2008.03.31
In-state tuition for the resident children of illegal residents
Here's the situation. Anton was born in Virginia. He was raised in Virginia. He went to school in Virginia. He's a U.S. by birth and a resident of the commonwealth. Now he wants to go to one of the state's fine public universities. Unfortunately, his Russian parents overstayed their visas and are now in the commonwealth and the country illegally.
Because Anton still lives with his parents, he isn't entitled to in-state tuition without jumping through hoops and proving that he's a legal resident. That, at least, is the opinion of Attorney General Bob McDonnell's office. It all comes down to the laws of domicile.
The ACLU of Virginia says it will file suit on behalf of any students denied in-state tuition under such circumstances.
In this case, both sides have good arguments. The AG's office reads the law correctly. And the ACLU is right to be outraged that a citizen of Virginia might not get the tuition rates to which he is entitled. The problem is a bum domicile and residency law that attaches students' standing too closely to parents. It causes problems in other areas, including student voter registration.
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Rather than threaten to sue the State (or University) over the law, would it not be more productive for the ACLU to help this person meet the law?
Is he properly domiciled in Virginia? Technically, his parents as of this moment should probably be domiciled elsewhere (as their visa expired). Could Anton prove he would still be a Virginia resident even though his parents had moved?
Comment by Ed S. — March 31, 2008 @ 12:21 pm
Depends on how you gauge productivity. The ACLU could help people on an individual basis, but that would leave a bad law on the books. Better to fix the law so that Anton and future Antons are not affected in the same way. Anton is, btw, hypothetical.
Yes, as noted, Anton could prove his domicile, but that inappropriately shifts the burden onto him because of something his parents did.
Comment by c. trejbal — March 31, 2008 @ 1:04 pm
It sounds to me like the parents need to be fixed, not the kid. If he is 18, he can get in-state residency for himself.
if a parent from NJ wanted to pay in-state tuition in Virginia, it would seem logical they could come here on vacation and claim they are citizens of the Commonwealth. The fact it is against the law seems to be meaningless. The ends justifies the means.
Comment by Henry — March 31, 2008 @ 1:49 pm
Christian, I understand what you are trying to say but I believe your wording creatively deflects the facts.
The fact that he is a US Citizen seems to have little to do with the situation. Take a hypothetical John Doe. John's family moves to Maryland before he graduates high school (he goes with them). He is a US citizen, but no longer domiciled in Virginia. He is no longer entitled to in-state tuition (caveats excluded, such as the vet school exemption).
Or, I purchase a TV from Jack. Little did I know, Jack stole the TV. I don't think the law says I can keep it.
There is a good question hiding here, though, and may be the one that supports your opinion. Are there any reasons *other* than paying Virginia taxes that affects whether one is eligible for in-state tuition? In other words, do Virginia residents enjoy the privilege of in-state tuition solely because they (or their parents) pay taxes to the state? I don't think that is the sole factor, but does consider further research.
Comment by Ed S. — March 31, 2008 @ 2:01 pm
Ed, I'm sorry if I'm being less than clear. I'm not trying to deflect anything. Let me try again.
Anton was born and raised in Virginia. For this argument, heck, we can even say at no time in his life did he ever set foot out of the commonwealth. Also, let's assume his parents were here legally when he was born. I'm not saying he's just a U.S. citizen. He's also by any stretch of the imagination a citizen of Virginia and should receive in-state tuition regardless of his parents' residency status.
Your example differs in that you're talking about someone who moves out of the commonwealth. He would no longer be eligible for in-state tuition.
I don't understand at all what your TV example shows. Could you explain a bit more how property theft bears on this situation?
There's a link to the domicile law in the post above if you want to look at the details.
Comment by c. trejbal — March 31, 2008 @ 2:21 pm
I see what he is saying. Your domicile is determined by your parents. If your parents are citizens of Russia, you cannot claim in-state tuition because you technically live in Russia. If you could make that claim, a family from NJ could come vacation in Virginia while they fill out the school application. They could claim to be residents because they were here temporarily.
The parents cannot be Virginians because they are not Americans.
The child could claim that HE determines the domicile because he is the only citizen in the house and he is an adult. What about that idea?
Comment by Henry — March 31, 2008 @ 3:48 pm
Christian, I do understand your POV, and perhaps it is I not being clear on how my example relates.
I think the question, the one that was highlighted by the AG opinion, is *where would Anton be were his parents status resolved*? Or more correctly, can Anton prove he would be a legal resident of Virginia. That's basically the crux. In-state tuition is reserved for legal residents. Can Anton show that his residency can be detached from that of his parents. Would he be here if his parents left when their legal status expired?
My poor example (with the TV) attempted to show that I'm not entitled to the TV because the parent ownership (Jack) was not legal. He cannot properly sell to me because, legally, he does not own it. With Anton, just because he "is here" does not mean he is a resident unless he can prove he is separate from his parents.
Comment by Ed S. — March 31, 2008 @ 4:00 pm
Just wondering...Let's reverse the situation. Let's put illegal alien parents (US citizens) with a "born in Russia" child IN Russia. Would the government of Russia subsidize his education? Carry it out a bit further. If Ma and Pa were unemployed would there be food stamps, medical care, housing assistance? If they were accused of a crime, would here be a public defender appointed. If Ma or Pa were jailed and wanted a bible, would one be provided for them? Is there an advocates group who would stand in front of the prison gates and cry that Ma and Pa are not being fairly treated, or humanely housed and fed? Would the press and TV stations cover their plight and offer harsh criticisms of the government's handling of their case? No, not exactly what you asked but still...
Comment by Al — March 31, 2008 @ 5:09 pm
Ed, the fact remains that Anton does have citizenship, regardless of whether his parents do. Some might wish that birth in the United States did not automatically grant citizenship, but until the constitution is amended, it does.
The issue, as I see it, is that there is a Virginian who is forced to go through an extra stage of proving residency because of his parents that other Virginians do not. That is unfair. If the state wants to deny rights to a citizen, the burden should be on the state to prove why it is doing so.
I happen to think the AG office's opinion was correct in this. His staffer read the law properly. As originally noted, it's just a bad law that sticks a Virginian in this situation. The ACLU should not blame the AG.
Interesting side note. I spoke to a lawyer friend. This isn't his specialty, but he was unaware of any case that ever went high in the courts that dealt with the question of what happens if someone is a U.S. citizen, but no state will accept him as one. My lawyer friend thinks that citizenship in one of the 50 states is a right of citizens, but he can't say that that's established law.
Comment by c. trejbal — March 31, 2008 @ 5:50 pm
If the son/daughter is the DEPENDENT of legal VIRGINIA residents, the STUDENT is entitled to in state tuition rates. If the STUDENT is HEAD of HOUSEHOLD and a VA. resident,he/she is entitled to in state tuition rates. If the student is a DEPENDENT of parent(s) who have not established legal citizenship/residence in Va., NO SOUP FOR YOU!!
Comment by BUD — April 1, 2008 @ 6:49 am
Christian, please let me know if I'm missing something from the AG opinion or the law that I read through at the links above...
The citizenship was never in question. It is whether or not our comrade is actually a resident. Yes, he is a citizen, but is he a resident for "in-state" tuition. The way I read the AG opinion, he would not be a resident unless he can prove he would still be here if, for example, his parents left when their visa expired.
That's where a small part of my original post came in. Why do Virginians get "in-state" tuition, a lower tuition than out-of-state? Is it only because we pay state taxes that subsidize the education? If so, then Anton's case is a bit better, because his parents, even though illegally resident, likely pay taxes. However, now that their status is known, his in-state status is in jeopardy if they now must leave.
Your last comment is interesting, and a bit funny because I had a paragraph on it earlier and deleted it. Are US citizens also "citizens" (speaking factually, technically) of a state, or simply residents? Without ever researching, I always thought we were just residents, and established residency (through a permanent "home" in the state) brought the rewards of state bennies (in-state tuition, paying state taxes, etc.).
Comment by Ed S. — April 1, 2008 @ 8:20 am
Christian: I know I
Comment by Michelle — April 1, 2008 @ 8:23 am
" If the state wants to deny rights to a citizen"
What rights are being denied?
Comment by Henry — April 1, 2008 @ 8:51 am
The issue over tuition has to do with taxes paid, not illegal residents.
Virginia residents pay property taxes which go to public universities (among other things). Therefore, Virginia residents get a break on tuition. The law is in place for monetary purposes. Illegal residents don
Comment by terry — April 1, 2008 @ 9:02 am
Terry,
First of all, the student in the example is a legal citizen; it's his parents who overstayed their visa.
Second, how do illegals avoid paying taxes (never mind that property taxes are local, not state)? They pay sales tax. If they own a home, they pay property taxes. If they rent, they pay property taxes as a portion of the rent. Unless they are paid cash under the table, they pay income tax (not to mention Social Security, even though they won't be able to collect).
Comment by Dan Radmacher — April 1, 2008 @ 9:09 am
Ed, I'm not clear what in the AG Department's memo led you to conclude this: "The way I read the AG opinion, he would not be a resident unless he can prove he would still be here if, for example, his parents left when their visa expired."
I don't see anything dealing with that particular hypothetical. Could you point me to it?
Comment by c. trejbal — April 1, 2008 @ 9:21 am
Dan, I don
Comment by terry — April 1, 2008 @ 9:40 am
Again, Terry: Illegal residents almost certainly pay property tax one way or another. If they're renting, a portion of their rent pays the landlord's property tax. If they own, they have to pay property tax.
Most taxes cannot be avoided, regardless of your residency status.
And, again, property taxes, which are local, do not support state colleges.
Comment by Dan Radmacher — April 1, 2008 @ 10:02 am
Again, Dan: Illegal residents almost certainly do not pay property taxes and they don
Comment by terry — April 1, 2008 @ 10:33 am
Theoretically, wouldn't people staying in motel and vacation homes pay taxes as well? Why don't they get a tuition break?
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Comment by Henry — April 1, 2008 @ 10:39 am
Henry, sorry for any trouble you are experiencing. The Internet doesn't work well in IEx.
Try Firefox.
(We'll look into problems with IE8.)
Comment by c. trejbal — April 1, 2008 @ 10:47 am
If you are in a country illegally, why send up a flare and announce to the government that you are here? Not all, but most people who are here illegally make every attempt possible to stay under the radar so they won't get picked up by INS. That means getting paid under the table. It also means not having a bank account, credit cards, loans, or a valid drivers license
Comment by Michelle — April 1, 2008 @ 12:37 pm
I'm wondering how illegals bujy real estate without having SS numbers and filing tax returns. And no, renting is not the same as paying property taxes.
Comment by Josh — April 1, 2008 @ 12:38 pm
" The Internet doesn't work well in IEx"
It's people like you what cause unrest
"I'm wondering how illegals bujy real estate without having SS numbers"
Perhaps they were legal but their visa ran out. Personally, I think we are making much ado about nothing. How many Va college students have parents that are illegal aliens?
Comment by Henry — April 1, 2008 @ 1:46 pm
I
Comment by Michelle — April 1, 2008 @ 4:32 pm
Christian, I tried to find a specific part of the opinion that deals with my issue, but I'm finding that the entire opinion deals with it. Let me take some excerpts:
1. "a person. who is not lawfuUy present in the United States - the
parents, in this case - may not be domiciled in Virginia"
The parents are not residents.
2. "Ordinarily, person.s who are "dependent students," as that term is defined in
Section 23-7.4, may be classified as in-state only if tbe parentsI are Virginia
domiciliaries."
*Normally*, a dependent child is entitled "in-state" only if the parents are residents.
3. "The domicile of a dependent student shall be rebuttably presumed to be the domicile of
the parent aT legal guardian"
Re-emphasizes #2. Note, "rebuttably" meaning the student can separate his residency status from his parents. In our case, Anton would need to rebut the normal situation.
4. "A dependent student 18 years of age or older may also rebut the presumption that the
student has the dOUl.icile ofthe parent claiming the student as a dependent for income tax
purposes by showing that Virginia domicile was established independent of the parents.
The burden is on the student to show by clear and convincing evidence that he has
established a Virginia domicile independent of the out-af-state parents despite the fact
that the parents are claiming the student for .income tax purposes or providing substanti.al
financial support."
And here is how he does it.
According to this, whether his parents are residents of another state, or simply not residents of Virginia, he needs to show he would be here separate from them.
If things had happened correctly, one of three things would occur:
A) His parents renew visa correctly. Their legal status make them residents. Anton is in-state.
B) His parents do not renew visa and return to home country. He returns with them. He flies back to pay out-of-state.
C) His parents do not renew visa. As a citizen, he elects to stay (with aunt Cathy, rents an apt, whatever) in Virginia. He is a resident and gets in-state tuition.
Comment by Ed S. — April 1, 2008 @ 8:49 pm
"Again, Terry: Illegal residents almost certainly pay property tax one way or another. If they're renting, a portion of their rent pays the landlord's property tax." - Dan Radmacher
Now that is certainly interesting logic. The potential is almost endless. Following that logic to one possible conclusion, a business owner could claim they have already paid income taxes because they pay their employees salaries, and those employees pay income taxes.
In reality, this is much ado about a non-issue. The question the RT avoids is not about immigration. Instead it is one of dependency. If Anton is not dependent on his parents for income, he, as a citizen, will receive in-state tuition rates. If he is a dependent, his rate is based not on his citizenship status, but his parents, because they are the ones paying the bills. It defies logic to argue that his parents, admittedly not legal Virginia residents, should be entitled to pay the tuition rates reserved for Virginia residents.
Clearly, if Anton is independent and paying his own tuition, he is entitled to the in-state rate, but I have seen no argument presented to convince me that, if he is a dependent and his parents are paying his way, that they should be allowed to profit from breaking the law.
Comment by C Ramsey — April 1, 2008 @ 9:04 pm
Ramsey, good point. I hadn't thought about the dependency issue - just assumed Anton would be footing the bill himself. But, your right. Anton's parents should not monetarily benefit from breaking the law. Ed S.'s interpretation of the law makes sense. Yep. Much ado about nothing. Doesn't the Commonwealth have matters more pressing than hypothetical Antons?
Comment by Michelle — April 2, 2008 @ 9:45 am