                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
    STATE OF ARIZONA, EX REL. ATTORNEY GENERAL MARK BRNOVICH,
                 Plaintiff/Counter-Defendant/Appellant,

                                     v.

       MARICOPA COUNTY COMMUNITY COLLEGE DISTRICT BOARD,
                        Defendant/Appellee,

                  ABEL BADILLO AND BIBIANA VAZQUEZ,
             Intervenor-Defendants/Counter-Plaintiffs/Appellees.

                           No. CV-17-0215-PR
                            Filed May 1, 2018

           Appeal from the Superior Court in Maricopa County
               The Honorable Arthur T. Anderson, Judge
                          No. CV2013-009093
                    REVERSED AND REMANDED

              Opinion of the Court of Appeals, Division One
                         242 Ariz. 325 (App. 2017)
              AFFIRMED IN PART; VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Kevin D. Ray, Section Chief
Counsel, Education and Health Section, Rusty D. Crandell (argued), Kevin
D. Ray, Assistant Solicitor General, Phoenix, Attorneys for State of Arizona

Mary R. O’Grady (argued), Lynne C. Adams, Eric M. Fraser, Osborn
Maledon, P.A., Phoenix, Attorneys for Maricopa County Community
College District Board

Eileen Dennis GilBride, Georgia A. Staton, Jones, Skelton & Hochuli, P.L.C.,
Phoenix, Attorneys for Amicus Curiae Pima Community College

Julia A. Gomez, Mexican American Legal Defense and Educational Fund,
Los Angeles, CA; José de Jesús Rivera, Nathan J. Fidel, Haralson, Miller,
Pitt, Feldman & McAnally, P.L.C., Phoenix; Daniel R. Ortega, Jr., Ortega
           STATE V. MARICOPA CTY. CMTY. COLL. DIST. BD.
                        Opinion of the Court

Law Firm, P.C., Phoenix; Noel Fidel, Law Office of Noel Fidel, Phoenix,
Attorneys for Abel Badillo and Bibiana Vazquez

Steven A. Ellis, Goodwin Procter LLP, Los Angeles, CA; Laurel Kilgour,
Goodwin Procter LLP, San Francisco, CA, Attorneys for Amicus Curiae
Year Up, Inc.

Andrew S. Gordon, Roopali H. Desai, Coppersmith Brockelman, PLC,
Phoenix; Attorneys for Amicus Curiae Year Up, Inc. and Amicus Curiae
Arizona Education Association


CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER,
BOLICK, and GOULD and JUDGE ESPINOSA joined. ∗

CHIEF JUSTICE BALES, opinion of the Court:

¶1             We here consider whether Arizona students granted deferred
removal action by the United States Department of Homeland Security
(“DHS”) under its Deferred Action for Childhood Arrivals (“DACA”)
policy are eligible for in-state college tuition. “The Government of the
United States has broad, undoubted power over the subject of immigration
and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).
Because Congress has not identified DACA recipients as “lawfully present”
for purposes of public benefits eligibility under 8 U.S.C. § 1621, and Arizona
has not made in-state tuition available to all citizens and nationals
regardless of residence, we hold that DACA recipients are not eligible for
in-state tuition in Arizona.
                                       I.

¶2           In 2012, DHS initiated the DACA program by exercising its
prosecutorial discretion to defer the deportation of certain unauthorized
aliens who entered the country as children. The program provided neither
long-term authorization to remain in this country nor a path to citizenship,

∗
 Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Philip G.
Espinosa, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
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but it permitted qualified persons to live and work in the United States
while they remained in the program. See Memorandum from Janet
Napolitano, Sec’y, Dep’t of Homeland Sec., to David V. Aguilar, Acting
Comm’r, U.S. Customs & Border Patrol, Alejandro Mayorkas, Dir., U.S.
Citizenship & Immigration Servs., & John Morton, Dir., U.S. Immigration
& Customs Enf’t (June 15, 2012).

¶3             DACA recipients must apply to DHS for employment
authorization documents (“EADs”), and the Maricopa County Community
College District Board (“MCCCD”) began accepting those EADs as
evidence of residency for students to receive in-state tuition. Federal law
generally bars granting in-state tuition to students based on state residency
when they are not lawfully present in the United States. See 8 U.S.C.
§ 1623(a). Similarly, Arizona law bars in-state classification of certain
students lacking lawful immigration status. A.R.S. § 15-1803(B). (Arizona
statutes contemplate reduced tuition for “in-state” university students,
A.R.S. § 15-1802, and “resident” community college students,
id. § 15-1802.01; we herein use “in-state tuition” to encompass both forms
of reduced tuition based on residency.)

¶4            In 2013, the Arizona Attorney General filed this action seeking
a determination that MCCCD’s policy violates Arizona law and an
injunction prohibiting MCCCD from allowing DACA recipients to obtain
the in-state tuition rates. Abel Badillo and Bibiana Vazquez (“the
Students”)—DACA-recipient MCCCD students who receive in-state
tuition—intervened. Both MCCCD and the Students filed motions for
summary judgment. Without reaching the Students’ constitutional
arguments, the trial court granted summary judgment to MCCCD and the
Students, concluding that under the relevant federal and state law, DACA
recipients are “lawfully present” and therefore eligible for in-state tuition
benefits.

¶5            The court of appeals reversed the trial court’s ruling and
remanded with instructions to enter a judgment enjoining MCCCD from
granting in-state tuition to DACA recipients. Two judges agreed that
“Congress has not defined DACA recipients as ‘lawfully present’ for
purposes of eligibility for in-state tuition,” and MCCCD was thus
prohibited from granting in-state tuition. State ex rel. Brnovich v. Maricopa
Cty. Cmty. Coll. Dist. Bd., 242 Ariz. 325, 339 ¶ 46 (App. 2017). The concurring
judge reached the same conclusion under state law. Id. at 344 ¶ 68 (Norris,

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                        Opinion of the Court

J., concurring).   The court of appeals also rejected the Students’
constitutional arguments based on preemption and equal protection. Id. at
337-39 ¶¶ 37-45.

¶6             We granted review solely on the issue of whether DACA
recipients are eligible for in-state tuition, a legal issue of statewide
importance. Previously, we issued a decision order ruling that DACA
recipients are not so eligible and stating that a written opinion explaining
our decision would follow. This Court has jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                        II.

¶7             This case presents an issue of statutory interpretation, which
we review de novo. State v. Jurden, 239 Ariz. 526, 528 ¶ 7 (2016). “[T]he
words of a statute are to be given their ordinary meaning unless it appears
from the context or otherwise that a different meaning is intended.” State
v. Miller, 100 Ariz. 288, 296 (1966).

¶8           In 1996, Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”). Pub. L. No. 104-208, 110 Stat.
3009 (1996). As relevant here, IIRIRA provides:

       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 a 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.

8 U.S.C. § 1623(a).

¶9            Section 1623(a) has been interpreted as applying to in-state
tuition, and the parties do not dispute that in-state tuition is subject to
IIRIRA’s requirements. See Martinez v. Regents of the Univ. of Cal., 241 P.3d
855, 865 (Cal. 2010) (applying IIRIRA to in-state tuition and noting
legislative history stating that bill language that later became § 1623
“provides that illegal aliens are not eligible for in-state tuition rates at public


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                        Opinion of the Court

institutions of higher education” (citation and internal quotation marks
omitted)).

¶10            This case turns on the meaning of “lawfully present” as it
appears in IIRIRA. We conclude that only those aliens designated as
benefits-eligible under 8 U.S.C. § 1621(a) are “lawfully present” for
purposes of IIRIRA.

¶11           “Lawfully present” is not defined in § 1623(a), but the
meaning can be ascertained from the statute’s context. The term “lawfully
present” also appears in § 1621, which, like § 1623, governs eligibility for
postsecondary education public benefits. There, Congress directly equated
aliens “not lawfully present” with those otherwise “ineligible under
subsection (a).” 8 U.S.C. § 1621(d). In § 1621(a), Congress provided that
only certain categories of aliens are eligible for state and local public
benefits: qualified aliens as defined in 8 U.S.C. § 1641; nonimmigrants
under the Immigration and Nationality Act (“INA”); and aliens paroled
into the United States under 8 U.S.C. § 1182(d)(5) for less than one year.
Thus, those aliens who do not fall within the categories of § 1621(a) are not
“lawfully present” for purposes of state and local benefits. See 8 U.S.C.
§ 1621(d).

¶12            The two statutes are the only ones that use the phrase
“lawfully present” in the subchapter of Title 8 concerning eligibility for
state and local public benefits, and we construe the same words with only
one meaning if possible. See Ratzlaf v. United States, 510 U.S. 135, 143 (1994)
(“A term appearing in several places in a statutory text is generally read the
same way each time it appears.”); State ex rel. Indus. Comm’n v. Pressley, 74
Ariz. 412, 421 (1952) (“[T]here is a natural presumption that identical words
used in different parts of the same act are intended to have the same
meaning.”).

¶13            MCCCD argues that we should instead look to the definition
of the phrase “unlawfully present” in 8 U.S.C. § 1182(a)(9)(B)(ii) because
that is the only definition of “lawfully present” or “unlawfully present” in
the INA. That section provides:

       For purposes of this paragraph, an alien is deemed to be
       unlawfully present in the United States if the alien is present
       in the United States after the expiration of the period of stay

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                        Opinion of the Court

       authorized by the Attorney General or is present in the United
       States without being admitted or paroled.

8 U.S.C. § 1182(a)(9)(B)(ii). MCCCD contends that because DACA
recipients’ stays in the United States are authorized by DHS while they are
in the DACA program, they are “lawfully present” under this definition.

¶14            But this argument ignores that the INA definition of
“unlawfully present” is qualified “[f]or purposes of this paragraph” only.
That limiting clause is emptied of meaning if, as MCCCD contends, the
definition extends to benefits eligibility under § 1623(a). Furthermore,
§ 1182(a)(9)(B)(ii) operates in the specific context of tolling admissibility so
that an alien who is permitted to remain in the country for a period of time
is not penalized for having spent that time in the country. And although
this definition addresses how an alien’s presence should be “deemed” after
expiration of a stay, the statute suggests that these individuals would
otherwise be unlawfully present during the stay period. Nothing in the
statutory framework suggests that Congress intended for this definition to
be applied in the benefits-eligibility context.

¶15            MCCCD’s position highlights the fact that Congress and
agencies use the phrase “lawfully present” as a technical term that takes on
different meanings in different circumstances. In other words, an alien can
be “lawfully present” for one purpose, but not another. See, e.g., 8 U.S.C.
§ 1611(b)(2) (permitting aliens who are “lawfully present . . . as determined
by the Attorney General” to receive Social Security benefits); 8 C.F.R.
§ 1.3(a)(4)(vi) (stating that an alien “currently in deferred action status” is
“lawfully present” for purposes of Social Security benefits “only”);
45 C.F.R. § 152.2 (stating that an alien “currently in deferred action status”
is “[l]awfully present” for purposes of Affordable Care Act benefits but
explicitly excluding DACA recipients). Here, Congress determined in
§ 1621 that only certain groups of aliens are “lawfully present” for the
specific purpose of receiving state and local benefits, including
postsecondary education benefits governed by § 1623(a).

¶16            Because DACA recipients are not benefits-eligible under
§ 1621(a), we conclude they are not “lawfully present” for purposes of
§ 1623(a). DACA recipients are not “nonimmigrants” under the INA, nor
are they aliens paroled into the United States for less than one year. 8 U.S.C.
§ 1621(a)(2), (3). They are also not “qualified” under 8 U.S.C. § 1641. Id.

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                        Opinion of the Court

§ 1621(a)(1). The term “qualified alien” means any of the following: (1) “an
alien who is lawfully admitted for permanent residence”; (2) “an alien who
is granted asylum”; (3) “a refugee who is admitted to the United States”; (4)
“an alien who is paroled into the United States . . . for a period of at least”
one year; (5) “an alien whose deportation is being withheld” on the basis
that removal would threaten the alien’s life or freedom; (6) “an alien who is
granted conditional entry”; or (7) “an alien who is a Cuban and Haitian
entrant.” Id. § 1641(b). DACA recipients do not fall within any of these
designations.

¶17              Finally, we turn to whether DACA recipients may receive
in-state tuition consistent with § 1623(a). That statute permits states to offer
in-state tuition to aliens such as DACA recipients who are not lawfully
present, as long as the state makes “a citizen or national of the United States
. . . eligible for such a benefit . . . without regard to whether the citizen or
national is such a resident.” Arizona has not made in-state tuition available
to all U.S. citizens and nationals without regard to residence, nor has it
attempted to provide in-state tuition to students “not lawfully present.”
Indeed, the voters attempted to do just the opposite when they enacted
A.R.S. § 15-1803, which provides that “a person who was not a citizen or
legal resident . . . or who is without lawful immigration status is not entitled
to classification as an in-state student.” A.R.S. § 15-1803(B).

                                      III.

¶18           Congress has the ultimate say in immigration matters and
Arizona is bound under the Supremacy Clause of the United States
Constitution to follow federal law. U.S. Const. art. VI. DACA recipients
are not “lawfully present” for purposes of § 1623(a), which governs in-state
tuition benefits. That section allows a state to provide in-state tuition to
students who are not “lawfully present” only under certain conditions, and
Arizona has not met those conditions. We therefore must conclude that
DACA recipients are not eligible for in-state tuition, even if we agree on the
desirability of affording them access to college education as a matter of
public policy.

¶19            For the foregoing reasons, we vacate paragraphs 12 through
35 of the court of appeals’ opinion, and we remand this case to the trial court
for proceedings consistent with this opinion and the portions of the court
of appeals’ opinion that we did not review, including the instructions to

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                       Opinion of the Court

enter a judgment enjoining MCCCD from granting in-state tuition to DACA
recipients.




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