Getting the Facts Right on Virginia's Grant of In-State Tuition to Illegal Aliens

By Jon Feere on May 4, 2014

The governor and attorney general of Virginia have misled the public and the media on their plan to grant in-state tuition breaks to illegal aliens. Last week Attorney General Mark R. Herring (D) sent a letter to presidents of the state's colleges and universities advising them that Virginia would begin recognizing President Obama's lawless Deferred Action (DACA) policy as justification for granting illegal aliens in-state tuition.

Recall that in 2012 the Obama administration unilaterally decreed that illegal aliens up to age 30 who meet certain criteria will not face deportation and would receive work permits; over 500,000 illegal aliens have benefited from this amnesty, over 8,000 of whom live in Virginia. Whether states are obligated to recognize President Obama's decree as justifying the issuance of driver's licenses, in-state tuition, and other benefits remains an ongoing legal question, but some states are not so quick to embrace the unilateral act.

In the press release announcing Virginia's decision to grant in-state tuition to illegal aliens, the state's attorney general made a number of claims that are factually incorrect. What is unclear is whether the errors are part of an effort to make in-state tuition appear more appealing than it actually is, or whether the attorney general is simply uninformed about DACA.

No Requirement to Be Brought Here. Attorney General Herring justified the grant of in-state tuition to illegal aliens who qualify for DACA by arguing that the beneficiaries are people who "had no say in their arrival process" and "were brought here as children many years ago". These statements suggest that the beneficiaries would be people who are not legally or morally culpable for being in the United States illegally.

However, it is not a requirement in DACA that applicants prove they were brought here through no fault of their own. To be eligible for DACA, illegal aliens must prove that either they "entered without inspection before June 15, 2012" or that their "lawful immigration status expired" by that date. Many illegal immigrants under age 16 enter the country illegally without their parents; DHS recently reported an increase in unaccompanied youths crossing the border illegally. Officials report that up to 120 unaccompanied youths arrive each day, a number that has tripled over the last five years and that by some estimates could soon reach 60,000 a year.

Media outlets have been misled by the statements and have reported that the plan is for "children of illegal immigrants", which is simply untrue. The parents of the illegal aliens who would benefit can still be in the homeland; a parent's legal status is entirely irrelevant to DACA and the in-state tuition grant. But that hasn't stopped Virginia Sen. Mark Warner (D) from describing the policy as one for "the children of undocumented immigrants ... who were brought here through no fault of their own."

Both DACA and Virginia reward illegal aliens who knowingly and willingly entered the country illegally of their own volition.

Criminal Records Okay. Attorney General Herring justified the in-state tuition discount for illegal aliens by explaining that to be eligible, illegal immigrants would first have to be approved for DACA status and meet "rigorous standards". However, the attorney general misled Virginians by claiming the DACA standards require proof of "no criminal record". To be eligible for DACA and, consequently Virginia's in-state tuition rate, one simply must prove they have "not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors" while in the United States. The terms of DACA explicitly explain that a person can have two misdemeanors, which is not a clean record. Misdemeanors are crimes less serious than felonies, but may result in fines, probation, and imprisonment under a year. But that is only half the story. The timing of the misdemeanors is significant and multiple misdemeanors may only count as one strike against the applicant. As USCIS explains in its DACA guidelines, an applicant is ineligible if he has three or more misdemeanors "not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct". An illegal alien who commits a handful of misdemeanors during one incident will see those crimes counted as "one misdemeanor" for purposes of DACA. The alien could commit an additional series of misdemeanors at a later date and, provided they all occurred during one incident, they would only count as a second misdemeanor.

Any criminal history in an alien's homeland is not even considered by DACA administrators.

I sent an e-mail to the attorney general's press department inquiring about this error and the press release was eventually updated. But the damage has been done as dozens of news sites, including the Washington Post, now incorrectly state that it would only benefit people with no criminal record. And Virginia Governor Terry McAuliffe (D) continues to state that he supports the idea of giving in-state tuition to illegal aliens who have "have stayed out of trouble".

Residency Requirement. The concept of in-state tuition is based on the idea that residents of a state have been subsidizing the state's schools for years through taxation and therefore deserve a lower rate than out-of-state students. Virginia has declared that illegal aliens within the state should be treated the same as citizens within the state. According to the attorney general's letter, being a resident of Virginia for one year is sufficient to make illegal aliens eligible for a tuition break.

The attorney general reasoned that illegal aliens who may have only been in the state for 12 months are "already Virginians in some very important ways", arguing that in "most cases they were raised here, they graduated from Virginia schools, and they have known no home but Virginia." None of these are requirements to obtain Virginia's in-state tuition rate and it is unclear how many illegal aliens fit this description. The fact is, plenty of recipients will likely have been raised for a longer period of time overseas than they have been raised in the United States. An 18-year-old who entered illegally at age nine and who is now applying for DACA and prepping to take advantage of Virginia's in-state tuition will have spent half his life overseas.

For some, the length of stay in the United States could be even shorter, since the DACA guidelines simply require illegal aliens to claim they were physically present in the United States before June 15, 2012, and have resided in the United States since June 15, 2007, (though they can travel back to their homeland for a considerable amount of time and still be considered to have resided in the United States). Today, a person could have been in the country for less than seven years (much less if you consider travel back home) and have lived in Virginia for one year to qualify for the tuition discount. Technically one could argue that the individual was "raised in Virginia" for the past 12 months if his or her parents are also in Virginia raising them, but clearly the person would not "know no home but Virginia".

Similarly, a 30-year-old illegal immigrant who entered the United States before age 16 and has only been in Virginia for 12 months would also qualify for DACA and the in-state tuition discount, provided all other requirements are met. In this instance, he would have graduated from a high school in a different state or different country and would have been raised for most of his adolescence overseas. Even though a hypothetical person with this background would be eligible, it is not the picture that the attorney general and other Virginian politicians are painting.

The Beneficiaries Are Not "Youngsters". Some media outlets are reporting that the in-state tuition grant is for children and "youngsters", even though the policy benefits people who were as old as 30 on July 15, 2012. In fact, many who are receiving Deferred Action status are already adults and some may be older than 30 today.

Virginia's Lieutenant Governor, Ralph Northam (D), has called the beneficiaries "young adults", which is at least a little more accurate. But it would be more accurate to describe the policy as one that benefits illegal aliens up to their early 30s.

Americans and Legal Immigrants. If in-state tuition rates are meant to benefit people who have paid taxes to the state, wouldn't a student who grew up in a neighboring jurisdiction — North Carolina, West Virginia, Kentucky, Tennessee, Maryland, or D.C. — and has spent significant amounts of tax dollars shopping in Virginia over the years, be more tied to the state, and more deserving of in-state tuition than an illegal alien who has only been in the state for a year? What if the illegal alien has been working off the books and not paying any income taxes, as many illegal aliens do? The truth is most students have not worked many hours and the in-state tuition discount is largely based on the assumed tax payments by the parents, the same people who often foot the tuition bill. In the case of many illegal immigrants, the parents are not even in the country and therefore haven't paid anything into the system.

As to legal immigrants, Virginia's logic on residency is a bit baffling. The attorney general reasons that legal immigrants on temporary visas are not entitled to in-state tuition because they can't establish that they plan to reside in the state "indefinitely". But he reasons that illegal aliens who receive Obama's DACA do qualify since the amnesty is "indefinitely renewable" and leads to the illegal alien forming the intent to stay in Virginia indefinitely. However, the DACA program is a temporary program that could be ended by the next president; the program must be renewed every two years. Virginia is offering a benefit to those who violate our sovereignty while requiring those who abide by our laws to pay more. Virginia is sending the message that it is more advantageous to be in the state illegally than it is to come legally on a student visa. The policy is just another example of states encouraging illegal immigration.