The term &quot;foreign national&quot; in US immigration law Background In US immigration law, the term alien is carefully defined at 8 USC 1101(a)(3): (3) The term “alien” means any person not a citizen or national of the United States. This definition neatly and concisely excludes those citizens of the US who also hold citizenship of one or more other countries, and includes stateless people, despite their not holding any foreign nationality. By contrast, the term foreign national appears nowhere in section 1101, and does not appear to be statutorily defined anywhere else, although it does appear in a few sections of 8 USC. There also appears to be no regulatory interpretation or definition of the term, as it seems to be entirely absent from Title 8 of the Code of Federal Regulations. Executive Order 13,769 uses the term alien twice, once echoing the language of the statute being invoked, 8 USC 1182(f), and the term foreign national fourteen times. Executive Order 13,780 uses the term alien fifteen times, mostly when discussing EO 13,769 or quoting the relevant statute, and it uses the term foreign national 29 times. Question Is there any judicial precedent establishing that foreign national is synonymous with alien? If not, or if such precedent does not bind all US courts, what are the chances that someone could successfully argue that foreign national includes US dual citizens, since they are also nationals of a foreign state? that foreign national excludes stateless people, since they are not nationals of any foreign state?
Overview The list in this answer is not comprehensive merely listing some of the leading SCOTUS cases on point, but the approach taken, analyzing the way the term is used in a context specific, case by case approach, rather than trying to ascribe a trans-substantive meaning to it in all contexts is, I believe the correct approach. There are 30 SCOTUS cases that use the term discussing perhaps 15-20 treaties and statutes, and hundreds of circuit court cases that do so. It turns out that the term foreign national often paraphrases treaty language that is not identical when there is no ambiguity in the case before the court. The EO language is probably merely the product of sloppy drafting since the statute uses the word "alien". In many contexts where "foreign national" is used to paraphrase the exact treaty language, the term is relevant because it is used in a context where a relationship between the person and their nation is at issue in some respect as in the VCCR below and the Public Vessels Act. So, in those contexts, the term would often exclude "stateless persons". But, there is really no way to know in the absence of context whether dual citizens are or are not intended to be included in the term. The VCCR: Paraphrase One place that the term "foreign national" is used is Article 36 of the Vienna Convention on Consular Relations (VCCR) which gives a foreign national a right to diplomatic assistance in the criminal justice process. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The same section of the same treaty was at issue in Torres v. Mullin, 540 U.S. 1035 (2003). In this context, a stateless person is clearly not a foreign national, as a stateless person has no ambassadors or counsels from the country in which the stateless person is a foreign national to seek recourse. The term "foreign national" also paraphrases the treaty language which actually uses the phrase "nationals of the sending state" (where the "sending state" is the country with diplomats in the territory of the "receiving state") which could in a plain reading include dual citizens. Specifically it says: 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The Trading With the Enemy Act: Paraphrase The term was also used in a case discussing the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, and Executive Order 9095, as amended, which allowed for an "Alien Property Custodian" to seize property of a foreign national (in this case a German) in connection with World War II. See Silesian-American Corp v. Clark, 332 U.S. 469 (1947). It isn't clear, however, that this case has continuing legal validity and relevance. And, the "foreign national" terminology in this case appears to be a paraphrase of the phrase "enemy or ally of enemy" that appears in the underlying text of the authorizing statute. U.S-Mexico Extradition Act and 4th Amendment: Synonym For Alien The term was used in the case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which a Mexican citizen was kidnapped in Mexico by U.S. agents and tried in the U.S. on drug trafficking charges without regard to the U.S.-Mexico extradition treaty, which Judge Kennedy uses the term synonymously with "alien" in his concurring opinion in a case involving facts where any definition of the two terms applies. Hague Service Convention: Concept Not Used In Treaty The term was used in the case of Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) interpreting the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638 which governs service of process of foreign nationals to determine if it applies to service of process on foreign nationals within the United States. The treaty language of the Hague Service Convention itself, however, makes no reference at all to the nationality of the person served and depends entirely upon whether the person is served abroad in the territory of a signatory or not. Under the plain language of the treaty itself, a U.S. citizen in France has to be served pursuant to the Hague Service Convention, although a U.S. court would usually be in a better position to compel compliance from its own national than it would be from a foreign national. In a nutshell the facts and circuit splitting legal issues presented by the service of process in a product liability case in a state court in the United States in Chicago were as follows: VWAG, a corporation established under the laws of the Federal Republic of Germany, has its place of business in that country. VWoA is a wholly owned subsidiary of VWAG. Schlunk attempted to serve his amended complaint on VWAG by serving VWoA as VWAG's agent. VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service Convention, and that Schlunk had not complied with the Convention's requirements. FWIW, SCOTUS held that the treaty did not apply to service of process within the territory of the country whose courts issued the process. The Public Vessels Act: Context Specific Usage In United States v. United Continental Tuna Corp., 425 U.S. 164 (1976), per the official syllabus: Prior to 1960, the Suits in Admiralty Act authorized suit against the United States in cases involving vessels owned by, possessed by, or operated by or for the United States, if such suit could have been maintained had the vessel been a private one, and provided further that such vessel was employed as a merchant vessel. In 1960, Congress amended the Act by deleting.the latter proviso. The Public Vessels Act authorizes suit against the United States in cases involving "a public vessel of the United States," but bars such a suit by a foreign national unless it appears that his government [96 S.Ct. 1321] allows a United States national to sue in its courts under similar circumstances. Respondent, a Philippine corporation, alleging jurisdiction under both Acts, sued the United States to recover damages resulting from the sinking of its fishing vessel after a collision with a United States naval destroyer. The District Court dismissed the complaint on the ground that, since the destroyer was a "public vessel of the United States," the suit was governed by the Public Vessels Act, that therefore respondent was subject to that Act's reciprocity provision, and that, since there was no such reciprocity, the suit was barred. The Court of Appeals reversed on the ground that the suit, although involving a public vessel, was maintainable under the Suits in Admiralty Act, as amended in 1960 to delete the "employed as a merchant vessel" proviso, free from the restrictions, including the reciprocity requirement, imposed by the Public Vessels Act. Held: Claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act, and, since respondent's claim falls within the Public Vessels Act, the Court of Appeals erred in concluding that that Act's reciprocity provision did not apply. Here the focus is on the relationship of the foreign national to a home state court which may or may not offer reciprocity. The statute is 46 U.S.C. § 781. The case at issue involved a Philippine corporation owned mostly by Americans, which was held to be Philippine nationality and the reciprocity of Philippine courts applied. Presumably in this case a dual national would count as an American and a stateless person would not.
Indeed, it is not possible to be European "twice or more," but that doesn't prevent the possession of multiple EU nationalities. A person who possesses the nationality of an EU country is a citizen of the European Union, and a person who possesses the nationality of more than one EU country is also a citizen of the European Union. This follows from Article 20 of the Treaty on the Functioning of the European Union: 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. There is no unified EU nationality law; each member state determines the conditions for the acquisition and loss of its nationality. Some EU countries have ratified the 1968 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, and others have not. Germany ratified it and later denounced it. Among other provisions, this convention specifies that a national of one participating state who acquires the nationality of another participating state should lose the first nationality. But it does not seem to prohibit the simultaneous acquisition at birth of multiple nationalities, nor to require someone with multiple nationalities acquired at birth to renounce any nationality at any time. There is also the 1997 European Convention on Nationality, also ratified by only a subset of EU countries. This convention explicitly provides that states must allow certain cases of multiple nationality, and may allow other cases. The mandatory cases are those of a person having multiple nationalities automatically from birth and of a person acquiring another nationality automatically through marriage (Art. 14(1)). Therefore, the general answer to your question Is it permissible, under a European legal framework, to hold two EU citizenships? is yes. It is not, however, generally possible for every citizen of an EU country to acquire the nationality of another EU country without losing his or her original nationality. That is not a feature of EU law, however, but of each country's domestic law. The specific possibilities for any given person depend on the countries involved and on the manner in which each country's nationality has been acquired or will be acquired.
In fact, the immigration quotas do not discriminate. The described limit is that "No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year; no more than 2 percent may issued to any one dependency of any independent country". All countries get the same upper limit. Additionally, anti-discrimination laws are subject matter specific: they exist because Congress passed a law that prohibits using race as a basis for employing a person (which Congress can do because of the Commerce Clause). Congress has not passed any such law pertaining to granting of visas. There is a path of reasoning that could lead to concluding that national quotas violate anti-discrimination laws, based on an "effects test" (disparate impact). It appears to be a fact that an applicant for a visa has a much higher probability of being denied a visa is their country of origin is China or India, as opposed to Sweden, which one could spin into a disparate impact argument. In order for this argument to become the law, there would have to be a case brought to the federal courts to the effect that national quotas are illegal, and as far as I know there has never been such a case. There are no provisions in anti-discrimination legislation that support a disparate impact doctrine in immigration, and pretty clear evidence that it was not congressionally intended since Title 8 Ch. 12 clearly calls for nation-based quotas. A final point: "national origin discrimination" is based on "an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group". A Swedish citizen of "Chinese national origin" is subject to the Swedish quota, not the Chinese quota, thus the discrimination is based on country of citizenship, not national origin.
Anyone can claim asylum Whether that person qualifies as a refugee depends on the law in the country where they make the claim which usually involves an administrative decision making process. If a country is a signatory to the UN convention on refugees then local law will reflect that in some way. This outlines the process in australia. Under the convention a refugee is a person who: ... owing to well‐founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it ... Being a citizen or a resident of a state with an authoritarian government does not, of itself, make one a refugee. The individual must have a “well‐founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Most citizens of most authoritarian countries are not persecuted or at risk of persecution. They also must be outside their home country. You can always emigrate The UK has no general restrictions on people leaving the country in search of more freedom. However, you need to choose carefully. At last count the UK is less authoritarian than 151 of the 167 countries in the world. If you are going to emigrate there are 15 places you could go that are better. Fortunately, 4 of them have English as a primary language and, not coincidentally, a system of government in the UK model.
The standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence".
The law upheld by the decision is a New York law, and thus only applies in the state of New York. Its current text reads in relevant part: No person shall be employed or authorized to teach in the public schools of the state who is... Not a citizen. The provisions of this subdivision shall not apply, however, to an alien teacher now or hereafter employed, provided such teacher shall make due application to become a citizen and thereafter within the time prescribed by law shall become a citizen. The provisions of this subdivision shall not apply, after July first, nineteen hundred sixty-seven, to an alien teacher employed pursuant to regulations adopted by the commissioner of education permitting such employment. The citizenship requirements of this subdivision shall not apply to an alien teacher now or hereafter employed whose immigration status is that of a lawful permanent resident of the United States and who would otherwise be eligible to serve as a teacher, or to apply for or receive permanent certification as a teacher, but for the foregoing requirements of this subdivision. The last sentence of that will no longer be effective starting Nov 30 2022. So, this law only says they are prohibited in New York public schools. And even then, they are allowed if they are applying to be a citizen, if they are hired pursuant to regulations adopted by the commissioner of education, or (until 2022) if they are a lawful permanent resident of the US. Other states may have other laws, of course.
Constitutionally, a person is only required to be granted U.S. citizenship if they are born in the United States. Any other form of citizenship is as provided by statute. So, 8 U.S.C. § 1409 makes some people citizens who would not otherwise be citizens in its absence. In that sense, it grants citizenship. Meanwhile, 8 U.S.C. § 1409(g) supports the proposition, which is a legal fiction in some cases, that someone is a &quot;natural born citizen&quot; of the United States, and hence eligible to run for President someday, and is retroactively considered to have been a citizen in the meantime for myriad other purposes, despite the fact that in the case of an unmarried non-citizen mother and a citizen father, this right is not vested and could never come into being if the required actions aren't taken after the fact. Incidentally, this statute has been upheld against constitutional challenges. Miller v. Albright, 520 U.S. 420 (1997). So, while you would like to clearly distinguish between someone having citizenship granted and having citizenship revoked, Congress, in its wisdom, has not been so accommodating and has declined to clearly distinguish between the two interpretations. This statute is a bit like the question of Schrödinger's cat, who is indeterminately alive and dead at the same time until there is a measurement of its state, in quantum physics. A person with an unmarried non-citizen mother and a citizen father is both a U.S. citizen from birth and always has been, and has never been a citizen of the U.S., until the situation is resolved with an actual determination of the question in accordance with the requirements of the statute.
You are looking for extraterritorial jurisdiction: As the term indicates, it connotes the exercise of jurisdiction, or legal power, outside territorial borders. This can include nations claiming jurisdiction over crimes in nearby bodies of water and to specific categories of crimes (such as sexual offenses against underage victims) committed by or against citizens while abroad. Wikipedia has a summary, including a few different nations' application of extraterritorial jurisdiction. The Cornell Law Review has a very extensive essay, What is Extraterritorial Jurisdiction?