Elkins v. Moreno
435 U.S. 647 (1978)

Annotate this Case

U.S. Supreme Court

Elkins v. Moreno, 435 U.S. 647 (1978)

Elkins v. Moreno

No. 77-154

Argued February 22, 1978

Decided April 19, 1978

435 U.S. 647

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

It is the policy of the University of Maryland to grant "in-state" status for admission, tuition, and charge-differential purposes only to students who are domiciled in Maryland or, if a student is financially dependent on his parents, whose parents are domiciled in Maryland. In addition, the University may in some cases deny in-state status to students who do not pay the full spectrum of Maryland state taxes. Pursuant to this policy, the University refused to grant in-state status to respondent nonimmigrant alien students, each of whom was dependent on a parent who held a "G-4 visa" (a nonimmigrant visa granted to officers or employees of international treaty organizations and members of their immediate families) and each of whom was named in that visa, on the ground that the holder of a G-4 visa cannot acquire Maryland domicile because such a visa holder is incapable of demonstrating an essential element of domicile -- the intent to live permanently or indefinitely in Maryland. After unsuccessful appeals through University channels, respondents brought a class action in the Federal District Court for declaratory and injunctive relief against the University and its President (petitioner), alleging that the University's refusal to grant them in-state status violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court granted relief, but limited it to a declaration and injunction restraining the President from denying respondents the opportunity to establish in-state status solely because of an "irrebuttable presumption of non-domicile." The court held that such an irrebuttable presumption violated the Due Process Clause, finding that reasonable alternative procedures were available to make the crucial domicile determination and rejecting the University's claim that the Immigration and Nationality Act of 1952 and Maryland common law precluded G-4 aliens from forming the intent necessary to acquire domicile. The Court of Appeals affirmed.

Held:

1. Although the University may consider factors other than domicile in granting in-state status, the record shows that respondents were denied such status because of the University's determination that G-4

Page 435 U. S. 648

aliens could not form the intent needed to acquire Maryland domicile. Therefore, this case is controlled by principles announced in Vlandis v. Kline,412 U. S. 441, as limited by Weinberger v. Salfi,422 U. S. 749, 422 U. S. 771, to those situations in which a State

"purport[s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue."

Pp. 435 U. S. 658-660.

2. Before considering whether Vlandis, supra, should be overruled or further limited, proper concern for stare decisis as well as the Court's longstanding policy of avoiding unnecessary constitutional decisions requires that the necessity of a constitutional decision be shown, and no such showing has been made here, because a potentially dispositive issue, the determination whether the University's irrebuttable presumption is universally true, turns on federal statutory law and state common law as to which there are no controlling precedents. Pp. 435 U. S. 660-662.

3. Under federal law, G-4 aliens have the legal capacity to change domicile. Pp. 435 U. S. 663-668.

(a) In the Immigration and Nationality Act, which was intended to be a comprehensive and complete code governing all aspects of admission of aliens to the United States, Congress expressly required that an immigrant seeking admission under certain nonimmigrant classifications maintain a permanent residence abroad which he has no intention of abandoning. Congress did not impose this restriction on G-4 aliens, and, given the comprehensive nature of the Act, the conclusion is inescapable that Congress' failure to impose such restrictions was deliberate and manifests a willingness to allow G-4 aliens to adopt the United States as their domicile (a willingness confirmed by Immigration and Naturalization Service regulations). But whether such an adoption would confer domicile in a State is a question to be decided by the State. Pp. 435 U. S. 663-666.

(b) Under present federal law, therefore, a G-4 alien will not violate the Act, INS regulations, or the terms of his visa if he develops a subjective intent to st-ay in the United States indefinitely. Moreover, although a G-4 visa lapses on termination of employment with an international treaty organization, a G-4 alien would not necessarily have to leave the United States. There being no indication that the named respondents are subject to any adverse factor, such as fraudulent entry into, or commission of crime in, the United States, and given each named respondent's alleged length of residence (ranging from 5 to 15 years) in the country, it would appear that the status of each of them

Page 435 U. S. 649

could be adjusted to that of a permanent resident without difficulty. Pp. 435 U. S. 666-668.

4. Because of the Court's conclusions with respect to federal law, the question whether G-4 aliens can become domiciliaries of Maryland is potentially dispositive of this case and, since such question is purely a matter of state law on which there is no controlling precedent, the question is certified to the Maryland Court of Appeals for determination. Pp. 435 U. S. 668-669.

556 F.2d 573, question certified.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 435 U. S. 669.

Page 435 U. S. 650

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Respondents, representing a class of nonimmigrant alien residents of Maryland, [Footnote 1] brought this action against the University of Maryland [Footnote 2] and its President, petitioner Elkins, alleging that the University's failure to grant respondents "in-state" status for tuition purposes violated various federal laws, [Footnote 3] the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause. The District Court held for respondents on the ground that the University's procedures for determining in-state status violated principles established in Vlandis v. Kline,412 U. S. 441 (1973), and the Court of Appeals affirmed. Moreno v. University of Maryland, 420 F.Supp. 541 (Md.1976), affirmance order, 556 F.2d 573 (CA4 1977). We granted certiorari to consider whether this decision was in conflict with Weinberger v. Salfi,422 U. S. 749 (1975). 434 U.S. 888 (1977).

Because we find that the federal constitutional issues in this case cannot be resolved without deciding an important issue

Page 435 U. S. 651

of Maryland law "as to which it appears . . . there is no controlling precedent in the Court of Appeals of [Maryland]," Md.Cts. & Jud.Proc.Code Ann. § 1601 (1974), we first decide some preliminary issues of federal law, and then certify the question of state law set out infra at 435 U. S. 668-669, to the Maryland Court of Appeals.

I

In 1973, the University of Maryland adopted a general policy statement with respect to "In-State Status for Admission, Tuition, and Charge-Differential Purposes." In relevant part, this statement provides:

"1. It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases:"

"a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester."

"b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester."

Brief for Petitioner 7. The term "domicile" is defined as "a person's permanent place of abode; namely, there must be demonstrated an intention to live permanently or indefinitely in Maryland." Id. at 8. The policy statement also sets out eight factors to be considered in determining domicile, of which one is whether a student, or the persons on whom he is dependent, pays "Maryland income tax on all earned income including all taxable income earned outside the State." Id. at 9.

Page 435 U. S. 652

In addition to establishing criteria for conferring in-state status, the general policy statement establishes an administrative regime in which a person seeking in-state status initially files documentary information setting out the basis for his claim of domicile. See id. at 8-9. If the claim is denied, the person seeking in-state status may appeal, first through a personal interview with a "campus classification officer," then to an "Intercampus Review Committee (IRC)," and finally to petitioner Elkins, as President of the University. See id. at 9-10.

II

In 1974, respondents Juan C. Moreno and Juan P. Otero applied for in-state status under the general policy statement. Each respondent was a student at the University of Maryland and each was dependent on a parent who held a " G-4 visa," that is, a nonimmigrant visa granted to "officers, or employees of . . . international organizations, and the members of their immediate families" pursuant to 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.). [Footnote 4] Initially, respondent Moreno was denied in-state status because "neither Mr. Manuel Moreno nor his son, Juan Carlos, are Maryland domiciliaries." Record 41. Respondent Otero was denied in-state status because he was

Page 435 U. S. 653

neither a United States citizen nor an alien admitted for permanent residence. Id. at 80.

These respondents took a "consolidated appeal" to the IRC, which also denied them in-state status in a letter which stated:

"The differential in tuition for in-state and out-of-state fees is based upon the principle that the State of Maryland should subsidize only those individuals who are subject to the full scope of Maryland tax liability. Such taxes support in part the University. The University of Maryland's present classification policies rest upon this principle of cost equalization. In examining the particulars of your case, it is felt that neither you nor your parents are subject to the full range of Maryland taxes (e.g., income tax) and therefore the University must classify you as out-of-state, with the consequential higher tuition rate."

"You have raised the question of domicile. It is our opinion that a holder of a G-4 visa cannot acquire the requisite intent to reside permanently in Maryland, such intent being necessary to establish domicile."

Id. at 51, 86.

A final appeal was made to President Elkins, who advised Moreno and Otero as follows:

"It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes only to United States citizens and to immigrant aliens lawfully admitted for permanent residence. Furthermore, such individuals (or their parents) must display Maryland domicile. This classification policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not. In reviewing these cases, it does not appear that the parents pay Maryland

Page 435 U. S. 654

income tax. It is my opinion, therefore, that the aforesaid purpose of the policy, as well as the clear language of the policy, requires the classification of Mr. Moreno and Mr. Otero as 'out-of-state.'"

"The University's classification policy also distinguishes between domiciliaries and non-domiciliaries of Maryland. In this regard, it is my opinion, and the position of the University, that the terms and conditions of a G-4 nonimmigrant visa preclude establishing the requisite intent necessary for Maryland domicile. Thus, because Mr. Moreno and Mr. Otero are not domiciliaries of Maryland, and because of the underlying principle of cost equalization, I am denying the requests for reclassification."

App. 12A.

Respondent Clare B. Hogg's experience was similar. Her application for in-state status was initially rejected because:

"[T]he policy for the determination of in-state status limits the ability to establish an in-state classification to United States citizens and immigrant aliens admitted to the United States for permanent residence. As the person upon whom you are dependent holds a G-4 visa, and as you hold a G-4 visa, in my judgment, you are not eligible for an in-state classification."

"Also, the person upon whom you are dependent does not pay Maryland income tax on all earned income, including income earned outside the state. I feel this further weakens your request for reclassification, as this is an important criteria [sic] in determination of domicile."

Record 106. However, the IRC stated on appeal:

"It is the opinion of the IRC that a holder of a nonimmigrant visa, including the G-4 visa you hold, cannot acquire the requisite intent to reside permanently in

Page 435 U. S. 655

Maryland, such intent being necessary to establish domicile."

Id. at 111. No mention was made of failure to pay taxes or of respondents' nonimmigrant status. See ibid. Yet, on final appeal to President Elkins, these reasons, as well as respondent Hogg's lack of domicile, were recited in a letter virtually identical to those sent respondents Moreno and Otero as grounds for denying in-state status. See App. 13A.

Unable to obtain in-state status through the University's administrative machinery, respondents filed a class action against the University and petitioner Elkins, seeking a declaration that the class should be granted in-state status and seeking permanently to enjoin the University from denying in-state status to any present or future class member on the ground that such class member or a parent on whom such class member might be financially dependent

"(a) is the holder of a G-4 visa; (b) pays no Maryland State income tax on a salary or wages from an international organization under the provisions of an international treaty to which the United States is a party; or (c) is not domiciled in the State of Maryland by reason of holding such a visa or paying no Maryland State income tax on such salary or wages under the provisions of such a treaty."

Id. at 11A.

The District Court, on cross-motions for summary judgment, limited the relief granted to a declaration and enforcing injunction restraining petitioner Elkins from denying respondents "the opportunity to establish in-state' status" solely because of an "irrebuttable presumption of non-domicile." 420 F.Supp. at 565. The court specifically refused to grant respondents in-state status, holding that the facts with respect to the respondents' fathers, on whom each respondent was dependent, were in dispute. Id. at 564-565. Similarly, the court did not indicate whether the University could or could

Page 435 U. S. 656

not exclude respondents because their fathers paid no Maryland state income taxes. [Footnote 5]

With respect to the "irrebuttable presumption" issue, the

Page 435 U. S. 657

District Court first held that, although each respondent had been allowed to submit a complete statement of facts supporting his or her claim of domicile to University authorities, there had been no individualized hearing because the University had a "predetermined conclusion concerning the domicile of a G-4 alien," id. at 555, namely, that a G-4 could not have the requisite intent to establish domicile. It then ruled that aliens holding G-4 visas could as a matter of Maryland common law become Maryland domiciliaries so long as such aliens were legally capable of changing domicile as a matter of federal law. See id. at 555-556. An examination of the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., demonstrated that G-4 aliens, as distinguished from some other classes of aliens, had the legal capacity to change domicile as a matter of federal law. See 420 F.Supp. at 556-559. Accordingly, the University's irrebuttable presumption that G-4 aliens could not become Maryland domiciliaries was not universally true. Since "reasonable alternative means of making the crucial [domicile] determination," Vlandis v. Kline, 412 U.S. at 412 U. S. 452, were readily at hand, the University's policy violated the Due Process Clause of the Fourteenth Amendment. See 420 F.Supp. at 559-560. These conclusions were affirmed by the Court of Appeals for the Fourth Circuit, which adopted the reasoning of the District Court. App. to Pet. for Cert. 54a-55a.

Page 435 U. S. 658

III

A

In this Court, petitioner argues that the University's in-state policy should have been tested under standards set out in Weinberger v. Salfi,422 U. S. 749 (1975), and its progeny, since, in petitioner's view, these cases have effectively overruled Vlandis. As an alternative argument, petitioner asserts that the District Court should be reversed because its conclusions on points of Maryland and federal law were erroneous, and, in fact, it is universally true that a G-4 visa holder cannot become a Maryland domiciliary.

Respondents reply that Vlandis was distinguished, not overruled, by Salfi, and, as distinguished, Vlandis covers this case. Moreover, they assert that the District Court correctly interpreted federal and Maryland law. Because the University's policy would, on this view, discriminate against a class of aliens who could become Maryland domiciliaries, they also argue, as they did in the District Court, [Footnote 6] that they should prevail on equal protection grounds even if they cannot prevail under Vlandis. [Footnote 7] Cf. Nyquist v. Mauclet,432 U. S. 1 (1977).

Although the parties argue this case in terms of due process, equal protection, and Vlandis versus Salfi, the gravamen of their dispute is unquestionably whether, as a matter of federal and Maryland law, G-4 aliens can form the intent necessary to allow them to become domiciliaries of Maryland. The University has consistently maintained throughout this litigation that, notwithstanding other possible interpretations of

Page 435 U. S. 659

it policy statement, its "paramount" and controlling concern is with domicile as defined by the courts of Maryland. [Footnote 8] It has eschewed any interest in creating a class-wide exclusion based

Page 435 U. S. 660

solely on nonimmigrant status [Footnote 9] or, apparently, on the fact that many G-4 aliens receive earned income that is exempt from Maryland taxation. [Footnote 10] Because petitioner makes domicile the "paramount" policy consideration and because respondents' contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis, as limited by Salfi to those situations in which a State

"purport[s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue."

Weinberger v. Salfi, 422 U.S. at 422 U. S. 771. [Footnote 11]

If we are to reverse the courts below, therefore, we must overrule or further limit Vlandis as, of course, petitioner has asked us to do. Before embarking on a review of the constitutional

Page 435 U. S. 661

principles underlying Vlandis, however, proper concern for stare decisis joins with our longstanding policy of avoiding unnecessary constitutional decisions to counsel hat a decision on the continuing vitality of Vlandis be avoided unless it is really necessary. See, e.g., Bellotti v. Baird,428 U. S. 132, 428 U. S. 146-151 (1976); Reetz v. Bozanich,397 U. S. 82 (1970); Harman v. Forssenius,380 U. S. 528, 380 U. S. 534 (1965); Harrison v. NAACP,360 U. S. 167, 360 U. S. 177 (1959); Railroad Comm'n v. Pullman Co.,312 U. S. 496 (141); cf. Ashwander v. TVA,297 U. S. 288, 297 U. S. 346-347 (1936) (Brandeis, J., concurring). So far, no such showing of necessity has been made out: [Footnote 12] if G-4 alien cannot become domiciliaries, then respondents have no due process claim under either Vlandis or Salfi for any "irrebuttable presumption" would be universally true. On the other hand, the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries, since it has indicated both here and in the District Court that it would redraft its policy "to accommodate" G-4 aliens were the Maryland courts to hold that G-4 aliens can have the requisite intent. [Footnote 13]

Page 435 U. S. 662

Accordingly, the question whether G-4 aliens have the capacity to acquire Maryland domicile is potentially dispositive of this case. Since the resolution of this question turns on federal statutory law and Maryland common law, as to each of which there are no controlling precedents, [Footnote 14] we first set out the correct meaning of federal law in this area, and then, sua sponte, certify [Footnote 15] this case to the Court of Appeals of Maryland in order to clarify state law aspects of the domicile question. [Footnote 16]

Page 435 U. S. 663

B

Petitioner has argued, and respondents do not appear to disagree, that if, as a matter of federal law, a nonimmigrant alien is required to maintain a permanent residence abroad or must state that he will leave the United States at a certain future date, then such an alien's subjective intent to reside permanently or indefinitely in a State would not create the sort of intent needed to acquire domicile. It is not clear whether this argument is based on an understanding of the common law of Maryland defining intent, or whether it is based on an argument that federal law creates a "legal disability," see Restatement (Second) of Conflict of Laws § 15(1) (1971), which States are bound to recognize under the Supremacy Clause. See Nyquist v. Mauclet, 432 U.S. at 432 U. S. 4; id. at 432 U. S. 20 n. 3 (REHNQUIST, J., dissenting); Seren v. Douglas, 30 Colo.App. 110, 114-115, 489 P.2d 601, 603 (1971) (semble); Gosschalk v Gosschalk, 48 N.J.Super. 566, 574-575, 138 A.2d 774, 779 (semble), aff'd, 28 N.J. 73, 145 A.2d 327 (1958); Gosschalk v. Gosschalk, 28 N.J. 73, 75-82, 145 A.2d 327, 328-331 (1958) (dissenting opinion). But cf. Williams v. Williams, 328 F.Supp. 1380, 1383 (V.I. 1971). In any case, we need not decide the effect of a federal law restricting nonimmigrant aliens

Page 435 U. S. 664

postulated above, since it is clear that Congress did not require G-4 aliens to maintain a permanent residence abroad or to pledge to leave the United States at a date certain.

After extensive study, Congress passed the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. (1976 ed.), as a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents. See H.R.Rep. No. 1365, 82d Cong., 2d Sess., 27 (1952); S.Rep. No. 1137, 82d Cong., 2d Sess., 1-2 (1952). As amended in 1976, the Act establishes two immigration quotas, one for the Eastern and one for the Western Hemisphere. [Footnote 17] The object of the quotas is to limit the number of aliens who can be admitted to the United States for permanent residence. To this end, the Act divides aliens into two classes. The first class, immigrant aliens, includes every alien who does not fall into an exclusion established by § 101(a)(15) of the Act, 66 Stat. 167, as amended, 8 U.S.C. § 1101(a)(15) (1976 ed.). Except for immigrant aliens who are "immediate relatives of United States citizens" or "special immigrants defined in section 101(a)(27)," [Footnote 18] each alien admitted for permanent residence or who later becomes eligible for permanent residence is chargeable against a quota, and no alien can be granted permanent residence status unless a quota allocation is available. [Footnote 19] However, it is important to note that there is no requirement in the Act that an immigrant alien have an intent to stay permanently in the United States.

The second class of aliens, nonimmigrant aliens, is established by § 101(a)(15) of the Act. This section creates 12 subcategories of aliens who may come to the United States without need for a quota allocation. See §§ 101(a)(15)(A)-(L).

Page 435 U. S. 665

Congress defined nonimmigrant classes to provide for the needs of international diplomacy, tourism, and commerce, each of which requires that aliens be admitted to the United States from time to time, and all of which would be hampered if every alien entering the United States were subject to a quota and to the more strict entry conditions placed on immigrant aliens. [Footnote 20]

Although nonimmigrant aliens can generally be viewed as temporary visitors to the United States, the nonimmigrant classification is by no means homogeneous with respect to the terms on which a nonimmigrant enters the United States. For example, Congress expressly conditioned admission for some purposes on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States. Thus, the 1952 Act defines a visitor to the United States as "an alien . . . having a residence in a foreign country which he has no intention of abandoning" and who is coming to the United States for business or pleasure. § 101(a)(15)(b). Similarly, a nonimmigrant student is defined as

"an alien having a residence in a foreign country which he has no intention of abandoning . . . and who seeks to enter the United States temporarily and solely for the purpose of pursuing . . . a course of study. . . ."

§ 101(a)(15)(F). See also § 101(a)(15)(C) (aliens in "immediate and continuous transit"); § 101(a)(15)(D) (vessel crewman "who intends to land temporarily"); § 101(a)(15)(H) (temporary worker having residence in foreign country "which he has no intention of abandoning").

By including restrictions on intent in the definition of some nonimmigrant classes, Congress must have meant aliens to be barred from these classes if their real purpose in coming to the United States was to immigrate permanently. Moreover,

Page 435 U. S. 666

since a nonimmigrant alien who does not maintain the conditions attached to his status can be deported, see § 241(a)(9) of the 1952 Act, 66 Stat. 206, 8 U.S.C. § 1251(a)(9) (1976 ed.), it is also clear that Congress intended that, in the absence of an adjustment of status (discussed below), nonimmigrants in restricted classes who sought to establish domicile would be deported.

But Congress did not restrict every nonimmigrant class. In particular, no restrictions on a nonimmigrant's intent were placed on aliens admitted under § 101(a)(15)(G)(iv). [Footnote 21] Since the 1952 Act was intended to be a comprehensive and complete code, the conclusion is therefore inescapable that, whereas, with the G-4 class, Congress did not impose restrictions on intent, this was deliberate. Congress' silence is therefore pregnant, and we read it to mean that Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile. Congress' intent is confirmed by the regulations of the Immigration and Naturalization Service, which provide that G-4 aliens are admitted for an indefinite period -- so long as they are recognized by the Secretary of State to be employees or officers (or immediate family members of such employees or officers) of an international treaty organization. See 8 CFR § 214.2(g) (1977); 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.13b, p. 2-101 (rev. ed.1977). Whether such an adoption would confer domicile in a State would, of course, be a question to be decided by the State.

Under present law, therefore, were a G-4 alien to develop a subjective intent to stay indefinitely in the United States, he would be able to do so without violating either the 1952 Act, the Service's regulations, or the terms of his visa. Of course, should a G-4 alien terminate his employment with an international treaty organization, both he and his family would lose

Page 435 U. S. 667

their G-4 status. Ibid. Nonetheless, such an alien would not necessarily be subject to deportation nor would he have to leave and reenter the country in order to become an immigrant.

Beginning with the 1952 Act, Congress created a mechanism, "adjustment of status," through which an alien already in the United States could apply for permanent residence status. See § 245 of the 1952 Act, 66 Stat. 217, as amended, 8 U.S.C. § 1255 (1976 ed.). [Footnote 22] Prior to that time, aliens in the United States who were not immigrants had to leave the country and apply for an immigrant visa at a consulate abroad. See 2 Gordon & Rosenfield, supra, at § 7.7. Although adjustment of status is a matter of grace, not right, the most recent binding decision [Footnote 23] of the Board of Immigration Appeals states:

"Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion."

Matter of Arai, 13 I. & N.Dec. 494, 496 (1970) (emphasis added), modifying Matter of Ortiz-Prieto, 11 I. & N.Dec. 317 (BIA 1965).

Page 435 U. S. 668

The adverse factors referred to by the Board include such things as entering the United States under fraudulent circumstances [Footnote 24] or committing crimes while in the United States. [Footnote 25] There is no indication that any named respondent is subject to any such adverse factor, and, given each named respondent's alleged length of residence in the United States, [Footnote 26] it would appear that any respondent could adjust his or her status to that of a permanent resident without difficulty. [Footnote 27]

C

For the reasons stated above, the question whether G-4 aliens can become domiciliaries of Maryland is potentially dispositive of this case, and is purely a matter of state law. Therefore, pursuant to Subtit. 6 of Tit. 12 of the Md.Cts. & Jud.Proc.Code, [Footnote 28] the following question is certified to the Court of Appeals of Maryland:

"Are persons residing in Maryland who hold or are named

Page 435 U. S. 669

in a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland? [Footnote 29]"

So ordered.*

[Footnote 1]

The class certified by the District Court differs from that alleged in the complaint. As certified, the class is defined as:

"All persons now residing in Maryland who are current students at the University of Maryland, or who chose not to apply to the University of Maryland because of the challenged policies, but would now be interested in attending if given an opportunity to establish in-state status, or who are currently students in senior high schools in Maryland, and who"

"(a) hold or are named within a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) or are financially dependent upon a person holding or named within such a visa."

Moreno v. University of Maryland, 420 F.Supp. 541, 564 (Md.1976).

[Footnote 2]

The University was dismissed from the suit on the authority of Monroe v. Pape,365 U. S. 167 (1961). See 420 F.Supp. at 548-550.

[Footnote 3]

The complaint alleged that petitioner's conduct violated 42 U.S.C. §§ 1981, 1983, 2000a, 2000a-1, 2000a-3, 2000d. App. 3A. Jurisdiction was predicated on 28 U.S.C. §§ 1343(3), 1343(4). The District Court proceeded on the premise that 42 U.S.C. § 1983 and the cited sections of Title 28 gave jurisdiction and a cause of action. See 420 F.Supp. at 548. Neither of these rulings is now in dispute.

[Footnote 4]

"(15) The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens --"

"* * * *"

"(G) . . . (iv) officers, or employees of . . . international organizations [recognized under the International Organizations Immunities Act, 59 Stat. 669, 22 U.S.C. § 288 et seq.], and the members of their immediate families."

Respondents Moreno and Otero are dependents of employees of the Inter-American Development Bank. App. 6A, 7A. Respondent Hogg is the dependent of an employee of the International Bank for Reconstruction and Development. Id. at 9A. The complaint states that respondent Moreno has resided in Maryland for 15 years, Otero for 10 years, and Hogg for 5 years. Id. at 4A.

[Footnote 5]

The District Court did not set out reasons for denying this relief. However, it must have believed that the University would not exclude respondents from in-state status solely for cost-equalization reasons if they otherwise qualified for Maryland domicile. If this was not the case, the District Court could not, as it did, see 420 F.Supp. at 560, have found it unnecessary to pass on respondents' argument that the Supremacy Clause prohibits the States from penalizing those who seek to avail themselves of tax exemptions granted by federal treaties. Moreover, an examination of the pleadings before the District Court strongly suggests that, notwithstanding the correspondence set out above, the University has disavowed any intention to exclude respondents from in-state status solely because they, or the persons on whom they are dependent, paid no state income taxes. Thus, the University unequivocally denied respondents' allegation that

"(b) students whose parents do not pay Maryland income taxes on income earned from an international organization under the provisions of an international treaty . . . may not be granted in-state status because of the 'principle of cost equalization' and because the University's"

"policy reflects the desire to equalize, as far as possible, the cost of education between those who support the University of Maryland through payment of the full spectrum of Maryland taxes, and those who do not. . . ."

App. 5A (Complaint

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