Kuck Immigration Partners Supports Georgia DACA Recipients in Their Right to Receive In-State Tuition in the State of Georgia

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Kuck Immigration Partners stands with Georgia DREAMers as they rally for the right of deferred action recipients to receive in-state tuition.

Charles Kuck Georgia DREAMers Deferred Action Tuition In-State Tuition DACA

Managing Partner Charles Kuck speaking in support of Georgia DREAMers, strongly urging the Board of Regents to grant in-state tuition to deferred action recipients

Securing in-state tuition for these DACA Recipients, who are lawfully present in the United States and entitled to this benefit, is our goal and we are honored to be by their side seeking to achieve it.

On Wednesday morning, July 31, 2013, Kuck Immigration Partners joined Georgia DREAMers and Deferred Action recipients on the steps of the Georgia State Capitol, in a rally to lift the ban on Georgia Deferred Action recipients and students to receive in-state tuition.

Since the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals ("DACA") program, the question has been asked in Georgia by DACA recipients - "Can I know pay "in-state" tuition at Georgia Colleges and Universities?" The question and the answer are simple. However, the Georgia Board of Regents has not allowed all Georgia residents who qualify to get these educational benefits, despite their own policy manual requiring that the Georgia Board of Regents must allow DACA beneficiaries the benefit of paying in-state tuition. This requirement has been in place for the past seven months.

BACKGROUND

In October of 2010, in order to stop actual laws from being enacted on this issue, the Georgia Board of Regents, which is tasked with determining eligibility for in-state tuition, issued a policy which directly affected undocumented students. The Board of Regents declared that all institutions in the University System of Georgia must verify the "lawful presence" of all students seeking in-state tuition rates. Additionally, the Board of Regents stated that any institution that had not admitted all academically qualified applicants in the two most recent years would not be allowed to enroll undocumented students. This rule meant that a student who did not have "lawful presence," regardless of what tuition they paid or their qualifications, would not be allowed to attend the University of Georgia, Georgia Tech, Georgia State University, Medical College of Georgia, and Georgia College & State University, based solely on their not having "lawful presence."

After the Department of Homeland Security released the details on DACA in August 2012, the Board of Regents once again addressed the issue of in-state tuition for DACA eligible students, and decided that they would not be eligible. The issue withe the Board of Regents making that decision was that DHS had not yet considered whether those students had "lawful presence," but had only addressed the issue of "lawful status." The specifics provide a better understanding.

The Board in 2010 adopted the following language:

Georgia Board of Regents Policy Manual - Policy 4.1.6 - Admission of Persons Not Lawfully Present in the United States

"A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons).

At this time, the following institutions fall under Policy
Georgia College and State University
Georgia Health Sciences University
Georgia Institute of Technology
Georgia State University
University of Georgia

Students applying to one of the universities listed above will be required to provide verification of their lawful presence in the United States before their admission to the university can be finalized.

Policy 4.3.4 - Verification of Lawful Presence Policy

Each University System institution shall verify the lawful presence in the United States of every successfully admitted person applying for resident tuition status, as defined in Section 7.3 of this Policy Manual, and of every person admitted to an institution referenced in Section 4.1.6 of this Policy Manual. Any student requesting to be classified as an in-state student for tuition purposes will be required to provide verification of their lawful presence in the United States in order to be classified as an in-state student."

FREQUENTLY ASKED QUESTIONS (From the Board of Regents Web Site)

"What documentation may I be asked to submit?

There are a number of ways for a student’s lawful presence in the United States to be verified. In some instances, the student will not need to submit any additional documentation. For example, if the student completes the Free Application for Federal Student Aid (FAFSA), and the U.S. Department of Education determines that the student is eligible to receive federal student aid, then the student may not need to submit additional documentation as the U.S. Department of Education verifies lawful presence before awarding aid.

In other situations, a student may need to provide documentation of lawful presence, such as a copy of their U.S. birth certificate (certified copy), Georgia driver’s license (issued after January 1, 2008), United States passport, or Permanent Resident Card, as proof of lawful presence. Students should contact their college or university to learn more about what documentation they may need to submit."

The Board of Regents used the term "lawful presence" in its Policy Manual, not the similar and legally distinct term, "lawful status."

Lawful status derives from the fact that someone is in the United States on a specific type of visa (e.g. F-1, H-1B, B-2, L-1), or is a permanent resident of the United States. Congress has given the executive branch a great deal of latitude in allowing people to remain in the United States, and classifies those people who are here and known to the U.S. government as having "lawful presence," even if they do not have lawful status. It is deduced that a person can be lawfully present in the United States and not be in lawful status. This important distinction is to be noted by decision makers when making decisions that affect those in the United States.

The Law on "Lawful Presence"

On January 18, 2013, the Department of Homeland Security updated its "FAQs about Deferred Action" and made it clear that individuals granted DACA are "lawfully present" in the United States, even though they do not have "lawful status." DHS said the following on their FAQ page about Deferred Action:

"Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. 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. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence."

It is seen that DHS has made the distinction between lawful status and lawful presence. The Georgia Board of Regents only requires that a student show "lawful presence" to be eligible to pay in-state tuition. It is undisputed that what defines "lawful presence" is determined by the federal immigration authorities (DHS). It is a specific, legal term of art. It is also seen in DHS' FAQ on Deferred Action that the federal immigration authority (DHS) has decided that DACA beneficiaries are "lawfully present" within the United States.

Only one conclusion can be made from the law as it is written -- DACA beneficiaries in Georgia are legally entitled to pay in-state tuition. Due to this discrepancy between the Georgia Board of Regents and the Department of Homeland Security (DHS), the federal immigration authority, DACA recipients have no choice but to seek relief from the Courts of Georgia. It is asked and supported by law that the Georgia Courts order the Board of Regents to abide by its own policy, and admit DACA students to its colleges and universities and allow them to pay in-state tuition.

Charles Kuck, Managing Partner of Kuck Immigration Partners leads the efforts to secure in-state tuition for these Georgia DREAMers: “These young people, many of whom have high levels of academic achievement in high schools in Georgia, only want to pursue their educational dreams. Securing in-state tuition for these DACA Recipients, who are lawfully present in the United States and entitled to this benefit, is our goal and we are honored to be by their side seeking to achieve it.”

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Rebecca Rees
Kuck Immigration Partners
801-989-5706
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