Garrett Roe, staff attorney with the Immigration Reform Law Institute, comments on Sheriff Pendergraph’s opinion that U.S. immigration law does not define admission to a college or university as a public benefit:
Even with paying “out-of-state” tuition, it is hard to understand how someone could come to the conclusion that a state publicly funded community college is not a public benefit, given the definition in the federal statute. Pendergraph is ignoring a key part of the definition — “assistance … by appropriated funds of a State or local government.” In other words, if state funds are appropriated to “assist … individuals, households, or family eligibility units,” it is a public benefit. Community colleges (and state colleges) are funded by appropriations in the state to help the individuals and households who attend. Alternatively, if any payments or assistance are provided to the statute’s identified groups of people, it would also be considered a “public benefit.”
If Congress only wanted to focus on “payments to families,” it would not have used the term “assistance.” “Assistance” is a very broad term. Additionally, if Congress wanted to only focus on “direct” assistance to these groups, it would not have included the term “by appropriated funds of a State…” This letter ignores these two key portions of the statute. If the state wants to admit illegal aliens into public colleges they can do so, only by “enacting a state law which affirmatively provides for such eligibility” so that voters have a choice as to whether that is truly what they want. Pendergraph ignores this requirement as well by suggesting a state administrative agency could admit illegal aliens on its own. Of course, even if the State enacted such a law, a separate provision of federal law would prevent the State from giving in-state tuition to illegal aliens unless the State gave that benefit to all United States citizens as well.
The relevant statute is 8 USC 1621: read it here.
And, if you want to learn more about IRLI and its work, please join us on September 19 in RTP, where Michael Hethmon, general counsel for IRLI, will be leading a workshop on what local governments can do about illegal immigration.