Appeal of LISAMARIE ESPOSITO on behalf of HAOMING (EVAN) ZHU from action of the Board of Education of the Bellmore-Merrick Central High School District regarding residency.

Decision No. 17,415

(June 25, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Bellmore-Merrick Central High School District (“respondent”) that Haoming (“Evan”) Zhu is not a district resident.  The appeal must be dismissed.

Petitioner states that she is the guardian of Evan Zhu, a citizen of the People’s Republic of China.  Evan initially came to live with petitioner in 2013 under a Class F-1 Visa (“F-1 Visa”).  An F-1 Visa is issued to citizens of foreign countries who wish to enter the United States to attend certain schools, in this case Lawrence Woodmere Academy, a private high school located in Woodmere, New York.  According to petitioner, Evan attended Lawrence Woodmere Academy “from 2014-2015, and 2015-2016.”^[1]  According to petitioner,  in December 2016 Evan’s “family in Hong Kong faced a tragedy” requiring Evan to withdraw from Lawrence Woodmere Academy. 

On or about May 6, 2016,^[2]  petitioner sought to enroll Evan in respondent’s John F. Kennedy High School.  Attached to the registration application petitioner included a copy of Evan’s passport from the People’s Republic of China, his F-1 Visa, his Department of Homeland Security I-20 form entitled “Eligibility For Nonimmigrant Student Status,” his vaccination information and evidence that petitioner resides within respondent’s district.  Evan’s Department of Homeland Security I-20 form is dated April 12, 2016 and indicates that the school he will be attending is Lawrence Woodmere Academy.  The form includes a school attestation signed by Alan Bernstein, Headmaster of Lawrence Woodmere Academy.  Evan’s F-1 Visa has an issue date of July 21, 2015 and also indicates that the school he will be attending is “Lawrence Woodmere Academy.” 

On June 2, 2016, petitioner submitted an acknowledgment form to respondent signed by her and Evan stating that she read and understood respondent’s Admission of Foreign Exchange Students policy (No. 5152.1).  This policy addresses foreign exchange students and states that respondent “recognizes only those organizations designated “Exchange Visitor Programs” by the U.S. Department of State.”  On June 6, 2016, respondent’s Director of Special Education and Pupil Personnel Services (“director”) informed petitioner that she was missing the required proof that Evan was participating in a U.S. State Department approved foreign visitor program.  The record indicates that petitioner never provided documentation to respondent that Evan was participating in a U.S. State Department approved Foreign Visitor Program. 

By email dated July 11, 2016 to the director, petitioner claimed that she made a mistake when she provided respondent with information that Evan was an exchange student.  Petitioner stated that she was his legal guardian and that she was registering him as an immigrant.  As evidence of this assertion, on August 12, 2016, petitioner submitted documentation to the director’s office, which included a letter of temporary guardianship from Wong Tai Sin, Evan’s father.  The letter granted petitioner guardianship of Evan from July 17, 2016 until July 17, 2017 and allowed petitioner to make decisions “during the conditions of emergency, medical conditions and health issues.”  It also allowed petitioner to “make educational decisions for my son on my behalf.”  The letter also stated that Evan would be residing with petitioner during the July 17, 2016 to July 17, 2017 period.  Petitioner submitted other documentation to respondent such as Evan’s bank statements and mail sent to Evan at petitioner’s address.

By letter dated August 23, 2016, the director informed petitioner that he had concerns regarding her “assertion that Evan is a Bellmore-Merrick High Central High School District resident entitled to attend our schools.”  He gave petitioner until August 29, 2016 to provide any additional documentation that might support her assertion. 

By letter dated August 24, 2016, petitioner responded to the director and stated that she “inadvertently registered him [Evan] as an I 20 student that was with an agency.”  She further stated that his status is that of an “immigrant” and that he resides with her at her address.  Petitioner included copies of Evan’s mail with her address.  Finally, petitioner wrote that she “pointed out to you case laws that have been instituted to accommodate students of this type.”  Petitioner stated that she felt respondent was discriminating against Evan.  

By email and letter dated August 29, 2016 the director informed petitioner of his determination that Evan was not a district resident because Evan did not establish an intent to reside in the district permanently; the guardianship documents did not demonstrate a total transfer of custody and control from Evan’s parents to petitioner; and because Evan’s sole reason for residing with petitioner was to take advantage of the schools of the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 15, 2016.

Petitioner asserts that because she is his legal guardian and Evan resides with her within the district, Evan is entitled to attend respondent’s John F. Kennedy High School.  Petitioner also argues that Evan is entitled to attend respondent’s John F. Kennedy High School as an immigrant.

Respondent argues that the appeal must be dismissed for failure to state a claim and that it has not acted in an arbitrary and capricious manner.  Respondent maintains that petitioner has failed to establish that there has been a total transfer of custody and control from Evan’s parents, who do not reside in the district, to her and that petitioner has therefore failed to rebut the presumption that the student’s residence lies with his parents. 

  Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Although not raised by respondent, I must address the issue of standing.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  In this case, there is no dispute that petitioner is a resident of respondent’s district.  As such, a child residing in her household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free.  Petitioner alleges that respondent has abrogated that right, and I therefore find that petitioner may bring an appeal to challenge respondent’s action (see Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822).

As part of Evan’s May 6, 2016 registration application to respondent’s John F. Kennedy High School, petitioner attached a copy of Evan’s F-1 Visa.  This visa was issued July 21, 2015 and expires on July 17, 2020.  Pursuant to 8 USC §1101(a)(15)(F)(i), the F-1 Visa excludes Evan from the definition of “immigrant” because he is:

an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184 (l) of this title at an established college, university, seminary, conservatory, academic high school, elementary school or other academic institution or in an accredited language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education....

Further, in accordance with Evan’s Form I-20 “Certificate of Eligibility for Nonimmigrant Student Status,” a copy of which was also attached to his May 6, 2016 registration application, the “school information” listed Lawrence Woodmere Academy with a program start date of August 25, 2013 and a program end date of June 15, 2018. Therefore, by emails dated July 1 and 5, 2016 from respondent’s assistant principal of John F. Kennedy High School, petitioner was advised that because Evan already had an F-1 Visa to study at another school and the district was not certified by the U.S. Department of Homeland Security (“DHS”), respondent could not accept Evan as a student under his F-1 Visa. Under 8 CFR §§214.2(f)(1)(i)(A) and 214.3, a high school or school system, such as respondent’s school district, must be approved for admission of F-1 Visa nonimmigrant students through certification by the Student and Exchange Visitor Program of DHS. 

With regard to the foreign visitor program petitioner also claimed applied to Evan, respondent’s director attests in an affidavit that on or about June 6, 2016, he verbally informed petitioner that her application was incomplete because she did not submit documentation that Evan was participating in a U.S. Department of State approved Foreign Visitor Program as required by District Policy No. 5152.1.  He reiterated that petitioner’s application was deficient in this regard in an email to petitioner dated July 11, 2016 and in a letter to petitioner dated August 23, 2016.  As the director pointed out, District Policy No. 5152.1 only authorizes admission of foreign exchange students through sponsoring organizations designated as “Exchange Visitor Programs” by the U.S. Department of State.  The district policy specifically references federal Exchange Visitor Programs authorized under 22 CFR Part 62.  Further, 22 CFR §62.25(e)(3) regarding “student selection” specifically prohibits students from participating in a foreign exchange program who “have attended school in the United States in either F-1 or J-1 visa status.”  Thus, Evan’s status as a nonimmigrant secondary student studying under an F-1 Visa does not entitle him to admission as an exchange student under this policy.

In this appeal, petitioner appears to have abandoned her argument that Evan must be admitted as an exchange student and instead claims that Evan must be admitted to the district as an immigrant who resides with her, a district resident.  In Appeal of Ramirez (40 Ed Dept Rep 163, Decision 14,449), an appeal involving two children who had entered the United States on business/pleasure visas, the Commissioner noted that the U.S. Supreme Court in Plyler v. Doe (457 US 202) recognized that even children who are illegal aliens cannot be denied a free public education if they are, as a factual matter, district residents.  The Commissioner also recognized that it is unreasonable to create an irrebuttable presumption that a person cannot be deemed a resident based solely upon the mechanism by which they entered the country, and that a school district must at least make sufficient investigation into the facts that establish the traditional two-part standard of presence and intent to reside (Appeal of Ramirez, 40 Ed Dept Rep 163, Decision 14,449; see also Appeal of Plata, 40 id. 552, Decision No. 14,555). 

In Appeal of Plata (40 Ed Dept Rep 552, Decision No. 14,555), another appeal involving a student who was in the United States on a business/pleasure or “tourist” visa, the Commissioner specifically held that the State has not included any consideration of federal immigration status in Education Law §3202(1) and therefore, a school district cannot apply an irrebuttable presumption that the holder of a nonimmigrant visa cannot be a resident of the school district.  In this case, however, petitioner brings the appeal on behalf of a student who is in the United States on an F-1 Visa, which is different than a business/pleasure or “tourist” visa, the subject of these previous appeals.

Schools that seek to admit students under an F-1 Visa must participate in the Student and Exchange Visitor Program and agree to maintain detailed records on each student that are transmitted electronically through the Student and Exchange Visitor Information System (“SEVIS”) to DHS (8 CFR §214.2[f][1][iii]).  A school’s designated school official (“DSO”) is responsible for monitoring each student’s progress in the program and for reporting to DHS any violation by a student of their F-1 Visa status within 21 days (8 CFR §214.3[g][2][ii]).  Further, the student will be considered to have violated their nonimmigrant status if they abandon their course of study at the designated school and undertake a course of study at a public secondary school unless they meet certain additional requirements which include not exceeding 12 months at the school and “reimburs[ing] the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at  such school for the period of the alien’s attendance” (8 USC §1184[m]).  Therefore, federal law regulating students who are in the United States to study under an F-1 Visa states that such students may only study in a public secondary school upon payment of the full cost of tuition and the record does not indicate that petitioner is seeking admission to respondent’s district on a tuition basis.  On this record, if Evan were to attend John F. Kennedy High School, petitioner would be required to seek admission to respondent’s district in accordance with the requirements and restrictions enumerated in the federal law governing students attending school in the United States under an F-1 Visa (see 8 USC §1101[a][15][F]; 8 USC §1184 and 8 CFR §214).   

Here, respondent did not apply an irrebuttable presumption that Evan’s status as the holder of a nonimmigrant F-1 Visa precluded application of the traditional residency test and instead afforded petitioner the opportunity to submit documentation to establish that Evan could attend John F. Kennedy High School as a resident.  Although petitioner has submitted documentation that Evan resides with her at her home within respondent’s district, petitioner has not met her burden that total and permanent custody and control has been transferred from Evan’s parents to her.  Petitioner submits a letter from Wong Tai Sin, Evan’s father, transferring guardianship to petitioner from July 17, 2016 to July 17, 2017.  While this guardianship document does authorize petitioner to make all decisions during an emergency and regarding medical conditions, health issues and educational issues for Evan during the year, it does not document that total and permanent custody and control has been transferred because there is no evidence that petitioner provides financial support to Evan for room, board, clothing and other necessities. Indeed, the bank records that petitioner submits to document that Evan “supports himself” indicate that Evan received at least one wire transfer of funds from Hong Kong.  This evidence appears to reflect that Evan’s parents continue to support him monetarily and clearly documents that he is not being supported by petitioner alone.  Also, the letter confers guardianship for one year only, and therefore it does not appear that Evan’s father intended to make a permanent transfer of custody and control.  It appears that the guardianship is only effective during Evan’s final year of secondary education in the United States.  Additionally, petitioner’s statement in her July 1, 2016 email to the assistant principal of John F. Kennedy High School that she wanted the registration issue resolved in her favor and “[T]his is my livelihood!!” belies her argument that she is Evan’s legal guardian and instead implies that boarding foreign students who come to the United States to study is a business commitment she undertook.  Based on the record before me, I find that petitioner has not met her burden of demonstrating a total and permanent transfer of custody and control of Evan. 

 Finally, I note that the record indicates that, on July 10, 2016, petitioner emailed respondent the web addresses of two guidance documents issued by the State Education Department (“Department”) regarding student registration generally in 2010[3] and educational services for recently arrived unaccompanied children in 2014.[4]  It appears that petitioner believes these guidance documents require respondent to enroll Evan as an “immigrant.”  The Department’s 2014 guidance for recently arrived unaccompanied children states that “lack of evidence of a formal guardianship proceeding should not delay enrollment of an unaccompanied immigrant child if the sponsor’s home is the child’s permanent residence and the sponsor has full authority and responsibility with respect to the child’s support and custody.”  In this regard, I note that, as used in the guidance, the term “recently arrived unaccompanied child” refers to unaccompanied children, such as those who crossed the United States-Mexico border in large numbers in 2013 and 2014, who are in federal custody, or are transferred from federal custody to live with a sponsor, while their immigration case is processed through the immigration system.  Moreover, the guidance further explains that, as noted above, such children “have the right to attend school full time as long as they meet the age and residency requirements established by State law.”  Accordingly, regardless of Evan’s immigration status, upon application of the two-part standard of physical presence and intent to reside, I find that on this record, petitioner has not met her burden of proving this student is a resident of respondent’s district entitled to a public education without the payment of tuition. 

THE APPEAL IS DISMISSED.

END OF FILE