‘In-state’ tuition for ‘undocumented’ students

In an important ruling likely to set up a showdown in the US Supreme Court or within Congress, the California Supreme Court on Monday reversed the ruling of the California Court of Appeals and agreed with the California Regents on the issue of in-state tuition for undocumented students. Under Martinez v. The Regents of the University of California, 10 S.O.S. 6398, California State University, the University of California, and California Community Colleges are required to adhere to State law that allows students who have attended three years of high school in California and met other requirements to pay “in-state” tuition rates as opposed to the much-higher “out-of-state” or foreign student rates.

In Martinez, the Plaintiffs argued that the California law violated a Federal Law, 8 USC §1623, that states:  Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

The California Law at issue, however, which was passed in 2001, exempts students, including those “without lawful immigration status,” from “out-of-state” tuition rates, if they (1) attended high school in California for three or more years; (2) graduated from a California high school or attained the equivalent thereof; (3) registered as an entering student or is currently enrolled at an institution of higher education in California; and (4) filed an affidavit with the campus stating that the illegal alien “has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so.”

Plaintiffs in Martinez argued that California is violating the federal law by offering in-state tuition to “illegal immigrants” while denying the same benefits to US citizens from other states who are attending or intend to attend a California college.

The California Supreme Court disagreed, noting that the exemption “cannot be deemed to be based on residence for the simple reason that many nonresidents may qualify for it…[California’s] criteria are not the same as residence, nor are they a de facto or surrogate residency requirement. Congress specifically referred to residence [in the Federal Law] – not some form of surrogate for residence – as the prohibited basis for granting unlawful aliens a postsecondary education benefit.”  The court held that the tuition exemption offered by California is “not based on residence in California,” because it is possible to meet the requirements found in the California statute, and still not be a “resident.” The court explained, “Attending high school in California for at least three years and meeting the other requirements are not the functional equivalent of residing in California.”

In praising the ruling, commentators noted that that the decision vindicated the California Legislature’s careful drafting of the statute to comply with federal law, which means that that “California’s institutions of higher education will continue to be strengthened by the inclusion of some of our state’s brightest and most successful students, who simply lack legal status due to the nation’s failure to enact the widely-supported DREAM Act.” Indeed, Congress’ failure to pass the DREAM ACT has been the cause of widespread hardship for thousands of “undocumented” students in the US, whose only sin is having been brought to the US or failing to maintain lawful status at an early age when they were not making such decisions of their own volition.

The DREAM ACT, which Congress has been under pressure to address for several years will likely again rise to the forefront of the immigration debate, as such legislative change would likely obviate any US Supreme Court litigation over the Martinez ruling.


Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993.  Mr. Hanlon is the founder of Hanlon Law Group, a P.C.  He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California.

Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers.  Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods.

Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.

Mr. Hanlon graduated “With Distinction” from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles.   He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee.  Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments.  Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website: www.hanlonlawgroup.com, email: visas@hanlonlawgroup.com.

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