Untitled Texas Attorney General Opinion ( 1988 )

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Jatmary15, 1988
Mr. Kenneth Ii. Ashworth, Opinion No.JT‘I-845
Commissioner
Coordinating Board Re: Whether aliens granted
Texas College 8 permanent resident status
University System on a conditional basis may
P. 0. Box 12788 qualify for resident status
Austin, Texas 78711 for tuition purposes
(RQ-1194)
Dear Commissioner Ashworth:
You ask the following question:
Are aliens granted conditional permanent
residence status in the United States
eligible to be classified as residents of
Texas for tuition determination purposes
prior to the removal of the conditional
basis of their status, provided the aliens
are meeting all other requirements for Texas
residency which are applicable to United
States citizens?
The Education Code contains general rules governing
determination of residency for tuition purposes. Educ.
Code 5554.052 through 54.064. Section 54.057 provides:
An alien who is living in this country
under a visa permitting permanent residence
or who has filed with the proper federal
immigration authorities a declaration of
intention to become a citizen has the same
privilege of qualifying for resident status
for fee purposes under this Act as has a
citizen of the United States. A resident
alien residing in a junior college district
located immediately adjacent to Texas
boundary lines shall be charged the resident
tuition by that junior college.
p. 4086
4
Mr. Kenneth Ii. Ashworth - Page 2 (m-845)
I
See also Attorney General Opinion JR-241 (1984) (despite
section 54.057, aliens permitted by Congress to adopt U.S.
as domicile must be accorded same privileges as permanent ?
residents to qualify for resident tuition).
Under federal immigration law, alien spouses and
children of U.S. citizens are not subject to the numerical
restrictions applicable to other categories of immigrants.
8 U.S.C. 51151(b) (1982). "Because of this special status
accorded such alien relatives, aliens who either cannot
otherwise qualify for immigration to the United States or
who, though qualified, are not willing to wait until an
immigrant visa becomes available, frequently find it
expedient to engage in a fraudulent marriage in order to
side-step the immigration law." H.R. Rep. No. 906, 99th
Cong ., 2d Sess. 9 (1986) printed in 1986 U.S. Code
Cong . 8 Admin. News 5978; see also 10 Harv. Women's L.J.
319, 320. The Immigration Marriage Fraud Amendments of
1986, which are codified at 8 U.S.C. S1186a, were enacted
order to discourage aliens from entering into
i:audulent marriages for the purpose of acquiring
permanent resident status in the United States. H.R. Rep.
No. 906, 99th Cong., 2d Sess. 9 (1986), KBprinted in 1986
U.S. Code Cong. & Admin. News 5978.
?
Section 1186a(s)(l) provides that an alien spouse or
child shall be considered nat the time of obtaining the
status of an alien lawfully admitted for permanent
residence, to have obtained such residence on a
conditional basis." If, "before the second anniversary of
the alien's obtaining the status of lawful admission for
permanent residence," it is determined that the marriage
was fraudulent or that the marriage has ended for a reason
other than death, the permanent resident status of the
alien spouse will be terminated. 8 U.S.C. §1186a(b). In
order to have the condition removed, the married couple
must submit a petition within 90 days of the second
anniversary of the alien's obtaining permanent residence
status. 8 U.S.C. 51186a(c), (a). Your question is
whether an alien with permanent resident status on a
conditional basis as described in 8 U.S.C. 8 1186a is a
"permanent resident" for purposes of section 54.057 of the
Texas Education Code.
In allowing aliens who live in the United States
"under a visa permitting permanent residence" to qualify
for resident tuition, the Texas legislature created a
class whose members are determined by federal law. Educ.
Code 554.057; w 8 U.S.C. 51101(a)(20) (defining
"lawfully admitted for permanent residence"): see also 8
p. 4087
Mr. Kenneth Ii. Ashworth - Page 3 W-845 )
;I;.;, gllOl(a)(31! (defining npermanentn; relationship
"permanent even though it may eventually be
dissolved). Your question is whether the newly created
category under federal law of conditional permanent
residents is part of the category of aliens with a visa
permitting permanent residence for purposes of section
54.057 of the Texas Education Code. Secause the federal
category created by the Immigration Marriage Fraud
Amendments of 1986 did not exist at the time section
54.057 was enacted, section 54.057 itself offers no
guidance on how the status of permanent resident subject
to the condition set out in the Immigration Marriage Fraud
Amendments of 1986 fits into the scheme set out in section
54.057. Therefore, we must turn to the language of the
new federal statute in order to answer your question.
Despite the condition attached to his status, an
alien spouse or child subject to the provisions of section
1186a is still described in the federal law as having
"permanent resident status" or as being "lawfully admitted
for permanent residence." Throughout section 1186a an
alien spouse or child subject to the provisions of section
1186a is referred to as having "permanent resident
status," albeit with a condition attached. Subsection
(a)(l) of section 1186a provides:
Conditional basis for status.
Notwithstanding any other provision of this
Act, an alien spouse (as defined in
subsection (g)(l)) and an alien son or
daughter (as defined in subsection ,(g)(2))
shall be considered, at the time of
obtainina the status of an alien lawfullv
admitted for uennanent residence. to have
*
ob ' d
subiect to h orovisions of this section.
(Emphasis aid'ed.)
The consequence of a determination that an alien spouse's
marriage was fraudulent or that it has ended '
"termination of permanent resident status." m 8 U.S.::
a H.R. Rep. No. 906, 99th Cong., 2d Sess.
s1186a(c)(z&rinted
9 (1986), b 1986 U .S . Code Cong. & Admin. News
5978, 5981 (noting that bill would postpone privilege of
permanent resident status). Thus, as suggested in a brief
submitted in regard to your request, the condition appears
to be a condition subsequent that allows the United States
to revoke the permanent resident status of certain alien
spouses and children under specified circumstances rather
than a condition precedent to obtaining the status of
p. 4088
Mr. Kenneth H. Ashworth - Page 4 (``-845)
permanent resident. sp;n also 8 U.S.C. 51101(a)(31)
(relationship can be @'permanent" for purposes of federal
immigration law even though it may eventually be
dissolved).
~160, for purposes of naturalization, an alien who is
a lawful permanent resident on a conditional basis is
considered to be "an alien lawfully admitted to the United
States for permanent residence." 8 U.S.C. !j1186a(e).
Thus, although the 1986 legislation was intended to make
it easier to revoke the privileges accorded to aliens
subject to the two-year condition, it appears that the
condition was not intended to deny to aliens subject to
the condition all privileges that accompany permanent
resident status.
Thus, we feel constrained to conclude that aliens
subject to the two-year condition are permanent residents
for purposes of section 54.057. Aliens subject to the
two-year condition are therefore eliaible to be classified
as residents for purposes of tuition at Texas colleges and
universities.
SUMMARY
An alien granted permanent resident
status subject to the condition set out in
the Immigration Marriage Fraud Amendments of
1986 is a permanent resident for purposes of
section 54.057 of the Texas Education Code
and is therefore eligible to be classified
as a resident for purposes of tuition at
Texas colleges and universities.
JIM MATTOX
Attorney General of Texas
NARY KKLLKR
First Assistant Attorney General
Lou MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLKY
Special Assistant Attorney General
p. 4089
Mr. Kenneth Ii. Ashworth - Page 5 (J&845)
RICK GILPIN
Chairman, Opinion Committee
,-
Prepared by Sarah Woelk
Assistant Attorney General
p. 4090