435 U.S. 647 (1978), 77-154, Elkins v. Moreno

Docket Nº:No. 77-154
Citation:435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614
Party Name:Elkins v. Moreno
Case Date:April 19, 1978
Court:United States Supreme Court

Page 647

435 U.S. 647 (1978)

98 S.Ct. 1338, 55 L.Ed.2d 614




No. 77-154

United States Supreme Court

April 19, 1978

Argued February 22, 1978




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.


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

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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, 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. 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. 660-662.

3. Under federal law, G-4 aliens have the legal capacity to change domicile. Pp. 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 [98 S.Ct. 1341] 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. 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

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could be adjusted to that of a permanent resident without difficulty. Pp. 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. 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. 669.

Page 650

BRENNAN, J., lead opinion

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). [98 S.Ct. 1342] 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

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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 668-669, to the Maryland Court of Appeals.


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.

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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.


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 [98 S.Ct. 1343] because "neither Mr. Manuel Moreno nor his son, Juan...

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