[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)]