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Decision No. 12,591

Appeal of RICHARD GIERLACH from a determination of the Cheektowaga Central School District with respect to residence of a prospective student.

Decision No. 12,591

(October 7, 1991)

Raymond J. Dziedzic, Esq., attorney for petitioner

Quinn & McGarry, attorneys for respondent, Frank P. McGarry, Esq., of counsel

SOBOL, Commissioner.--Petitioner is a resident of the Cheektowaga Central School District and is the uncle of Krystyna Pietrzyk, a citizen of Poland. Petitioner appeals from a determination by respondent's superintendent of schools made January 4, 1991, pursuant to 8 NYCRR '100.2(y), that petitioner's niece is not a permanent resident of the district and is not entitled to attend respondent's schools. The appeal must be dismissed.

Krystyna Pietrzyk was born in Poland on February 18, 1973, and was approximately 17 1/2 years old at the time of her arrival in this country on or about August 15, 1990. She arrived pursuant to 8 USC '1101(a)(15)(B), which provides for visitor visas as follows:

(B) an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure

A visitor visa is a "nonimmigrant visa" as defined in 8 USC '1101(a)(26).

It appears that on or about September 5, 1990, petitioner contacted respondent's high school principal for the purpose of enrolling Krystyna as a student. However, it does not appear that any specific information about her was given to the district, nor was any formal application made. On September 10, 1990, respondent board passed a resolution to the effect that the district would not sponsor or accept foreign students who did not have student class visas from the United States Immigration and Naturalization Service, unless the student was participating in a recognized student exchange program. Petitioner then retained counsel, and his attorney and the district's attorney entered into a series of telephone calls and correspondence which stretched over several months. During that period Krystyna was neither admitted as a student, nor formally rejected. Finally, on January 3, 1991, petitioner, his attorney, and Krystyna made formal application for her admission by visiting the assistant high school principal. They brought with them numerous documents (in the Polish language) relating to Krystyna's academic and medical record, and completed a "Parent Registration Form" for new students. On that form appeared this question: "Has your child been identified as needing special educational services?" Petitioner indicated on the form that Krystyna would need bilingual services.

The next day, January 4, 1991, Superintendent Leslie B. Lewis issued a letter determining that Krystyna was not a district resident, because only her temporary visitor's visa allowed her to stay in the United States. As a result, he decided that she was not entitled to attend the district's schools. The determination letter also noted that Krystyna was attempting to change her visa status from that of "visitor" (8 USC '1101(a)(15)(B)) to "student" (8 USC '1101(a)(15)(F)). Dr. Lewis indicated his willingness to reconsider her admission if she were successful in having such a change made, but noted that according to information he had received from the Immigration and Naturalization Service she would need to establish proficiency in the English language, which appeared to be lacking. This appeal ensued.

Petitioner contends that Krystyna has established a bona fide residence within the district, where she actually lives and intends to stay indefinitely. Petitioner further claims that respondent has a duty to assist Krystyna in modifying her visa status from visitor to student.

Respondent contends that Krystyna could not legally be admitted to its schools as long as she held a visitor's visa. It contends that it had no legal obligation to assist her in seeking a change in her visa status, and that such a change would require that it certify her proficiency in the English language. It contends that Krystyna could not be regarded as a district resident, since her legal ability to remain in this country depended on her nonimmigrant visa, and she was presumed to reside with her parents in Poland. Finally, it contends that the appeal was improperly commenced by service on its business administrator, in violation of 8 NYCRR '275.8(a).

The appeal has become moot. At the oral argument of this matter, which petitioner's attorney did not attend, I learned that Krystyna had become engaged to an American citizen since the commencement of this appeal. After oral argument, I learned that she had married her fiance and has established a residence outside the Cheektowaga Central School District. Unfortunately, this information was not provided in a timely fashion, and was made available only after I requested it pursuant to 8 NYCRR '276.5. In addition, petitioner has failed, despite requests made by my Office of Counsel, to withdraw the appeal without qualification, which would have dispensed with the need for this decision. I also fault respondent for continuing to seek a determination on the merits where the facts have radically changed. Much time and effort has been spent on this matter without justification.

The Commissioner will determine only matters which are in actual controversy and will not render a decision upon a matter which subsequent events have laid to rest (Appeal of Ambris, 31 Ed Dept Rep , Decision No. 12562, dated August 12, 1991; Appeal of Dimilia, 30 id. 391; Appeal of Silio, 28 id. 313; Appeal of Huggins, 28 id. 173).