ALIEN AND SEDITION ACTS In 1798 the Federalist-controlled Congress passed four acts to empower the president of the United States to expel dangerous aliens from the country; to give the
Trang 1Controversy continues to surround the ATF.
Some critics say that its agents are not sufficiently trained to carry out the types of operations its administrators seem to favor Others contend that it lacks a coherent mission and that many
of its duties, such as enforcement of alcohol regulations, are better suited to other agencies
The move toward a complete split between the agencies was expected to take some time
Information on the ATF is available online at www.aft.gov
FURTHER READINGS Bureau of Alcohol, Tobacco, Firearms, and Explosives Web site “History of ATF from Oxford Univ Press, Inc.
1789–1998 U.S.” Available online at http://www.atf.
gov/about/atfhistory.htm; website home page: http://
www.atf.gov (accessed December 9, 2009).
Reavis, Dick J 1998 The Ashes of Waco: An Investigation.
New York: Syracuse Univ Press.
U.S Government Printing Office Web site Available online
at http://www.gpoaccess.gov (accessed July 4, 2009).
CROSS REFERENCES Alcohol; Branch Davidian Raid; Explosives; Gun Control;
Weapons.
ALDERMAN OR ALDERWOMAN
A public officer of a town or city council or a local legislative body who is elected to the position by the persons he or she represents
ALEATORY CONTRACT
A mutual agreement between two parties in which the performance of the contractual obligations of one or both parties depends upon a fortuitous event
The most common type of aleatory contract
is an insurance policy in which an insured pays
a premium in exchange for an insurance company’s promise to pay DAMAGES up to the face amount of the policy in the event that one’s
house is destroyed by fire The insurance company must perform its obligation only after the fortuitous event, the fire, occurs
vALEXANDER, JAMES James Alexander, born in 1691 in Scotland, was
an eminent lawyer who became famous for his support ofFREEDOM OF THE PRESS
In 1715 Alexander immigrated to America, and began a career of public service to New York and New Jersey He performed the duties of surveyor general for the Province of New Jersey
in 1715, and three years later served as recorder
of Perth Amboy
Alexander participated in the Council of New York from 1721 to 1732 but continued to be active
in New Jersey He was admitted to the New Jersey Provincial bar in 1723, and joined the Council of New Jersey in that same year, serving until 1735 From 1723 to 1727 Alexander performed the duties of New Jersey attorney general
In 1735 journalist John Peter Zenger was on trial, accused of libelous attacks on the adminis-tration of New York Governor William Cosby Alexander served as codefense lawyer at this trial, andALEXANDER HAMILTONpleaded the case Zenger was acquitted, and the success of this defense was a triumph for the principles of a free press Alexander died in Albany, New York, on April 12, 1756
ALIAS [Latin, Otherwise called.] A term used to indicate that a person is known by more than one name Alias is a short and more popular phrase for alias dictus The abbreviation a.k.a., also known
as, is frequently used in connection with the description of a person sought by law
1664 British bought
New Amsterdam
from Dutch; renamed
it New York
1691 Born, Scotland
1715 Immigrated to America;
became surveyor general for New Jersey
1723–27 Attorney General
of New Jersey
1718 Served as recorder of Perth Amboy (New Jersey)
1735 Served as codefense lawyer for Zenger trial
1756 Died, Albany, N.Y.
1775 American Revolution began
◆
◆
❖
ITHINK IT
ABSOLUTELY
NECESSARY THAT
SOME PERSON BE
HERE TO DEFEND
ZENGER
—J AMES A LEXANDER
218 ALDERMAN OR ALDERWOMAN
Trang 2enforcement officers to disclose the names that
the person has been known to use A fictitious
name assumed by a person is popularly termed an
alias
ALIAS WRIT
A second writ, or court order, issued in the same
case after an earlier writ of that kind has been
issued but has not been effective
ALIEN AND SEDITION ACTS
In 1798 the Federalist-controlled Congress passed
four acts to empower the president of the United
States to expel dangerous aliens from the country;
to give the president authority to arrest, detain, and
deport resident aliens hailing from enemy countries
during times of war; to lengthen the period of
naturalization for immigrants; and to silence
Republican criticism of the Federalist Party Also
an act passed by Congress in 1918 during World
War I that made it a crime to disrupt military
recruiting or enlistments, to encourage support for
Germany and its allies or disrespect for American
war efforts, or to otherwise bring the U.S
govern-ment, its leaders, or its symbols into disrepute
The Alien and Sedition Acts of 1798
Passions over the French Revolution split early
American politics Having endured Shays’s
Rebel-lion and the WHISKEY REBELLION, Federalists
saw much to fear in the French Revolution On
the other hand, Democratic-Republicans, led
by THOMAS JEFFERSON, proudly supported the
French Revolution as the progeny of the American
Revolution Democratic-Republicans still viewed
Britain as an enemy, while the Federalists regarded
Britain as a bulwark against French militancy
In early 1798 JOHN QUINCY ADAMS, son of
PresidentJOHN ADAMS and the U.S ambassador
to Prussia, advised his father that France
intended to invade America’s western frontier
Jonathon Dayton, speaker of the U.S House of
Representatives, speculated publicly that troops
already massed in French ports were destined
for North America Federal officials feared parts
of America were rife with French agents and
sympathizers who might rise up in support of
an invasion George Tucker, professor of Law at
the College of William and Mary, predicted that
100,000 U.S inhabitants, including himself,
would join a French invading army Former
presidentGEORGE WASHINGTON, summoned from
retirement to lead the U.S Army against a
possible French invasion, expressed concerns that France would invade the southern states first, “because the French will expect from the
TENOR of the debates in Congress to find more friends there.”
Congress responded to these concerns by enacting the Alien and Sedition Acts, the popular names for four laws passed in 1798
On June 18 Congress passed theNATURALIZATION
Act, which extended from five to 14 years the period of residence required for alien immi-grants to become full U.S citizens (1 Stat 566)
On June 25 Congress passed the Alien Act, which authorized the president to expel, without a hearing, any alien the president deemed “dangerous to the peace and safety”
of the United States or whom the president suspected of“treasonable or secret” inclinations (1 Stat 570) On July 6 Congress passed the Alien Enemy Act, which authorized the presi-dent to arrest, imprison, or banish any resipresi-dent alien hailing from a country against which the United States had declared war (1 Stat 577)
None of these first three acts had much practical impact The Naturalization Act con-tained a built-in window period that allowed resident ALIENS to become U.S citizens before the fourteen-year requirement went into effect
President Adams never invoked the Alien Act, and the passing of the war scare in 1789 rendered the Alien Enemies Act meaningless
However, the Sedition Act deepened parti-san political positions between the FEDERALIST PARTYand theDEMOCRATIC-REPUBLICAN PARTY The Sedition Act made it a high MISDEMEANOR, punishable by fine, IMPRISONMENT, or both, for citizens or aliens (1) to oppose the execution of federal laws; (2) to prevent a federal officer from performing his or her duties; (3) to aid “any
INSURRECTION,RIOT,UNLAWFUL ASSEMBLY, or com-bination”; or (4) to make any defamatory statement about the federal government or the president (1 Stat 596)
Because the Federalists controlled Congress and the White House, Republicans believed these laws were aimed at silencing Jeffersonian critics of the Adams administration and its laws and policies Eighteen people were indicted under the Sedition Act of 1798; 14 were prosecuted, and 10 convicted, some of whom received prison sentences
The validity of the Sedition Act was never tested in the U.S Supreme Court before it
ALIEN AND SEDITION ACTS 219
Trang 3expired in 1801 But Congress later passed a law that repaid all fines collected under it, and Jefferson, after becoming president in 1801, pardoned all those convicted under the act
Before becoming president, Jefferson joined Madison in voicing opposition to the Sedition Act by drafting the Virginia and Kentucky Resolutions Jefferson was responsible for drafting the two Kentucky Resolutions, while Madison penned the one Virginia RESOLUTION The Virginia and Kentucky Resolutions con-demned the Sedition Act as a violation of the Free Speech Clause to the FIRST AMENDMENT of the U.S Constitution The resolutions also argued that Congress had exceeded its powers
by passing the law in the first place, because Congress may only exercise those powers specifically delegated to it, and nowhere in Article I of the Constitution is authority given
to the legislative branch to regulate political speech The Kentucky state legislature passed its two resolutions on November 16, 1798, and November 22, 1999, whereas Virginia passed its one resolution on December 24, 1798
Sedition Act of 1918
Concern over disloyalty during wartime
provid-ed the backdrop for the second Sprovid-edition Act in U.S history In April 1917 the United States entered WORLD WAR I when Congress declared war against Germany and its allies A month later, the Selective Service Act reinstated the military draft Both the draft and U.S entry into the war were met with PROTEST at home
Worried that anti-war protestors might inter-fere with the prosecution of the war, Congress passed the Sedition Act of 1918
An amendment to theESPIONAGE ACT OF1917, the Sedition Act of 1918 made it aFELONY(1) to convey false statements interfering with Ameri-can war efforts; (2) to willfully employ“disloyal, profane, scurrilous, or abusive language” about the U.S form of government, the Constitution, the flag, or U.S military or naval forces; (3) to urge the curtailed production of necessary war materials; or (4) to advocate, teach, defend, or suggest the doing of any such acts Violations were punishable by fine, imprisonment, or both
The law was aimed at curbing political DISSENT
expressed by socialists, anarchists, pacifists, and certain labor leaders
The U.S Supreme Court upheld the Sedition Act of 1918 over free speech objections made by
civil libertarians However, in a famous dissent-ing opinion that shaped First Amendment law for the rest of the twentieth century, Associate Justice Oliver Wendell Holmes Jr encouraged courts to closely scrutinize prosecutions under the Sedition Act to make sure that only those individuals who created a “clear and present danger” of immediate criminal activity were convicted (ABRAMS V.UNITED STATES, 250 U.S 616,
1180, 40 S Ct 17, 63 L Ed 1173 [1919])
FURTHER READINGS Miller, John Chester 1951 Crisis in Freedom: The Alien and Sedition Acts Boston: Little, Brown.
Moore, Wayne D 1994 “Reconceiving Interpretive Auton-omy: Insights from the Virginia and Kentucky Resolu-tions ” Constitutional Commentary 11 (fall).
Smith, James Morton 1967 Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties Ithaca, NY: Cornell Univ Press.
CROSS REFERENCES Aliens “Aliens and Civil Rights” (Sidebar); Espionage; Freedom of Speech.
ALIEN ENEMY
In international law, a foreign-born citizen or subject of a nation or power that is hostile to the United States
An alien enemy is an individual who, due to permanent or temporary allegiance to a hostile power, is regarded as an enemy in wartime Under federal law, an alien enemy is a native, citizen, or subject of a foreign nation, state, or sovereign with which the United States is at war Such a person is considered an alien enemy as long as the United States remains at war as determined throughPROCLAMATIONby the presi-dent or RESOLUTION by Congress 8 C.F.R § 331.1 (2002) During times of declared war, Congress has permitted the president to order the apprehension, restraint, andDEPORTATIONof alien enemies 50 U.S.C.A § 21 (2003)
A citizen or subject of an enemy country, residing in the United States, under license or permission of the U.S Government, express or tacit, and peacefully carrying on his or her ordinary vocation, is not under disability in the civil courts, and may institute an action to enforce his or her rights during the continuance
of the war, orPROSECUTEsuch an action already instituted before the war A resident alien enemy is precluded from bringing suit in the courts of this country only so far as this preclusion is necessary to prevent the use of
220 ALIEN ENEMY
Trang 4the courts to accomplish a purpose that might
hamper the war effort or give aid to the enemy
The term alien enemy, as it is defined by
federal law, does apply easily to individuals who
belong to organizations that are not affiliated
with a foreign sovereign Nevertheless, the
treatment of such ALIENS mirrors treatment
permitted by federal law for aliens who are
citizens of foreign nations In the wake of the
SEPTEMBER 11TH ATTACKS, Congress passed the
Authorization for the Use of Military ForceJOINT
RESOLUTION, Pub L No 107-40, 115 Stat 224,
permitting the president to use force to detain
and try non-citizens in theWAR ON TERRORISM On
November 13, 2001, President GEORGE W BUSH
issued a military order [66 Fed Reg 57,831–
57,836 (2001)] setting forth the military’s policy
for the treatment of non-citizens in the war on
TERRORISM The order applies to individuals who
are or were members of the terrorist organization
al Qaeda; have engaged in, aided or abetted, or
conspired to commit acts of international
terrorism; or have harbored such a non-citizen
FURTHER READINGS
Green, Leslie C 1999 Essays on the Modern Law of War.
2d ed Ardsley, N.Y.: Transnationals.
Fehlings, Gregory 2002 “Storm on the Constitution: The
First Deportation Law ” Tulsa Journal of Comparative
and International Law 63.
Levie, Howard S 1993 Terrorism in War: The Law of War Crimes Dobbs Ferry, N.Y.: Oceana.
Schmidt, Michael N., and Leslie C Green 1997 Levie on the Law of War Newport, R.I.: Naval War College.
ALIENABLE The character of property that makes it capable of sale or transfer
Absent a restriction in the owner’s right, interests in real property and tangible personal property are generally freely and fully alienable by their nature Likewise, many types of intangible personal property, such as a patent or trademark, are alienable forms of property By comparison, constitutional rights of life, liberty, and property are not transferable and, thus, are termed inalienable
Similarly, certain forms of property, such as employee security benefits, are typically not subject
to transfer on the part of the owner and are inalienable forms of property
ALIENATE
To voluntarily convey or transfer title to real property by gift, disposition by will or the laws of descent and distribution, or by sale
For example, a seller may alienate property
by transferring to a buyer a parcel of the seller’s land containing a house, in exchange for cash
The seller is said to have alienated her rights in
During World War II, the U.S government moved thousands of Japanese Americans to detention camps because it considered them alien enemies while the country was
at war with Japan.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
ALIENATE 221
Trang 5that parcel, such as the right to modify or even demolish the house on the parcel of land, to the buyer Those rights now belong to the buyer
ALIENATION CLAUSE
A provision in a document permitting or forbid-ding a person from transferring property that is the subject of the document
In a fire insurance policy, anALIENATION CLAUSE
prohibits the alienation of the insured premises while the policy is in effect If the insured violates this provision, the policy is void
ALIENATION OF AFFECTION The removal of love, companionship, or aid of an individual’s spouse
Historically, ALIENATION OF AFFECTION furn-ished grounds for an action against the indi-vidual who interloped in a marital relationship
The harm caused was viewed as a deprivation
of an individual’s rights of consortium
The elements of the action generally included wrongful conduct by the interfering party with the complainant’s spouse, the loss of affection or consortium, and a nexus between the conduct of the DEFENDANT and the impairment or loss of consortium, which included a deprivation of such rights a services, assistance, and sexual relations
In the early twenty-first century, the action has fallen into disuse and no longer constitutes a ground for a lawsuit in most states
ALIENS Foreign-born persons who have not been natural-ized to become U.S citizens under federal law and the Constitution
The federalIMMIGRATIONlaws determine whe-ther a person is an alien Generally, a person born in a foreign country is an alien, but a child born in a foreign country to parents who are U.S citizens is a U.S citizen The term alien also refers to a native-born U.S citizen who has relinquished U.S citizenship by living and ac-quiring citizenship in another country Aliens are categorized in several ways: resident and non-resident, immigrant and nonimmigrant, docu-mented and undocudocu-mented (“illegal”)
Overview
The United States welcomes a large number of aliens every year Millions of foreign-born
persons travel, work, and study in the country, and hundreds of thousands more choose to immigrate and become U.S citizens All of them are subject to federal immigration law At the simplest level, the law serves as a gatekeeper for the nation’s borders: It determines who may enter, how long they may stay, and when they must leave In totality, of course, its scope far exceeds this simple purpose Immigration law is concerned not only with borders but with what goes on inside them It has much to say about the legal rights, duties, and obligations of aliens
in the United States, which, in some respects, are different from those of citizens Ultimately,
it also provides the means by which certain aliens are naturalized as new citizens with all the rights of citizenship
Congress has total authority over immigra-tion In the legislative branch of government, this power has no equal The U.S Supreme Court has determined that“over no conceivable subject is the legislative power of Congress more complete” (Fiallo v Bell, 430 U.S 787, 97 S Ct
1473, 52 L Ed 2d 50 [1977]) With a few notable exceptions concerning the right of aliens to constitutional protections, the courts have rarely intruded Presidents have no inher-ent say; their influence is limited to policies on
REFUGEES Moreover, congressional authority preempts all state laws and regulations and even addresses the rights of aliens during wartime In practical terms, these circumstances mean that immigration law is entirely the domain of federal lawmakers, whose say is usually final Congress alone decides who will
be welcomed or turned away, as well as what aliens may and may not do in the United States This authority has a long and controversial past The first laws date to 1875, and their history is rife with discrimination Lawmakers have always created barriers that favor some aliens over others At one time, Chinese were not wanted; at others, Japanese; the list goes on and on Only in the latter half of the twentieth century were these widely divergent policies codified under a primary federal statute, the Immigration and Nationality Act (INA) (Pub
L No 414, ch 477, 66 Stat 163, codified as amended in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 22 U.S.C.A., 49 U.S.C.A., 50 App U.S C.A.), since 1952 the basic source of immigra-tion law For decades, the INA was easily tinkered with through amendments and bills A dazzling
222 ALIENATION CLAUSE
Trang 6number of political reasons made Congress
create a patchwork of preferences, exceptions,
and quotas, each reflecting who was wanted and
who was not Although somewhat less frequently
toward the end of the twentieth century, national
origin has often decided whether the United
States admitted an alien
Modern legislation has introduced
signifi-cant changes Reform has followed two distinct
lines of thought: the need to stem illegal
immigration, and the desire to make the law
more fair for legal immigrants Congress tackled
the first issue in the Immigration Reform and
Control Act of 1986 (IRCA) (Pub L No
99-603, 100 Stat 3359, codified as amended in
scattered sections of the U.S.C.A.) The IRCA
toughened criminal sanctions for employers
who hire illegal aliens, denied these aliens
federally funded WELFARE benefits, and
legiti-mized some aliens through an amnesty
pro-gram Related legislation, the Immigration
MARRIAGE FRAUD Amendments of 1986, 8 U.S
C.A § 1101 note et seq., cracked down on the
popular illegal practice of marrying to obtain
citizenship Fairness issues helped influence the
second major reform, the Immigration Act of
1990, Pub L No 101-649, 104 Stat 4978 (codified in scattered sections of the U.S.C.A.)
Thoroughly revamping the INA, the 1990 act allocated visas more evenly among foreign nations, eliminated archaic rules, and increased the level of worldwide immigration by 35 percent, to an annual level of 675,000
The September 11th terrorist attacks on the United States led to a reorganization of the agencies responsible for carrying out the nation’s immigration laws, as well as to several revisions in the immigration laws themselves In
2002 Congress abolished the Immigration and
NATURALIZATION Service (INS), replacing it with the Bureau of Citizenship and Immigration Services (BCIS), a part of the DEPARTMENT OF HOMELAND SECURITY (DHS) The move became effective March 1, 2003 The attacks also led to the enactment of a number of statutes that seek both to improve the immigration system and to help protect the United States from illegal aliens who may engage in terrorist activities on its soil
The goals of the new statutes were to accelerate immigration processes related to citizenship
Immigration to the United States, 1820 to 2008
Millions of immigrants a
1820
1850
1880
1910
1,107,126
841,002
373,326
70,756
1,041,570
457,257
369,980
8,358
1940
1970
2000
2008
a Immigrants refers to persons obtaining legal permanent resident status.
SOURCE: U.S Department of Homeland Security, Office of Immigration Statistics, 2008 Yearbook of Immigration
Statistics.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
ALIENS 223
Trang 7and benefits, to strengthen border patrol and enforcement, and to ensure DETENTION and re-moval of illegal aliens
Administrative Implementation of Immigration and Naturalization Laws
For many years the INS was responsible for implementing many of the nation’s immigra-tion and naturalizaimmigra-tion laws The terrorist attacks on September 11, 2001, along with a
number of other incidents, led to harsh criticism of the agency According to a number
of lawmakers and other commentators, the INS was the worst-managed agency in the federal government Calls for reforming the agency led
in 2002 to a call to abolish the agency When Congress passed the Homeland Security Act
of 2002, Pub L No 107-296, 116 Stat 2135 (codified as amended in scattered sections of
6 U.S.C.A.), it eliminated the agency and created
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Nonimmigrant Aliens Admitted into the United States, 1985 to 2008
a Data for business and pleasure not available separately due to temporary expiration of the Visa Waiver Program from May through October.
SOURCE: U.S Department of Homeland Security, Office of Immigration Statistics, 2001 Statistical Yearbook of the Immigration and Naturalization Service and Annual Flow Report, April 2009.
Number of nonimmigrants, in millions
2008
2000
1995
1985
.074 257
6.608 1.796
9.539
NA a
.543 659
NA a
33.690
.196 364
3.275
22.640
17.611
39.381 5.603
29.442 1.102
1.101
All classes
Temp visitors for business
Temp visitors for pleasure
Students
Temp workers and trainees
224 ALIENS
Trang 8the BCIS The primary mission of the DHS is to
prevent terrorist attacks, reduce the vulnerability
of the United States toTERRORISM, and minimize
any damage and assist in any recovery should
terrorist attacks occur in the country
The BCIS does not possess all of the powers
that the INS once had It focuses exclusively on
immigration and citizenship issues regarding
aliens in the United States Among the agency’s
primary responsibilities are the review of petitions
by aliens for entry or retention in the country,
ADJUDICATIONof asylum and processing of refugees,
implementation of naturalization procedures, and
issuance and renewal of documents Many of the
law enforcement powers that the INS held have
been removed from the BCIS, however
Under the Homeland Security Act, a number
of new agencies were created to carry out several
other functions Many of the responsibilities for
preventing entry of terrorists into the United
States, carrying out immigration enforcement
functions, and other issues relating to the
protection of U.S borders were delegated to the
Undersecretary for Border and Transportation
Services Other enforcement powers were given
to the Bureau of Border Security Enforcement,
which is responsible for the detention,
investiga-tion, and inspection of aliens under federal law
Admission Procedures
Normally, aliens wishing to enter the United
States first apply for aVISAat one of the over 200
U.S consulates and embassies abroad Visas are
documents required for travel to most nations
in the world For example, U.S citizens may not
simply cross the borders of Germany or Zaire
without a visa Aliens, likewise, may not simply
cross the borders into the United States; they
have no inherent right to enter the country
A visa is the only legal means of entry In a
larger sense, it is the key to understanding the
goals and practices of immigration law
Two types of visas exist: immigrant visas
and nonimmigrant visas It is much easier to
obtain nonimmigrant visas, which are primarily
issued to tourists and temporary business
visi-tors In 1993 the INS admitted 21,447,000
non-immigrants to the United States Nonimmigrant
visas are divided into 18 main categories ranging
from vacationers and diplomatic personnel to
athletes, temporary workers, and students Most
categories do not have any numerical limitation
The reasoning is simple: Nonimmigrants
generally spend a short time and a lot of money
in the United States, with obvious benefits for the nation’s economic, social, and cultural life, and relatively few demands on its resources The most significant issue in nonimmigrant visas is whether the alien may work in the United States without violating the terms of the visa
Immigrants find visas much harder to obtain
Millions of aliens want to live and work in the United States and enjoy the benefits of U.S
citizenship, but only a fraction of them can
Congress sets numerical limits on most types of immigrant visas, under the theory that the country can realistically absorb only so many new people The 1995 annual ceiling was 675,000, with flexibility for some categories In addition, many immigrant visas are subject to per-country caps—roughly 25,000 per country, though some countries receive special allowances
In law, aliens granted visas are said to have obtained entry The term entry has a special meaning that is different from a mere“physical presence in the United States.” An alien might cross the border but still be determined by authorities not to have entered the country Entry means legal admittance and the freedom from official restraint Its benefits are tangible: generally, aliens recognized by law to have gained entry have more rights than those who have not gained entry
Denial of entry is called exclusion Dating from the earliest attempts to control immigra-tion, this controversial concept holds that it is not in the national interest to admit some persons Far-reaching grounds bar applicants for reasons related to health, crime, national security, and other variables As part of the process for reviewing visa applications, consular officials decide whether any ground for exclu-sion applies If the officials decide that none does, a visa may be granted, but entry is still not certain The Bureau of Border Security Enforce-ment can decide otherwise when the alien actually attempts to cross the border In practice, exclusion occurs every day
Excluded aliens can argue their case in an exclusion hearing This procedure differs greatly from a DEPORTATION hearing, which involves an alien who has already entered the United States
Deportation hearings are actually more advanta-geous: unlike exclusion proceedings, deportation hearings only follow from specific allegations, and aliens subject to deportation have more forms of legal relief In an exclusion hearing, the
ALIENS 225
Trang 9burden is always on the alien to prove his or her right to enter the United States The alien is entitled to many attributes of procedural due process, and aliens who lose may also seek asylum (refuge or protection, usually for political reasons) in some instances
Excluded applicants seeking to cross the border may be kept in detention facilities until their hearings have been held In some cases, officers may choose to release an alien onPAROLE
pending further review Parole allows an alien to travel away from the border and detention faci-lities temporarily, for reasons such as preventing the separation of families As a limited right, parole is not equivalent to entry
Nonimmigrant Visas
Each applicant for a nonimmigrant visa must demonstrate that he or she has no intention of immigrating Generally, the application requires detailed information about the alien’s native residence, place of employment, reason for traveling to the United States, and destination
Most nonimmigrant visas do not have annual numerical limits, but the INA does restrict those for professionals to 65,000; temporary agricul-tural workers to 66,000; and performing athletes, artists, and entertainers to 25,000
Nonimmigrant aliens apply for a visa from one of 18 categories, each assigned a letter, as follows:
A Career diplomats;
B Temporary visitors for business and pleasure;
C Aliens in transit;
D Crew members;
E Treaty traders and investors;
F Students;
G International organization representatives;
H Temporary workers;
I Foreign media representatives;
J Exchange program visitors;
K Fiancées, fiancés, or children of U.S
citizens;
L Intracompany transferees;
M Students in nonacademic institutions;
N Parents and children of special immigrants;
O Aliens with extraordinary abilities;
P Entertainers;
Q Participants in cultural exchange programs;
R Religious workers The visas are further categorized by numbers—for example, A-1, A-2, and so forth
Aliens use specific procedures for the particu-lar visa sought Broadly speaking, these fall into three classes: (1) applications that do not require contact with anyone in the United States (visas
A, B, C, D, E, G, I, and O); (2) applications that require proof of acceptance in an authorized program (visas F, J, M, and Q, and visas for special education trainees); and (3) applications that require approved petitions, which provide the basis for the alien’s presence in the United States (visas H, K, L, P, and R) More than half of all visas require supporting documents at the time of application For example, an alien hoping to work temporarily in the United States as a registered nurse needs an employer’sPETITIONto obtain an H-1A visa Similarly, an alien planning to study at
a university must present proof of acceptance at the university for an F-1 visa An alien engaged to
a U.S citizen will never see a K visa—let alone get married—unless the citizen has filed a petition In all cases, consular officials make the final decision Generally, noJUDICIAL REVIEWis available Once admitted into the United States, aliens are inspected by Bureau of Border Security Enforcement officers, who give them a form I-94 indicating the length and terms of their stay Most aliens ultimately return to their country of origin Some wish to stay and immigrate Generally, all nonimmigrant visa holders who are in the United States may apply
to have their visa status adjusted to permanent-resident status, with the exception of crew member visa (visa D) holders To qualify, the alien must have been inspected and admitted or paroled into the United States and must meet standard eligibility requirements for obtaining
an immigrant visa, and an immigrant visa must
be immediately available at the time the application is filed In addition, the alien must not have been in anUNLAWFULstatus or, with few exceptions, have accepted any unauthorized employment
Immigrant Visas
Immigrant visas come in two main categories: visas subject to numerical limitation and visas not subject to numerical limitation The term numerical limitation means several things First,
it refers to the overall limits set by Congress
226 ALIENS
Trang 10on immigrants Second, it involves the use of
per-country caps Third, and most important,
numerically limited visas are organized along a
system of preferences that favors certain aliens
over others Every immigrant wants the best
chance to obtain a visa, but qualifying for the
easiest category—visas not subject to numerical
limitation—is quite difficult Congress has
reserved this category for immediate relatives
of U.S citizens, resident aliens returning from
temporary visits abroad, and former U.S
citizens Consequently, for the vast majority of
aliens who want to immigrate, demand is much
higher than the relatively short supply
pre-scribed by law
Though having no numerical limitation
makes it easier to obtain, the immediate-relative
visa still carries strict limitations Generally,
the term immediate relatives means children,
spouses, and parents, but unique rules apply to
children and spouses To qualify as a child, the
person must be unmarried and under 21 years of
age The law is also concerned with how the
parent came to have the child, and it applies
special age restrictions to legitimate and
illegiti-mate children, stepchildren, adopted children,
and orphans Spouses of U.S citizens must pass
the most demanding tests The law requires the
alien to have a “valid and subsisting marriage”
with the citizen under the laws of the country
where the marriage took place, and it considers a
wide variety of marriages insufficient for granting
the visa This severity is an answer to the common
abuse of marriage to obtain citizenship The
Immigration Marriage Fraud Amendments of
1986 impose criminal penalties for violations The
Fraud Amendments also impose a two-year
conditional residency requirement before alien
spouses and their sons and daughters may
petition for permanent-resident status
Three categories exist for visas subject to
numerical limitation: family sponsored,
em-ployment related, and so-called diversity
immi-gration The last is a special category created to
reverse the drastic reductions in immigration
from European countries, particularly Ireland
Effective after 1995, a formula was used to
determine whether in the previous five years a
country had been“underrepresented.” If so, an
alien from that country is eligible for one of
55,000 visas annually allocated to diversity
immigrants Aliens may apply once per year in
a lottery, making this a highly uncertain way to
obtain a visa Not everyone is eligible; applicants must generally have a high-school education and two years of work experience Different goals make more visas available to Hong Kong:
because of uncertainty over the transfer of the country to China, the law allotted 20,000 visas annually to certain Hong Kong citizens who were employees of U.S businesses, their spouses, and their children
The primary types of numerically limited visas—family-sponsored and employment-related—are organized into PREFERENCE catego-ries Preference means that the law allocates visas to certain aliens over others in order to promote such goals as preserving families, protecting U.S jobs, and admitting immigrants most likely to benefit the nation How the law ranks aliens can be seen from the numerical limits on each category Families are allotted 226,000 visas annually, with a somewhat flexible maximum of 480,000 in four preference categories Only 140,000 employment-related visas are allotted, in five preference categories
Unused visas from higher preference categories are reallocated to the lower categories
Preference in family-sponsored visas is deci-ded by the nature of an alien’s relationship to the petitioner:
First preference: Unmarried sons and daughters
of U.S citizens, who are too old to qualify (age 21 or older) for the nonnumerically limited immediate-relative visa: 23,400 visas plus any unused visas from the other family-sponsored preference classes
Second preference: Spouses, children, and un-married sons and daughters of aliens who are lawful permanent residents: minimum
of 114,200 visas Spouses and children are allocated 77 percent of the visas; unmarried sons and daughters (at least 21 years old),
23 percent
Third preference: Married sons and daughters of U.S citizens: 23,400 plus any unused visas from the first- and second-preference classes
Fourth preference: Brothers and sisters of U.S
citizens, if the citizen is at least 21 years old:
65,000 plus any unused visas from the three higher classes
Employment-related preferences are not based
on any familial relationship They focus on edu-cational attainment and stress occupations that are
ALIENS 227