Illingworth v. State Board of Control

Opinion

—California’s victims of violent crime act (Act) (Gov. Code, §§ 13959-13969.1)^[1] provides a scheme of monetary assistance to victims of certain crimes committed either in the state or while the victim is temporarily outside the state but only where the victim is a California “resident” at the time the crime is committed (§ 13960, subd. (a)).^[2] This appeal from a judgment of the superior court denying Christopher Illingworth administrative mandate relief (Code Civ. Proc., § 1094.5) against a final administrative decision of the State Board of Control (Board), presents a single issue: May the Board, despite a sufficient factual showing necessary to establish residence at the time of the crime, deny assistance to an applicant solely because he or she was at that time living in this country under a temporary, nonimmigrant visa?

Appellant Illingworth, a citizen of Great Britain, arrived in New York on March 12, 1977, and 10 days later began residence in this state at the apartment of Alice Nusbaum in San Francisco. Appellant had met Ms. Nus-baum some two years earlier, and they had subsequently corresponded and visited, discussing the possibility of his moving permanently to San Francisco and of their being married. Because Ms. Nusbaum lived in San Francisco, appellant decided to change his residence to that city and had expressed that resolve to his family and friends in Great Britain before leaving.

Although he planned to establish permanent residence in San Francisco, appellant did not apply for a resident visa. Having learned through the United States Embassy in London that such application would almost certainly be denied without a sponsor, and since he had no relatives living in this country or olfer of employment here, he decided instead to enter upon a nonimmigrant visitor visa.^[3] Illingworth also intended that upon his entry into the United States he would find employment and then apply for adjustment of his status to that of a permanent resident.^[4]

Appellant accordingly applied for and entered under a six-month visitor visa and sought employment soon after arriving in San Francisco on March 22. Hindered at first by lack of documentation authorizing employment, he worked at two temporary jobs for a total of five weeks and was paid in cash. Then, using the name Alan Nusbaum, he secured a job with an Oakland marketing research firm, where he worked for about two months on a payroll basis with deductions for state disability and social security. During this time, he also discussed further with Ms. Nusbaum his plans to stay, obtained library privileges, and requested and received the forms needed to apply for adjustment of status.

Appellant was hospitalized for nearly two months and afterward required continuing medical and other health care. He had not previously intended to return to Great Britain but decided to do so in order to avail himself of needed low cost health and medical services.

On May 1, 1978, appellant applied for assistance under the Act and, by a letter dated May 6, 1981, was informed by the Board that his application had been denied. He thereafter requested, by way of application for reconsideration (§ 13969.1, subd. (b)), findings of fact and was informed, in a Board letter of August 19, that his application had been denied based on “residency.”

A petition for writ of mandate was filed in superior court on November 30,^[6] in which appellant argued that the Board’s denial on grounds of residency was not supported by the evidence and was therefore an abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (c).) An alternative writ issued, and a show-cause hearing was held on February 1, 1982. Peremptory writ was denied and the alternative writ discharged by a judgment entered on May 27. Timely notice of appeal was filed on June 7.

Appeal

The declared legislative purpose of the Act is to assist crime victims who are California “residents,”^[7] yet the Act itself does not define who is a

Pursuant to that authority, the Board has promulgated this regulation: “Resident of California . . . means ... an alien residing in California who is in possession of a document issued by the United States Immigration and Naturalization Service [hereafter INS] which authorizes such person to reside in this state.” (Cal. Admin. Code, tit. 2, § 649.12, bracketed material added.) The Board accepts the construction of our state courts of “residence” (§§ 243-244) to mean “domicile” (see, e.g., Smith v. Smith (1955) 45 Cal.2d 235 , 239 [ 288 P.2d 497 ]; Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107 , 1113-1114 [ 203 Cal.Rptr. 388 ]). We assume in the following discussion what both parties in this case accept without question, that residence under the Act requires the same union of act and intent traditionally required to create a domicile of choice.^[8]

The language cited above from the Board’s regulation appears to establish appellant’s residency under the Act, for he is, at least in a literal sense, “an alien residing in California who is in possession of a document issued by the [INS] which authorizes [him] to reside in this state.” (Italics added, Cal. Admin. Code, tit. 2, § 649.12.) However, in keeping with the parties’ acceptance of the word “residence” as meaning “domicile,” we interpret the words “residing” and “reside” in the same sense. This is unquestionably the Board’s interpretation of its own regulation and hence entitled to judicial deference (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303 , 310 [ 118 Cal.Rptr. 473 , 530 P.2d 161 ]).

The Board, therefore, appears to have acted in accord with its own regulation in this case, and, while we are not asked to pass upon the validity of that regulation as an exercise of administrative discretion (see fn. 10, post; see also Ontario Community Foundation, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811 , 816-817 [ 201 Cal.Rptr. 165 , 678 P.2d 378 ]),

The Board advances a single theory in support of both its decision and the trial court’s judgment. While conceding that appellant factually demonstrated the necessary union of act and intent ordinarily sufficient to establish residence or domicile, the Board nevertheless contends that appellant, as an alien who at the time in question was lawfully in this country on a visitor’s visa which in effect conditioned entry on an expressed intent not to abandon his foreign residence or domicile, lacked the legal capacity to establish a California domicile.^[9] Anselmo v. Glendale Unified School Dist. (1981) 124 Cal.App.3d 520 [ 177 Cal.Rptr. 420 ], is cited as authority for that position.

Appellant first contends that his visa status and the legality or illegality of his residence as tested by federal immigration law are not determinative factors, and that the court’s judgment is therefore contrary to the Act as interpreted in Cabral v. State Bd. of Control (1980) 112 Cal.App.3d 1012 [ 169 Cal.Rptr. 604 ], Second, relying on Plyler v. Doe (1982) 457 U.S. 202 [ 72 L.Ed.2d 786 , 102 S.Ct. 2382 ], and Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ], he contends that the Board’s classification of temporary visa holders as ineligible for assistance is an unjustified alienage-based discrimination which violates federal and state equal protection guarantees.^[10]

We begin with Cabral v. State Bd. of Control, supra, the only published decision to have addressed the effect of alien status on the Act’s residency requirement. The two appellants in Cabral were undocumented aliens who had entered the United States illegally and had been living in the Los Angeles area for a year or more when each suffered severe head injuries in unrelated assaults. Neither had at the time been subject to a deportation order. They each later filed for assistance under the Act but, as in our case, had their applications denied by the Board on grounds that they had failed to establish residency. In consolidated appeals from denials of administra

The Court of Appeal in Cabral, less one dissenter, concluded that the regulation’s requirement of “lawful” residence exceeded the Board’s authority under the Act, declared the regulation invalid on that ground and thus found it unnecessary to reach the equal protection arguments. ( 112 Cal.App.3d 1012 , 1014, 1017.) The court assumed, as we do, that the Government Code section 244 definition of domicile (see fn. 8, ante) and domiciliary intent as formulated in the Restatement Second of Conflict of Laws (§ 18) were necessary for establishing residence under the Act. However, the court in Cabral concluded that neither the code nor the Restatement imposed a requirement of legal residence. The court further noted that the Restatement concept of legal capacity (Rest.2d Conf. of Laws, § 15) was dependent on the legal capacity to contract rather than on any incapacity flowing from federal law. (Id., at pp. 1016-1017.)

Cabral holds, at the very least, that an alien is not precluded from establishing residence under the Act merely because of his or her undocumented status. Read more broadly, it suggests that failure to comply with federal immigration law is not a bar to residence, and hence eligibility. Nevertheless, the case at bar presents a somewhat different question, for although appellant may have been violating federal law by holding employment without INS authorization, such a violation was not the ostensible basis for his ineligibility. Rather, the Board argues that it premised ineligibility on his implied promise, as a nonimmigrant visa holder, not to seek a California domicile during the six-month term of his visa. (See discussion in Elkins v. Moreno (1978) 435 U.S. 647 , 665 [ 55 L.Ed.2d 614 , 628, 98 S.Ct. 1338 ].)^[11]

First, like the Cabral court, we find no sign of an intent to distinguish between lawfully and unlawfully resident aliens, much less an intent to place legally admitted nonimmigrant visa holders at a disadvantage over undocumented aliens who might never in the first place have attempted compliance with immigration laws.

The Board insists that the holding in Anselmo v. Glendale Unified School Dist., supra, 124 Cal.App.3d 520 , announces a blanket policy of denying state residence status to aliens who hold nonimmigrant visas. It clearly does not. Respondents in Anselmo were a husband and wife who had entered this country from Italy pursuant to nonimmigrant tourist visas, purchased a home in Glendale, and then sought to enroll their child in public school but were denied their application by the school district based on nonresidency. (124 Cal.App.3d at p. 522.) Reversing the grant of a preliminary injunction, the appellate court concluded that the child had been properly denied admission based on a statutory definition of “residency” that specifically incorporated a reference to federal law. Because the parents’ visa status was, as here, expressly conditioned on maintenance of a foreign domicile, the child’s derivative residency had not been established.^[12] (Id., at pp. 522-523.)

The holding in Anselmo clearly depended on the statute’s reference to federal law and thus must be distinguished from this case, where the statute is silent as to the definition of residence. Moreover, the Act’s silence is further reason to believe that no limitations based on visa status were intended or authorized since such limitations, as Anselmo illustrates, would likely be spelled out explicitly in the statute if intended.^[13] (See fn. 12, ante.)

A second reason for our conclusion is that, in those instances of California law discussed above where adherence to federal law is required, the statutes make no apparent distinction between undocumented aliens generally and documented aliens who are subject to a federal residency disability. Thus, given the Cabral rule as to undocumented aliens,^[15] it is unlikely that a different legislative intent applies to holders of nonimmigrant visas.

We therefore hold that an alien who otherwise satisfies the test of residency under the Act does not lack the legal capacity to establish residency by reason of his or her status as a nonimmigrant visa holder ( 8 U.S.C. § 1101 (a)(15)(B)). Courts of other jurisdictions have drawn similar conclusions (see, e.g., Nicolas v. Nicolas (Fla.App. 1984) 444 So.2d 1118 , 1120-1121; Bustamante v. Bustamante (Utah 1982) 645 P.2d 40 , 42; Pirouzkar and Pirouzkar, supra, 626 P.2d 380 , 383-384; Rzeszotarski v. Rzeszotarski (D.C.App. 1972) 296 A.2d 431 , 434-436; see also spec. conc. opn. of Pierce, J., in Seren v. Douglas, supra, 489 P.2d 601 , 604). However, while not posing an absolute bar to establishing residence under the Act, an alien’s nonpermanent immigration status certainly remains a factor bearing on domiciliary intent (Nicolas v. Nicolas, supra, 444 So.2d 1118 , 1120), which can be determined in part from one’s acts. (Fenton v. Board of Directors, supra, 156 Cal.App.3d 1107 , 1117.)