JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 84-101
No. 84-101
California Attorney General Opinion
Office of the Attorney General State of California
June 1, 1984
THE
HONORABLE ANN REYNOLDS, CHANCELLOR OF THE CALIFORNIA STATE
UNIVERSITY, has requested an opinion on the following
question:
Does
section 68062, subdivision (h) of the Education Code permit
undocumented aliens to establish residence for tuition
purposes in California's public institutions of higher
education?
CONCLUSION
The
legislative history of Education Code section 68062,
subdivision (h), demonstrates that the Legislature did not
intend to, and the subdivision does not, permit undocumented
aliens to establish residence for tuition purposes in
California's public institutions of higher education.
ANALYSIS
Section
68000 et seq. of the Education Code
[1] set forth "uniform
student residency requirements." The Legislature enacted
these provisions with the intent that California's
"public institutions of higher education shall apply
uniform rules, as set forth . . . [therein] in determining
whether a student shall be classified as a resident or
nonresident." (§ 68000.)
[2] The significance of these
rules is that a student who is classified as a
"nonresident" must pay nonresident tuition in
addition to other required fees. (§ 68050.) To be
classified as a "resident," a student must have
been a resident "in the state for more than one year
immediately preceding the residency determination date"
established for the institution. (§§ 68017, 68023.)
The rules set forth for the determination of residence are
generally those set forth in sections 243-245 of the
Government Code for the determination of legal residence or
domicile. (See §§ 68060-68062.) Some exceptions to
residency requirements are also set forth. (See §§
68070-68082.)
The
question presented herein is whether section 68062,
subdivision (h), permits undocumented aliens to establish
residence for tuition purposes so they may avoid the payment
of the nonresident tuition. That subdivision provides:
"(h) An alien, including an unmarried minor alien, may
establish his or her residence, unless precluded by the
Immigration and Nationality Act (8 U.S.C. § 1101, et
seq.) from establishing domicile in the United
States.3
For our
purposes herein we understand the term "undocumented
alien" to mean an alien who cannot prove that he or she
is in the United States legally. (See, e.g., Plyler v.
Doe (1981) 457 U.S. 202, 206, fn. 2.) Accordingly,
"undocumented alien" usually refers to illegal
aliens.
Subdivisions
(h) and (i) were added to section 68062 by chapter 680,
Statutes of 1983. That chapter also repealed section 68076,
which had been the provision of law for determining the
ability of alien students to establish residency status for
tuition purposes. Section 68076 provided:
"A student who is an adult alien shall be entitled to
resident classification if he has been lawfully
admitted to the United States for permanent residence in
accordance with all applicable laws of the United
States; provided, that he has had residence in the
state for more than one year after such admission prior to
the residence determination date for the semester, quarter
or term for which he proposes to attend an
institution." (Emphasis added.)
It is
thus seen that prior to January 1, 1984, the effective date
of section 68062, subdivision (h), an adult
alien
4 could establish residence only if he or
she was "lawfully admitted to the United
States" and such lawful admission was "for
permanent residence" in accordance with all laws of the
United States, viz, the Immigration and Nationality
Act, 8 U.S.C.A. § 1101, et seq. Consequently, under
prior law, there was clearly no provision for an undocumented
alien or an illegal alien to establish residence for tuition
purposes.
The
wording of the prior law had its roots in the Immigration and
Nationality Act. As succinctly set forth in a relatively
recent law review note:
"Under the Immigration and Nationality Act, 8 U.S.C.
§§ 1101-1503 (1976), an 'alien' is
defined as 'any person not a citizen or national of the
United States.' Id. § 1101(a)(3). Two
classes of aliens exist under the Act: immigrant or
resident aliens, and nonimmigrant aliens. Immigrant aliens
are those admitted to permanent residence. Id.
§ 1151(a). Nonimmigrant aliens are generally admitted
only for temporary periods and include students, tourists,
diplomats, and temporary workers. Id. §
1101(a)(15). Aliens may also be
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