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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.”

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.

OlivaPrezaspic

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.

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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!

juanprezaspic

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.

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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.

Sunday, December 22nd,  2013

FOR IMMEDIATE RELEASE

CONTACT:

Jose Rico

Jose.rico@thencdreamteam.org

919.802.0508

DREAMers Push for In-State-Tuition by Christmas

Undocumented Youth to Rally Outside AG Roy Cooper 

Raleigh, NC—On Tuesday of last week, Rep. Marcus Brandon formerly requested the Office of the Attorney General Roy Cooper for a legal written opinion weather Undocumented youth beneficiaries of the Deferred Action for Childhood Arrivals (DACA) are eligible to receive in-state tuition in the State of North Carolina.

Undocumented Youth led groups like the NC Dream Team, Immigrant Youth Forum, and the One State One Rate Campaign issued a press conference last Thursday announcing the news to the community and press about the ask to AG Roy Cooper. The campaign to get the word out to the Attorney General has been escalating, with a petition, calls, and undocumented students stressing the importance to get in-state tuition rates for the upcoming semester, but it hasn’t been enough.

Undocumented Students, community supporters, teachers, and families will be gathering at the Office of the Attorney General.

When:

Monday, December 23rd, 2013 @ 11:30am

Where:

NC Department of Justice

Office of the Attorney General

114 W Edenton St

Raleigh, NC

“I am worried, I am frustrated, that when January comes around undocumented students will still be paying out-of state tuition. It is simply unjust. It is simply unfair. We are graduates of N.C high schools. North Carolina is our home and we should not be treated as out-of-state students. Attorney General Roy Cooper, we need in-state-tuition Now!” Said, DACA student from Creedmoor, NC

For more info please visit ncdreamteam.org and OneSateOneRate.org

FB event:  https://www.facebook.com/events/497388493709139/?ref_dashboard_filter=upcoming&source=1

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Secure Your Education Presentation

This SYE Presentation will explain the process for a North Carolina employer to sponsor their NC employee, allowing the employee to pay in state tuition at community colleges.

If you have any questions or would like a workshop in your community, contact us:
dreamteamnc@gmail.com
kenyodair@gmail.com
whhs.rinka10@gmail.com

Title your email: “SYE Question – (Your Name)
or “SYE Workshop – (Your City)”

Honduran Tamales for Sale this Sunday!

Special thanks to Don Becerra, Lagos Meat Market, Homegrown City Farms, Ivan Almonte, La Loma Panaderia, Peluqueria Dalana, and Daniel Teodoro for making this sale possible!

Sign the online petition below to thank the NC House of Representatives for voting in favor of House Bill 786-the RECLAIM NC Act and to ask them to override Governors McCrory’s Veto against it.

http://action.dreamactivist.org/northcarolina/overridemcveto/

HB 786

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The North Carolina DREAM Team is an organization composed of undocumented immigrant youth and allies who are dedicated to the creation of a sustainable, community-led immigrant rights movement in North Carolina. We aim to help undocumented youth recognize their individual and collective power to activate their communities.

 SIGN THE PETITION BELOW:

http://action.dreamactivist.org/northcarolina/fidela/

Call Charlotte ICE @ (704) 248-9605

Call DC ICE @ 202-732-3000 or 202-732-3100

Sample Script: “Hi, I’m calling to ask ICE to stop Fidela Medel Lopez’ (A 200-970-777) deportation. She is the mother of 5 children, two of which are US citizens and one of those, Erick, is a special needs child who suffers from severe autism. Fidela is low priority for deportation and Erick needs a stable home alongside his mother. Deporting Fidela threatens Erick’s health and puts him directly in harm’s way. Stop Fidela’s deportation now!”

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By: José Rico

My name is Jose Rico and I am a Community College student here in North Carolina. In fact, I have been a community college student for the past five years. Why so long? As an undocumented student,  I do not qualify for in-state tuition nor am I eligible to receive any federal financial aid. Wanna know the whole spiel, read it here:

Community Colleges Guidelines PicThe UNC-System also has a similar policy, which you can read here:

UNC-System Undocumented PolicyNow, has it always been this way? The answer is No. At the community college level, the policies for undocumented students has changed five times over the last decade*. At one time, each college adopted each own policy, some of them even banned undocumented students.   Here at the North Carolina Dream Team, we have advocated for educational opportunities and tuition equity since our founding. In fact, our very first action was a hunger strike in May 2010 to push Senator Kay Hagan to co-sponsor the Dream Act. The result? She voted against it.

As of right now, there are 12 states in the Untied States that have their own versions of the Dream Act. North Carolina, is still keeping undocumented students like me in the shadows, and allow schools like Wake Tech to implement policies that are keeping us “at the back of the bus” when it comes to registration. Here is an email sent by the admissions office at Wake Technical Community College:

Wake Tech email 1Wake Tech email 2If you notice, this email was sent to all the students identified by Wake Tech to be undocumented. If you look closely you’ll see that this was sent for the registration period for the Spring of 2013. Classes for the Spring began on January 7th, but the college forces all undocumented students to register a week after classes had begun.  Most of the time this limits us from registering for any math or physics courses or classes for which a professional license will be needed to work at the end of the program of study; like a nursing degree. THESE POLICIES ARE UNJUST, UNFAIR AND DISCRIMINATORY.

We must take a stand, so join us one more time to ask for in-state-tuition to ALL North Carolina students.

Where? Wake Technical Community College, Main Campus,  9101 Fayetteville Road, Raleigh, NC

When? Thursday, August 15th, 2013 @ 2:00pm

NC Dream Team

*As of Monday, August 5th, NCCCS have opted to once again change their policy to allow DACA youth to register at the same time as all the other students; still leaving undocumented youth behind and charging both DACA and non-DACA students out-of-state tuition.

Marco Cervantes and Maria Alejo were arrested about an hour ago at Rep. Mel Watt’s office in Charlotte, NC. The dreamers were at the office supporting the efforts of Norma, mother of Luis Leon who is one of the dream 9 still detained at Eloy Detention Center in Arizona. Norma, Luis’s community and friends are seeking the support of Rep. Mel Watt who has said he supports dreamers in the past. Why is he turning his back on the #dream9 now?

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Marco Cervantes is a dreamer and undocumented youth leader from Chapel Hill, NC.

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Maria Alejo is a dreamer and an undocumented youth leader from Raleigh, NC.

A total of 42 representatives, including Rep. David Price, have endorsed the #Dream9 and have called on President Obama to #BringThemHome and release them from Eloy Detention Center.

Donate & Subscribe

Donate here. Donations help us travel around the state and purchase materials for actions and events. You can also subscribe to our mailing list.

@NCDREAMTeam

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