CITES BY TOPIC:  nonresident alien

26 U.S.C. 7701(b)(1)(B) Nonresident alien

An individual is a nonresident alien if such individual is  neither a citizen of the United States nor a resident of the  United States (within the meaning of subparagraph (A)).

PDF Non-Resident Non-Person Position, Form #05.020 (OFFSITE LINK)

PDF IRS Form 1040NR:  Note it identifies "U.S. nationals" as "nonresident aliens"!

About IRS Form W-8BEN, Form #04.202 (OFFSITE LINK.  Members Only form)-how to fill out this VERY important form

Definition from IRS Publication 519:  Tax Guide for Aliens, Year 2000:

If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet one of the two tests described next under Resident Aliens.

  • Green Card Test
  • Substantial Presence Test

Definition on IRS form W-8BEN:

Any individual who is not a citizen or resident of the United States is a nonresident alien individual.  An alien individual meeting either the "green card test" or the "substantial presence test" for the calendar year is a resident alien.  Any person not meeting either test is a nonresident alien individual.

Additionally, an alien individual who is a resident of a foreign country under the residence article of an income tax treaty, or an alien individual who is a resident of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, or American Samoa is a nonresident alien individual.  See Pub 519, U.S. Tax Guide for Aliens, for more information on resident and nonresident alien status.

IRS Publication 519:  Tax Guide for Aliens

Kleindienst v. Mandel, 408 U.S. 753 (1972)

"It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904)United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950)Galvan v. Press, 347 U. S. 522, 530-532 (1954); see Harisiades v. Shaughnessy, 342 U. S. 580, 592 (1952)."

[Kleindienst v. Mandel, 408 U.S. 753 (1972)]

Cardenas v. Smith, 733 F.2d. 909 (1984)

A. Standing of a nonresident alien to assert constitutional claims.

The district court dismissed Cardenas' constitutional claims, reasoning:

This court has no basis for attempting to apply constitutional standards on behalf of a nonresident alien with respect to a res which is not subject to the court's control .... The res at issue here is the Swiss account in Switzerland. The court can take no action that would affect the status of the frozen accounts belonging to the plaintiff and damages are precluded absent compliance with the Federal Tort Claims Act.

Cardenas v. Smith, 555 F.Supp. at 540. At first blush, the district court's analysis could be interpreted as an application of the "local action" doctrine. Under that judge-made doctrine, "`local actions' must be brought in the district where the res that is the subject matter of the action is located." See C. WRIGHT, FEDERAL COURTS § 42, at 249 (4th ed. 1983). Wright notes that although the local action doctrine is usually discussed as a matter of venue, some courts have treated this concept as running to the court's jurisdiction. In any event, had the district court intended the local action concept to apply, it first would have had to consider whether the action here was local or transitory. Because it did not so consider, we must conclude that this doctrine was not the basis for its decision.

Instead, we read the court's opinion as holding that the plaintiff lacked standing to raise the tendered constitutional claims. This interpretation of the district court's holding is buttressed by the fact that the court observed that it could not redress the alleged injury, an observation that suggests that standing was the focal point of its analysis. Moreover, the district court dismissed the complaint, the proper result if a plaintiff lacks standing.

Before a federal court is empowered to conclude that a party has standing, that party must satisfy the constitutional requirements that devolve from the Article III rule that federal courts decide only "cases or controversies." The essential requirements of constitutional standing are "`some actual or threatened injury [suffered] as a result of the putatively illegal 913*913 conduct of the defendant,' and an injury that `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979)Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1979)). The injury in fact requirement assures that the plaintiff has a personal stake in the outcome of the controversy. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

Ms. Cardenas clearly suffered an injury in fact. Having received no notice, she found herself without access to her property, namely, that money which she allegedly had deposited in her Swiss bank account. It is beyond cavil that the deprivation of one's property is a sufficient injury to satisfy the injury in fact requirement.

That Cardenas is a foreign nonresident alien does not alter the fact that she has suffered a concrete injury in fact sufficient to ground Article III standing. For purposes of Article III standing, Cardenas' status as a nonresident alien does not obviate the existence of her injury; it is the injury and not the party that determines Article III standing. See generally Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Whether Cardenas is Colombian or American, she still has a personal stake that would be affected by a resolution of the controversy. The recent Supreme Court decision in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), supports this conclusion. In Verlinden, a case under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1330(a), a Dutch Corporation sued the Central Bank of Nigeria in federal court and alleged that the latter had breached a letter of credit. One issue was the constitutionality of the FSIA's grant of jurisdiction to federal courts to resolve disputes between foreign plaintiffs and foreign states. The Court found FSIA to be constitutional. Implicit in that conclusion is the proposition that Article III permits foreign plaintiffs who have suffered a concrete injury to sue in United States courts under at least some circumstances. Earlier cases of this circuit have similarly held. See, e.g., Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183 (D.C.Cir.1972)Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962).

Likewise, the location of the injury does not affect Cardenas' satisfaction of the Article III standing requirement. As an initial matter, we note that because the district court prematurely truncated discovery, we are unable to ascertain whether the offending injury occurred abroad or on American soil. For example, although the seized accounts were located in Switzerland, if Cardenas could demonstrate that she was the victim of a conspiracy within the Justice Department, at least part of the injury arguably would have occurred in this country. Assuming, however, that the injury occurred abroad, Cardenas could still satisfy the Article III standing requirements. An injury endured abroad is not less of an injury for Article III standing purposes because it happened on foreign soil. See, e.g., Toscanino v. United States, 500 F.2d 267, reh. denied, 504 F.2d 1380 (2d Cir.1974)See generally Reid v. Covert, 354 U.S. 1, 6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1956) (plurality) (opinion of Black, J.) (government actions against citizens abroad); Powell v. Zuckert, 366 F.2d 634 (D.C.Cir.1966) (same).

We therefore conclude that Cardenas has satisfied the Article III injury in fact requirement. That conclusion, however, does not end our Article III standing analysis. The injury suffered must be one that can fairly be traced to the government's action and one that is "likely to be redressed by a favorable decision." Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758See Common Cause v. Department of Energy, 702 F.2d 245, 250 914*914 (D.C.Cir.1983). In the present litigation, only the redressible injury component is in controversy. This component, however, is fatal to that part of Cardenas' complaint that seeks injunctive and declaratory relief.

There is little likelihood that the injunctive and declaratory relief Cardenas seeks would redress her injury since such relief is unlikely to result in the release of her accounts or otherwise compensate her for injuries endured. The Treaty provides no mechanism by which the United States Attorney General can order the Swiss to release the accounts or to reverse actions already taken. Indeed, the Treaty's entire scheme is directed at requests for, and the sharing of, information, documents, and witnesses. We certainly are without power to enforce an order issued directly against the Swiss government. Moreover, we are highly doubtful that a request to release the account, issued by the Attorney General pursuant to an order by an American court, would have any impact on litigation currently pending in the Swiss courts. In that vein, we note that the Swiss government has much at stake in that litigation, for if Cardenas is unsuccessful the money escheats to the Swiss.

A case which presented issues similar to the present case is Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C.Cir.1980), where a plaintiff challenged an Executive Agreement on air travel between the United States and the United Kingdom. This court found that the plaintiff lacked standing because there was not "a substantial likelihood that the court could redress the injury." The relief the plaintiff there requested could be obtained only by the consent of the British government. Id. at 261; see also Winpisinger v. Watson, 628 F.2d 133, 139 n. 29 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980). Similarly, the relief in the present case could be obtained only through the consent of the Swiss government. Accordingly, Cardenas lacks standing as to her claims for injunctive and declaratory relief.

Cardenas, however, also seeks compensatory damages from the American officials involved. A damage claim, by definition, presents a means to redress an injury. Although the complaint was imprecisely drawn — Cardenas named the Attorney General in his official capacity as the defendant — appellant's counsel in his brief and at oral argument indicated that the underlying theory for the damages claim was that articulated in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)(recognizing a cause of action for damages from federal officials who violate the Fifth Amendment). A Bivens action, if successful, could result in the assessment of damages against the involved federal officials. Because these damages would be recompense for injuries suffered, the court thereby could redress Cardenas' injuries. In light of the liberal rules of federal procedure, the district court, on remand, should allow Cardenas the opportunity to amend her complaint, so as to allege properly a Bivens-type cause of action. See C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1489, at 449 (1971) (appellate court can remand with directions to allow the appellant to amend pleadings).

We conclude that Cardenas has satisfied the Article III standing requirements. In addition to the constitutional limitations, however, the federal courts also have developed a set of prudential principles to guide standing decisions. A party must assert his own legal rights, and must assert more than "`generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60 (quoting Warth v. Seldin, 422 U.S. 490, 499-500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975)). Moreover, "the plaintiff's complaint [must] fall within the `zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. 454 U.S. at 475, 102 S.Ct. at 760 915*915 (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)).

This last element in the prudential standing inquiry — and the only element here at issue — has posed problems for courts and commentators. The zone of interests test has met with less than universal affection, and at least one commentator has observed that the test is "sometimes the law and usually is not." K. DAVIS, ADMINISTRATIVE LAW TREATISE ¶ 24:17, at 279 (2d ed. 1983). Although this circuit continues to adhere to that test, we have noted the difficulties involved in its application. See, e.g., American Friends Service Committee v. Webster, 720 F.2d 29 (D.C.Cir.1983). As we here attempt to do so, our inquiry is guided by the following principle: "The would-be plaintiff's interest in the relevant law is ascertained by injury in fact; the law's interest in the would-be plaintiff is determined by the `zone of interests' test." Capital Legal Foundation v. Commodity Credit Corporation, 711 F.2d 253, 259 (D.C.Cir.1983).

We thus turn to the zone of interests test to determine whether Cardenas' interest is one protected by the Fourth or Fifth Amendments. See, e.g., Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 320 n. 3, 97 S.Ct. 599, 602 n. 3, 50 L.Ed.2d 514 (1977) (zone of interests test applied to suit brought under the commerce clause). Cardenas here asserts a right under these Amendments to be free from unreasonable interference by American officials with property that is owned by a nonresident alien and that is situated on foreign soil. To apply the zone test, we must ask whether this interest enjoys the protection of the Fourth and Fifth Amendments. We note that this inquiry tends to meld into the question of whether Cardenas has a cause of action to enforce these Amendments. See Bell v. Hood,327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Whether the question is framed as one of standing or as whether Cardenas has a cause of action, the essential inquiry is whether the plaintiffs ought to be able to invoke the constitutional guarantees in question. See Nichol, Standing on the Constitution: The Supreme Court and Valley Forge, 61 N.C.L. REV. 798 (1983); Currie, Misunderstanding Standing, 1981 SUP.CT.REV. 41, 43 ("Whether the answer is labeled `standing' or `cause of action,' the question is whether the ... Constitution implicitly authorizes the plaintiff to sue.").

It is beyond peradventure that a foreign nonresident, non-hostile alien may, under some circumstances, enjoy the benefits of certain constitutional limitations imposed on United States actions. In more and more circumstances, federal courts have recognized the standing of nonresident aliens to invoke the protections afforded by the United States Constitution. For example, the Ninth Circuit recently held that residents of Australia have standing to raise objections under the United States Constitution to the limitations on liability imposed by the Warsaw convention. In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1308 n. 6 (9th Cir.1982). Similarly, in United States v. Toscanino, 500 F.2d 267,reh. denied, 504 F.2d 1380 (2d Cir.1974), the Second Circuit held that an Italian citizen enjoyed constitutional protections when American agents kidnapped him from Uruguay. See also United States v. Demanett, 629 F.2d 862, 866 (3d Cir.1980) (court assumes that both American citizens and Colombian nationals aboard a vessel on the high seas protected by the Fourth Amendment), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981)United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir.1978) (Fourth Amendment's protections can extend to aliens); Porter v. United States, 496 F.2d 583, 591, 204 Ct.Cl. 355, (1974) ("The just compensation clause of the Fifth Amendment has, in fact, been applied to takings of property outside the United States, even in the absence of congressional extension of the Constitution to such foreign soil."), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975)United States v. Tiede, 86 F.R.D. 227 (United States Court for Berlin 1979) (even abroad, conduct of American officials must be measured by 916*916 Constitution); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976) (nonresident alien has standing in certain circumstances). Deportation and immigration cases stand on a special footing. See Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude is a sovereign prerogative.") (emphasis added). Likewise, cases that address the rights of aliens during periods of war involve considerations not present here. See Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950).

In this circuit, the analysis of the nonresident alien's standing is in a state of evolution. An early case in this development is Pauling v. McElroy (Pauling I), 278 F.2d 252 (D.C.Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). There, a group, including some non-American residents, sought to enjoin the testing of nuclear weapons. The court found that plaintiffs had not suffered an injury and accordingly concluded that they lacked standing. In a footnote, the court noted: "The nonresident aliens here plainly cannot appeal to the protection of the Constitution or laws of the United States." 278 F.2d at 254 n. 3. Although this dictum appears to be a blanket denial of the power of a nonresident alien to assert constitutional rights, read in context this statement suggests only that the foreign plaintiffs, like their American counterparts, could not succeed absent an allegation of a specific, actual injury. A subsequent analysis of Pauling I by this court comports with the limited view we take of that case. Pauling v. McNamara (Pauling II), 331 F.2d 796, 798 (D.C.Cir.), cert. denied, 377 U.S. 933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964) (Pauling I explained as holding that national policy decisions present no judicially cognizable issues). In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962), this court moved away from the sweeping generalities of Pauling I. In Kukatush, the case on which the district court here relied, Canadian plaintiffs alleged that the SEC had violated the Constitution and the APA. Although the court concluded that the specific plaintiffs lacked standing, it observed that a nonresident alien could have standing if the court had jurisdiction of the subject res or if the case involved "the preferred rights under immigration laws." Id. at 650. Although the present litigation involves neither situation, the court in Kukatushindicated that the situations it identified were merely exemplary rather than all-inclusive. Most importantly, the court observed that "the decisions over the years disclose a definite trend to relax the rigidities of earlier cases." Id. The "relaxation of rigidities" in the area of alien standing has continued over the years. Ten years later, in Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183 (D.C.Cir.1972), the issue was not standing under the Constitution but rather standing under the APA and the Foreign Assistance Act of 1961, 22 U.S.C. § 2151 et seq. (1982). Although the case thus is not directly apposite, the court's dictum is highly relevant insofar as it revealed an intent to adopt a case-by-case analytical approach to standing questions that involve nonresident aliens. And, in Sami v. United States, 617 F.2d 755, 769 (D.C.Cir.1979), this court was willing to assume without deciding that an alien could raise a constitutional challenge to American actions within the United States that led to his arrest in Germany by German officials.

It is therefore clear that this circuit and other circuits have recognized situations in which nonresident aliens can invoke the restraints imposed by the Constitution on the American government. Yet a review of the case law fails to reveal any consistent definition of those situations, or indeed, any concise definition of that group of nonresident aliens within the Constitution's protection. Our observation in Sami, is as true today as when it first was made. "The extent to which the Constitution's protections shield citizens, resident-aliens, or aliens from actions in other countries is 917*917 not clear.... Much may depend on the status of the individual complaining and the actor complained of." Sami v. United States, 617 F.2d at 773 n. 4.

Despite the lack of clarity of the law in this area, the precedents are consistent on at least one point. The universe of nonresident aliens who can invoke the Constitution is not limited to situations in which the res is subject to the court's jurisdiction. In many cases the location of the res, if any, has not been considered in the courts' standing analysis. See, e.g., In re Aircrash in Bali, Indonesia on April 22, 1974, supra; United States v. Demanett, supra; United States v. Toscanino, supra. Indeed, in this case a "res" analysis would be inappropriate since the cause of action is one for damages under a Bivens-type theory. And in Kukatush, the case upon which the district court relied, we indicated only that the presence of the res was the indicia of one category in which the alien had standing. Therefore, in treating the presence of the res as a necessary prerequisite to Cardenas' standing, the district court erred.

Nonetheless, we are not prepared today to conclude that Cardenas has standing to invoke the protection of the Constitution against actions of the American government. Given the difficulties and far-reaching consequences of a doctrine that enhances an alien's standing to put on a constitutional mantle, we are reluctant to apply such a rationale to a case where the complaint is broadly drawn, the facts remain obscure, and where, in any event, such a conclusion may be unnecessary to the ultimate disposition of the plaintiff's claims.

The predicate to Cardenas' reliance on the protections afforded by the Constitution is, of course, action by the United States government or its agent, the Attorney General. The shield of the Fourth and Fifth Amendments does not protect an individual from actions taken exclusively by foreign governments. Accordingly, if the Attorney General took no action that relates to Amparo Cardenas — for example, if, as the government avers, the request to the Swiss only involved appellant's brother and if the American government learned of Amparo Cardenas only upon the receipt of the Swiss documents — then Cardenas' interests are not protected by either the Fourth or Fifth Amendments. Whatever harm Cardenas suffered may entirely be a function of Swiss actions. Claims for relief from such action cannot be addressed to an American court. Because the district court precipitously truncated appellant's discovery attempts, we are without any evidence regarding this critical threshold element. We thus are without any facts to guide our standing analysis. Accordingly, we reverse and remand.

Upon remand, the district court initially should allow discovery to the extent necessary to reveal the substance of the Attorney General's request to the Swiss. If the district court becomes satisfied that, as the government alleges, the communication only identified appellant's brother, and/or only sought informationfrom the Swiss, then the case may be at an end. If, on the other hand, the district court finds that the communication implicated Cardenas herself, then the court should consider whether additional discovery is necessary so as to enable it to evaluate whether Cardenas is in that group of aliens who are the intended beneficiaries of the relevant constitutional guarantees. We intimate no opinion, however, as to whether, upon a more complete development of the facts, Cardenas will be able to establish standing.

[Cardenas v. Smith, 733 F.2d. 909 (1984)]

Johnson v. Eisentrager, 339 U.S. 763 (1950

The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v. Watkins, 335 U. S. 160.[7]

776*776 The standing of the enemy alien to maintain any action in the courts of the United States has been often challenged and sometimes denied. The general statement was early made on combined authority of Kent and Story "That they have no power to sue in the public courts of the enemy nation." Griswold v.Waddington, 16 Johns. (N. Y.) 438, 477. Our rule of generous access to the resident enemy alien was first laid down by Chancellor Kent in 1813, when, squarely faced with the plea that an alien enemy could not sue upon a debt contracted before the War of 1812, he reviewed the authorities to that time and broadly declared that "A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity." Clarke v. Morey, 10 Johns. (N. Y.) 70,72. A unanimous Court recently clarified both the privilege of access to our courts and the limitations upon it. We said: "The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today." Ex parte Kawato,317 U. S. 69, 75.

But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy. Our law on this subject first emerged about 1813 when the Supreme Court of the State of New York had occasion, in a series of cases, to examine the foremost authorities of the Continent and of England. It concluded the rule of the common law and the law of nations to be that alien enemies resident in the country of the enemy could not maintain an action in its courts during the period of hostilities. Bell v. Chapman, 10 Johns. (N. Y.) 183Jackson v. Decker, 11777*777 Johns. (N. Y.) 418Clarke v. Morey, 10 Johns. (N. Y.) 70, 74-75. This Court has recognized that rule, Caperton v. Bowyer, 14 Wall. 216, 236Masterson v.Howard, 18 Wall. 99, 105, and followed it, Ex parte Colonna, 314 U. S. 510, and it continues to be the law throughout this country and in England.[8]

[Johnson v. Eisentrager, 339 U.S. 763 (1950]

Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686 (2004)

In addition to invoking the District Court's jurisdiction under 2241, the Al Odah petitioners' complaint invoked the court's jurisdiction under 28 U.S.C. 1331, the federal-question statute, as well as 1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed the claims founded on 1331 and 1350 for lack of jurisdiction, even to the extent that these claims “deal only with conditions of confinement and do not sound in habeas,” because petitioners lack the “privilege of litigation” in U.S. courts. 321 F.3d, at 1144 (internal quotation marks omitted). Specifically, the court held that because petitioners' 1331 and 1350 claims “necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute,” they, like claims founded on the habeas statute itself, must be “beyond the jurisdiction of the federal courts.” Id., at 1144-1145.

As explained above, Eisentrager itself erects no bar to the exercise of federal-court jurisdiction over the petitioners' habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “ ‘privilege of litigation’ ” in U.S. courts. 321 F.3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578, 28 S.Ct. 337, 52 L.Ed. 625 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the *485 protection of their rights”). And **2699 indeed, 28 U.S.C. 1350 explicitly confers the privilege of suing for an actionable “tort ... committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims.

[Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686 (2004)]

8 C.F.R.  §316.5(c)(2): Residence in the United States

[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR316.5]
[Page 716-718]

Sec. 316.5  Residence in the United States.
(c) Disruption of continuity of residence--

    (2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident.

An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.


When people read Pub 519 above and interpret it literally, they will not conclude they are nonresident aliens because they haven't taken the time to learn the tricky definitions being used.  They will erroneously say, based on fraudulent IRS publications, that they meet the "substantial presence test" and therefore are considered resident aliens.  The important thing to remember as you determine whether you meet the substantial presence test is:

  • IRS Pub. 519 states that "United States" includes the 50 states.
  • You should NOT and CANNOT rely on fraudulent IRS publications, as above, to sustain a position or a good-faith belief, and therefore you should not assume that "United States" includes non-federal areas within the 50 states.  This is covered extensively in sections 3.15 and of The Great IRS Hoax.  Because you can't rely on IRS Publications or forms to sustain a position, then you have no choice but to rely on the law, which includes the Internal Revenue Code and the Treasury Regulations found in 26 C.F.R.
  • "United States", in the context of natural persons, cannot include nonfederal areas of the 50 states because of constitutional prohibitions against direct taxes found in Article 1, Section 9, Clause 4 and Article 1, Section 2, Clause three of the U.S. Constitution.
  • Another interesting fact to consider when you fill out your W-8 or W-8BEN form is that the entire Internal Revenue Code does not define the term "individual" to mean “natural person”!  The closest it comes is in 26 U.S.C. 7701(a)(1), where it defines “person” to include “individual” but not natural person, which is the proper legal term.  The word “individual” is then never defined anywhere in the Internal Revenue Code, so we have to use the legal definition.  If we look up the definition of “individual” in Black’s Law Dictionary, Sixth Edition, page 773, we find:

    Individual.  As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons.

  • So naming “individuals” as “persons” liable for tax in 26 U.S.C. 7701(a)(1) still doesn’t imply natural persons like you and me, and according to the above legal definition, “individual” most commonly refers to artificial persons, which in this case are federal corporations and partnerships as we said earlier in this chapter.  The only thing Congress has done by using the word “individual” in the definition of “person” is create a circular definition.  Such a circular definition is also called a “tautology”: a word which is defined using itself, which we would argue doesn’t define anything!  If Congress wants to include natural persons as those liable for the income tax, then they must explicitly say so or a Internal Revenue Code is void for vagueness.  At least the California Revenue and Taxation Code defines it correctly:

17005.  "Individual" means a natural person.

  • Since we can’t find the definition in the Internal Revenue Code, then it must be buried somewhere in the regulations.  After searching all 17,000 pages of the the regulations (26 CFR) electronically, below is the only definition of “individual” we could find, which also appeared earlier in section 5.5.1

    26 C.F.R. §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).

  • There you have it, if you aren’t a U.S. citizen, the only other thing you can be is a nonresident alien and still be the “individual” mentioned in 26 U.S.C. 7701(a)(1) who is the subject of the income tax in Subtitle A!  If the Internal Revenue Code was written unambiguously, then it would define “Individual” to mean only federal corporations or federal partnerships, which is why they chose to define it ambiguously in the first place!

  • If the Internal Revenue Code was written unambiguously, then it would define “Individual” to mean only federal corporations or federal partnerships, which is why they chose to define it ambiguously in the first place.

  • Investigating this matter of the definition of “person” further, we find that there is a dead pointer in 4 U.S.C. 110(a) which points to a repealed 26 U.S.C. 3797 definition of the term "person".  You can't know whether you , as a “natural person” fit the description of "person" found in the tax code unless and until it is clearly and unambiguously defined to mean “natural person”, which it is not anywhere in subtitles A through C.  The closest realistic thing we have to a definition of the term "person" is in 26 C.F.R. 301.6671-1, which defines who penalties may be levied against under Subtitle F of the Internal Revenue Code:

[Code of Federal Regulations]

[Title 26, Volume 17, Parts 300 to 499]

[Revised as of April 1, 2000]

From the U.S. Government Printing Office via GPO Access

[CITE: 26CFR301.6671-1]

[Page 402]


Additions to the Tax and Additional Amounts--Table of Contents

Sec. 301.6671-1 Rules for application of assessable penalties.

(b) Person defined.


For purposes of subchapter B of chapter 68, the term ``person'' includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.

  • The reason the government won't define the term "person" is because the U.S. Supreme Court in Eisner v. Macomber, 252 U.S. 189 ruled that

“In order, therefore, that the [apportionment] clauses cited from article I [2, cl. 3 and 9, cl. 4] of the Constitution may have proper force and effect …[I]t becomes essential to distinguish between what is an what is not ‘income,’…according to truth and substance, without regard to form.  Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone, it derives its power to legislate, and within those limitations  alone that power can be lawfully exercised… [pg. 207]…After examining dictionaries in common use we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act of 1909, Stratton’s Independence v. Howbert, 231 U.S. 399, 415, 34 S.Sup.Ct. 136, 140 [58 L.Ed. 285] and Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S.Sup.Ct. 467, 469, 62 L.Ed. 1054…”

[emphasis added]

  • In the case of Doyle v. Mitchell Brothers Co., 247 U.S. 179, 185, 38 S.Ct. 467 (1918) referenced above in Eisner, we find that the U.S. Supreme court said:

    “…Whatever difficulty there may be about a precise scientific definition of ‘income,’ it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain or increase arising from corporate activities.”

    Doyle v. Mitchell Brothers Co., 247 U.S. 179, 185, 38 S.Ct. 467 (1918):

    [emphasis added]

  • In the case of  Stratton’s Independence v. Howbert, 231 U.S. 399, 414, 58 L.Ed. 285, 34 Sup.Ct. 136 (1913):

    “This court had decided in the Pollock Case that the income tax law of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to populations, as prescribed by the Constitution.  The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation…Flint v. Stone Tracy Co., 220 U.S. 107, 55 L.Ed. 389, 31 Sup.Ct.Rep. 342, Ann. Cas.”

  • When the Supreme Court says above that "income" means corporate profit, it means corporate profit from federal corporations.  State-chartered corporations are exempt, because the Supreme Court has ruled that the income tax is an indirect excise tax on privileges.  To tax a government privilege requires receipt of the privilege, and state corporations do not receive privileges, including the privilege of existing, from the federal government.