Respondents, representing a class of nonimmigrant alien residents of Maryland,
Because we find that the federal constitutional issues in this case cannot be resolved without deciding an important issue
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 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.).
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
With respect to the "irrebuttable presumption" issue, the
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,
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
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
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
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.
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).
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,
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).
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
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.).
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,
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:
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
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
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.
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
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.
"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).
"(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.
"(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 ¶ 13 (b)).
See App. 16A (Answer ¶13). The University similarly disavowed any intent to exclude respondents solely on the basis of failure to pay state income taxes in its responses to respondents' requests for admission. See Record 134 (¶ 2 (d)) (denying that tax exemption given some G-4 visa holders is "relevant to the determination made pursuant to the . . . University of Maryland policy"); id., at 135 (¶ 3 (d)) (same); id., at 139 (¶6 (d)) (same); id., at 136 (¶ 4 (d)) (denying the relevance for in-state tuition purposes of the fact that a person may pay Maryland state taxes on less than 50% of his earned income); id., at 141 (¶8 (d)) (same); id., at 142 (¶ 9 (d)) (same); id., at 140 (¶ 7 (d)) (denying the relevance for in-state tuition purposes of the fact that a person may pay Maryland state taxes on only "unearned" income). Finally, the University admitted as fact that
"an `immigrant student' who is financially dependent upon a parent who is an immigrant lawfully admitted for permanent residence . . . may be granted in-state status, whether or not the parent on whom such student is financially dependent currently pays Maryland income tax, provided that such parent can exhibit all of the other relevant domiciliary criteria . . . ." Id., at 142.
Since no party has suggested a difference between immigrant and nonimmigrant aliens other than the possibility that the latter cannot become domiciliaries, the University's admission tends to confirm that the tax issue is not determinative of in-state status for any group of aliens.
For the reasons set out above, we, like the District Court, do not now decide whether the University would be barred by the Supremacy Clause from denying in-state status on tax grounds.
Indeed, respondents argued below against abstention, see n. 15, infra, on the same grounds now argued by our Brother REHNQUIST against certification, namely: "[T]he Maryland common law of domicile is not at issue in this case. No `clarification' of the Maryland common law of domicile is needed. Such common law principles, standing alone, do not set the tuition charged by the University of Maryland." Record 272. And petitioner countered: "What [respondents] apparently fail to understand is that the [University's] `In-State Policy' is structured upon and reflects [the University's] understanding of the Maryland common law of domicile." Id., at 340.
Similar sentiments are expressed in petitioner's brief in this Court. See Brief, at 11, 12, 28, 30, 34, and 35 n. 20. And petitioner's counsel stated at oral argument that if the Court of Appeals of Maryland determined that a person with a G-4 visa is capable of forming the requisite intent to establish domicile, "the odds are reasonably high that the case would become moot because the university would change its policy, but that judgment is one that would be made by the regents . . . ." Tr. of Oral Arg. 14-15.
"This Court often has remarked that the equitable practice of abstention is limited by considerations of `"the delay and expense to which application of the abstention doctrine inevitably gives rise."' . . . As we have also noted, however, the availability of an adequate certification procedure `does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.'. . .
". . . [T]he availability of certification greatly simplifies [Pullman abstention] analysis." (Footnotes omitted.)
"The Court of Appeals may answer questions of law certified to it by the Supreme Court of the United States . . . when requested by the certifying court if there is involved in any proceeding before the certifying court a question of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the Court of Appeals of this state."
"§ 12-602. Invocation of subtitle.
"This subtitle may be invoked by an order of any court referred to in § 12-601 upon the court's own motion or upon the motion of any party to the cause."
"§ 12-603. Certification order.
"(a) Form.—A certification order shall set forth:
"(1) The question of law to be answered; and
"(2) A statement of all facts relevant to the question certified showing fully the nature of the controversy in which the question arose."
"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. . . .
"The University's classification policy also distinguishes between domiciliaries and non-domiciliaries of Maryland." App. 12A (emphasis added).
See also Record 34, 55, 80, and 115.
Even if the University declined to accord in-state tuition status to nonimmigrant aliens solely because of the University's conclusion that nonimmigrant aliens cannot be domiciled in Maryland for tuition purposes, no irrebuttable presumption would be presented. In Vlandis v. Kline, 412 U.S. 441 (1973), the University presumed that a student who was not domiciled in Connecticut at the time he first enrolled at the University of Connecticut could not become a Connecticut resident while attending the University, even though all the normal indicia of residence might be acquired during this period. Here, on the other hand, the University of Maryland merely reads Maryland law as holding that nonimmigrant G-4 aliens cannot satisfy the requirement for Maryland domicile for tuition purposes. This is purely and simply a question of state law. Respondents do not accuse petitioner of employing a nonuniversal, yet irrebuttable, presumption, but rather of misinterpreting Maryland domicile law. If the University of Maryland has misinterpreted state law, this is an error to be resolved by state, not federal, courts; no issue of federal constitutional law is presented.
The only question presented by the petition for certiorari, however, is:
"Whether the decisions below should have applied Supreme Court precedents on irrebuttable presumptions, disregarded the principles articulated in Weinberger v. Salfi, 422 U.S. 749 (1975), and erroneously concluded that the University of Maryland's policy of denying in-state status for tuition and fee purposes to non-immigrants holding G-4 visas establishes an irrebuttable presumption violative of the due process clause of the fourteenth amendment to the United States Constitution?" Consideration of respondents' equal protection claim, which was never addressed below, may best be left initially to the lower courts on remand. Even if the Court ultimately decides to consider respondents' equal protection arguments, resolution of Maryland domicile law would seem irrelevant. Unlike the situation in Nyquist, the University of Maryland does not discriminate against resident aliens. Cf. 432 U. S., at 2, 4, 5-6, and n. 6, and 12. There thus would not appear to be any issue of suspect class and the University's in-state tuition policy need only be shown to be rationally related to a legitimate state interest. The University's concern with cost equalization alone would seem sufficient to support the line drawn by the University. See Starns v. Malkerson, supra.