Alien (law)

In law, an alien generally refers to any person who is not a citizen or national of a given country,[1][2] though definitions and terminology differ to some degree.

Etymology

The term "alien" is derived from the Latin alienus, meaning stranger, foreign, etym. "belonging (somewhere) else".

Categories

Different countries use varying terms for "aliens" including:

  • a legal alien is a non-citizen who is permitted by law to remain in a country. This is a very broad category which includes permanent residents, temporary residents, and visa holders or foreign visitors.
    • a resident alien is a non-citizen who has resident status in a country under the law.
    • a nonresident alien is a non-citizen who is visiting a country, for example as a tourist, on business, entertainers, sportspeople or in the country to receive medical treatment.
  • an illegal alien or undocumented alien is any person who is residing in a country where he or she has no legal right to reside. It generally covers a foreign national who has entered a country through illegal migration.[3] In some countries it may also cover an alien who entered a country legally but subsequently fallen out of that legal status.
  • an enemy alien is a non-citizen who is a citizen of a country that is at war with the host country.

Common law jurisdictions

An "alien" in English law was someone who was born outside of the monarch's dominions and who did not have allegiance to the monarch. Aliens were not allowed to own land and were subject to different taxes to subjects.[4] 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 living in Australia are either permanent residents; temporary residents; or illegal residents (technically called "unlawful non-citizens").[5] Most non-citizens (including those who lack citizenship documents) travelling 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.[6]

Canada

In Canada, the term "alien" is not used in federal laws and 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". Permanent residents and Canadian citizens are not considered as foreign.[7]

United Kingdom

The British Nationality Act 1772 regulated who was to be called a British subject.

The Aliens Act 1905, the British Nationality and Status of Aliens Act 1914 and the Aliens Restriction (Amendment) Act 1919 were all products of the turbulence in the early part of the 20th century.

In the United Kingdom, the British Nationality Act 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.[8]

United States

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."[9][1] A legal immigrant (lawful permanent resident) could either be an "alien" or a non-citizen "national of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States prior to committing an offense that may trigger removability.[10][11][12]

The U.S. Supreme Court has long explained 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."[13] The usage of the term "alien" dates back to 1798, when it was used in the Alien and Sedition Acts.[14]

Although the INA provides no overarching explicit definition of the term "illegal alien," it is mentioned in a number of provisions under title 8.[15] Several provisions even mention the term "unauthorized alien."[16]

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.[17]

Other jurisdictions

Arab states

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 them. As such, referring to these people as foreigners is seen by some as inappropriate.[18][19][20]

Latvia

On Latvian passports, the mark nepilsoņi (alien) refers to non-citizens or former citizens of USSR who don't 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

  1. 1 2 "alien" (9th ed.). Black's Law Dictionary. 2009. p. 84. 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. Missing or empty |url= (help); |access-date= requires |url= (help)
  2. ↑ "alien". Webster’s Dictionary of Law. law.academic.ru. 1996. Retrieved August 17, 2018.
  3. ↑ "Immigration Terms and Definitions Involving Aliens". United States: Internal Revenue Service (IRS). Retrieved July 3, 2016.
  4. ↑ William Blackstone, Commentaries on the Laws of England (1753), Book 1, Chapter 10
  5. ↑ Key Issue 5. Citizenship Fact Sheet 5.2 Citizenship in Australia Retrieved 2012-03-05.
  6. ↑ "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.
  7. ↑ Immigration and Refugee Protection Act (S.C. 2001, c. 27)
  8. ↑ section 51, British Nationality Act 1981
  9. ↑ 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. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.5 note 3 (3d Cir. July 30, 2018) ("Citizenship and nationality are not synonymous."); Jennings v. Rodriguez, 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings.").
  10. ↑ Ricketts v. Attorney General of the U.S., ___ F.3d ___, No. 16-3182, p.2 (3d Cir. July 30, 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."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 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. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added); 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); see also 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.'").
  11. ↑ 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. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 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.").
  12. ↑ 8 U.S.C. § 1159(c) ("The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added); Matter of J-H-J-, 26 I&N Dec. 563, 564-65 (BIA 2015) (collecting court cases); cf. 8 U.S.C. § 1182(h) ("No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.") (emphasis added).
  13. ↑ Landon v. Plasencia, 459 U.S. 21, 32 (1982)
  14. ↑ "Alien and Sedition Acts". Ourdocuments.gov. Retrieved November 23, 2011.
  15. ↑ 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.
  16. ↑ 8 U.S.C. § 1324a(h)(3)
  17. ↑ "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
  18. ↑ Habboush, Mahmoud. "Call to naturalise some expats stirs anxiety in the UAE".
  19. ↑ "Say no to expats calling for Saudi citizenship". November 24, 2013.
  20. ↑ "GCC Citizenship Debate: A Place To Call Home - Gulf Business". January 5, 2014.
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