh Circuit confirms: Universities don’t have to accept unauthorized immigrants, including DACA beneficiaries, as students.

At a time when Americans believe immigration to be the most important issue facing the nation, the Eleventh Circuit U.S. Court of Appeals has ruled that Georgia’s state colleges and universities can’t be forced to admit illegal immigrants as students. And that includes aliens who qualified under the Deferred Action for Childhood Arrivals (DACA) program implemented by former president Barack Obama in 2012.


In an opinion handed down earlier this month, a three-judge panel upheld the right of the Georgia Board of Regents, which runs the state-university system, to verify the “lawful presence” of applicants before granting them admission as students to the “more selective schools in the University System.” Selective schools are defined as any Georgia college or university that “did not admit all academically qualified applicants” in the “two most recent academic years.” That applies to at least three state colleges, including the Georgia Institute of Technology, one of the best-known engineering schools in the country.

This policy denies admission to aliens who received “deferred action” under the 2012 DACA memorandum issued by the Department of Homeland Security. That memo provided what amounted to a temporary administrative amnesty to aliens who entered the U.S. illegally before their 16th birthday and met certain other criteria. The government agreed to defer removing DACA beneficiaries from the country under the exercise of “prosecutorial discretion.” But as the court pointed out, the DACA memo specifically stated that DACA recipients “are not considered lawfully present in the United States.”


Despite that qualification, in Estrada v. Becker, three DACA recipients who were denied admission to Georgia colleges filed suit, alleging that the board’s policy is preempted by federal law and violates their right to “equal protection” under the 14th Amendment.

Thus, the lawsuit dealt simultaneously with two important questions: Does DACA actually confer “lawful presence” onto illegal immigrants? And do states have a legal obligation to any illegal immigrants when it comes to a college education?


“Lawful presence” is a classification that designates whether a person who is not a citizen is legally in the United States. It is a status enjoyed by green-card recipients, visa holders, and others.


The plaintiffs in Estrada v. Becker claimed that DACA provides them with lawful presence, but the DACA memo explicitly states otherwise. It also says that it “confer[s] no substantive right, immigration status or pathway to citizenship.”

Under federal immigration law, simply living in the United States for an extended period does not entitle one to lawfully present status — a fact usually overlooked by DACA advocates.

Yet the students argued that the board’s policy conflicts with federal law because it creates a new alien classification. The court disagreed. It concluded that the board’s policy verifies lawful presence based on classifications established by Congress and written into federal immigration law. According to the court, the DACA program grants recipients nothing more than “a reprieve from potential removal.”

Given that no federal statutory authority exists for classifying DACA recipients as lawfully present, the plaintiffs also argued that the constitutional doctrine of preemption (i.e., federal law overrides state law) prohibits states from regulating a policy area that is within the authority of the federal government. Under the Constitution, the power to regulate immigration is exclusively a federal one.



Yet, as noted earlier, the Board’s policy creates no new regulation. It simply uses existing federal immigration statutes to “verify lawful presence, and it does not require a state agent to make any independent determination,” according to the court. DACA confers no residency status onto illegal immigrants and does not prohibit state entities from using existing federal statutes to shape their policies. Thus, there is no preemption.

The plaintiffs additionally alleged that their right to equal protection under the laws is being abridged, since their classification burdens a fundamental right, the right to an education. But as the court pointed out, the Georgia “policy deals with postsecondary education, and the Supreme Court has never said that education is a fundamental right.”

According to the Eleventh Circuit, the plaintiffs “may pursue postsecondary education outside these three schools, and the Policy in no way undermines appellants’ deferred action status.” Lawful-presence checks are rationally related to a government’s interest “in responsibly investing state resources” in residents who are most likely to remain in the state. Thus, states have no obligation to admit illegal immigrants — whether they are DACA-qualified or not — to their university systems.

Outside of Georgia, 18 other states are doing their best to expressly disobey federal immigration law by providing in-state tuition rates to illegal aliens who reside in that state. 8 U.S.C. §1623 prohibits states from providing in-state tuition rates or any other post-secondary benefit to an illegal alien if the same benefit is not available to a citizen of the United States. In other words, states such as California and Texas that provide in-state tuition rates to illegal aliens while charging higher tuition rates to out-of-state students who are citizens are doing so in direct violation of federal law.

Unfortunately, the U.S. Justice Department has never enforced this provision against any state, to the detriment of the public. These states are encouraging illegal immigration and forcing taxpayer parents to subsidize the education of illegal immigrants while disadvantaging students who are citizens.


That is fundamentally unfair.

Hans A. von Spakovsky is a senior legal fellow, and Caleb Morrison is a member of the Young Leaders Program, at The Heritage Foundation. Mr. von Spakovsky is the co-author, along with John Fund, of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.