Appeals Court Rules Against Immigrants Over In-State Tuition

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Supporters of Deferred Action for Childhood Arrival program (DACA) demonstrate on Pennsylvania Avenue in front of the White House in Washington, Saturday, Sept. 9, 2017. / The Associated Press

Immigrants who have been granted temporary status to stay in the U.S. will have to keep paying out-of-state tuition after an appeals court ruled against them, saying state colleges and universities in Georgia aren't required to let them pay in-state tuition.

Georgia's state colleges and universities require verification of "lawful presence" in the U.S. for in-state tuition. The Board of Regents has said students with temporary permission to stay under a 2012 program known as Deferred Action for Childhood Arrivals, or DACA, don't meet that requirement.

A group of young immigrants who meet all the other requirements and who have been granted deferred action status filed a petition in April 2016 in Fulton County Superior Court asking a judge to order the university system to allow them to pay in-state tuition.

Charles Kuck, a lawyer for the young immigrants, had argued that the U.S. Department of Homeland Security has said beneficiaries of that program are considered "lawfully present."

Lawyers for the university system rejected that argument, saying the statement about lawful presence appeared in an FAQ section of the department's website and not as an official policy or regulation.

Fulton County Superior Court Chief Judge Gail Tusan in January sided with the students and ordered the university system to allow the students to pay in-state tuition if they otherwise qualify. Enforcement of her order was put on hold while the state appealed.

The Georgia Court of Appeals on Tuesday reversed that ruling.

The appeals court opinion said the DACA policy and website FAQ do not constitute an enforceable federal law that designates those immigrants as being "lawfully present." There is also no indication that state law or the university system's policies require that DACA recipients be granted in-state tuition because they are designated as "lawfully present," Judge Clyde Reese III wrote.

Kuck said he's disappointed by the appeals court's decision and his clients plan to appeal to the Georgia Supreme Court.