AG Brnovich: Supreme Court's immigration decision may impact lawsuits

Attorney General Mark Brnovich

PHOENIX — The state’s top attorney is reviewing whether a ruling against the Obama administration on his immigration plan this week will help him win one, if not both lawsuits he is fighting.

In a split ruling earlier this week, the U.S. Supreme Court upheld an injunction issued by a federal appeals court in Texas against the president deciding to allow the undocumented parents of U.S. citizens remain in the country if they meet certain other conditions.

While not rendering an actual ruling, the action affirms the conclusion by the Fifth Circuit Court of Appeals that the president lacks such authority.

Arizona Attorney General Mark Brnovich said he considers all that binding on Arizona even though it is governed by a separate federal appellate court. He said Arizona was one of 25 states that joined with Texas in challenging the policy.

Now, Brnovich told Capitol Media Services, he wants to see if that ruling could help him win a lawsuit pending in the state Court of Appeals over the legality of in-state tuition being offered at state universities and community colleges to individuals in the original 2012 Deferred Action for Childhood Arrivals program.

Brnovich said Thursday’s Supreme Court ruling may not help Arizona win its separate claim that the state is entitled to deny DACA recipients — the so-called “Dreamers” — licenses to drive. He said there are separate legal issues involved beyond the president’s authority to enact deferred action programs.

He said, though, it increases the chance the nation’s high court will take up the Arizona case. And Brnovich said that makes whoever is president in 2017 — and whoever that person chooses to fill the court’s vacancy — particularly critical to the future of the Arizona law.

But attorney Tanya Broder of the National Immigration Law Center said she sees no way what the Supreme Court did Thursday will have any effect on either Arizona case.

Broder pointed out the legal issue in that case affected a separate program known as Deferred Action for Parents of Americans. That is aimed at allowing parents of children born in the United States to remain without fear of deportation.

By contrast, DACA was aimed at helping those brought illegally to this country as children. And Broder said both the tuition and driver’s license lawsuits specifically deal with DACA recipients.

Broder also said all the Supreme Court did is uphold the injunction against the DAPA program. She said its legality, and the legality of the actions of the Obama administration, still need a full trial.

The tuition issue is based on a 2006 voter-approved law that someone who is “not a citizen or legal resident of the United States or who is without lawful immigration status is not entitled to classification as an in-state student,” regardless of where they live. The same law denies such students any type of financial assistance that comes from state funds.

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After the Obama administration approved DACA in 2012, the Maricopa County Community College District governing board decided that they are eligible for in-state status. Since then, the Arizona Board of Regents has taken a similar vote, with in-state tuition available to students at Pima Community College.

Tom Horne, then the attorney general, filed suit. He contends — as does Brnovich now — that being accepted into the DACA program is not the same as “lawful status.”

Maricopa County Superior Court Judge Arthur Anderson rejected that argument.

He said the Department of Homeland Security considers DACA recipients to be here legally. And he noted that the agency issues them employment authorization documents permitting them to work, documents that Arizona law says are a form of permissible identification for certain benefits.

“The state cannot establish subcategories of ‘lawful presence,’ picking and choosing when it will consider DACA recipients lawfully present and when it will not,” the judge wrote in the 2015 ruling.

The state Court of Appeals has agreed to review the matter. Brnovich said he is weighing whether to file briefings with that court pointing out what the Supreme Court decided and using that to buttress the state’s claims that in-state tuition is not available.

The other case follows the 2012 decision of then-Governor Jan Brewer to issue an executive order declaring that DACA recipients are not entitled to Arizona driver’s licenses.

Brewer cited a 1996 state law which says licenses are available only to those whose presence in this country is “authorized by federal law.”

She argued the Obama administration really had no authority to permit DACA recipients to remain or work. And what that meant, the governor said, is they were not “authorized to be here.”

In a ruling earlier this year, the 9th U.S. Circuit Court of Appeals rebuffed that contention, saying Arizona was trying to decide for itself who is legally entitled to be in this country.

The three-judge panel also cited a factor not present in the Texas case: the Equal Protection Clause of the U.S. Constitution. They noted the state, in denying licenses to DACA recipients, was still issuing licenses to others in different deferred action programs.

Arizona dreamers have been getting licenses since there was a preliminary order last year. But the case remains on appeal and could be overturned.

Brnovich said he now foresees the issue going to the Supreme Court.