Nils Kinuani v. George Mason University

COURT OF APPEALS OF VIRGINIA Present: Judges O’Brien, Lorish and Senior Judge Annunziata UNPUBLISHED Argued at Alexandria, Virginia NILS KINUANI MEMORANDUM OPINION* BY v. Record No. 0042-22-4 JUDGE MARY GRACE O’BRIEN JANUARY 10, 2023 GEORGE MASON UNIVERSITY FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David Bernhard, Judge Nils M. Kinuani, pro se. David G. Drummey, Special Counsel and Senior Assistant Attorney General (George Mason University Office of University Counsel, on brief), for appellee. Nils M. Kinuani (appellant) appeals the Fairfax Circuit Court’s ruling dismissing his appeal of George Mason University’s (GMU) administrative decision denying him in-state tuition rates for the Fall 2020 semester. Appellant first contends that the court’s decision was “arbitrary and capricious as it does not take into consideration the facts and evidence of the case.” He also asserts that the court “erred in disregarding [his] claim that he also qualifies for in-state tuition rate based upon his pending asylum application.” BACKGROUND Appellant is a non-United States citizen, who immigrated from the Democratic Republic of the Congo in 2010. He was admitted to GMU as an undergraduate student in August 2016 and was classified as an out-of-state student. In May 2020, appellant applied for a tuition * Pursuant to Code § 17.1-413, this opinion is not designated for publication. reclassification for the Fall 2020 semester claiming that he was domiciled in Virginia.1 Appellant proffered that he had a pending asylum application and submitted a copy of his employment authorization card from the Department of Homeland Security reflecting that he was an asylum applicant. He also submitted various documents to support his claim that he resided in Virginia, including a copy of a lease for an apartment in Springfield. GMU denied appellant’s application for tuition reclassification, finding that he was ineligible for domicile review under the State Council of Higher Education for Virginia’s Domicile Guidelines (the SCHEV guidelines) because he did not possess the “legal ability to establish [his] domicile in Virginia based on [his] current immigration status.” GMU cited Addendum A of the SCHEV guidelines, which lists the immigration statuses that are eligible for domicile review. Addendum A states, “Pending asylum claims are not eligible for domicile review.” GMU noted that although a student who had been granted asylum would be eligible to establish domicile under the SCHEV guidelines, appellant’s application for asylum was still pending.2 By statute, an institution must provide an appeal process for students “aggrieved by decisions regarding eligibility for in-state or reduced rate tuition charges.” Code § 23.1-510(A). This appeals process, not governed by the Administrative Process Act, is composed of three 1 Appellant initially applied for a tuition reclassification for the Summer 2020 semester, but, at the suggestion of a GMU administrator, amended his request to pertain to the Fall 2020 semester, due to a new law—Code § 23.1-505.1 (previously Code § 23.1-506(A)(10))—set to take effect on July 1, 2020. This new provision makes certain qualifying students eligible for in-state tuition at a public Virginia university “regardless of their citizenship or immigration status.” …

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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals