.

. ‘, .

JIMMATTOX Attorney Qrneral

51214752501 Telex ola87+1257 Talecopl~r 51214750255

714Jackam. SUM700 Dallsa,TX.75202.4508 21417428944

dl Texea.sulle700 llouslon, TX.77w23111 71312235886

508Brordway. Sulla312 Lubbock.TX.794013479 2W747.5231)

4202N.Tenth.Suite8 Mo*llwl. TX.78601.1585 512ma2~7

2w MeInPm& sulla ux) SanAntonlo.TX.782Q52727 512l2254191

AnEqualOppot-WW Alflrmatlve AcMn Employer 

# TheAttorney General ofTexas

Ikcsmber 12, 1984

Mr.KennethAshworth Conmissioner Coordinating Board Texas College andUniversity System F. 0. Box 12708 Austin. Texas 7lli’ll Opinion No.m-241 Rc: Whether certain foreign nationals are residents of Texas for purposes of tuition at astate university

Dear Commissioner Ashworth: 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. Oneof your examples involves a Germannational, holding aNATO visa, whoresides in Texas as a member of the German Armed Forces in accordance with the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of The:LrForces, June 19, 1951, 4U.S.T. 1792 [hereinafter cited as **NATO**Stetus of Forces Agreement]. Theother example involves s dependent of a llelgium national with au E-l visa whoworks for a commercial firm ln this country. We conclude that, in spite of 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. Section 54.01~7of the Texas Education Codeprovides, in pertinent pert, **that** [a]n alien vho is living in this co&try under

avisa permitting permanent residence or whohas filed **wj.th** the proper federal immigration authorities a declaration of intention to become a citizen has **the** sameprivilege of qualifying for resident. status for fee purposes under this Act as has acitizen 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 avisa, permitting permanent residence andthose **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. 1083Mr. 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 Byimplication, all classes of nonimmigrant aliens would,be precluded under the Texas statute from establishing Texas residency,. In Toll v. Moreno, the United **States** SupremeCourt 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); Grahamv. Richardson, 403U.S. 365 (l!)?l); Takahashi v. Fish &GameComm’n, 334 U.S. 410. 419 (1948). The supremecourt 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 madedomiciled nonimmigrant aliens with G-4visas ineligible for such status despite a showing of residence in the state. **G-4** visas are issued to nonimmigrant aliens; whoare officers or employees of certain international organisation;3 and to members of their immediate families. 8U.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 uouimmigrant 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.sallowing the establishment of adomicile for certsin other nonimmigrat~tcategories. Section llOl(a)(15) of the Imigration endNationality Act provides, in part, that

(15) The term ‘immigrant’ means every alien except analien whois 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. 1084Mr.KennethAshworth - Page3 (JH-241)

abandoning and ~110is 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 andwhoseeks to enter the United States temporarily andsolely 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) whois of d:E;tinguished merit andability and whois coming tt:rporarily to the United States **to** perform service:s of an exceptional nature requiring suchmerit andability, 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 andsolely for the purpose of pursuing a -full course of study at -an established vocational or other recognized nonacademic institution.

. . . (Emphasis added).

p. 1085Fir.KennethAshworth - Page 4 (JX-241)

Congress, however, hos <allowedother 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 noresidence 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 andin pursuance of the provisions of a treaty of comerce and navigation between the United States andthe 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 betwmsenthe United States Andythe foreign state of whichhe is anational.

. . . 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. 288et. -1, accredited resident membersof the staff of such representatives, andmembersof his or their immediate family;

. . . . (iv) officers, or employees of such international organiac:tions. and the membersof 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). Weconclude that application of the limitations in section 54.057 of the Education Cotlelto such analien would impose additional burdens not contemplated by Congress in violation of the Supremacy Clause andwould constitute! an unconstitutional burden imposed by the state.Pursuant to 22 **C.F.:R.,** section 41.12 (1984). the NATO-2 classification of the Germannational residing in Texas is based on his position as amemberof the GermanArmedForces in accordance with the NATOStatus 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.KennethAahworth- 

### Pagr5 (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 011a memberalien’s 

### residence. We conclude, therefore, that the application of the limitations in section 54.057 

### to this Germannational 

### wouldbe an imposition of additioual ‘mrdens on an alien not contemplated by Congress andaviolation of the SupremacyClause. In our opinion, the criteria established by Toll v. Moreno to determine the constitutionel application of the limitations in section 54.057 requires astate university to ascertain anonimigrant alien’s classification under the Immigration and Nationality **Act,** under a relevant interuatioual agreement such as the NATOStatus Agreement, andunder the federal regulations , andthen to decide whether Congress has prescribed residency requirements for that alien. If Congress has **not** restricted the resiLence of so alien to the 

### countryof 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 whohold permanent residence visas or file their intention to becowe acitizen. 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 Underthe SupremacyClause of the United States Constitution, **aliens** 

### whoarepermitted by Congress to adopt the United States ss their domicile while they 

### arein thil# country mustbe 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 TOM GREEN First Assistant Attorney 

### General
DAVIDP.RIC?IARDS Executive

Assistant **Attonle!y** General

p. 1087**Hr. Kanncth**  **Ashvorth -**  **Page ,6**  (A-241)

RICKGILPIN chairman, Opinion comittea Prepared byNancySutton Aaaietant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin, Chairman Colin 

### Carl SusanGarrison TonyGuillory JimNoellinger Jennifer Riggs Nancy **Sutton**

p. 1088