State v. Maricopa Cnty. Cmty. Coll. Dist. Bd., CV-17-0215-PR

• Decision Date: 01 May 2018
• Docket Number: No. CV-17-0215-PR,CV-17-0215-PR
• Parties: State of ARIZONA, EX REL. Attorney General Mark BRNOVICH, Plaintiff/Counter–Defendant/Appellant, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD, Defendant/Appellee, Abel Badillo and Bibiana Vazquez, Intervenor–Defendants/Counter–Plaintiffs/Appellees.
• Court: Arizona Supreme Court

416 P.3d 803

State of ARIZONA, EX REL. Attorney General Mark BRNOVICH, Plaintiff/Counter–Defendant/Appellant,

v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD, Defendant/Appellee,Abel Badillo and Bibiana Vazquez, Intervenor–Defendants/Counter–Plaintiffs/Appellees.

No. CV-17-0215-PR

Supreme Court of Arizona.

Filed May 1, 2018

Mark Brnovich, Arizona Attorney General, Kevin D. Ray, Section Chief Counsel, Education and Health Section, Rusty D. Crandell (argued), Kevin D. Ray, Assistant Solicitor General, Phoenix, Attorneys for State of Arizona

Mary R. O’Grady (argued), Lynne C. Adams, Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for Maricopa County Community College District Board

Eileen Dennis GilBride, Georgia A. Staton, Jones, Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Amicus Curiae Pima Community College

Julia A. Gomez, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; José de Jesús Rivera, Nathan J. Fidel, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Phoenix; Daniel R. Ortega, Jr., Ortega Law Firm, P.C., Phoenix; Noel Fidel, Law Office of Noel Fidel, Phoenix, Attorneys for Abel Badillo and Bibiana Vazquez

Steven A. Ellis, Goodwin Procter LLP, Los Angeles, CA; Laurel Kilgour, Goodwin Procter LLP, San Francisco, CA, Attorneys for Amicus Curiae Year Up, Inc.

Andrew S. Gordon, Roopali H. Desai, Coppersmith Brockelman, PLC, Phoenix; Attorneys for Amicus Curiae Year Up, Inc. and Amicus Curiae Arizona Education Association

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE ESPINOSA joined.^*

CHIEF JUSTICE BALES, opinion of the Court:

¶ 1 We here consider whether Arizona students granted deferred removal action by the United States Department of Homeland Security ("DHS") under its Deferred Action for Childhood Arrivals ("DACA") policy are eligible for in-state college tuition. "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States , 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Because Congress has not identified DACA recipients as "lawfully present" for purposes of public benefits eligibility under 8 U.S.C. § 1621, and Arizona has not made in-state tuition available to all citizens and nationals regardless of residence, we hold that DACA recipients are not eligible for in-state tuition in Arizona.

I.

¶ 2 In 2012, DHS initiated the DACA program by exercising its prosecutorial discretion to defer the deportation of certain unauthorized aliens who entered the country as children. The program provided neither long-term authorization to remain in this country nor a path to citizenship, but it permitted qualified persons to live and work in the United States while they remained in the program. See Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Patrol, Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs., & John Morton, Dir., U.S. Immigration & Customs Enf’t (June 15, 2012).

¶ 3 DACA recipients must apply to DHS for employment authorization documents ("EADs"), and the Maricopa County Community College District Board ("MCCCD") began accepting those EADs as evidence of residency for students to receive in-state tuition. Federal law generally bars granting in-state tuition to students based on state residency when they are not lawfully present in the United States. See 8 U.S.C. § 1623(a). Similarly, Arizona law bars in-state classification of certain students lacking lawful immigration status. A.R.S. § 15–1803(B). (Arizona statutes contemplate reduced tuition for "in-state" university students, A.R.S. § 15–1802, and "resident" community college students, id. § 15–1802.01; we herein use "in-state tuition" to encompass both forms of reduced tuition based on residency.)

¶ 4 In 2013, the Arizona Attorney General filed this action seeking a determination that MCCCD’s policy violates Arizona law and an injunction prohibiting MCCCD from allowing DACA recipients to obtain the in-state tuition rates. Abel Badillo and Bibiana Vazquez ("the Students")—DACA-recipient MCCCD students who receive in-state tuition—intervened. Both MCCCD and the Students filed motions for summary judgment. Without reaching the Students’ constitutional arguments, the trial court granted summary judgment to MCCCD and the Students, concluding that under the relevant federal and state law, DACA recipients are "lawfully present" and therefore eligible for in-state tuition benefits.

¶ 5 The court of appeals reversed the trial court’s ruling and remanded with instructions to enter a judgment enjoining MCCCD from granting in-state tuition to DACA recipients. Two judges agreed that "Congress has not defined DACA recipients as ‘lawfully present’ for purposes of eligibility for in-state tuition," and MCCCD was thus prohibited from granting in-state tuition. State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd. , 242 Ariz. 325, 339 ¶ 46, 395 P.3d 714, 728 (App. 2017). The concurring judge reached the same conclusion under state law. Id. at 344 ¶ 68, 395 P.3d 714 (Norris, J., concurring). The court of appeals also rejected the Students’ constitutional arguments based on preemption and equal protection. Id. at 337–39 ¶¶ 37–45, 395 P.3d 714.

¶ 6 We granted review solely on the issue of whether DACA recipients are eligible for in-state tuition, a legal issue of statewide importance. Previously, we issued a decision order ruling that DACA recipients are not so eligible and stating that a written opinion explaining our decision would follow. This Court has jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 7 This case presents an issue of statutory interpretation, which we review de novo. State v. Jurden , 239 Ariz. 526, 528 ¶ 7, 373 P.3d 543, 545 (2016). "[T]he words of a statute are to be given their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended." State v. Miller , 100 Ariz. 288, 296, 413 P.2d 757, 765 (1966).

¶ 8 In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Pub. L. No. 104–208, 110 Stat. 3009 (1996). As relevant here, IIRIRA provides:

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.

8 U.S.C. § 1623(a).

¶ 9 Section 1623(a) has been interpreted as applying to in-state tuition, and the parties do not dispute that in-state tuition is subject to IIRIRA’s requirements. See Martinez v. Regents of the Univ. of Cal. , 50 Cal.4th 1277, 117 Cal.Rptr.3d 359, 241 P.3d 855, 865 (2010) (applying IIRIRA to in-state tuition and noting legislative history stating that bill language that later became § 1623"provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education" (citation and internal quotation marks omitted) ).

¶ 10 This case turns on the meaning of "lawfully present" as it appears in IIRIRA. We conclude that only those aliens designated as benefits-eligible under 8 U.S.C. § 1621(a) are "lawfully present" for purposes of IIRIRA.

¶ 11 "Lawfully present" is not defined in § 1623(a), but the meaning can be ascertained from the statute’s context. The term "lawfully present" also appears in § 1621, which, like § 1623, governs eligibility for postsecondary education public benefits. There, Congress directly equated aliens "not lawfully present" with those otherwise "ineligible under subsection (a)." 8 U.S.C. § 1621(d). In § 1621(a), Congress provided that only certain categories of aliens are eligible for state and local public benefits: qualified aliens as defined in 8 U.S.C. § 1641 ; nonimmigrants under the Immigration and Nationality Act ("INA"); and aliens paroled into the United States under 8 U.S.C. § 1182(d)(5) for less than one year. Thus, those aliens who do not fall within the categories of § 1621(a) are not "lawfully present" for purposes of state and local benefits. See 8 U.S.C. § 1621(d).

¶ 12 The two statutes are the only ones that use the phrase "lawfully present" in the subchapter of Title 8 concerning eligibility for state and local public benefits, and we construe the same words with only one meaning if possible. See Ratzlaf v. United States , 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ("A term appearing in several places in a statutory text is generally read the same way each time it appears."); State ex rel. Indus. Comm’n v. Pressley , 74 Ariz. 412, 421, 250 P.2d 992 (1952) ("[T]here is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.").

¶ 13 MCCCD argues that we should instead look to the definition of the phrase "unlawfully present" in 8 U.S.C. § 1182(a)(9)(B)(ii) because that is the only definition of "lawfully present" or "unlawfully present" in the INA. That section provides:

For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

8 U.S.C. § 1182(a)(9)(B)(ii). MCCCD contends that because DACA recipients’ stays in the United States are authorized by DHS while they are in the DACA program, they are "lawfully present" under this definition.

¶ 14 But this argument ignores that the INA definition of "unlawfully present" is qualified "[f]or...