Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 03, 2017
The Court of Appeals hereby passes the following order:
A17D0237. C. DEAN ALFORD et al. v. RIGOBERTO RIVERA HERNANDEZ
et al.
C. Dean Alford and other members of the University System of Georgia’s
Board of Regents (collectively, “Board Members”) filed this discretionary application
for review of a superior court’s order compelling them to grant “in-state tuition
status” to Rigoberto Rivera Hernandez and other non-citizens who qualified to
receive benefits granted by the federal Deferred Action for Childhood Arrivals
program (collectively, “DACA Recipients”). For reasons that follow, this application
is transferred to the Supreme Court of Georgia for disposition.
Denied in-state tuition status on the basis that they did not meet the residency
requirements set forth in the Board of Regents (“BOR”) Policy Manual, the DACA
Recipients petitioned the superior court for a writ of mandamus to compel the Board
Members to correctly implement and give proper effect to OCGA § 20-3-66 (d)1 and
certain BOR rules. The DACA Recipients claimed that, pursuant to DACA, they
were lawfully present in the United States; and that, by refusing to accept such federal
definition of “lawful presence” in determining in-state tuition eligibility, the Board
Members had failed to discharge their public duty.
The Board Members filed a motion to dismiss, asserting, inter alia, that: (i)
DACA’s grant of “lawful presence” was limited to federal immigration matters such
1
(“Noncitizen students shall not be classified as in-state for tuition purposes unless
the student is legally in this state and there is evidence to warrant consideration of in-state
classification as determined by the board of regents. . . .”).
as deportation and conferred no substantive right, immigration status, or pathway to
citizenship; (ii) the BOR was vested with broad powers to determine in-state tuition
eligibility, and the decision to deny in-state tuition status to the DACA Recipients
was authorized by OCGA § 20-3-66 (d), as well as certain BOR rules; and (iii) the
BOR exercises its discretion to “grant[ ] in-state tuition to those ‘legally in this state’
and links its definition to recognized categories of lawful immigration status.”
The DACA Recipients filed a motion for summary judgment, claiming
entitlement to a writ of mandamus.
A primary question thus presented to the superior court by the parties’
dispositve motions was whether, for purposes of determining in-state tuition
eligibility, the federal DACA program foreclosed the state officials’ particular
application of OCGA § 20-3-66 (d) and certain rules upon the DACA Recipients.
The superior court denied the Board Members’ dismissal motion and granted the
DACA Recipients’ summary judgment motion, expressly ruling that the Board
Members were “compelled to . . . apply[ ] the federal definition of lawful presence as
it relates to students who are DACA recipients and to grant them in-state tuition
status.”
It appears, therefore, that the parties’ arguments raised, and the superior court
ruled upon, issues of preemption. In Babies Right Start v. Ga. Dept. of Pub. Health,2
the Supreme Court of Georgia indicated that it has constitutional question jurisdiction
over preemption cases such as this, which implicate the Supremacy Clause of the
United States Constitution.3 In accordance therewith,4 this application is hereby
2
293 Ga. 553 (748 SE2d 404) (2013).
3
Id. at 554 (1) (finding a “preemption argument brings the appeal under [its]
constitutional question jurisdiction”), citing Ga. Const. of 1983, Art. VI, Sec. VI, Par. II
(1) and Ward v. McFall, 277 Ga. 649, 651 (1) (593 SE2d 340) (2004) (noting that the trial
court had explicitly refused to apply a state statute based on its finding that the statute was
inconsistent with a federal regulation, and therefore, in violation of the Supremacy Clause;
explaining that the trial court’s order “[could not] be construed to be anything other than
a declaration that [the statute was] unconstitutional under the Supremacy Clause”; thus
TRANSFERRED to the Supreme Court of Georgia for disposition.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/03/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
determining that the case fell within Georgia Supreme Court’s jurisdiction). See also Toll
v. Moreno, 458 U. S. 1, 10-17 (II) (102 SCt 2977, 73 LE2d 563) (1982); Ariz. Dream Act
Coalition v. Brewer, 818 F3d 901 (9th Cir. 2016).
4
See Saxton v. Coastal Dialysis &c., 267 Ga. 177, 178 (476 SE2d 587) (1996)
(Supreme Court has the ultimate responsibility for determining appellate jurisdiction).