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Decision No. 14,798

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Appeal of RAQUEL PLATA-MORALES, on behalf of her son SOL SEBESTIAN JIMENEZ, from action of the Board of Education of the City School District of the City of Rye regarding residency.

Decision No. 14,798

(August 26, 2002)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye ("respondent") that her son, Sol, is not a district resident and therefore may not attend the public schools of the district without the payment of tuition. The appeal must be sustained.

This appeal follows my decision in Appeal of Plata (40 Ed Dept Rep 552, Decision No. 14,555, dated March 29, 2001), in which I determined that respondent had improperly created an irrebutable presumption that petitioner and her son, by virtue of the fact that they held nonimmigrant visas, could not be considered district residents. Petitioner, a native of Colombia, was in the United States on a pleasure/business or "tourist" visa issued on August 2, 2000, with an expiration date of July 30, 2005. I remanded that appeal to respondent to hold a hearing pursuant to "100.2(y) of the Commissioner"s Regulations to determine whether petitioner was a district resident according to the traditional two-part test for residency: physical presence as an inhabitant within the district and an intent to reside in the district.

Pursuant to the remand, respondent"s assistant superintendent for business, facilities and technology held a hearing on April 19, 2001. At the hearing, petitioner informed the assistant superintendent that she had married an American citizen, Joselito Morales, on November 11, 2000 and that her lawyer possessed documentation regarding the status of her application to the Immigration and Naturalization Service ("INS") for permanent residence. According to respondent, petitioner also promised to provide copies of her husband"s 2000 federal tax return and his citizenship documentation. By letter dated August 23, 2001, the assistant superintendent again requested Mr. Morales" federal tax return for 2000, copies of receipts for her application to the INS, and a current lease, since the lease presented at the hearing expired August 31, 2001.

On September 7, 2001, petitioner presented a signed lease for the period September 1, 2001 through August 31, 2002, copies of an application and a social security card for Sol, Sol"s employment authorization from INS, an INS receipt for Sol"s application for an alien registration number, and payment receipts for the prior year"s lease. On September 17, 2001, respondent"s assistant superintendent determined to exclude Sol from attendance based on these documents and petitioner"s failure to produce the documentation allegedly promised at the April 19 hearing, namely, her husband"s federal tax return for 2000 and copies of receipts from the INS for her application for permanent residence.

In response to the September 17, 2001 letter, petitioner submitted additional documentation consisting of a tax summary prepared for Mr. Morales, a pay stub for Mr. Morales, an INS receipt for Sol"s application and a utility bill for usage through August 2001. On October 9, 2001, respondent"s assistant superintendent deemed that documentation insufficient and determined to exclude Sol from school in the district as of October 22, 2001 unless petitioner remitted tuition in the amount of $10,782. This appeal ensued. Petitioner"s request for interim relief was granted on December 21, 2001.

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 O'Herron, 41 Ed Dept Rep ___, Decision No. 14,591; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Degorge, 39 id. 590, Decision No. 14,321).

Residence, for purposes of Education Law "3202, is based upon an individual"s physical presence as an inhabitant within the district and intent to reside in the district (Appeal of Vinueza, 41 Ed Dept Rep ___, Decision No. 14,746; Appeal of Karmin, 41 id. ___, Decision No. 14,618; Appeal of Keyes, 40 id. 706, Decision No. 14,589).

Respondent admits that petitioner has satisfied the physical presence prong of the test for residency. However, respondent contends that petitioner has failed to provide copies of her husband"s federal tax return for 2000 and receipts from the INS for her application for permanent residence, and hence has not demonstrated an intent to reside in the district.

It is unclear from the transcript of the April 19 hearing whether petitioner promised to provide those documents to respondent. Nonetheless, the record contains a valid marriage certificate evidencing petitioner"s marriage to an American citizen, whose address on the certificate is the same as petitioner"s; bank statements evidencing a joint account with her husband as of August 2001; a letter to respondent"s designee from an attorney, dated May 4, 2001, stating that she assisted petitioner in applying for lawful permanent residence; a letter from Mr. Morales to the INS Service Center in Vermont inquiring about the status of his wife"s application; and a notice of appearance from a second attorney to the INS, also inquiring about the status of petitioner"s application.

Based on the totality of the circumstances, I find respondent"s determination that petitioner is not a district resident to be arbitrary and capricious. While better recordkeeping by petitioner and her original attorney certainly would have been helpful, I find there is sufficient evidence in the record of petitioner"s intent to remain. Not only has petitioner married an American citizen, but the record demonstrates a good faith attempt on petitioner"s part to apply for permanent residence status. Petitioner should not be penalized for the failure of a government bureaucracy to act promptly on her application.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Sol Sebestian Jimenez to attend school in the City School District of the City of Rye without the payment of tuition.

END OF FILE


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