ALFORD et al.
HERNANDEZ et al.
MILLER, P. J., DOYLE and REESE, JJ.
mandamus action, C. Dean Alford and other members of the
University System of Georgia's Board of Regents
(collectively, "Appellants") seek review of a
superior court's grant of summary judgment to Rigoberto
Rivera Hernandez and other undocumented immigrants
(collectively "Appellees"). Each of the Appellees
are Georgia residents who have been granted limited
protection from deportation under the Deferred Action for
Childhood Arrivals ("DACA") policy established by
the United States Department of Homeland Security
("DHS") in 2012. The Appellees' petition for a
writ of mandamus sought an order from the court compelling
the Appellants to deem the Appellees eligible for
"in-state tuition benefits" while the Appellees are
enrolled in Georgia's public universities and colleges.
On appeal from the superior court's order, the Appellants
contend that the court erred in granting summary judgment to
the Appellees and in denying their motion to dismiss the
petition, arguing that the court erred in finding that, under
DACA, the Appellees were "lawfully present" in the
country as a matter of law and, therefore, the Appellants
were required to offer them in-state tuition. They also
contend that the court incorrectly applied the standard for
granting a writ of mandamus and that the court should have
dismissed the Appellees' claims because they were barred
by official immunity. For the reasons set forth, infra, we
reverse the superior court's grant of summary judgment to
the Appellees. We also reverse the court's denial of the
Appellants' motion to dismiss.
in the light most favorable to the Appellants, as the party
opposing the grant of summary judgment,  the record shows
the following undisputed facts.
The DACA Policy.
2012, the DHS Secretary issued a memorandum to various
federal agencies tasked with enforcing the country's
immigration laws, announcing the establishment of the DACA
policy. The memorandum explained that certain
undocumented immigrants who came to the United States before
the age of 16 and who met other specific requirements would
be able to apply for deferred deportation under DACA. If
their applications were approved, they would receive limited
protection from deportation for a two-year period, subject to
renewal if they continued to meet DACA's requirements.
According to the memorandum, the limited protection from
deportation provided by DACA was based upon the DHS's
exercise of prosecutorial discretion in prioritizing its use
of immigration enforcement resources,  explaining that
the undocumented immigrants who met DACA's criteria were
"low priority cases" when compared to others who
were subject to deportation. The memorandum emphasized that
DACA conferred to the recipients "no substantive
right, immigration status or pathway to citizenship,
" explaining that "[o]nly the Congress, acting
through its legislative authority, can confer these
DHS's Office of Citizenship and Immigration Services
("USCIS") subsequently published a Frequently Asked
Questions ("FAQ") page on its website that provided
a more detailed explanation of DACA, the application process,
and related issues. According to the website, DACA offered
recipients "[d]eferred action, " which it defined
as "a discretionary determination to defer a removal
action of an individual as an act of prosecutorial
discretion, " adding that "DHS can terminate or
renew deferred action at any time, at the agency's
discretion." Further, the website stated that the grant
of deferred action could affect a future determination of
whether a recipient had been "unlawfully present"
in the United States.
For purposes of future inadmissibility based upon unlawful
presence, an individual whose case has been deferred is not
considered to be unlawfully present during the period in
which deferred action is in effect. An individual who has
received deferred action is authorized by DHS to be present
in the United States, and is therefore considered by DHS to
be lawfully present during the period deferred action is in
effect. However, deferred action does not confer lawful
status upon an individual, nor does it excuse any previous
periods of unlawful presence.
website notified DACA program participants that
[t]he fact that you are not accruing unlawful presence does
not change whether you are in lawful [immigration] status
while you remain in the United States. However, . . . your
period of stay is authorized by the [DHS] while your deferred
action is in effect and, for admissibility purposes, you are
considered to be lawfully present in the United States during
addition, the website stated that, "[a]part from the
immigration laws, 'unlawful presence, ' 'lawful
status' and similar terms are used in various other
federal and state laws, " and recommended that,
"[f]or information on how those laws affect individuals
who receive a favorable exercise of prosecutorial discretion
under DACA, please contact the appropriate federal, state or
in October 2015, the Secretary of the United States
Department of Education sent a "Key Policy Letter"
to the leaders of colleges and universities to provide
information about DACA. According to the Secretary, while
federal law did not prohibit the admission of undocumented
students to postsecondary educational institutions or require
the institutions to determine a student's citizenship or
immigration status, individual states might have laws or
policies relevant to these issues. Similarly, while
undocumented students were not eligible for federal student
financial assistance, they might be eligible for state,
institutional, and private student aid. The memorandum
specifically stated that, while DACA recipients
"may be eligible to receive in-State tuition
under State law for their enrollment in public postsecondary
educational institutions, " that determination
"depends on State law and
Procedural Background of the Instant Case.
April 2016, the Appellees filed a petition for a writ of
mandamus, asserting that the Appellants had improperly
denied them "in-state tuition" status, even though
they met the residency requirements set forth in the policy
manual of the Board of Regents ("Board").
Specifically, the Appellees claimed that, as DACA recipients,
the federal government considered them to be "lawfully
present" in the United States and that the Appellants
had failed to discharge their duty when they refused to
accept this classification when determining whether the
Appellees were eligible for in-state tuition. The Appellees
asked the superior court to issue a writ of mandamus to
compel the Appellants to comply with OCGA § 20-3-66
and Board Rules 4.3.4 and 18.104.22.168,  and to "fully and
correctly implement" the Board's in-state tuition
standards by finding that they were "lawfully
present" and, thus, qualified for in-state tuition.
Appellants filed a motion to dismiss, arguing several
substantive grounds, including that a writ of mandamus would
only lie when a public official had a "clear legal
duty" to perform in a specific manner and that the
DHS's statement that DACA recipients would be deemed
"lawfully present" for federal immigration purposes
did not create a clear legal duty requiring the Appellants to
classify the Appellees as instate residents for tuition
purposes. The same day, the Appellees filed a motion for
summary judgment, arguing that they had petitioned and been
approved for [DACA], giving them "lawful presence"
in the United States. The [Appellants] have continued to use
an incorrect definition of federal law to bar [them] from
paying in-state tuition, despite the federal government
unequivocally stating that DACA beneficiaries do have
"lawful presence" in the United States.
Appellees argued that "lawful presence" was a
"legal term . . . defined by federal law"; that
"the responsibility to determine lawful presence [was]
singularly held by the federal government"; and that
"[w]hether a student [had] 'lawful status' [was]
irrelevant" to the determination of whether a student
met the residency requirement for in-state tuition. Thus,
claiming that they met the requisite "lawful
presence" requirement, the Appellees asserted that they
were entitled to in-state tuition and mandamus relief.
superior court held a hearing on the parties' motions,
then entered an order on December 30, 2016, denying the
Appellants' motion to dismiss and granting the
Appellees' motion for summary judgment. The court ruled
the federal government has made clear that DACA recipients
are lawfully present in the United States. The Board of
Regents has a policy which requires lawful presence in the
United States in order to receive in-state tuition status.
The Board of Regents refuses to accept the current lawful
status that [the Appellees] have been granted. Under the
facts asserted in [the Appellees'] complaint this
constitutes [the Appellants'] failure to perform a clear
court referred to the designation of the DACA recipients as
being "lawfully present" in the United States as a
"clear and unambiguous standard" that the
Appellants were required to adopt as the definition of
"lawful presence" in the Board's official
policy. Consequently, the court found that the Appellees were
entitled to mandamus relief as a matter of law, and compelled
the Appellants "to perform their duty in applying the
federal definition of lawful presence as it relates to
students who are DACA recipients and to grant them in-state
tuition status." This appeal followed.
Appellate Standards of Review.
determining whether the superior court erred in granting
summary judgment to the Appellees, the following standard
In order to prevail on a motion for summary judgment under
OCGA § 9-11-56, the moving party must show that there
exists no genuine issue of material fact, and that the
undisputed facts, viewed in the light most favorable to the
nonmoving party, demand judgment as a matter of law.
Moreover, on appeal from the denial or grant of summary
judgment[, ] the appellate court is to conduct a de novo
review of the evidence to determine whether there exists a
genuine issue of material fact, and whether the undisputed
facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law.
determining whether the court erred in denying the
Appellants' motion to dismiss the Appellees'