[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR316.5]
[Page 716-718]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
PART 316_GENERAL REQUIREMENTS FOR NATURALIZATION--Table of Contents
Sec. 316.5 Residence in the United States.
(a) General.
Unless otherwise specified, for purposes
of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6),
an alien's residence
is the same as that alien's domicile, or principal actual dwelling
place, without regard to the alien's intent, and the duration of
an alien's residence in a particular location is measured from the
moment the alien first establishes residence in that location.
A difference between the concepts
of residence and domicile has long been recognized. See, e. g.,
Mitchell v. United States, 21 Wall. 350 (1875); Penfield v. Chesapeake,
O. & S. R. Co.,
134 U.S. 351 (1890); Texas v. Florida,
306 U.S. 398 (1939). A person is generally a resident of any
State with which he has a well-settled connection. "[M]ere lodging
or boarding or temporary occupation" is not enough to establish
a residence. Dwyer v. Matson, 163 F.2d 299, 303 (CA10 1947). See
generally Reese & Green, That Elusive Word, "Residence," 6 Vand.
L. Rev. 561, 563 (1953). Under the law of Texas, for example, "[r]esidence
may be temporary or permanent in nature. However, residence generally
requires some condition greater than mere lodging. The term implies
a place of abode, albeit temporary, rather than a mere transient
lodging." Whitney v. State, 472 S. W. 2d 524, 525 (Tex. Crim. App.
1971) (citation omitted). See, e. g., Brown v. Boulden, 18 Tex.
431, 432 (1857); Travelers Indemnity Co. v. Mattox, 345 S. W. 2d
290, 292 (Tex. Civ. App. 1961); Prince v. Inman, 280 S. W. 2d 779
(Tex. Civ. App. 1955). "Intent to remain indefinitely" in the State
need not be shown in order to be considered a resident of a
[461 U.S. 321, 339] State.
5 As the Texas Supreme Court stated in Snyder v. Pitts, 150
Tex. 407, 413, 241 S. W. 2d 136, 139 (1951), "[f]rom the fact that
there can be but one domicile and several residences, we arrive
at the conclusion that the element of `intent to make it a permanent
home' is not necessary to the establishment of a second residence
away from the domicile." [461 U.S. 321, 340]
On the other hand, an individual
has only one domicile, which is generally the State with which he
is currently most closely connected, but which may be a State with
which he was closely connected in the past. See generally Williams
v. North Carolina,
325 U.S. 226, 229 (1945); District of Columbia v. Murphy,
314 U.S. 441 (1941); Williamson v. Osenton,
232 U.S. 619 (1914). Traditionally, an individual has been said
to acquire a new domicile when he resides in a State with "the absence
of any intention to live elsewhere," id., at 624, or with "the absence
of any present intention of not residing permanently or indefinitely
in' the new abode." Ibid., citing A. Dicey, The Conflict of Laws
111 (2d ed. 1908). The concept of domicile has typically been reserved
for purposes that clearly require general recognition of a single
State with which the individual, actually or presumptively, is most
closely connected.
6
The majority errs in assuming that,
as a general matter, States are free to close their schools to all
but domiciliaries of the State. To begin with, it is clear that
residence, not domicile, is the traditional standard of eligibility
for lower school education,
7 just as residence often has been used to determine
[461 U.S. 321, 341] whether an individual is subject
to state income tax, whether his property in the State is exempt
from attachment, and whether he is subject to jury duty.
8 Moreover, this Court's prior decisions which speak of the
constitutionality of a bona fide residence standard provide no support
for the majority's assumption. Although this Court has referred
to a domicile requirement with approval in the context of higher
education, it is incumbent upon the State of Texas to demonstrate
that the classification transplanted from another statutory scheme
is justified by "`the purposes for which the state desires to use
it.'" Plyler v. Doe,
457 U.S. 202, 226 (1982), quoting Oyama v. California,
332 U.S. 633, 664 -665 (1948) (Murphy, J., concurring).
[Martinez v. Bynum, 461 U.S. 321 (1983)]