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2006 Colorado Attorney General Reports and Opinions 1 (2006)

handle is hein.sag/sagco0067 and id is 1 raw text is: 1876 JOHN W. SUTIIERS STATE OF STATE SERVICES BILDING Attorney General 1525 Sherman Street - 5th Floor DEPARTMENT OF LAW Denver, Colorado 80203 CVNTHIA H. COFFMAN Phone (303) 866-4500 Chief Deputy Attorney General OFFICE OF THE ATrORNFV GENERAL ALLISON H. ElD Solicitor General FORMAL ) OPINION ) No. 06-01 Of ) AG Alpha No. HE IE AGBBT JOHN W. SUTHERS ) January 23, 2006 Attorney General ) This opinion, requested by Executive Director Rick O'Donnell, concerns the authority of the Colorado Commission on Higher Fducation (CCHE) to grant in-state tuition status to undOcurnelted aliens. QUESTION PRESENTED AND CONCLUSION Question: Whether CCHE has the statutory authority to, by policy or regulation, grant in-state tuition status to undocumented aliens. Answer: No. CCHE lacks statutory authority to establish a policy or regulation granting in-state tuition status to undocumented aliens. BACKGROUND Under two federal provisions enacted in 1996, undocumented aliens are generally not entitled to in-state residency for tuition purposes. Under the first, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, undocumented aliens are ineligible to receive state or local public benefits unless, through enactment of a state law after August 22, 1996, the state affirmatively provides for such eligibility. 8 U.S.C. § 1611, 1621. The second, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, states that aliens not lawfully present in the United States are not eligible on the basis of residence within a state for any state postsecondary education benefit unless any citizen of the United States would be eligible for such benefit regardless of residency. 8 U.S.C. § 1623. The effect of this provision is 1 For purposes of this memorandum, the term undocumented alien means an alien who is not lawfully present in the United States. See generally 8 U.S.C. § 1623; Equal Access Education v. Merten. 305 F.Supp. 2d 585, 592 (E.D.Va. 2004) (referring to aliens with undocumented status).

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