Van De Kamp, 060184 CAAGO, AGO 84-101

Docket Nº:AGO 84-101
Case Date:June 01, 1984
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 alien4 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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