Garcia v. Angulo

644 A.2d 498, 335 Md. 475, 1994 Md. LEXIS 96

• Court: Court of Appeals of Maryland
• Decided: July 15, 1994
• Docket: 89, September Term, 1993
• Status: Published

Opinions

RODOWSKY, Judge.

Involved here is the interrelation of the Maryland common law of domicile with an uncodified federal immigration statute and with presidential directives that have conferred protection from deportation on nationals of El Salvador who had illegally entered the United States. The principal question is whether federal law prevents an alien’s intent to be domiciled in Maryland from having legal effect. This issue arises on an appeal from a circuit court’s refusal to direct the Maryland Automobile Insurance Fund (MAIF) to pay a judgment entered against an uninsured motorist.

The appellant, Dilber E. Garcia (Garcia), was injured on December 13, 1991 in Langley Park, Maryland while riding as a passenger in a pickup truck owned by Victorino A. Angulo (Victorino) and operated by his son, Saul Angulo (Saul). The truck, temporarily registered in Pennsylvania, seems to have been uninsured. Saul failed to stop at a stop sign, and the truck collided with a bus. Garcia sued Victorino, and by amendment joined Saul, in the Circuit Court for Prince George’s County. Saul was served, failed to plead, and an order of default was entered against him. Victorino appeared, but ultimately was voluntarily dismissed. By an agreement between Garcia and MAIF, judgment by default in the amount of $12,000 was entered against Saul. Garcia, pursuant to Maryland Rule BW 6.a, then petitioned the court in the same action for an order directing MAIF to pay the judgment.

MAIF opposed on the ground that Garcia was not a “qualified person” under Maryland Code (1957, 1994 RepLVol.), Art. 48A, § 243H(a)(l). It provides, under the circumstances therein set forth, for claims against, and payment by, MAIF for “personal injury to a qualified person.” Article 48A, § 243L(e) defines “qualified person” to mean, in relevant part,

“a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory, or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that provided for by this subtitle....”

The term “qualified person” in Art. 48A, § 243L(e) is derived from Md.Code (1957), Art. &&k, § 150(g), defining “qualified person” for purposes of eligibility to claim against the former Unsatisfied Claim and Judgment Fund. Cases decided under the predecessor statute have established that “resident of this State” in the definition of “qualified person” means a domiciliary of Maryland. See Hawks v. Gottschall, 241 Md. 147, 215 A.2d 745 (1966); Walsh v. Crouse, 232 Md. 386, 194 A.2d 107 (1963); Maddy v. Jones, 230 Md. 172, 186 A.2d 482 (1962); Holly v. Maryland Auto. Ins. Fund, 29 , 349 A.2d 670 (1975); Liberty Mut. Ins. Co. v. Craddock, 26 Md.App. 296, 338 A.2d 363 (1975). No party to the present action argues that these holdings have been altered by the transfer of the uninsured motorist program to MAIF. Indeed, these holdings underlie the arguments of the parties here and in the circuit court.

The circuit court conducted a hearing on Garcia’s petition against MAIF, at which Garcia testified, exhibits were introduced, and the following facts were developed. At age nineteen, in 1990, Garcia left his native El Salvador to travel to the United States. He explained:

“I left my country to look for a better life, and I was very frightened of the war because at that time they were killing a lot of young men. And my mother was scared that they were going to kill me, so I decided to leave my country and I came.”

He also stated that he wanted “[t]o be able to study, work, and do something better.”¹

Garcia entered Mexico illegally and made his way on foot and by bus to the Rio Grande. He crossed into the United States in the vicinity of Brownsville, Texas, without visa, and without presenting himself to the immigration authorities. Garcia traveled to Maryland where he has lived continuously since March 1990, principally in the Takoma Park-Silver Spring area.

Prior to the accident of December 13,1991, Garcia obtained a social security number, a Maryland Motor Vehicle Administration identification card, and a replacement passport from the Republic of El Salvador.² He worked as a carpenter and as a painter. He did not file 1990 income tax returns by the April 15,1991 filing deadline, and there is no evidence that the time for filing was officially extended. After the accident, on or about January 27, 1992, Garcia filed federal and Maryland 1990 income tax returns reporting taxable income of $1,336 from his sole proprietorship as a contractor. Thus, there was no withholding of taxes by the person for whom Garcia rendered services. The explanation for the delay in filing, presented by Garcia to the circuit court, was that he had not been furnished with the tax form reflecting 1990 payments to him until January 1992.

Garcia also obtained from the Immigration and Naturalization Service (INS) on October 28, 1991 what he referred to as a “work permit.” A copy of this card was introduced into evidence. Its legal significance will be described, infra. Garcia has no intention of returning to El Salvador. Although he understands that he is in the United States only until temporary protection expires, he thinks that INS “will turn these permissions into a green card,” i.e., permanent resident alien status. See W. Wilburn, Strangers in Paradise: An Overview of Maryland State Law Dealing With Noncitizens, 21 U.Balt.L.Rev. 87, 90 (1991).

The circuit court concluded that Garcia was not a qualified person because he was not a domiciliary of Maryland on December 13, 1991. Garcia appealed to the Court of Special Appeals, but this Court issued the writ of certiorari on its own motion prior to consideration of the matter by the Court of Special Appeals.

In this Court the parties disagree as to the rationale that the circuit court applied in reaching its conclusion.³ MAIF seeks to make the case an entirely factual one, emphasizing that the circuit court could have found a lack of intent to establish a Maryland domicile. Garcia, on the other hand, submits that the issue is one of law. He interprets the record to reflect that the circuit court applied an erroneous legal standard, by limiting the possibility of an alien’s obtaining Maryland domicile only to persons recognized by the INS as permanent resident aliens.

We agree with Garcia that the domicile issue here turns on the status of Salvadorans who have illegally entered the United States. The factual component of the domicile issue focuses on Garcia’s intent as of the date of the accident. See Hawks v. Gottschall, 241 Md. at 158, 215 A.2d at 749 (trial court fact-finding of domicile reversed for insufficient evidence where this Court could “find nothing that [the claimant] had done prior to the 1961 accident which would distinguish him from any other soldier who, during the course of his military career, happens to become stationed in Maryland but who still retained his domicile in another state”). With respect to the legal status component of the domicile issue, however, appellate courts decide cases according to the law in effect at the time of decision, absent some impairment of constitutional rights by a subsequent enactment. See Pickett v. Prince George’s County, 291 Md. 648, 662, 436 A.2d 449, 457 (1981). Here, for reasons which we shall explain, there is no material contradiction of Garcia’s testimony that he intended to make Maryland his home. In addition, this Court can decide the purely legal issue without first determining the rationale applied by the circuit court.

An overview of the various classes of aliens under United States law was furnished in Mathews v. Diaz, 426 U.S. 67, 79-80 n. 13, 96 S.Ct. 1883, 1891 n. 13, 48 L.Ed.2d 478, 489-90 n. 13 (1976), where the Court said:

“The classifications among aliens established by the Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. (1970 ed. and Supp. IV), illustrate the diversity of aliens and their ties to this country. Aliens may be immigrants or nonimmigrants. 8 U.S.C. § 1101(a)(15). Immigrants, in turn, are divided into those who are subject to numerical limitations upon admissions and those who are not. The former are subdivided into preference classifications which include: grown unmarried children of citizens; spouses and grown unmarried children of aliens lawfully admitted for permanent residence; professionals and those with exceptional ability in the sciences or arts; grown married children of citizens; brothers and sisters of citizens; persons who perform specified permanent skilled or unskilled labor for which a labor shortage exists; and certain victims of persecution and catastrophic natural calamities who were granted conditional entry and remained in the United States at least two years. 8 U.S.C. § 1153(a)(l)-(7). Immigrants not subject to certain numerical limitations include: children and spouses of citizens and parents of citizens at least 21 years old; natives of independent countries of the Western Hemisphere; aliens lawfully admitted for permanent residence returning from temporary visits abroad; certain former citizens who may reapply for acquisition of citizenship; certain ministers of religion; and certain employees or former employees of the United States Government abroad. 8 U.S.C. §§ 1101(a)(27), 1151(a), (b). Nonimmigrants include: officials and employees of foreign governments and certain international organizations; aliens visiting temporarily for business or pleasure; aliens in transit through this country; alien crewmen serving on a vessel or aircraft; aliens entering pursuant to a treaty of commerce and navigation to carry on trade, or an enterprise in which they have invested; aliens entering to study in this country; certain aliens coming temporarily to perform services or labor or to serve as trainees; alien representatives of the foreign press or other information media; certain aliens coming temporarily to participate in a program in their field of study or specialization; aliens engaged to be married to citizens; and certain alien employees entering temporarily to continue to render services to the same employers. 8 U.S.C. § 1101(a)(15). In addition to lawfully admitted aliens, there are, of course, aliens who have entered illegally.”

Garcia’s precise status is none of the above. Although he entered the United States illegally, Congress specifically addressed Salvadorans in Garcia’s class.

Relevant to the problem before us are two sections amending the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101 through 1557 (1988 & Supp. V 1993). Both sections were enacted as part of the Immigration Act of 1990, Pub.L. 101-649, 104 Stat. 4978, 5030-38. One section, § 302 of the 1990 Act (hereinafter § 302), is codified at 8 U.S.C. § 1254a. The other section, § 303 of the 1990 Act (hereinafter § 303), is uncodified. Section 303 is set forth in the Historical and Statutory Notes following 8 U.S.C.A. § 1254a (West Supp. 1994).

A synopsis comparing the two sections is set forth below.

“[S]ection 302 [is] entitled Temporary Protected Status. Temporary Protected Status (TPS) codifies a new category of relief from deportation for illegal aliens in the. United States. Under TPS, the Attorney General, given certain circumstances, may grant aliens of specific nationalities a temporary stay from deportation for up to eighteen months. If this designation is made, designated aliens are authorized to work in the United States as long as the temporary stay is in effect. Congress also provided a specific application of this general provision for TPS in section 303 of the 1990 Act. ' Section 303 designates TPS to nationals of El Salvador who were physically present in the United States on September 19, 1990.”

P. Diamond, Temporary Protected Status Under The Immigration Act of 1990, 28 Willamette L.Rev, 857, 857-58 (1992) (footnotes omitted).

Sections 302 and 303 are the product of a compromise in a conference committee on differing versions of S. 358 of the 101st Congress. See 136 Cong.Rec. H. 13235 et seq. (daily ed. Oct. 26, 1990). The Senate Bill was concerned exclusively with Chinese students in the United States. Id. at 13238. The House amendment created the new TPS category and specified that “certain nationals of El Salvador, Lebanon, Liberia, and Kuwait be granted [TPS] for three years.” Id. The conference committee explained that

“[t]he Conference substitute provides for the establishment of the House’s temporary protected status program, but requires the Attorney General to provide such status only to Salvadorans and only for a period of 18 months---The Conferees underscore that the mandatory conferral of such status on Salvadorans for 18 months shall not be interpreted as preventing the Attorney General, in his sole discretion, [from] providing additional periods of protection should circumstances in the future so warrant.”

Id.

Section 303, the direct congressional conferral of the new TPS on certain Salvadorans, took effect November 29, 1990 and provided that it would “remain in effect until the end of the 18-month period beginning January 1, 1991,” that is, until June 30, 1992. § 303(a)(2). Thus, when Garcia was injured in the accident caused by an uninsured motorist, his protected status would have continued for about six and one-half months under the then federal law.

Garcia met the conditions for § 303 TPS. He had “been continuously physically present in the United States since September 19, 1990.” § 303(b)(1)(A). There is no suggestion that he was disqualified under § 303(b)(1)(B), dealing with ineligibility that is largely based on specified criminal conduct. Garcia registered for TPS between January 1 and October 31, 1990, as required by § 303(b)(1)(C). Upon registration Garcia became entitled to the “work permit” issued October 28, 1991 and effective for a period of six months. § 303(c)(3); 8 C.F.R. § 240.45 (1994). INS regulations refer to the card as an “employment authorization document” (EAD). 8 C.F.R. § 274a.l2(a)(12) (1994).

Of particular significance for the issue before us is § 303(d)(1) which provides as follows:

“At the registration occurring under this section closest to the date of termination of the designation of El Salvador under subsection (a) [ie., June 30, 1992], the [INS] shall serve on the alien granted temporary protected status an order to show cause that establishes a date for deportation proceedings which is after the date of such termination of designation. If El Salvador is subsequently designated under [§ 302] the Service shall cancel such orders.”

To date, the Attorney General has not exercised the power under § 302 to designate El Salvador as a nation whose nationals are entitled to TPS. Further, Congress allowed § 303 to expire by its terms on June 30, 1992. Neither action was required, however, effectively to extend TPS for Salvadorans who had entered the United States illegally. This is because of the presidential actions described below.

President George Bush in a May 4, 1992 letter to Salvadoran President Alfredo Christiani “said that the Attorney General will grant Salvadorans ‘deferred enforced departure’ [DED] for one year beyond June 30, 1992 when the TPS program is scheduled to end.” 69 Interpreter Releases 600 (May 18, 1992). A “senior INS official” was reported to have said “that there is no practical difference between DED and TPS for Salvadorans.” Id. at 601. Apparently based on President Bush’s letter, INS by a cable sent on May 15, 1992, instructed its field offices immediately to implement DED. 69 Interpreter Releases 680 (June 1, 1992). INS field offices were to continue to issue orders to show cause, per § 303(d)(1), but to “indicate that the date of hearing is ‘to be set.’ ” Id. By a Federal Register notice issued June 19,1992, the Commissioner, INS, advised that the presidential directive “that the deportation of Salvadoran nationals who were granted TPS not be enforced before June 30, 1993,” had been issued “because El Salvador cannot currently accommodate the repatriation of approximately 150,000 people granted TPS.” 57 Fed.Reg. 28701 (1992).

As the June 30, 1993 expiration of DED approached, the Acting Commissioner, INS, published a notice of extension of DED for nationals of El Salvador, dated June 2, 1993. 58 Fed.Reg. 32157 (1993). It noted that approximately 83,000 persons had applied for DED and, “[bjecause immediate repatriation of more than 83,000 persons would have a serious negative impact on the evolving situation in El Salvador, President Clinton has directed that DED be extended for an additional eighteen months, until December 31, 1994.” Id. The notice also advised that the INS was “granting an automatic extension until October 31, 1993, of the validity” of any previously issued EAD. Id.

Garcia argues that his situation is analogous to that of the nonimmigrant aliens who successfully challenged increased tuition charged to them by the University of Maryland as compared to the tuition charged to United States citizens who were domiciliaries of Maryland.⁴ The plaintiffs held “G-4” visas as members of the immediate families of officers or employees of international treaty organizations whom 8 U.S.C. § 1101(a)(15)(G)(iv) authorizes to reside in the United States. In Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978), the Court addressed whether, under the Immigration and Nationality Act of 1952, G-4 aliens had the legal capacity, as a matter of federal law, to change their domicile from a foreign nation to the United States, and specifically, to Maryland.

The Court noted that “[ajlthough nonimmigrant aliens can generally be viewed as temporary visitors to the United States, the nonimmigrant classification is by no means homogeneous with respect to the terms on which a nonimmigrant enters the United States.” 435 U.S. at 665, 98 S.Ct. at 1349. For example, alien visitors who declare a business or pleasure purpose for entering this country have no intent, by definition, to abandon their existing domiciles and, absent additional factors, would be subject to deportation if their true intent were to establish domicile here. There were, however, no comparable statutory restrictions on the intent of aliens who qualified for G-4. status. The Court said that “Congress’ silence is therefore pregnant, and we read it to mean that Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile.” Id. at 666, 98 S.Ct. at 1349.

The Court then considered the consequences on domicile if a G-4 alien were to terminate employment with an international treaty organization, thereby causing the entire family to lose the G-4 status. Under those circumstances, prior to 1952, the nonimmigrant alien would have to leave the United States and apply for an immigrant visa at a consulate abroad. Under the 1952 Immigration and Nationality Act, a nonimmigrant alien could utilize a mechanism under 8 U.S.C. § 1255 termed “adjustment of status” to apply for permanent resident status. Id. at 667, 98 S.Ct. at 1350. Citing a decision in which the Board of Immigration Appeals said that adjustment of status would ordinarily be granted, in the exercise of discretion and absent adverse factors, the Court concluded that G-4 aliens could adjust their status “to that of a permanent resident without difficulty.” Id. at 668, 98 S.Ct. at 1350.

The Court, having found no federal obstacle to G-4 aliens becoming domiciliaries of Maryland, then certified to this Court the question of whether G-4 aliens were “ ‘incapable as a matter of state law of becoming domiciliaries of Maryland.’ ” Id. at 669, 98 S.Ct. at 1351.

The certified question was answered in Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979). We reviewed the basic principles for determining domicile. Id. at 438-42, 397 A.2d at . We quoted from Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977), the definition of domicile as

“ ‘the place with which an individual has a settled connection for legal purposes and the place where a person has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.’ ”

Toll, 284 Md. at 438, 397 A.2d at 1015.

The University argued that G-4 visa holders could not become domiciled in Maryland because they paid no income taxes to Maryland, could not vote in Maryland, and were not permitted to remain here indefinitely. Noting that the latter objection was “effectively undercut” by the Supreme Court’s opinion, id. at 442, 397 A.2d at 1017, this Court stated the following principle of Maryland domicile law:

“If under federal law a particular individual must leave this country at a certain date, or cannot remain here indefinitely, then he could not become domiciled in Maryland. Any purported intent to live here indefinitely would be inconsistent with law. It would at most be an unrealistic subjective intent, which is insufficient under Maryland law to establish domicile.”

Id. at 442-43, 397 A.2d at 1017-18. Thus, we held that “if in a particular case [a G-4 visa holder] intends for Maryland to be his fixed place of abode and intends to remain here indefinitely, he will have satisfied the Maryland standard for establishing domicile in this State.” Id. at 443, 397 A.2d at 1018.

Applying the analysis that we employed in Toll to the facts of the instant matter reflects that Garcia’s intent to reside indefinitely in Maryland is not “an unrealistic subjective intent” that is “inconsistent with law.” Id. At the time of the accident Garcia enjoyed TPS, which, although due to expire in June 1992, was effectively extended as DED by President Bush. That extension, although due to expire on June 30, 1993, was further extended by President Clinton. As we write, that extension is not due to expire until December 31, 1994. Although there is a date certain when Garcia’s current DED will expire, there is no certainty as to when, if ever, he will receive a notice of deportation. Therefore, Garcia’s intent to remain in Maryland is not inconsistent with present federal law. Were one to attempt to predict what the status will be as of January 1, 1995 of Salvadorans who have entered this country without inspection, the pattern of the past federal actions might well lead one to conclude that there will be a further postponement, in some fashion, of a vigorous deportation campaign. It is not appropriate, however, for this Court to engage in that speculation. “Matters relating ‘to the conduct of foreign relations ... are so exclusively entrusted to the political branches of [the federal] government as to be largely immune from.judicial inquiry or interference.’” Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3038, 82 L.Ed.2d 171, 186 (1984) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 519, 96 L.Ed. 586, 598 (1952)). We cannot predict the outcome of political judgments that are yet to be made. We can only be guided by federal law as it stands on the date of our decision. Under that law and Maryland domicile law, Garcia’s intent is not an unrealistic subjective intent.

MAIF’s principal factual argument seems to have been inspired by that part of the reasoning of the Supreme Court in Elkins v. Moreno that relied on adjustment of status by G-4 nonimmigrant aliens. Garcia never has applied for adjustment of status. MAIF contends that this inaction evidences a lack of intent to reside indefinitely in Maryland and thereby supports the trial court’s conclusion. The defect in MAIF’s argument is that Garcia’s inaction could not evidence disinterest on Garcia’s part in permanent residence status. The Office of General Counsel, INS, in an opinion of March 4, 1991, concluded that “[a]n alien who entered the United States without inspection is ineligible for adjustment of status.” 68 Interpreter Releases 483, 483 (Apr. 22, 1991). The advisory opinion assumes a Salvadoran who entered the United States illegally, received TPS, and then was approved for an immigrant visa. General Counsel noted that amendments in 1986 to § 245(c) of the INA, 8 U.S.C. 1255(c), were intended “ ‘to make adjustment of status a much less frequently used method of obtaining permanent residence status in the United States.’ S.Rep. No. 99-132, 99th Cong., 1st Sess. 31 (1985).” Id. at 484-85.

The unavailability of adjustment of status does not affect the special provisions for Salvadorans who entered illegally that are presently in effect under presidential directive.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED. COSTS TO BE PAID BY THE APPELLEE.

CHASANOW and BELL, JJ., concur.

1 . Garcia does not contend that he is eligible for political asylum. To be eligible for political asylum pursuant to 8 U.S.C. § 1101(a)(42)(A) (1988), an alien must show "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion----" There is no evidence in the record that suggests that Garcia has reason to fear persecution in El Salvador on account of any of the statutorily enumerated reasons. For a thorough discussion of the strict requirements for obtaining asylum, see 2 C. Gordon & S. Mailman, Immigration Law and Procedure § 34.02[7] (1993).

2 . Garcia testified that he lost his original passport somewhere in Mexico.

3 . The entire oral opinion of the circuit court is set forth below:

“Very well. Madam Clerk, the Court finds based on all the evidence in the file and that adduced during the hearing that plaintiff Gilbert [sic] E. Garcia on December 13, 1991 was not a domiciliary of the State of Maryland. Judgment is entered in favor of the defendant and against the plaintiff for costs.”

4 . The chronological progression of the litigation is Moreno v. University of Md., 420 F.Supp. 541 (D.Md.1976), aff'd, 556 F.2d 573 (4th Cir.), cert. granted, 434 U.S. 888, 98 S.Ct. 260, 54 L.Ed.2d 173 (1977); Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Toll v. Moreno, 284 Md. 425, 397 A.2d 1009 (1979); Toll v. Moreno, 441 U.S. 458, 99 S.Ct. 2044, 60 L.Ed.2d 354 (1979); Moreno v. Toll, 480 F.Supp. 1116 (D.Md.1979); and Moreno v. Toll, 489 F.Supp. 658 (D.Md.1980).