In Re the Marriage of quijada/dominguez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN RE THE MARRIAGE OF

MARIA DEL CARMEN RENDON Q UIJADA,
Appellant,

and

JULIAN JAVIER PIMIENTA D OMINGUEZ
Appellee.

No. CV-23-0160-PR
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 (App. 2023)
VACATED

COUNSEL:

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

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 IN RE THE MARRIAGE OF QUIJADA AND DOMINGUEZ
Opinion of the Court

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

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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 intending 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 (App. 2023). Relying on
Elkins v. Moreno, 435 U.S. 647 (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.
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. 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

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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

¶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 (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 (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. 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
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immigration status to that of legal permanent resident. Cf. id. at 433
¶¶ 14–15. Likewise, our resolution of the first question presented for
review makes it unnecessary to decide the second and third questions.

¶15 Arizona law regarding subject-matter jurisdiction over
divorces has remained 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 (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 (1963). Under
Arizona law, domicile is a factual, not legal, determination. Id.; see also Clark
v. Clark, 71 Ariz. 194, 197 (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 (2023)

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(considering that “Congress lacks a general power over domestic relations”
but holding that state family law conflicting with valid congressional
legislation must give way in determining the validity of the Indian Child
Welfare Act’s (“ICWA”) displacement of state-court jurisdiction over all
child custody proceedings); Fisher v. District Court, 424 U.S. 382, 390 (1976)
(holding that “even if . . . the Montana courts properly exercised adoption
jurisdiction” in the past, “that jurisdiction has now been pre-empted” by a
tribal ordinance authorized by the Indian Reorganization Act “conferring
jurisdiction on the Tribal Court” and “implement[ing] an overriding federal
policy which is clearly adequate to defeat state jurisdiction”); New Mexico v.
Mescalero Apache Tribe, 462 U.S. 324, 333–34 (1983) (noting that “a State will
certainly be without jurisdiction [over tribal lands] if its authority is
preempted under familiar principles of preemption”); United States v. Bass, 404 U.S. 336, 349 (1971) (requiring that “Congress convey[] its purpose
clearly” before courts find Congress intends “to effect a significant change
in the sensitive relation between federal and state criminal jurisdiction”);
Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Loc. 54, 468 U.S. 491,
502–03 (1984) (noting that where “unusually ‘deeply rooted’ local interests
are at stake,” such as in cases involving certain state breach of contract,
trespass, and tort actions, “appropriate consideration for the vitality of our
federal system and for a rational allocation of functions belies any easy
inference that,” in enacting the National Labor Relations Act, “Congress
intended to deprive the States of their ability to retain jurisdiction over such
matters”). Effectively, the dissent argues that the federal immigration
statutes governing TN and TD visas create a legal capacity prerequisite to
invoking state court jurisdiction over marital dissolutions. As we conclude
below, federal law does not do so.

¶18 Our preemption jurisprudence is clear and consistent, and
embraces the principles applied by the United States Supreme Court.
Responding to the dissent’s assertion that it is state law that establishes
jurisdictional requirements that encompass federal immigration law, it is
notable that we recently held unanimously that “[w]e will not lightly divine
legislative intent to displace state law with sweeping and prescriptive
federal [laws].” Roberts v. State, 253 Ariz. 259, 266 ¶ 21 (2022). And we held
that “in our system of federalism, we do not start with federal law and
apply it unless the legislature manifests a contrary intent; rather, we
presume that state law prevails unless we find a manifest intent to adopt
federal law.” Id.

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¶19 In Varela v. FCA US LLC, 252 Ariz. 451 (2022), this Court stated
that “[w]e presume that federal lawmakers do not ‘cavalierly preempt’ state
law because ‘the States are independent sovereigns in our federal system,’
and have historically ‘had great latitude’ to protect ‘the lives, limbs, health,
comfort, and quiet’ of their citizens.” Id. at 459 ¶ 13 (internal citation
omitted) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 485 (1996)). We
declared that this “presumption against preemption is ‘particularly’ strong
in ‘field[s] which the States have traditionally occupied.’” Id. (alteration in
original) (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)). In particular,
we cautioned against finding that “state law is preempted not by what is
expressed in federal law, but rather by what may be implied by federal
law . . . . By venturing beyond the text of federal law, courts risk
preempting state law based on something other than what has been ‘made
in Pursuance’ of the Constitution.” Id. at 460 ¶ 16 (quoting U.S. Const. art.
VI, cl. 2). We concluded that “liberally applying implied preemption
destabilizes the twin pillars of our constitutional order: federalism and the
separation of powers.” Id. ¶ 17.

¶20 Congress possesses plenary authority over immigration. See
Hines v. Davidowitz, 312 U.S. 52, 62 (1941) (“[T]he supremacy of the national
power . . . over immigration, naturalization and deportation, is made clear
by the Constitution . . . .”). Hence, pursuant to the Supremacy Clause, U.S.
Const. art. VI, cl. 2, when a state law clearly conflicts with federal
immigration law, the state law must yield, see Arizona v. United States, 567
U.S. 387, 400–11 (2012) (striking down several Arizona immigration laws
conflicting with the federal government’s comprehensive immigration
regulations). At the same time, the field of domestic relations “has long
been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975); accord Haaland, 599 U.S. at 276–77. We therefore
address the pertinent types of preemption to determine whether Congress’s
exercise of its immigration authority displaces Arizona’s jurisdiction over
nonimmigrant divorces.

¶21 The clearest and most readily dispositive form of preemption
is express preemption—that is, where federal law by its own clear terms
preempts state law. See Arizona, 567 U.S. at 399. None of the relevant
federal statutes contain a preemption provision. Indeed, it is not even clear
that the relevant immigration laws address domiciliary intent outside of the
immigration context at all. See §§ 1101(a)(15)(B), -1184(e)(1) (classifying a
person who enters the United States on a TD visa as a “nonimmigrant alien”
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who has “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”); 8 U.S.C. § 1227(a)(1)(C)(i) (“Any alien who
was admitted as a nonimmigrant and who has failed to maintain the
nonimmigrant status in which the alien was admitted . . . or to comply with
the conditions of any such status, is deportable.”). At most, any
applicability of these provisions beyond the immigration context, and
specifically to the domiciliary requirements of state domestic relations law,
would have to be inferred from a very broad reading of those provisions.

¶22 The Supreme Court has strongly admonished against doing
that. In Bond v. United States, 572 U.S. 844 (2014), a unanimous Supreme
Court ruled that absent a clear congressional command, a federal chemical
weapons treaty could not be used to prosecute a woman for placing
poisonous substances on surfaces that were touched by her husband’s
lover, because such usage would displace state criminal processes. Id.
at 848. In construing the congressional enactment, the Court instructed that
“it is appropriate to refer to basic principles of federalism embodied in the
Constitution to resolve ambiguity in a federal statute.” Id. at 859. In that
case, the “ambiguity derive[d] from the improbably broad reach of the key
statutory definition given the term . . . being defined; the deeply serious
consequences of adopting such a boundless reading; and the lack of any
apparent need to do so in light of the context from which the statute arose.”
Id. at 859–60. In such instances, “we can insist on a clear indication that
Congress meant to reach purely local crimes, before interpreting the
statute’s expansive language in a way that intrudes on the police power of
the States.” Id. at 860.

¶23 In this case, such clear intent is manifestly absent. The
immigration law’s provisions regarding domiciliary intent exist within a
self-contained statute pertaining to immigration. They do not purport to
define or restrict domicile for all purposes; no intent appears to reach
beyond the immigration context. Were Congress intent upon substituting
its own jurisdictional confines for those of the states, it surely knows how
to do so. See, e.g., 25 U.S.C. § 1911(a) (“An Indian tribe shall have
jurisdiction exclusive as to any State over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation
of such tribe, except where such jurisdiction is otherwise vested in the State
by existing Federal law.”). Congress did not do so here, and it would do
grave damage to federalism for us to infer that it did.
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¶24 Congress may also withdraw a subject from state regulation
by fully occupying the field through comprehensive regulation. See
Arizona, 567 U.S. at 399; R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S.
130, 140 (1986). The federal government has fully occupied the area of alien
registration. See Arizona, 567 U.S. at 401. But the relevant statutes are
completely silent on domestic relations. Because divorce jurisdiction is
“fundamentally unrelated” to the field of alien registration, field
preemption does not apply here. See Kansas v. Garcia, 589 U.S. 191, 208
(2020); contra Haaland, 599 U.S. at 276–77 (holding that Congress could
directly regulate child custody matters through ICWA, pursuant to its
broad powers over Indian affairs, despite the fact that “Congress lacks a
general power over domestic relations”).

¶25 Nor does Arizona’s jurisdiction over nonimmigrant divorce
pose an obstacle to the attainment of federal immigration-law objectives.
See Arizona, 567 U.S. at 399–400 (noting that state laws are preempted where
“they stand ‘as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress’” (quoting Hines, 312 U.S. at 67)).
Pimienta urges that by asserting jurisdiction over the divorce here, the state
would usurp federal authority. But this is not, as the dissent asserts, a
matter of “immigration status or benefits.” See infra ¶ 50. To the contrary,
the state is simply conducting divorce proceedings in accord with Arizona
laws and procedures that long predate the visa status at issue here. Compare
1973 Ariz. Sess. Laws ch. 139, § 2 (1st Reg. Sess.) (codifying Arizona’s
ninety-day domicile requirement for divorce jurisdiction), with 8 U.S.C.
§ 1184(e) (1994) (creating the TD visa). The Supreme Court has instructed
that “courts should assume that ‘the historic police powers of the States’ are
not superseded ‘unless that was the clear and manifest purpose of
Congress.’” Arizona, 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947)); accord Wyeth, 555 U.S. at 565; Fla. Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 146–47 (1963) (requiring “an
unambiguous congressional mandate” of preemption in such cases). At
oral argument, Pimienta acknowledged that granting Rendon a divorce would
have no impact on her immigration status or deportability. It is difficult to
conceive how asserting jurisdiction over such proceedings even implicates
federal immigration law, much less poses an obstacle to accomplishing its
objectives.

¶26 Pimienta mainly relies on “impossibility” preemption,
asserting that it is impossible for Rendon to comply both with her federal
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TD nonimmigrant status, which requires an intent to not remain in the
country, and with the domiciliary intent requirement of Arizona divorce
law. See Florida Lime, 373 U.S. at 142–43 (noting that preemption is present
where it is a “physical impossibility for one engaged in interstate
commerce” to comply with conflicting state and federal requirements). 1

¶27 Given the presumption against preemption, the absence of
express preemption, and the fact that exercising jurisdiction here would not
interfere with federal immigration objectives, we will construe the law as
best we can to avoid a finding of impossibility. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (providing that state family law “must do ‘major
damage’ to ‘clear and substantial’ federal interests before the Supremacy
Clause will demand that state law be overridden” (quoting United States v.
Yazell, 382 U.S. 341, 352 (1966))). Here, as in Barnett Bank of Marion County
v. Nelson, 517 U.S. 25 (1996), federal and state statutes “do not impose
directly conflicting duties . . . as they would, for example, if the federal law
said, ‘you must sell insurance,’ while the state law said, ‘you may not.’” Id.
at 31.

¶28 As noted above, Arizona determines domicile based on
subjective intent and conduct, not on a detailed and complex legal
determination of a person’s immigration status. See Bialac, 95 Ariz. at 87. If
someone seeking a divorce applies for a change in immigration status, that
can be evidence of intent to remain in Arizona, regardless of her legal
authority to do so. A legal determination of immigration status by the
family court is not commanded by either state or federal law. See Printz v.
United States, 521 U.S. 898, 935 (1997) (“Congress cannot compel the States
to enact or enforce a federal regulatory program.”). Granting a divorce
affects Rendon’s immigration status and deportability not at all.

¶29 A contrary decision, embracing the dissent’s view that federal
immigration law governs domicile-based jurisdiction for TN and TD visa

1 Even were we to conclude that federal law controls, we are presented with

no provision that dictates that a person whose visa has expired cannot
change her mind about domicile. Presumably at that point, it becomes a
matter of possible deportation or, if available, some form of obtaining
alternative lawful status. We need not reach or resolve that question
because we conclude that federal immigration law does not displace state
domicile law in this context.
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holders, could impact other areas of Arizona law that use domicile to
determine jurisdiction and a person’s legal rights and responsibilities. See,
e.g., A.R.S. §§ 14-2711, -2401 (administration of trusts and estates); see also
Bryant v. Silverman, 146 Ariz. 41, 43–45 (1985) (conflict of laws in personal
injury context); Maricopa County v. Trs. of Ariz. Lodge No. 2, 52 Ariz. 329, 338
(1938) (taxation of intangible property); Oglesby v. Pac. Fin. Corp. of Cal., 44
Ariz. 449, 453 (1934) (same).

¶30 For similar reasons, several other state courts confronting this
issue have concluded that federal immigration law does not deprive them
of jurisdiction over divorce proceedings. In In re Marriage of Dick, 18 Cal.
Rptr. 2d 743 (Ct. App. 1993), the California Court of Appeal held that a B-2
nonimmigrant could establish residence for the purpose of obtaining a
divorce. Id. at 747. 2 The court held that “immigration status is, at most,
evidence of domiciliary intent, but not dispositive of the residency issue as
a matter of law.” Id. at 746. The court found its conclusion was “buttressed
by the different aims and purposes of immigration and dissolution law,”
concluding that the former does not preclude the latter when the parties
“otherwise meet domiciliary requirements and when they are subject to the
courts of this state for other purposes.” Id. at 748; accord In re Marriage of
Pirouzkar, 626 P.2d 380, 383 (Or. Ct. App. 1981) (“Whatever the
consequences of [establishing subjective domiciliary intent] may be for
purposes of immigration law, it is not pertinent as to the issue of domicile
for the purposes of jurisdiction.”); Garcia v. Angulo, 644 A.2d 498, 504 (Md.
1994) (holding that because “there is no certainty as to when, if ever, [the
nonimmigrant] will receive a notice of deportation,” the subjective intent to
remain is not inconsistent with law); Das v. Das, 603 A.2d 139, 141–42 (N.J.
Super. Ct. Ch. Div. 1992) (noting that a rule to the contrary would “require
state trial courts to assume (or possibly usurp) the very function” of federal
immigration authorities) 3; cf. Arizona, 567 U.S. at 396 (noting that “[a]

2 The court found that “residence” was synonymous with “domicile”
because it required both residence and intent to remain. Dick, 18 Cal. Rptr.
2d at 746. Our law requires both elements as well. DeWitt, 112 Ariz. at 34.
For that reason, the dissent’s attempt to distinguish the case, infra ¶ 71, is
unavailing.
3 Other decisions holding the same include Bustamante v. Bustamante, 645

P.2d 40, 41–42 (Utah 1982) (noting the “uncertainty confronting an alien in
knowing whether he may be accorded the right to remain indefinitely or

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principal feature of the removal system is the broad discretion exercised by
immigration officials”).

¶31 The cases Pimienta relies on do not dictate a contrary result.
Elkins speaks to the conditions of a nonimmigrant’s visa, but it does not
apply preemption analysis. 435 U.S. at 663–64. Indeed, the Court expressly
did not reach the question of the effect of federal immigration law on
subjective domiciliary intent under state law, id., so it also did not need to
address whether federal law would preempt state law. Similarly, Toll v.
Moreno, 458 U.S. 1 (1982), is inapposite because that case merely prevents
states from imposing discriminatory burdens (in that case, ineligibility for
in-state university tuition) not contemplated by Congress on lawfully
admitted aliens. Id. at 12–14. By contrast, in Carlson v. Reed, 249 F.3d 876
(9th Cir. 2001), the Ninth Circuit held that California could permissibly
exclude TN and TD visa holders from in-state tuition eligibility because,
due to their professed intention not to remain in the United States, the state
“ha[d] hardly imposed on such aliens any ‘ancillary burden not
contemplated by Congress.’” Id. at 881 (quoting Toll, 458 U.S. at 14); see also
State ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 540
¶ 1 (2018) (holding no right of undocumented immigrants to in-state
tuition). There being no conflict between state and federal law, the court
did not apply preemption analysis. Carlson, 249 F.3d at 881.

¶32 The most pertinent case on which Pimienta relies is Park, in
which the Ninth Circuit construed federal immigration law to prohibit a
B-2 nonimmigrant from establishing California domicile. 946 F.3d
at 1098–99. At issue was a California statute that denied effect to a foreign
divorce decree when both parties were living in California after overstaying
their B-2 visas. Id. at 1098. The court held that because “Congress has not
permitted B-2 nonimmigrants to lawfully form a subjective intent to remain
in the United States[,] such an intent would inescapably conflict with
Congress’s definition of the nonimmigrant classification.” Id. at 1099.

permanently under certain situations”); Estate of Jack ex rel. Blair v. United
States, 54 Fed. Cl. 590, 599 (2002); Maghu v. Singh, 181 A.3d 518, 523–25 (Vt.
2018); Gunderson v. Gunderson, 123 Wash. App. 1035, 1037–38 (2004); Padron
v. Padron, 641 S.E.2d 542, 543 (Ga. 2007); Nagaraja v. Comm’r of Revenue, 352
N.W.2d 373, 377–78 (Minn. 1984); Cho v. Jeong, No. 03A01-9608-CV-00257,
1997 WL 306017, at *4–7 (Tenn. Ct. App. 1997).
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Accordingly, the court concluded that under federal law, the B-2
nonimmigrant could not have been domiciled in California. Id. at 1100.

¶33 Technically, Park does not apply here as it distinguished the
California Court of Appeal’s decision in Dick, in part, on the grounds that
the latter dealt (as here) with a marriage dissolution statute. Id. at 1100.
Regardless, we are not obliged to follow Ninth Circuit precedent. See
Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 532–33 ¶¶ 8–9 (2003).
Park failed to engage in any meaningful preemption analysis, simply
concluding that state law was displaced by federal law with which the court
deemed it to conflict. 946 F.3d at 1100.

¶34 Such a cursory approach is at great variance with Arizona
jurisprudence. Most closely on point is St. Joseph’s Hospital & Medical Center
v. Maricopa County, 142 Ariz. 94 (1984), in which the Court rejected precisely
the argument Pimienta makes here, that federal law precludes an
undocumented immigrant from legally forming an intent to domicile in
Arizona for state law purposes. 4 Id. at 98. The Court concluded that
“[i]llegal entry into the country would not, under traditional criteria, bar a
person from obtaining domicile within a state,” and “[t]here is no federal
impediment” to doing so. Id. at 99–100 (quoting Plyler v. Doe, 457 U.S. 202,
227 n.22 (1982)).

¶35 Further, in Reed-Kaliher v. Hoggatt, 237 Ariz. 119 (2015), we
held that the Arizona Medical Marijuana Act (the “AMMA”) is not
preempted by the federal Controlled Substances Act (the “CSA”). Id.
at 141–42 ¶¶ 19–23. After conducting a fulsome preemption analysis, the
Court concluded that in enforcing the AMMA, “the trial court would not
be authorizing or sanctioning a violation of federal law,” id. at 141 ¶ 21, and
that “[t]he state-law immunity AMMA provides does not frustrate the

4 St. Joseph’s dealt with whether undocumented immigrants could become
“residents” of this state such that they would statutorily qualify for indigent
emergency medical treatment. 142 Ariz. at 98. The Court “treated the
statutory usage of the term ‘residence’ as carrying the same connotations as
the term ‘domicile’”—specifically “a state of mind combined with actual
physical presence in the state.” Id. at 99 (quoting Ariz. Bd. of Regents v.
Harper, 108 Ariz. 223, 228 (1972)).

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 IN RE THE MARRIAGE OF QUIJADA AND DOMINGUEZ
Opinion of the Court

CSA’s goals of conquering drug abuse or controlling drug traffic,” Id.
at 141–42 ¶ 23. Those same criteria are satisfied in this case.

¶36 Similarly, in Arizona Farmworkers Union v. Phoenix Vegetable
Distributors, 155 Ariz. 413 (App. 1986), a case we view as much closer than
the present one, an employer challenged a court order requiring the
employer to rehire workers due to a violation of state labor law. Id. at 414.
The workers were undocumented and therefore not entitled to work in this
country. Id. The court defined the issue as “whether a state court, enforcing
a state agricultural labor law, must restrict its remedies” in light of the
objectives of federal immigration law. Id. at 416. The court declared that
“[w]hen federalism is involved it is necessary to determine whether federal
law has preempted state law.” Id.

¶37 After finding no express or field preemption, the court held it
was not “impossible” for the employer to comply with both the court order
and federal immigration law because federal law did not forbid
employment of undocumented workers. Id. at 416–17. Further, the court
held enforcement of state labor law did not create an obstacle to the
enforcement of federal law because “[a] state court order of reinstatement
does not restrain or limit the ability of the Immigration and Naturalization
Service to deport illegal aliens,” and a mere “speculative and indirect
impact upon” federal immigration policies was insufficient to warrant
preemption of state labor law. Id. at 417. Likewise, here, federal
immigration law does not prohibit state courts from granting divorces to
those whose TD visas have expired, nor does exercising jurisdiction in this
context interfere with the objectives or operation of federal immigration
law.

¶38 The dissent manufactures a conflict between state and federal
law that does not exist, and then demands obeisance to the purported
federal mandate without the requisite preemption analysis that Supreme
Court precedents, our precedents, and the principles of federalism require.
The dissent and Pimienta’s arguments and the authorities they rely upon
miss the forest for the trees: exactly what federal policy or goal would be
frustrated by adjudicating a divorce in these circumstances? Indeed, had
Arizona used residency rather than domicile for divorce jurisdiction
purposes, it would not even arguably present a conflict, though the
consequence would be exactly the same. And if Pimienta was domiciled in

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Opinion of the Court

Arizona and had filed a dissolution petition, Arizona courts would
inarguably have had jurisdiction over Rendon, regardless of her
immigration status. Absent a clear conflict, we will not preemptively
preempt our state’s law.

CONCLUSION

¶39 For the foregoing reasons, we vacate the court of appeals’
opinion, reverse the trial court, and remand for the trial court to decide
whether, under Arizona law, Rendon is domiciled in Arizona.

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Justice Montgomery, joined by Justice King, Dissenting

MONTGOMERY, J., joined by KING, J., dissenting.

¶40 Despite our strong adherence to the principles of federalism,
see, e.g., The Federalist (Alexander Hamilton, John Jay, James Madison)
(Clinton Rossiter ed., 1999), we nonetheless dissent from the majority’s
failure to properly identify the nature of this case and the actual role federal
law serves in disposing of the issues before us. This case does not
necessitate a defense of Arizona’s virtue as a separate sovereign in our
compound republic. Instead, we need only follow our own statutory
requirements informed by the conditions established by the federal
government upon which Rendon entered and remained in this country
since 2007. To paraphrase Iñigo Montoya from The Princess Bride: The
majority keeps calling this a case about federalism, but it is not the
federalism case you think it is. (Act III Communications 1987).

¶41 At its core, this case concerns the statutory requirements
established by the Arizona Legislature that Arizona courts must consider
when assessing jurisdiction over Rendon’s petition for dissolution. Thus,
the consideration of jurisdiction as required by Arizona law concerns
whether an Arizona court has the authority to decide a petition for
dissolution in the first instance, not whether Arizona has the authority to
enforce its laws regarding domestic relations and any conflict with federal
jurisdiction to enforce immigration law. Compare Jurisdiction, Black’s Law
Dictionary (11th ed. 2019) (“1. A government’s general power to exercise
authority over all persons and things within its territory . . . .”), with
Jurisdiction, id. (“2. A court’s power to decide a case or issue a decree . . . .”).
Accordingly, the conclusion that Rendon cannot meet the jurisdictional
requirements established by Arizona law, while due to the terms and
conditions of her visa, are ultimately a consequence of Arizona, not federal
law.

¶42 By not acknowledging the need to establish jurisdiction first,
the majority goes straight to considering whether a conflict exists between
federal immigration law and Arizona’s substantive law of domestic
relations. Well, “have fun storming [that] castle,” The Princes Bride,
Valerie, (Act III Communications 1987), because, as a consequence, the
majority’s entire analysis is flawed from the beginning—from the
misplaced invocation of the presumption against preemption, to the errant
treatment of federal case law, to an inapt reliance on authority from other
jurisdictions and the misapplication of our own cases. Ultimately, given
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Justice Montgomery, joined by Justice King, Dissenting

that Rendon has not demonstrated that she has the legal capacity to change
her domicile from Mexico to Arizona, she cannot meet Arizona’s
jurisdictional requirements and we respectfully must dissent.

I. JURISDICTION AND ARIZONA’S SUBSTANTIVE LAW

A. Jurisdiction In This Case

¶43 Before considering Rendon’s petition and applying Arizona’s
domestic relations law to a marriage dissolution proceeding, the superior
court had to make specific statutory findings. In particular, the court had
to find that “one of the parties, at the time the action was commenced, was
domiciled in this state” and that the domicile “has been maintained for
ninety days before filing the petition for dissolution of marriage.” A.R.S.
§ 25-312(A)(1). See also Gnatkiv v. Machkur, 239 Ariz. 486, 489 ¶ 8 (App. 2016)
(“[T]he trial court must first resolve ‘jurisdictional fact issues’ where a
question of jurisdiction exists . . . .” (quoting Swichtenberg v. Brimer, 171
Ariz. 77, 82 (App. 1991))).

¶44 The distinction between determining jurisdiction to decide a
case and applying the pertinent substantive law is one this Court has
recognized almost since statehood:

Jurisdiction does not relate to the right of the parties, as
between each other, but to the power of the court. The
question of its existence is an abstract inquiry, not involving
the existence of an equity (right) to be enforced, nor the right
of the plaintiff to avail himself of it if it exists. It precedes these
questions . . . . Have the plaintiffs shown a right to the relief
which they seek? and [sic] has the court authority to
determine whether or not they have shown such a right? A
wrong determination of the question first stated is error, but
can be re-examined only on appeal. The other question is the
question of jurisdiction.

Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 313 (1914) (emphasis
added) (quoting People v. Sturtevant, 9 N.Y. 263, 269 (1853)); see also Sil–Flo
Corp. v. Bowen, 98 Ariz. 77, 81 (1965) (“Jurisdiction of the subject-matter is
the power to deal with the general abstract question, to hear the particular
facts in any case relating to this question, and to determine whether or not
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Justice Montgomery, joined by Justice King, Dissenting

they are sufficient to invoke the exercise of that power.” (quoting Foltz v. St.
Louis & S.F. Ry. Co., 60 F. 316, 318 (8th Cir. 1894))).

¶45 Pimienta was not domiciled in Arizona at any relevant time
during these proceedings. Hence, Rendon’s ability to establish domicile is
a necessary condition precedent imposed by Arizona law for the court to
exercise jurisdiction over her petition for dissolution before it could even
consider the application of the relevant substantive law. See Tanner v.
Marwil, 250 Ariz. 43, 46 ¶ 10 (App. 2020) (“The court has subject-matter
jurisdiction over a marriage dissolution only if, at the time the petition for
dissolution is filed, one or both parties have been domiciled in Arizona for
at least 90 days.”). Domicile under Arizona law requires “(1) physical
presence, and (2) an intent to abandon the former domicile and remain here
for an indefinite period of time; a new domicile comes into being when the two
elements coexist.” DeWitt v. McFarland, 112 Ariz. 33, 34 (1975) (quoting
Heater v. Heater, 155 A.2d 523, 524 (D.C. 1959)). Thus, to have subject matter
jurisdiction, the superior court had to find that Rendon had been domiciled
in Arizona for ninety days before the petition for dissolution was filed.

¶46 Pimienta moved to dismiss Rendon’s petition, arguing that
she could not meet the domicile requirement. The parties stipulated that
Rendon entered the United States with a nonimmigrant visa, pursuant to
the North American Free Trade Agreement (“NAFTA”). Specifically,
Rendon was admitted with a TD visa, explicitly conditioned upon her
“having a residence in a foreign country which [s]he has no intention of
abandoning and [was] visiting the United States temporarily for business.”
8 U.S.C. §§ 1101(a)(15)(B), -1184(e)(1) (specifying that “[a]n alien who is a
citizen of Canada or Mexico . . . who seeks to enter the United States”
pursuant to the United States-Mexico-Canada Agreement (“USMCA”),
which has replaced NAFTA and authorizes TD visas, will be classified “as
a nonimmigrant under section 1101(a)(15) of this title”). Consistent with
the visa conditions and as noted by the superior court, Rendon “expressly
stated in her TD [v]isa applications over the course of more than a dozen
years that she did not intend to remain in the United States and instead
intended to return to Mexico.”

¶47 Furthermore, Rendon acknowledged on cross-examination
during the hearing on Pimienta’s motion to dismiss that she understood
that as a TD visa holder—or even as a TN visa holder—she could not

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Justice Montgomery, joined by Justice King, Dissenting

express an intent to be domiciled in Arizona. Consequently, the express
conditions of her TD visa preclude her from possessing the legal capacity
required to change her domicile from Mexico to Arizona. See Texas v.
Florida, 306 U.S. 398, 425 (1939) (“When one intends the facts to which the
law attaches consequences, [s]he must abide the consequences whether
intended or not.”). And a person may only have one domicile at a time. See
Clark v. Clark, 124 Ariz. 235, 237 (1979) (discussing whether domicile
maintained for required timeframe prior to petitioner seeking a divorce).

¶48 A person seeking to establish a new domicile must have the
legal capacity to do so. Ariz. Bd. of Regents v. Harper, 108 Ariz. 223, 228
(1972); see also Restatement (Second) of Conflict of Laws § 15 (Am. L. Inst.
1971). Arizona has long recognized this proposition. See, e.g., In re Sherrill’s
Estate, 92 Ariz. 39, 43 (1962) (“The domicile of a person who becomes insane
remains where it was established at that time. However, if he thereafter
regains the capacity to form an intention to change his domicile, he may do
so . . . .” (internal citations omitted) (emphasis added)); McNeal v. Mahoney, 117 Ariz. 543, 545 (1977) (“The domicile of a minor child . . . is that of the
parent to whom legal custody of the child has been given.”). The
determination of domicile under Arizona law can, therefore, require a legal,
as well as a factual, inquiry. Regardless, the majority errs in concluding
that it is federal immigration law that “create[s] a legal capacity
prerequisite.” Supra ¶ 17.

¶49 Furthermore, in responding to Pimienta’s motion to dismiss,
Rendon had the burden of establishing that she possessed the legal capacity
to change her domicile. See Gnatkiv, 239 Ariz. at 490 ¶ 9 (“The plaintiff bears
the burden of demonstrating the trial court had subject matter
jurisdiction . . . .”); Houghton v. Piper Aircraft Corp., 112 Ariz. 365, 367 (1975)
(“The burden of proof is on the party alleging that a former domicile has
been abandoned in favor of a new one.”); Valley Nat. Bank v. Siebrand, 74
Ariz. 54, 62 (1952) (“It is . . . the rule that: The burden of proof is on one
asserting that an earlier domicile was abandoned in favor of a later one.”).

¶50 To this point, the focus has been on the restrictions imposed
by Rendon’s TD visa, first issued in 2007, and renewed annually until
March of 2020. Since then, Rendon’s TD visa has expired, and she has
remained in the United States without lawful authority. Nothing has
changed since her initial entry into the United States that permits her to

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Justice Montgomery, joined by Justice King, Dissenting

legally change her domicile from Mexico to Arizona. Although her sister
has filed a petition for permanent residence on Rendon’s behalf, the notice
from the United States Customs and Immigration Service acknowledging
receipt of the petition states in bold: “This notice does not grant any
immigration status or benefits,” which the majority fails to acknowledge.
See supra ¶ 5. Rendon has failed to present any legal authority to establish
that she has the legal capacity to change her domicile, even though it is her
burden to make this showing. Thus, Rendon has no greater capacity to
change her domicile today than she did when she first entered the United
States in 2007. 1

¶51 Equally unavailing is Rendon’s argument that by virtue of
overstaying her TD visa and remaining in the country without lawful
authority she is “no longer subject to the statutes that preclude her from
establishing a lawful subjective intent to remain in the country.” As stated
in Park v. Barr, 946 F.3d 1096, 1099 (9th Cir. 2020): “It would be inconsistent
to conclude that Congress sought to preclude nonimmigrants who comply
with federal immigration law from the benefits that flow from state
domiciliary status while permitting nonimmigrants who violate their visa
conditions to share in them.” See also Graham v. INS, 998 F.2d 194, 196 (3d
Cir. 1993) (“If petitioner complied with the terms of his temporary worker
visa, then he could not have had the intent necessary to establish a domicile
in this country. On the other hand, if he did plan to make the United States
his domicile, then he violated the conditions of his visa and his intent was
not lawful. Under either scenario, petitioner could not establish ‘lawful
domicile’ in the United States while in this country on a nonimmigrant,
temporary worker visa.”). Not only is Rendon’s argument problematic as
Park observed, but it is also a perverse proposition that a legal disability can
be removed by violating the very law that imposed it. Rendon offers no
authority to support her proposition, and this Court should decline to
endorse it.

¶52 The superior court was correct in dismissing her petition for
lack of domicile, and therefore lack of jurisdiction. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998) (“Jurisdiction is power to declare the law,

1
Accordingly, because it is the capacity to establish a change in domicile
that matters, not whether the federal government may or may not remove
someone in the United States, the majority’s discussion regarding
deportation is irrelevant to the precise issue before us. Supra ¶ 26 n.1.
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Justice Montgomery, joined by Justice King, Dissenting

and when it ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause.” (quoting Ex parte
McCardle, 74 U.S. 506, 514 (1868))).

B. Jurisdiction In General

¶53 The majority’s argument that the jurisdictional issues are
amenable to the same type of preemption analysis as that of a conflict
between substantive state and federal law assumes its own conclusion and
reflects the misapprehension of the effect of federal immigration law on
jurisdiction in this case. To wit, the majority posits: “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.” Supra ¶ 17. Momentous or not, the characterization
that federal law somehow divests Arizona courts of jurisdiction misses the
point.

¶54 Federal immigration law does not “divest” Arizona courts of
jurisdiction. Instead, it establishes the conditions for certain classifications
of nonimmigrant visa holders to enter the United States, regardless of
Arizona’s substantive law on domestic relations. And because Arizona has
chosen to condition the exercise of a court’s jurisdiction over a petition for
dissolution based on physical presence and domicile, Rendon’s visa
conditions have consequences under Arizona law. The ultimate
consequence to her is not dictated by federal immigration law in the first
instance but is, instead, due to Arizona law. In fact, if Arizona only required
Rendon to reside in Arizona for ninety days and nothing more, jurisdiction
would not be an issue. But Arizona law requires more.

¶55 The cases cited by the majority to conflate consideration of
jurisdiction to decide a case with jurisdiction to impose substantive law
actually help to illustrate the issue. These cases deal with, in the first
instance, conflicts between the substantive law of respective governing
authorities, whether tribal, state, or federal. Supra ¶ 17. Because the
Supreme Court found that the state substantive law was preempted, the
state courts lacked jurisdiction to decide cases under state law. See Haaland
v. Brackeen, 599 U.S. 255, 264–68 (2023) (finding that Congress had authority
to enact the Indian Child Welfare Act which prescribed placement priorities
for foster care and adoption that preempted state law priorities and
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Justice Montgomery, joined by Justice King, Dissenting

prescribed jurisdictional authority); Fisher v. District Court, 424 U.S. 382, 390
(1976) (deciding that Northern Cheyenne Tribe had authority to exercise
jurisdiction over adoption proceedings among its members pursuant to the
Indian Reorganization Act of 1934 enacted by Congress); New Mexico v.
Mescalero Apache Tribe, 462 U.S. 324, 333–34 (1983) (finding that a state’s
efforts to apply hunting and fishing regulations to non-tribal members on
tribal lands preempted by federal law and noting that “a State will certainly
be without jurisdiction if its authority is preempted under familiar principles
of preemption” (emphasis added)). Thus, in these cases, the state court’s
jurisdiction was preempted because federal law prevented the state from
enforcing its substantive law. 2 In the matter before us, federal law informs
the determination of whether Rendon can meet the jurisdictional
requirements that Arizona law establishes. The lack of jurisdiction is not
due to a conflict between federal immigration law and Arizona domestic
relations law. Thus, federal law does not divest Arizona courts of
jurisdiction and the preemption analysis the majority undertakes, in as
much as it considers whether there is a conflict between substantive federal
and state law, is misplaced. Supra ¶¶ 17–28.

II. PREEMPTION

A. Presumption Against Preemption

¶56 The majority’s assertion that this case involves the exercise of
“jurisdiction in an area of law traditionally entrusted to state
determination,” supra ¶ 12, further reflects the failure to distinguish
between determining jurisdiction to decide a case and applying the
substantive law. This failure then leads to a misplaced reliance on the
presumption against preemption as discussed in Varela v. FCA US LLC, 252
Ariz. 451 (2022). Supra ¶ 19.

2
The remaining cases address typical preemption due to a conflict between
substantive bodies of law or are completely inapposite. Brown v. Hotel &
Rest. Emps. & Bartenders Int’l Union Loc. 54, 468 U.S. 491, 494 (1984)
(addressing conflict between the National Labor Relations Act and New
Jersey statutes regulating gambling and the qualifications of union
officials); United States v. Bass, 404 U.S. 336, 349 (1971) (discussing balance
between federal government and the states in the realm of criminal
jurisdiction).
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Justice Montgomery, joined by Justice King, Dissenting

¶57 In Varela, the preemption argument addressed whether the
inaction of a federal regulatory agency precluded a personal injury jury
trial. 252 Ariz. at 457 ¶ 2. Because the case involved tort law, it was an
accurate statement that the “presumption against preemption is
‘particularly’ strong in ‘field[s] which the States have traditionally
occupied.’” Id. at 459 ¶ 13 (alteration in original) (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)) (noting that tort actions are a traditional field
occupied by states). There are important distinctions between Varela and
the matter before us, though.

¶58 First, this case involves a congressional enactment pursuant
to a negotiated treaty between the United States, Canada, and Mexico under
an express, enumerated delegation of authority under the Constitution. See
U.S. Const. art. I, § 8, cl. 303–4 (“The Congress shall have Power . . . [t]o
establish an uniform Rule of Naturalization” and “[t]o regulate Commerce
with foreign Nations.”); 8 U.S.C. §§ 1184(e)(1), -1101(a)(15)(B); see also 8
C.F.R. § 214.6. This is not the kind of assertion of implied preemption due
to the absence of action by a regulatory agency with inferred preemptive
effect.

¶59 Second, the conditions governing the entry and continued
presence of nonimmigrants in the United States—let alone treatymaking in
the case of NAFTA and the USMCA—are not fields in “which the States
have traditionally occupied.” Varela, 252 Ariz. at 459 ¶ 13 (quoting Wyeth,
555 U.S. at 565). The presumption against preemption as discussed in
Varela therefore does not apply here and, in this case, the principles of
federalism are strengthened when state courts decline to exercise authority
precluded by the proper use of powers delegated to the federal
government. 3

3
The need for uniform rules regarding naturalization was noted by James
Madison as one of the shortcomings of the Articles of Confederation. James
Madison, Vices of the Political System of the United States, April 1787 no. 5
(Founders Online, Nat’l Archives 1787) (“Instances of inferior moment are
the want of uniformity in the laws concerning naturalization.”)
https://founders.archives.gov/documents/Madison/01-09-02-0187 (last
visited Mar. 30, 2024).
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Justice Montgomery, joined by Justice King, Dissenting

B. Impossibility Preemption 4

¶60 Although there is no conflict between Arizona’s law of
domestic relations and federal immigration law, the majority has created
one with respect to jurisdiction over Rendon’s petition for dissolution.
Federal law clearly says one thing—Rendon lacks the legal capacity to
change her domicile from Mexico to the United States—and the majority
reasons otherwise. Supra ¶¶ 27–28. But Rendon cannot have the legal
capacity to be domiciled in Arizona and lack the legal capacity to be
domiciled in the United States at the same time. See Aristotle, The
Metaphysics, Book IV 1005b (John H. McMahon trans., Prometheus Books
1991) (concluding that “it is impossible for the same [woman] to suppose at
the same time that the same thing is and is not”). Thus, we clearly have a
case where “it is impossible for [Rendon] to comply with both state and
federal requirements.” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).
Accordingly, the Supremacy Clause dictates that we follow the federal law
that precludes Rendon from changing her domicile to Arizona. See U.S.
Const. art. VI, § 1, cl. 2 (“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” (emphasis added)).

III. OTHER AUTHORITY

¶61 Given the fact that we have not previously considered an
issue like the one before us, it makes sense to consult other jurisdictions that
have addressed a similar issue. See, e.g., Hullett v. Cousin, 204 Ariz. 292, 296
¶ 20 (2003) (noting that where a case is “a matter of first impression for
Arizona, we look to cases from other jurisdictions having similar statutes”).
But the impact of conflating a court’s jurisdiction to consider a case and the
jurisdiction of a governing authority to promulgate applicable substantive
law rears its ugly head once again. Consequently, the majority disregards
cases that are on point with respect to the impact that the conditions of
Rendon’s TD visa have on her capacity to change her domicile and

4
Because impossibility preemption is dispositive, it is not necessary to
analyze the other forms of preemption.
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Justice Montgomery, joined by Justice King, Dissenting

embraces other state cases that neither address capacity in this context nor
reflect our jurisprudential principles.

A. Federal Cases

¶62 In considering the federal cases cited to us, the majority
observes that we are not obligated to follow Ninth Circuit precedent. Supra
¶ 33. Fair enough. But in the same case cited for this point, Weatherford ex
rel. Michael L. v. State, 206 Ariz. 529, 532 ¶ 8 (2003), this Court also noted that
“state courts look first to decisions of the United States Supreme Court.
Although only a decision of the Supreme Court binds a state court on a
substantive federal issue, a number of state supreme courts have elected to
follow, as far as reasonably possible, their federal circuits’ decisions on
questions of substantive federal law.” Id. That makes sense where
“consistent decisions among federal and state courts further predictability
and stability of the law. Therefore, if the Ninth Circuit has announced a
clear rule on an issue of substantive federal statutory law . . . we will look first
to the Ninth Circuit rule in interpreting substantive federal statutory law.” Id.
at 533 ¶ 9 (emphasis added). With respect to this case, the Ninth Circuit
has squarely addressed the issue presented and announced a clear rule of
substantive federal law that also relies on Supreme Court decisions
addressing visa considerations relevant to our case, all of which do “dictate
a contrary result” than the one the majority reaches. Supra ¶ 31.

¶63 Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001), is instructive
regarding the consequences of the conditions of Rendon’s visa on legal
capacity. “The specific question before us, therefore, is the proper
interpretation of section 68062(h), which provides that aliens are eligible for
classification as California residents only if they possess the legal capacity
to establish ‘domicile in the United States’ under federal immigration law.”
Id. at 878. As the court explained, “[t]he TD visa category is for dependents
of TN visa holders.” Id. at 880. “The ‘TN’ visa category was created
pursuant to . . . NAFTA, which provides that ‘[e]ach party shall grant
temporary entry . . . to a business person seeking to engage in a business
activity at a professional level . . . if the business person otherwise complies
with existing immigration measures applicable to temporary entry.’” Id.
(alterations in original) (quoting North American Free Trade Agreement, 32
I.L.M. 605, 664 (1993)). The court then traced the genesis of the language of
the California statute before it to the Supreme Court’s analysis in Toll v.
Moreno, 458 U.S. 1 (1982). Carlson, 249 F.3d at 879. Therein, the Supreme
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Justice Montgomery, joined by Justice King, Dissenting

Court stated, “[w]ith respect to the nonimmigrant class [of the Immigration
and Nationality Act (the “INA”)], the [INA] establishes various
categories . . . . For many of these nonimmigrant categories, Congress has
precluded the covered alien from establishing domicile in the United States.” Toll,
458 U.S. at 13–14 (emphasis added). Rendon is in such a category.

¶64 The Carlson court went on to set forth the specific regulations
covering Rendon’s visa as promulgated by the Attorney General in 8 C.F.R.
§ 214.6(b):

Temporary entry, as defined in the NAFTA, means entry
without the intent to establish permanent residence. The alien
must satisfy the inspecting immigration officer that the
proposed stay is temporary. A temporary period has a reasonable,
finite end that does not equate to permanent residence. In order to
establish that the alien’s entry will be temporary, the alien
must demonstrate to the satisfaction of the inspecting
immigration officer that his or her work assignment in the
United States will end at a predictable time and that he or she
will depart upon completion of the assignment.

Carlson, 249 F.3d at 880 (emphasis added). The court thus concluded that
the plaintiff “lack[ed] the legal capacity to establish domicile in the United
States within the meaning of Elkins and Toll.” Id. at 881 (emphasis added).

¶65 The majority states that the basis for distinguishing Carlson is
that the Ninth Circuit did not engage in a preemption analysis given the
lack of a conflict between state and federal law. Supra ¶ 31. But for the
majority’s error in overlooking Rendon’s lack of a legal capacity to establish
domicile in the first place, we would not have a conflict here either, and it
is only because of the continuing jurisdictional oversight that the majority
overlooks Carlson’s treatment of the same issue of legal capacity that we
have here. See Carlson, 249 F.3d at 878 (quoting a California statute
regarding in-state tuition and concluding that “aliens are eligible for
classification as California residents only if they possess the legal capacity to
establish ‘domicile in the United States’ under federal immigration law”
(emphasis added)).

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Justice Montgomery, joined by Justice King, Dissenting

¶66 The next federal case referenced is also instructive for
considering the import of visa restrictions. Park considered the restrictions
of a B-2 visa, similar to Rendon’s TD visa, that “requires nonimmigrants to
maintain a residence in their country of citizenship with no intention of
abandoning it.” 946 F.3d at 1099 (citing 8 U.S.C. § 1101(a)(15)(B)). Park goes
on to reason: “It follows that Congress has not permitted B-2
nonimmigrants to lawfully form a subjective intent to remain in the United
States; such an intent would inescapably conflict with Congress’s definition
of the nonimmigrant classification.” Id. In support of this conclusion, Park
cited Elkins v. Moreno, 435 U.S. 647 (1978), and Toll, 458 U.S. at 14 & n.20.
Park, 946 F.3d at 1099. It behooves us to consider Elkins, as well.

¶67 Elkins arose from the University of Maryland’s denial of
in-state tuition to students who were in the United States as G-4 visa
holders. 5 435 U.S. at 652–54. The Supreme Court characterized the main
issue as “whether, as a matter of federal and Maryland law, G-4 aliens can
form the intent necessary to allow them to become domiciliaries of
Maryland.” Id. at 658. With respect to federal law, the Supreme Court
initially addressed the nature of a G-4 visa and stated, “it is clear that
Congress did not require G-4 aliens to maintain a permanent residence
abroad or to pledge to leave the United States at a date certain.” Id. at 664
(emphasis added). Accordingly, the Court concluded: “Under present law,
therefore, were a G-4 alien to develop a subjective intent to stay indefinitely
in the United States he would be able to do so without violating either the
1952 Act, the Service’s regulations, or the terms of his visa.” Id. at 666.

¶68 Nevertheless, the Supreme Court made it clear that
nonimmigrants cannot establish domicile where “Congress expressly
conditioned admission . . . on an intent not to abandon a foreign residence,”
which is the situation before us with the TD visa. 435 U.S. at 665; see also
Toll, 458 U.S. at 14 & n.20 (citing the nonimmigrant classification described
at § 1101(a)(15)(B) as one in which “Congress has precluded the covered
alien from establishing domicile in the United States”); Gaudin v. Remis, 379
F.3d 631, 636–38 (9th Cir. 2004) (concluding citizen of Canada who

5 A G-4 visa is a “nonimmigrant visa granted to ‘officers, or employees
of . . . international organizations, and the members of their immediate
families’ pursuant to 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.).” Elkins, 435
U.S. at 652 (alteration in original).
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Justice Montgomery, joined by Justice King, Dissenting

possessed a nonimmigrant visa pursuant to 8 U.S.C. § 1101(a)(15)(B) could
not, as a matter of law, permanently relocate to the United States).

¶69 Park’s analysis and that of the Supreme Court are readily
applicable and pertinent to the facts before us and support the conclusion
that Rendon failed to meet her burden that she possessed the legal capacity
to establish domicile in Arizona. If she possessed a visa like the G-4 visa,
then she would have the legal capacity to change her domicile and an
Arizona court would then be able to exercise jurisdiction over her petition.
Rather than “simply concluding that state law was displaced by federal law
with which the court deemed it to conflict” or having engaged in a “cursory
approach,” supra ¶¶ 33–34, Park engaged in a thoughtful review of the issue
before it and of relevant Supreme Court case law, and we should follow it.

B. State Court Cases

¶70 Instead of following applicable federal cases, the majority
embraces other state court cases supporting the conclusion “that federal
immigration law does not deprive them of jurisdiction over divorce.” Supra
¶ 30. As previously discussed, whether federal immigration law impacts a
state’s jurisdiction over divorce has more to do with what the state requires
for jurisdiction rather than any overt requirement of federal immigration
law. Nonetheless, not a single case discussed or even acknowledged the
legal capacity issue and none of them addressed the conditions of a TD visa.
Given the myriad issues in these cases and for the following stated reasons,
we would be wise to reject them.

¶71 Two cases illustrate best the issues with reliance on other state
cases. The first, In re Marriage of Dick, 18 Cal. Rptr. 2d 743, 746 (Ct. App.
1993), asserted that, pursuant to California law regarding jurisdiction for
divorce cases, “residency is synonymous with domicile, the latter term
meaning ‘both the act of residence and an intention to remain.’” This Court,
however, has not conflated residency with domicile in the domestic
relations context. In fact, we have clearly stated that domicile and residence
are distinct requirements. See Clark, 124 Ariz. at 237 (“Domicile is primarily
a state of mind combined with actual physical presence in the state. Either,
without the other, is insufficient.” (emphasis added) (quoting Harper, 108
Ariz. at 228)). Mere residence is not enough.

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Justice Montgomery, joined by Justice King, Dissenting

¶72 Additionally, conflating residency with domicile confuses
rather than clarifies the distinct requirements for jurisdiction in Arizona
courts. See Brandt v. Brandt, 76 Ariz. 154, 158 (1953) (“‘Residence’ and
‘domicile’ are not synonymous at common law, nor does the one term
necessarily include the other. Saying that residence is not a jurisdictional
prerequisite is not equivalent to saying that domicile is not essential to a
valid decree.”). There is no reason for us to countenance such confusion.
See, e.g., Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 310 ¶ 13 (2003)
(acknowledging the problem caused by “[t]he inconsistent use of . . . ‘lack
of informed consent,’ . . . and ‘lack of consent,’” and that it “blurred the
distinction between” the two); State v. Green, 248 Ariz. 133, 136 ¶ 12 (2020)
(addressing wide and varied interpretations of statute governing probation
for drug possession offenses); Satamian v. Great Divide Ins., 545 P.3d 918, 930
¶ 37 (Ariz. 2024) (addressing accrual of claims and noting that “Arizona’s
accrual jurisprudence has not been a paragon of clarity”).

¶73 Finally, the majority highlights the Dick court’s finding that
its conclusion was “buttressed by the different aims and purposes of
immigration and dissolution law,” concluding that the former does not
preclude the latter when the parties “otherwise meet domiciliary
requirements and when they are subject to the courts of this state for other
purposes.” Supra ¶ 30 (quoting 18 Cal. Rptr. 2d at 748). But this conclusion
and its rationale are problematic because to “otherwise meet domiciliary
requirements” given “the different aims and purposes of immigration and
dissolution law” disregards the distinction between jurisdiction to hear a
case and the substantive law to apply in deciding the case. See supra ¶ 30.
Given our own recognition of the jurisdictional inquiry distinction, there is
no reason for us to follow the rationale or conclusion of Dick or the cases it
relied on. See 18 Cal. Rptr. 2d at 747–48. 6 Instead, this Court should adhere

6 Additionally, one of the cases In re Dick relied on, Cocron v. Cocron, 375

N.Y.S.2d 797 (Sup. Ct. 1975), is no longer good law. The case was
superseded by statute as stated in Unanue v. Unanue, 141 A.D.2d 31 (N.Y.
App. Div. 1988). Therein, the court explained that “residence” as used in
the state’s divorce jurisdiction statute had been interpreted to be
synonymous with the term “domicile,” as recognized in Cocron. Unanue,
141 A.D.2d at 37. However, the court noted that “the bulk of cases so
holding” were decided prior to certain amendments to the state’s domestic
relations laws. Id. The court then noted with approval that following the

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Justice Montgomery, joined by Justice King, Dissenting

to its own assertion that “Congress has the ultimate say in immigration
matters and Arizona is bound under the Supremacy Clause of the United
States Constitution to follow federal law.” Ariz. ex rel. Brnovich v. Maricopa
Cnty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 543 ¶ 18 (2018).

¶74 The second case, In re Marriage of Pirouzkar, 626 P.2d 380 (Or.
Ct. App. 1981), also cited by Dick, 18 Cal. Rptr. 2d at 747, is no more helpful.
The statute in question provided: “When the marriage was not solemnized
in this state . . . at least one party must be a resident of or be domiciled in
this state at the time the suit is commenced and continuously for a period
of six months prior thereto.” Pirouzkar, 626 P.2d at 381 (emphasis added)
(quoting O.R.S. § 107.075(2)). Rather than apply the plain meaning of the
words of the statute, the court traced the history of interpreting its language
to conclude: “When jurisdiction is dependent upon domicile our statutes
have generally used the words ‘resident’ or ‘inhabitant’ and it has been
uniformly held that these words, when used in such statutes, are
synonymous with ‘domicile.’” Id. at 382 (quoting Fox v. Lasley, 318 P.2d 933
(Or. 1957)). But resident and domicile are not synonymous for determining
jurisdiction under Arizona law. Notably, though, the Pirouzkar court also
stated that it had not been presented with any authority to conclude “that
federal immigration law prevents the states from allowing [nonimmigrant
visa holders] such as that of [the] wife in this case to establish a domicile of
choice in this country.” 626 P.2d at 383. We have been presented with such
authority. See Part II(A) ¶¶ 46–47.

IV. OTHER CONCERNS

¶75 The majority expresses other concerns and raises points
regarding other areas of the law, previously decided cases, and the
complexities of federal immigration law. None of these concerns, though,
justify overlooking the effect of Rendon’s lack of legal capacity on the
determination of jurisdiction and her failure to meet her burden to establish
jurisdiction.

amendments, courts had “declined to equate residency . . . with domicile”
and were “adhering to the literal definition of residence.” Id. at 37–38.
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Justice Montgomery, joined by Justice King, Dissenting

A. Superior Court Competence

¶76 In addressing impossibility preemption, the majority also
expresses concern regarding the need for the superior court to determine
immigration status and notes that “[a] legal determination of immigration
status by the family court is not commanded by either state or federal law.”
Supra ¶ 28. Although it is true that federal law does not “command” an
Arizona court to determine Rendon’s immigration status, Arizona law does
require, as discussed above, a superior court to make findings regarding
domiciliary intent to establish jurisdiction, which may involve an inquiry
such as the one before us. But fear not. The task before the court is nothing
like the three terrors of the fire swamp. See The Princess Bride (depicting
flame spurts, lightning sand, and rodents of unusual size). All a court need
do, as the superior court did in this very case, is consider the relevant
evidence to determine whether it has jurisdiction. 7 See, e.g., Seafirst Corp. v.
Ariz. Dep’t of Revenue, 172 Ariz. 54, 56 (Tax Ct. 1992) (noting that in a
challenge to subject matter jurisdiction, “the Court should receive such
evidence as is necessary to permit the Court to determine the merits of the
motion”).

¶77 In particular, the superior court here was able to read, just as
we can, the relevant statutes and consider the parties’ stipulation regarding
the nature and conditions of Rendon’s TD visa. The court was also able to
read “Exhibit 9,” admitted in the hearing on the motion to dismiss, which
was the notice from the United States Customs and Immigration Service
acknowledging receipt of Rendon’s sister’s petition that stated in bold:
“This notice does not grant any immigration status or benefits.” The court
was fully capable of ascertaining the relevant information to render its
decision.

B. Other Areas of Law

¶78 The majority also expresses concern that finding Rendon
unable to establish domicile in this case “could impact other areas of
Arizona law,” but does not give any explanation of what the impact might

7 Arizona law requires consideration of similar issues in other contexts. See,

e.g., A.R.S. § 46-140.01 (requiring “agenc[ies] of this state and all of its
political subdivisions” to “verify the immigration status” of applicants for
certain state and local public benefits).
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Justice Montgomery, joined by Justice King, Dissenting

be. Supra ¶ 29 (emphasis added). Nevertheless, each statute or case
referenced is not in any way negatively impacted by a determination that
Rendon lacks the legal capacity to establish domicile in Arizona due to her
former visa status and because she failed to provide any legal authority that
allows her to establish legal capacity and change domicile. See A.R.S.
§ 14-2401 (“This article applies to the estate of a decedent who dies
domiciled in this state.”); A.R.S. § 14-2711(A) (referring to “the intestate
succession law of the designated individual’s domicile”); Bryant v.
Silverman, 146 Ariz. 41, 42 (1985) (discussing conflict of laws analysis in a
wrongful death case and stating that “this Court has adopted the rules
embodied in the Restatement (Second) of Conflicts (1971) to analyze and
solve conflicts problems arising in Arizona”); Maricopa County v. Trs. of Ariz.
Lodge No. 2, F. & A. M., 52 Ariz. 329, 338 (1938) (“It is well settled that the
situs of intangibles for purposes of taxation is the domicile of the owner and
not that of the debtor.”); Oglesby v. Pac. Fin. Corp. of Cal., 44 Ariz. 449, 453
(1934) (noting “that the situs of shares of stock in a corporation is the
domicile of the owner of the shares”). Denying jurisdiction due to a lack of
legal capacity does not affect the operation of the law for any of the statutes
or cases cited.

C. Previous Arizona Cases

¶79 The majority addresses several prior Arizona cases to support
its analysis and conclusion. These cases are not helpful in deciding the issue
before us. None of the cases had occasion to consider the discrete issue of
legal capacity to change one’s domicile.

¶80 In St. Joseph’s Hospital and Medical Center v. Maricopa County, 142 Ariz. 94 (1984), the contention was that the unlawful presence of three
individuals who received medical care relieved Maricopa County of the
obligation to pay for indigent emergency medical treatment. Id. at 97–98.
In analyzing whether someone present in Arizona without lawful authority
could qualify for indigent medical treatment, the Court noted that to
qualify, “the patient [had to] be indigent and ‘a resident of the county for the
preceding twelve months.’” Id. at 98 (emphasis added) (quoting A.R.S.
11-297(A) (1973)). 8 Thus, the need to establish domicile, let alone the legal

8 The Court noted that the Supreme Court had previously held the
durational aspect of the residency requirement unconstitutional in Memorial
Hospital v. Maricopa County, 415 U.S. 250 (1974). St. Joseph’s, 142 Ariz. at 100.
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 IN RE THE MARRIAGE OF QUIJADA AND DOMINGUEZ
Justice Montgomery, joined by Justice King, Dissenting

capacity to change it, was not at issue. Accordingly, this Court’s discussion
of residence and domicile as interchangeable terms is classic dicta. A plain
reading of the statutory requirement did not include any reference, implied
or otherwise, to domicile and was not necessary to determine the issue. See
Barrows v. Garvey, 67 Ariz. 202, 206 (1948) (“Statements and comments in an
opinion concerning some rule of law or legal proposition not necessarily
involved nor essential to determination of the case in hand are obiter dicta,
and lack the force of an adjudication.” (quoting Obiter Dictum, Black’s Law
Dictionary, 575 (3d ed. 1933))). That the majority relies on this case, supra
¶ 34, is akin to suffering “a nice paper cut and pour[ing] lemon juice on it.”
The Princess Bride, Miracle Max.

¶81 The reliance on Reed-Kaliher v. Hoggatt, 237 Ariz. 119 (2015), is
likewise unhelpful because the preemption analysis comparing the Arizona
Medical Marijuana Act and the federal Controlled Substances Act is
inapposite to the facts of this case, as is the conclusion regarding
preemption. Id. at 124–25 ¶¶ 19–23.

¶82 Finally, Ariz. Farmworkers Union v. Phx. Vegetable Distribs., 155
Ariz. 413 (App. 1986), is not helpful for the majority’s argument. In
concluding that “[n]either the language of the INA nor legislative history
indicates that Congress intended to preempt enforcement of state
agricultural labor laws,” the court went on to quote De Canas v. Bica, 424
U.S. 351, 359 (1976): “[t]he central concern of the INA is with the terms and
conditions of admission to the country and the subsequent treatment of
aliens lawfully in the country.” Ariz. Farmworkers, 155 Ariz. at 416
(alteration in original). Accordingly, the trial court’s order of reinstatement
“does not actually conflict with federal law. Under the INA, employers are
not prohibited from employing undocumented aliens, even those subject to
a final order of deportation or awaiting voluntary departure. Thus, an
employer can reinstate [such] worker without violating the INA.” Id. at 417
(emphasis added). 9 Thus, unlike what occurs here with the assertion of

9 Additionally, the federal law at issue in Arizona Farmworkers is no longer

good law. See Kansas v. Garcia, 589 U.S. 191, 195 (2020) (“With the enactment
of [the Immigration Reform and Control Act of 1986 (IRCA)], Congress took
a different approach. IRCA made it unlawful to hire an alien knowing that
he or she is unauthorized to work in the United States. 8 U.S.C.
§§ 1324a(a)(1)(A), (h)(3).”).
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 IN RE THE MARRIAGE OF QUIJADA AND DOMINGUEZ
Justice Montgomery, joined by Justice King, Dissenting

jurisdiction over Rendon’s petition for dissolution, the action by the
superior court did not in any way conflict with federal immigration law.

V. CONCLUSION

¶83 Rendon has failed to establish that she has the legal capacity
under federal law to establish domicile in the United States, and therefore
she cannot legally be domiciled in Arizona. She cannot meet her burden of
establishing jurisdiction for an Arizona court to consider her petition for
dissolution. We would therefore find that the court of appeals erred with
respect to the three issues presented, vacate the court of appeals’ opinion,
and affirm the trial court’s judgment dismissing the matter.

34