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 http://www.atf. 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 http://www.gpoaccess.gov (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 . began ◆ ◆ ◆ ◆ ◆ ❖ ❖ ▼▼ ▼▼ 16 7 516 75 17 2 517 25 17 5 017 50 17 7 517 75 17 0 017 00 I THINK IT ABSOLUTELY NECESSARY THAT SOME PERSON BE HERE TO DEFEND ZENGER. —JAMES ALEXANDER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 218 . in millions 2008 2000 19 95 19 85 Year 0 5 10 152025303540 .074 .257 6.608 1. 796 9.539 NA a .543 .659 NA a 33.690 .19 6 .364 3.275 22.640 17 . 611 39.3 81 5.603 29.442 1. 102 1. 1 01 All classes Temp. visitors. inter- fere with the prosec ution of the war, Congress passed the Sedition Act of 19 18. An amendment to the ESPIONAGE ACT OF 19 17, the Sedition Act of 19 18 made it a FELONY (1) to convey false statements