26 CFR 1.1441-1 Requirement for the deduction and withholding of tax on payments to foreign persons.
(c ) Definitions
(3) Individual.
(i) Alien individual.
The term alien individual means an individual who is not a citizen or a national of the United States. See Sec. 1.1-1(c).
TITLE 8 > CHAPTER 12 > SUBCHAPTER I > § 1101
(a) As used in this chapter—
(3) The term “alien” means any person not a citizen or national of the United States.
Black's Law Dictionary, Sixth Edition, p. 71:
A foreign born person who has not qualified as a citizen of the country; but an alien is a person within the meaning of the Fourteenth Amendment due process clause of the U.S. Constitution to same extent as a citizen. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 742, 98 L.Ed. 911. Any person not a citizen or national of the United States. 8 U.S.C.A. §1101. See also Resident alien.
Bouvier's Law Dictionary, 1856, Sixth Edition:
ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts. See Citizen, Inhabitant. 2. Aliens are subject to disabilities, have rights, and are bound to perform duties, which will be briefly considered. 1. Disabilities. An alien cannot in general acquire title to real estate by the descent, or by other mere operation of law; and if he purchase land, he may be divested of the fee, upon an inquest of office found. To this general rule there are statutory exceptions in some of the states; in Pennsylvania, Ohio, Louisiana, New Jersey, Rev. Laws, 604, and Michigan, Rev. St. 266, s. 26, the disability has been removed; in North Carolina, (but see Mart. R. 48; 3 Dev. R. 138; 2 Hayw. 104, 108; 3 Murph. 194; 4 Dev. 247; Vermont and Virginia, by constitutional provision; and in Alabama, 3 Stew R. 60; Connecticut, act of 1824, Stat. tit. Foreigners, 251; Indiana, Rev. Code, a. 3, act of January 25, 1842; Illinois, Kentucky, 1 Litt. 399; 6 Mont. 266 Maine, Rev. St,. tit. 7, c. 93, s. 5 Maryland, act of 1825, ch. 66; 2 Wheat. 259; and Missouri, Rev. Code, 1825, p. 66, by statutory provision it is partly so. 3. An alien, even after being naturalized, is ineligible to the office of president of the United States; and in some states, as in New York, to that of governor; he cannot be a member of congress, till the expiration of seven years after his naturalization. An alien can exercise no political rights whatever; he cannot therefore vote at any political election, fill any office, or serve as a juror. 6 John. R. 332. 4.-2. An alien has a right to acquire personal estate, make and enforce contracts in relation to the same - he is protected from injuries, and wrongs, to his person and property, his relative rights and character; he may sue and be sued. 5.-3. He owes a temporary local allegiance, and his property is liable to taxation. Aliens are either alien friends or alien enemies. It is only alien friends who have the rights above enumerated; alien enemies are incapable, during the existence of war to sue, and may be ordered out of the country. See generally, 2 Kent. Com. 43 to 63; 1 Vin. Ab. 157; 13 Vin. ab. 414; Bac. Ab. h.t.; 1 Saund. 8, n.2; Wheat
Cases Dealing with Aliens:
Chae Chan Ping v. United States, 130 US 581 (1889);
Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016 (1893)
Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625 (1953)
Harisiades v. Shaughnessy, 342 U.S. 580, 586, 587, 72 S.Ct. 512, 517 (1952).
U.S. v. Wong Kim Ark, 169 U.S. 649 (1898):
The acts of congress, known as the 'Chinese Exclusion Acts,' the earliest of which was passed some 14 years after the adoption of the constitutional amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. Ad the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the emperor of China, though having acquired a commercial domicile in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping v. U. S., 130 U.S. 581 , 9 Sup. Ct. 623; Nishimura Ekiu v. U. S., 142 U.S. 651 , 12 Sup. Ct. 336; Fong Yue Ting v. U. S., 149 U.S. 698 , 13 Sup. Ct. 1016; Lem Moon Sing v. U. S., 158 U.S. 538 , 15 Sup. Ct. 967; Wong Wing v. U. S., 163 U.S. 228 , 16 Sup. Ct. 977.
In Fong Yue Ting v. U. S., the right of the United States to expel such Chinese persons was placed upon the grounds that the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and independent [169 U.S. 649, 700] nation, essential to its safety, its independence, and its welfare; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the constitution, to intervene; that the power to exclude and the power to expel aliens rests upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and therefore that the power of congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by congress to depend. 149 U.S. 711, 713 , 714 S., 13 Sup. Ct. 1016.
In Lem Moon Sing v. U. S., the same principles were reaffirmed, and were applied to a Chinese person, born in China, who had acquired a commercial domicile in the United States, and who, having voluntarily left the country on a temporary visit to China, and with the intention of returning to and continuing his residence in this country, claimed the right under a statute or treaty to re-enter it; and the distinction between the right of an alien to the protection of the constitution and laws of the United States for his person and property while within the jurisdiction thereof, and his claim of a right to re-enter the United States after a visit to his native land, was expressed by the court as follows: 'He is none the less an alien, because of his having a commercial domicile in this country. While he lawfully remains here, he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country, and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or [169 U.S. 649, 701] naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot re-enter the United States in violation of the will of the government as expressed in enactments of the law-making power.' 158 U.S. 547, 548 , 15 S. Sup. Ct. 971.
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The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law.
Graham v. Richardson, 403 U.S. 365 , provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between [426 U.S. 67, 85] aliens and the States rather than between aliens and the Federal Government.
Insofar as state welfare policy is concerned, 24 there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States. 25
The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial Hospital v. Maricopa County, 415 U.S. 250 , is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the [426 U.S. 67, 86] county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in Shapiro v. Thompson, 394 U.S. 618 , required that it be justified by a compelling state interest. 26 Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travel - nor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not "political hypocrisy" to recognize that the Fourteenth Amendment's [426 U.S. 67, 87] limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization.
Finally, we reject the suggestion that U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 , lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens.
We hold that 1395o (2) (B) has not deprived appellees of liberty or property without due process of law.
Demore v. Kim,
538 U.S. 510,
123 S.Ct. 1708 (U.S.,2003)
It has been settled for over a century that all aliens within our territory are “persons” entitled to the protection of the Due Process Clause. Aliens “residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility.” Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893). The Japanese Immigrant Case, 189 U.S. 86, 100—101 (1903), settled any lingering doubt that the Fifth Amendment’s Due Process Clause gives aliens a right to challenge mistreatment of their person or property.
The constitutional protection of an alien’s person and property is particularly strong in the case of aliens lawfully admitted to permanent residence (LPRs). The immigration laws give LPRs the opportunity to establish a life permanently in this country by developing economic, familial, and social ties indistinguishable from those of a citizen. In fact, the law of the United States goes out of its way to encourage just such attachments by creating immigration preferences for those with a citizen as a close relation, 8 U.S.C. § 1153(a)(1), (3)—(4), and those with valuable professional skills or other assets promising benefits to the United States, §§1153(b)(1)—(5).
Once they are admitted to permanent residence, LPRs share in the economic freedom enjoyed by citizens: they may compete for most jobs in the private and public sectors without obtaining job-specific authorization, and apart from the franchise, jury duty, and certain forms of public assistance, their lives are generally indistinguishable from those of United States citizens. That goes for obligations as well as opportunities. Unlike temporary, nonimmigrant aliens, who are generally taxed only on income from domestic sources or connected with a domestic business, 26 U.S.C. § 872 LPRs, like citizens, are taxed on their worldwide income, 26 CFR §§1.1—1(b), 1.871—1(a), 1.871—2(b) (2002). Male LPRs between the ages of 18 and 26 must register under the Selective Service Act of 1948, ch. 625, Tit. I, §3, 62 Stat. 605.4 “Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society.” In re Griffiths, 413 U.S. 717, 722 (1973). And if they choose, they may apply for full membership in the national polity through naturalization.
The attachments fostered through these legal mechanisms are all the more intense for LPRs brought to the United States as children. They grow up here as members of the society around them, probably without much touch with their country of citizenship, probably considering the United States as home just as much as a native-born, younger brother or sister entitled to United States citizenship. “[M]any resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens.” Woodby v. INS, 385 U.S. 276, 286 (1966). Kim is an example. He moved to the United States at the age of six and was lawfully admitted to permanent residence when he was eight. His mother is a citizen, and his father and brother are LPRs. LPRs in Kim’s situation have little or no reason to feel or to establish firm ties with any place besides the United States.5
Our decisions have reflected these realities. As early as 1892, we addressed an issue of statutory construction with the realization that “foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice … is to be presumed.” Lau Ow Bew v. United States, 144 U.S. 47, 61—62.6 Fifty years later in dealing with a question of evidentiary competence in Bridges v. Wixon, 326 U.S. 135 (1945), we said that “the notions of fairness on which our legal system is founded” applied with full force to “aliens whose roots may have become, as they are in the present case, deeply fixed in this land,” id., at 154. And in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), we read the word “excludable” in a regulation as having no application to LPRs, since such a reading would have been questionable given “a resident alien’s constitutional right to due process.” Id., at 598—599.7 Kwong Hai Chew adopted the statement of Justice Murphy, concurring in Bridges, that “
‘once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all “persons” and guard against any encroachment on those rights by federal or state authority.’ ” 344 U.S., at 596—597, n. 5 (quoting Bridges, supra, at 161). See also United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”); Woodby, supra, at 285 (holding that deportation orders must be supported by clear, unequivocal, and convincing evidence owing to the “drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification”); Johnson v. Eisentrager, 339 U.S. 763, 770—771 (1950) (“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. … [A]t least since 1886, we have extended to the person and property of resident aliens important constitutional guarantees–such as the due process of law of the Fourteenth Amendment”). The law therefore considers an LPR to be at home in the United States, and even when the Government seeks removal, we have accorded LPRs greater protections than other aliens under the Due Process Clause. In Landon v. Plasencia, 459 U.S. 21 (1982), we held that a long-term resident who left the country for a brief period and was placed in exclusion proceedings upon return was entitled to claim greater procedural protections under that Clause than aliens seeking initial entry. The LPR’s interest in remaining in the United States is, we said, “without question, a weighty one.” Id., at 34. See also Rosenberg v. Fleuti, 374 U.S. 449 (1963); Kwong Hai Chew, supra.
Kleindienst v. Mandel, 408 U.S. 753 (1972)
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.S. 581, 609 (1889), and in Fong Yue Ting v. United States, 149 U.S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers - a power to be exercised exclusively by the political branches of government . . . ." Since that time, the Court's general reaffirmations of this principle have [408 U.S. 753, 766] been legion. 6 The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123 (1967). "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). In Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895), the first Mr. Justice Harlan said:
"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."
Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U.S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 530, that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued:"But the slate is not clean. As to the extent of the power of Congress under review, there is not merely `a page of history'. . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with [408 U.S. 753, 767] the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .
"We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens . . . ." Id., at 531-532.
We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by 212 (a) (28) (D) and (G) (v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate "for humane reasons and for reasons of public interest." S. Rep. No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government [408 U.S. 753, 768] advances no justification for failing to grant a waiver. They point to the fact that waivers have been granted in the vast majority of cases. 7Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under 212 (a) (28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under 212 (a) (28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or [408 U.S. 753, 769] courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker's ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive.
Appellees seek to soften the impact of this analysis by arguing, as has been noted, that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver. Brief for Appellees 26. The Government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. See Jay v. Boyd, 351 U.S. 345, 357 -358 (1956); Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957); Kimm v. Rosenberg, 363 U.S. 405, 408 (1960). This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.
The Government has chosen not to rely on the letter to counsel either in the District Court or here. The fact remains, however, that the official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again. With this, we think the Attorney General validly exercised the plenary power that Congress delegated to the Executive by 212 (a) (28) and (d) (3).
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been [408 U.S. 753, 770] firmly established. In the case of an alien excludable under 212 (a) (28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.
"Congress believed that the tax law should provide a more objective definition of residence for income tax purposes. Congress believed that prior law did not provide adequate guidance with respect to residence status..."
[. . .]
"Thus, Congress enacted IRC 7701 ( b ), which defines the terms "resident alien" and "nonresident alien"