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The Eleventh Circuit Court of Appeals affirmed that Deferred Action for Childhood Arrivals (DACA) recipients are not entitled to enroll in certain Georgia colleges and universities that bar those without “lawful presence.” The Court ruled that the DACA program does not confer lawful presence on recipients, and that Georgia’s admissions bar does not violate a DACA recipient’s right to equal protection.

Georgia Board of Regents policy prohibits those “who [are] not lawfully in the United States” from enrolling in the University of Georgia, Georgia Tech or Georgia College & State University unless those institutions enrolled all of their academically qualified applicants for the previous two years.

In 2016, three DACA recipients filed a federal lawsuit challenging the state’s policy. They argued that they are lawfully present under federal law, which preempts state law, and that the admissions bar is unconstitutional since it treats DACA recipients differently than aliens who are paroled into the U.S. or granted asylum. A district judge in Atlanta rejected their claims in 2017. The plaintiffs appealed his ruling to the 11th Circuit Court of Appeals, which upheld it.

The 11th Circuit’s opinion, which closely tracks a friend-of-the-court brief the Immigration Reform Law Institute (IRLI) filed in the case, determined that DACA recipients are “inadmissible and thus removable” under federal law. “As DACA recipients, they simply were given a reprieve from potential removal; that does not mean they are in any way ‘lawfully present’ under the [Immigration and Nationality] act,” the ruling said. “The Regents could have decided to prioritize those students who are more likely to stay in Georgia after graduation, and the Regents might have decided that DACA recipients are less likely to do so because they are removable at any time. That is, the Regents could have reasonably concluded that it would be unwise to invest state resources in DACA recipients.”

Since the court held that DACA recipients are not lawfully present, it did not apply “strict scrutiny” to Georgia’s admissions policy under the Equal Protection Clause of the Constitution. Instead, the court upheld the policy as rationally related to a legitimate state interest.

Commenting on the ruling Dale Wilcox, executive director and general counsel of IRLI, said “This is an important decision. On many fronts, open borders legal groups have been using DACA recipients to try to blur the distinctions between citizen and noncitizen and between legal aliens and illegal aliens. In blurring those distinctions, they blur the very border of our country, and begin rubbing out the notion that the United States is fully a sovereign nation. Today’s decision is a major check on that effort, and I expect it will reverberate across the national legal landscape.”

The ruling could have implications for whether states can issue driver’s licenses to DACA recipients. For states that issue licenses to DACA recipients but not other illegal aliens, issuance is based on lawful presence. That means that issuance can be challenged, at a minimum, in states within the jurisdiction of the 11th Circuit.

Updated: Thu, Mar 7th 2019 @ 5:54pm EST