Is Immigration Law Over?

December 15, 2023

IRLI shows illegal alien cannot obtain legal status just by applying for it

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief on an issue the Arizona Supreme Court is considering in a divorce case: whether an illegal alien who lives in Arizona can obtain a divorce in that state, which only allows for divorce actions by state residents.

By the law of all fifty states, one is a resident in a state if one lives in that state and intends to remain. The law is clear that, for residency, the intent to remain must be an intent that the law is prepared to recognize, and that it will not recognize the intent to remain of a person who, under federal immigration law, is unlawfully in the country. Such a person’s intent to remain, after all, is the intent to go on breaking the law.

Nevertheless, an Arizona appellate court held that an illegal alien who had overstayed her visa—which had required her not to intend to stay in the United States, but always to intend to return to her home country—had a lawful intent to remain in Arizona because her sister had filed an application for her that might one day result in her legalization.

In its brief, IRLI attacks this holding in two ways. First, it shows that, under federal immigration law, visa terms are still binding after an alien has overstayed a visa, and thus the visa of the divorce petitioner in this case, though expired, still barred her from forming an intent to remain in the United States. Second, IRLI shows that the application the petitioner’s sister filed, even if eventually granted, would not confer any lawful status on the petitioner. Instead, under the law, she would have to leave the country to apply for lawful status—thus negating the other requirement for state residency, physical presence.

“The holding of the appellate court implies that just applying for lawful status gives an illegal alien lawful status. But if that is true, it is the end of immigration law,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We hope that we have assisted the Arizona Supreme Court by showing that the immigration statutes thoroughly stop the petitioner from forming any lawful intent, and that the court sharply reverses this lower-court holding and its disastrous consequences.”

The case is Rendon Quijada v. Pimienta Dominguez, No. CV-23-0160 (Arizona Supreme Court).