Alien (law)

In law, an alien is any person (including an organization) who is not a citizen or a national of a specific country,[1][2][3][4] although definitions and terminology differ to some degree depending upon the continent or region of Earth. More generally, however, the term "alien" is perceived as synonymous with foreign national.[5]

LexicologyEdit

The term "alien" is derived from the Latin alienus, meaning stranger, foreign, etym. "belonging (somewhere) else".[citation needed] Similar terms to "alien" in this context include foreigner and lander.[6]

CategoriesEdit

Different countries around the world use varying terms for aliens. The following are several types of aliens:

  • a legal alien is any foreign national who is permitted under the law to be in the host country. This is a very broad category which includes travel visa holders or foreign tourists, registered refugees, temporary residents, permanent residents, and those who have relinquished their citizenship and/or nationality.[7]
    • a nonresident alien is any foreign national who is lawfully staying in the country for a short time such as for pleasure, for studies, for business, for special training courses, to visit family or friends, to receive medical treatment, to attend a conference or a meeting, as entertainers or sportspeople, etc.[citation needed]
    • a temporary resident alien is any foreign national who has been lawfully granted permission by the government to drive, fly, travel, lodge, reside, study or work for a specific number of years and then apply for an extension or leave the country before such permission expires.[8]
    • a permanent resident alien is any legal immigrant who has been lawfully granted permission by the government to drive, fly, travel, lodge, reside, study, work, own property, invest money, operate a business, enlist in the military, purchase and possess a firearm, pay taxes, receive certain government benefits, be entombed and so forth in the country.[9][10][11][12]
  • an illegal alien is any foreign national who either entered the country without the government's permission or is found in the country without a legal immigration-related documentation.[13][14] In some countries it encompasses an alien who entered the country lawfully but subsequently fallen out of that legal status.[15][16]
  • an alien enemy (or an enemy alien) is any foreign national of any country that is at war with the host country.[17][18]

Common law jurisdictionsEdit

An "alien" in English law denoted any person born outside of the monarch's dominions and who did not owe allegiance to the monarch. Aliens were not allowed to own land and were subject to different taxes to subjects.[19] This idea was passed on in the Commonwealth to other common law jurisdictions.

AustraliaEdit

In Australia, citizenship is defined in the Australian nationality law. Non-citizens in Australia are permanent residents, temporary residents, or illegal residents (technically called "unlawful non-citizens").[20] Most non-citizens (including those who lack citizenship documents) traveling to Australia must obtain a visa prior to travel. The only exceptions to the rule are holders of New Zealand passports and citizenship, who may apply for a visa on arrival according to the Trans-Tasman Travel Arrangement.[21]

In 2020, in Love v Commonwealth, the High Court of Australia ruled that Aboriginal Australians (as defined in Mabo v Queensland (No 2)) cannot be considered aliens under the Constitution of Australia, regardless of whether they were born in Australia or hold Australian citizenship.[22][23][24]

CanadaEdit

In Canada, the term "alien" is not used in federal statutes. Instead, the term "foreign national" serves as its equivalent and is found in legal documents. The Immigration and Refugee Protection Act defines "foreign national" as "a person who is not a Canadian citizen or a permanent resident, and includes a stateless person."[25]

United KingdomEdit

In the United Kingdom, the British Nationality Act of 1981 defines an alien as a person who is not a British citizen, a citizen of Ireland, a Commonwealth citizen, or a British protected person.[26] The Aliens Act of 1905, the British Nationality and Status of Aliens Act of 1914 and the Aliens Restriction (Amendment) Act of 1919 were all products of the turbulence in the early part of the 20th century.

United StatesEdit

Under the Immigration and Nationality Act (INA) of the United States, "[t]he term 'alien' means any person not a citizen or national of the United States."[27][2][4] Certain green card holders who are not removable under the INA (i.e., not inadmissible under 8 U.S.C. § 1182(a)[28]) could at any time and anywhere in the world lawfully claim to being non-citizen nationals of the United States (Americans).[29][30] This is especially true if such non-removable "legal immigrants" were originally admitted as small children and/or stateless refugees under 8 U.S.C. § 1157(c),[31][32][33][11] which basically means that they have no country (other than the United States) to reside in permanently,[12] and also cannot lawfully obtain a passport of any country other than the United States.[34][35][36] Such legal claim must be plausible and not frivolous because anyone who knowingly makes a false United States citizenship or nationality claim can be prosecuted and even removed from the country.[37]

The correct alternative for "aliens" is "non-U.S. nationals ([or non-Americans])."[38][36][39][40] The usage of the term "alien" dates back to 1798, when it was used in the Alien and Sedition Acts.[41] Although the INA provides no overarching explicit definition of the term "illegal alien", it is mentioned in a number of provisions under title 8 of the US code.[13] Several provisions even mention the term "unauthorized alien".[42] According to PolitiFact, the term "illegal alien" occurs in federal law, but does so scarcely.[43] PolitiFact opines that, "where the term does appear, it's undefined or part of an introductory title or limited to apply to certain individuals convicted of felonies."[43]

Since the U.S. law says that a corporation is a person,[4] the term alien is not limited to natural humans because what are colloquially called foreign corporations are technically called alien corporations. Because corporations are creations of local state law, a foreign corporation is an out-of-state corporation.

There are a multitude of unique and highly complex U.S. domestic tax laws and regulations affecting the U.S. tax residency of foreign nationals, both nonresident aliens and resident aliens, in addition to income tax and social security tax treaties and Totalization Agreements.[44]

"Alienage," i.e., citizenship status, has been prohibited since 1989 in New York City from being considered for employment, under that town's Human Rights legislation.[45][46]

Other jurisdictionsEdit

Arab statesEdit

In the Arab states of the Persian Gulf (United Arab Emirates, Saudi Arabia, Kuwait, Oman, Bahrain, Qatar, etc.), many non-natives (foreigners) have lived in the region since birth or since independence. However, these Arab states of the Persian Gulf do not easily grant citizenship to the non-natives.[47][48][49] Most stateless Bedoon in Kuwait belong to indigenous northern tribes.[50]

LatviaEdit

On Latvian passports, the mark nepilsoņi (alien) refers to non-citizens or former citizens of the Soviet Union (USSR) who do not have voting rights for the parliament of Latvia but have rights and privileges under Latvian law and international bilateral treaties, such as the right to travel without visas to both the European Union and Russia, where latter is not possible for Latvian citizens.

See alsoEdit

ReferencesEdit

This article is in most part based on the law of the United States, including statutory and latest published case law.

  1. ^ "Alien". Britannica. Retrieved February 12, 2021. Alien, in national and international law, a foreign-born resident who is not a citizen by virtue of parentage or naturalization and who is still a citizen or subject of another country.
  2. ^ a b Garner, Bryan A. (June 25, 2009). alien (9th ed.). Black's Law Dictionary. p. 84. ISBN 978-0-314-19949-2. Retrieved August 17, 2018. A person who resides within the borders of a country but is not a citizen or subject of that country; a person not owing allegiance to a particular nation. - In the United States, an alien is a person who was born outside the jurisdiction of the United States, who is subject to some foreign government, and who has not been naturalized under U.S. law.
  3. ^ "alien". law.academic.com. Retrieved August 17, 2018.
  4. ^ a b c 8 U.S.C. § 1101(b)(3) ("The term 'person' means an individual or an organization.")
  5. ^ 52 U.S.C. § 30121(b) (explaining that "the term 'foreign national' means—.... (2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8.").
  6. ^ Van Houtum, Henk. "The mask of the border." The Routledge Research Companion to Border Studies. Routledge, 2016. 71-84.
  7. ^ 8 U.S.C. § 1481 ("Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions")
  8. ^ "Conditional Permanent Residence". USCIS. Retrieved February 10, 2021.
  9. ^ "The body of an Iraqi man who died shortly after ICE deported him has returned to the US for burial". CNN. September 1, 2019. Retrieved February 16, 2021.
  10. ^ 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.")
  11. ^ a b Federal Register Vol. 60, No. 28, at 7888 (Feb. 10, 1995) ("Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General ... and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment....") (emphasis added) (quoting U.S. President Bill Clinton).
  12. ^ a b Leslie v. Attorney General, 611 F.3d 171, 181 & n.5   This article incorporates text from this source, which is in the public domain. (3d Cir. 2010); see also New Way Forward Act, Title VII—Right To Come Home, at pp. 25-28, H.R. 5383 - 116th Congress (2019-2020) (bill was introduced on Dec. 10, 2019, but is not yet the law).
  13. ^ a b See, e.g., 8 U.S.C. § 1252c(a)(1); 8 U.S.C. § 1330(b)(3)(A)(iii); 8 U.S.C. § 1356(r)(3)(ii); 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully...."); 8 U.S.C. § 1366; United States v. Torres, 911 F.3d 1253   This article incorporates text from this source, which is in the public domain. (9th Cir. 2019).
  14. ^ "Immigration Terms and Definitions Involving Aliens". United States: Internal Revenue Service (IRS). Retrieved July 3, 2016.
  15. ^ "Homeland Security: More than 600,000 foreigners overstayed U.S. visas in 2017". USA Today. August 7, 2018. Retrieved October 16, 2018.
  16. ^ "DHS: 700K-plus Overstayed US Visas Last Year". Voice of America (VOA). August 7, 2018. Retrieved October 16, 2018.
  17. ^ "alien enemy". law.academic.com. Retrieved February 12, 2021.
  18. ^ 8 U.S.C. § 1442 ("Alien enemies"); 18 U.S.C. § 757 ("Prisoners of war or enemy aliens")
  19. ^ William Blackstone, Commentaries on the Laws of England (1753), Book 1, Chapter 10
  20. ^ Key Issue 5. Citizenship Fact Sheet 5.2 Citizenship in Australia Retrieved 2012-03-05.
  21. ^ "Australia's Visitor and Temporary Entry Provisions" (PDF). Joint Standing Committee on Migration, Parliament of Australia. September 27, 1999. Archived from the original (PDF) on June 29, 2011. Retrieved July 20, 2011.
  22. ^ "High Court rules Aboriginal Australians cannot be 'aliens' under the constitution". SBS News. February 11, 2020.
  23. ^ Karp, Paul (February 11, 2020). "High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported". the Guardian. Retrieved February 11, 2020.
  24. ^ Byrne, Elizabeth; Robertson, Josh (February 11, 2020). "Man released from detention as High Court rules Aboriginal people cannot be deported". ABC News. Australian Broadcasting Corporation. Retrieved February 11, 2020.
  25. ^ Immigration and Refugee Protection Act (S.C. 2001, c. 27)
  26. ^ section 51, British Nationality Act 1981
  27. ^ 8 U.S.C. § 1101(a)(3); 8 U.S.C. § 1101(a)(22) ("The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."); United States v. Morin, 80 F.3d 124, 126   This article incorporates text from this source, which is in the public domain. (4th Cir. 1996) ("Citizenship, however, is not the sine qua non of 'nationality.'"); Ricketts v. Attorney General, 897 F.3d 491, 494 n.3   This article incorporates text from this source, which is in the public domain. (3d Cir. 2018) ("Citizenship and nationality are not synonymous. While all citizens are nationals, not all nationals are citizens."); Jennings v. Rodriguez, 138 S.Ct. 830, 855   This article incorporates text from this source, which is in the public domain. (2018) (plurality) ("The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings.") (citation and internal quotation marks omitted); see also Tuaua v. United States, 788 F.3d 300, 302   This article incorporates text from this source, which is in the public domain. (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2461 (2016) .
  28. ^ Barton v. Barr, 140 S. Ct. 1442, 1453   This article incorporates text from this source, which is in the public domain. (2020); Matter of H-N-, 22 I&N Dec. 1039, 1040-45   This article incorporates text from this source, which is in the public domain. (BIA 1999) (en banc); Matter of Michel, 21 I&N Dec. 1101, 1104   This article incorporates text from this source, which is in the public domain. (BIA 1998) (en banc); 8 U.S.C. § 1181; 8 U.S.C. § 1101(a)(13)(C)(v). See also 8 U.S.C. § 1101(f) ("In the case of an alien who makes a false statement or claim of citizenship... if each natural parent of the alien ... is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16... no finding that the alien is, or was, not of good moral character may be made based on it.").
  29. ^ 8 C.F.R. 1003.2(c)(3) ("The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:... (vi) Filed based on specific allegations, supported by evidence, that the respondent is a United States citizen or national...."). See also, generally 8 U.S.C. § 1503; 8 U.S.C. § 1452; 8 U.S.C. § 1442; 8 U.S.C. § 1436; 8 U.S.C. § 1433(a); 8 U.S.C. § 1431(a); 8 U.S.C. § 1408(4); 8 U.S.C. § 1252(b)(5); 18 U.S.C. § 611(c); 18 U.S.C. § 1015(f); 8 C.F.R. § 239.2(a)(1); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462   This article incorporates text from this source, which is in the public domain. (A.G. 2018); Matter of Douglas, 26 I&N Dec. 197   This article incorporates text from this source, which is in the public domain. (BIA 2013); Abdulla v. Attorney General, 971 F.3d 409, 412   This article incorporates text from this source, which is in the public domain. (3d Cir. 2020). But see Fernandez v. Keisler, 502 F.3d 337   This article incorporates text from this source, which is in the public domain. (4th Cir. 2007) (case about "criminal and removable" green card holder who unsuccessfully claimed in the lower federal courts that he was a non-citizen U.S. national pursuant to 8 U.S.C. § 1101(a)(22)(B)); Salim v. Ashcroft, 350 F.3d 307   This article incorporates text from this source, which is in the public domain. (3d Cir. 2003) (same).
  30. ^ ICE: Facilitating the Return to the United States of Certain Lawfully Removed Aliens; Nken v. Holder, 556 U.S. 418, 435   This article incorporates text from this source, which is in the public domain. (2009); Addo v. Barr, 982 F.3d 1236, 1268 n.4   This article incorporates text from this source, which is in the public domain. (10th Cir. 2020); Igiebor v. Barr, 981 F.3d 1123, 1128   This article incorporates text from this source, which is in the public domain. (10th Cir. 2020); Bonilla v. Lynch, 840 F.3d 575, 589-90 n.11   This article incorporates text from this source, which is in the public domain. (9th Cir. 2016); Orabi v. Attorney General, 738 F.3d 535, 538   This article incorporates text from this source, which is in the public domain. (3d Cir. 2013).
  31. ^ "U.S. citizen mistakenly put in deportation proceedings finally returns to America". NBC News. February 4, 2020. Retrieved February 3, 2021.
  32. ^ "Cambodian refugee who advocates say was wrongly deported returns to U.S." NBC News. February 28, 2020. Retrieved February 3, 2021.
  33. ^ "First Cambodian to return after deportation inspires others after gaining U.S. citizenship". NBC News. July 16, 2020. Retrieved February 3, 2021.
  34. ^ "The first Cambodian deportee to return to the U.S. just became a citizen in Sacramento". The Sacramento Bee. July 3, 2020. Retrieved February 3, 2021. But what he's most looking forward to is getting a passport. Once the danger of the coronavirus pandemic subsides, he'll be on a plane. He'll even go back to Cambodia, just to remember and reflect on what he's been through.
  35. ^ 22 U.S.C. § 212 ("Persons entitled to passport"); Lyttle v. United States, 867 F.Supp.2d 1256, 1273   This article incorporates text from this source, which is in the public domain. (M.D. Ga. 2012) ("Lyttle arrived in Guatemala and located the U.S. Embassy in Guatemala City. An employee at the embassy ... arranged for copies of Lyttle's adoption records to be sent to the embassy and then printed and issued him a U.S. passport within twenty-four hours.")
  36. ^ a b "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved February 8, 2021.
  37. ^ 18 U.S.C. § 1015; United States v. Mendoza-Gonzalez, 520 F.3d 912, 914   This article incorporates text from this source, which is in the public domain. (8th Cir. 2008); United States v. Moreno, 727 F.3d 255, 257   This article incorporates text from this source, which is in the public domain. (3d Cir. 2013); Ricketts v. Attorney General, 955 F.3d 348, 350 n.4   This article incorporates text from this source, which is in the public domain. (3d Cir. 2020); Matter of Zhang, 27 I&N Dec. 569, 571   This article incorporates text from this source, which is in the public domain. (BIA 2019).
  38. ^ Smith, Hillel R. (January 22, 2021). "Reinstatement of Removal: An Introduction". Congressional Research Service. Retrieved February 2, 2021.
  39. ^ "How a weird law gives one group American nationality but not citizenship". GlobalPost. Public Radio International. October 11, 2014. Retrieved February 12, 2021.
  40. ^ "U.S. nationals born in American Samoa sue for citizenship". NBC News. March 28, 2018. Retrieved February 12, 2021. People born in American Samoa are labeled U.S. 'nationals.' They cannot vote, run for office, and apply for certain government jobs, among other restrictions.
  41. ^ "Alien and Sedition Acts". Ourdocuments.gov. Retrieved November 23, 2011.
  42. ^ 8 U.S.C. § 1324a(h)(3)
  43. ^ a b "Is 'illegal alien' a term in federal law?". @politifact. Retrieved February 26, 2019.
  44. ^ "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
  45. ^ Tyler Blint-Welsh (September 25, 2019). "New York City Employers Who Say 'Go Back to Your Country' Could Face Fines". The Wall Street Journal. Retrieved September 30, 2019. Since 1989, the city's human-rights law has banned discrimination based on citizenship status or "alienage" in employment, housing and public accommodations.
  46. ^ "The protected classes covered under the New York City Human Rights Law are: Age Alienage or Citizenship Status" https://www1.nyc.gov/site/cchr/law/in-housing.page
  47. ^ Habboush, Mahmoud. "Call to naturalise some expats stirs anxiety in the UAE".
  48. ^ "Say no to expats calling for Saudi citizenship". November 24, 2013.
  49. ^ "GCC Citizenship Debate: A Place To Call Home - Gulf Business". January 5, 2014.
  50. ^ "Middle East The Bedoons: Kuwait's stateless minority". Deutsche Welle. July 21, 2019.

External linksEdit