The opinion
.
. ‘, .
The Attorney General of Texas
JIM MATTOX Ikcsmber 12, 1984
Attorney Qrneral
Mr. Kenneth Ashworth Opinion No. m-241
Conmissioner
Coordinating Board Rc: Whether certain foreign
51214752501 Texas College and University nationals are residents of
Telex ola87+1257
System Texas for purposes of tuition
Talecopl~r 51214750255
F. 0. Box 12708 at a state university
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 NATOvisa, who resides in Texas
dl Texea. sulle 700 as a member of the German Armed Forces in accordance with the
llouslon, TX. 77w23111 Agreement between the Parties to the North Atlantic Treaty Regarding
71312235886 the Status of The:Lr Forces, June 19, 1951, 4 U.S.T. 1792 [hereinafter
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
Lubbock. TX. 794013479
commercial firm ln this country. We conclude that, in spite of
2W747.5231) section 54.057, both of the foreign nationals In question have the
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
512ma2~7 Section 54.01~7 of the Texas Education Code provides, in pertinent
pert, that
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 of intention to become a
An Equal Oppot-WW citizen has the same privilege of qualifying for
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 the 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 is
veil settled that the express mention or enumeration of a particular
p. 1083
Mr. Kenneth Arhworth - Page 2 (JM-241)
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 the
constitutionality of the pc~licy of the 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 to the regulation of
aliens within our borders,” reiterating the broad principle that
state regulation not congressionally sanctioned
that discriminat,es against aliens lswfully
admitted to 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 is 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 and 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, that
(15) The term ‘immigrant’ means every alien
except an alien who is within one of the following
classes of nonimm:.grant aliens --
. . . .
(B) an alien . . . having a residence in a
foreign country yhich he has no intention of
p. 1084
Mr. Kenneth Ashworth - Page 3 (JH-241)
abandoning and ~110 is visiting the United States
temporsrily for businese or tamporarily for
pleasure;
. . . .
(F)(i) an alien having a residence in a
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 for
the purpose of P'ursuing such a course of study at
an established college, university, seminary,
conservatory, academic high school, elementary
school, or other academic institution or in s
language trait.ing program in the United
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 and
who is coming tt:rporarily to the United States to
perform service:s of an exceptional nature
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 to the
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
foreign country which he has no intention of
abandoning who seeks to enter the United States
temporarily and solely for the purpose of pursuing
a -full course of study at -an established
vocational or other recognized nonacademic
institution. . . . (Emphasis added).
p. 1085
Fir. Kenneth Ashworth - Page 4 (JX-241)
Congress, however, hos <allowed other nonimmigrant aliens to enter
the 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 of
a domicile in the United Smtes. Instead, those subdivisions provide
that
(E) an alien entitled to enter the United
States under and in pursuance of the provisions of
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 to 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
(G)(i) s dlrsignated principal resident
representative of a foreign government recognized
de jure by the United States, which foreign
government is I, member of an international
organization entitled to e*joy privileges,
exemptions, and 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;
. . . .
(iv) officers, or employees of such inter-
national organiac:tions. and the members of their
immediate families. . . .
Thus, the dependent of a Belgium national with an E-l visa is in
a nonitigrant category for which Congress did not specify a
restriction on the residen:e of 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! an unconstitutional burden imposed by the
state.
Pursuant to 22 C.F.:R., 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
p. 1086 .
Mr. Kenneth Aahworth - Pagr 5 (m-241)
Dec. 12. 1951, art. 13. !i U.S.T. 1094 [hereinafter cited as NATO
Statue Agreement]. The Stetus Of Their Forces. The NATO Status of
Forces Agreement contains uo express restriction 011 a member alien’s
residence. We conclude, therefore, that the application of the
limitations in section 54.057 to this German national would be an
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
not restricted the resiLence of so alien to the country of his
citizenship, even a noniomigrant alien must be allowed the sane
privilege of qualifying for resident status in Texas for tuition
purposes that is accorded to citieens of the United States and to
aliens who hold permanent residence visas or file their intention to
becowe a citizen. In spite of the limitations in section 54.057, euch
an alien’s status ss a Texas resident for tuition purposes will then
be determined in accordance with rules and regulations of 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
Constitution, aliens who are permitted by Congress
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 of
the United States to qualify for Texas residency
for purposes 0:: tuition at state universities,
despite the lin.itation in section 54.057 of the
Texas Education Code.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID P. RIC?IARDS
ExecutiveAssistant Attonle!y General
p. 1087
Hr. Kanncth Ashvorth - Page ,6 (A-241)
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
p. 1088