Case Information

*1 ‘, The Attorney General of Texas Ikcsmber 12, 1984

JIM MATTOX

Attorney Qrneral

Mr. Kenneth Ashworth Opinion No. m-241 Conmissioner

Coordinating Board Rc: Whether certain 51214752501 nationals are residents Texas College and University Telex ola87+1257 Texas for purposes of tuition System Talecopl~r 51214750255 at a state university F. 0. Box 12708

Austin. Texas 7lli’ll

714 Jackam. SUM 700 Dallsa, TX. 75202.4508 Dear Commissioner Ashworth: 21417428944

You ask vhet h,er Toll v. Moreno, 458 U.S. 1 (1982). authorizes certain foreign mt:ionals to establish Texas residency for purposes of payment of tuition at a state university in spite of the limitations of section 54.057 3f the Texas Education Code. One of your examples involves a German national, holding a NATO visa, who resides in Texas as a member of the German Armed Forces in accordance with dl Texea. sulle 700 Agreement between the Parties to the North Atlantic Treaty Regarding llouslon, TX. 77w23111 the Status of The:Lr Forces, June 19, 1951, 4 U.S.T. 1792 [hereinafter 71312235886 cited as NATO Stetus of Forces Agreement]. The other example involves s dependent of a llelgium national with au E-l visa who works for a 508 Brordway. Sulla 312 commercial firm ln this country. We conclude that, in spite Lubbock. TX. 794013479 section 54.057, both of the foreign nationals In question have the 2W747.5231) same privilege 85: a United States citizen to present evidence and establish Texas rmidency for purposes of tuition. 4202 N. Tenth. Suite 8 Mo*llwl. TX. 78601.1585 Section 54.01~7 of the Texas Education Code provides, in pertinent 512ma2~7 pert, 2w MeIn Pm& sulla ux) [a]n alien vho is living in this co&try under San Antonlo. TX. 782Q52727 a visa permitting permanent residence or who has 512l2254191 filed wj.th the proper federal immigration authori-

ties a declaration to become a citizen has the same privilege of qualifying An Equal Oppot-WW Alflrmatlve AcMn Employer resident. status for fee purposes under this Act as

has a citizen of the United States. The federal Immigration and Nationality Act recognizes both immigrant aliens and nonimmigrant aliens. 8 U.S.C. 51101 et seq. (1982). Section 54.057 of Education Code expressly allovs two groups of immigrant aliens to qualify for resident status, namely, those under a visa, permitting permanent residence and those who file a declaration of Intention to become a United States citizen. It veil settled that the express mention or enumeration of a particular *2 (JM-241) Mr. Kenneth Arhworth - Page 2

thing in a statute implies an express exclusion of all others. Cam v. T<xaa State Board -of lIxsm.iners in Optomatry, 401 S.W.Zd 639,-~ ~~ (Tex. Civ. App. - Dallss :?166), aff’d 412 S.W.Zd 307 (Tex. 1967); Attorney General Opinion MU-324 (19sr)I By implication, all classes of nonimmigrant aliens would, be precluded under the Texas statute from establishing Texas residency,.

In Toll v. Moreno, the United States Supreme Court considered constitutionality of the pc~licy of University of Maryland under which only United States citizens and immigrant aliens lawfully admitted for permanent resii,ence in the United States were eligible to establish in-state status Ear tuition purposes. The supreme court pointed out in that case tt.a,t it had “long recognized the preeminent role of the Federal Goverrnent with respect the regulation aliens within our borders,” reiterating the broad principle that

state regulation not congressionally sanctioned that discriminat,es against aliens lswfully admitted the county is impermissible if it imposes additional burdens not contemplated by Congress.

See De Csnas v. Bica, 425 U.S. 351, 358, n.6 (1976); Graham v. Richardson, 403 U.S. 365 (l!)?l); Takahashi v. Fish & Game Comm’n, 334 U.S. 410. 419 (1948). The supreme court found that the University of Maryland’s in-state policy invalid under the Supremacy Clause of the United States Constitution insofar as the policy categorically made domiciled nonimmigrant aliens with G-4 visas ineligible for such status despite a showing of residence in the state. G-4 visas are issued to nonimmigrant aliens; who are officers or employees of certain international organisation;3 to members of their immediate families. 8 U.S.C. $1101(a) (15)(G)(iv).

The issue before us is the effect of the supreme court decision in Toll V. Moreno on the :!sxas statutory law. The Immigration and Nationality Act establishes various categories of nonimmigrant aliens.

Congress, expressly conditioned admission of aliens in some uou- immigrant categories on an Lntent not to abandon a foreign residence, a fact which precludes the establishment of a domicile in the United States for those aliens wh1l.s allowing the establishment of a domicile for certsin other nonimmigrat~t categories. Section llOl(a)(15) of the Imigration end Nationality Act provides, in part,

(15) The term ‘immigrant’ means every alien except an alien who is within one of the following classes of nonimm:.grant aliens --

(B) alien . . . having a residence in a country yhich he has no *3 Mr. Kenneth Ashworth - Page 3 (JH-241)

abandoning and ~110 is visiting the United States temporsrily for businese or tamporarily for pleasure;

. . . . alien having a residence in a (F)(i) foreign country which he has no intention of abandoning. who %s a bone fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely the purpose of P'ursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary or other academic institution or in s school, the United language trait.ing program in States. . . .

. . . .

(Ii) an alier: having a residence in a foreign country which he has no intention of abandoning (I) who is of d:E;tinguished merit and ability who is coming tt:rporarily to the United States exceptional nature perform service:s an requiring such merit and ability, and. . . . . . . .

(J) an slier, having a residence in a foreign country which he has no intention of abandoning who is a bona -fide student, scholar, trainee, teacher, pro:ieseor. research assistant, specialist, or Leader in a field of specialized knowledge or sk,ill, or other person of similar description, wh'> is coming temporarily United States as a participant in a program designated by t’he Director of the United States Information Agency. . . .

(M)(i) an alien having a residence in a country which he has no abandoning who seeks to enter the United States temporarily and solely for the purpose of pursuing a -an established -full course study at vocational or recognized nonacademic other institution. (Emphasis added).

Fir. Kenneth Ashworth - Page 4 (JX-241)

Congress, however, hos <allowed other nonimmigrant aliens to enter country on terma permkting the establishment of domicile in the United States. In addition to section llOl(a)(15)(G)(iv) which was considered by the court in Toll v. Moreno, section llOl(a)(l5)(E)(i) contains no residence requir,sment which precludes the establishment a domicile in the United Smtes. Instead, those subdivisions provide

(E) an alien entitled to enter the United States under and in pursuance of the provisions

a treaty of comerce and navigation between the United States and the foreign state of which he is a national. and t.he spouse and children of any such alien if accompanying or following join him; (I) solely to carry on substantial trade, principally betwmsen the United States Andy the foreign state of which he is a national. . . . and dlrsignated principal resident

(G)(i) s representative of a foreign government recognized de jure by the United States, which

government is I, member of an international organization entitled privileges, e*joy exemptions, llmmunities as an international organization under the International Organizations Immunities Act (!i9 Stat. 669) [22 U.S.C. 288 et.

-1, accredited resident members of the staff of such representatives, and members of his or their immediate family; . officers, or employees of such inter-

(iv) national organiac:tions. and the members of their immediate families.

Thus, the dependent of a Belgium national with an E-l visa in a nonitigrant category for which Congress did not specify a restriction on the residen:e the alien. See 22 C.F.R. 541.12 (1984). We conclude that application of the limitations in section 54.057 of the Education Cotlel to such an alien would impose additional burdens not contemplated by Congress in violation of the Supremacy Clause and would constitute! unconstitutional burden imposed by the state. to 22 C.F.:R.,

Pursuant section 41.12 (1984). the NATO-2 classification of the German national residing in Texas is based on his position as a member of the German Armed Forces in accordance with the NATO Status of Forces Agreement, supra art. III.- at 1796 and the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, Sept. 20, 29 and *5 Mr. Kenneth Aahworth - Pagr 5 (m-241)

Dec. 12. 1951, art. 13. !i U.S.T. 1094 [hereinafter cited as NATO The Stetus Of Their Forces. The NATO Status of Statue Agreement].

Forces Agreement contains uo express restriction 011 a member alien’s residence. We conclude, therefore, that the application the 54.057 to this German national would be an limitations in section imposition of additioual ‘mrdens on an alien not contemplated by Congress and a violation of the Supremacy Clause.

In our opinion, the criteria established by Toll v. Moreno to determine the constitutionel application of the limitations in section 54.057 requires a state university to ascertain a nonimigrant alien’s classification under the Immigration and Nationality Act, under a relevant interuatioual agreement such as the NATO Status Agreement, and under the federal regulations , and then to decide whether Congress has prescribed residency requirements for that alien. If Congress has country of his not restricted the resiLence of so alien citizenship, even a noniomigrant alien must be allowed the sane in Texas for tuition privilege of qualifying resident status purposes is accorded to citieens of the United States and to aliens who hold permanent residence visas or file their in section 54.057, euch becowe a citizen. In spite of the limitations an alien’s status ss a Texas resident for tuition purposes will then be determined in accordance with rules and regulations the Coordinating Board, Texas ,:ollege and University System, as provided by section 54.053 of the Education Code.

SUMMARY Under the Supremacy Clause of the United States aliens who are permitted by Congress Constitution, to adopt the United States ss their domicile while they are in thil# country must be ellowed the saws privilege as citizens and permanent residents the United States to qualify for Texas residency for purposes 0:: tuition at state universities, despite lin.itation in section 54.057 of the Texas Education Code.

JIM MATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney General

DAVID P. RIC?IARDS

Executive Assistant Attonle!y General *6 (A-241)

Hr. Kanncth Ashvorth - Page ,6

RICK GILPIN

chairman, Opinion comittea

Prepared by Nancy Sutton

Aaaietant Attorney General

APPROVED:

OPINION COMMITTEE

Rick Gilpin, Chairman Colin Carl

Susan Garrison

Tony Guillory

Jim Noellinger

Jennifer Riggs

Nancy Sutton