Atlanta court upholds University System ban on unauthorized immigrants

The 11th U.S. Circuit Court of Appeals in downtown Atlanta.

The 11th U.S. Circuit Court of Appeals in downtown Atlanta.

The federal appeals court in Atlanta has upheld a Board of Regents policy that prevents immigrant students who’ve received a special deportation reprieve from attending three of the state’s top universities.

The court’s ruling Wednesday applies to immigrants who have been accepted into the Obama administration’s Deferred Action for Childhood Arrivals program. DACA encourages government officials not to enforce federal immigration laws against certain children who were brought illegally to the U.S. before they turned 16 years old.

The regents' prohibition involves those students who want to attend the University of Georgia, Georgia Tech or Georgia College & State University, the ruling said.

In 2016, three students filed a federal lawsuit challenging the state's policy. The suit was rejected by a federal judge in Atlanta in 2017. His decision has now been upheld by the 11th U.S. Circuit Court of Appeals.

The students’ lawyers expressed disappointment with the ruling and said they are reviewing their legal options.

“We continue to believe this is an illegal policy, and it just doesn’t make sense to turn away some of your best and brightest,” said Burth Lopez of the Mexican American Legal Defense and Educational Fund.

“It’s a tragedy,” said co-counsel Nathaneal Horsley, an Atlanta attorney. “The amount of effort DACA recipients have taken to stay here is impressive — jumping through every hoop and clearing every hurdle. Now they can’t attend our best universities. I thought we were better than that as a society in Georgia.”

In a statement, University System of Georgia spokeswoman Jen Ryan said the system’s policy “follows state law and will continue to do so” with the 11th Circuit decision.

Georgia allows some DACA recipients to attend institutions that have not enrolled all of its academically qualified applicants for the previous two years. Such students must pay out-of-state tuition.

In their lawsuit, the three students challenged the state’s policy that prevents any person “who is not lawfully in the United States” from attending the three universities that do not fall under the exception. They claimed the policy is unconstitutional on equal protection grounds.

But Judge Gerald Tjoflat, writing for a unanimous three-judge panel, surmised that the three schools that cannot admit all qualified applicants must prioritize which ones can attend.

“The Regents could have decided to prioritize those students who are more likely to stay in Georgia after graduation, and the Regents might have decided that DACA recipients are less likely to do so because they are removable at any time,” the ruling said. “That is, the Regents could have reasonably concluded that it would be unwise to invest state resources in DACA recipients.”

President Donald Trump is packing the 11th U.S. Circuit Court of Appeals with conservative jurists. The court, based in Atlanta, has 12 judges and serves Georgia, Alabama and Florida. Trump has placed two new judges on the court already —Elizabeth Branch and Kevin Newsom. A third nominee, Britt Grant, is expected to be confirmed. A dispute with Sen. Jeff Flake (R-Ariz.) is holding up her confirmation.

The three students, all of whom graduated from Georgia high schools, also contended their deferred status as DACA recipients makes them “lawfully present” in the United States and thus eligible for admission.

But Tjoflat noted these students are still subject to deportation proceedings. “As DACA recipients, they simply were given a reprieve from potential removal; that does not mean they are in any way ‘lawfully present’ under the act,” he said.