Alien (law)

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

"Resident alien" redirects here. For other uses, see Resident Alien (disambiguation).

Legal status of persons
Concepts
Designations
Social politics

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.[4]

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 nationality.[5]
    • a resident alien is any person who has been lawfully granted permission by the government to travel, reside, study, work, own property, invest money, operate a business, enlist in the military, own and possess a firearm, pay taxes, receive certain government benefits, etc., in the country.[6]
    • a nonresident alien is any foreign national who is lawfully staying in the country on a time-based condition such as visiting for pleasure, for studies, for business, for special training courses, to receive medical treatment, to attend a conference or a meeting, as entertainers or sportspeople, etc.
  • an illegal alien is any foreign national who either entered the country without the government's permission or is found in the country without any documentation.[7][8] In some countries it also covers an alien who entered the country lawfully but subsequently fallen out of that legal status.[9][10]
  • an enemy alien is any foreign national of any country that is at war with the host country.[11]

Common law jurisdictions
See also: History of British nationality law § Early English and British nationality law

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.[12] 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").[13] 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.[14]

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.[15][16][17]

Canada

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."[18]

United Kingdom
Further information: British Nationality Act

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.[19] 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
Further information: Refugee Act
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."[20][1] A longtime green card holder who is not removable under the INA could at any time lawfully claim to being a non-citizen national of the United States.[21] This is especially true if such a non-removable legal immigrant was originally admitted as a stateless refugee,[22][23][24][25][26] which basically means he or she has no country to reside in permanently other than the United States, and cannot obtain a passport from any country other than the United States.[27]

The usage of the term "alien" dates back to 1798, when it was used in the Alien and Sedition Acts.[28] 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.[7] Several provisions even mention the term "unauthorized alien".[29] According to PolitiFact, the term "illegal alien" occurs in federal law, but does so scarcely.[30] 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."[30]

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.[31]

"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.[32][33]

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 the non-natives.[34][35][36]

Latvia
Main article: Non-citizens (Latvia)

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

References

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

  1. 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. 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. 8 U.S.C. § 1481 ("Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions")
  6. 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.")
  7. 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, This article incorporates text from this source, which is in the public domain. 911 F.3d 1253 (9th Cir. 2019).
  8. "Immigration Terms and Definitions Involving Aliens". United States: Internal Revenue Service (IRS). Retrieved July 3, 2016.
  9. "Homeland Security: More than 600,000 foreigners overstayed U.S. visas in 2017". USA Today. August 7, 2018. Retrieved October 16, 2018.
  10. "DHS: 700K-plus Overstayed US Visas Last Year". Voice of America (VOA). August 7, 2018. Retrieved October 16, 2018.
  11. 8 U.S.C. § 1442 (" Alien enemies"); 18 U.S.C. § 757 ("Prisoners of war or enemy aliens")
  12. William Blackstone, Commentaries on the Laws of England (1753), Book 1, Chapter 10
  13. Key Issue 5. Citizenship Fact Sheet 5.2 Citizenship in Australia Retrieved 2012-03-05.
  14. "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.
  15. "High Court rules Aboriginal Australians cannot be 'aliens' under the constitution". SBS News. February 11, 2020.
  16. 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.
  17. 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.
  18. Immigration and Refugee Protection Act (S.C. 2001, c. 27)
  19. section 51, British Nationality Act 1981
  20. 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."); Ricketts v. Attorney General, This article incorporates text from this source, which is in the public domain. 897 F.3d 491, 494 n.3 (3d Cir. 2018) ("Citizenship and nationality are not synonymous."); Jennings v. Rodriguez, This article incorporates text from this source, which is in the public domain. 138 S.Ct. 830, 855 (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, This article incorporates text from this source, which is in the public domain. 788 F.3d 300, 302 (D.C. Cir. 2015) (affirmed), cert. denied, 136 S. Ct. 2461 (2016) ("Unlike those born in the United States' other current territorial possessions—who are statutorily deemed American citizens at birth—section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals...”) (emphasis added).
  21. See, e.g., 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-, This article incorporates text from this source, which is in the public domain. 27 I&N Dec. 462 (A.G. 2018). But see Fernandez v. Keisler, This article incorporates text from this source, which is in the public domain. 502 F.3d 337 (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, This article incorporates text from this source, which is in the public domain. 350 F.3d 307 (3d Cir. 2003) (same).
  22. "U.S. citizen mistakenly put in deportation proceedings finally returns to America". NBC News. February 4, 2020. Retrieved February 3, 2021.
  23. "Cambodian refugee who advocates say was wrongly deported returns to U.S." NBC News. February 28, 2020. Retrieved February 3, 2021.
  24. "First Cambodian to return after deportation inspires others after gaining U.S. citizenship". NBC News. July 16, 2020. Retrieved February 3, 2021.
  25. "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.
  26. 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).
  27. "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved February 8, 2021.
  28. "Alien and Sedition Acts". Ourdocuments.gov. Retrieved November 23, 2011.
  29. 8 U.S.C. § 1324a(h)(3)
  30. "Is 'illegal alien' a term in federal law?". @politifact. Retrieved February 26, 2019.
  31. "Foreign Nationals: Non-Resident Aliens and Resident Aliens". Protax Consulting Services.
  32. 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.
  33. "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
  34. Habboush, Mahmoud. "Call to naturalise some expats stirs anxiety in the UAE".
  35. "Say no to expats calling for Saudi citizenship". November 24, 2013.
  36. "GCC Citizenship Debate: A Place To Call Home - Gulf Business". January 5, 2014.
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