  Court of Appeals
  of the State of Georgia

                                            ATLANTA,____________________
                                                     February 16, 2017

  The Court of Appeals hereby passes the following order:

  A17A1124. C. DEAN ALFORD et al. v. RIGOBERTO RIVERA HERNANDEZ
      et al.

          C. Dean Alford and other members of the University System of Georgia’s
  Board of Regents (collectively, “Board Members”) filed this appeal for review of a
  superior court’s order compelling them to grant “in-state tuition status” to Rigoberto
  Rivera Hernandez and other non-citizens who qualified to receive benefits granted
  by the federal Deferred Action for Childhood Arrivals program (collectively, “DACA
  Recipients”). For reasons that follow, this appeal is transferred to the Supreme Court
  of Georgia for disposition.1
          Denied in-state tuition status on the basis that they did not meet the residency
  requirements set forth in the Board of Regents (“BOR”) Policy Manual, the DACA
  Recipients petitioned the superior court for a writ of mandamus to compel the Board
  Members to correctly implement and give proper effect to OCGA § 20-3-66 (d)2 and
  certain BOR rules. The DACA Recipients claimed that, pursuant to DACA, they
  were lawfully present in the United States; and that, by refusing to accept such federal
  definition of “lawful presence” in determining in-state tuition eligibility, the Board



      1
       The Board Members also filed a discretionary application seeking review of the
same order. That application, docketed in this Court as A17D0237, was transferred on
February 3, 2017 to the Supreme Court of Georgia for disposition.
      2
        (“Noncitizen students shall not be classified as in-state for tuition purposes unless
the student is legally in this state and there is evidence to warrant consideration of in-state
classification as determined by the board of regents. . . .”).
  Members had failed to discharge their public duty.
           The Board Members filed a motion to dismiss, asserting, inter alia, that: (i)
  DACA’s grant of “lawful presence” was limited to federal immigration matters such
  as deportation and conferred no substantive right, immigration status, or pathway to
  citizenship; (ii) the BOR was vested with broad powers to determine in-state tuition
  eligibility, and the decision to deny in-state tuition status to the DACA Recipients
  was authorized by OCGA § 20-3-66 (d), as well as certain BOR rules; and (iii) the
  BOR exercises its discretion to “grant[ ] in-state tuition to those ‘legally in this state’
  and links its definition to recognized categories of lawful immigration status.”
           The DACA Recipients filed a motion for summary judgment, claiming
  entitlement to a writ of mandamus.
           A primary question thus presented to the superior court by the parties’
  dispositive motions was whether, for purposes of determining in-state tuition
  eligibility, the federal DACA program foreclosed the state officials’ particular
  application of OCGA § 20-3-66 (d) and certain rules upon the DACA Recipients.
  The superior court denied the Board Members’ dismissal motion and granted the
  DACA Recipients’ summary judgment motion, expressly ruling that the Board
  Members were “compelled to . . . apply[ ] the federal definition of lawful presence as
  it relates to students who are DACA recipients and to grant them in-state tuition
  status.”
           It appears, therefore, that the parties’ arguments raised, and the superior court
  ruled upon, issues of preemption. In Babies Right Start v. Ga. Dept. of Pub. Health,3
  the Supreme Court of Georgia indicated that it has constitutional question jurisdiction
  over preemption cases such as this, which implicate the Supremacy Clause of the
  United States Constitution.4        In accordance therewith,5 this appeal is hereby

      3
          293 Ga. 553 (748 SE2d 404) (2013).
      4
        Id. at 554 (1) (finding a “preemption argument brings the appeal under [its]
constitutional question jurisdiction”), citing Ga. Const. of 1983, Art. VI, Sec. VI, Par. II
(1) and Ward v. McFall, 277 Ga. 649, 651 (1) (593 SE2d 340) (2004) (noting that the trial
court had explicitly refused to apply a state statute based on its finding that the statute was
  TRANSFERRED to the Supreme Court of Georgia for disposition.

                                          Court of Appeals of the State of Georgia
                                                 Clerk’s Office, Atlanta,____________________
                                                                           02/16/2017
                                                 I certify that the above is a true extract from
                                          the minutes of the Court of Appeals of Georgia.
                                                 Witness my signature and the seal of said court
                                          hereto affixed the day and year last above written.


                                                                                          , Clerk.




inconsistent with a federal regulation, and therefore, in violation of the Supremacy Clause;
explaining that the trial court’s order “[could not] be construed to be anything other than
a declaration that [the statute was] unconstitutional under the Supremacy Clause”; thus
determining that the case fell within Georgia Supreme Court’s jurisdiction). See also Toll
v. Moreno, 458 U. S. 1, 10-17 (II) (102 SCt 2977, 73 LE2d 563) (1982); Ariz. Dream Act
Coalition v. Brewer, 818 F3d 901 (9th Cir. 2016).
      5
       See Saxton v. Coastal Dialysis &c., 267 Ga. 177, 178 (476 SE2d 587) (1996)
(Supreme Court has the ultimate responsibility for determining appellate jurisdiction).
