Herring says some children of illegal immigrants qualify for in-state tuition

Attorney General Mark R. Herring declared Tuesday that children of illegal immigrants who are lawfully present in the United States and Virginia under the Deferred Action for Childhood Arrivals program qualify for in-state college tuition.


Herring said the students, also known as DREAMers, must still gain admission to an institution of higher education, maintain their DACA status, and meet the same residency requirements as all other students.

“It simply makes no sense to tell these Virginia students that the commonwealth doesn’t care about their ability to reach their potential,” Herring told reporters in Richmond.

“Instead of punishing them for the way their parents brought them to Virginia as children, we should extend an affordable education to these students. It’s what the law requires, it makes economic sense, and it’s the right thing to do.”

Herring said he and his team analyzed and reviewed the relevant state and federal laws after informal requests from lawmakers, DACA students and their peers.

He said his conclusion is not a formal opinion, but legal guidance for public universities and community colleges to be in compliance with the law.

President Barack Obama announced in June 2012 that the United States would defer deportation for young people who came to this country illegally as children.

About 8,100 young people in Virginia have had their applications for DACA approved, as of December 2013. Most came to the United States at a very young age. Nationwide, more than 350,000 students have been awarded conditional residence under the program.

Students applying for in-state tuition in Virginia must also show permanent residency in the state by providing documents, such as tax, employment or property records, receipt of a driver’s license and motor vehicle registration.

Not all public institutions weighed in immediately on Herring’s announcement — Virginia Commonwealth University said it would study the opinion — but the ones that did made clear they are ready to welcome the DACA students.

“We know these students will thrive here if WM is placed within their reach financially,” said Henry Broaddus, dean of admission for the College of William and Mary.

The policy change “will allow us to make a William and Mary education more affordable for the small group of students we admitted who have a federally recognized status and who have achieved at the highest levels in their Virginia high schools,” he said in a statement.

WM spokesman Brian Whitson estimated the change would affect about three students a year.

He said WM’s policy is to admit students regardless of status, but as a condition of enrollment, students who are not citizens or permanent residents must prove they are lawfully present in the United States. That practice will not be changed as a result of the Herring’s decision.

Glenn DuBois, chancellor of the Virginia Community College System, said the opinion isn’t likely to end the political debate, but VCCS stands “ready to serve every individual who seeks opportunity through earning a college credential.”

He added: “We know that individuals who earn a college credential will make more money, be healthier and contribute more to their community throughout their lives.”

Peter Blake, director of the State Council of Higher Education for Virginia, said SCHEV “will work with Attorney General Herring, our colleges and universities, and others to follow this advice.”

He said the announcement “underscores a core belief in the value of education: that higher achievement levels across the commonwealth will lead to a stronger and more robust Virginia.”

DACA is a new legal concept as of June 2012, he added. SCHEV has relied on the attorney general “for guidance in this extremely complex matter,” which previously was to deny in-state tuition to DACA recipients.

University of Virginia spokesman McGregor McCance said U.Va. “appreciates Attorney General Herring’s conclusion and looks forward to reviewing this issue in more detail.”

Neither U.Va. or VCU had estimates on how many students might receive in-state tuition as the result of the policy change.

Legislative proposals that would have made these students eligible for in-state tuition have failed in the Virginia General Assembly in three consecutive years. The most recent effort stalled in both houses in February.

Del. Alfonso H. Lopez, D-Arlington, sponsor of the House proposal, said he was happy and encouraged by Herring’s “important and positive step” in the right direction.

Del. Thomas Davis Rust, R-Fairfax, who has sponsored almost identical legislation, said Herring’s announcement will allow such students to pursue their dreams.

Gov. Terry McAuliffe also backed Herring’s announcement, vowing to “work diligently” with SCHEV, the Virginia Community College System, and college and university presidents “to further review this policy and make sure that all Virginia students have access to our quality education system.”

“As I said throughout my campaign, I believe that Virginia children who were brought here at a young age, grew up here, and have stayed out of trouble, should absolutely have access to the same educational opportunities as everyone else,” McAuliffe said.

But House Republican leaders expressed concern about Herring’s decision, saying the attorney general again has gone beyond the legislature — as when he declined to defend in court the state’s ban on same-sex marriage.

“We are deeply concerned by the attorney general’s actions today and what appears to be a continued willingness to ignore and circumvent the duly-adopted laws of the commonwealth,” said the statement from Speaker of the House William J. Howell, R-Stafford; and four other House GOP leaders.

Herring denies wanting to circumvent the law.

In 2008, four years before Obama’s DACA memorandum, then-Attorney General Bob McDonnell sent a memo to SCHEV that concluded that U.S.-born students who have always lived in Virginia may be eligible for in-state tuition rates at state colleges and universities even if their parents are in the country illegally.

DACA has set new standards under which the children of undocumented immigrants may stay in the United States.

Deferred Action recipients must not be older than 31, have been younger than 16 when they arrived in the U.S., lived here for at least five years and be enrolled in school. They also may qualify if they have graduated from high school or obtained a General Educational Development certificate, or if they are an honorably discharged veteran of the U.S. armed forces.

People seeking Deferred Action must not have been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and must not “otherwise pose a threat to national security or public safety.” They are tolerated but not in lawful status while staying in the U.S., and they could still be deported based on Department of Homeland Security discretion.

Nationally, about 75 percent of DACA applicants have resided in the United States for more than 10 years, and one-third were age 5 or younger at arrival.

Secretary of Education Anne Holton said in a news conference at the state Capitol that it is not clear how many public universities and colleges are already extending in-state tuition rates to DACA students and that there is no estimate for how much a uniform enforcement of the law would cost the schools.

“It’s an investment, not an expense,” Holton said. “We are eager to serve more students, we’ve got capacity and they’ve got need. We can help feed that need and bring in additional revenue.”

Dayana Torres, a DACA student and computer science major at George Mason University, said she and many other students across the state welcomed Herring’s announcement.

“I have seen incredible potential become a shadow of what it could be due to a student’s inability to pay hefty out-of state tuition, in addition to having financial responsibilities at home and having to work several jobs,” Torres said.

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