26 C.F.R. §1.1441-1 Requirement for the deduction and withholding of tax
on payments to foreign persons.
(c ) Definitions
(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).
8 U.S.C. §1101(a)(3)
TITLE 8 > CHAPTER 12 > SUBCHAPTER I > § 1101
§ 1101. Definitions
(a) As used in this
(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.
§1101. See also Resident alien.
[Black's Law Dictionary, Sixth Edition, p. 71]
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
[Bouvier's Law Dictionary, 1856, Sixth Edition]
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.
v. Wong Kim Ark, 169 U.S. 649 (1898)]
Mathews v.Diaz, 426 U.S. 67 (1976)
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
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
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
v.Diaz, 426 U.S. 67 (1976)]
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.
149 U.S. 698, 724 (1893).
The Japanese Immigrant Case,
189 U.S. 86, 100—101 (1903), settled any lingering doubt that
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,
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 C.F.R. §§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.
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
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.
144 U.S. 47, 61—62.6
Fifty years later in dealing with a question of evidentiary competence
in Bridges v.
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.
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.,
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
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
supra, at 161). See
also United States
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
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
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
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
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
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. 7
Appellees' 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.
v. Mandel, 408 U.S. 753 (1972)]
Toll v. Moreno, 458 U.S. 1 (1982)
Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. See, e. g., Mathews v. Diaz, 426 U. S. 67 (1976); Graham v. Richardson, 403 U. S. 365, 377-380 (1971); Takahashi v. Fish & Game Comm'n, 334 U. S. 410, 418-420 (1948); Hines v. Davidowitz, 312 U. S. 52, 62-68 (1941); Truax v. Raich, 239 U. S. 33, 42 (1915). Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power "[t]o establish [a] uniform Rule of Naturalization," U. S. Const., Art. I, § 8, cl. 4, its power "[t]o regulate Commerce with foreign Nations", id., cl. 3, and its broad authority over foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936); Mathews v. Diaz, supra, at 81, n. 17; Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952).
Not surprisingly, therefore, our cases have also been at pains to note the substantial limitations upon the authority of the States in making classifications based upon alienage. In Takahashi v. Fish & Game Comm'n, supra, we considered a California statute that precluded aliens who were "ineligible for citizenship under federal law" from obtaining commercial fishing licenses, even though they "met all other state requirements" and were lawful inhabitants of the State. 334 U. S., at 414. In seeking to defend the statute, the State 11*11 argued that it had "simply followed the Federal Government's lead" in classifying certain persons as "ineligible for citizenship." Id., at 418. We rejected the argument, stressing the delicate nature of the federal-state relationship in regulating aliens:
"The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." Id., at 419 (emphasis added) (citation and footnote omitted).
12*12 The decision in Graham v. Richardson, supra, followed directly from Takahashi. In Graham we held that a State may not withhold welfare benefits from resident aliens "merely because of their alienage." 403 U. S., at 378. Such discrimination, the Court concluded, would not only violate the Equal Protection Clause, but would also encroach upon federal authority over lawfully admitted aliens. In support of the latter conclusion, the Court noted that Congress had "not seen fit to impose any burden or restriction on aliens who become indigent after their entry into the United States," id., at 377, but rather had chosen to afford "lawfully admitted resident aliens . . . the full and equal benefit of all state laws for the security of persons and property," id., at 378. The States had thus imposed an "auxiliary burde[n] upon the entrance or residence of aliens" that was never contemplated by Congress. Id., at 379.
Read together, Takahashi and Graham stand for the broad principle that "state regulation not congressionally sanctioned 13*13 that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress." De Canas v. Bica, 424 U. S. 351, 358, n. 6 (1976). To be sure, when Congress has done nothing more than permit a class of aliens to enter the country temporarily, the proper application of the principle is likely to be a matter of some dispute. But the instant case does not present such a situation, and there can be little doubt regarding the invalidity of the challenged portion of the University's in-state policy.
The Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. (1976 ed. and Supp. IV), represents "a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents." Elkins v. Moreno, 435 U. S., at 664. The Act recognizes two basic classes of aliens, immigrant and nonimmigrant. With respect to the nonimmigrant class, 14*14 the Act establishes various categories, the G-4 category among them. For many of these nonimmigrant categories, Congress has precluded the covered alien from establishing domicile in the United States. Id., at 665. But significantly, Congress has allowed G-4 aliens—employees of various international organizations, and their immediate families—to enter the country on terms permitting the establishment of domicile in the United States. Id., at 666. In light of Congress' explicit decision not to bar G-4 aliens from acquiring domicile, the State's decision to deny "in-state" status to G-4 aliens, solely on account of the G-4 alien's federal immigration status, surely amounts to an ancillary "burden not contemplated by Congress" in admitting these aliens to the United States. We need not rely, however, simply on Congress' decision to permit the G-4 alien to establish domicile in this country; the Federal Government has also taken the additional affirmative step of conferring special tax privileges on G-4 aliens.
As a result of an array of treaties, international agreements, and federal statutes, G-4 visaholders employed by the international organizations described in 8 U. S. C. § 1101(a)(15)(G)(iv) are relieved of federal and, in many instances, state and local taxes on the salaries paid by the organizations. For example, the international agreements governing the international banks for which the parents of the named respondents are employed specifically exempt the parents from all taxes on their organizational salaries. See Articles of Agreement of the International Bank for Reconstruction and Development, Art. VII, § 9(b), 60 Stat. 1458, T. I. A. S. No. 1502 (1945) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to executive 15*15 directors, alternates, officials or employees of the Bank who are not local citizens, local subjects, or other local nationals"); Agreement Establishing the Inter-American Development Bank, Art. XI, § 9(b),  10 U. S. T. 3029, 3096, T. I. A. S. No. 4397 (1959) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to. . . employees of the Bank who are not local citizens or other local nationals"). Not only have some of the specific tax exemptions contained in international agreements been incorporated into a federal statute, see 22 U. S. C. § 286h, but also the International Organizations Immunities Act has explicitly afforded a federal tax exemption for those G-4 visaholders employed by international organizations for which no treaty or international agreement has provided a tax exemption for foreign employees. § 4(b), 59 Stat. 670, reenacted, 68A Stat. 284, as § 893 of the Internal Revenue 16*16 Code of 1954, 26 U. S. C. § 893 ("Wages, fees, or salary of any employee [except citizens of the United States and of the Republic of the Philippines] of . . . an international organization. . ., received as compensation for official services to such . . . international organization shall not be included in gross income and shall be exempt from [federal] taxation").
In affording G-4 visaholders such tax exemption, the Federal Government has undoubtedly sought to benefit the employing international organizations by enabling them to pay salaries not encumbered by the full panoply of taxes, thereby lowering the organizations' costs. See 41 Op. Atty. Gen. 170, 172-173 (1954). The tax benefits serve as an inducement for these organizations to locate significant operations in the United States. See, e. g., H. R. Rep. No. 1203, 79th Cong., 1st Sess., 2-3 (1945); S. Rep. No. 861, 79th Cong., 1st Sess., 2-3 (1945). By imposing on those G-4 aliens who are domiciled in Maryland higher tuition and fees than are imposed on other domiciliaries of the State, the University's policy frustrates these federal policies. Petitioners' very argument in this Court only buttresses this conclusion. One of the grounds on which petitioners have sought to justify the discriminatory burden imposed on the named respondents is that the salaries their parents receive from the international banks for which they work are exempt from Maryland income tax. Indeed, petitioners suggest that the "dollar differential. . . at stake here [is] an amount roughly equivalent to the amount of state income tax an international bank parent is spared by treaty each year." Brief for Petitioners 23 (footnote omitted). But to the extent this is indeed a justification for the University's policy with respect to the named respondents, it is an impermissible one: The State may not recoup indirectly from respondents' parents the taxes that the Federal Government has expressly barred the State from collecting.
17*17 In sum, the Federal Government has not merely admitted G-4 aliens into the country; it has also permitted them to establish domicile and afforded significant tax exemptions on organizational salaries. In such circumstances, we cannot conclude that Congress ever contemplated that a State, in the operation of a university, might impose discriminatory tuition charges and fees solely on account of the federal immigration classification. We therefore conclude that insofar as it bars domiciled G-4 aliens (and their dependents) from acquiring in-state status, the University's policy violates the Supremacy Clause.
[Toll v. Moreno, 458 U.S. 1 (1982)]
March 10, 2004 Testimony
of Nina Olsen before House Ways and Means Committee on Individual
Taxpayer Identification Numbers (ITINs)
"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"