To: Office of the Attorney General

From: Elizabeth Simpson, Attorney & the N.C. DREAM Team

Date: January 9, 2014

Re: In-state tuition for DACA beneficiaries

I. Background on the Deferred Action for Childhood Arrivals (DACA) Program

On June 15, 2012, President Barack Obama announced the creation of a new legal program called Deferred Action for Childhood Arrivals (“DACA”). Administered by the U.S. Citizenship and Immigration Services (“USCIS”), an agency of the U.S. Department of Homeland Security (“DHS”), DACA grants an indefinitely renewable legal permission to remain in the United States to children who were brought to the United States by their parents at a young age and have proven their integration into society by attending or graduating high school. The USCIS began formally accepting DACA applications on August 15, 2012. In order to qualify for DACA, an applicant must generally meet the following requirements:

a) Under the age of 31 as of June 15, 2012;

b) Moved to the United States before his 16th birthday, and has continuously resided in the United States since before June 15, 2007;

c) Was physically present in the United States, with no lawful immigration status, on June 15, 2012;

d) Is currently in school, or graduated from a U.S. high school; and

e) Has not been convicted of any one of a long list of disqualifying crimes, and does not represent a danger to public safety.

Although DACA is a new program, DACA is but one form of deferred action, which has a long history in U.S. immigration law. (Indeed, John Lennon was famously granted deferred action in 1975, see Lennon v. INS, 527 F.2d 187, 190-91 (2d Cir. 1975)). The executive’s power to grant deferred action stems not from any particular statutory authorization, but rather from the executive’s inherent power to exercise discretion in its immigration enforcement activities. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999). Nonetheless, the category of deferred action is recognized and referred to in various places in the U.S. Code, including 8 U.S.C. §§ 1151, 1154, and 1227, and 49 U.S.C. § 30301.

Likewise, various sections of the Code of Federal Regulations recognize that deferred action beneficiaries are deemed lawfully present for most purposes under federal law. See, e.g., 6 C.F.R. § 37.3 (defining “approved deferred action status” as “lawful status” for the purpose of federal REAL ID drivers’ licenses); 8 C.F.R. § 1.3(a)(4)(vi) (defining any “[a]liens currently in deferred action status” as an “alien who is lawfully present in the United States” for the purposes of applying for Social Security benefits); 8 C.F.R. § 274a.12(c)(14) (listing “[a]n alien who has been granted deferred action” as one of the “[c]lasses of aliens authorized to accept employment”); 20 CFR § 416.1618(b)(11) (listing “[a]liens granted deferred action status” as “permanently residing in the United States under color of law” (emphasis added)); 45 C.F.R. § 152.2(4)(vi) (defining “[a]liens currently in deferred action status” as “lawfully present”).

DACA beneficiaries (i.e. ,individuals who apply for and are granted DACA) are given legal permission by the U.S. government to remain in the United States for a two-year period, indefinitely renewable. The DACA program contains no end date or sunset clause, nor can a DACA beneficiary age-out of coverage under the program, nor is there any limit on the number of times that a beneficiary might renew her DACA. In other words, as long as a DACA beneficiary keeps renewing her DACA every two years, she has every expectation of being able to legally remain in the United States permanently, with no legal obligation ever to return to her country of origin. DACA beneficiaries are also granted employment authorization by the U.S. government, which gives them the legal permission to work in the United States. They are also eligible to obtain a Social Security number and apply for Social Security benefits. See http:// http://www.dhs.gov/deferred-action-childhood-arrivals#0

II. Some Quick Facts About DACA Beneficiaries

• As of September 2013, about 19,876 students had applied for DACA from the State of North Carolina. Over 15,000 had been approved. See http:// http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/ Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca-13-9- 11.pdf

• More than 2/3 of DACA applicants arrived in the United States when they were under 10 years of age. http://www.huffingtonpost.com/2013/08/16/deferred- action-applicant_n_3769083.html

• About 72% of DACA applicants had resided in the United States at least 10 years when they applied http://www.huffingtonpost.com/2013/08/16/deferred-action- applicant_n_3769083.html

III. DACA Beneficiaries Can Form the Intent to Stay in North Carolina

By law, North Carolina public colleges and universities grant in-state tuition status to North Carolina domiciliaries. N.C.G.S. 116-143.1(b). “Domicile is one’s permanent, established home as distinguished from a temporary, although actual, place of residence.” Norman v. Cameron, 127 N.C.App. 44, 49 (1997); see also N.C.G.S. 116-143.1(c). A domicile is the place where one makes one’s home.

Currently, North Carolina’s colleges and universities apparently assume (without statutory basis) that neither undocumented immigrants, nor DACA beneficiaries, have the “capacity” to form the requisite intent to become domiciliaries of North Carolina—presumably because these students may be at risk of deportation in the future, which would disrupt their future residence in the State. However, this notion misapprehends the degree of certainty traditionally required for domiciliary intent. “It is not necessary that [a student] should have the intention of always remaining, but there must coexist the fact and the intention of making it his present abiding place, and there must be no intention of presently removing.” Lloyd v. Babb, 296 NC 416, 446 (1979). The idea of remaining in the location “permanently” should not be “taken literally”—because of the myriad controllable and uncontrollable intervening events that may disrupt any person’s intentions regarding the place where she makes a home—whether or not she is an immigrant. Id.

DACA students, with their indefinitely renewable lawful presence, are more than capable of forming the subjective intent to stay and make their home in North Carolina. They are quite dissimilar to holders of unexpired B (tourist), J (exhange program), or C (transit) visas, for instance—persons who have been in the United States only a short period of time, and who have explicitly promised to return to a foreign home on a fixed date. In contrast, DACA beneficiaires are—by definition—immigrants who have grown up in the United States, have attended high school in the United States, and who have expressed an explicit intention to remain in the United States indefinitely. Moreover, the federal government has granted DACA beneficiaries permission to fulfill this intention.

IV. For Purposes of In-State Tuition, DACA Beneficiaries Are Indistinguishable from TPS Beneficiaries

Furthermore, DACA beneficiaries are extraordinarily similar to beneficiaries of another federal immigration program: Temporary Protected Status (TPS)—and North Carolina already permits TPS beneficiaries to demonstrate that they are domiciliaries of the State. See Memorandum of State Residence Committeee (Dec. 11, 2012). There is no legal basis under North Carolina or federal law to distinguish between TPS beneficiaries and DACA beneficiaries.

Also administered by USCIS, TPS grants an indefinitely renewable legal permission to remain in the United States to nationals of certain countries that suffer from unsafe conditions, such as El Salvador, Honduras, and South Sudan. TPS beneficiaries are granted legal permission to stay in the United States for a period of six to eighteen months, indefinitely renewable. Like DACA, the TPS program contains no end date or sunset clause, nor can a TPS beneficiary age-out of coverage under the program, nor is there any limit on the number of times that a beneficiary might renew her TPS. TPS beneficiaries are granted employment authorization, which gives them legal permission to work in the United States. They are eligible to obtain a Social Security number and apply for Social Security benefits. See http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status.

DACA beneficiaries and TPS beneficiaries both apply for recognition on nearly identical forms (Form 821 v. Form 821d). Both are groups of individuals that the United States could lawfully choose to deport—but has explicitly chosen to give permission to stay. Therefore, both DACA beneficiaries and TPS beneficiaries can reasonably expect to lawfully remain in the United States indefinitely. There is no reasonable distinction between the two groups under North Carolina’s law of “domicile.”

V. Conclusion

The Attorney General should interpret North Carolina law consistent with traditional common law concepts of domiciliary intent, and consistent with the State’s December 2012 determination to grant in-state tuition to TPS beneficiaries who are otherwise eligible.

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