Case: 17-12668 Date Filed: 03/06/2019 Page: 1 of 27 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-12668 ________________________ D.C. Docket No. 1:16-cv-03310-TWT ELLY MARISOL ESTRADA, SALVADOR ALVARADO, DIANA UMANA, each an individual, Plaintiffs-Appellants, versus MARK BECKER, President of Georgia State University, in his individual and official capacity, STEVE MICHAEL DORMAN, President of Georgia College and State University, in his individual and official capacity, BROOKS A. KEEL, President of Augusta University, in his individual and official capacity, JERE W. MOREHEAD, President of the University of Georgia, in his individual and official capacity, G.P. BUD PETERSON, President of the Georgia Institute of Technology, in his individual and official capacity, et al., Defendants-Appellees. Case: 17-12668 Date Filed: 03/06/2019 Page: 2 of 27 ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (March 6, 2019) Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, * District Judge. TJOFLAT, Circuit Judge: This case is about a Policy1 that the Georgia Board of Regents (“Regents”) set. The Policy requires Georgia’s three most selective colleges and universities to verify the “lawful presence” of all the students they admit. Under the Policy, applicants who received deferred action pursuant to the Deferred Action for Childhood Arrivals memorandum (“DACA Memo”) cannot attend Georgia’s selective schools. Appellants are students who are otherwise qualified to attend these schools, and they filed suit to challenge the Policy. At the heart of their suit is whether they are “lawfully present” in the United States. They say they are lawfully present based on the DACA Memo. Thus, appellants claim the Regents’ Policy is preempted by federal law, and they argue the Policy violates their equal protection rights. The District Court found that appellants are not lawfully present, and it dismissed the suit. * Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation. 1 Technically, there are two separate policies. But because the policies work together, we will refer to them simply as “the Policy” for convenience. 2 Case: 17-12668 Date Filed: 03/06/2019 Page: 3 of 27 After careful consideration of the record, and with the benefit of oral argument, we affirm the District Court’s decision. I. Back in 2012, the Secretary of the Department of Homeland Security (“DHS”) issued the DACA Memo, which encouraged government officials not to enforce federal immigration laws against certain children who came to the United States before age 16. Instead, officials were encouraged to exercise their “prosecutorial discretion” and to focus on higher-priority cases. The DACA Memo explicitly pointed out that it “confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, c[ould] confer these rights.” The DACA Memo simply set forth a policy that would guide officials when exercising discretion. The individuals who meet the DACA Memo’s criteria qualify for what is called “deferred action.” We refer to those individuals who ultimately get deferred action as “DACA recipients.” Under the Regents’ ...
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