           .
.     ‘,           .




                                   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
