RIGHTS AND LIABILITIES OF ALIENS

• 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 iscriminations 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 rgument. 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 admitted 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 compelment 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.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez