ELKINS v. MORENO

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Respondents, representing a class of nonimmigrant alien residents of Maryland,1 brought this action against the University of Maryland2 and its President, petitioner Elkins, alleging that the University's failure to grant respondents "in-state" status for tuition purposes violated various federal laws,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 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. § 12-601 (1974), we first decide some preliminary issues of federal law and then certify the question of state law set out infra, at 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:

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.

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.).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 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:

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

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

However, the IRC stated on appeal:

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.

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

With respect to the "irrebuttable presumption" issue, the 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 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.

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,6 that they should prevail on equal protection grounds even if they cannot prevail under Vlandis.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 its policy statement, its "paramount" and controlling concern is with domicile as defined by the courts of Maryland.8 It has eschewed any interest in creating a classwide exclusion based solely on nonimmigrant status9 or, apparently, on the fact that many G-4 aliens receive earned income that is exempt from Maryland taxation.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 771.11

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 principles underlying Vlandis, however, proper concern for stare decisis joins with our longstanding policy of avoiding unnecessary constitutional decisions to counsel that 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, 146-151 (1976); Reetz v. Bozanich, 397 U.S. 82 (1970); Harman v. Forssenius, 380 U.S. 528, 534 (1965); Harrison v. NAACP, 360 U.S. 167, 177 (1959); Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941); cf. Ashwander v. TVA, 297 U.S. 288, 346-347 (1936) (Brandeis, J., concurring). So far, no such showing of necessity has been made out:12 If G-4 aliens 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.13

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,14 we first set out the correct meaning of federal law in this area and then sua sponte certify15 this case to the Court of Appeals of Maryland in order to clarify state-law aspects of the domicile question.16

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 4; id., at 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 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.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),"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.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 sub-categories of aliens who may come to the United States without need for a quota allocation. See §§ 101 (a) (15) (A)-(L). 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.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, 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).21 Since the 1952 Act was intended to be a comprehensive and complete code, the conclusion is therefore inescapable that, where as 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 their G-4 status. Ibid. Nonetheless, such an alien would not necessarily be subject to deportation nor would he have to leave and re-enter 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.).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 decision23 of the Board of Immigration Appeals states:

The adverse factors referred to by the Board include such things as entering the United States under fraudulent circumstances24 or committing crimes while in the United States.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,26 it would appear that any respondent could adjust his or her status to that of a permanent resident without difficulty.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,28 the following question is certified to the Court of Appeals of Maryland:

So ordered.*

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

The University of Maryland, like all state universities, differentiates in tuition between "in-state" and "out-of-state" students. The two categories of students are delineated in the University's general policy statement on "In-State Status for Admission, Tuition, and Charge-Differential Purposes." Part 1 of the policy statement provides:

As is clear from the policy statement, domicile is not the sole criterion upon which the University of Maryland determines "in-state" tuition status. The University first looks to see whether the student is either a "United States citizen" or an "immigrant alien lawfully admitted for permanent residence"; if the student satisfies this initial requirement, the University must then determine whether the student (or his parents) are domiciled in Maryland.

Respondents are nonimmigrant aliens who hold G-4 visas. Pursuant to the University's tuition policy, they were denied lower in-state tuition rates despite the fact that they and their parents reside in Maryland. As explained by the Assistant Director of Admissions in a letter to respondent Clare B. Hogg, the principal reason for classifying respondents as out-of-state students for purposes of tuition was nonimmigrant status; as a secondary factor, the Assistant Director of Admissions noted that respondents would probably not be able to pass the second hurdle of domicile:1

Respondents brought suit in federal court alleging that the University's in-state tuition policy is, among other things, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court for the District of Maryland held that the University's policy creates an irrebuttable presumption in contravention of Vlandis v. Kline, 412 U.S. 441 (1973). The Court of Appeals for the Fourth Circuit affirmed. We granted certiorari to decide whether the lower courts were correct in their holding.

The Court, rather than deciding the due process issue upon which certiorari was granted, today certifies the following question to the Court of Appeals of Maryland:2

I would unhesitatingly join the Court's certification if I felt that resolution of the question posed to the Court of Appeals of Maryland were necessary to decide the issue before us. But I am convinced that we can decide the due process issue without resolution of Maryland domicile law and thus that certification will only result in needless delay.

The University apparently classifies nonimmigrant aliens as out-of-state students for a number of reasons. All parties agree that a major factor is the University's conclusion that nonimmigrant aliens lack the legal capacity to become Maryland domiciliaries for tuition purposes. But this is not the only consideration underlying the classification, as is evidenced by the fact that citizenship or immigrant status is a requirement separate from and preceding domicile. According to the President of the University of Maryland, for example, the classification policy also "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. 12A. Holders of G-4 nonimmigrant visas are exempt from state income tax. By charging such nonimmigrant aliens higher out-of-state tuition, the University is able to better "equalize" the cost of education.3

Because the University's conclusion as to domicile plays a major role in its decision not to award nonimmigrant aliens in-state tuition status, counsel for petitioner admitted at oral argument that "it is entirely possible that the university would change its policy" in the face of a contrary decision by the Maryland Court of Appeals. Tr. of Oral Arg. 9. But a change in the University's in-state tuition policy would be neither automatic nor inescapable. The University might still decide that the other considerations such as cost equalization by themselves dictate continuation of the current policy. According to counsel for petitioner, "that judgment is one that would be made by the regents, and [as] I have suggested previously . . . it is well within the discretion of the regents." Id., at 15.

The above facts clearly establish that the University of Maryland has not created an irrebuttable presumption. The University has not determined that domicile is the sole relevant factor in determining tuition rates and then prevented respondents from presenting proof on the question of domicile.4 Instead, the University has decided that, for a number of reasons including domicile and cost equalization, nonimmigrant aliens should pay a higher tuition rate than citizens and immigrant aliens who are domiciled in the State. A student is allowed to present any and all evidence relevant to his or her status as a citizen or immigrant alien. In Vlandis v. Kline, this Court held only that where a State "purport[s] to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue. 412 U. S., at 452." Weinberger v. Salfi, 422 U.S. 749, 771 (1975) (emphasis added).5 Here, the University of Maryland's classification policy

Because it is clear that the University of Maryland has not created an irrebuttable presumption of non-Maryland domicile, it is unnecessary to decide, as the Court apparently believes it is, whether "any `irrebuttable presumption' would be universally true." Ante, at 661. And while the case may become moot if the Court of Appeals of Maryland decides that holders of G-4 visas can establish Maryland domicile and if the University changes its policy in light of that decision, the case is not moot now and there is no certainty that it will become moot in the future. There is, in summary, nothing today that prevents the Court from deciding the question presented.6

While I cannot join in what I view as a needless and time-consuming certification, I do join in the Court's implied disapproval of the District Court's refusal to refer to Maryland courts the question of whether holders of G-4 visas can establish Maryland domicile. Upon concluding that the University's policy creates an irrebuttable presumption, the District Court was faced with the question of whether the presumption is universally true. The District Court proceeded to answer the question in the negative and enjoin the University's policy, even though petitioner had asked the District Court either to abstain or, apparently, to certify the question of domicile to the Court of Appeals of Maryland.7 Because the Court of Appeals of Maryland had never addressed the question of domicile, petitioner's request should have been granted. By deciding the question itself, the District Court risked invalidating a state policy that a later decision of the Maryland state courts might establish was clearly valid. Furthermore, as the Court emphasizes, "it is obviously desirable that questions of law which, like domicile, are both intensely local and immensely important to a wide spectrum of state government activities be decided in the first instance by state courts." Ante, at 663 n. 16.

In summary, I agree with the Court that important and controlling issues of state law should initially be decided by state, not federal, courts. But because I do not believe that resolution of the Maryland law of domicile is necessary to decide the due process question before us, I dissent from today's certification.8