Alien (law)
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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]

Lexicology

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

Categories

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.[]
    • 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 jurisdictions

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.

Australia

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]

Canada

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 Kingdom

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 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."[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 usage of the term "alien" dates back to 1798, when it was used in the Alien and Sedition Acts.[38] 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".[39] According to PolitiFact, the term "illegal alien" occurs in federal law, but does so scarcely.[40] 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."[40]

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.[41]

"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.[42][43]

Other jurisdictions

Arab states

In the Gulf Cooperation Council (United Arab Emirates, Saudi Arabia, Kuwait, Oman, Bahrain, and Qatar), many non-natives have lived in the region since birth. However, these Arab states do not easily grant citizenship to non-natives.[44][45][46] Most stateless Bedoon in Kuwait belong to indigenous northern tribes.[47]

Latvia

On Latvian passports, the mark nepilso?i (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

References

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 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 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 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 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 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 Public Domain 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 Public Domain 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 2016.
  15. ^ "Homeland Security: More than 600,000 foreigners overstayed U.S. visas in 2017". USA Today. August 7, 2018. Retrieved 2018.
  16. ^ "DHS: 700K-plus Overstayed US Visas Last Year". Voice of America (VOA). August 7, 2018. Retrieved 2018.
  17. ^ "alien enemy". law.academic.com. Retrieved 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 Archived March 12, 2020, at the Wayback Machine 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 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 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 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 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain This article incorporates text from this source, which is in the public domain. (A.G. 2018); Matter of Douglas, 26 I&N Dec. 197 Public Domain This article incorporates text from this source, which is in the public domain. (BIA 2013); Abdulla v. Attorney General, 971 F.3d 409, 412 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain This article incorporates text from this source, which is in the public domain. (2009); Addo v. Barr, 982 F.3d 1236, 1268 n.4 Public Domain This article incorporates text from this source, which is in the public domain. (10th Cir. 2020); Igiebor v. Barr, 981 F.3d 1123, 1128 Public Domain 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 Public Domain 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 Public Domain 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 2021.
  32. ^ "Cambodian refugee who advocates say was wrongly deported returns to U.S." NBC News. February 28, 2020. Retrieved 2021.
  33. ^ "First Cambodian to return after deportation inspires others after gaining U.S. citizenship". NBC News. July 16, 2020. Retrieved 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 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 Public Domain 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. ^ "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved 2021.
  37. ^ 18 U.S.C. § 1015; United States v. Mendoza-Gonzalez, 520 F.3d 912, 914 Public Domain 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 Public Domain 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 Public Domain 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 Public Domain This article incorporates text from this source, which is in the public domain. (BIA 2019).
  38. ^ "Alien and Sedition Acts". Ourdocuments.gov. Retrieved 2011.
  39. ^ 8 U.S.C. § 1324a(h)(3)
  40. ^ a b "Is 'illegal alien' a term in federal law?". @politifact. Retrieved 2019.
  41. ^ "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
  42. ^ 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 2019. Since 1989, the city's human-rights law has banned discrimination based on citizenship status or "alienage" in employment, housing and public accommodations.
  43. ^ "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
  44. ^ Habboush, Mahmoud. "Call to naturalise some expats stirs anxiety in the UAE".
  45. ^ "Say no to expats calling for Saudi citizenship". November 24, 2013.
  46. ^ "GCC Citizenship Debate: A Place To Call Home - Gulf Business". January 5, 2014. Archived from the original on September 1, 2014. Retrieved 2015.
  47. ^ "Middle East The Bedoons: Kuwait's stateless minority". Deutsche Welle. July 21, 2019.

External links


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Alien_(law)
 



 



 
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