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Arizona Attorney General’s Office Questions PCC Over In-State Tuition for DACA Students

November 1, 2013

 College’s response: PCC ‘committed to upholding the laws of Arizona’

Tucson, AZ – The Arizona Attorney General’s Office has asked Pima Community College to explain its decision to grant in-state tuition to undocumented immigrants under the federal Deferred Action for Childhood Arrivals program.

In a letter to PCC dated October 24, Assistant Attorney General Leslie Kyman Cooper requested that the College confirm that it “is granting in-state tuition to DACA recipients with an I-766 Employment Authorization Document, and provide us with the basis for Pima Community College’s conclusion that it could do so without violating state law.”

In a letter sent to the Attorney General’s Office on November 1, General Counsel Jeffrey Silvyn confirmed that PCC is granting in-state tuition to DACA recipients following the Governing Board’s vote in February.  “As always, Pima College is committed to upholding the laws of Arizona, as well as local and federal laws and regulations,” PCC’s letter states.

Below is the text of PCC’s response to the Attorney General’s Office. Read the letter to PCC from the Attorney General’s Office.

Leslie Kyman Cooper
Education Unit Chief
Office of the Arizona Attorney General
1275 W. Washington St.
Phoenix, AZ 85007-2926

Re: In-State Tuition at Pima College

Dear Ms. Cooper:

We appreciate this opportunity to provide information regarding the Pima County Community College District (“Pima College”) policy on tuition for students participating in the Deferred Action for Childhood Arrivals (DACA) program.  On February 27, 2013, the Pima College Board of Governors adopted a policy that allows DACA students to receive in-state tuition provided they submit an I-766 employment authorization and otherwise meet residency requirements.

The policy became effective for the fall 2013 semester.  Of the nearly 27,000 students who enrolled at Pima College for the fall 2013 semester, 155 are DACA participants.

Pima College adopted its policy after careful review of legal authorities.  A.R.S. § 1-502 provides that a political subdivision of the state, such as a community college district, shall require individuals to submit proof of lawful presence in the United States before receiving a public benefit like in-state tuition.  The statute specifies acceptable forms of proof, including a United States Citizenship and Immigration Services (USCIS) employment authorization document, I-766, that DACA participants may receive.  The USCIS frequently asked questions portion of its web page on DACA states:

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.

Students in the DACA process have lawful immigration presence under the controlling federal law and can meet the state law documentation requirement for receiving in-state tuition.  See 8 U.S.C. § 1623; A.R.S. § 1-502.

Pima College understands that participation in DACA does not confer lawful immigration status.  However, proof of lawful immigration status is not required under federal law or A.R.S. § 1-502 for a student to qualify for in-state tuition.

As noted in your letter, A.R.S. § 15-1803 provides that individuals without “lawful immigration status” are not entitled to receive in-state tuition.  However, this provision also states that the restriction is “in accordance with the [federal] illegal immigration reform and responsibility act of 1996.”  That act allows states to limit education benefits for persons without “lawful presence” and does not use the term “status.”  8 U.S.C. § 1623.  In order for the Arizona law to achieve its stated intent of conforming to controlling federal immigration law, the most appropriate reading is that the definition of lawful presence should be used.  This interpretation is further supported by the legislative history for the Arizona law and other provisions of Arizona law which use “presence” and “status” interchangeably.  See e.g. A.R.S. § 15-1825; Rep. Russell Pearce letter to Regent Bob Bulla, Feb. 9, 2007.

Pima College is aware that the Arizona Attorney General disagrees with a similar tuition policy and interpretation of law followed by the Maricopa County Community College District. We continue to monitor the litigation filed by your office to resolve that difference, recognizing its significance for the Pima College policy.  State v. Maricopa County Community College District Board, CV2013-009093.  Pima College will continue to track the progress of the pending litigation, as well as developments in federal immigration legislation that may address and resolve this issue.

As always, Pima College is committed to upholding the laws of Arizona, as well as local and federal laws and regulations. We hope that this letter has adequately addressed your questions.  If additional information would be helpful, we would be glad to discuss the matter further.

Sincerely,

Jeffrey S. Silvyn
General Counsel

Via email: leslie.cooper@azag.gov

Bcc: Chancellor Lee Lambert,
Board of Governors

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CONTACT:
C.J. Karamargin
Vice Chancellor for Public Information and Federal Government Relations
(520) 206-4850
ckaramargin@pima.edu