IN THE SUPREME COURT OF THE STATE OF ARIZONA STATE OF ARIZONA, EX REL. ATTORNEY GENERAL MARK BRNOVICH, Plaintiff/Counter-Defendant/Appellant, v. MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD, Defendant/Appellee, ABEL BADILLO AND BIBIANA VAZQUEZ, Intervenor-Defendants/Counter-Plaintiffs/Appellees. No. CV-17-0215-PR Filed May 1, 2018 Appeal from the Superior Court in Maricopa County The Honorable Arthur T. Anderson, Judge No. CV2013-009093 REVERSED AND REMANDED Opinion of the Court of Appeals, Division One 242 Ariz. 325 (App. 2017) AFFIRMED IN PART; VACATED IN PART COUNSEL: Mark Brnovich, Arizona Attorney General, Kevin D. Ray, Section Chief Counsel, Education and Health Section, Rusty D. Crandell (argued), Kevin D. Ray, Assistant Solicitor General, Phoenix, Attorneys for State of Arizona Mary R. O’Grady (argued), Lynne C. Adams, Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for Maricopa County Community College District Board Eileen Dennis GilBride, Georgia A. Staton, Jones, Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Amicus Curiae Pima Community College Julia A. Gomez, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; José de Jesús Rivera, Nathan J. Fidel, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Phoenix; Daniel R. Ortega, Jr., Ortega STATE V. MARICOPA CTY. CMTY. COLL. DIST. BD. Opinion of the Court Law Firm, P.C., Phoenix; Noel Fidel, Law Office of Noel Fidel, Phoenix, Attorneys for Abel Badillo and Bibiana Vazquez Steven A. Ellis, Goodwin Procter LLP, Los Angeles, CA; Laurel Kilgour, Goodwin Procter LLP, San Francisco, CA, Attorneys for Amicus Curiae Year Up, Inc. Andrew S. Gordon, Roopali H. Desai, Coppersmith Brockelman, PLC, Phoenix; Attorneys for Amicus Curiae Year Up, Inc. and Amicus Curiae Arizona Education Association CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE ESPINOSA joined. ∗ CHIEF JUSTICE BALES, opinion of the Court: ¶1 We here consider whether Arizona students granted deferred removal action by the United States Department of Homeland Security (“DHS”) under its Deferred Action for Childhood Arrivals (“DACA”) policy are eligible for in-state college tuition. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). Because Congress has not identified DACA recipients as “lawfully present” for purposes of public benefits eligibility under 8 U.S.C. § 1621, and Arizona has not made in-state tuition available to all citizens and nationals regardless of residence, we hold that DACA recipients are not eligible for in-state tuition in Arizona. I. ¶2 In 2012, DHS initiated the DACA program by exercising its prosecutorial discretion to defer the deportation of certain unauthorized aliens who entered the country as children. The program provided neither long-term authorization to remain in this country nor a path to citizenship, ∗ Justice John R. Lopez IV has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Philip G. Espinosa, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter. 2 STATE V. MARICOPA ...
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