Alien (law)

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In law, an alien is a person who is not a citizen or national of a given country,[1][2] though definitions and terminology differ to some degree depending on the continent or region of the world. The term "alien" is synonymous to "foreign national".[3]

Lexicology[edit]

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.[4]

Categories[edit]

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

  • a legal alien is a foreign national who is permitted by law to be in the host country. This is a very broad category which includes permanent residents]], temporary residents, and visa holders or foreign visitors.
    • a resident alien is a person who has permission by the government to reside and work in the country.[5]
    • a nonresident alien is a foreign national who is visiting a country as a tourist (e.g., for pleasure, for studies, on business, to receive medical treatment, to attend a conference or a meeting, as entertainers or sportspeople, and so forth).[citation needed]
  • an illegal alien is any foreign national inside a country where he or she has no legal right to be.[6] It covers a foreign national who has entered the country through illegal migration.[7] In some countries it also covers an alien who entered the country lawfully but subsequently fallen out of that legal status.[8][9]
  • an enemy alien is a foreign national of a country that is at war with the host country.[citation needed]

Common law jurisdictions[edit]

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.[10] This idea was passed on in the Commonwealth to other common law jurisdictions.

Australia[edit]

In Australia, citizenship is defined in the Australian nationality law. Non-citizens in Australia are either permanent residents; temporary residents; or illegal residents (technically called "unlawful non-citizens").[11] Most non-citizens (including those who lack citizenship documents) traveling to Australia must obtain a visa prior to travel. The only exceptions to this rule are holders of New Zealand passports and citizenship, who may apply for a visa on arrival according to the Trans-Tasman Travel Arrangement.[12]

Canada[edit]

In Canada, the term "alien" is not used in federal statues. 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."[13]

United Kingdom[edit]

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.[14] 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 States[edit]

World War II poster from the United States.

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."[15][1] Every foreign national, including a refugee or an asylum seeker, is considered as an alien unless his or her status has been lawfully upgraded.[16][3][17][18]

A lawful permanent resident (LPR) of the United States is not a foreign national but explicitly referred to as a legal immigrant,[3][5][19] especially if he or she was previously admitted as a refugee under 8 U.S.C. § 1157(c).[16] Longtime LPRs can at any time claim to be nationals of the United States (i.e., Americans), which requires a case-by-case analysis and depends mainly on the number of continuous years such LPRs have physically spent in the United States.[20][21][22]

The usage of the term "alien" dates back to 1798, when it was used in the Alien and Sedition Acts.[23] Although the INA provides no overarching explicit definition of the term "illegal alien", it is mentioned in a number of provisions under title 8.[6] Several provisions even mention the term "unauthorized alien".[24] According to PolitiFact, the term "illegal alien" occurs in federal law, but does so scarcely.[25] PolitiFact notes 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."[25]

Because the U.S. law says that a corporation is a person, 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.[26]

Other jurisdictions[edit]

Arab states[edit]

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.[27][28][29]

Latvia[edit]

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 also[edit]

References[edit]

  1. ^ a b Garner, Bryan A. (June 25, 2009). alien (9th ed.). Black's Law Dictionary. p. 84. ISBN 0-314-19949-7. 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.
  2. ^ "alien". Webster’s Dictionary of Law. law.academic.ru. 1996. Retrieved August 17, 2018.
  3. ^ a b c 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.").
  4. ^ Van Houtum, Henk. "The mask of the border." The Routledge Research Companion to Border Studies. Routledge, 2016. 71-84.
  5. ^ a b 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 ....") (emphasis added).
  6. ^ 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.
  7. ^ "Immigration Terms and Definitions Involving Aliens". United States: Internal Revenue Service (IRS). Retrieved July 3, 2016.
  8. ^ "Homeland Security: More than 600,000 foreigners overstayed U.S. visas in 2017". USA Today. August 7, 2018. Retrieved October 16, 2018.
  9. ^ "DHS: 700K-plus Overstayed US Visas Last Year". Voice of America (VOA). August 7, 2018. Retrieved October 16, 2018.
  10. ^ William Blackstone, Commentaries on the Laws of England (1753), Book 1, Chapter 10
  11. ^ Key Issue 5. Citizenship Fact Sheet 5.2 Citizenship in Australia Retrieved 2012-03-05.
  12. ^ "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.
  13. ^ Immigration and Refugee Protection Act (S.C. 2001, c. 27)
  14. ^ section 51, British Nationality Act 1981
  15. ^ 8 U.S.C. § 1101(a)(3) (emphasis added); 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."); Ricketts v. Att'y Gen., 897 F.3d 491, 493-94 n.3 (3d Cir. 2018) ("Citizenship and nationality are not synonymous."); Jennings v. Rodriguez, 583 U.S. ___, ___-___ (2018), 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the [term]s it connects are to be given separate meanings.").
  16. ^ a b 8 U.S.C. § 1182(h); Matter of J-H-J-, 26 I&N Dec. 563, 564-65 (BIA 2015) (collecting court cases); see also 8 U.S.C. § 1157(c) ("Admission by Attorney General of refugees...."); see also 8 U.S.C. § 1159(a) ("Inspection and examination by Department of Homeland Security"); Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident.") (Baylson, District Judge); Ahmadi v. Att'y Gen., 659 F. App'x 72 (3d Cir. 2016); Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014).
  17. ^ See generally 8 U.S.C. § 1101(a)(13)(C)(v) (eff. 1996); see also Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc).
  18. ^ 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Att'y Gen., 903 F.3d 272, 277 (3d Cir. 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well."); Lolong v. Gonzales, 484 F.3d 1173, 1177 n.2 (9th Cir. 2007) (noting that "the terms 'deportable' and 'deportation' can be used interchangeably with the terms 'removable' and 'removal,' respectively.").
  19. ^ "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved January 30, 2019. Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens.
  20. ^ See generally 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of [the] [United States] upon a person after birth, by any means whatsoever.") (emphasis added); 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter...."); 8 U.S.C. § 1452(b) ("Application to Secretary of State for certificate of non-citizen national status; proof; oath of allegiance"); 22 C.F.R. 51.1 ("U.S. non-citizen national means a person on whom U.S. nationality, but not U.S. citizenship, has been conferred at birth under 8 U.S.C. 1408, or under other law or treaty, and who has not subsequently lost such non-citizen nationality.") (emphasis added); Ricketts v. Att'y Gen., 897 F.3d 491 (3d Cir. 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Saliba v. Att'y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'"); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted).
  21. ^ Khalid v. Sessions, 904 F.3d 129, 131 (2d Cir. 2018) (an LPR proved himself to be a national of the United States); Jaen v. Sessions, 899 F.3d 182, 190 (2d Cir. 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); see also Dent v. Sessions, 900 F.3d 1075, 1080 (9th Cir. 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted); Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1270 (10th Cir. 2018).
  22. ^ Landon v. Plasencia, 459 U.S. 21, 32 (1982) (reminding that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.").
  23. ^ "Alien and Sedition Acts". Ourdocuments.gov. Retrieved November 23, 2011.
  24. ^ 8 U.S.C. § 1324a(h)(3)
  25. ^ a b "Is 'illegal alien' a term in federal law?". @politifact. Retrieved February 26, 2019.
  26. ^ "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
  27. ^ Habboush, Mahmoud. "Call to naturalise some expats stirs anxiety in the UAE".
  28. ^ "Say no to expats calling for Saudi citizenship". November 24, 2013.
  29. ^ "GCC Citizenship Debate: A Place To Call Home - Gulf Business". January 5, 2014.

External links[edit]