Case Information
*1 . .
The Attorney General of Texas April 15. 1985 JIM MATTOX
supreme Court BuikW Bonorable Carl A. Parker Opinion No. J-N-309 P. 0. Box 1254S Chairman Auslln. TX. 7B711. 254s Education Comittee Rc: #ether nationals foreign 51214752501 Texaa State Senate admitted CO the United States Telex 9lom74-1367 P. 0. Box 12068, Capitol Statlon under an P-l “student” visa Tdecopier 51a4750266
Austin, Texas 78711 be charged a higher tuition rate nt a state university than 714 Jackson. Sulh 700 charged to Texas residents or Dallas. TX. 75202.4505 residents of another 214i742.8944
Dear Senator Parker: 4824 *bena Ave.. Suits 180 El Paso, TX. You inquire trbether the constitutional questions discussed
QlY533y8( Attorney General Opinions JM-267 (1984) and m-241 (1984) prevent
charging foreign nationals to this country with F-l student visas a higher tuition rate at a state university than that charged 1001 Toras. Suits 700 “oustan. TX. 77002.3111 Texas residents or l:o other students who are not Texas residents. 7lY220UuLb latter group includes out-of-state students who are citizens of
United States and Wudents who are aliens with visas other than an visa. It Is our opinion the state may charge foreign students SW Broadway. Suite 312 with F-l visas a \d.gher rate of tuition than charges students L”mclck. TX. 79401~3479 it CCW47.5238 are Texas residents but may not charge such foreign a higher
rate of tuition ft charges studenta vho. for purposes, are not Texas residents. uoo N. Tmlh. Suite B
McAII~n. TX. 7S501~1085 512mS245.47 The Texas Edmation Code provides different ratee of tuition eupported institutions of higher education for students vho of Texaco and for students who are not residents of Texas. 200 MaIn Plur. !wte 400 See Educ. Code 154.051. The constitutionality of that distinction San Antonio. TX. 78205-2797 z questioned. See Note, The Constitutionality of Nonresident 512m5-4101 Tuition. 55 Minn. ‘i.ev. 1139 (1971).
Attorney Gemral Opinion m-241 discussed the applicability the United States Supreme Court decision in Toll v. Moreno. 458 U.S. (1982). to the provisions section 54.057 the Education Code. That section the Education Code provides two groups i&grant aliens may qualify the resident stataa and resident in Texas, namely, those vith a viaa permitting permanent residence theme who declare their to become United States cltizeae. Bg implication, section 54.057 states that 811 other aliens, including, all noniasslgrant alieoo, are precluded *2 (JM-309) Honorable Carl A. Parker - PalIe 2
establishing that their domi::lle is Texas and that they are in fact Ue contluded in Texas residents who qualify for resident ruition. General Opinion a-241 that the Supremacy Cleuse the a6 interpreted by Toll v. Moreno,
United States Constitution, prohibits from der@ng a certain categories of noniamigrant l lienn the right to qualify for resident when such non- immigrant aliens cao show tlrtrt they meet the standards for resident 6Catus required of citizens, We also conclude that the decision in Toll v. Moreno does not apply to a nonimmigrant alien in this country under an F-l visa because that ir one of the categories for which Congress expreasly condltionlcd admission to this country on conditions vhlch have the effect pre’::ludlng the establishment of a domicile in the United States. The Immigration and Nationality Act (8 U.S.C. lllOl(a)(lS) (1982)) defines ,an alien with an F-l visa as
an alien ‘having a residence in a foreign
cou:::i) which he h’s6 no intention of abandoning. who is a bona fid; student qualified to pursue a full course study and vho seeka to enter the United States te!porarlly and solely for purpose of pursut9g such a course of stud1 at an established college, university, seminary, con- semstory, academic high school, elementary 6chOd. or other academic institution or in a language train*Ig program In United State6. . . .
Although the word domicile is not defined in the Immigration and Nationality Act, it general.1.y Is accepted that domicile Is not esta- bll6hed unless the person intends to e6tabli6h a permanent abode or In order to qualify for so F-l re6ide indeffnltelp in a hCatiC% student vIea, the alien muot: “enter the United State6 temporarily 6olely the purpose of pursuing 6uch a courw of 6tudy” and mu6t maintain “a residence in a foreign country which he ha6 no of abandoning. ” Eence. the court6 have concluded a person cannot be lawfully domiciled in l&i6 country while hording a student visa.
See E1klnsVq. Uoreno, 435 ll,,S. 647, 6bS (1978); Anvo v. Imigration & Naturalization Service, 607’ F.Zd 435, 437 (D.C. Cm
Imigration and Natlonalit~ Act doe6 not impore 6uch recltriction6 on eve6 nonimIigrant class. t.hc Court6 interpret the act to mean that Congress intended to allow uonre6tritted. nonimlgrant alien6 to adopt the United State6 as their domicile. See Toll v. Moreno, 458 U.S. at - 14.
Accordingly, It i6 ow opinion the Suprwcy Clause of the United State6 Con6titutiom a6 interpreted by Toll v. Moreno doe6 not prevent the application o,f the limitation6 in Eectioe 54.057 of Education Code to perroos to this country with F-l student ViEas. We conclude Education Code rmmtitutionally can *3 Bonorabls Carl A. Pocksr - Page 3 (m-309)
provide for s higher rate to be charged to foreign with F-l vtsas than the tuil::ion rate charged students who are Texas for purposes,
In Attorney General Opinion m-267 vc concluded a statute which provides a higher rate of tuition at state institutions of higher education for nonresident students who are aliens the rate charged nonresident stui.ents who are United States citizens would not be upheld by the courts d.f challenged.
The Fourteenth Amendmmt to the United States Constitution provides that no state may deny to any person vithin its jurisdiction the equal protection of the laws. The guarantee of equal protection applies to all persons within the territorial jurisdiction of a state regardless of whether a perwa is a citizen of this country or is a citizen of a foreign countIT. See Ambach v. 19orwick, 441 U.S. 68 (1979); Ylck Wo v. Hopkins, 118 0.s. 356 (1886). The obligation of a to provide the protection equal laws Is imposed by the Constitution on the state wl!:b each state responsible for Its ovn laws establishing the rights and duties of persons within its borders. See Missouri ex rel. Gaines ‘L, Canada, 305 U.S. 337, (1938). Congressional debate conce,rning the resolution vhlch became the Fourteenth Amendment confines to make Its provisions applicable to all who “may t.appen to be” within the jurisdiction of a state. See Plpler v. Doe, 457 U.S. 202. 214-15 (1982). In concluding illegal aliens may c.laim the benefits the Fourteenth Amendment’s guarantee of equsl protection, the Supreme Court in Plyler v. Doe stated
[t]hat a person’s :Lnltial entry Into a State, or into the United States, VIM unlsvful. and that he may for that reason be expelled, cannot negate simple fsct of his presence within tbe State’s territorial perimeter. Given such presence, he is subject to the full rmge of obligations imposed by the State’s ciull and criminal laws. And until he leaves jwlsdiction -- either voluntarily, or involuntarily ICI accordance vith the Constitu- tion and laws of the United Ststes -- he is en- titled to the equA protection of the lavs that a State ms9 choose 1.~8 establish. Id. at 215.
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A person of foreign mtlonalitp with an F-l student viss who Is attending school in this s’:ate is present within the state’s terrl- torial perimeter and is ent,itled to the equal protectloo of the laws the state. The fsct student has a “residence In a foreign country vhich he has no incxntion of abandoning” does not negate his *4 (Jn-309) Ronorsbls Csrl A. Porksr - Pspr in this and does not deny
presence in this country md ntudent the right to equnl pwtection of the 10~s. Additionally. we concl~lded in Attorney Genersl Opinion m-267 that the courts would not ol:lou a subtly to affect the country’s lntetnstional relations or foreign policy or to interfere with federal government’s exclus%ve to control immigration and right dmlseion of *liens to this county. In Elkins v. Moreno, 435 U.S.
647, the United States Suprena Court determined that Congress defined the nonipligront classes of allenr in the Immigration and Nationality Act to provide for the needu of international diplomacy, tourism, commerce.
It is our opinion the conetitutionsl problems discussed in Attorney Cenersl Opinion JW-267 are applicable to foreign students admitted to this country vith F-l viros sad would render uncoostitu- tionsl A state statute vhic’l provides for s higher rote of tuition to be charged to foreigu studer1t.e with F-l visas than the rote charged to citixens md sliens vith othter categories of visas who ore subject to payment of nonresident tuition because they ore not Texas eligible for resident tuition in this state.
SUMMARY The Texss Edwation Code constitutionally can provide for A hlgh,er tuition rste to be charged to foreign students to this country with F-l visas than the tuition rote charged Texas resident students. The Rducation Code csnnot provide constitutionally for s higher rote to be charged to foreign students with F-l visas the tuition rote charged citizens and other alien vbo sre not Texsa reridents purposes.
JIM HATTOX ‘- Genersl of Texss TOM GREEN
First Asslstsnt Attorney
DAVID R. RlCRARDS
Executive Assistant Attorrey Genersl
Bonorsbla Csrl A. Psrksr - PI#O 5 (~11-30s)
RICR CILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Arristont
APPROVED:
OPINION COIQ4ITTEE
Rick Gilpin, Chairmen
Jon Bible
Susan Garrison
Tony Gulllory
Jim Moellinger
Jennifer Riggs
Nancy Sutton