In re Quijada

550 P.3d 153

IN RE the MARRIAGE OF Maria del Carmen Rendon QUIJADA, Appellant,

and

Julian Javier Pimienta DOMINGUEZ, Appellee.

No. CV-23-0160-PR

Supreme Court of Arizona.

Filed June 18, 2024

Appeal from the Superior Court in Pima County, The Honorable J. Alan Goodwin, Judge, No. D20221319. REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two, 255 Ariz. 429, 532 P.3d 1165 (App. 2023). VACATED

Siovhan S. Ayala, Peter E. Herberg (argued), Ayala Law Office, PC, Tucson, Attorneys for Maria Del Carmen Rendon Quijada

Luke E. Brown (argued), Brown and Wohlford, PLLC, Tucson; Attorneys for Julian Javier Pimienta Dominguez

Dennis I. Wilenchik, John D. Wilenchik, Garo V. Moughalian, Wilenchik & Bartness, P.C., Phoenix, Attorneys for Amicus Curiae Immigration Reform Law Institute

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES LOPEZ, and BEENE joined. JUSTICE MONTGOMERY, joined by JUSTICE KING, dissented.

JUSTICE BOLICK, Opinion of the Court:

¶1 This case raises the question of whether federal immigration law divests Arizona courts of jurisdiction over a divorce sought by a TD nonimmigrant visa holder whose visa has expired. We hold that it does not.

BACKGROUND

¶2 This case arises from an Arizona divorce proceeding initiated by Maria Del Carmen Rendon Quijada ("Rendon"), which was dismissed for lack of subject matter jurisdiction pursuant to a motion filed by her husband, Julian Javier Pimienta Dominguez ("Pimienta").

¶3 Rendon and Pimienta married in Mexico in 1999. They relocated to the United States in 2007.

¶4 Pimienta entered the United States on a TN visa. TN visas allow professionals from Canada and Mexico to work temporarily in the United States. See 8 C.F.R, § 214.6(d)(1). Rendon entered the United States on a TD visa. TD visas are reserved for the spouses and unmarried, minor children of TN visa holders. See 8 C.F.R. § 214.6(j)(1). TN and TD visa holders are "nonimmigrants" who "hav[e] a residence in a foreign country which [they have] no intention of abandoning and who [are] visiting the United States temporarily for business." 8 U.S.C. § 1101(a)(15)(B); see also 8 U.S.C. § 1184(e)(1) (providing that aliens "who seek[ ] to enter the United States" on a TN or TD visa "shall be treated as if seeking classification, or classifiable, as a nonimmigrant under section 1101(a)(15)").

¶5 Rendon’s TD visa expired in March 2020. In December 2020, Rendon began seeking lawful permanent resident status by having her sister file a Petition for Alien Relative with the U.S. Citizenship and Immigration Service. That petition was pending at the time of the trial court’s August 2022 hearing on Pimienta’s motion to dismiss.

¶6 In November 2020, Pimienta filed for marital dissolution in Mexico. Rendon challenged the Mexican court’s jurisdiction on the ground that she lives in Arizona, not Mexico. The Mexican court dismissed the case for lack of jurisdiction.

¶7 The couple lived in Arizona before separating. Rendon continues to live in Arizona, but Pimienta moved to Virginia around March 2021. Pimienta has continued to renew his TN visa but refused to renew Rendon’s TD visa.

¶8 In May 2022, Rendon filed the dissolution petition at issue here. In response, Pimienta filed a motion to dismiss for lack of subject matter jurisdiction. He argued Rendon could not establish domicile in Arizona because her TD visa precludes her from in- tending to remain in the state indefinitely. Despite finding that Rendon subjectively intends to remain in Arizona indefinitely, the trial court granted Pimienta’s motion to dismiss. The trial court reasoned that under Ninth Circuit precedent, Rendon’s TD visa precludes her from establishing domicile in the United States.

¶9 The court of appeals reversed. In re Marriage of Quijada & Dominguez ("Quijada"), 255 Ariz. 429, 436 ¶ 35, 532 P.3d 1165, 1172 (App. 2023). Relying on Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978), and Park v. Barr, 946 F.3d 1096 (9th Cir. 2020), the court held Rendon’s TD visa precludes her from establishing a United States domicile, absent an adjustment in status. Id. at 434 ¶ 22, 532 P.3d at 1170. Because Rendon had begun seeking lawful permanent resident status, the court concluded that by recognizing Rendon’s subjective domiciliary intent, "Arizona courts would not impede Congress’s purposes and objectives," nor add to or take away from the conditions Congress imposes on TD visa holders. Id. at 435 ¶ 28, 532 P.3d at 1171. Thus, the court found federal immigration law did not preempt Arizona jurisdiction over the dissolution proceeding. Id.

¶10 Pimienta petitioned this Court for review. We granted review on three questions: (1) whether the court of appeals erred by holding that federal law does not preempt Arizona from allowing Rendon to establish domicile under Arizona law; (2) whether the court of appeals erred in holding that 8 U.S.C. § 1184(e)(1) permits a TD visa holder to change her domiciliary intent upon entering the United States; and (3) whether the court of appeals erred in holding that Elkins permits TD visa holders to nullify the conditions of their visas by seeking a visa that could lead to permanent residence. Whether federal immigration law divests Arizona courts of jurisdiction over a marital dissolution where a visa holder’s visa has expired is a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

[1] ¶11 We review de novo the dismissal of a case for lack of subject matter jurisdiction when, as here, the dismissal presents only a question of law. Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 8, 284 P.3d 863, 867 (2012).

¶12 This is a case about federalism; specifically, whether Arizona courts should read a federal immigration statute so broadly as to sweep aside their jurisdiction in an area of law traditionally entrusted to state determination. See Gonzales v. Oregon, 546 U.S. 243, 270, 274, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (applying "the background principles of our federal system" to caution against reading federal statutes to displace regulation in areas traditionally entrusted to state authority).

¶13 The dissent seeks to avoid the federalism implications of its approach by attempting to graft onto Arizona divorce law an immigration-based legal capacity predicate. Infra ¶ 41. But the dissent acknowledges that "Rendon’s legal inability to change her domicile to Arizona" is "due to a federal TD visa." Id. The dissent’s pervasive fallacy is determining Arizona domestic relations jurisdiction by reference to federal immigration law, even though it confesses that such law "establishes the conditions for certain classifications of nonimmigrant visa holders to enter the United States, regardless of Arizona’s substantive law on domestic relations." Infra ¶ 54 (emphasis added).

¶14 The court of appeals held that there is "no binding federal law concluding that Congress has created—or even has the power to create—a uniform regulatory scheme governing domicile in state-law divorce proceedings." Quijada, 255 Ariz. at 435 ¶ 25, 532 P.3d at 1171. Because that holding is correct, it was unnecessary for the court to first determine that, as a matter of federal immigration law, Rendon could attempt to adjust her immigration status to that of legal permanent resident. Cf. id. at 433 ¶¶ 14–15, 532 P.3d at 1169. Likewise, our resolution of the first question presented for review makes it unnecessary to decide the second and third questions.

[2–5] ¶15 Arizona law regarding subject-matter jurisdiction over divorces has re- mained unchanged for more than a half century. A.R.S. § 25–312(A)(1) requires "[t]hat one of the parties, at the time the action was commenced, was domiciled in this state … for ninety days before filing the petition for dissolution of marriage." Establishing domicile involves two requirements: "(1) physical presence, and (2) an intent to abandon the former domicile and remain [in Arizona] for an indefinite period of time." DeWitt v. McFarland, 112 Ariz. 33, 34, 537 P.2d 20, 21 (1975) (emphasis omitted) (citation omitted). It does not require legal capacity under federal law. Rather, domiciliary intent, "as evidenced by the conduct of [the] person in question, becomes a question of fact." Bialac v. Bialac, 95 Ariz. 86, 87, 386 P.2d 852 (1963). Under Arizona law, domicile is a factual, not legal, determination. Id.; see also Clark v. Clark, 71 Ariz. 194, 197, 225 P.2d 486 (1950) (holding that domiciliary intent "is a matter of fact and may be proved as such").

¶16 Neither party disputes the trial court’s finding that Rendon satisfies both domicile elements—that is, Rendon lives in Arizona and intends to remain. Rather, Pimienta argues that federal immigration law prevents Rendon from forming the subjective intent to stay indefinitely in Arizona. Specifically, because Rendon’s TD visa is predicated upon an intent not to remain in the United States and makes her ineligible to adjust her immigration status, she cannot legally evidence an intent to establish Arizona domicile. But determining that Arizona courts are prohibited from recognizing a subjective domiciliary intent as a matter of federal immigration law turns on a separate finding that the federal law in question preempts state law.

¶17 The dissent chides us for moving too quickly to the preemption issue, contending that the question of jurisdiction is separate from, and antecedent to, a preemption analysis regarding a state’s substantive laws. Infra ¶ 56. Not so. Whether federal law divests states of jurisdiction in an area like family law, that is traditionally entrusted to the states, is no less momentous than displacing a state’s substantive law governing the same subject matter and no less subject to preemption scrutiny. See Haaland v. Brackeen, 599 U.S. 255, 265–66, 276–77, 143 S.Ct. 1609, 216 L.Ed.2d 254 (2023...