Judges: JOHN W. SUTHERS, Attorney General.
Filed Date: 8/14/2007
Status: Precedential
Modified Date: 4/17/2021
Answer: Yes. Current state and federal law permit the state to grant in-state tuition status to students who are U.S. citizens but whose parents or guardians are undocumented aliens, *Page 2 as long as the student can properly establish his or her lawful presence in the United States and the other statutory requirements for establishing eligibility for in-state tuition are met. Because it is the student, rather than the parents, who is the legal beneficiary of in-state tuition status, the fact that the parents may be in the country illegally is not a bar to the student's receipt of that benefit.
Like any other student, the hypothetical person in the question has the burden of showing that he or she has been domiciled in Colorado for at least one year in order to be deemed an instate student. Under Colorado law, the domicile of an unemancipated minor is presumed to be that of his or her parents. The parents' undocumented status does not prevent them from being domiciled in the state.
The issue raised requires a two-part analysis. The first part of the analysis focuses on the requirements of House Bill 1023 and applicable federal law, which restrict undocumented aliens' eligibility for public benefits. Here, it is the student who applies for and receives the benefit of in-state tuition status. As a U.S. citizen, the student is eligible for such a benefit. The next question concerns the issue of domicile, as determined in accordance with Colorado laws defining eligibility for in-state status, and is wholly separate from any analysis, under state or federal law, concerning eligibility for public benefits. Colorado's tuition classification system is based on residency and, if the child is an unemancipated minor, the domicile of the parents is the domicile presumed to determine tuition status. Domicile is a factual determination based upon physical presence within the state for a certain period of time combined with an intent to remain in the state indefinitely. Under Colorado's current statutory system, an undocumented alien can establish domicile in Colorado. Therefore, an unemancipated minor child who is a U.S. citizen can qualify for in-state tuition if his or her parents can establish domicile in the state, irrespective of the immigration status of the parents.
H.B. 1023 defines the terms "federal public benefit" and "state or local public benefit" by reference to those terms in federal laws enacted in 1996 and known as The Personal *Page 3 Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA") and The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").2
The PRWORA creates a comprehensive statutory scheme for determining aliens' eligibility for federal, state and local public benefits and services. It categorizes all aliens as "qualified" or "not qualified" and then denies public benefits based on that categorization:
Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not —
(1) a qualified alien (as defined in section 1641 of this title),
(2) a nonimmigrant alien under the Immigration or Nationality Act [
8 U.S.C. § 1101 et seq.], or(3) an alien who is paroled into the United States under section 212(d)(5) of such Act [
8 U.S.C. § 1182 (d)(5)] for less than one year, is not eligible for any state or local public benefit (as defined in subsection (c) of this section).
The term "state or local public benefit" is defined by federal law as set forth below:
(c)"State or local public benefit" defined
(1) . . . for the purposes of this subchapter the term "State or local public benefit" means . . .
(B) any retirement, welfare, health disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the State or local government or by appropriated funds of a State or local government.
In 1996, Congress passed the IIRIRA, which focuses specifically on post-secondary educational benefits. The IIRIRA denies state and local post-secondary education benefits to any alien who is not a "qualified" alien, a nonimmigrant under the Immigration and Naturalization Act ("INA"), or an alien paroled into the United States under the INA. Specifically, the IIRIRA expressly limits the eligibility of aliens "not lawfully present"3 in the United States for preferential treatment on the basis of residence for higher education benefits: *Page 4
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
For purposes of this opinion, under the definition outlined in federal law and incorporated in H.B. 1023, in-state tuition is considered a public benefit. Accordingly, as a public benefit, the receipt of in-state tuition is restricted to those individuals who can prove lawful presence.
The PRWORA applies to public benefits "for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the State or local government or by appropriated funds of a State or local government."
H.B. 1023 requires each agency or political subdivision of the State of Colorado to verify the lawful presence in the United States of each natural person eighteen years of age or older who applies for a state or local public benefit or for a federal public benefit. Section
In summary, the student is the legal recipient of the public benefit. He or she must comply with state and federal laws regarding establishment of lawful presence in the United States. The status of the student's parents does not affect the student's eligibility for a public benefit. *Page 5
There is no prohibition in the tuition classification statute preventing an undocumented alien from establishing domicile. The Colorado Court of Appeals considered this issue in a slightly different context in Seren v. Douglas,
The Court ordered the university to classify the student as in-state. While not expressly held in the decision, it is apparent from this result that the Court of Appeals did not believe that the student's undocumented status prevented him from receiving in-state tuition classification. Judge Pierce, specially concurring, recognized the distinction between the student's immigration status under federal law and his ability to form the requisite intent to establish domicile:
It is my view that, even though [the student] might not have been permitted to remain in the United States indefinitely under an expired student visa, the federal statutes cited above control only the Terms of his residency in the United States, not his Intent to reside permanently in Colorado. Where, as here, nonstudent residency for one year has been shown, the requisite intent for domicile may be established under the controlling Colorado law.
Id. at 604. *Page 6
Since undocumented aliens are capable under Colorado law of forming the requisite intent to establish domicile, a factual determination of whether domicile has been established in a particular situation becomes necessary. Colorado statutes outline various factors that are to be considered evidence in making this determination. Payment of Colorado income tax, for example, is "highly persuasive evidence" that an individual is domiciled in Colorado, while nonpayment of Colorado income tax is "highly persuasive evidence" of a non-Colorado domicile. Section
Issued this 14th day of August, 2007.
_________________________ JOHN W. SUTHERS
Colorado Attorney General