Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P24 pdf

Controversy continues to surround the ATF.
Some critics say that its agents are not sufficiently
trained to carry out the types of operations its
administrators seem to favor. Others contend
that it lacks a coherent mission and that many
of its duties, such as enforcement of alcohol
regulations, are better suited to other agencies.
The move toward a compl ete split between
the agencies was expected to take some time.
Information on the ATF is available online at
www.aft.gov.
FURTHER READINGS
Bureau of Alcohol, Tobacco, Firearms, and Explosives Web
site. “History of ATF from Oxford Univ. Press, Inc.
1789–1998 U.S.” Available online at .
gov/about/atfhistory.htm; website home page: http://
www.atf.gov (accessed December 9, 2009).
Reavis, Dick J. 1998. The Ashes of Waco: An Investigation.
New York: Syracuse Univ. Press.
U.S. Government Printing Office Web site. Available online
at (accessed July 4, 2009).
CROSS REFERENCES
Alcohol; Branch Davidian Raid; Explosives; Gun Control;
Weapons.
ALDERMAN OR ALDERWOMAN
A public officer of a town or city council or a local
legislative body who is elected to the position by
the persons he or she represents.
ALEATORY CONTRACT
A mutual agreement between two parties in which
the performance of the contractual obligations of

one or both parties depends upon a fortuitous event.
The most common type of aleatory contract
is an insurance policy in which an insured pays
a premium in exchange for an insurance
company’s promise to pay
DAMAGES up to the
face amount of the policy in the event that one’s
house is destroyed by fire. The insurance
company must perform its obligation only after
the fortuitous event, the fire, occurs.
v
ALEXANDER, JAMES
James Alexander, born in 1691 in Scotland, was
an eminent lawyer who became famous for his
support of
FREEDOM OF THE PRESS.
In 1715 Alexander immigrated to America,
and began a career of public service to New York
and New Jersey. He performed the duties of
surveyor general for the Province of New Jersey
in 1715, and three years later served as recorder
of Perth Amboy.
Alexander participated in the Council of New
York from 1721 to 1732 but continued to be active
in New Jersey. He was admitted to the New Jersey
Provincial bar in 1723, and joined the Council of
New Jersey in that same year, serving until 1735.
From 1723 to 1727 Alexander performed the
duties of New Jersey attorney general.
In 1735 journalist John Peter Zenger was on

trial, accused of libelous attacks on the adminis-
tration of New York Governor William Cosby.
Alexander served as codefense lawyer at this trial,
and
ALEXANDER HAMILTON pleaded the case. Zenger
was acquitted, and the success of this defense was a
triumph for the principles of a free press.
Alexander died in Albany, New York, on
April 12, 1756.
ALIAS
[Latin, Otherwise called.] A term used to indicate
that a person is known by more than one name.
Alias is a short and more popular phrase for
alias dictus. The abbreviation a.k.a., also known
as, is freque ntly used in connection with the
description of a person sought by law
James Alexander 1691–1756
1664 British bought
New Amsterdam
from Dutch; renamed
it New York
1691 Born,
Scotland
1715 Immigrated to America;
became surveyor
general for New Jersey
1723–27
Attorney
General
of New Jersey

1718 Served as recorder of Perth Amboy (New Jersey)
1735 Served as
codefense lawyer for
Zenger trial
1756 Died,
Albany, N.Y.
1775 American
Revolution began
◆
◆
◆
◆
◆
❖
❖
▼▼
▼▼
16751675
17251725
17501750
17751775
17001700
I THINK IT
ABSOLUTELY
NECESSARY THAT
SOME PERSON BE
HERE TO DEFEND
ZENGER.
—JAMES ALEXANDER
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

218 ALDERMAN OR ALDERWOMAN
enforcement officers to disclose the names that
the person has been known to use. A fictitious
name assumed by a person is popularly termed an
alias.
ALIAS WRIT
A second writ, or court order, issued in the same
case after an earlier writ of that kind has been
issued but has not been effective.
ALIEN AND SEDITION ACTS
In 1798 the Federalist-controlled Congress passed
four acts to empower the president of the United
States to expel dangerous aliens from the country;
to give the president authority to arrest, detain, and
deport resident aliens hailing from enemy countries
during times of war; to lengthen the period of
naturalization for immigrants; and to silence
Republican criticism of the Federalist Party. Also
an act passed by Congress in 1918 during World
War I that made it a crime to disrupt military
recruiting or enlistments, to encourage support for
Germany and its allies or disrespect for American
war efforts, or to otherwise bring the U.S. govern-
ment, its leaders, or its symbols into disrepute.
The Alien and Sedition Acts of 1798
Passions over the French Revolution split early
American politics. Having endured Shays’s Rebel-
lion and the
WHISKEY REBELLION, Federalists
saw much to fear in the French Revolution. On

the other hand, Democra tic-Republicans, le d
by
THOMAS JEFFERSON, proudly supported the
French Revolution as the progeny of the American
Revolution. Democratic-Republicans still viewed
Britainasanenemy,whiletheFederalistsregarded
Britain as a bulwark against French militancy.
In early 1798
JOHN QUINCY ADAMS, son of
President
JOHN ADAMS and the U.S. ambassador
to Prussia, advised his father that France
intended to invade America’s western frontier.
Jonathon Dayton, speaker of the U.S. House of
Representatives, speculated publicly that troops
already massed in French ports were destined
for North America. Federal officials feared parts
of America were rife with French agents and
sympathizers who might rise up in support of
an invasion. George Tucker, professor of Law at
the College of William and Mary, predicted that
100,000 U.S. inhabitants, including himself,
would join a French invading army. Former
president
GEORGE WASHINGTON, summoned from
retirement to lead the U.S. Army against a
possible French in vasion, expressed concerns
that France would invade the southern states
first, “because the French will expect from the
TENOR of the debates in Congress to find more

friends there.”
Congress responded to these concerns by
enacting the Alien and Sedition Acts, the
popular names for four laws passed in 1798.
On June 18 Congress passed the
NATURALIZATION
Act, which extended from five to 14 years the
period of residence required for alien immi-
grants to become full U.S. citizens (1 Stat. 566).
On June 25 Congress passed the Alien Act,
which authorized the president to expel,
without a hearing, any alien the president
deemed “dangerous to the peace and safety”
of the United States or whom the president
suspected of “treasonable or secret” inclinations
(1 Stat. 570). On July 6 Congress passed the
Alien Enemy Act, which authorized the presi-
dent to arrest, imprison, or banish any resident
alien hailing from a country against which the
United States had declared war (1 Stat. 577).
None of these first three acts had much
practical impact. The Naturalization Act con-
tained a built-in window period that allowed
resident
ALIENS to become U.S. citizens before
the fourteen-year requirement went into effect.
President Adams never invoked the Alien Act,
and the passing of the war scare in 1789
rendered the Alien Enemies Act meaningless.
However, the Sedition Act deepened parti-

san political positions between the
FEDERALIST
PARTY
and the DEMOCRATIC-REPUBLICAN PARTY. The
Sedition Act made it a high MISDEMEANOR,
punishable by fine,
IMPRISONMENT, or both, for
citizens or aliens (1) to oppose the execution of
federal laws; (2) to prevent a federal officer from
performing his or her duties; (3) to aid “any
INSURRECTION, RIOT, UNLAWFUL ASSEMBLY, or com-
bination”; or (4) to make any defamatory
statement about the federal government or the
president (1 Stat. 596).
Because the Federalists controlled Congress
and the White House, Republicans believed
these laws were aimed at silencing Jeffersonian
critics of the Adams administration and its laws
and policies. Eighteen people were indicted
under the Sedition Act of 1798; 14 were
prosecuted, and 10 convicted, some of whom
received prison sentences.
The validity of the Sedition Act was never
tested in the U.S. Supreme Court before it
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIEN AND SEDITION ACTS 219
expired in 1801. But Congress later passed a law
that repaid all fines collected under it, and
Jefferson, after becoming president in 1801,
pardoned all those convicted under the act.

Before becoming president, Jefferson joined
Madison in voicing opposition to the Sedition
Act by drafting the Virginia and Kentucky
Resolutions. Jefferson was responsible for
drafting the two Kentucky Resolutions, while
Madison penned the one Virginia
RESOLUTION.
The Virginia and Kentucky Resolutions con-
demned the Sedition Act as a violation of the
Free Speech Clause to the
FIRST AMENDMENT of
the U.S. Constitution. The resolutions also
argued that Congress had exceeded its powers
by passing the law in the first place, because
Congress may only exercise those powers
specifically delegated to it, and nowhere in
Article I of the Constitution is authority given
to the legislative branch to regulate political
speech. The Kentucky state legislature passed its
two resolutions on November 16, 1798, and
November 22, 1999, whereas Virginia passed its
one resolution on December 24, 1798.
Sedition Act of 1918
Concern over disloyalty during wartime provid-
ed the backdrop for the second Sedition Act in
U.S. history. In April 1917 the United States
entered
WORLD WAR I when Congress declared
war against Germany and its allies. A month
later, the Selective Service Act reinstated the

military draft. Both the draft and U.S. entry into
the war were met with
PROTEST at home.
Worried that anti-war protestors might inter-
fere with the prosec ution of the war, Congress
passed the Sedition Act of 1918.
An amendment to the
ESPIONAGE ACT OF 1917,
the Sedition Act of 1918 made it a
FELONY (1) to
convey false statements interfering with Ameri-
can war efforts; (2) to willfully employ “disloyal,
profane, scurrilous, or abusive language” about
the U.S. form of government, the Constitution,
the flag, or U.S. military or naval forces; (3) to
urge the curtailed production of necessary war
materials; or (4) to advocate, teach, defend, or
suggest the doing of any such acts. Violations
were punishable by fine, imprisonment, or both.
The law was aimed at curbing political
DISSENT
expressed by socialists, anarchists, pacifists, and
certain labor leaders.
The U.S. Supreme Court upheld the Sedition
Act of 1918 over free speech objections made by
civil libertarians. However, in a famous dissent-
ing opinion that shaped First Amendment law
for the rest of the twentieth century, Associate
Justice Oliver Wendel l Holmes Jr. encouraged
courts to closely scrutinize prosecutions under

the Sedition Act to make sure that only those
individuals who created a “clear and present
danger” of immediate criminal activity were
convicted (
ABRAMS V. UNITED STATES, 250 U.S. 616,
1180, 40 S. Ct. 17, 63 L. Ed. 1173 [1919]).
FURTHER READINGS
Miller, John Chester. 1951. Crisis in Freedom: The Alien and
Sedition Acts. Boston: Little, Brown.
Moore, Wayne D. 1994. “Reconceiving Interpretive Auton-
omy: Insights from the Virginia and Kentucky Resolu-
tions.” Constitutional Commentary 11 (fall).
Smith, James Morton. 1967. Freedom’s Fetters: The Alien and
Sedition Laws and American Civil Liberties. Ithaca, NY:
Cornell Univ. Press.
CROSS REFERENCES
Aliens “Aliens and Civil Rights” (Sidebar); Espionage;
Freedom of Speech.
ALIEN ENEMY
In international law, a foreign-born citizen or
subject of a nation or power that is hostile to the
United States.
An alien enemy is an individual who, due to
permanent or temporary allegiance to a hostile
power, is regarded as an enemy in wartime.
Under federal law, an alien enemy is a native,
citizen, or subject of a foreign nation, state, or
sovereign with which the United States is at war.
Such a person is considered an alien enemy as
long as the United States remains at war as

determined through
PROCLAMATION by the presi-
dent or
RESOLUTION by Congress. 8 C.F.R. §
331.1 (2002). During times of declared war,
Congress has permitted the president to order
the apprehension, restraint, and
DEPORTATION of
alien enemies. 50 U.S.C.A. § 21 (2003).
A citizen or subject of an enemy country,
residing in the United States, under license or
permission of the U.S. Government, express or
tacit, and peacefully carrying on his or her
ordinary vocation, is not under disability in the
civil courts, and may institute an action to
enforce his or her rights during the continuance
of the war, or
PROSECUTE such an action already
instituted before the war. A resident alien
enemy is precluded from bringing suit in the
courts of this country only so far as this
preclusion is necessary to prevent the use of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
220 ALIEN ENEMY
the courts to accomplish a purpose that might
hamper the war effort or give aid to the enemy.
The term alien enemy, as it is defined by
federal law, does apply easily to indiv iduals who
belong to organizations that are not affiliated
with a foreign sovereign. Nevertheless, the

treatment of such
ALIENS mirrors treatment
permitted by federal law for aliens who are
citizens of foreign nations. In the wake of the
SEPTEMBER 11TH ATTACKS, Congress passed the
Authorization for the Use of Military Force
JOINT
RESOLUTION
, Pub. L. No. 107-40, 115 Stat. 224,
permitting the president to use force to detain
and try non-citizens in the
WAR ON TERRORISM.On
November 13, 2001, President
GEORGE W. BUSH
issued a military order [66 Fed. Reg. 57,831–
57,836 (2001)] setting forth the military’s policy
for the treatment of non-citizens in the war on
TERRORISM. The order applies to individuals who
are or were members of the terrorist organization
al Qaeda; have engaged in, aided or abetted, or
conspired to commit acts of international
terrorism; or have harbored such a non-citizen.
FURTHER READINGS
Green, Leslie C. 1999. Essays on the Modern Law of War.
2d ed. Ardsley, N.Y.: Transnationals.
Fehlings, Gregory. 2002. “Storm on the Constitution: The
First Deportation Law.” Tulsa Journal of Comparative
and International Law 63.
Levie, Howard S. 1993. Terrorism in War: The Law of War
Crimes. Dobbs Ferry, N.Y.: Oceana.

Schmidt, Michael N., and Leslie C. Green. 1997. Levie on the
Law of War. Newport, R.I.: Naval War College.
ALIENABLE
The character of proper ty that makes it capable of
sale or transfer.
Absent a restriction in the owner’s right,
interests in real property and tangibl e personal
property are generally freely and fully alienable by
their nature. Likewise, many types of intangible
personal property, such as a patent or trademark,
are alienable forms of property. By comparison,
constitutional rights of life, liberty, and property are
not transferable and, thus, are termed inalienable.
Similarly, certain forms of property, such as
employee security benefits, are typically not subject
to transfer on the part of the owner and are
inalienable forms of property.
ALIENATE
To voluntarily convey or transfer title to real
property by gift, disposition by will or the laws of
descent and distribution, or by sale.
For example, a seller may alienate property
by transferring to a buyer a parcel of the seller’s
land containing a house, in exchange for cash.
The seller is said to have alienated her rights in
During World
War II, the U.S.
government moved
thousands of Japanese
Americans to

detention camps
because it considered
them alien enemies
while the country was
at war with Japan.
NATIONAL ARCHIVES
AND RECORDS
ADMINISTRATION
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ALIENATE 221
that parcel, such as the right to modify or even
demolish the house on the parcel of land, to the
buyer. Those rights now belong to the buyer.
ALIENATION CLAUSE
A provision in a document permitting or forbid-
ding a person from transferring property that is
the subject of the document.
In a fire insurance policy, an
ALIENATION CLAUSE
prohibits the alienation of the insured premises
while the policy is in effect. If the insured violates
this provision, the policy is void.
ALIENATION OF AFFECTION
The removal of love, companionship, or aid of an
individual’s spouse.
Historically,
ALIENATION OF AFFECTION furn-
ished grounds for an action against the indi-
vidual who interloped in a marital relationship.

The harm caused was viewed as a depriv ation
of an individual’s rights of consortium.
The elements of the action generally included
wrongful conduct by the interfering party with
the complainant’s spouse, the loss of affection or
consortium, and a nexus between the conduct of
the
DEFENDANT and the impairment or loss of
consortium, which included a deprivation of such
rights a services, assistance, and sexual relations.
In the early twenty-first century, the action has
fallen into disuse and no longer constitutes a
ground for a lawsuit in most states.
ALIENS
Foreign-born persons who have not been natural-
ized to become U.S. citizens under federal law and
the Constitution.
The federal
IMMIGRATION laws determine whe-
ther a person is an alien. Generally, a person
born in a foreign country is an alien, but a child
born in a foreign country to parents who are
U.S. citizens is a U.S. citizen. The term alien also
refers to a native-born U.S. citizen who has
relinquished U.S. citizenship by living and ac-
quiring citizenship in another country. Aliens are
categorized in several ways: resident and non-
resident, immigrant and nonimmigrant, docu-
mented and undocumented (“illegal”).
Overview

The United States welcomes a large number of
aliens every year. Millions of foreign-born
persons travel, work, and study in the country,
and hundreds of thousands more choose to
immigrate and become U.S. citizens. All of
them are subject to federal immigration law. At
the simplest level, the law serves as a gatekeeper
for the nation’s borders: It determines who may
enter, how long they may stay, and when they
must leave. In totality, of course, its scope far
exceeds this simple purpose. Immigration law is
concerned not only with borders but with what
goes on inside them. It has much to say about
the legal rights, duties, and obligations of aliens
in the United States, which, in some respects,
are different from those of citizens. Ultimately,
it also provides the means by which certain
aliens are naturalized as new citizens with all the
rights of citizenship.
Congress has total authority over immigra-
tion. In the legislative branch of government,
this power has no equal. The U.S. Supreme
Court has determined that “over no conceivable
subject is the legislative power of Congress more
complete” (Fiallo v. Bell, 430 U.S. 787, 97 S. Ct.
1473, 52 L. Ed. 2d 50 [1977]). With a few
notable exceptions concerning the right of
aliens to constitution al protections, the courts
have rarely intruded. Presidents have no inher-
ent say; their influence is limited to policies on

REFUGEES. Moreover, congressional authority
preempts all state laws and regulations and
even addresses the rights of aliens during
wartime. In practical terms, these circumstances
mean that immigration law is entirely the
domain of federal lawmakers, whose say is
usually final. Congress alone decides who will
be welcomed or turned away, as well as what
aliens may and may not do in the United States.
This authority has a long and controversial
past. The first laws date to 1875, and their
history is rife with discrimination. Lawmakers
have always created barriers that favor some
aliens over others. At one time, Chinese were
not wanted; at others, Japanese; the list goes on
and on. Only in the latter half of the twentieth
century were these widely divergent policies
codified under a primary federal statute, the
Immigration and Nationality Act (INA) (Pub.
L. No. 414, ch. 477, 66 Stat. 163, codified as
amended in scattered sections of 8 U.S.C.A., 18
U.S.C.A., 22 U.S.C.A., 49 U.S.C.A., 50 App. U.S.
C.A.), since 1952 the basic source of immigra-
tion law. For decades, the INA was easily tinkered
with through amendments and bills. A dazzling
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
222 ALIENATION CLAUSE
number of political reasons made Congress
create a patchwork of preferences, exceptions,
and quotas, each reflecting who was wanted and

who was not. Although somewhat less frequently
toward the end of the twentieth century, national
origin has often decided whether the United
States admitted an alien.
Modern legislation has introduced signifi-
cant changes. Reform has followed two distinct
lines of thought: the need to stem illegal
immigration, and the desire to make the law
more fair for legal immigrants. Congress tackled
the first issue in the Immigration Reform and
Control Act of 1986 (IRCA) (Pub. L. No. 99-
603, 100 Stat. 3359, codified as amended in
scattered sections of the U.S.C.A.). The IRCA
toughened criminal sanctions for employers
who hire illegal aliens, denied these aliens
federally funded
WELFARE benefits, and legiti-
mized some aliens through an amnesty pro-
gram. Related legislation, the Immigration
MARRIAGE FRAUD Amendments of 1986, 8 U.S.
C.A. § 1101 note et seq., cracked down on the
popular illegal practice of marrying to obtain
citizenship. Fairness issues helped influence the
second major reform, the Immigration Act of
1990, Pub. L. No. 101-649, 104 Stat. 4978
(codified in scattered sections of the U.S.C.A.).
Thoroughly revamping the INA, the 1990 act
allocated visas more evenly among foreign
nations, eliminated archaic rules, and increase d
the level of worldwide immigration by 35

percent, to an annual level of 675,000.
The September 11th terrorist attacks on
the United States led to a reorganization of
the agencies responsible for carrying out the
nation’s immigration laws, as well as to several
revisions in the immigration laws themselves. In
2002 Congress abolished the Immigration and
NATURALIZATION Service (INS), replacing it with
the Bureau of Citizenship and Immigration
Services (BCIS), a part of the
DEPARTMENT OF
HOMELAND SECURITY
(DHS). The move became
effective March 1, 2003. The attacks also led to
the enactment of a number of statutes that seek
both to imp rove the immigration system and to
help protect the United States from illegal aliens
who may engage in terrorist activities on its soil.
The goals of the new statutes were to accelerate
immigration processes related to citizenship
Immigration to the United States, 1820 to 2008
Millions of immigrants
a
Year
1820
1850
1880
1910
1,107,126
841,002

373,326
70,756
1,041,570
457,257
369,980
8,358
0 0.5 1 1.5 2
1940
1970
2000
2008
a
Immigrants refers to persons obtaining legal permanent resident status.
SOURCE: U.S. Department of Homeland Security, Office of Immigration Statistics, 2008 Yearbook of Immigration
Statistics.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ALIENS 223
and benefits, to strengthen border patrol and
enforcement, and to ensure
DETENTION and re-
moval of illegal aliens.
Administrative Implementation of
Immigration and Naturalization Laws

For many years the INS was responsible for
implementing many of the nation’s immigra-
tion and naturalization laws. The terrorist
attacks on September 11, 2001, along with a
number of other incidents, led to harsh
criticism of the agency. According to a number
of lawmakers and other commentators, the INS
was the worst-managed agency in the federal
government. Calls for reforming the agency led
in 2002 to a call to abolish the agency. When
Congress passed the Homeland Security Act
of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(codified as amended in scattered sections of
6 U.S.C.A.), it eliminated the agency and created
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Nonimmigrant Aliens Admitted into the United States, 1985 to 2008
a
Data for business and pleasure not available separately due to temporary expiration of the Visa Waiver Program from May through
October.
SOURCE: U.S. Department of Homeland Security, Office of Immigration Statistics, 2001 Statistical Yearbook of the
Immigration and Naturalization Service and Annual Flow Report, April 2009.
Number of nonimmigrants, in millions
2008
2000
1995

1985
Year
0
5 10152025303540
.074
.257
6.608
1.796
9.539
NA
a
.543
.659
NA
a
33.690
.196
.364
3.275
22.640
17.611
39.381
5.603
29.442
1.102
1.101
All classes
Temp. visitors for business
Temp. visitors for pleasure
Students

Temp. workers and trainees
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
224 ALIENS
the BCIS. The primary mission of the DHS is to
prevent terrorist attacks, reduce the vulnerability
of the United States to
TERRORISM, and minimize
any damage and assist in any recovery should
terrorist attacks occur in the country.
TheBCISdoesnotpossessallofthepowers
that the INS once had. It focuses exclusively on
immigration and citizenship issues regarding
aliens in the United States. Among the agency’s
primary responsibilities are the review of petitions
by aliens for entry or retention in the country,
ADJUDICATION of asylum and processing of refugees,
implementation of naturalization procedures, and
issuance and renewal of documents. Many of the
law enforcement powers that the INS held have
been removed from the BCIS, however.
Under the Homela nd Security Act, a number
of new agencies we re created to carry out several
other functions. Many of the responsibilities for
preventing entry of terrorists into the United
States, carrying out immigration enforcement
functions, and other issues relating to the
protection of U.S. borders were delegated to the
Undersecretary for B order and Transportation
Services. Other enforcement powers were given
to the Bureau of Border Security Enforcement,

which is responsible for the detention, investiga-
tion, and inspection of a lien s under federal law.
Admission Procedures
Normally, aliens wishing to enter the United
States first apply for a
VISA at one of the over 200
U.S. consulates and embassies abroad. Visas are
documents required for travel to most nation s
in the world. For example, U.S. citizens may not
simply cross the borders of Germany or Zaire
without a visa. Aliens, likewise, may not simply
cross the borders into the United States; they
have no inherent right to enter the country.
A visa is the only legal means of entry. In a
larger sense, it is the key to understanding the
goals and practices of immigration law.
Two types of visas exist: imm i grant visas
and nonimmigrant visas. It is much easier to
obtain nonimmigrant visas, which are primarily
issued to tourists and temporary business visi-
tors. In 1993 the INS admitted 21,447,000 non-
immigrants to the United States. Nonimmigrant
visas are divided into 18 main categories ranging
from vacationers and diplomatic personnel to
athletes, temporary workers, and students. Most
categories do not have any numerical limitation.
The reasoning is simple: Nonimmigrants
generally spend a short time and a lot of money
in the United States, with obvious benefits for the
nation’s economic, social, and cultural life, and

relatively few demands on its resources. The
most significant issue in nonimmigrant visas is
whether the alien may work in the United States
without violating the terms of the visa.
Immigrants find visas much harder to obtain.
Millions of aliens want to live and work in the
United States and enjoy the benefits of U.S.
citizenship, but only a fraction of them can.
Congress sets numerical limits on most types of
immigrant visas, under the theory that the
country can realistically absorb only so many
new peop le. The 1995 annual ceiling was 675,000,
with flexibility for some categories. In addition,
many immigrant visas are subject to per-country
caps—roughly 25,000 per country, though some
countries receive special allowances.
In law, aliens granted visas are said to have
obtained entry. The term entry has a special
meaning that is different from a mere “physical
presence in the United States.” An alien might
cross the border but still be determined by
authorities not to have entered the country. Entry
means legal admittance and the freedom from
official restraint. Its benefits are tangible: generally,
aliens recognized by law to have gained entry have
more rights than those who have not gained entry.
Denial of entry is called exclusion. Dating
from the earliest attempts to control immigra-
tion, this contro versial concept holds that it is
not in the national interest to admit some

persons. Far-reaching grounds bar applicants
for reasons related to health, crime, national
security, and other variables. As part of the
process for reviewing visa applications, consular
officials decide whether any ground for exclu-
sion applies. If the officials decide that none
does, a visa may be granted, but entry is still not
certain. The Bureau of Border Security Enforce-
ment can decide otherwise when the alien actually
attempts to cross the border. In practice, exclusion
occurs every day.
Excluded aliens can argue their case in an
exclusion hearing. This procedure differs greatly
from a
DEPORTATION hearing, which involves an
alien who has already entered the United States.
Deportation hearings are actually more advanta-
geous: unlike exclusion proceedings, deportation
hearings only follow from specific allegations,
and aliens subject to deportation have more
forms of legal relief. In an exclusion hearing, the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIENS 225
burden is always on the alien to prove his or her
right to enter the United States. The alien is
entitled to many attributes of procedural due
process, and aliens who lose may also seek
asylum (refuge or protection, usually for political
reasons) in some instances.
Excluded applicants seeking to cross the

border may be kept in detention facilities until
their hearings have been held. In some cases,
officers may choo se to release an alien on
PAROLE
pending further review. Parole allows an alien to
travel away from the border and detention faci-
lities temporarily, for reasons such as preventing
the separation of families. As a limited right,
parole is not equivalent to entry.
Nonimmigrant Visas
Each applicant for a nonimmigrant visa must
demonstrate that he or she has no intention of
immigrating. Generally, the application requires
detailed information about the alien’s native
residence, place of employment, reason for
traveling to the United States, and destination.
Most nonimmigrant visas do not have annual
numerical limits, but the INA does restrict those
for professionals to 65,000; temporary agricul-
tural workers to 66,000; and performing athletes,
artists, and entertainers to 25,000.
Nonimmigrant aliens apply for a visa from
one of 18 categories, each assigned a letter, as
follows:
A. Career diplomats;
B. Temporary visitors for business and
pleasure;
C. Aliens in transit;
D. Crew me mbers;
E. Treaty traders and investors;

F. Students;
G. International organization representatives;
H. Temporary workers;
I. Foreign media representatives;
J. Exchange program visitors;
K. Fiancées, fiancés, or children of U.S.
citizens;
L. Intracompany transferees;
M. Students in nonacademic institutions;
N. Parents and children of special immigrants;
O. Aliens with extraordinary abilities;
P. Entertainers;
Q. Participants in cultural exchange programs;
R. Religious workers. The visas are further
categorized by numbers—for example, A-1,
A-2, and so forth.
Aliens use specific procedures for the particu-
lar visa sought. Broadly speaking, these fall into
three classes: (1) applications that do not require
contact with anyone in the United States (visas
A, B, C, D, E, G, I, and O); (2) applications that
require proof of acceptance in an authorized
program (visas F, J, M, and Q, and visas for special
education trainees); and (3) applications that
require approved petitions, which provide the
basis for the alien’s presence in the United States
(visas H, K, L, P, and R). More than half of all
visas require supporting documents at the time of
application. For example, an alien hoping to work
temporarily in the United States as a registered

nurse needs an employer’s
PETITION to obtain an
H-1A visa. Similarly, an alien planning to study at
a university must present proof of acceptance at
the university for an F-1 visa. An alien engaged to
a U.S. citizen will never see a K visa—let alone get
married—unless the citizen has filed a petition. In
all cases, consular officials make the final decision.
Generally, no
JUDICIAL REVIEW is available.
Once admitted into the United States, aliens
are inspected by Bureau of Border Security
Enforcement officers, who give them a form
I-94 indicating the length and terms of their
stay. Most aliens ultimately return to their
country of origin. Some wish to stay and
immigrate. Ge nerally, all nonimmigrant visa
holders who are in the United States may apply
to have their visa status adjusted to permanent-
resident status, with the exception of crew
member visa (visa D) holders. To qualify, the
alien must have been inspected and admitted or
paroled into the United States and must meet
standard eligibility requirements for obtaining
an immigrant visa, and an immigrant visa must
be immediately available at the time the
application is filed. In addition, the alien must
not have been in an
UNLAWFUL status or, with few
exceptions, have accepted any unauthorized

employment.
Immigrant Visas
Immigrant visas come in two main catego ries:
visas subject to numerical limitation and visas
not subject to nume rical limitation. The term
numerical limitation means several things. First,
it refers to the overall limits set by Congress
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
226 ALIENS
on immigrants. Second, it involves the use of
per-country caps. Third, and most important,
numerically limited visas are organized along a
system of preferences that favors certain aliens
over others. Every immigrant wants the best
chance to obtain a visa, but qualifying for the
easiest category—visas not subject to numerical
limitation—is quite difficult. Congress has
reserved this category for immediate relatives
of U.S. citizens, resident aliens returning from
temporary visits abroad, and former U.S.
citizens. Consequently, for the vast majority of
aliens who want to immigrate, demand is much
higher than the relatively short supply pre-
scribed by law.
Though having no numerical limitation
makes it easier to obtain, the immediate-relative
visa still carries strict limitations. Generally,
the term immediate relatives means children,
spouses, and parents, but unique rules apply to
children and spouses. To qualify as a child, the

person must be unmarried and under 21 years of
age. The law is also concerned with how the
parent came to have the child, and it applies
special age restrictions to legitimate and illegiti-
mate children, stepchildren, adopted children,
and orphans. Spouses of U.S. citizens must pass
the most demanding tests. The law requires the
alien to have a “valid and subsisting marriage”
with the citizen under the laws of the country
where the marriage took place, and it considers a
wide variety of marriages insufficient for granting
the visa. This severity is an answer to the common
abuseofmarriagetoobtaincitizenship.The
Immigration Marriage Fraud Amendments of
1986 impose criminal penalties for violations. The
Fraud Amendments also impose a two-year
conditional residency requirement before alien
spouses and their sons and daughters may
petition for permanent-resident status.
Three categories exist for visas subject to
numerical limitation: family sponsored, em-
ployment related, and so-called diversity immi-
gration. The last is a special category created to
reverse the drastic reductions in immigration
from European countries, particularly Ireland.
Effective after 1995, a formula was used to
determine whether in the previous five years a
country had been “underrepresented.” If so, an
alien from that country is eligible for one of
55,000 visas annually allocated to diversity

immigrants. Aliens may apply once per year in
a lottery, making this a highly uncertain way to
obtain a visa. Not everyone is eligible; applicants
must generally have a high-school education
and two years of work experience. Different
goals make more visas available to Hong Kong:
because of uncertainty over the transfer of the
country to China, the law allotted 20,000 visas
annually to certain Hong Kong citizens who
were employees of U.S. businesses, their
spouses, and their children.
The primary types of numerically limited
visas—family-sponsored and employment-
related—are organized into
PREFERENCE catego-
ries. Preference means that the law allocates
visas to certain aliens over others in order to
promote such goals as preserving fam ilies,
protecting U.S. jobs, and admitting immigrants
most likely to benefit the nation. How the law
ranks aliens can be seen from the numerical
limits on each category. Families are allotted
226,000 visas annually, with a somewhat flexible
maximum of 480,000 in four preference
categories. Only 140,000 employment-related
visas are allotted, in five preference categories.
Unused visas from higher preference categories
are reallocated to the lower categories.
Preference in family-sponsored visas is deci-
ded by the nature of an alien’s relationship to

the petitioner:
First preference: Unmarried sons and daughters
of U.S. citizens, who are too old to qualify
(age 21 or older) for the nonnumerically
limited immediate-relative visa: 23,400 visas
plus any unused visas from the other family-
sponsored preference classes.
Second preference: Spouses, children, and un-
married sons and daughters of aliens who
are lawful permanent residents: minimum
of 114,200 visas. Spouses and children are
allocated 77 percent of the visas; unmarried
sons and daughters (at least 21 years old),
23 percent.
Third preference: Married sons and daughters of
U.S. citizens: 23,400 plus any unused visas
from the first- and second-preference classes.
Fourth preference: Brothers and sisters of U.S.
citizens, if the citizen is at least 21 years old:
65,000 plus any unused visas from the three
higher classes.
Employment-related preferences are not based
on any familial relationship. They focus on edu-
cational attainment and stress occupations that are
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIENS 227