PHOENIX -- The state's top prosecutor intends to pursue his lawsuits challenging benefits for "dreamers'' even as the president has given Congress six months to fix the program or have it start to go away.
Mark Brnovich told Capitol Media Services that what the Trump administration announced Tuesday could make the entire issue moot.
On one hand, he said, if Congress passes a legal replacement for Deferred Action for Childhood Arrivals, then the nearly 28,000 who have been accepted into the program get the legal status they need to have a state-issued driver's license and get in-state tuition at colleges and universities.
Conversely, Brnovich said if Congress falters, then DACA begins to self-destruct in March -- as does any legal basis for those in the program to claim they are entitled to be here and get certain benefits.
But in the interim, he said, the cases continue.
"My job as attorney general is to enforce the law as it is, not as I want it to be,'' he said.
"I hope Congress comes up with a solution to address the DACA issue,'' Brnovich continued. "But until we do, we have to proceed accordingly as a state.''
That's also the position of former state Senate President Russell Pearce.
He told Capitol Media Services Tuesday he intends to sue members of the Arizona Board of Regents personally if Brnovich does not bring a new lawsuit against them by Saturday. He said whatever Congress does about dreamers does not excuse the fact board members allowed DACA recipients to pay less in tuition than he says a 2006 voter-approved law allows.
Among the cases pending is Brnovich's request that the U.S. Supreme Court allow Arizona to rescind the driver's licenses that a federal appeals court ordered the state to provide to DACA recipients. Brnovich told the justices that the 2012 decision by President Obama to create DACA is not federal law but merely a directive to allow those who arrived in this country illegally as children to remain and be able to work. What that means, he said, is DACA recipients have no legal immigration status.
What makes that important, he said, is a 1996 Arizona law which says licenses are available only to those whose presence in this country is "authorized by federal law.''
That argument failed to convince federal appellate judges who said Arizona cannot decide for itself who is legally entitled to be in the country.
Jennifer Chang Newell, an attorney with the American Civil Liberties Union, said the best thing for the Supreme Court to do would be to reject Brnovich's request for review.
She said no court has ever concluded that DACA is illegal.
"But even if it was, the announcement today about the administration's decision to end the program only strengthens the conclusion that the case is not worthy of the Supreme Court's attention,'' Newell said. "The program that Arizona is complaining about is coming to an end anyway, regardless of anything the Supreme Court is going to say.''
There is a parallel lawsuit brought by others who are not here legally but have been allowed by the federal government to stay, like victims of domestic abuse, who Arizona also denied licenses in a bid to show the state is treating all deferred action recipients equally. The implications of the future of DACA are less clear for those individuals.
The other big issue is whether DACA recipients are entitled to residential status for the purposes of deciding whether they can attend public colleges by paying only the in-state tuition.
At this point, Brnovich has the upper hand, legally speaking.
Earlier this year a three-judge panel of the state Court of Appeals ruled unanimously that Proposition 300, approved by voters in 2006, clearly says that in-state tuition is reserved only for those with "lawful immigration status.'' Judge Kenton Jones said the decisions by the Obama administration to let those who arrived illegally in this country as children to remain and work "do not translate into the recipients' eligibility for in-state tuition or other state and local public benefits.''
Mary O'Grady, attorney for the Maricopa community colleges, the defendant in the lawsuit, is arguing to the Arizona Supreme Court that the federal government considers DACA recipients to be "lawfully present,'' even if they have no legal immigration status. She said that means the college governing board acted legally in allowing them to pay reduced tuition.
And college spokesman Matthew Hasson said Tuesday the appeal will continue even following the president's announcement.
But what the justices decide had broader effect.
Following a trial court decision upholding the Maricopa policy, the state Board of Regents followed suit and now charge DACA recipients in-state tuition. Several other community college systems have followed suit.
Brnovich said he intends to ask the justices to uphold the appellate ruling -- even if DACA either becomes legal or goes away in March. And it's not just to affirm the decision about the Maricopa colleges but to bring the university system into compliance.
"At the end of the day, we have an obligation to enforce the law as it is,'' he said.
"Proposition 300 was passed by nearly 70 percent of the Arizona voters,'' Brnovich said. "The reality is that the Board of Regents are frankly thumbing their noses at Arizona voters.''
Board Chairman Bill Ridenour said he doesn't see it that way. And Ridenour said it is the position of most board members to keep the in-state tuition in place unless and until the Arizona Supreme Court rules otherwise.
But Ridenour, who is an attorney, said he doesn't think the last word will end up with the state's high court.
"I would suspect the Supreme Court, when they take this up, will not be in any hurry to make a ruling until such time as it is determined, at least by Congress, what the DACA students' status is going to be,'' he said.
With no court ruling likely soon -- and Congress likely to wait until next year -- Ridenour said the tuition policy will remain into the spring semester.
In the interim, though, Pearce said he will pursue his own litigation to make individuals regents personally financially liable for voting to allow DACA recipients to pay in-state tuition, even in the face of the Court of Appeals ruling.
"ABOR is damaging the nation and destroying the rule of law,'' said Pearce, who is represented by Judicial Watch. "And I will not stand by and allow that to go on.''
Pearce is using a section of law that says if the attorney general does not act within 60 days of a request to enforce certain state laws, an individual may sue to recover financial damages. That deadline is Saturday.
Brnovich questioned why anyone would sue now, pointing out the entire issue could be made moot by Congress by the time that lawsuit ever got into court. Anyway, the attorney general said he won't be forced into opening up a new legal front against the universities simply because Pearce and Judicial Watch are pushing the issue.
"What I don't want this office doing is trying to score cheap political points,'' he said. "We don't kowtow to anyone.''
On Twitter: @azcapmedia
Selected comments in reaction to the president's decision to terminate Deferred Action for Childhood Arrivals:
Gov. Doug Ducey:
"I have doubted the legality of President Obama's unilateral actions, which appear likely to be knocked down by the courts, and have taken the position that Congress needs to address our outdated immigration policies and put a more strategic focus on border enforcement. It's time for Congress to come together and bring closure to this issue for the children and young adults living in limbo, many of whom reside in Arizona. They should be held harmless from the decisions of their parents."
Sen. Jeff Flake:
"The ball is back in Congress' court where it belongs, and there are a lot of innocent kids counting on Congress to do its job. Congress must act immediately to pass permanent, stand-alone legislation to lawfully ensure that children who were brought here by their parents, through no fault of their own, are able to stay and finish their education and continue to contribute to society.''
Sen. John McCain:
"I strongly believe that children who were illegally brought into this country through no fault of their own should not be forced to return to a country they do not know. The 800,000 innocent young people granted deferred action under DACA over the last several years are pursuing degrees, starting careers, and contributing to our communities in important ways. While I disagreed with President Obama? unilateral action on this issue, I believe that rescinding DACA at this time is an unacceptable reversal of the promises and opportunities that have been conferred to these individuals.''
Attorney General Mark Brnovich:
"It's about time Congress did something regarding this very serious issue. I think it's unfair to not only the folks who were brought into this country as kids. But it's also unfair to all of us as Americans that we have such uncertainty, whether you're in the business community, whether you're an employee, whether you're an immigrant. I don't think that's fair to anyone.''
Phoenix Mayor Greg Stanton:
"Terminating DACA is a cruel decision from a President who promised to treat the young people in the program 'with heart.' Dreamers make Phoenix and our country stronger. Their fight is our fight. They are being used as political pawns by Donald Trump. That's just wrong.''
Steve Farley, Democrat candidate for governor:
"Once again Governor Ducey has decided that it is more important for his personal political future to appease the president and national Republican donors rather than to stand up for basic, commonsense policy that helps the Arizona economy and Arizona residents. Hiding behind a false understanding of 'the rule of law' while pushing off the task of protecting Dreamers to a dysfunctional Congress isn’t leadership at all.''
David Garcia, Democrat candidate for governor:
"President Obama, pushed by a courageous and dynamic group of immigrant you and in the face of legislative intransigence, granted administration relief to these young people we call dreamers. DACA was literally the least we could do as a nation for these amazing leaders. The termination of DACA is heartbreaking and is an especially dark stain on an already failed and dangerous Trump administration."
Glenn Hamer, CEO, Arizona Chamber of Commerce and Industry:
"Does anyone believe our border is more secure now that immigrants brought to this country as children -- at an average age of six -- will bear the legal consequences of choices made far beyond their control? Does anyone believe our economy is made stronger by eliminating billions of dollars in economic activity from the US economy? Today's announcement was made without wisdom and without compassion. Congress needs to act with urgency and advance a policy for the DACA-eligible population that is consistent with American values.''
Congressman Tom O'Halleran:
"President Trump's decision to end DACA is troubling, and it will do real harm to countless families who will be torn apart. It is callous and detrimental to American's future. I am ready to work alongside my Republican and Democratic colleagues to protect Dreamers and pass bipartisan, comprehensive immigration reform.''
Congressman Raul Grijalva:
"President Trump once claimed that under his administration, Dreamers would be treated 'with heart.' Yet nothing is more heartless and callous than taking away the sense of belonging and security for nearly one million young people in our country or using them as a bargaining chip for his obsession over a border wall. Congress needs to act urgently to pass legislation that permanently protects current and future Dreamers.''
Congressman Ruben Gallego:
"Trump's uncontrollable impulse to indulge the most hateful elements of our society knows no bounds. It wasn't enough to equivocate as Nazis marched in Charlottesville or to pardon a proudly racist Sheriff in Arizona; he felt compelled to go one enormous step further by exposing 800,000 Dreamers to deportation from the only country that most have ever known. The question now is whether Republicans in Congress will condemn this transgression or attempt to explain it away.''
Congresswoman Kyrsten Sinema:
"Ending the DACA program is a bad decision that hurts Arizona. Arizona Dreamers have graduated from our schools, are contributing to our economy, and are enlisting in our military to serve our nation. They are contributing members of our community and deserve a chance to become citizens of the only country they have ever known.''
Gerald Kicanas, bishop of Tucson:
"The decision of the president to rescind DACA simply raises fears in the immigrant community and especially among these young people who are contributing significantly to our society. There is an urgency now to make clear to the Congress that people do support the right to stay in our country for these young people."
Thomas Olmstead, bishop of Phoenix diocese:
"The cancellation of the DACA program is reprehensible. It causes unnecessary fear for DACA youth and their families. These youth entered the U.S. as minors and often know America as their only home. The Catholic Church has long watched with pride and admiration as DACA youth live out their daily lives with hope and a determination to flourish and contribute to society: continuing to work and provide for their families, continuing to serve in the military, and continuing to receive an education. Now, after months of anxiety and fear about their futures, these brave young people face deportation. This decision is unacceptable and does not reflect who we are as Americans.''
Eileen Klein, president, Arizona Board of Regents:
"The Arizona Board of Regents has consistently called upon President Trump and Congress to enact meaningful immigration reform that provides legal certainty for students who are DACA recipients. Today, through the President’s action, Congress has a window of time to find a sensible and humane legislative solution to shield our DACA students from deportation and enable their future in our country. We encourage them to act swiftly and justly.''
Robert Robbins, president, University of Arizona:
"The University of Arizona is urging Congress to deliver an expedient legislative solution that provides all DACA students with certainty in fulfilling all of their educational potential. In concert with our governing board, the Arizona Board of Regents, we are providing all of the support possible to DACA students as permitted by law.''
Steve Yarbrough, president, Arizona Senate:
"Regardless of how one may feel about the substantial contribution to our society by individuals benefiting from inclusion in DACA, it seems very apparent that our former president’s Executive Order exceeded his Constitutional authority. It is clearly within the proper responsibility of Congress to consider the exercise of its legislative authority to address this issue if it chooses to do so.''
Joe Thomas, president, Arizona Education Association:
"Removing DACA protections for innocent children will harm our students and rip apart families in our communities. Public education is the cornerstone of opportunity in our nation. As a public school teacher, I have a responsibility to advocate for, as well as educate, every child in my classroom, regardless of their immigration status.''
Gonzalo A. de la Melena Jr., president Arizona Hispanic Chamber of Commerce:
"President Trump's decision to kill DACA is a cruel injustice that does nothing to address our nation's pressing need for comprehensive federal immigration reform. Despite lacking U.S. citizenship, Dreamers simply want a chance to work hard and live out their lives as citizens of our great nation. Ending DACA is also bad economic policy, as it seeks to expel a segment of our population that is a proven boon to our nation's economy.''
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