Alien (law)

Lexicology

The term "alien" is derived from the Latin alienus. The Latin later came to mean a stranger, a foreigner, or someone not related by blood. Similar terms to "alien" in this context include foreigner and lander.

Categories{{anchor|Resident alien}}

Different countries around the world use varying terms for foreign nationals, also called non-citizens. Those who have relinquished their citizenship and/or nationality may or not be an alien in the host country. The following are general categories:

• permanent resident any immigrant who has been lawfully admitted into a nation and granted the legal right to remain therein as a permanent resident, including registered refugees, in accord with the nation's immigration laws.

• temporary resident 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.

• nonresident alien any foreign national, such as a travel visa holder or a foreign tourist, who is lawfully within a nation but whose legal domicile is in another nation.

• alien enemy (or enemy alien) any foreign national of any country that is at war with the host country.

• undocumented alien (or removable alien) any person who has been found to be "subject to removal" by an Immigration Judge, generally because of one of three reasons: (a) violating the terms of the visa, (b) being convicted of specified crimes, or (c) entering the territory without formal authorization.

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. 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 "unlawful non-citizens". 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.

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.

Canada

In Canada, the Immigration and Refugee Protection Act defines a foreign national as "a person who is not a Canadian citizen or a permanent resident, and includes a stateless person." The term "alien" is not used in federal statutes.

United Kingdom

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. 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.

United States

In the United States, the term "alien" is synonymous with foreign national. 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." People born in American Samoa or on Swains Island are statutorily "non-citizen nationals." Others, such as natives of Palau and the Marshall Islands, are noncitizen "nonimmigrants without visas" for INA purposes.

Every refugee that is admitted to the United States under automatically becomes an "immigrant" and then a "special immigrant" after receiving a green card.

The usage of the term "alien" dates back to 1790, when it was used in the Naturalization Act and then 1798 when it was used in the Alien and Sedition Acts. The INA contains 22 occurences and a clear definition of the category of "alien lawfully admitted" and one occurrence of "illegal alien", with no explicit definition. The later is mentioned in a number of provisions under title 8 of the US code. Several provisions mention the term "unauthorized alien". "undocumented alien" or "undocumented person. According to PolitiFact, the term "illegal alien" scarcely occurs in federal law and is undefined or part of an introductory title or limited to apply to certain individuals convicted of felonies.” According to Jeff Baker of the Pepperdine School of Law, ‘alien’ may be a technical term of art, but ‘illegal alien’ is almost always pejorative in contemporary usage." The US Library of Congress replaced the term in 2021, adopting the subject headings "noncitizens" and "illegal immigration" in 2021.

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.

"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.

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. Most stateless Bedoon in Kuwait belong to indigenous northern tribes.

Europe

The European Parliament withdrew the term "alien" from documents relative to Eurodac, a European Union-wide biometric database that collects and maintains fingerprint records of non-EU/European Economic Area (EEA), adopting "third-country national or a stateless person".

References

1. "Alien". Britannica.
2. "alien". law.academic.com.
3. Oxford Latin Dictionary entry for ''Alienus''
4. Van Houtum, Henk. "The mask of the border." The Routledge Research Companion to Border Studies. Routledge, 2016. 71-84.
5. University of Minnesota Human Rights Center. (2003) [https://hrlibrary.umn.edu/edumat/studyguides/noncitizens.html STUDY GUIDE: The Rights of Non-Citizens].
6. {{usc. 8. 1481 ("Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions")
7. (April 1995). "Foreign Investment In U.S. Real Estate-Beyond FIRPTA: Regulatory Requirements and Planning StrategiesRequirements and Planning Strategies". University of Miami Business Law Review Unive.
8. (October 23, 2020). "Conditional Permanent Residence". [[United States Citizenship and Immigration Services]].
9. (2006). "Cross-Border Taxation of Employee Stock Options". The ATA Journal of Legal Tax Research.
10. (July 2012). "Estate Planning Strategies for Resident and Nonresident Aliens". Journal of Financial Service Professionals.
11. "alien enemy". law.academic.com.
12. {{usc. 8. 1442 ("Alien enemies"); {{usc. 18. 757 ("Prisoners of war or enemy aliens")
13. Plascencia, Luis F. B. (2015) [https://files.commons.gc.cuny.edu/wp-content/blogs.dir/3585/files/2018/01/illegal.undocumented-1.pdf The "Undocumented" Mexican Migrant Question: Re-Examining The Framing Of Law And Illegalization In The United States]. ''Urban Anthropology and Studies of Cultural Systems and World Economic Development'', 38(2/3/4) pp. 375-434.
14. William Blackstone, ''Commentaries on the Laws of England'' (1753), Book 1, Chapter 10
15. link. (March 12, 2020 Retrieved 2012-03-05.)
16. (27 September 1999). "Australia's Visitor and Temporary Entry Provisions". Joint Standing Committee on Migration, Parliament of Australia.
17. (11 February 2020). "High Court rules Aboriginal Australians cannot be 'aliens' under the constitution". SBS News.
18. Karp, Paul. (11 February 2020). "High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported".
19. (11 February 2020). "Man released from detention as High Court rules Aboriginal people cannot be deported". Australian Broadcasting Corporation.
20. [http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-1.html#h-2 Immigration and Refugee Protection Act (S.C. 2001, c. 27)]
21. [http://www.legislation.gov.uk/ukpga/1981/61/section/51 section 51], British Nationality Act 1981
22. {{uscsub. 52. 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 [[Green card. lawfully admitted for permanent residence]], as defined by section 1101(a)(20) of title 8.").
23. Garner, Bryan A.. (June 25, 2009). "alien". Black's Law Dictionary.
24. {{uscsub. 8. 1101. b. 3 ("The term 'person' means an individual or an organization.")
25. (June 5, 2015). "Tuaua v. United States, 788 F.3d 300". Harvard Law School.
26. (April 2015). "Effect of US Health Policies on Health Care Access for Marshallese Migrants". American Journal of Public Health.
27. (2021-05-19). "Alien and Sedition Acts (1798)".
28. See, e.g., {{uscsub. 8. 1252c. a. 1; {{uscsub. 8. 1330. b. 3. A. iii; {{uscsub. 8. 1356. r. 3. ii; {{uscsub. 8. 1365. b ("An illegal alien ... is any alien ... who is in the United States unlawfully...."); {{uscsub. 8. 1366
29. {{uscsub. 8. 1324a. h. 3
30. Selby, W. Gardner. (May 9, 2018). "Is 'illegal alien' a term in federal law?".
31. "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
32. (25 September 2019). "New York City Employers Who Say 'Go Back to Your Country' Could Face Fines". The Wall Street Journal.
33. "[https://www1.nyc.gov/site/cchr/law/in-housing.page The protected classes covered under the New York City Human Rights Law are:Age Alienage or Citizenship Status]"
34. Habboush, Mahmoud. (October 10, 2013). "Call to naturalise some expats stirs anxiety in the UAE". Reuters.
35. (November 24, 2013). "Say no to expats calling for Saudi citizenship".
36. Harrison, Ryan. (January 5, 2014). "GCC Citizenship Debate: A Place To Call Home".
37. Elbasnaly, Dina. (21 July 2019). "Bedoons: Kuwait's stateless minority". Deutsche Welle.
38. EUR-Lex Document 32013R0603 https://eur-lex.europa.eu/eli/reg/2013/603/oj/eng