RIGHTS AND LIABILITIES OF ALIENS

By December 12, 2016Immigration

• Rights and Privileges •

General Constitutional and Statutory Protections

The Fifth and Fourteenth Amendments to the Federal
Constitution both command that no “person” shall be
deprived of life, liberty or property without due process of
law, and the Fourteenth Amendment commands that no
“person” shall be denied the equal protection of the laws.

It is clear from the breadth of this language that the twin
safeguards of due process and equal protection generally
shelter both citizens and aliens against arbitrary federal
or state action by the Fifth and Fourteenth Amendments
and by treaty provisions with various nations.

Until recently, however, there were significant limitations
on the alien’s employment opportunities, and many occupations
and callings from which he is excluded.

In three landmark decisions the Supreme Court struck
down state requirements or practices which arbitrarily fore
closed employment opportunities of resident aliens, finding
in each instance an infringement of the Fourteenth Amendment’s
equal protection clause. In each instance the court
emphasized the right to work as an essential element of
personal freedom.

Moreover, since the opportunity to earn livelihood
is essential to continued residence, the state’s
action in limiting such opportunity was deemed to conflict
with the paramount authority of the Federal Government
to admit immigrant aliens.

Nevertheless, the impact of these holdings was lessened
by early Supreme Court decisions which upheld other
discriminatory statutes. The justification for such
discriminations was found in some asserted special public
concern, usually the state’s proprietary interest in public
property or natural resources permits police power to protect
health, morals, or safety.

A 1971 Supreme Court decision observed that classifications
based on alienage “are inherently suspect” and
indicated “doubt on the continuing validity” of its early
decisions supporting state discriminations. Thereafter,
the Supreme Court in two 1973 decisions repudiated its
early restrictive holdings. In one of these decisions,
is vested in the regional commissioner.

If investigation establishes to the regional commissioner’s
satisfaction that disciplinary proceedings are warranted,
he prefers written charges, serving the respondent
personally or by registered mail, and giving him a period
of at least 30 days to show cause why he should not be
suspended or debarred from further practice. The
respondent may request a hearing, which will be granted
before an officer designated by the regional commissioner.
When the record is completed the regional commissioner
forwards it to the Board.

The respondent, with or without counsel, and the Service
representative may appear before the Board for oral
argument. After consideration of the case the Board renders
its decision, which finally disposes of the proceeding. How
ever, if the Board’s order finds the respondent subject to
suspension or disbarment, the Board must refer the case
to the Attorney General for review. In such cases the
Attorney General’s order is the final determination of the
proceeding.

In three landmark decisions the Supreme Court struck
down state requirements or practices which arbitrarily fore
closed employment opportunities of resident aliens, finding
in each instance an infringement of the Fourteenth Amend
ment’s equal protection clause.

In each instance the court emphasized the right to work
as an essential element of personal freedom.
Moreover, since the opportunity to earn a livelihood is
essential to continued residence, the state’s action in
limiting such opportunity was deemed to conflict
with the paramount authority of the Federal Government
to admit immigrant aliens.

Nevertheless, the impact of these holdings was lessened by
early Supreme Court decisions which upheld other
discriminatory statutes.

The justification for such discriminations was found in some
asserted special public concern, usually the state’s proprietary
interest in public property or natural resources or
its police power to protect health, morals, or safety.

A 1971 Supreme Court decision observed that classifica
tions based on alienage “are inherently suspect” and
indicated “doubt on the continuing validity” of its early
decisions supporting state discriminations. Thereafter,
the Supreme Court in two 1973 decisions repudiated its
early restrictive holdings. In one of these decisions,

Ownership of Property

Aliens have always been permitted to acquire and own
personal property. However, the common law, rooted in
concepts of feudalism, did not sanction their acquisition of
real property, since alien ownership of land was regarded
as a threat to the integrity and security of the state. The
Supreme Court in a 1948 decision declared unconstitutional
a discrimination precluding land ownership by
Orientals. Treaty provisions with many countries assure
the right of their nationals to purchase and inherit real
property, and any inconsistent state statutes are superseded
by the superior authority of the treaty.

Welfare Benefits

A federal statute prohibits discrimination on the ground
of race, color or national origin under any program
receiving federal financial assistance. Moreover, the Supreme
Court has declared unconstitutional state legislation deny
ing welfare benefits or educational assistance to aliens,
on the ground that such restrictions were a denial of
equal protection and an infringement of the exclusive
federal authority to control the immigration of aliens.

On the other hand, the Supreme Court has upheld the
constitutionality of a federal requirement limiting Medicare Part
B benefits to citizens and aliens resident in the United
States for 5 years after lawful admission for permanent
residence. The Court found such a discrimination not
federal statutes prevent aliens from occupying various
other federal offices.

• L i a b i l i t i e s a n d Ob l i g a t i o n s •

Alien Registration and Reporting

The Federal Government imposes detailed requirements
for alien registration and reporting which are discussed in

Military Service
Congress since World War I has imposed varying obligations
on resident aliens to perform military service.

Taxes

A resident alien who has been in the United States for
a full taxable year is generally subject to federal income
tax liability in the same manner as a resident citizen of the
United States.

Different rules are prescribed for nonresident aliens, but
the line of distinction between resident and nonresident
aliens, for tax purposes, sometimes are shadowy.

The non resident alien is defined as a transient or
sojourner and all aliens are deemed nonresidents
unless it is shown that they have become residents.

For tax purposes, an alien lawfully admitted for
permanent residence as an immigrant
ordinarily will be deemed a resident alien and an alien ad
mitted as a nonimmigrant for a limited and definite period
is deemed a nonresident alien.

Criminal Prosecution

Aliens in the United States, other than those who have
diplomatic or comparable immunity, can be prosecuted for
violations of federal or state criminal laws to the same ex
tent as citizens.

Liability to Suit

The principles governing an alien’s liability to suit in
courts of the United States generally resemble and compel
ment those relating to an alien’s capacity to sue. In general,
it can be said that an alien, including an enemy alien, may
be sued in the courts of this country provided applicable
jurisdictional requirements are met.

Extradition

Pursuant to treaty provisions, aliens charged with certain
crimes in foreign countries are amenable to extradition
to face the charges against them. Generally extradition is
limited to the more serious crimes and it cannot be invoked
for political offenses.

The extradition process ordinarily is given priority over
any pending or prospective deportation proceedings. The
manner in which extradition is initiated depends on the
terms of the extradition treaty.

Francisco Hernandez

Author Francisco Hernandez

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