Untitled Texas Attorney General Opinion ( 1985 )

. .
The Attorney General of Texas
April 15. 1985
JIM MATTOX
Attorney General
supremeCourt BuikW Bonorable Carl A. Parker Opinion No. J-N-309
P. 0. Box 1254S Chairman
Auslln. TX. 7B711. 254s
51214752501
Education Comittee Rc: #ether foreign nationals
Telex 9lom74-1367 Texaa State Senate admitted CO the United States
Tdecopier 51a4750266 P. 0. Box 12068, Capitol Statlon under an P-l “student” visa
Austin, Texas 78711 be charged a higher tuition rate
714 Jackson. Sulh 700
nt a state university than that
Dallas. TX. 75202.4505 charged to Texas residents or
214i742.8944 residents of another state
Dear Senator Parker:
4824 *bena Ave..Suits 180
El Paso, TX.799052793
QlY533y8(
You inquire trbether the constitutional questions discussed
Attorney General Opinions JM-267 (1984) and m-241 (1984) prevent
charging foreign nationals admitted to this country with F-l student
1001 Toras. Suits 700 visas a higher tuition rate at a state university than that charged
“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
SW Broadway. Suite 312 visa. It Is our opinion that the state may charge foreign students
L”mclck. TX. 79401~3479 with F-l visas a \d.gher rate of tuition than it charges students
CCW47.5238 are Texas residents but may not charge such foreign students a higher
rate of tuition than ft charges studenta vho. for tuition purposes,
uoo N. Tmlh. Suite B are not Texas residents.
McAII~n. TX. 7S501~1085
512mS245.47 The Texas Edmation Code provides different ratee of tuition
state eupported institutions of higher education for students vho
residents of Texaco and for students who are not residents of Texas.
200 MaIn Plur. !wte 400
San Antonio. TX. 78205-2797 See Educ. Code 154.051. The constitutionality of that distinction
512m5-4101 z questioned. See Note, The Constitutionality of Nonresident
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 of section 54.057 of the Education Code.
That section of the Education Code provides that two groups
i&grant aliens may qualify for the resident stataa and resident
tuition in Texas, namely, those vith a viaa permitting permanent
residence and theme who declare their intention to become United
States cltizeae. Bg implication, section 54.057 states that 811 other
aliens, including, all noniasslgrant alieoo, are precluded
Honorable Carl A. Parker - PalIe 2 (JM-309)
establishing that their domi::lle is Texas and that they are in fact
Texas residents who qualify for resident ruition. Ue contluded in
Attorney General Opinion a-241 that the Supremacy Cleuse of the
United States Constitution, a6 interpreted by Toll v. Moreno,
prohibits a state from der@ng certain categories of noniamigrant
llienn the right to qualify for resident tuition 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 of 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 of study and vho seeka to enter the
United States te!porarlly and solely for the
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 the 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
re6ide indeffnltelp in a hCatiC% In order to qualify for so F-l
student vIea, the alien muot: “enter the United State6 temporarily and
6olely for the purpose of pursuing 6uch a courw of 6tudy” and mu6t
maintain “a residence in a foreign country which he ha6 no intention
of abandoning. ” Eence. the court6 have concluded that 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 that 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 the
Education Code to perroos admitted to this country with F-l student
ViEas. We conclude that the Education Code rmmtitutionally can
p. 1408
Bonorabls Carl A. Pocksr - Page 3 (m-309)
provide for s higher tuition rate to be charged to foreign students
with F-l vtsas than the tuil::ion rate charged students who are Texas
residents for tuition purposes,
In Attorney General Opinion m-267 vc concluded that a state
statute which provides a higher rate of tuition at state institutions
of higher education for nonresident students who are aliens than 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
state to provide the protection of 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, 350 (1938).
Congressional debate conce,rning the resolution vhlch became the
Fourteenth Amendment confines the intention 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
that illegal aliens may c.laim the benefits of 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 the
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 the 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.~8establish.
-Id. at 215.
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
of the state. The fsct that the student has a “residence In a foreign
country vhich he has no incxntion of abandoning” does not negate his
p. 1409
Ronorsbls Csrl A. Porksr - Pspr 4 (Jn-309)
presence in this country md in this state and does not deny the
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 state subtly to affect the country’s
lntetnstional relations or foreign policy or to interfere with the
federal government’s exclus%ve right to control the immigration and
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, and
commerce.
It is our opinion that 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
the payment of nonresident tuition because they ore not Texas
residents 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 admitted to this country with F-l
visas than the tuition rote charged Texas resident
students. The Rducation Code csnnot provide
constitutionally for s higher tuition rote to be
charged to foreign students with F-l visas than
the tuition rote charged citizens and other alien
students vbo sre not Texsa reridents for tuition
purposes.
JIM HATTOX ‘-
Attorney Genersl of Texss
TOMGREEN
First Asslstsnt Attorney General
DAVID R. RlCRARDS
Executive Assistant Attorrey Genersl
p. 1410
Bonorsbla Csrl A. Psrksr - PI#O 5 (~11-30s)
RICR CILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Arristont Attorney General
APPROVED:
OPINIONCOIQ4ITTEE
Rick Gilpin, Chairmen
Jon Bible
Susan Garrison
Tony Gulllory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1411