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Herrera v. Finan

United States District Court, D. South Carolina, Spartanburg Division

March 31, 2016

JOHN L. FINAN, et al. Defendants.


Bruce Howe Hendricks United States District Judge

This matter is before the Court on Plaintiff’s motion for partial summary judgment and for a permanent injunction (ECF No. 38) and Defendants’ motion for summary judgment (ECF No. 40). For the reasons set forth in this Order, Plaintiff’s motion is denied, Defendants’ motion is granted, and the suit is dismissed in its entirety.


Plaintiff Angelica Rocha Herrera (“Plaintiff” or “Ms. Rocha”) is a U.S. citizen who was born in Texas and has lived in South Carolina nearly her entire life. During the process of applying to two different South Carolina post-secondary education institutions, South Carolina law and regulations were applied in a manner that designated her as a non-resident for college tuition and scholarship purposes, despite over fifteen (15) years of continuous residency in South Carolina. Plaintiff asserts that she was treated fundamentally differently than similarly situated U.S. citizens and denied residency based solely on the unlawful immigration status of her parents. The Commissioners of the South Carolina Commission on Higher Education (the “Commission, ” “CHE, ” or “Defendants”) administer South Carolina’s state tuition and financial aid regulatory framework, including promulgation of the regulations that were applied to preclude Plaintiff from eligibility for in-state tuition and other financial benefits otherwise afforded to U.S. citizens who are residents of South Carolina. Defendants assert that they did not make the residency determination in Plaintiff’s case, and indeed do not make the residency determination in any particular case. They further argue that they cannot be held responsible when financial aid and admissions personnel at various South Carolina colleges and universities apply the regulations they promulgate in a putatively unconstitutional manner. Curiously, neither college to which Plaintiff applied and from which she received a determination of non-residency is a party to this lawsuit.

In her motion, Plaintiff asserts that summary judgment is appropriate on the question of Defendants’ liability for alleged unconstitutional withholding of residency status, but argues that the damages Plaintiff suffered as a result include questions of fact properly left for trial. Moreover, Plaintiff avers that as a matter of law, the Court should permanently enjoin Defendants from unconstitutionally withholding residency status to otherwise qualified U.S. citizens. In their motion, the Defendants present a number of separate and independent bases for summary judgment, including the fact that not a single named Defendant, nor “the Commission” as a whole, was involved in the decision to withhold residency status from Plaintiff. The Defendants assert that the regulations promulgated by the Commission merely create a rebuttable presumption that a dependent student’s residency mirrors that of their parent(s) and do not target students whose parents are undocumented in particular. Moreover, Defendants aver that the same statutory and regulatory scheme that Plaintiff is now challenging as unconstitutional has been applied to grant residency to another student in exactly the same position as Plaintiff, a U.S. citizen dependent student whose parents are undocumented immigrants.

Plaintiff filed her complaint on June 10, 2014, alleging that the Chairman and individual commissioners of the CHE, in their individual and official capacities, violated guarantees of Equal Protection, Substantive Due Process, and Privileges and Immunities included within the Fourteenth Amendment to the U.S. Constitution. (See ECF No. 1.) Her fundamental claim is that by administering residency determination regulations in a manner to classify U.S. citizens as non-residents of South Carolina on the basis of their parents’ immigration status Defendants have betrayed these core protections of the Fourteenth Amendment. As such, pursuant to 42 U.S.C. § 1983, Plaintiff seeks a declaration from this Court that S.C. Code § 59-112-20 and S.C. Code of Regs. §§ 62-602(C) and 62-603(B) are unconstitutional on their faces and/or as applied to Plaintiff. Plaintiff further seeks restitution, damages, and an award of costs and attorneys’ fees.

Plaintiff was born in Dallas, Texas, and moved to Greenville, South Carolina as a toddler. (Rocha Decl. ¶¶ 2-3, ECF No. 38-2.) She has spent virtually her whole life living with her family in South Carolina. (Id. at ¶¶ 3-4.) Her family pays taxes in South Carolina as residents. (Id. at ¶ 8.) Plaintiff attended Greenville public schools for her entire primary and secondary education career. (Id. at ¶ 4.) She has a South Carolina driver’s license. (Id. at ¶ 6; see also Castillo Decl. Ex. I, ECF No. 39-9 (South Carolina Department of Motor Vehicles form indicating proof of state residency as prerequisite for issuance of a driver’s license and DMV form indicating proof of state residency requirement for a driver’s license).) For all intents and purposes, South Carolina is Plaintiff’s home state in the colloquial sense of the term.

As a result of her academic success, Plaintiff was awarded a $2, 000 yearly scholarship by the School District of Greenville County, called the Sirrine Scholarship. (Converse Dep. Exs. 20, 25, ECF No. 39-6 at 5-6; Castillo Decl. Ex. H., ECF No. 39-8.)[1]Plaintiff also met the academic requirements for the South Carolina Legislative Incentive for Future Excellence (“LIFE”) Scholarship, which provides South Carolina residents up to $5, 000 scholarship, renewable up to four years. (See Converse Dep. Exs. 4, 5, ECF No. 39-6 at 3-4); see also S.C. Code §§ 59-149-10(E), 59-149-50(D); S.C. Code of Reg. §§ 62-1200.10(A)(3), 62-1200.65(A).

Plaintiff applied to and was accepted into the Center for Educator Recruitment, Retention and Advancement (“CERRA”) Teaching Fellowship, a special program offered to South Carolina residents who have demonstrated high academic achievement, a history of public service, and a desire to teach in South Carolina. (Rocha Decl. ¶ 10, ECF No. 38-2; Castillo Decl. Ex. U, ECF No. 39-21.) The CERRA Teaching Fellowship program is available at a small selection of higher education institutions in South Carolina, including the University of South Carolina-Upstate (“USC-Upstate”). (Castillo Decl. Ex. U, ECF No. 39-21.) Fellows participate in specialized educational and professional development opportunities, and receive up to $6, 000 annually in financial aid for four years. (Id.) In exchange for these unique opportunities and the financial assistance, CERRA fellows commit to teaching in South Carolina primary or secondary schools for at least four years. (Id.)

During the process of collegiate enrollment at USC-Upstate and Converse College (“Converse”), Plaintiff was classified as a non-resident for tuition and scholarship purposes. Plaintiff attempted to attend both USC-Upstate and Converse as a resident of South Carolina eligible for instate tuition, the LIFE Scholarship, and other state aid. By way of their interpretation of South Carolina laws and CHE regulations, admissions and financial aid personnel at both institutions determined that Ms. Rocha was not a state resident because she was a dependent of her parents, whose immigration status precluded a positive residency finding.[2] (See Rocha Dep. Ex. 3, ECF No. 39-1 at 9; Collins Dep. Exs. 5, 8, ECF No. 39-5 at 5-6.) Plaintiff is unable to produce any documentation to substantiate lawful immigration status on the part of her parents because there is none. (See Rocha Cont’d Dep. 8:9-21, 12:9-14:15, ECF No. 39-2.) Plaintiff asserts that she submitted various documents, such as a utility bill, her birth certificate, and her parents’ tax documents, to financial aid personnel at USC-Upstate and Converse in an attempt to provide bona fides of residency in South Carolina, but that these efforts were to no avail. (Rocha Decl. ¶¶ 23-26, 29-30, 34, 39-40, ECF No. 38-2.)

Plaintiff first tried to enroll at USC-Upstate. (Rocha Decl. ¶ 11, ECF No. 38-2.) Based upon her application information, USC-Upstate did not make a final determination of Plaintiff’s South Carolina residency at that time and considered it pending. (See Castillo Decl. Exs. Q, R, ECF Nos. 39-17, 39-18.) Plaintiff next completed an electronic residency application on the USC-Upstate student portal in an attempt to provide additional information to establish state residency. (Rocha Decl. ¶¶ 13-15, ECF No. 38-2; USC-Upstate Dep. Exs. 3, 15, ECF No. 39-4.) On the electronic residency application, Plaintiff indicated that her father held Georgia driver’s license no. 7546957 issued on July 5, 2011. (USC-Upstate Dep. Exs. 15, ECF No. 39-4 at 12.) When questioned about the Georgia driver’s license in a deposition, Plaintiff stated, “I was told to put any information in there because I couldn’t continue my enrollment process if I didn’t fill that portion out.” (Rocha Cont’d Dep. 20:10-20:23, ECF No. 40-3.) Defendants assert that later in the deposition Plaintiff admitted that the information regarding the Georgia driver’s license was false. (ECF No. 40-1 at 22; see Rocha Cont’d Dep. 20, 22.)[3] Plaintiff alleges that on two separate occasions USC-Upstate personnel informed her that the applicable law and regulations precluded them from classifying her as a South Carolina resident without her producing all the information requested in the residency application, including documentation of her parents’ lawful immigration status. (See Rocha Decl. ¶¶ 19-26, 33-34, ECF No. 38-2; Castillo Decl. Ex. S, ECF No. 39-19.) Plaintiff does not remember any USC-Upstate staff member or document informing her of the option to appeal the residency determination. (Rocha Decl. ¶ 35, ECF No. 38-2.)

In her deposition, Donette Stewart, who was the Associate Vice Chancellor for Enrollment Services at USC-Upstate during the time period in question, indicated her view that the decision to deny Ms. Rocha residency was likely heavily influenced by the submission of an out-of-state driver’s license for the parent on whom Ms. Rocha was dependent. (USC-Upstate Dep. 218:25-219:17, ECF No. 40-4.) When asked what the non-residency determination was specifically based on, she referred to the electronic residency application completed by Plaintiff, stating:

Well, I think the decision when Star updated the residency screen was based on an out-of-state driver’s license and, on the screen where you list that you file South Carolina taxes and then you list what state your parents live in and nothing was listed. So I think it’s a general review of the information, that would be why she determined it to be nonresident.

(Id. 219:6-219:12.) Ms. Stewart later described the significance of a driver’s license submitted during the residency determination process at USC-Upstate: “[I]t’s one of the items on the list for what qualifies for someone to be a South Carolina resident, legal resident. The absence of it in another state, and having the state of South Carolina.” (Id. 240:12-240:19 (emphasis added).) When asked if the University made any determination regarding whether the person upon whom Ms. Rocha was dependent was a citizen of the United States, Ms. Stewart responded, “I could not find any information in the documentation I had. And I looked through, you know, every file that we had. And I couldn’t find anything on that.” (Id. 219:18-219:23; see also Id. 240:6-240:11.) When asked whether she or anyone at USC-Upstate consulted with anyone at the CHE regarding Ms. Rocha’s residency determination, Ms. Stewart indicated that she was not aware of any such communication and could not find any documentation in that regard. (Id. 234:8-234:17.) Finally, when asked to explain the process of appealing a residency determination at USC-Upstate, Ms. Stewart stated:

If the student doesn’t agree with the decision, they would communicat[e] that with a staff member, and the staff member would discuss the situation with me, you know, just providing whatever information the student had submitted to make a decision. And if I have questions about whether I feel like the classification was appropriate, I would either contact [the] USC residency officer, or I would contact Gerrick Hampton at CHE.

(Id. 235:9-235:20.) Ms. Stewart could not find any information about an appeal by Ms. Rocha, and does not believe she was ever consulted on Ms. Rocha’s case. (Id. 235:21-235:25.)

Ultimately, USC-Upstate determined Plaintiff was not a resident of South Carolina for tuition and scholarship purposes. (See Rocha Dep. Ex. 3, ECF No. 39-1 at 9.) This determination doubled the cost of tuition and simultaneously eliminated between $8, 000 and $10, 500 in annual state scholarships and grants, [4] making USC-Upstate, according to Plaintiff, unaffordable for her and her family. (Rocha Decl. ¶ 27, ECF No. 38-2; Castillo Decl. Ex. X, ECF No. 39-24.) Ms. Rocha’s financial inability to attend USC-Upstate also meant that she would not be able to join her cohort within the CERRA Teaching Fellowship program, and she submitted a resignation form to that effect. (Rocha Decl. ¶¶ 31, 36, ECF No. 38-2; USC-Upstate Dep. Ex. 10, ECF No. 39-4.)

Plaintiff next approached Converse, explained what happened with her initial plan to enroll at USC-Upstate, and provided necessary enrollment and financial aid documents to begin the process of enrolling at Converse. (Rocha Decl. ¶¶ 29-30, 38, ECF No. 38-2.) The Director of Financial Aid at Converse, Ms. Peggy Collins, reached out to the CHE via email to inquire whether Plaintiff could be considered for state financial aid notwithstanding her parents’ immigration status. (CHE Dep. Ex. 6, ECF No. 39-3.) Ms. Collins stated her question as: “Dependent student is a U.S. Citizen but her parents are not citizens nor are they permanent residents. Is the student eligible for state scholarships?” (Id.) She further noted, “My interpretation of the regs says since she is a dependent she is not eligible. Or am I being too strict?” (Id.) Ms. Collins sent this email on July 22, 2013. (Id.)

The next day, Mr. Gerrick Hampton, Assistant Director, Student Services Division and S.C. GEAR UP Program Manager at the Commission, [5] responded by noting that they “were wondering when this [scenario] might come up, ” and asking a series of follow up questions about the dependent student’s (Ms. Rocha) individualized circumstance. (Id.) Mr. Hampton further stated, “Sorry for the questions, and ultimately we may need to have a phone convo about this, but I want to get some facts first.” (Id.) Ms. Collins, in turn, provided relevant particulars about Plaintiff’s situation that might weigh for or against Plaintiff’s eligibility. (Id.) Over the phone, Mr. Hampton provided guidance to Ms. Collins, referencing the particular facts about Plaintiff’s situation that they exchanged by email, and discussing the need for Converse to put Plaintiff through an appeal of the residency decision. (CHE Dep. 63:1-64:12, ECF No. 39-3.) According to Mr. Hampton, he advised Ms. Collins that “whatever determination the institution came up with . . . or what the appeal committee came up with is what she would need to communicate to [Plaintiff].” (Id. at 64:6-64:12.)

Converse ultimately determined that Plaintiff was not eligible for certain state scholarships and financial aid due to a lack of residency. (See Collins Dep. Exs. 5, 8, ECF No. 39-5; Converse Dep. Ex. 20, ECF No. 39-6.) On a handwritten worksheet documenting Plaintiff’s various sources of financial aid at Converse for the 2013-2014 school year there is a note stating: “Parent not citizen.” (Collins Dep. Ex. 5, ECF No. 39-5.) On a similar worksheet for the 2014-2015 school year next to entries SCTG (indicating South Carolina Tuition Grant) and LIFE the handwritten note reads: “Parents not legal res.” (Collins Dep. Ex. 8, ECF No. 39-5.) In January 2014, approximately six months after Converse denied Plaintiff residency for scholarship and financial aid purposes, Mr. Hampton reached out to Ms. Collins and asked what ultimately happened with the residency determination. (CHE Dep. Ex. 6, ECF No. 39-3 at 21 (“What ultimately happened with this student? Were they awarded LIFE/SC HOPE/SCTG?”).)

At the time of the filing of her motion for summary judgment, Plaintiff alleged that she was still considered a non-resident of South Carolina for tuition and financial aid purposes based solely on her parents’ immigration status. (ECF No. 38-1 at 15.) As a result, Ms. Rocha averred, she and her family have had to pay significantly larger amounts for her to attend college at an institution that does not have the same quality of educational offerings in her desired field of specialization, and she lost the unique opportunity to be part of the CERRA Teaching Fellowship program. (See Rocha Dep. 71:2-72:16; 75:12-76:7, ECF No. 39-1; USC-Upstate Dep. Ex. 10, ECF No. 39-4.)

Plaintiff and Defendants each moved for summary judgment (ECF Nos. 38 & 40). Responses (ECF Nos. 43 & 44) and replies (ECF Nos. 46 & 47) were filed by both parties. Plaintiff further submitted a supplement to its reply (ECF No. 49) in order to have her expert swear by affidavit to his previously unsworn report regarding the value of teacher education and the CERRA Teaching Fellowship program. Defendant further submitted the affidavit of Julie Carullo (ECF No. 51-1), Director of External Affairs for the CHE, and an accompanying guidance document approved by the CHE on October 1, 2015, entitled “Residency for Tuition/Fee and State Scholarship/Grant Purposes of U.S. Citizen Students with Undocumented Parents” (ECF No. 51-2). The guidance document was communicated to the presidents of all South Carolina public and independent colleges and universities on October 2, 2015, by way of a memorandum issued by Gary Glenn (ECF No. 51-3), Interim Executive Director of the CHE. Plaintiff next filed a response (ECF No. 52) to Ms. Carullo’s affidavit and the guidance document therein, and the response included the supplemental declaration of Ms. Rocha, dated October 27, 2015, stating:

2. Converse College recently informed me, for the first time, that I am deemed a state resident. By August 31, 2015, Converse College had updated my awards package to include the LIFE Scholarship and South Carolina Tuition Grant for this academic year.
3. To date, I have not been awarded any retroactive LIFE Scholarship awards for my freshman or sophomore years.

(ECF No. 52-1 at 1.) On November 24, 2015, Plaintiff filed a notice of change of fact in support of their motion for summary judgment. (ECF No. 54.) By way of the notice, Plaintiff informed the Court that she received a check for $7, 259 in retroactive payment for LIFE Scholarship awards. (Id. at 1; Rocha 2d Suppl. Decl. at ¶ 2, ECF No. 54-1.) The check for $7, 259 included a $5, 000 retroactive LIFE Scholarship award for 2013-2014, plus $5, 000 for a retroactive LIFE Scholarship award for 2014-2015, minus $2, 741 to refund Converse for part of the Presidential Scholarship they offered Plaintiff in 2014-2015.[6] (Rocha 2d Suppl. Decl. at ¶ 3, ECF No. 54-1.) In the notice, Plaintiff explained various reasons why, in her view, the retroactive awards reduced but did not eliminate the alleged damages she has incurred as a result of being classified as a nonresident, and why she believes she is still entitled to compensatory and injunctive relief. (ECF No. 54 at 1-2.)


In South Carolina, a dependent student is eligible for in-state tuition rates if the person(s) upon whom they are dependent is(are) eligible for in-state rates. (CHE Dep. 180:3-12; ECF No. 39-3.) The burden of proving eligibility for in-state tuition rates is always on the student:

Each State Institution shall designate an official to administer the provisions of this chapter. Students making application to pay tuition and fees at in-state rates shall have the burden of proving to the satisfaction of the aforesaid officials of State Institutions that they have fulfilled the requirements of this chapter before they shall be permitted to pay tuition and fees at such rate.

S.C. Code § 59-112-80. For independent persons and their dependents, domicile and residence for purposes of in-state tuition can be demonstrated by those persons either making South Carolina their permanent home for at least twelve months, or by living in South Carolina for less than twelve months and having full-time employment in the state. S.C. Code § 59-112-20(A), (B). “The residence and domicile of a dependent minor [is] presumed to be that of the parent of such dependent minor.” S.C. Code § 59-112-20(D) (emphasis added). A “dependent” is defined, in relevant part, as “one whose financial support is provided not through his own earnings or entitlements, but whose predominant source of income or support is payments from a parent, spouse, or guardian, and who qualifies as a dependent or an exemption on the federal tax return of the parent, spouse, or guardian.” S.C. Code § 59-112-10(G). A “minor” is defined as “a person who has not attained the age of eighteen years”. S.C. Code § 59-112-10(H). Moreover, persons who cannot establish that they are lawfully present are barred from eligibility for in-state rates: “An alien unlawfully present in the United States is not eligible on the basis of residence for a public higher education benefit including, but not limited to, scholarships, financial aid, grants, or resident tuition.” S.C. Code § 59-101-430(B).

Taking the above statutory provisions together, all dependent U.S. citizen students are presumed not to be South Carolina residents for tuition purposes if they are dependent upon persons who cannot demonstrate they have a lawful immigration status or, in the case of dependent minors, their parents cannot demonstrate a lawful immigration status. Furthermore, residency determinations for other forms of South Carolina state financial aid, including the LIFE Scholarship, rely on the determination of residency for tuition purposes. See, e.g., SC Code § 59-149-20(B) (requiring a student seeking a LIFE Scholarship as a freshman at a public or independent South Carolina institution to be, inter alia, “classified as a resident of South Carolina for in-state tuition purposes under Chapter 112 of this title at the time of enrollment at the institution”).

The CHE, established in 1967, is a body within the South Carolina government that “provides statewide policy direction, management, and oversight of the state’s higher education enterprise.” (Castillo Decl. Ex. M., ECF No. 39-13 at 2.) Among other responsibilities, the Commission “[o]versees [the] administration of student financial aid to provide statewide equity of awards and consistency of selection criteria.” (Id.) Consistent with its statutorily defined mission set, the Commission has promulgated regulations specifically related to the determination of residency for tuition and scholarship purposes. See S.C. Code § 59-112-100 (granting authority to “prescribe uniform regulations”).

CHE regulations dictate that the LIFE Scholarship uses the same residency criteria used in a residency determination for tuition purposes. See S.C. Code of Reg. § 62-1200.5(NN) (defining “South Carolina resident” as an individual who satisfies the requirements of residency in accordance with the state statute for tuition and fees, SC Code § 59-112-10, and all related guidelines and regulations). Under the applicable regulations, a “resident” for tuition and fees purposes is defined as “an independent person who has abandoned all prior domiciles and has been domiciled in South Carolina continuously for at least twelve months immediately preceding the first day of class of the term for which resident classification is sought . . . .” S.C. Code of Reg. § 62-602(N). Furthermore, “the residence and domicile of a dependent person [is] presumed to be that of their parent, spouse, or guardian.” S.C. Code of Reg. § 62-603(B) (emphasis added). A “dependent person” is defined as “one whose predominant source of income or support is from payments from a parent, spouse, or guardian, who claims the dependent person on his/her federal income tax return.” S.C. Code of Reg. § 62-602(C). One discernable difference between these regulations and the aforementioned statutes is that the regulations do not limit the presumption of mirrored residency to “dependent minors, ” rather the regulatory presumption applies to all “dependent persons.”

Similar to the statutory scheme, the regulatory framework categorically excludes “non-resident aliens” from eligibility to receive state sponsored scholarships, though certain specified visa classifications may make non-resident aliens eligible for in-state tuition. S.C. Code of Reg. § 62-604(A); (see also Castillo Decl. Ex. N, ECF No. 39-14 (listing authorized visa categories)). A “non-resident alien” is defined as “a person who is not a citizen or permanent resident of the United States, ” by virtue of which status such a person “generally [does] not have the capacity to establish domicile in South Carolina.” S.C. Code of Reg. § 62-602(K).

Thus, much like the statutes already described, the regulatory scheme pertaining to in-state tuition and state sponsored scholarships directs South Carolina colleges and universities to presume that dependent U.S. citizens are not residents of South Carolina if the person who provides their predominant source of income or support cannot demonstrate lawful immigration status. At the time cross-motions for summary judgment were filed, the Commission had not yet promulgated any regulation or issued any formal guidance explicitly stating that this presumption could be rebutted. However, all South Carolina colleges and universities were and are required by regulation to establish an appeals process to be utilized by any student who disagrees with the initial residency determination made by the relevant institution:

Each institution will develop an appeals process to accommodate persons wishing to appeal residency determinations made by the institution’s residency official. Each institutions appeal process should be directed by that institutions primary residency officer, in conjunction with those individuals who practice the application of State residency regulations on a daily basis. The professional judgment of the residency officer and administrators will constitute the institutional appeal process. Neither the primary residency official nor appellate official(s) may waive the provisions of the Statute or regulation governing residency for tuition and fee purposes.

S.C. Code of Reg. § 62-612(B). In a manner similar to the statutory scheme regarding residency, CHE regulations place the burden of proof on the student to establish eligibility for in-state tuition rates and state scholarships:

If a person asserts that his/her domicile has been established in this State, the individual has the burden of proof. Such persons should provide to the designated residency official of the institution to which they are applying any and all evidence the person believes satisfies the burden of proof. The residency official will consider any and all evidence provided concerning such claim of domicile, but will not necessarily regard any single item of evidence as conclusive evidence that domicile has been established.

S.C. Code of Reg. § 62-605(B).

In a Rule 30(b)(6) deposition dated June 10, 2015, Mr. Gerrick Hampton on behalf of CHE testified to not having specific guidelines to determine the relative weight to be placed on a dependent student’s parent’s immigration status in the event a student was denied residency based on the parent’s status and subsequently appealed that denial; rather, Mr. Hampton stated, “if a student is denied on that reason, the burden of proof is on the student, ” “the institution would have to make that determination in an appeal situation, ” and “the institution would consider the weight of the evidence the student provides and the commission does not have a listing, a rating, or how they might consider that.” (CHE Dep. 177:5-178:4, 181:2-182:14, ECF No. 39-3.) A “Frequently Asked Questions Regarding S.C. Residency” form published by the Commission during the time period relevant to the allegations stated simply, “If a parent, guardian, or spouse provided more than half of [a] student’s support for the past twelve months, the student is considered dependent and it is the parent, guardian, or spouse that must meet the residency requirements;” there is no comment regarding rebutting the presumption contained in the relevant statutes and regulations, nor is there any comment regarding dependents whose parent, guardian, or spouse cannot prove lawful immigration status. (CHE Dep. Ex. ...

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