In Re the Marriage of Rendon Quijada & Pimienta Dominguez ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE THE MARRIAGE OF
MARIA DEL CARMEN RENDON QUIJADA,
Appellant,
and
JULIAN JAVIER PIMIENTA DOMINGUEZ,
Appellee.
No. 2 CA-CV 2022-0174-FC
Filed June 15, 2023
Appeal from the Superior Court in Pima County
No. D20221319
The Honorable J. Alan Goodwin, Judge
VACATED AND REMANDED
COUNSEL
Ayala Law Office P.C., Tucson
By Siovhan S. Ayala and Robert W. Current
Counsel for Appellant
Luke E. Brown, Tucson
Counsel for Appellee
IN RE MARRIAGE OF RENDON QUIJADA & PIMIENTA DOMINGUEZ
Opinion of the Court
OPINION
Judge Sklar authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge O’Neil concurred.
S K L A R, Judge:
¶1 This case concerns the relationship between immigration
status and state-law domicile. At issue is Maria Del Carmen Rendon
Quijada’s petition for dissolution of her marriage to Julian Javier Pimienta
Dominguez. The parties originally entered the United States on visas
prohibiting them from intending to establish residency. The trial court
therefore concluded that federal law precluded Rendon from establishing
domicile in Arizona, and it dismissed the case for lack of subject matter
jurisdiction. We vacate that dismissal. Before Rendon filed the petition, she
began seeking a visa that could lead to permanent residency. We therefore
conclude that federal law does not prevent her from establishing an
Arizona domicile.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Rendon and Pimienta married in Mexico in 1999 and share
one minor child. They came to the United States in 2007 on visas created
under the North American Free Trade Agreement (“NAFTA”). The visas
allow certain categories of business people and their families to enter the
United States without establishing permanent residence. See 8 C.F.R.
§ 214.6. Pimienta’s visa is called a TN visa, which is for employees.
Rendon’s is called a TD visa, which is sponsored by TN-visa holders for
their family members.
¶3 Pimienta moved to Virginia no later than March 2021. He did
not sponsor the renewal of Rendon’s visa or their son’s visa after those visas
expired in March 2020. Rendon remained in Arizona beyond the expiration
date. Pimienta has continued to renew his TN visa.
¶4 Pimienta filed for dissolution in Mexico in November 2020.
Rendon challenged the Mexican court’s jurisdiction on the ground that the
parties’ marital residence was in Arizona rather than Mexico. The Mexican
court declined jurisdiction and dismissed the case.
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Opinion of the Court
¶5 In 2020, Rendon began seeking status as a lawful permanent
resident. The initial step was for her sister, a United States citizen, to file a
Petition for Alien Relative with the U.S. Citizenship and Immigration
Service (“USCIS”). USCIS received the petition in January 2021. It
remained pending as of the trial court hearing in August 2022.
¶6 In May 2022, Rendon filed the dissolution petition in this case.
In response, Pimienta filed a motion to dismiss for lack of subject matter
jurisdiction. He argued that Rendon’s immigration status precluded her
from being domiciled in Arizona. After the August 2022 hearing, the trial
court dismissed the case. It concluded that under Ninth Circuit precedent,
Rendon could not legally be domiciled in Arizona because she had entered
the country on a TD visa.
¶7 This appeal followed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(1).
STATE-LAW DOMICILE AND FEDERAL SUPREMACY
¶8 We review the trial court’s dismissal de novo because its
ruling did not resolve any disputed jurisdictional facts. See Falcone Bros. &
Assocs., Inc. v. City of Tucson, 240 Ariz. 482, ¶ 10 (App. 2016). Our analysis
begins with the domicile requirement under Arizona’s divorce statutes. For
an Arizona court to have jurisdiction over a divorce, at least one party must
have been domiciled in Arizona for ninety days before filing a petition for
dissolution. A.R.S. § 25-312(A)(1); see also Tanner v. Marwil, 250 Ariz. 43,
¶ 10 (App. 2020) (domicile requirement is prerequisite to subject matter
jurisdiction). Establishing domicile requires “(1) physical presence, and
(2) an intent to abandon the former domicile and remain here for an
indefinite period of time.” DeWitt v. McFarland, 112 Ariz. 33, 34 (1975).
Because Pimienta had left Arizona by March 2021, jurisdiction could not be
established through his presence and domicile.
¶9 Rendon, however, was physically present in Arizona for
ninety days prior to filing the petition. The trial court would therefore have
jurisdiction if Arizona was her domicile. Instead, however, the court
concluded that people who enter the United States on a TN or TD visa lack
the legal capacity to intend to abandon their former domicile and remain
indefinitely in Arizona. That is the issue we address.
¶10 Whether the trial court was correct is, at least in part, an issue
of federal law, as the federal government has broad power over
immigration. See Arizona v. United States, 567 U.S. 387, 394-95 (2012) (citing
U.S. Const. art. I, § 8, cl. 4). This includes power over the status of
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Opinion of the Court
noncitizens—a term we use as the equivalent of the statutory term “alien.”
Id. at 394; 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a citizen
or national of the United States”); see also Barton v. Barr, 140 S. Ct. 1442, 1446,
n.2 (2020) (equating “noncitizen” with “alien”).
¶11 Given this federal power, any state law that “stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress” in regulating immigration is preempted under the
Supremacy Clause of the United States Constitution. Arizona, 567 U.S. at
406 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). States may neither
“add to nor take from the conditions lawfully imposed by Congress upon
admission, naturalization and residence of aliens.” Toll v. Moreno, 458 U.S.
1, 11 (1982) (quoting Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419
(1948)). We must therefore address whether allowing Rendon to establish
an Arizona domicile would impede Congress’s purpose and objectives in
regulating immigration. Doing so requires us to address the requirements
governing TN-visa holders like Pimienta and TD-visa holders like Rendon.
REQUIREMENTS OF THE TN VISA AND TD VISA
¶12 As noted, the TN and TD visas were created under NAFTA.
More recently, NAFTA has been replaced by the United States-Mexico-
Canada Agreement (“USMCA”), though the visas remain available.
Mexican and Canadian citizens are eligible for the TN visa if they “seek[]
temporary entry as a business person to engage in business activities at a
professional level.” 8 C.F.R. § 214.6(d)(1), (2). TN-visa holders like
Pimienta may bring their spouses and unmarried minor children to the
United States on a TD visa. 8 C.F.R. § 214.6(j)(1). TD-visa holders may be
admitted for the same length of time as TN-visa holders. Id.¶13 Holders of both visas are considered “nonimmigrants.”
8 U.S.C. § 1184(e). As relevant here, that term means a noncitizen who
resides in a foreign country that “he has no intention of abandoning,” and
“who is visiting the United States temporarily for business or temporarily
for pleasure.” 8 U.S.C. § 1101(a)(15)(B). Consistent with that definition, the
regulations implementing NAFTA—which, for our purposes are identical
under the USMCA—define “temporary entry” as lacking an intent to
remain permanently in the United States. Specifically, the term means:
[E]ntry without the intent to establish
permanent residence. The alien must satisfy the
inspecting immigration officer that the
proposed stay is temporary. A temporary
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Opinion of the Court
period has a reasonable, finite end that does not
equate to permanent residence. In order to
establish that the alien’s entry will be
temporary, the alien must demonstrate to the
satisfaction of the inspecting immigration
officer that his or her work assignment in the
United States will end at a predictable time and
that he or she will depart upon completion of
the assignment.
8 C.F.R. § 214.6(b). Nevertheless, a TN- or TD-visa holder may receive
unlimited extensions subject to certain conditions. 8 C.F.R. § 214.6(h)(iv),
(j)(1).
¶14 Under these regulations, noncitizens intending to become
United States residents may not obtain or renew a TN or TD visa. But the
law does not preclude them from seeking an immigrant visa and permanent
residency. For example, upon a successful petition from a United States
citizen, a nonimmigrant may obtain an immigrant visa. See 8 U.S.C.
§§ 1153(a), 1154(a)(1)(A)(i). The nonimmigrant and the petitioning citizen
must have a specified type of relationship, such as siblings, which allows
the nonimmigrant to seek “preference status.” 8 U.S.C. § 1154(b); see also
8 U.S.C. § 1153(a)(4). Doing so involves the citizen filing a Petition for Alien
Relative. 8 C.F.R. § 204.1(a)(1). This is the process Rendon’s sister initiated
on her behalf.
¶15 If the nonimmigrant obtains “preference status” and the
corresponding visa, that noncitizen may seek an “adjustment of status” to
legal permanent resident. See 8 U.S.C. § 1255(a). Obtaining that adjustment
of status requires compliance with numerous conditions. See, e.g., 8 U.S.C.
1255(c)-(f) (identifying noncitizens who are ineligible for adjustment of
status). It is unclear whether Rendon can comply with them and obtain
permanent residency.
FEDERAL CASES CONCERNING DOMICILE AND
IMMIGRATION STATUS
¶16 With this background, we turn to the federal case law
addressing when noncitizens may be domiciled in the United States. The
foundational United States Supreme Court case is Elkins v. Moreno, 435 U.S.
647 (1978), which concerned whether noncitizen-students were eligible for
in-state tuition at the University of Maryland. The students had entered the
United States on G-4 visas, which are available to employees of
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Opinion of the Court
international organizations and members of their immediate families. Id. at
652. The students’ eligibility for in-state tuition turned in part on whether
they could “form the intent necessary to allow them to become
domiciliaries of Maryland.” Id. at 658. However, the Court did not decide
that issue. It instead certified that question to Maryland’s highest court as
a question of state law. Id. at 668-69.
¶17 Before doing so, though, the Supreme Court determined that
federal law did not preclude holders of G-4 visas from establishing a United
States domicile. Id. at 666. The Court distinguished the G-4 visa from some
others, explaining that “Congress did not require holders of G-4 visas to
maintain a permanent residence abroad or to pledge to leave the United
States at a date certain.” Id. at 664. As for holders of visas premised on such
a requirement, the Court suggested that they could not establish a United
States domicile without seeking an adjustment of status. Id. at 665-66 (“It is
also clear that Congress intended that, in the absence of an adjustment of
status . . . nonimmigrants in restricted classes who sought to establish
domicile would be deported.”). The Court again recognized this limitation
in a follow-up case to Elkins. Toll, 458 U.S. at 14 & n.20.
¶18 Two Ninth Circuit cases have applied Elkins in contexts
relevant here. The first case, Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001),
also involved eligibility for in-state tuition. The student was a TD-visa
holder. Id. at 877. A California statute precluded noncitizens from
establishing residency—and, consequently, eligibility for in-state tuition—
if precluded by federal law from “establishing domicile in the United
States.” Id. at 878 (quoting Cal. Educ. Code § 68062(h)). Applying federal
law to that statute, the court concluded that the student could not establish
California residency. It reasoned that Elkins was premised on a G-4-visa
holder’s ability to establish an intent to remain in the United States. Id. at
880. Of course, the TD-visa regulations prohibit noncitizens from being
admitted with such an intent. Id. (citing 8 C.F.R. § 214.6(b)). The court thus
observed that if the student intended to remain in California, she would
“violate her TN/TD federal immigration status” and “[h]er continued
presence in this country would be illegal.” Id. Thus, under existing
California case law, she would be an “undocumented alien[]” and could not
qualify for in-state tuition. Id. at 880-81 (quoting Regents of the Univ. of Cal.
v. Superior Court, 276 Cal. Rptr. 197, 200-01 (Ct. App. 1990)).
¶19 More recently, the Ninth Circuit decided Park v. Barr, 946 F.3d
1096 (9th Cir. 2020). Park concerned whether a district court had properly
upheld USCIS’s denial of a naturalization application. Id. at 1097. The
applicant had married in Korea, overstayed a tourist visa in the United
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Opinion of the Court
States, divorced under Korean law, and remarried a United States citizen.
Id. USCIS determined the divorce was invalid under California law,
rendering the new marriage invalid. Id. Therefore, USCIS denied the
naturalization application, which required the applicant to be lawfully
married to a United States citizen. Id.¶20 The district court agreed with USCIS, but the Ninth Circuit
reversed. Id. The court applied a California statute that precludes the state
from recognizing foreign divorces where both parties were domiciled in
California when divorce proceedings commenced. Id. (citing Cal. Fam.
Code § 2091). USCIS had concluded that the Korean divorce was invalid in
California because the applicant and her first husband were domiciled in
California when the divorce decree was executed. Id. at 1097. The Ninth
Circuit reasoned, however, that a California domicile would have violated
the applicant’s tourist visa. Id. at 1099. The court also rejected the argument
that the visa requirements were irrelevant because the applicant had
overstayed her visa. Id. Rather, applying Elkins, it concluded that
Congress’s intent was to preclude such visa holders from establishing
domicile, absent an adjustment in status. Id.APPLICATION OF FEDERAL LAW TO THIS CASE
¶21 Here, the trial court determined that it was required to apply
Park and Carlson and concluded that federal law precluded a finding that
Rendon is domiciled in Arizona. We view the issue differently.
Preliminarily, although Arizona courts are bound by the United States
Supreme Court’s determinations on substantive federal issues, we are not
so bound by decisions of the Ninth Circuit. See Weatherford ex rel. Michael L.
v. State, 206 Ariz. 529, ¶¶ 8-9 (2003); Skydive Ariz., Inc. v. Hogue, 238 Ariz.
357, ¶ 29 (App. 2015) (“[D]ecisions of the Ninth Circuit, although
persuasive, are not binding on Arizona courts.”). Therefore, the trial court
was not obligated to follow Park and Carlson.
¶22 Regardless, this case differs from Park and Carlson. As to Park,
the applicant there did not begin seeking legal status until after her Korean
divorce was finalized. Park, 946 F.3d at 1097. She was simply present in
California on an expired visa. Id. Here, by contrast, before she initiated
divorce proceedings, Rendon began seeking an immigrant visa that could
lead to permanent residency. This distinction matters under Elkins. That
case recognized that noncitizens can seek an adjustment of status to
permanent residency even if they were admitted on visas requiring them to
maintain a permanent foreign residence. Elkins, 435 U.S. at 667.
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¶23 Carlson can arguably be read to suggest that a noncitizen
cannot establish domicile when overstaying a TD visa. But the student in
Carlson did not begin seeking an immigrant visa or adjustment of status.
See Carlson, 249 F.3d at 877-78. Nor did the court contemplate that
possibility. And Carlson’s conclusion that undocumented aliens cannot
qualify for in-state tuition in California applied a California statute
unrelated to the issues here. Id. at 880-81.
¶24 Although Park and Carlson are not on point, we must still
address whether the federal law governing TN and TD visas would
preempt a conclusion that holders of such visas can be domiciled in Arizona
as a matter of state law while seeking an immigrant visa or permanent
residency. We conclude that it would not. Federal laws are presumed not
to preempt state laws. Conklin v. Medtronic, Inc., 245 Ariz. 501, ¶ 8 (2018).
The relevant federal law looks to the visa holder’s intent upon admission to
the United States and renewal of the visa. See, e.g., 8 U.S.C. § 1184(e)(1)
(allowing noncitizens to be “admitted” under relevant regulations); 8 C.F.R.
§ 214.6(b) (defining “temporary entry” as lacking “intent to establish
permanent residence”). Nothing in that law precludes visa holders from
entering the United States without an intent to remain, then changing that
intent and seeking an immigrant visa or permanent residency later,
including through the adjustment-of-status process recognized in Elkins.
¶25 Pimienta also points to several other federal cases that, in his
view, preempt us from concluding that holders of TN and TD visas may
establish Arizona domicile. First is Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30 (1989). That case concluded that “domicile” under the
Indian Child Welfare Act (“ICWA”) is a matter of Congress’s intent rather
than state law. Id. at 43-47. But unlike ICWA, which imposes uniform
national standards, laws governing domestic relations have “long been
regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419
U.S. 393, 404 (1975). Pimienta has pointed to no binding federal law
concluding that Congress has created—or even has the power to create—a
uniform regulatory scheme governing domicile in state-law divorce
proceedings.
¶26 Pimienta also relies on two circuit court cases, Melian v. I.N.S.,
987 F.2d 1521 (11th Cir. 1993), and Graham v. I.N.S., 998 F.2d 194 (3d Cir.
1993). Those cases address whether a noncitizen’s time in the United States
on a nonimmigrant visa could count toward the seven consecutive years of
“lawful unrelinquished domicile” necessary under a now-repealed statute
to qualify for discretionary relief from deportation. Melian, 987 F.2d at 1523
& n.2 (quoting now-repealed 8 U.S.C. § 1182(c)); Graham, 998 F.2d at 195
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(same). Both courts concluded it did not. They reasoned that during that
time, the petitioners could not have lawfully intended to remain. Melian,
987 F.2d at 1525; Graham, 998 F.2d at 196. We are unpersuaded that those
cases are relevant, given that they construed the immigration-law term
“lawful unrelinquished domicile” in a statute not at issue here.
¶27 We add one additional comment about a California case cited
by both parties and discussed in Park. That case, In re Marriage of Dick, 18
Cal. Rptr. 2d 743, 745-48 (Ct. App. 1993), concluded that a husband on
“tourist status” in the United States could establish a California domicile
for divorce purposes even though his status required him to maintain a
foreign residence. The court reasoned that the husband could have “the
dual intention of remaining in this country indefinitely by whatever means
including renewal of a visa and of returning to his or her home country if
so compelled.” Id. at 747. In Park, the Ninth Circuit concluded that Dick
conflicted with federal law and thus read Dick’s holding “narrowly.” Park,
946 F.3d at 1100. Rendon and Pimienta disagree about the implications of
Park reaching this conclusion. But we need not address the issue. Park does
not contemplate that, before divorce proceedings, a party would begin
seeking an immigrant visa that could lead to an adjustment of status.
¶28 Given our analysis of the federal statutory and case law, we
conclude that Arizona courts would not impede Congress’s purposes and
objectives by allowing holders of TN and TD visas to establish Arizona
domicile where they have begun seeking an immigrant visa or adjustment
of status. Similarly, allowing these visa holders to establish an Arizona
domicile after invoking these processes would not add to or take from the
conditions lawfully imposed by Congress. Congress contemplated that
these visa holders might be able to establish a United States domicile by
following these processes. For an Arizona court to exercise jurisdiction of
this dissolution proceeding would neither alter Rendon’s immigration
status nor limit the remedies available under federal immigration law.
Accordingly, we hold that federal law does not preempt Arizona from
allowing Rendon to establish domicile under Arizona law. Absent federal
preemption, Arizona is free to make and apply its own laws.
¶29 Our holding is narrow. We do not address whether federal
law would preclude nonimmigrant-visa holders from establishing Arizona
domicile when their visas require them to maintain a foreign residence and
they have not attempted to adjust their status. Nor do we address more
generally whether federal law would preclude deportable noncitizens from
establishing domicile.
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¶30 Our holding also does not depend on whether a visa holder is
successful at obtaining an immigrant visa or adjustment of status. Those
determinations can be discretionary and dependent on the circumstances.
See, e.g., 8 U.S.C. §§ 1153(a) (imposing limits on number of
family-sponsored visas issued annually), 1255(c)-(f) (imposing conditions
for granting application for adjustment of status). In evaluating
preemption, it is sufficient that Congress has made these processes
available to holders of TN and TD visas, especially where a holder has
actually invoked those processes. Domicile turns on the petitioner’s intent,
and those processes allow visa holders to lawfully intend to remain in the
United States, even if they are not ultimately allowed to do so.
RELATIONSHIP BETWEEN IMMIGRATION STATUS
AND STATE-LAW DOMICILE
¶31 Having resolved the preemption issue, we return to state law
and address how Rendon’s immigration status factors into the domicile
analysis under A.R.S. § 25-312. Domicile is generally a fact-specific
analysis. See Clark v. Clark, 124 Ariz. 235, 237 (1979). The Arizona Supreme
Court has also concluded that “[i]llegal entry into the country would not,
under traditional criteria, bar a person from obtaining domicile within a
state.” St. Joseph’s Hosp. & Med. Ctr. v. Maricopa County, 142 Ariz. 94, 99-100
(1984) (quoting Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982)). Nor has the
legislature made domicile contingent on lawful presence in the country, as
Section 25-312 makes no reference to immigration status.
¶32 Applying this case law, and absent any federal preemption,
we see no reason to treat immigration status differently from any other
relevant fact. It is a factor the trial court may consider in resolving domicile.
The same is true of statements a party made to obtain a visa, as well as any
application for permanent residence. See, e.g., Sahu v. Sahu, 306 So. 3d 59,
62 (Ala. Civ. App. 2020) (application for permanent residency may
strengthen domicile argument even if party entered United States on
nonimmigrant visa that required maintenance of foreign residence).
¶33 In its ruling, the trial court identified numerous factors that
might relate to Rendon’s domicile. Aside from facts relating to her
immigration status and intent to establish permanent residency, the court
noted the Mexican court’s declination of jurisdiction and that the visa
expiration was due to Pimienta’s refusal to renew his sponsorship. The
court did not weigh those factors, however, because it ruled that it was
preempted from finding domicile. Because we vacate that ruling, we
remand for the trial court to weigh those factors. See Hurd v. Hurd, 223 Ariz.
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48, ¶ 16 (App. 2009) (“Our duty on review does not include re-weighing
conflicting evidence . . . .”).
ATTORNEY FEES AND COSTS ON APPEAL
¶34 Rendon requests an award of attorney fees on appeal under
Rule 21, Ariz. R. Civ. App. P. Because she has not cited a substantive basis
for such an award, we do not consider her request. Nevertheless, as the
prevailing party on appeal, Rendon is entitled to her costs upon compliance
with Rule 21(b).
DISPOSITION
¶35 We vacate the trial court’s dismissal for lack of subject matter
jurisdiction. We remand the matter to that court to determine whether
Rendon satisfies the domicile requirement of A.R.S. § 25-312.
11