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In the Matter of Alien Immigration

by Tahir Mella

Fall 1999, Vol. 62, No. 3

Acts of Congress of July 6, 1798 and July 14, 1798, known as the Alien and Sedition Acts, made it a criminal offense to utter or publish any false, scandalous and malicious writings against the federal government with intent to defame it, bring it into contempt or disrepute, excite hatred of people or stir up sedition against it.1 These short-lived acts tightened residency requirements for citizenship, granted presidential power to deport and jail "aliens" and provided penalties for seditious writings or speech critical of the government. Although aimed at defining criminal acts by any individual, whether of local or foreign birth, these laws tended to associate the term "alien" with one who acts inimically against the sovereignty of the state. Thus, at least historically, the term "alien" was associated less with one’s national origins than with one’s status as an enemy of the United States.

Aliens Under Current Law
The Immigration and Nationality Act2 defines the term "alien" as "any person not a citizen or national of the United States."3 Arguably, this definition is broad enough to encompass all aliens, regardless of national or terrestrial origin, except that the term "person" within that definition may be open to question. At one time, this term did not even include slaves. In Pyler v. Doe,4 quoting from Justice Field’s opinion, the term "person" includes any and every "human being" within the jurisdiction of the republic.

If an extraterrestrial alien is not deemed a human being, and consequently, not a person within the meaning of the law, should they still be entitled to the same constitutional protections as other (terrestrial) aliens?5 If not, could our government then quarantine them indefinitely, for example, or perform inhuman experiments on them? Obviously, as a threshold matter, there is a need to redefine the scope of the term "aliens" to include extraterrestrial aliens.

Entry and Entry Rights
There is a legal distinction between aliens who have actually been admitted into the United States and those who are merely seeking admission. The traditional distinction is that aliens seeking entry, unlike those who have already entered, cannot assert a liberty interest under the Constitution to be admitted into the United States or to be released from detention. Rather, the only protections are those authorized by Congress under federal statutes.6 For instance, an alien held on Ellis Island had no right to be released because he had been found inadmissible and ordered excluded at a port of entry, and therefore had not technically "entered" the United States. The court stated the distinction thus: "[I]t is true that aliens who have once passed through our gates may be expelled only after proceedings conforming to ... due process of law. But an alien on the threshold of initial entry stands on a different footing; whatever the procedure authorized by Congress, it is due process as far as the alien denied entry is concerned."7 This has been codified into the new Expedited Removal procedures of the Immigration Act, where, in almost every instance, if an immigration officer determines that an alien seeking admission into the United States is inadmissible, the officer may order the alien removed from the United States without further hearing or review.8

The problem lies in the fact that in most, if not all, cases, current law would consider extraterrestrial immigrants as "seeking admission." Therefore, they would be subject to very limited constitutional protections, and, at least in theory, subject to expedited removal because the terms "admission" and "admitted," with respect to an alien, mean the lawful entry of the alien into the United States after inspection and authorization by an immigration officer, at a time and place designated by the attorney general.9 Since those places "designated by the attorney general" are conventional ports of entry such as airports and seaports, it would be unlikely that an alien spacecraft would land at Dulles or John F. Kennedy Airport.

Which agency of the government would have jurisdiction over an extraterrestrial seeking admission into the United States? Would it depend on his--or its--precise location at the time of interdiction? Would his disposition be determined by whether he has already entered the United States or is merely seeking entry? In an ordinary case, there would be no question that the U.S. Immigration and Naturalization Service would have jurisdiction, and determining whether an alien has entered or is seeking entry would not be difficult. However, because of the uniqueness of this type of "alien," it would not be hard to imagine that the Central Intelligence Agency or even the United States military would be involved and perhaps take over jurisdiction. In matters of quarantine, would the Center for Disease Control have jurisdiction? Until recently, the Federal Bureau of Investigation may have been thought to have jurisdiction over extraterrestrials, but recent revelations have indicated that there is no such division as the "X-Files" in the FBI.10

After initial contact and diplomatic ties are established, should the State Department create embassies or consular offices for future alien immigrants? Where should these offices be located? Should we establish a lunar port of entry, reminiscent of Ellis Island? The implications are immense and involve considerations of foreign policy, diplomacy, budget and national security.

Visa Availability
Following the First World War, the growing fear that Southern Europeans would flood the U.S. with immigrants prompted Congress to enact a National Origin Quota System that would limit the number of immigrants from any particular country to a percentage of its population. In 1921, Congress set the annual quota for each nationality at three percent of the number of foreign-born persons of that national origin. In 1924, that percentage was reduced to two percent, and by 1952, this was decreased to one-sixth of one percent.11 Amendments to the 1952 Act, however, eliminated these national origin quotas and established an annual cap for countries from the western and eastern hemispheres, which currently stand at about 675,000 annual visas12 for both hemispheres.

But from which hemisphere would extraterrestrials be considered? The answer is not apparent from any reading of the applicable statutes. Unless a visa has been allotted by Congress, none can be given. Specifically, visas are limited to family-sponsored immigrants,13 employment-based immigrants,14 diversity lottery immigrants,15 special immigrants particularly described in the Act16 and political refugees.17 Therefore, it is the author’s submission that each extraterrestrial would need a special Act of Congress to obtain admission into the United States, whether as a transient, temporary visitor, or permanent resident. At least from a purely legal point of view, nothing is currently in place for such a contingency.

The law on refugees is found principally in the Refugee Act of 1980,18 whose provisions are embodied in the Immigration and Nationality Act, 8 U.S.C. '1101, et seq. A refugee is defined as a person who is unwilling or unable to return to his or her country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality or membership in a particular social group, or political opinion. This feared persecution must be at the hands of the home government or from forces that the government is unwilling or unable to control. There is no recognized refugee in U.S. law besides a "political" refugee.

The lack of recognition would present practical problems for the extraterrestrial who has no political problems with his home government and is merely stranded because, for instance, his spacecraft malfunctioned and he has no means by which to return home. Unfortunately, he cannot be considered a "refugee" within the meaning of the Act. Unless he qualifies under any one of the other categories of immigrants, he is left with no immigration status and it will require an Act of Congress to confer some legal status on him.

In Removal19 Proceedings
In the Chinese Exclusion Case,20 the Supreme Court of the United States enunciated the now-unchallenged doctrine that the power to exclude aliens is "an incident of sovereignty." In Nishimura Ekiu v. U.S.,21 it was held that, "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe." This power has withstood constitutional scrutiny several times and is, therefore, still good law.22

In other words, Congress has the absolute power not only to regulate immigration, but to put a complete stop to it. With the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)23 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),24 it appears that Congress has sought to invoke this powerful mandate. While curtailing illegal immigration and streamlining the deportation or removal of criminal aliens, these laws have established egregious burdens on legal immigration as well.

The question then, assuming that an extraterrestrial is deemed subject to deportation, becomes how this congressional mandate should be carried out. First, to where does one deport an extraterrestrial? Scientifically and economically, the U.S. is barely equipped to send people to the moon, let alone to another solar system. Other countries may also be equally ill-equipped, or simply unwilling, to deal with the extra burden of extraterrestrial immigration.

The question of deportation carries with it tremendous political and practical implications. Should we not provide an exception to intelligent beings who may actually provide us with new and more advanced technology? By deporting them to foreign countries, are we banishing our opportunities for technological advancement with them? Should we not just allow them to stay? Because of the broadened scope of the grounds of deportation, this may not be legally possible.

Current U.S. laws on immigration would not be adequate to deal with the influx of extraterrestrials, as Congress has not contemplated the existence of life on other planets. It seems incongruous that the United States government, which has spent vast sums over the past several decades to finance its search for extraterrestrial intelligence, should be so skeptical that it refuses or fails to prepare for its own success.

Is "alien immigration" a serious subject that we usually deal with in a funny way, or is it a funny subject that must be dealt with in a serious way? The question remains. It would require a tremendous leap of faith for a representative in Congress to sponsor an "alien" bill, and go where no Congressperson has gone before...


  1. Smith Act, 18 U.S.C.A. '2385; see also, 18 U.S.C.A. '2383, et seq.
  2. INA, Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990).
  3. INA '101(a)(3).
  4. 457 U.S. 202 (1982).
  5. An alien is a person within the meaning of the due process clause of the United States Constitution to the same extent as a citizen. Yick Wo. v. Hopkins, 118 U.S. 356, 369 (1886) (The protections of the Constitution "are universal in their application to all persons within the territorial jurisdiction without regard to any differences of race, of color, or of nationality.") But see Pyler v. Doe, ibid. (Strict scrutiny not applied to undocumented aliens as they are not a suspect class; the court applied intermediate scrutiny.)
  6. Shaughnessy v. Mezei, 345 U.S. 206 (1953).
  7. Ibid.
  8. INA '235(b)(1)(A)(I).
  9. See INA '101 (a)(13)(A) and INA '101 (a)(13)(C)(vi).
  10. Source unverified.
  11. McCarran-Walter Act, Title 8, U.S.C. (1952).
  12. Curiously, the term "visa" is not particularly defined in the statute. For purposes of this article, the term "visa" shall mean an endorsement by the United States government to allow an individual to stay in the United States, whether in an immigrant or non-immigrant capacity.
    #See INA '201(a)(1). (Relatives of U.S. citizens and immigrants.)
  13. See INA '201(a)(2). (Beneficiaries of employment petitions filed by U.S. employers for employees of foreign nationality, in conformity with state and U.S. Labor Department regulations.)
  14. Under this program, the attorney general determines from the most recent five-year period the number of persons from each recognized foreign state that are admitted into the U.S. as immigrants. He shall identify high and low admission countries. Visas will be made available via "lottery," as that term is commonly used to nationals of each low admission state, who make timely applications, and who satisfy certain educational and other criteria. Fifty-five thousand visas are issued under this program annually.
  15. See INA '201(b). (Special provisions of the Act grant waivers of deportation and special immigration benefits to limited and strictly defined classes of aliens.)
  16. Infra.
  17. Pub. L. No. 96-212, 94 Stat. 103 (1980).
  18. The terms "deportation" and "exclusion" carried legally significant differences prior to the enactment of the IIRAIRA. Those two terms have now been merged into the term "removal." For purposes of this article, the terms "deportation," "exclusion," and "removal" are used interchangeably.
  19. 130 U.S. 581, 609 (1889).
  20. 142 U.S. 651, 659 (1892).
  21. See, e.g., U.S. v. Curtis-Wright Export Co., 299 U.S. 304 (1936); Fiallo v. Bell, 430 U.S. 787 (1977).
  22. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-1332, 110 Stat. 1214 (April 24, 1996).
  23. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 8009 (September 30, 1996).