Moreno v. Toll

• Decision Date: 17 April 1980
• Docket Number: Civ. A. No. M-75-691.
• Citation: 489 F. Supp. 658
• Court: U.S. District Court — District of Maryland
• Parties: Juan Carlos MORENO et al., Plaintiffs, v. John S. TOLL, President, University of Maryland, Defendant.

489 F. Supp. 658

Juan Carlos MORENO et al., Plaintiffs, v. John S. TOLL, President, University of Maryland, Defendant.

Civ. A. No. M-75-691.

United States District Court, D. Maryland.

April 17, 1980.

Alfred L. Scanlan, Bethesda, Md., and James R. Bieke, John Townsend Rich, and Raymond M. Bernstein, Washington, D. C., for plaintiffs.

David H. Feldman, and Robert A. Zarnoch, Asst. Attys. Gen., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

This action was filed as a class action challenge¹ to the University of Maryland's "In-State Policy"² which precludes non-immigrant aliens from consideration for instate status while enrolled at the University. The court has already addressed the plaintiffs' due process challenge to the policy.³ Presently pending before the court are cross motions for summary judgment on the remaining issues raised under the Equal Protection Clause of the Fourteenth Amendment and the Supremacy Clause of the Constitution.

I. The Equal Protection Claims

The plaintiffs' initial argument under the Equal Protection Clause is that the challenged portion of the University's In-State Policy is premised upon a classification based on alienage, and therefore is subject to strict scrutiny in accordance with the Supreme Court decisions in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), and Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). The defendant, however, contends that strict scrutiny is inappropriate on the following bases:

(1) The previous Supreme Court cases concerning discrimination against aliens in which a strict scrutiny test was applied all involved a statute or practice which allegedly discriminated against resident aliens (a term equated by the defendant with immigrant alien);

(2) since immigrant aliens are eligible for in-state status at the University, it is irrational to contend that the University's policy denies benefits on the basis of alienage;

(3) the rationale for according "suspect" class status is wanting in this case since nonimmigrants can decide to adjust to immigrant visa status;

(4) in-state consideration is not a necessity of life and, therefore, strict scrutiny is inappropriate;

(5) strict scrutiny should not be applicable since the University's policy is consistent with the purposes of federal immigration law; and

(6) in the dissent filed in a prior opinion of the Supreme Court in this case, Justice Rehnquist and Chief Justice Burger indicated that "there . . . 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." Elkins v. Moreno, 435 U.S. 647, 676 n.6 98 S.Ct. 1338, 1354 n.6, 55 L.Ed.2d 1338 (1978).

In determining the applicable standard in the present case, it is necessary to review briefly the recent Supreme Court decisions regarding the ability of the State to create legislative classifications on the basis of alienage.

Initially, it is clear that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, supra, 403 U.S. at 372, 91 S.Ct. at 1852. Thus, in the Graham case, the Supreme Court struck down Pennsylvania and Arizona statutes which denied welfare benefits to resident aliens or to aliens who had not resided in the United States for a requisite number of years, as being violative of the Equal Protection Clause. In subsequent cases the Court has expounded upon this doctrine.

For example, in Examining Board v. Flores de Otero, supra, Puerto Rico's virtual ban on the private practice of civil engineering by aliens was held unconstitutional by the Court, stating 426 U.S. at 602, 96 S.Ct. at 2281:

"Graham v. Richardson, supra; Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); and In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) establish that state classifications based on alienage are subject to `strict judicial scrutiny.' Graham v. Richardson, 403 U.S. at 376, 91 S.Ct. at 1854. Statutes containing classifications of this kind will be upheld only if the State or Territory imposing them is able to satisfy the burden of demonstrating `that its purpose or interest is both constitutionally permissible and substantial; and that its use of the classification is "necessary . . . to the accomplishment" of its purpose or the safeguarding of its interest.' In re Griffiths, 413 U.S. at 721-722, 93 S.Ct. at 2854-2855 (footnotes omitted)."

The Court went on to note that two rationales exist for the principles set forth in these cases:

"The first, based squarely on the concepts embodied in the Equal Protection Clause of the Fourteenth Amendment and in the Due Process Clause of the Fifth Amendment, recognizes that

`aliens as a class are a prime example of a "discrete and insular" minority. . . for whom . . . heightened judicial solicitude is appropriate.' Graham v. Richardson, 403 U.S. at 372, 91 S.Ct. at 1852 . . .. The second, grounded in the Supremacy Clause, Const., Art. VI, cl. 2, and in the naturalization power, Art. 1, § 8, cl. 4, recognizes the Federal Government's primary responsibility in the field of immigration and naturalization." (Citations omitted).

426 U.S. at 602, 96 S.Ct. at 2281.

Similarly, in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), the Supreme Court held unconstitutional a New York statute which barred certain resident aliens from eligibility for state financial assistance for higher education.⁴ The appellants in Nyquist sought to avoid strict scrutiny analysis by the Court by arguing that the state statute in question distinguished "only within the heterogeneous class of aliens and did not distinguish between citizens and aliens vel non." Id. at 8, 97 S.Ct. at 2125. Nevertheless, the Court applied strict scrutiny analysis in striking down the statute, as it stated:

"The important points are that the statute is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class."

Id. at 9, 97 S.Ct. at 2125.

As previously mentioned, the defendant's initial and principal argument against the application of the doctrine of strict scrutiny here is premised upon the observation that all prior Supreme Court cases cited have dealt with classifications of "resident" aliens, rather than with "non-immigrant" aliens. Accordingly, the defendant argues that nothing in the prior Supreme Court cases requires the application of strict scrutiny in the examination of state discrimination against nonimmigrant aliens. In support of this contention, the defendant refers the court to G. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, Sup.Ct.Rev. 275, 312 (1977), wherein the author states:

"The Supreme Court . . . has not held it unconstitutional to discriminate against nonimmigrant aliens. It has not even suggested that such aliens are within the class protected under the suspect classification doctrine."

Since no case law is cited in support of the defendant's position,⁵ the issue of whether state classifications which narrowly discriminate against nonimmigrant aliens should be examined under strict scrutiny analysis appears to present a novel question of law.

In attempting to distinguish the present case from prior Supreme Court decisions which applied strict scrutiny analysis to classifications of "resident" aliens, See Graham v. Richardson, supra; Sugarman v. Dougall, supra; In re Griffiths, supra; Nyquist v. Mauclet, supra, the defendant appears to adopt a definition of "resident" alien which excludes a nonimmigrant status from its umbrella. This definition, in turn, appears to have its genesis in the article by Professor Rosberg:

"As defined in the federal immigration laws, a resident- or immigrant-alien is a person admitted for permanent residence, entitled to work and live anywhere in the country and eligible for naturalization after five years of residence. A non-resident-or nonimmigrant-alien is a person admitted for a fixed period of time determined prior to entry . . . . No amount of residence will make a nonimmigrant eligible for naturalization."

G. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, supra at 277. Under Professor Rosberg's analysis, the terms "immigrant" and "resident" are synonymous, as are the terms "nonimmigrant" and "nonresident". This court, however, has concluded that this definition of these terms is erroneous, both in light of the definitions contained in the Immigration and Nationality Act itself and of usage of the terms in relevant case law.

The Immigration and Nationality Act defines the term "residence" as follows:

"The term `residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections 1482 and 1484 of this title⁶ where there is continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states or outside the United States."

8 U.S.C. § 1101(a)(33).

Under this definition a "resident" alien is one whose place of general abode is within the United States. Resident aliens can, therefore, be further classified as either "immigrant" or "nonimmigrant", the chief basis for the distinction between the two being the statutory recognition of temporal limits inherent in nonimmigrant status. Immigrant aliens are referred to as being "lawfully admitted for permanent residence", i. e. being "accorded the...