Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P25 docx

highly specialized. Their levels are set as percentages of the worldwide maximum of 140,000. First preference: Priority workers are allotted 28.6 percent. These are persons of “extraor- dinary ability” in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational execu- tives and managers. Second preference: Professionals holding ad- vanced degrees or persons of exceptional ability in the sciences, arts, or business are allotted 28.6 percent. Third preference: Skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply are allotted 28.6 percent. Fourth preference: Certain special immigrants: 7.1 percent. These are mainly religious work- ers, as well as former employees of the U.S. government and international organizations. Fifth preference: Employment creation immi- grants are allotted 7.1 percent. These are investors who will create at least ten U.S. jobs by investing in a new commercial enterprise benefiting the U.S. economy, especially in areas of low employment. Generally, the minimum required INVESTMENT is $1 million. Though all potential immigrants face rigor- ous application requirements, certain categories are more exacting. Petitions are needed for visas based on the immediate-relative, family- sponsored, and employment-related preference categories. These must be filed in the United States by citizens or resident aliens on behalf of the applicant and then approved by the BCIS. (Under a significant exception, anyone may peti- tion on behalf of Amerasian children of U.S. service members.) Many of the employment- related preference categories also need an employ- er’s petition. As a safeguard intended to protect U.S jobs, the employer is first required to seek an official form of permission called labor certifi- cation. This is approved only if (a) sufficient qualified workers are not ava ilable, and ( b) e m- ployment of the a lien will not adversely affect wages or working conditions of similarly employed U.S. workers. The DEPARTMENT OF LABOR defines the occupations for whic h employers may seek certification in two groups: the professions a nd unskilledlabor.Onlyrarelyisanunskilledlabor application approved. Fur thermore, the job f or which the employer seeks labor certification must also be permanent i n nature. After APPROVAL of the labor certification or preference petition, or both, the actual visa application process begins for an alien who resides outside the United States. This process takes place at the appropriate U.S. consulate, where authority to approve or deny an applica- tion belongs exclusively to consular officials. If eligible, the alien must submit considerable documentation. The required documents in- clude biog raphical reports; police, court, prison, and military records; birth and marriage certi- ficates; passports; photographs; and evidence that the alien will not become a public charge while in the United States. The alien gives the consul these documents and the results of a medical examination. If all is in order, the applicant signs a formal application under OATH. The consul usually rules on the application the same day. The principal consular officer reviews any refusal to issue a visa, but no formal review is available after that. The STATE DEPART- MENT has only limited authority over visa denials. The applicant has one year to overcome the objection to the visa on which a refusal was based, or the entire visa application process must be started anew. The BURDEN OF PROOF is always on the applicant to establish eligibility. If the applicant passes, the consul issues an immigrant visa. Under certain circumstances, immigrants unable to travel immediately may receive new visas later. Once the immigrant actually arrives in the United States, an immigration officer again independently examines the alien’s visa eligibil- ity. This officer may exclude the alien in spite of the visa. In that case, the alien may be temporarily detained, either aboard the vessel of arrival or in the United States pending a ruling. If the officer finds the visa in order and admits the alien, the visa is retained by the BCIS as a permanent record of admission. The alien is then issued a form I-151, commonly known as a “green card” (even though its color is now off- white), and becomes a permanent-resident alien. Although it is most often thought of as an employment permit, the GREEN CARD was originally designed to serve as evidence of the alien’s status as a permanent resident of the United States. In 2008, 1,107,126 individuals became legal permanent residents of the United States. Sixty-five percent of those individuals were granted such status based on a family relationship with a U.S. citizen or a permanent resident of the United States. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 228 ALIENS Rights of Aliens Aliens enjoy many of the rights afforded to citizens. They can claim general protections under the Constitution and the BILL OF RIGHTS.However, aliens cannot vote or hold federal elective office— rights belonging solely to citizens. Further legal rights depend on an alien’s status: use of the courts, ownership of land, obtaining a public education, and qualifying for federal welfare benefits are each, to varying degrees, restricted to lawful resident aliens. Similarly, the LIABILITY of an alien to pay taxes depends on resident or nonresident status. Resident aliens pay taxes in much the same way that citizens do; nonresident aliens may qualify for special exemptions. Aliens can also be required to obtain a so-called exit permit to ensure that all taxes owed are paid before leaving the country. In addition to followin g laws generally, aliens also have special duties. Some visas impose additional requirements such as notify- ing the BCIS of changes of address and re- fraining from engaging in paid employment. Criminal penalties apply to some misconduct of aliens and citizens w ho abet them, including MISREPRESENTATION or fraud in obtaining immi- gration status, unlawful entry, and transporting or concealing an undocumented alien. For aliens who violate the law, the PENALTY is commonly deportation. Citizens who bring aliens into the country illegally may face a fine, IMPRISONMENT for up to five years, or both, for each alien they have illegally transported. Although the Supreme Court has held that Congress alone makes immigration law, histori- cally states have placed harsh restrictions on aliens. In 1886 the Supreme Court struck down a San Francisco ordinance that effectively banned Chinese laundries, in the landmark case Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220. Yick Wo established that the Fourteenth Amendment’s EQUAL PROTECTION Clause applied to aliens. But states simply ignored it, and, for decades, the Supreme Court found numerous ways to uphold discriminatory restrictions. In state cases, a turning point came in 1971. In Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534, the Supreme Court held that aliens could not be denied state welfare benefits. Most important, the Graham decision struck a blow against state discrimination in general: It said that equal protection cases involving aliens would be subject to the same STRICT SCRUTINY applied in racial discrimination cases. In a series of decisions that followed, the Court removed numerous state barriers—laws that barred all aliens from competitive CIVIL SERVICE employment, engineering licenses, and licenses to practice law. Nonetheless, through the late 1970s and 1980s, it backed away from the strict scrutiny standard: It upheld New York’s limitations on the certification of alien public school teachers (Ambach v. Norwick, 441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 [1979]), for example, and California’s restric tion of peace officer jobs to citizens (Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 225 [1982]). One key exception was Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982), granting the children of undocumented aliens the right to attend public schools. Naturalization and Citizenship Resident aliens become citizens through naturali- zation. To apply for naturalization, most aliens must meet several requirements. They must (1) reside continuously in the United States for five years as lawfully admitted permanent residents (or three years for spouses of United States’ citizens); (2) be physically present in the United States for at least half of the time before filing the petition for naturalization; and (3) reside for at least three months within the district in which the petition is filed. Aliens must generally be at least 18 years of age, although parents who are citizens can file on behalf of younger children. Literacy and educational standards must be met: unless physically unable to do so, aliens must be able to speak, understand, read, and write simple English. They have to show “good moral character”—an ambiguous term that includes not being a drunkard, gambler, or CONVICT jailed for 180 days or more. They must exhibit an attachment to constitutional principles, essentially proved through a belief in representative democracy, the Bill of Rights, and political processes. To ascertain an applicant’s fitness for nat- uralization, a naturalization examiner conducts an informal hearing. The examiner questions the applicant and WITNESSES who can TESTIFY on her or his behalf and then renders a decision. If denied, the applicant may reapply with LEGAL REPRESENTA- TION ; in some cases, federal district courts may determine naturalization or remand the matter to the BCIS with instructions. Finally, if ap- proved, the applicant is granted citizenship at a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIENS 229 hearing in OPEN COURT after taking an oath of ALLEGIANCE to the United States. Between 2006 and 2008 naturalizations grew at a record pace, reaching a total of 2.4 million immigrants who became new United States citizens. Deportation Deportation is the expulsion of an alien from the United States. In theory, it is a civil pro- ceeding rather than a punishment, though those who are deported may certainly see it as a puni shment. It is designed to remove undesirables as defined under the INA. As in most aspects of immigration law, the Supreme Court has left total authority over deportation to Congress. Merely allowing aliens to enter the country “is a matter of permission and tolerance,” the Court has said, leaving the government free rein “to terminate hospitality” (Harisiades v. Shaughnessy, 343 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 [1952]). Deportation provisions apply to all aliens whether they have legally or illegally entered the country, with several specific exceptions ranging from ambas- sadors to employees of international organiza- tions such as the UNITED NATIONS. Citizens cannot be deported, but denaturalization pro- ceedings can be brought against a naturalized citizen and can then lead to deportation. Five major broad categories of grounds for deportation cover (1) being excludable at the time of entry or adjustment of status; (2) committing criminal offenses; (3) failing to register and fal- sifying documents; (4) posing a security risk and related grounds; and (5) becoming a public charge of the state. Many more grounds for deportation follow from these; the first category alone establishes nine classes of aliens exclud- able at the time of entry. Since the Technical Amendments Act of 1991, these grounds have expanded with the addition of attempting or conspiring to commit a crime. Deportation is far-reaching in additional ways: Frequently the BCIS applies the statutes retroactively, so that aliens may be deported for conduct that was not a ground for deportation at the time they committed the act. Many of the provisions also depend on when the alien entered the United States, and still others make aliens deportable for acts they committed prior to entry. The mechanism of deportation involves broad official powers. Officers of the Bureau of Border Security Enforcement have considerable power to investigate without search warrants, arrest, and detain suspects within 100 miles of the U.S. border. Aliens then receive a deportation hearing conducted by an immigration judge. They are entitled to legal counsel—though not at government expense—and the basic rights of due process, as well as the rights to examine evidence, present new evidence, and cross- examine witnesses. If the judge finds an alien deportable, various avenues of relief are available, including administrative and judicial appeals. Furthermore, several forms of discretionary relief may entitle the alien to leave voluntarily, claim suspension of deportation, apply for an adjust- ment of status, seek asylum as a refugee, or pursue numerous other options. Deportation often causes the U.S. citizen children of aliens to leave the United States. Resident aliens become citizens through naturalization. Karwinder Singh (left) and Ranjit Kaur take an oath of citizenship during a naturalization ceremony in Seattle. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 230 ALIENS These children are not technically deported and may ultimately choose to return. Deportation Remedies Aliens generally want to avoid deportation at all costs. Even if an immigration judge rules that an alien is deportable, the alien may still fight the deportation order. This is called “seeking relief from deportation.” Broadly speaking, two kinds of options exist: filing an appeal and seeking “discretionary” relief. Whichever method the alien chooses, time is of the essence. He or she usually must seek relief before the BCIS begins executing the deportation order. Appeals from deportation rulings operate on three levels. First, the alien’s attorney may file a motion to reopen the case, also called a “motion to reconsider.” It is used chiefly to present new evidence, and strict rules govern its usage. Courts frown on such motions because of the potential for unnecessarily delaying deportation, and the judge may deny the motion if the alien has previously failed to establish a sufficient case. In any event, the motion will not stop a pending deportation order. Second, aliens may go to the higher authority of the Board of Immigration Appeals (BIA). Filing a so-called administrative appeal with the BIA automatically delays the execution of a pending deportation order. The BIA decision to uphold the deportation order, throw it out, or send the case back to the immigration judge is final. Within six months, however, the alien may appeal a dec ision of the BIA to a federal court for judicial review. Courts may hear the case if there have been violations of the alien’s constitutional rights. As the name implies, discretionary relief is granted at the discretion of a judge. If granted, it will eliminate or postpone the execution of a deportation order. Generally, the alien must apply for discretionary relief during the deporta- tion hearing, although some forms of relief may be sought before the hearing begins. In a two-part process, the judge first determines whether the alien is eligible under statutory requirements and then at the judge’s discretion decides whether to grant it. Mere eligibility is not a guarantee of relief. Several forms of discretionary relief exist. One very popular form is voluntary departure,which permits the alien to leave the United States under his or her own power, seek a destination, and even return to the selected country immediately, thus avoiding the stigma and penalties of deportation. Suspension of deportation helps the alien who has been in the United States for a long period of time and for whom deportation would result in harsh consequences. Qualifying for suspension relief is difficult: The alien must have been continuously present in the United States for seven to ten years, depending on the nature of the conduct that rendered the alien deportable—for example, overstaying a visa versus committing a FELONY; must have been a person of good moral character during that time; and must demonstrate that he or she or the alien’s U.S. ci tizen spouse, parent, or child would suffer extreme hardship (under the seven-year rule) or exceptional and extremely unusual hardship (under the ten-year rule) if the alien were deported. Another form of relief, adjustment of status, is available to an alien whose status would otherwise let him orher remain in the United States: If an alien is admissible for permanent residence, he or she may seek this relief to avoid having to go abroad while an immigrant visa is processed. Asylum, available only to aliens who qualify as refugees, differs from other forms of discretionary relief. First, it does not guarantee an alien permanent residence but merely grants the right to reside and work in the United States temporarily, for as long as the alien is entitled to refugee status. Under the INA, a refugee is an alien who is unwilling or unable to return to his or her nation because of a well-founded fear of persecu- tion on the ground of race, RELIGION, nationality, membership in a particular social group, or political opinion, or an alien whose nationality has been given refugee status by the PRESIDENT OF THE UNITED STATES . Asylum may be sought at any time during a deportation or exclusion hearing and can sometimes lead to the granting of permanent residence within one year. Closely related to asylum is withholding of deportation. Although the grounds for with- holding are similar to those for asylum, this form of relief may only be sought during a deportation hearing, and its duration is always temporary. Aliens who are granted asylum or withholding of deportation may qualify for adjustment of status and thereby become lawful permanent residents or citizens. Finally, a few kinds of discretionary relief are used in exceptional circumstances. A stay of deportation is a temporary hold on a deportation order, commonly used in connection with a motion to reopen a case or pending an application GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIENS 231 Welfare and Immigration I n 1875 the United States passed the first of many restrictive laws intended to keep out certain aliens. A powerful force behind federal legislation has always been widespread hostility toward certain new arrivals. Disliking everything from skin color to habits of speech, appearance, and worship, citizens have consistently opposed certain immigrants: the Irish in the 1800s, Jews and Slavs in the early twentieth century, and Southeast Asians subsequently. Illegal aliens have upset many U.S. citizens for decades. Since the late 1980s, a new theme has entered public discussion: opposing WELFARE benefits to legal immigrants. Opponents of providing welfare for immigrants usually voiced such opposition within a general context of opposition to the welfare system. The influential conser- vative author George Will argued that aliens are brainwashed, in much the same way as poor U.S. citizens, into believing that welfare is a normal way of life. “Today immigrants are received in a welfare culture that encourages an entitlement mentality,” Will wrote. The notion of an “entitlement mentality” is well-established in the anti-welfare camp, where it is believed that government has erred by creating a mindset of CASUAL acceptance among recipients of benefits. This view does not discriminate between citizens and aliens. It holds that welfare is equally wrong for both because it creates depen- dence over several generations and leads, as the prominent critic Charles Murray has asserted, to social ills such as crime, drug addiction, and illegitimate children. Mod- erates embrace this analysis to a degree, yet remain less inclined than conservatives to support eliminating welfare completely. Welfare is a jumping-off point for a broader attack on federal IMMIGRATION law. If welfare is a mistaken policy, it follows that any immigration policy that creates new dependents is itself flawed. Does U.S. policy create new dependents? The major emphasis of the 1990 Immigration Act (Pub. L. 101–649, Nov. 29, 1990, 104 Stat. 4978) was on family unification: It stressed immigration by relatives of U.S. citizens and resident aliens, themajority of whom were generally granted visas as long as they did not become “public charges,” that is, welfare recipients. Immigrants were supposed to meet this requirement by having a sponsor family that would help feed, clothe, and care for them. Despite this requirement, federal data suggested that many immigrants became public charges anyway. To the most outspoken critics, the United States was clearly welcoming the wrong immigrants. Instead of opening its doors to just anyone, they argued, the nation should be more selective. “Today’s laws,” Investor’s Business Daily editorialized in 1995, “perversely favor immigrants from the Third World over others with higher skills and greater understanding of Western culture.” The newspaper bemoaned this “low-skilled tide” for “push[ing] down the wages of poorer Americans.” Not only did the conservative financial press make this argument; the left-wing magazine of opinion, The Nation, also repeated it, with a slightly different emphasis on race. Immigrants have “pushed blacks out of the marketplace altogether,” the writer Wanda Coleman asserted in 1993. The economist Simon Kuznets and the author Peter Brimelow have tied the relative economic progress of African Americans to the dramatic decline in immigration between 1920 and 1965. Some advocates of immigration re- form went farther. The American Enter- prise Institute, a neo-conservative think tank, called for dumping the family- reunification goal for a system based on “designer immigration”: admitting better-educated immigrants. This case is made in detail in The Immigration Wave: A Plea to Hold It Back (1995) by Brimelow, himself an immigrant from England. Brimelow contended that the future is bleak: By the year 2050, the U.S. popula- tion will be nearly 400 million, and more than one-third of it will be low-skilled immigrants who arrived after 1970. Unlike the one-third of the immigrant population that came during the great wave between 1890 and 1920 and then returned home, these men, women, and children will have stayed because of the welfare system. “The failures are no longer winnowed out,” Brimelow wrote. “In- stead, they are encouraged to stay—at the expense of the American taxpayer.” Only a designer approach can prevent a “bureau- cratically regulated racial spoils system.” Of course, there was another side to the debate. Reviewing The Immigration Wave, the author Richard Bernstein criti- cized Brimelow for ignoring “the genu- inely moving spectacle of millions of people making better lives for themselves in this country than they could in the countries they came from.” Writing in the New York Times, Nathan Glazer expressed regret over an increasingly agitated tone in the debate: “[W]e will all have to keep our heads and remember that we all came from someplace else.” Such senti- ments have long informed arguments in favor of immigration—namely, that it is generous and humanitarian. Sharper attacks on the reformers came from the political left. In 1993, the New Left Review defended immigration by blasting public selfishness in the form of “the fiscal constraints on public spending imposed by conservative, suburban voters.” Instead of restricting immigration, the Progressive magazine urged President BILL CLINTON to “try to ease the economic deprivations and political persecutions the United States has GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 232 ALIENS fostered around the globe, which them- selves have propelled much of the immi- gration to this country.” This debate set the stage for the changes in welfare for legal immigrants that were made in the 1990s. The reform efforts began in California: In 1994 nearly two-thirds of the state ’ s voters passed Proposition 187 (CA Prop. 187 [1994], 1994 Cal. Legis. Serv. Prop. 187 [WEST]), a law intended to deny educa- tion and public assistance to illegal aliens. The biggest appeal of Proposition 187 was saving tax dollars. Although the proposition was not aimed at legal immigrants, its success with voters prompted some observers to regard it as a symptom of increasing intolerance toward immigration in general. However, a federal district court decision in 1995, League of United Latin American Citizens v. Wilson (908F. Supp.755, C.D.Cal [1995]), prevented it from going into effect, by ruling that most of the law was pre- empted by federal immigration law. In 1996 the federal government passed the far-reaching welfare reform act known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub. L. 104– 193 Aug. 22, 1996, 110 Stat. 2105). The new welfare law particularly affected immigrants. Under the law, immigrants who entered the United States legally after August 22, 1996, were prohibited for at least five years from receiving federal, non-emergency, means-tested benefits, including MEDICAID and the services funded by federal block grants. Additionally, immigrants were barred from two other programs, Supplemental Security Income (SSI) and food stamps, until they either became U.S. citizens or worked in the country for 40 qualifying quarters (8 USCA § 1601 et. seq.). The reforms did not stop there. After the five-year ban expired, it was up to the states to determine what welfare to give new immigrants. States had the option of denying non-emergency Medicaid to most new arrivals even after the five-year ban was over. States could also bar immigrants from participating in any of the benefit programs financed by Title XX block grants, such as CHILD CARE, in-home assis- tance for disabled persons, and support services for abused and neglected children. Finally, states could exclude most current and future immigrants from other state- funded benefits, including Temporary Assistance for Needy Families. Three groups of noncitizens were exempted from disqualification: (1) REFU- GEES , asylum seekers, and aliens granted withholding of DEPORTATION during the first five years after receiving the immi- gration benefit; (2) permanent resident aliens if they have worked 40 qualifying quarters as defined by the SOCIAL SECURITY Act; and (3) an alien and his or her family if the alien lawfully resides in the United States and is on active duty in the military or has received an honorable discharge. Proponents suggested a variety of reasons for enacting these reforms, most embodied in the arguments against welfare for immigrants listed above. Some also alluded to a monetary factor: The immigrant restrictions accounted for almost half the total federal savings from the welfare reform law. The provisions of the PRWORA that deal with immigrants were generally seen as the harshest part of the act and were opposed by a wide variety of groups. President Clinton, who signed the PRWORA into law, made it clear he disagreed with its provisions for cutting immigrant benefits and campaigned against them in the 1996 election. Immi- grant rights groups filed CLASS ACTION lawsuits, and the state of Florida filed its own lawsuit, worried that its taxpayers would end up supporting immigrants who had been cut off from federal benefits. As a result, Congress modified some of the harsher aspects of the law. Aspart of the Balanced Budget Act of 1997, the law restored SSI to those immigrants who were receiving SSI as of August 22, 1996. It also allowed immigrants residing in the United States on August 22, 1996, to be eligible for SSI if they became disabled in the future. New immigrants were still not eligible for SSI nor would earlier immigrants be eligible in the future based on their age. Then in 1998, Congress decided to partially restore food stamps by reinstat- ing eligibility for legal immigrant chil- dren and elderly persons who were legal immigrants as of August 22, 1996. This action readmitted approximately 250,000 immigrants who were excluded under the 1996 law. In addition, some states, such as Washington, have attempted to restore at least partial food stamp benefits to immigrants who were not covered by the 1998 legislation. But other attempts to restore benefits at the federal level have failed. As of 2008, 40 percent of legal immigrants had entered the United States after 1996, making them ineligible for federally funded assistance. Some states have replaced federal benefits by subsidizing programs with state funds. Congress addressed healthcare for immigrant children and pregnant women in the Children’s Health Insurance Program Reauthorization Act of 2009 ( PUBLIC LAW No. 111-3, 2009). This law provides states with the opportunity to provide affordable health coverage to many im- migrant children and pregnant women through Medicaid and the Children’s Health Insurance Program. The law was based on earlier legislation entitled the Immigrant Children’s Health Improve- mentAct,which was firstproposedin 2005. FURTHER READINGS Camarota,StevenA.2003.“Back Where We Started: An Examination of Trends in Im- migrant Welfare Us e s ince W elfare R eform.” Center for Immigration Studies (March). Dodson, Marvin E. 2001. “Welfare Generosity and Location Choices among United States Immigrants.” International Review of Law and Economics 21 (March). McCurdy, Thomas, and Margaret O’Brien- Strain. 1998. “Reform Reversed? The Restoration of Welfare Benefits to Immi- grants in California.” Public Policy Insti- tute of California. CROSS REFERENCE Welfare. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIENS 233 Aliens and Civil Rights S B ince the attacks on the United States on September 11, 2001, the status of ali ens physically within the United S tates or its territories has been decidedly more tenuous. Aliens (non- citizens owing political allegiance to another country) are generally afforded certain fundamental rights and protections und er the U.S. Constitution. For example, the due process clause of the Fourteenth Amendment states, in relevant part, that “no person shall be deprived of life or liberty without due process of law.” But other constitutional provisions reserve certain fundamental rights to citize ns only; for example, the Fifteenth and Nineteenth Amend- ments guarantee the right “of citizens of the United States” to vote. International law uses the term “alien enemy” to indicate a person who is the subject or citizen of a nation hostile to, or at war with, the nation in which the alien is found. The significance is that the person becomes, in time of w ar, impressed with the character of the enemy. However, the problem for many aliens in the United States is that, while their homeland may not be in a declared war with the United States, it may harbor terrorists or contribute to terrorism in a manner that renders the distinction moot. How, then, does the United States treat aliens from those countries? As author Roberta Smith noted in her 1997 law journal article, “America Tries to Come to Terms with Terrorism: The United States Anti-Terrorism and Effective Death Penalty Act of 1996 v. British Anti-Terrorism Law and International Response”: The Fundamental question facing the United States, a democratic society is how can they constrain terrorism without jeopardizing their value systems (e.g., protecting constitu- tional and civil rights such as prohibitions against unreasonable searches and seizures, and protection of free speech). Prior to 2001, allege d terrorist attacks on t he United States or on U.S. property included the 1993 bombing of the World Trade Center in New York City; the 1995 bombing of the Murrah Federal Building in Oklahoma City; the 1998 bombings of U.S. embassies in Kenya and Tanzania; the 1999 rocket shelling of U.S. buildings in Islamabad, Pakistan; and the 2000 attack on the U.S.S. Cole. Mostly in response to the Oklahoma bombing, Congress in 1996 passed the Antiterrorism and Effective Death Penalty Act (AEDPA), P.L. 104-132 (codified in scattered sections of 18 U.S.C.), and the Illegal Immigration and Reform and Immigration Responsibility Act (IIRIRA), P.L. 104-208 (codified as amended at 8 U.S.C. 1101). The AEDPA amended immigration laws and streamlined deportation proce- dures for aliens charged with terrorism. Before these acts were passed, excludable aliens (those whose right to enter the United States was questioned by the Immigration and Naturaliza- tion Service [INS] prior to entry) w ere distinguished from deportable aliens (those whose entry into the United States was found to be illegal, or whose right to stay in the United States had terminated), and different correlative rights were attached to each. That distinction closely paralleled the terms of distinction between nonimmigrant ali ens and illegal aliens. However, the AEDPA and IIRIRA muddied those distinctions, granting power to act against both illegal and immigrant aliens who fell under the acts’ criteria. For a liens, the distinction between punishable acts of terrorism and the constitutionally protected rights of association w ith, or support for, groups that historically advocate or engage in violence, was becoming increasingly nebulous. The AEDPA and IIRIRA permitted terrorism charges to be brought against an alien f or any alleged association with an organization designated as terrorist by the secretary of state. Moreover, charges of terrorism could rest entirely on confidential reports not disclosed to the subject alien. Likewise, the IIRIRA limited judicial review in deportation cases, even when the challenge to deportation rested on First or Fourteenth Amendment constitutional grounds. Nonetheless, the U.S. Supreme Court, in Reno v. Arab Anti-discrimination Committee (525 U.S. 471, 119 S. Ct. 936, 142 L. Ed. 2d. 940 [US 199 9]), allowed the challenged AEDPA to stand. The Court again confronted AEDPA issues in Zadvydas v. Davis (533 U.S. 678, 121 S. Ct. 2 49, 150 L. Ed. 2d. 653 [US 2001]), GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 234 ALIENS where a narrow majority ruled that deportable aliens with criminal records could not be detained indefi- nitely when their countries of nationality refused their return. The decision reaffirmed that due process clause protections still existed for this narrowly defined class of persons who faced deportation. In the wake of t he September 2001 attacks, Congress passed the all-encompassing USA PATRIOT Act (formally, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), H.R. 3162 (October 2001). More than 100 pages long, the act contains more than 150 sections under ten titles. The act was reauthor- ized by Congress in 2006 with most of its original provisions unchanged. Of significance to aliens, Section 412 of the act provides for mandatory detention of suspected aliens. Aliens are suspect under the act for any of seven enumerated causes for detention. Further, certain aliens may be held for seven days without being charged and might possibly be detained indefinitely if deemed not removable. The section provides for limited judicial review of such detentions. The act also requires enhanced communica- tions and sharing of data between the FBI, the Justice Department, and the State Department, theoretically making it easier to watch and track individuals. The Immigration and Naturalization Service (INS) feeds information into the FBI’scrime database, particularly concerning aliens who have received final deportation orders but failed to show for their exit trip. Any subsequent entry of that person’s name or data in any other legal system, even for minor traffic offenses, will trigger arrest and deportation. In 2002 the Justice Department announced that younger Middle Eastern men from nations with active Al-Qaida cells who have i gnored deportation orders would be expelled first. Another key provision of the act was the implementation of an ele ctronic tracking system affecting foreign students. It also began intense review of visa appl ications of scientists, engineers, and students in technical fields. Many foreign students accepted into scientific or academic pro- grams were ultimately denied visas. The PATRIOT Act also prohibited illegal aliens, among others, from having access to “select agents” that could be used for harmful purposes. Following the release of information that seven of the 19 terrorists who boarded planes on September 11, 2001, held drivers’ licenses from the Commonwealth of Virginia (although they were illegal aliens), many states began enacting laws to limit the issuance of drivers’ licenses to those aliens whose immigration status was legal. Congress followed suit by enacting the Real ID Act of 2005, which imposes rigorous standards on states when issuing driver’slicenses. Most states have complained that the document verification requirements are a bureaucratic night- mare and have refused to comply. Congress delayed implementation of the law, and by late 2009 it was unclear when or if the act would go into effect. A 2003 U.S. Justice Department report by its inspector general was critical of the detainment of several aliens in the wake of the September 2001 attacks. The 198-page report cited major delays in informing the detainees of the rea sons f or their detention and criticized the unwritten “no bond” policy of detention. The report also mentioned harsh conditions of confinement and instances of verbal and physical abuse. FURTHER READINGS American Library Association. USA Patriot Act Analyses, Website: www.ala.org/ala/aboutala/offices/oif/ifissues/ usapatriota ctanaly ses.cfm (accessed Mar. 31, 2010). “Arab Americans, Civil Rights Leaders Criticize Deportation Initiative.” 2002. Press Release. KnightRidder Washington Bureau. “Being on the Front Lines against Terrorism.” 2003. National Law Journal 25. Cohen, Adam. 2002. “Immigration.” Time 158, 159. “Licenses Denoting Noncitizens Criticized.” 2002. State Gov- ernment News 45. Martin, David A. 2001. “Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis.” Supreme Court Review. Mukerjee, Madhu sree . 2003. “Boxed Out.” Scientific American 288. Ross, Susan Dente. 2001. “In the Shadow of Terror: The Illusive First Amendment Rights of Aliens.” Communication Law and Policy. 6. “U.S. Report Critical of 9/11 Detainee Treatment.” CNN. Available online at http://www.cnn.com/2003/LAW/06/02/ detainees/ (accessed Mar. 31, 2010). B GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIENS 235 for permanent residence. Registry, available only to aliens who entered the United States before January 1, 1972, is used to create a lawful record of admission when no record is available. Further relief includes deferred action status, a nonstatu- tory guideline contained within BCIS instructions to district directors; it amounts to an indefinite hold on any deportation action based on sympathetic factors. Rarely used is estoppel,in which courts stop deportation orders because of government misconduct. Treatment of Aliens after September 11, 2001 Since the SEPTEMBER 11TH ATTACKS, reforms in the immigration system have sought to accomplish two broad, yet competing, goals. On the one hand, man y of the new laws relating to aliens have sought to accelerate the processes pertain- ing to the citizenship and naturalization bene- fits. The former INS was heavily criticized for its inefficiency in carrying out the provisions of the IRA, and the new agencies that replaced the INS have been charged with the responsibility of improving this system. On the other hand, the new laws have sought to improve immigration procedures to identify potential terrorists and other illegal aliens. The first statute among several that enhanced law enforcement procedures for dealing with terrorist attacks was the USA PATRIOT ACT OF 2001, Pub. L. No. 107-56, 115 Stat. 272. This legislation and the subsequent revisions through statute and regula- tion have sought to improve procedures for identifying known terrorists and suspected crim- inals at the various ports of entry. The dual concerns of immigration policy— that is, expediting the applications of aliens who wish to enter the United States lawfully versus the protection of the country from those who wish to inflict harm—were also present when the INS possessed powers both to implement immigra- tion services and to enforce the immigration policies. The extensive background checks of aliens caused a backlog of applications, slowing the process that was perceived to be inaccurate and inefficient even prior to the attacks. Proces- sing of immigrant applications took as long as three years in some cases. In 2002 the adminis- tration of President GEORGE W. BUSH sought to mandate a six-month standard for the processing of these applications when it launched a five-year $500 million initiative to achieve and maintain a universal six-month processing time standard. However, only some of the money was allocated for the application process, while other monies were diverted to be used for other purposes. By 2004 the Bush Administration had pushed back the deadline for the six-month processing goal to 2006. By the end of 2007 the application processing backlog was back to approximately 16 to 18 months. Several reasons for the backlog existed. In 2007 the fees to become a United States citizen increased by eighty percent. The an- nouncement of the prospective fee increase encouraged many individuals to take the neces- sary steps to apply for naturalization prior to the effective date of the new fees. As a result a huge spike in the naturalization applications occurred in the summer of 2007. In addition, during this time period, a hostile immigration debate was present throughout the country concerning the rights of immigrants. Therefore, many immi- grants moved toward becoming a citizen in an attempt to be able to vote and have a stronger voice in order to protect themselves. The detention of aliens under the new laws has also caused concerns about the protection of the CIVIL RIGHTS of legal aliens. In the months that followed the September 11th attacks, thousands of suspect aliens were detained by the INS and officials of the DEPARTMENT OF JUSTICE.Neverthe- less, protection of U.S. citizens and land within the country was a primary concern under the Bush administration, and many observers noted that improved screening of aliens could have prevented the terrorist attacks. By the end of the Bush administration, reforms in the immigration system had not solved all of the problems. The terrorist attacks of September 11, 2001, sparked many changes within the immigration system. Nonimmigrant alien men from 13— predominantly Middle East—nations were required to register with the government or face deportation. Men line up outside of an Immigration and Naturalization Service office in Detroit, Michigan, on January 10, 2003, the deadline for registration. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 236 ALIENS When President BARACK OBAMA became president, his goals for immigration reform included strengthening border control by investing in additional personnel, infrastruc- ture, and technology on the border and at the ports of entry. He also stands behind fixing the immigration BUREAUCRACY with the intention of enabling legal immigration so that families will be able to remain together. His administra- tion is also focused on removing incentives for individuals to enter the United States illegally by preventing employers from hiring illegal immi- grants. In addition, President Obama’s initiative includes implementing a system that would allow for undocumented immigrants who are in good standing to pay a fine, learn English, and go to the “end of the line” for the opportunity to become a United States citizen, as opposed to deportation. Finally, the Obama administrated pledged to promote economic development in Mexico in an attempt to reduce the number of illegal immigrants from Mexico due to their desire to avoid economic desperation. As of August 2009, President Obama had signed the “Children’s HEALTH INSURANCE Program Reau- thorization Act,” which provided quality health- care to 11 million children and removed barriers that had prevented legal immigrant children from being covered. In addition, a portion of the American Recovery and Reinvestment Act pro- vided funds to strengthen both security and the infrastructure for the United States ports of entry on the Southwest Border. FURTHER READINGS Baker, Bryan C.: Trends in Naturalization Raters: 2008 Update, Fact Sheet, June 2009. Available online at http:// www.dhs.gov/xlibrary/assets/statistics/publications/ois_ natzstrends_Fs_2008.pdf; website home page: http:// www.dhs.gov (accessed September 19, 2009). Cole, David. 1999. “Supreme Court Denies First Amendment Rights to Legal Aliens.” Legal Times 21 (March): 19. Illegal Aliens in the U.S. 1995. Upland, Pa.: Diane Publishing Company, 1995. Immigration Legal Resource Center. 2001. A Guide for Immigration Advocates. San Francisco: Immigrant Legal Resource Center. McWhirter, Robert James. 2001. The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers. Chicago: American Bar Association. Monger, Randall and Rytina, Nancy; U.S. Legal Permanent Residents: 2008, Annual Flow Report, March 2009 Department of Homeland Security, Office of Immigra- tion Statistics. Available online at http://www.dhs.gov/ xlibrary/assets/statistics/publications/lps_fr_2008.pdf; website home page: http://www.dhs.gov (accessed September 19, 2009). “Out of Focus: The Hidden Crisis of the Latest Backlogs in Naturalization Processing.” August 2008. Available online at http://www.immigrationforum.org/images/ / OutofFocus_BacklogReport.pdf; website home page: http://www.immigrationforum.org (accessed September 19, 2009). Raskin, Jamin B. 1993. “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage.” Univ. of Pennsylvania Law Review 141 (April): 1391–1470. http://www.whitehouse.gov/issues/ immigration. CROSS REFERENCES Amnesty; Asylum; Citizens; Deportation; Immigration and Naturalization; Parole; Ref ugees; Visa. ALIMONY Payment that a family court may order one person in a couple to make to the other person when that couple separates or divorces. The purpose of alimony is to avoid any unfair economic consequences of a DIVORCE, even after property is divided and CHILD SUPPORT, if any, is awarded. Courts set few specific guidelines to attaining this broad goal: instead of telling judges how and when to award alimony, most courts simply grant them broad discretion to decide what is fair in each case. For example, suppose two individuals who married in 1985 agree in 1995 to divorce. At the time of the divorce, the husband earns $63,000 per year, after seven years at a large company where the top pay for his specialty is $80,000. When the couple married, he was in graduate school and the wife was earning $22,000. The wife worked for three more years, supporting the husband while he completed his coursework and graduated. When their first child was born, they agreed that the wife would care for the child at home. At the time of divorce, the wife had been working full-time for one year since the couple’s children, age s seven and six, had entered school. She was earning $23,000 per year and would have custody of the children. A judge in this case would certainly award child support and would probably divide marital property equally between the couple. But it might not seem fair to the judge to allow the husband to leave the MARRIAGE with the sole possession of the couple’s most valuable asset— his earning potential—when the wife contributed to his education by supporting him. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIMONY 237 . Insti- tute of California. CROSS REFERENCE Welfare. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALIENS 233 Aliens and Civil Rights S B ince the attacks on the United States on September 11 , 20 01, . the 19 90s. The reform efforts began in California: In 19 94 nearly two-thirds of the state ’ s voters passed Proposition 18 7 (CA Prop. 18 7 [19 94], 19 94 Cal. Legis. Serv. Prop. 18 7 [WEST]), a law. U.S. citizen or a permanent resident of the United States. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 228 ALIENS Rights of Aliens Aliens enjoy many of the rights afforded to citizens. They