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A.Z., A Minor, By B.Z., Her v. Higher Education Student Assistance Authority

August 8, 2012

A.Z., A MINOR, BY B.Z., HER GUARDIAN, APPELLANT,
v.
HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY, RESPONDENT.



On appeal from the Higher Education Student Assistance Authority, Docket No. 5802233239.

The opinion of the court was delivered by: Ostrer, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 16, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

The opinion of the court was delivered by

This appeal requires us to construe the provisions of New Jersey's student financial aid laws that define who is eligible to receive a Tuition Aid Grant (TAG). N.J.S.A. 18A:71B-2; N.J.S.A. 18A:17B-20(c)(1). A.Z., a United States citizen and a resident of New Jersey since 1997, appeals from the determination of the Higher Education Student Assistance Authority (HESAA or Authority) that she is ineligible to receive a TAG "because [her] parents are not legal New Jersey residents[.]" We conclude the Authority's decision is based upon a misapplication of law, and a regulation that alters the terms of the governing statute. We therefore reverse.

I.

A.Z. is a citizen of the United States. She was born in New York City in 1994. She has been supported by her mother who was, and continues to be, an undocumented immigrant from Guatemala. Her father does not provide for her support and is not a part of her life.

A.Z. moved to New Jersey with her mother in 1997. A.Z. attended public school here and graduated from a New Jersey high school in 2011. In February 2011, she applied for a TAG to assist her in attending college in New Jersey.*fn1 She also submitted the required Free Application for Federal Student Aid (FAFSA). In completing the parent information section of the FAFSA, A.Z. and B.Z. entered 000-00-0000 for B.Z.'s Social Security Number, as directed by the FAFSA instructions. They also provided B.Z.'s Individual Taxpayer Identification Number (ITIN), issued by the IRS, which B.Z. used to file state and federal tax returns. A.Z. reported income of $800 in 2010, and disclosed that her mother's adjusted gross income was $4950.

In March, HESAA sent A.Z. an "Application Information Request" that stated: "You are ineligible because your parents are not legal residents. If this is incorrect, return this form with copies of their 2010 NJ Resident Income Tax Return and their NJ Driver Licenses issued before September 16, 2010." A.Z. responded by providing copies of her mother's federal and state income tax returns, and county identification card. B.Z. was ineligible to obtain a New Jersey driver's license. See N.J.S.A. 39:3-10; N.J.A.C. 13:21-8.2(a)(7).

On April 25, 2011, HESAA denied A.Z.'s application. It sent a Student Eligibility Notice for the 2011-2012 academic year that stated: "Ineligible for the 2011-2012 academic year at the College of New Jersey because your parents are not legal New Jersey residents[.]" A note on the Applicant Information Request worksheet stated "mother has SS# for IRS purposes only[.] Not elig."

A.Z. appealed from the agency's decision on June 9, 2011. We denied HESAA's subsequent motion to dismiss for failure to exhaust administrative remedies and lack of final agency action.*fn2

A.Z. argues she is eligible to receive a TAG under the statute, which HESAA has misconstrued. Alternatively, she argues if HESAA has correctly construed the statute, then the agency's decision should be reversed because it violates her right to equal protection of the laws ...


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