Georgia Universities Entitled to Reject Illegal Alien Applicants (Including DACA Recipients)

So holds the Eleventh Circuit, I think quite correctly.

|The Volokh Conspiracy |

From Wednesday's decision in Estrada v. Becker:

[A] Georgia Board of Regents … 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 court concluded that the policy was consistent with federal law, and didn't violate the Equal Protection Clause. That strikes me as quite right, for the reasons the court gave.

I should say that illegally coming to a country strikes me as no serious sin; most people who come here illegally just want a better life, and generally work hard to try to get it. Certainly people who were brought here as children weren't at fault for coming here; and while the law may in essence require them to leave, I can certainly see why it would be a hardship for them to leave what for most is the only country they've known. Breaking the law is illegal (whether it involves criminal entry or merely violating civil immigration restrictions), but it doesn't make it particularly immoral. If circumstances were different, I'd feel little moral compunction about illegally immigrating to a country to improve my and my family's lot in life—not zero moral compunction, but little.

But illegal presence remains illegal presence, even if the President has chosen to exercise his discretion not to enforce the law. The State of Georgia has no obligation, I think, whether under the Constitution or federal law, to spend money to educate people who are illegally here. It may choose to do so, if it thinks that this is the moral or humanitarian or economically wise thing to do; but it has no legal duty to do so, as the Eleventh Circuit holds.

For those who track such things, I should note that the panel consisted of a Ford Court of Appeals appointee, an Obama Court of Appeals appointee, and a Clinton District Court appointee.

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  1. Serious question, how does this square with Prop 187 out of California? The voters of the state of California, in 1994, decided that they didn’t want to educate the children of illegal immigrants. Do we have a circuit split on this matter?

    1. Wasn’t Prop 187 for K-12 schools, and minor children? Maybe that makes a difference, law-wise.

      1. Yes, but the premise is still the same, which is why I was hoping Volokh would weigh in. The majority CA voters decided (right before the demographic transition of CA to a providence of Mexico and South America) that they didn’t want to spend money on illegals, or their minor kids. It was thrown out in federal court very quickly (9th Circuit) and the state didn’t appeal. It was one of those weird times where those with responsibility for enforcing a law try to pretend it doesn’t exist and don’t stand up for it in court.

        Anyway, the moral case is exactly the same.

        1. *province

    2. “The voters of the state of California, in 1994, decided that they didn’t want to educate the children of illegal immigrants.”

      The children of illegal immigrants who were born here are citizens, and selectively stripping their rights of some citizens is a fairly obvious case of unequal protection.

      1. I presume if one could have proven that my kid was born a citizen under the 14th Amendment, then he should/would get an education under 187.

        Wikipedia says that it was a citizenship screening test. So illegals, minors or not, would have got the “no papers, no desk” treatment.

        Policy-wise, maybe a bad call, as you’re creating an uneducated, illiterate in English underclass of non-educated people who won’t even get the rudimentary inculcation of American values that government schools provide. Oh, wait….we already have that I guess.

        1. No, it wasn’t expected to create an uneducated underclass, because other provisions of the initiative were supposed to result in them ending up deported.

          1. To bad it was struck down then, and left to die.

            1. California’s last chance to avoid going down the tubes, probably.

      2. Yes, and IIRC, the children born in America of illegal aliens could be educated, but their parents would be reported to the INS in the mean time.

      3. No they are not. They are not citizens of the US, but of the country their parents came from. That is clear under the 14th Amendment, despite people trying to twist the words to their own end.

        1. Whether they are citizens of wherever their parents came from is up to the laws of that country or countries. The US has no say in the matter. But the 14th amendment explicitly says they are US citizens regardless. Any claim that children born here are not subject to US jurisdiction because of their parents’ status is obvious nonsense.

        2. Under the original understanding of the 14th Amendment, would the US-born children of slaves who were illegally imported after 1808 be citizens or not?

    3. Don’t think it’s a circuit split because the Ninth Circuit never decided the Prop 187 case. The district court in that case didn’t rule based on Equal Protection, but based on a structural/federalism argument that the state was attempting to do an end-run around congress’s power to establish a uniform law of immigration.

      1. Makes sense, thanks. It sounds in line with that decision out of AZ not that long ago.

      2. Too bad for the 187 crowd that they didn’t pass it today, where all the above is apparently AOK.

    4. Mad,
      Yes it creates/furthers a circuit split, but the case would be Arizona Dream Act Coalition vs Brewer, 855 F3d 957 (2017), not the situation you are citing. The 11th Circuit opinion actually distinguished the Prop 187-like scenario which also occurred in Florida.

    5. Prop. 187 wasn’t decided by the 9th circuit, it was decided by the district court, so there’s no circuit split. Even if it were, the original restraining order specifically did not apply to postsecondary education (although the later order did strike down the prohibition on post-secondary education benefits as preempted by 8 U.S.C. ? 1611).

      Since the GA law is consistent with Federal law and seems to be requiring the universities to verify information required to comply with Federal law I don’t think there’s a preemption problem.

  2. Couldn’t they process them for student visas (ceteris paribus of course)?

    1. In general, being in the country illegally is a disqualification for receiving a visa.

    2. They wouldn’t be able to apply for a visa a lot of the time. You have to do it at an embassy or consulate so they’d have to go to their birth country if they have citizenship there (which isn’t always true).

      I’d also expect the interviewer to notice that the student’s grades come from a US school and were therefore staying illegally. That would make them ineligible for a visa in most cases.

      1. That said, I know there are unscrupulous ways that people can get dubious visas, but those are obviously not preferred.

      2. There are circumstances where that would be OK. For example if the person was here legally and their eligibility ran out so they went home before returning or a person was here legally but their eligibility to stay was about the end. Like a child of a diplomat returning home. That may cause the interviewer to inquire further. There may be other situations as well.

        1. That’s almost certainly not the case for most illegal aliens, hence “most cases.”

        2. Sure, and if the illegal presence was fairly short it doesn’t count.

  3. “Ford Court of Appeals ”

    Ford left office 42 years ago. The US median age is 37 so more then half of the population was not even alive.

    Yet, he or she is still deciding public policy. Not good.

    1. Until last year, there was an LBJ appointee still active on one of the CA District Courts…

      1. I think Manuel Real is still on the bench with senior status.

    2. Great! Let’s get RBG off the SCOTUS too.

      Most of her age group are dead already.

      1. Just playing with some numbers.

        RBG is close to having half her age cohort still alive, according to the 2013 Life Tables.

        I pick life expectancy for those who reach adulthood (age 20 is the closest my table will allow me to approximate) on the grounds that children probably will seldom be found sitting on the court.

        That being the case, among non-Hispanic, white females, 49.1% can be expected to live at least to age 85 (again, the closest I can get to RBG’s age of 86).

        She’d be better off if she were Hispanic. Of Hispanic women who make it to age 20, 58.2% will still be alive at age 85.

        So Justice Sotomayor should have a long SCOTUS career ahead of her, if she so chooses. (actually Jewish Americans appear to have about the same life expectancy as Hispanics, but it’s hard to get solid figures).

        And yes, Hispanics /do/ have /substantially/ greater life expectancies than do non-Hispanic whites. Life expectancy at birth for Hispanics (2013 tables) is 81.9. For Hispanic females it is 84.2. Put differently, if American Hispanics were a nation, it would be tied with the Netherlands as the 14th longest-lived nation on earth, whereas the sputtering U.S. overall is only 31st.

        For those few who are still reading this, our first Asian American justice will have a still longer career to look forward to. Asian American life expectancy at birth is 86.3 years. If they were a single nation, they would rank number one in the world in life expectancy.

  4. “I should say that illegally coming to a country strikes me as no serious sin”

    Neither does smoking a little pot; but until it is legalized in my state, and the feds follow the law and remove it from schedule I, I will forgo the pleasure.

    We are talking the law here, not justice.

    1. We are talking the law here, not justice.

      Drove a car today? More than likely you broke a few laws (e.g. speeding, not signaling, etc.). We will all wait here patiently wait while you turn yourself in to the proper authorities.

      1. Your comment makes no sense. Under Longtobefree’s logic, he always drives the speed limit.

        1. You bet your boots, Grannie.
          I can’t afford a ticket or the insurance increase it would bring.
          Since i retired, there is nowhere I have to get by a specific time other than a Dr. appointment, and they are always running late, so I don’t need to speed.

          (and no, I do not go slow in the left lane, I keep to the right in my 15 year old car with 147,000 miles)

          1. Anyway, we geezers get special consideration. I’ve gotten “warning” tickets for entering a traffic circle too close in front of a police car (Carmel, Indiana is “traffic circle city, USA” — you can look it up) and for speeding. In the second case I may have been helped by the fact that my grandkids were in the car and six-year-old darling granddaughter saw the cop and enthusiastically exclaimed “She’s a girl!”

            What could the officer do but give the grands little stickers that looked by badges, making them honorary members of the Carmel police department? Me? She sent me on my way without a badge.

            1. Nice! When my daughter was 6, she got me out of a speeding ticket by loudly saying “He’s handsome!” to the cop who pulled me over. Of course she also embarrassed me in a McDonalds when an Amish man walked in and she loudly said “Look Dad, a wizard!”

      2. Yea, and speeding and illegally entering the country are comparable offenses.

        1. They’re not.

          Speeders cause more harm.

        2. Yes, they are.

    2. “Neither does smoking a little pot; but until it is legalized in my state, and the feds follow the law and remove it from schedule I, I will forgo the pleasure.”

      You’re confusing “sin” with “unlawful behavior”. They’re not interchangeable.

  5. State schools in California discriminate based on legal status in certain circumstances, in that it charges people here illegally less tuition than similarly situated people here legally on student visas.

    1. No, they don’t. Persons in the US illegally do not qualify for in-state tuition unless they graduated from a CA high school after attending a CA high school for three years, or accumulated 3 years of high school credit in 2 years and attended some CA school for 3 years. https://www.ucop.edu/residency/ exemptions-waivers.html

      So, they discriminate based on pre-college residence in the state, not based on legal status.

  6. The State of Georgia has no obligation, I think, whether under the Constitution or federal law, to spend money to educate people who are illegally here.

    What about EPC via Plyer v. Doe?
    The Court found that the Texas law was “directed against children, and impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control”?namely, the fact of their having been brought illegally into the United States by their parents.

    “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

    1. Plyler is discussed in the opinion, though I am surprised it didn’t get more attention. As I read it the court distinguishes Plyler because it denied illiegal immigrant children a basic education, reasoning

      Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of ? 21.031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in ? 21.031 can hardly be considered rational unless it furthers some substantial goal of the State.

      I understand the court’s reasoning to be that being denied matriculation to GSU would not have those same life-changing effects and so rational basis review is appropriate, and the Georgia policy survives that eminently survivable test.

      1. TY for doing that digging.

        That is a pretty brief brush off, especially given the pseudo-animus nature of the Court’s analysis which would apply regardless of the level of burden. But courts gonna do what courts gonna do.

      2. I am not sure I agree with this distinction. My understanding of Plyler is that laws that discriminate on the basis of legal status are subject to intermediate scrutiny. I have also heard this rule is also supported under a theory of preemption, something similar to the dormant commerce clause theory (e.g. the federal government has the ultimate authority to regulate alienage, and the benefits or punishments related to it). I am not sure it is relevant whether the benefit deprived is considered “important” or not important.

        I am not saying I agree with Plyler, but I just don’t see how it can be distinguished in the way the court did.

        1. “My understanding of Plyler is that laws that discriminate on the basis of legal status are subject to intermediate scrutiny.”

          The Court argues that this is an improper reading of Plyler, and a quick review of Plyler seems to support the Court’s position. Plyler admits that illegal immigrants are not a suspect class and that public education is not a fundamental right. It nonetheless applied heightened scrutiny, mostly because of how important the right to public education was in American history and culture (there is also some discussion of the “innocent victims” of the law). The Court notes that the Supreme Court has never extended this heightened scrutiny outside of the public education context. Public college education has never had the same importance in American history and culture, so there is little reason to do so here.

          The Court also notes that Plyler was not a preemption case.

          1. How on earth can you be so correct here but so abysmally wrong in the sanctuary cities litigation? Very strange.

  7. I should say that illegally coming to a country strikes me as no serious sin; most people who come here illegally just want a better life, and generally work hard to try to get it.

    Which is why I would rather hire someone who came here illegally than any so called conservative born in this country. At least they proven themselves unlike most conservatives who just whine continuously that they are somehow being persecuted. Undocumented immigrants know what actual persecution is like.

    1. I can tolerate anybody….But the outgroup.

    2. “I prefer cheap, foreign scab labor.”

      The spirit of Dixie is certainly alive in you.

      1. ah, sh*t, that’s funny Al

    3. You’re a moron.

  8. “I should say that illegally coming to a country strikes me as no serious sin;”

    This is one of those cases where violating a law isn’t necessarily a moral offense, but can still quite justifiably be a legal offense. Not every law has to be malum in se.

  9. The key question is whether or not DACA students are currently “legally present”. The key word in that sentence was “currently”. I think there’s a good argument that there’s a difference between “entered illegally” and “currently legally present” and that DACA moved people from one side of the line to the other.

    All of which would be fundamentally resting on whether or not DACA is a thing that currently exists, which is currently in litigation. If President Trump’s revocation of DACA was legally effective, then none of the DACA kids is CURRENTLY legally present. If the lawsuit comes out the other way, then the kids are arguably present “lawfully” until their DACA term expires, at which point they either need another DACA term, some other form of legal presence, or they go back into the potential-deportee role.

    This problem comes about because the current immigration system is designed and operated, knowingly, with a plainly insufficient deportation mechanism. Either ramp up the number of people who can hear deportation cases, or quit pretending that the huge number of illegals will ever be deported.

    1. Why? DACA doesn’t grant legal status, which the president has no authority to do. It simply prevents certain illegals from being deported.

      1. “Why? DACA doesn’t grant legal status”

        Unless it does.

        ” It simply prevents certain illegals from being deported.”

        A person who can’t be deported has a legal status that allows them to be in the country. QED.

    2. Unlawful Presence and Bars to Admissibility

      Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You may be barred from reentering the United States for:

      3 years, if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings;

      10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or

      Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

      In short, DACA doesn’t help them if they were here illegally prior to it for any significant time. They’re ineligible for visas for at least 3-10 years, and permanently if they try coming back without one.

      1. And, that’s if you pretend that DACA gives them legal status, which it doesn’t even pretend to.

        1. All the more reason to get them their green cards and be done with this nonsense!

          And I’m mostly mad at the Democrats for this. Last December, Donald Trump — bless his pointy little head — actually offered complete legal status for the 1.8 million Dreamers in exchange for an end to chain migration, the “diversity lottery,” (each giving us a system more like Canada’s; and neither to be retroactive, so those in the pipeline would still come in) plus $25 billion for the Wall. Good Lord willing and the creek don’t rise (and Dems don’t shoot themselves repeatedly in their feet), those latter three things could be rescinded two years from now.

          We all know that Trump isn’t to be trusted as a negotiator, but the Democratic leadership didn’t even try. They called that a really, really bad deal and turned it down flat. So compare it with what they got after the draw-out government shut down.

        2. “that’s if you pretend that DACA gives them legal status, which it doesn’t even pretend to.”

          DACA grants them a status that allows them to stay, not subject to deportation. That sounds a lot like “legally present”, doesn’t it? It doesn’t change them to PERMANENTLY legally present, but neither does a student visa.

          If they qualify to get in otherwise, let them in, charge them out-of-state prices, and don’t give them any student aid.

  10. This meeting of libertarian goobers for racist immigration policies is now in session. Carry on, clingers, until your betters put you in a Re-Education and Wokeness facility to cure you of your bigotry.

    1. AK, you are logged into the wrong account.

    2. That sounds like only slightly less fun than a FedSoc / Heritage Society Training Academy.

  11. What other petty administrative violations and misdemeanors will disqualify one from higher public education? Is this the one and only Special Rule in that arena, like we have Special Rules for medical services involving lady parts in some states?

    1. Not registering for a draft we haven’t had in 40 years, and yes I know about a recent legal case.

    2. Policy is moronic doesn’t equal policy is unconstitutional.

  12. They might be coming for a better life, but they’re doing so at our expense.

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