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PCC, Horne trade letters over tuition for deferred-action students

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Arizona Attorney General Tom Horne, who has built his political base with hardline rhetoric on illegal immigration, is questioning a move by Pima Community College to grant in-state tuition to students who have been granted "deferred action" status.

PCC has 155 students covered by the tuition policy; the school has 27,000 students. Tuition for an Arizona resident is $786 for a student taking 12 credit hours, while non-resident tuition for 12 credits is $3,948.

Last week, an assistant attorney general sent a letter to Pima officials, asking for an explanation of how the February vote by the college's Governing Board to provide in-state tuition complies with state law.

Gov. Jan Brewer signed a executive order telling state agencies that those covered by deferred action are not considered to have legal status.

PCC attorney Jeff Silvyn replied to the Attorney General's Office on Friday, making the college's case that "proof of lawful immigration status is not required under federal law or (Arizona law) for a student to qualify for in-state tuition."

"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," Silvyn wrote.

The federal Deferred Action for Childhood Arrivals program allows otherwise undocumented young adults who meet certain criteria to be considered "lawfully present" in the country.

DACA, instituted in 2012, is open to immigrants here illegally who came to the United States before age 16, have lived here continuously for the last five years, are in high school or the military – or have completed one of those.

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Immigrants who are approved under the program will not be deported for two years and will get employment authorization documents that allow them to work while they are here. They can reapply for deferral every two years.

Of the 18,449 people in Arizona who had applied as of May, 13,674 had been approved, according to U.S. Citizenship and Immigration Services.

AG's letter

The Oct. 24 letter from Assistant Attorney General Leslie Kyman Cooper:

Re: In-State Tuition to Undocumented Immigrants

Dear Mr. Silvyn:

This office seeks information regarding Pima Community ColLege's practice with respect to granting in-state tuition to undocumented immigrants who have received an I-766 Employment Authorization Document pursuant to the federal Deferred Action for Childhood Arrivals (DACA) program (and who otherwise meet the residency requirements). We understand that the Pima Community College District Board of Governors approved a policy of granting in-state tuition to such persons, and it further appears, based on a review of Pima Community College's website, that it has implemented this policy.

We request that you confirm whether Pima Community College 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. If, in fact, you have implemented this practice, please tell us how many DACA recipients have received in-state tuition benefits.

You should know that Arizona law prohibits community colleges from classifying those who are "not a citizen or legal resident of the United States or who [are] without lawful immigration status" as in-state students for tuition purposes. ARS. § 15-l803(B). Furthermore, according to the United States Citizenship and Immigration Services (USCIS) website, the DACA program does not change a person's immigration status. Finally, Governor Brower also concluded an Executive Order 1012-06 that the issuance of a USCIS employment authorization document pursuant to the DACA program does not confer lawful status.

We would appreciate a response at your earliest convenience, and in no event later than November 1, 2013.

PCC reply

The Nov. 1 reply from Pima:

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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.

Cronkite News Service reporter Emilie Eaton contributed background on the DACA program to this report.


TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Deferred deportation

To be eligible for the Deferred Action for Childhood Arrivals program, a person in this country illegally must:

  • Have come to the U.S. before age 16;
  • Be under age 30;
  • Have lived here continuously for at least five years;
  • Have not been convicted of a felony, “significant” misdemeanor or three other misdemeanors; and
  • Currently be in school, have graduated high school or earned a GED, or served in the military.
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