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A Message on Day v. Bond (10th Cir. 2008): Kansas Undocumented Resident Tuition Case

By immigrationprof

This is a message from Michael Olivas (Houston) on Day v. Bond, the Kansas undocumented resident tuition case.

Colleagues:

I have written you earlier concerning the ongoing Kansas undocumented resident tuition case, Day v. Sibelius and its 10th Circuit appeal, Day v. Bond. In both the trial opinión and the appeal, Kris Kobach argued that the statute violated federal law, especially Sec. 1621 and 1623 of IIRIRA/PWROA. Both courts found that there was no standing for his plaintiffs, who had been denied the residency re-classification due to their not meeting the durational requirements and domicile required under KS law.

Over the holidays, the 10th Circuit issued a denial petition for rehearing and for consideration en banc, and took more than the usual effort to explain why they had done so. This might have flown Ander your radar during that grading period (December 17, 2007), so I have attached it here, fyi. It does not yet have an F. cite.

Day v. Bond, 2007 WL 4376052, *4 (10th Cir 2007) (denying pet. for rehearing and for consideration en banc) (“In sum, the cases that Plaintiffs believe conflict with our opinion do no such thing. In each of these cases, it is clear that a sufficiently particularized injury existed in order to support standing. Here however, Plaintiffs have not asserted the existence of any such particularized injury. Although Plaintiffs may generally bring a preemption claim without an implied private right of action, in this particular instance, they do not have standing to do so because they have asserted no separate injury. Accordingly, we DENY the petition for rehearing with suggestion for rehearing en banc.”)

I have a forthcoming piece in the SMU Law Review on this topic, and so I am moving on to fry other fish for now. I will continue to track these state statutes and the DREAM Act, which will likely surface after the elections in a form of comprehensive immigration reform. I will, of course, be glad to talk with any of you about the issues. The SMU piece is at my website, where I will update the issues regularly: www.law.uh.edu/ihelg. Bring a pillow,

Michael

Michael A. Olivas University of Houston Law Center

KJ