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Dreamers seeking in-state tuition petition Georgia high court to overturn case

LOS ANGELES, CA - AUGUST 15:  A group of immigrants, known as DREAMers, hold flowers as they listen to a news conference to kick off a new program called  Deferred Action for Childhood Arrivals at the Coalition for Humane Immigrant Rights of Los Angeles on August 15, 2012 in Los Angeles, California. Under a new program established by the Obama administration undocumented youth who qualify for the program, called Deferred Action for Childhood Arrivals, can file applications from the U.S. Citizenship and Immigration Services website to avoid deportation and obtain the right to work  (Photo by Kevork Djansezian/Getty Images)

LOS ANGELES, CA - AUGUST 15: A group of immigrants, known as DREAMers, hold flowers as they listen to a news conference to kick off a new program called Deferred Action for Childhood Arrivals at the Coalition for Humane Immigrant Rights of Los Angeles on August 15, 2012 in Los Angeles, California. Under a new program established by the Obama administration undocumented youth who qualify for the program, called Deferred Action for Childhood Arrivals, can file applications from the U.S. Citizenship and Immigration Services website to avoid deportation and obtain the right to work (Photo by Kevork Djansezian/Getty Images)  (2012 Getty Images)

A group of young people brought to the U.S. illegally as children is asking Georgia's highest court to overturn the dismissal of a lawsuit they filed seeking access to in-state tuition at the state's colleges and universities.

The roughly three dozen young immigrants have been granted temporary permission to stay in the U.S. under an Obama administration policy introduced in 2012. Their lawsuit asks a judge to instruct the university system's Board of Regents to allow them to qualify for in-state tuition.

The Georgia university system requires any student seeking in-state status for tuition purposes to provide verification of "lawful presence" in the U.S. The Regents have said students with temporary permission to stay under the 2012 program — known as Deferred Action for Childhood Arrivals or DACA — do not meet that requirement.

Lawyers for the state argue that the young people do not, in fact, have "lawful status" in this country. Moreover, the state's lawyers argue, the Board of Regents is protected from the lawsuit under the principle of sovereign immunity, which shields the state and state agencies from being sued unless the General Assembly has explicitly waived that protection.

A Fulton County Superior Court judge in June 2014 agreed with the state that the Board of Regents is protected by sovereign immunity, and the state Court of Appeals upheld that ruling in March. Now the young immigrants want the state Supreme Court to rule that the board isn't protected by sovereign immunity and to send the case back to the Superior Court for a ruling on the merits of the lawsuit.

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Charles Kuck, the young immigrants' lawyer, argues that since they are seeking a declaratory judgment — a ruling by the court that states legal rights — sovereign immunity does not apply. That protection only applies in cases where a party is seeking injunctive relief, which generally involves a court order to do something or stop doing something, Kuck argues.

A 2014 Georgia Supreme Court decision found that state agencies are protected from lawsuits involving damages or injunctive relief, but that opinion did not specifically address declaratory judgments.

If sovereign immunity were to apply to suits seeking a declaratory judgment, it would mean a state agency could make and interpret administrative rules in any way it wanted to and then stand behind sovereign immunity if challenged. That, Kuck added, would be illegal and unconstitutional.

Lawyers for the state argue that the 2014 Supreme Court ruling should not be interpreted as excluding cases in which declaratory relief is sought. The trial court and Court of Appeals were correct in finding that "the same constitutional analysis that protects the State from actions for damages and claims for injunctive relief applies with equal force in protecting the State from declaratory relief," the state's brief says.

The Supreme Court is set to hear oral arguments in the case Friday in a special session at the Gilmer County Courthouse in Ellijay.

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