This week, in State ex rel. Brnovich v. Maricopa County Community College District Board, the Arizona Court of Appeals ruled that under Arizona law, students who are beneficiaries of Deferred Action for Childhood Arrivals (DACA) do not qualify for in-state tuition rates at Arizona universities.

Under current federal law, states have some discretion to consider a person’s immigration status to determine whether they qualify for certain public benefits. In 2015, as a middle-ground approach, the Arizona Board of Regents approved a policy allowing non-resident Arizona high school graduates, meeting certain criteria, to pay 150% of in-state tuition rates. However, in 2006 Arizona voters had approved measures, commonly known as Prop 300, that disqualified students “without lawful immigration status” from receiving in-state tuition or tuition waivers.

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Whether a person has “lawful immigration status” for any given purpose can be an incredibly complex determination. This court ruling determined that for the purposes of determining eligibility for in-state tuition in Arizona, DACA recipients do not have “lawful immigration status.”

What is DACA?

DACA is a Department of Homeland Security (DHS) policy that allows for a two-year period of relief from deportation for persons who came to the U.S. as children and are unlawfully present. An approved DACA application does not give a person legal status, but during the two-year period, a DACA recipient who otherwise abides by the law, will not be considered a deportation priority. There is also a process to renew eligibility beyond the two-year period.

What is the difference between DACA and DREAMers?

DACA is a current DHS policy, implemented in 2012. The term “DREAMers” is often used in the media to refer to beneficiaries of DACA. The Development, Relief, and Education for Alien Minors Act or DREAM Act was a law proposed in 2010 that did not pass Congress.

Who qualifies for DACA?

In general, persons age 15 and over who meet the following criteria can apply for DACA:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Note: These are only the general criteria. Each of these criteria has its own set of guidelines and exceptions. For example, determining whether a person had a lawful status or committed “significant misdemeanors” can be complex.

What are the benefits of DACA?

An approved DACA beneficiary can apply for an Employment Authorization Document (EAD). With an EAD, DACA beneficiaries can work legally in the U.S.

If a DACA recipient abides by the law, under most circumstances, DHS will not initiate a deportation action during the two-year period.

A person who is unlawfully present in the U.S. for more than 6 months after the age of 18 may be ineligible to receive a visa or green card in the future. A DACA approval “stops the clock” on this unlawful presence, for immigration purposes. This may help a person who would otherwise be ineligible, to qualify for a visa or permanent residency in the future.

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Can I still apply for DACA?

Yes, DHS is still taking applications for DACA, under the current criteria.

Should I apply for DACA?

You should work closely with a legal professional to decide whether applying for DACA is appropriate, based on your specific situation.

Will I be deported if my DACA application is denied?

The official DHS policy is that “if your case does not involve a criminal offense, fraud, or a threat to national security or public safety, we (DHS) will not refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.”

In other words, it is a possibility that a DACA denial could lead to a deportation action. This is why it is important to seek legal advice prior to filing your application.