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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.”
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.
I’m Oliva Prezas Garces. I am an undocumented student and currently a DACA holder. I was brought here to North Carolina when I was 4 years old. I graduated from high school in 2012 as an honors/AP student. My plan after high school was to attend a four year university and pursue a BS in biology. However, I was not able to follow my plan. All of the universities were rating me as an out-of-state student because of my undocumented status. Most of the scholarships that I could have qualified required US residency, and those that didn’t were very competitive. Financial aid was also not an available option. The possibility of going to college was impossible.
As a result, I did not attend a university. Instead, I am working full time at a factory so I can attend a local community college where I am also charged at the out-of-state tuition rate, even though I graduated from high school here. Last semester, I payed $2600 for 3 classes; that is 3 times more than my high school classmates who are charged at the in-state tuition rate pay. This is unfair because I have lived here almost my entire life. I was raised here. I overcame the challenge to learn english. I gave my academics top priority. My future is here in North Carolina and this is my home.
Attending Vance Granville Community College is a major challenge to me. Everyday, I worry that I will not have enough money to pay the high cost to take classes there. What if I lose my job? Or even worse, what if I don’t graduate on time because I cannot pay my tuition? All of that time, money, and hard work will go to waste.
However, this could all change with the support of Attorney General Roy Cooper. His signature in support of in-state tuition for students like me will change our lives forever. With the stroke of a pen, he can change the direction of my future and the future of North Carolina as there are thousands of others like me. Difference is I will no longer remain in the shadows about my struggle. For 3 months now, we have requested the support of Attorney General Cooper. What is the hold up???
When I was little, I accompanied my mother to the doctor because she broke her leg. My mother was in pain and stressed out. She was missing days of work and getting backed up on paying the bills. The doctor helped my mother and since then, I have known I want to become a doctor because I want to help others the way that doctor helped my mother. Specifically, my dream is to become an Orthopedic Physician’s Assistant. Why is Attorney General Cooper refusing to support students like me? On Saturday, January 11th I will be marching from UNC Chapel Hill to Attorney General Cooper’s office to hold a funeral for my dream. Will you march with me? You can register here: https://docs.google.com/forms/d/1z_NIRtwtgA6E35sEN8jtxeYiMa0kgW9CLugR3EaHmU0/viewform
Thank you for your support!
Hello, my name is Juan Prezas. I am 23 years old and I have been living in North Carolina since I was 9 years old. When my family first moved to North Carolina, I thought everything would change for the better, but it was easier said than done. Learning a new language and trying to fit in was not easy, but I stepped up to the plate.
Throughout my middle school and high school years, my parents always encouraged me to be the best student I could be. I worked hard. But when I graduated from high school, my future was uncertain. My family’s financial situation was unstable, so to help contribute to the household, I opted to work and put my education second. I had to save enough money to attend my local community college. But when I tried to enroll, I was met by bad news: undocumented students were not allowed to attend community colleges or universities without a social security number.
After finding out that I could not go back to school, I worked for another year. All I could do was try to get my mind off my situation, I felt hopeless. I was stuck in a minimum wage job with no possibilities of going to college. I was banned.
It was until 2011 when I returned to my Vance Granville Community College to try to enroll in classes. That year I was allowed to register for classes, but I had to pay out-of-state tuition. The tuition for out-of-state students was and remains nearly four times the in-state tuition cost. When I heard the amount of money that I had to pay to go back to school, I was unsure if going back to school was the right thing to do. The more I though about it, I became convinced that I was unhappy with my job that only paid minimum wage. So, out-of-state tuition and all, I decided to go back to college.
My first semester at my local community college, I paid about 1,900 dollars and my tuition steadily increased as I took more classes each semester. Graduation seems like something out of my reach if I have to continue paying out-of-state tuition. My dream of becoming an engineer has already been deferred. The damage has already been done. But that can change if Attorney General Cooper supports me. The federal government has already allowed me to legally work here and I have a social security number through the DACA program. So, why keep me from attending college and contributing to my state?
On Saturday, January 11th, 2014, I will be joining four other DACA students like me. We will march from UNC Chapel Hill to Attorney General Roy Cooper’s office. Every day he refuses to support students like me, he is killing our futures. The March of Broken Dreams will culminate with a funeral outside of his office. I hope you can be there. But if you can’t, sign and share the petition calling on Attorney General Cooper, the UNC Board of Governors, and the NC Community College System to give DACA students in-state tuition now. Here it is: http://action.dreamactivist.org/northcarolina/instate.
Thank you for your support.
We are meeting with DOT Secretary Tata right now. He has the power to reissue our drivers licenses and has already gotten clarification from Attorney General Cooper on the matter. Why is he holding our licenses hostage? Let him know you stand with immigrant youth!
Call NC Secretary of Transportation Tony Tata RIGHT NOW: 919-707-2800 or 919-707-2834
Sample Script: “Hi, I’m calling to support driver licenses for DACA immigrant youth like Mayra Aguilar who is meeting with Secretary Tata today. Mayra is a young mother and needs to be able to drive without fear. She needs a drivers license and Secretary Tata has a responsibility to keep all of North Carolina safe with licensed and insured drivers. We must put safety over hate politics.”
Let us know what they tell you!