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Mary O'Grady, 011034
Lynne Adams, 011367
Grace E. Rebling, 028661
OSBORN MALEDON, P.A.
2929 North Central Avenue, 21st Floor
Phoenix, Arizona 85012-2793
(602) 640-9000
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Attorneys for Maricopa County Community College District Board
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
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IN AND FOR THE COUNTY OF MARICOPA
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STATE OF ARIZONA ex rel. Attorney
General Thomas C. Horne,
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Plaintiff,
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vs.
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MARICOPA COUNTY COMMUNITY
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COLLEGE DISTRICT BOARD,
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Defendant,
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ABEL BADILLO and BIBIANA
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VAZQUEZ,
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Intervenor-Defendants.
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ABEL BADILLO and BIBIANA
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VAZQUEZ,
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Counter-Plaintiff, )
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vs.
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STATE OF ARIZONA ex rel. Attorney
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General Thomas C. Horne,
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Counter- Defendant. )
No. CV2013-009093
STATEMENT OF FACTS IN
SUPPORT OF MCCCD’S MOTION
FOR SUMMARY JUDGMENT
(Assigned to the Hon. Arthur Anderson)
Defendant Maricopa County Community College District Board relies upon the
following material facts in support of its Motion for Summary Judgment.
Federal and State Immigration Laws
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A.R.S. § 15-1803(B) was enacted in accordance with the federal Illegal
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Immigration Reform and Immigrant Responsibility Act of 1996, which requires only “lawful
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presence” in the United States to qualify for in-state tuition. See A.R.S. § 15-1803(B); 8 U.S.C.
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§ 1623 (attached as Exs. 1 and 2).
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2.
The terms “legal resident,” and “lawful immigration status” as used in A.R.S. §
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15-1803(B) are not defined by state or federal law. Expert Report of Roxana Bacon ( “Bacon
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Expert Report”) ¶¶ 35, 63, (attached as Ex. 3).
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3.
The terms “lawful immigration status,” “legal resident,” “lawfully present” and
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“otherwise lawfully present” are used interchangeably and without meaningful difference in
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applicable state law. E.g., A.R.S. § 15-1825(A) and (B); Ariz. Att’y Gen. Op. I11-007 (entitled
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“Community Colleges: Student Not Lawfully Present in the U.S.”) (attached as Ex. 4); 2/9/07
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letter from Russell Pearce to Bob Bulla (attached as Ex. 5); Proposition 300, Publicity
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Pamphlet at 4 (attached to Bacon Expert Report as Ex. J); Bacon Expert Report ¶¶ 82-87;
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Hearings of House of Representatives’ Appropriations and Education Committees regarding
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S.C.R. 1031 (attached as Ex. 6).
Deferred Action for Childhood Arrivals Program
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4.
DACA recipients are lawfully present in the United States during the period of
deferred action, and DHS has consistently stated so:
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.
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USCIS, Frequently Asked Questions (last updated Jan. 18, 2013) at Qs. 1, 5, 6 (attached to
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Bacon Expert Report as Exhibit I); see also Memorandum from Janet Napolitano, Secretary of
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Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who
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Came to the United States as Children (June 15, 2012) (attached to Bacon Expert Report as
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Exhibit B); Bacon Expert Report ¶¶ 37-47.
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5.
DACA recipients are entitled to receive Employment Authorization Documents.
DHS’s Frequently Asked Questions explains:
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Q3: If my removal is deferred pursuant to the consideration of deferred
action for childhood arrivals process, am I eligible for employment
authorization?
A3: Yes. Pursuant to existing regulations, if your case is deferred, you
may obtain employment authorization from USCIS provided you can
demonstrate an economic necessity for employment.
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USCIS, Frequently Asked Questions (last updated Jan. 18, 2013) at Q 3; Bacon Expert Report
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¶¶ 48-62.
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DACA Students’ Eligibility for Resident Tuition
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Employment Authorization Documents (EADs) are sufficient documentation
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under state law to establish lawful presence and entitlement to public benefits. A.R.S. § 1-
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502(A)(7).
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7.
Because DACA students have EADs, a DACA participant who presents an EAD
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to establish lawful presence is eligible for resident tuition. MCCCD, DACA Frequently Asked
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Questions (attached as Ex. 7).
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DATED this 16th day of May, 2014.
OSBORN MALEDON, P.A.
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/s/ Grace Rebling
Mary O'Grady
Lynne Adams
Grace E. Rebling
2929 North Central Avenue
21st Floor
Phoenix, Arizona 85012-2793
By
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Attorneys for Maricopa County Community
College District
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COPY of the foregoing e-filed and a COPY
e-delivered this 16th day of May, 2014, to:
The Honorable Arthur Anderson
Maricopa County Superior Court
East Court Building
101 W. Jefferson
Phoenix, AZ. 85003-2243
Copy of the foregoing served via Turbo Court
this 16th day of May, 2014, to:
Kevin D. Ray
Leslie Kyman Cooper
Jinju Park
Assistant Attorneys General
1275 West Washington Street
Phoenix, AZ 85007
EducationHealth@azag.gov
Leslie.cooper@azag.gov
Attorneys for the State of Arizona ex rel.
Attorney General Thomas C. Horne
Victor Viramontes
Martha L. Gomez
Mexican American Legal Defense and Educational Fund
634 S. Spring St., 11 th Floor
Los Angeles, CA 90014
VViramontes@MALDEF.org
MGomez@MALDEF.org
Attorneys for Intervenor-Defendants
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Jose de Jesus Rivera
Nathan J. Fidel
Haralson, Miller, Pitt, Feldman & McAnally, PLC
2800 N. Central Ave., Suite 840
Phoenix, AZ 85004
jrivera@hmpmlaw.com
nfidel@hmpmlaw.com
Attorneys for Intervenor-Defendants
Daniel R. Ortega
Ortega Law Firm
361 E. Coronado Rd.
Phoenix, AZ 85004
Danny@ortegalaw.com
Attorneys for Intervenor-Defendants
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/s/ J. Rial
5457828 1
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Exhibit 1
§ 15-1803. Alien in-state student status, AZ ST § 15-1803
A. An alien is entitled to classification as an in-state refugee student if such person has been granted refugee status
in accordance with all applicable laws of the United States and has met all other requirements for domicile.
B. In accordance with the illegal immigration reform and immigrant responsibility act of 1996 (P.L. 104-208;
110 Stat. 3009), a person who was not a citizen or legal resident of the United States or who is without lawful
immigration status is not entitled to classification as an in-state student pursuant to § 15-1802 or entitled to
classification as a county resident pursuant to § 15-1802.01.
C. Each community college and university shall report on December 31 and June 30 of each year to the joint
legislative budget committee the total number of students who were entitled to classification as an in-state student
and the total number of students who were not entitled to classification as an in-state student under this section
because the student was not a citizen or legal resident of the United States or is without lawful immigration status.
Credits
Added by Laws 1982, Ch. 229, § 15. Amended by Laws 2006, S.C.R. 1031, § 3, Proposition 300, approved
election Nov. 7, 2006, eff. Dec. 7, 2006.
Notes of Decisions (3)
A. R. S. § 15-1803, AZ ST § 15-1803
Current through legislation effective April 30, 2014 of the Second Regular Session of the Fifty-first Legislature
End of Document
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
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Exhibit 2
§ 1623. Limitation on eligibility for preferential treatment of aliens..., 8 USCA § 1623
(a) In general
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be
eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit
unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and
scope) without regard to whether the citizen or national is such a resident.
(b) Effective date
This section shall apply to benefits provided on or after July 1, 1998.
CREDIT(S)
(Pub.L. 104-208, Div. C, Title V, § 505, Sept. 30, 1996, 110 Stat. 3009-672.)
Notes of Decisions (4)
8 U.S.C.A. § 1623, 8 USCA § 1623
Current through P.L. 113-92 (excluding P.L. 113-79 and 113-89) approved 3-25-14
End of Document
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
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Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
DA00036
DA00037
DA00038
DA00039
DA00040
DA00041
DA00042
DA00043
DA00044
DA00045
DA00046
DA00047
DA00048
DA00049
DA00050
Exhibit 7