Alford v. Hernandez, A17A1124

• Decision Date: 24 October 2017
• Docket Number: A17A1124
• Citation: 807 S.E.2d 84,343 Ga.App. 332
• Parties: ALFORD et al. v. HERNANDEZ et al.
• Court: Georgia Court of Appeals

343 Ga.App. 332

807 S.E.2d 84

ALFORD et al.

v.HERNANDEZ et al.

A17A1124

Court of Appeals of Georgia.

October 24, 2017

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Russell D. Willard, Senior Assistant Attorney General, Josiah B. Heidt, Assistant Attorney General, for appellants.

Kuck Immigration Partners, Charles H. Kuck, for appellees.

Reese, Judge.

In this mandamus action, C. Dean Alford and other members of the University System of Georgia's Board of Regents (collectively, "Appellants") seek review of a superior court's grant of summary judgment to Rigoberto Rivera Hernandez and other undocumented immigrants (collectively "Appellees"). Each of the Appellees are Georgia residents who have been granted limited protection from deportation under the Deferred Action for Childhood Arrivals ("DACA") policy established by the United States Department of Homeland Security ("DHS") in 2012. The Appellees' petition for a writ of mandamus sought an order from the court compelling the Appellants to deem the Appellees eligible for "in-state tuition benefits" while the Appellees are enrolled in Georgia's public universities and colleges. On appeal from the superior court's order, the Appellants contend that the court erred in granting summary judgment to the Appellees and in denying their motion to dismiss the petition, arguing that the court erred in finding that, under DACA, the Appellees were "lawfully present" in the country as a matter of law and, therefore, the Appellants were required to offer them in-state tuition. They also contend that the court incorrectly applied the standard for granting a writ of mandamus and that the court should have dismissed the Appellees' claims because they were barred by official immunity. For the reasons set forth infra, we reverse the superior court's grant of summary judgment to the Appellees. We also reverse the court's denial of the Appellants' motion to dismiss.

Viewed in the light most favorable to the Appellants, as the party opposing the grant of summary judgment,¹ the record shows the following undisputed facts.

A. The DACA Policy

In June 2012, the DHS Secretary issued a memorandum to various federal agencies tasked with enforcing the country's immigration laws, announcing the establishment of the DACA policy.² The memorandum explained that certain undocumented immigrants who came to the United States before the age of 16 and who met other specific requirements would be able to apply for deferred deportation under DACA. If their applications were approved, they would receive limited protection from deportation for a two-year period, subject to renewal if they continued to meet DACA's requirements. According to the memorandum, the limited protection from deportation provided by DACA was based upon the DHS's exercise of prosecutorial discretion in prioritizing its use of immigration enforcement resources,³ explaining that the undocumented immigrants who met DACA's criteria were "low priority cases" when compared to others who were subject to deportation. The memorandum emphasized that DACA conferred to the recipients "no substantive right, immigration status or pathway to citizenship," explaining that "[o]nly the Congress, acting through its legislative authority, can confer these rights."⁴

The DHS's Office of Citizenship and Immigration Services ("USCIS") subsequently published a Frequently Asked Questions ("FAQ") page on its website that provided a more detailed explanation of DACA, the application process, and related issues. According to the website, DACA offered recipients "[d]eferred action," which it defined as "a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion," adding that "DHS can terminate or renew deferred action at any time, at the agency's discretion." Further, the website stated that the grant of deferred action could affect a future determination of whether a recipient had been "unlawfully present" in the United States.⁵

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 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 periods of unlawful presence.

The website notified DACA program participants that

[t]he fact that you are not accruing unlawful presence does not change whether you are in lawful [immigration] status while you remain in the United States. However, ... your period of stay is authorized by the [DHS] while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.

In addition, the website stated that, "[a]part from the immigration laws, ‘lawful presence,’ ‘lawful status' and similar terms are used in various other federal and state laws," and recommended that, "[f]or information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities."

Finally, in October 2015, the Secretary of the United States Department of Education sent a "Key Policy Letter" to the leaders of colleges and universities to provide information about DACA. According to the Secretary, while federal law did not prohibit the admission of undocumented students to postsecondary educational institutions or require the institutions to determine a student's citizenship or immigration status, individual states might have laws or policies relevant to these issues. Similarly, while undocumented students were not eligible for federal student financial assistance, they might be eligible for state, institutional, and private student aid. The memorandum specifically stated that, while DACA recipients "may be eligible to receive in-State tuition under State law for their enrollment in public postsecondary educational institutions," that determination "depends on State law and policies."⁶

B. Procedural Background of the Instant Case

In April 2016, the Appellees filed a petition for a writ of mandamus, asserting that the Appellants⁷ had improperly denied them "in-state tuition" status, even though they met the residency requirements set forth in the policy manual of the Board of Regents ("Board"). Specifically, the Appellees claimed that, as DACA recipients, the federal government considered them to be "lawfully present" in the United States and that the Appellants had failed to discharge their duty when they refused to accept this classification when determining whether the Appellees were eligible for in-state tuition. The Appellees asked the superior court to issue a writ of mandamus to compel the Appellants to comply with OCGA § 20-3-66 (d)⁸ and Board Rules 4.3.4 and 7.3.1.1,⁹ and to "fully and correctly implement" the Board's in-state tuition standards by finding that they were "lawfully present" and, thus, qualified for in-state tuition.

The Appellants filed a motion to dismiss, arguing several substantive grounds, including that a writ of mandamus would only lie when a public official had a "clear legal duty" to perform in a specific manner and that the DHS's statement that DACA recipients would be deemed "lawfully present" for federal immigration purposes did not create a clear legal duty requiring the Appellants to classify the Appellees as in-state residents for tuition purposes. The same day, the Appellees filed a motion for summary judgment, arguing that they had

petitioned and been approved for [DACA], giving them "lawful presence" in the United States. The [Appellants] have continued to use an incorrect definition of federal law to bar [them] from paying in-state tuition, despite the federal government unequivocally stating that DACA beneficiaries do have "lawful presence" in the United States.

The Appellees argued that "lawful presence" was a "legal term ... defined by federal law"; that "the responsibility to determine lawful presence [was] singularly held by the federal government"; and that "[w]hether a student [had] ‘lawful status' [was] irrelevant" to the determination of whether a student met the residency requirement for in-state tuition. Thus, claiming that they met the requisite "lawful presence" requirement, the Appellees asserted that they were entitled to in-state tuition and mandamus relief.

The superior court held a hearing on the parties' motions,¹⁰ then entered an order on December 30, 2016, denying the Appellants' motion to dismiss and granting the Appellees' motion for summary judgment. The court ruled that

the federal government has made clear that DACA recipients are lawfully present in the United States. The Board of Regents has a policy which requires lawful presence in the United States in order to receive in-state tuition status. The Board of Regents refuses to accept the current lawful status that [the Appellees] have been granted. Under the facts asserted in [the Appellees'] complaint this constitutes [the Appellants'] failure to perform a clear legal duty.¹¹

The court referred to the designation of the DACA recipients as being "lawfully present" in the United States as a "clear and unambiguous standard" that the Appellants were required to adopt as the definition of "lawful presence" in the Board's official policy. Consequently, the court found that the Appellees were entitled to mandamus relief as a matter of law, and compelled the Appellants "to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA recipients and to grant them in-state tuition status." This appeal followed.¹²

C. Appellate...