Persons Who Are Aliens and Are Illegally or Unlawfully in the United States
As proposed in Notice No. 839, the term ``alien illegally or unlawfully in the United States'' is defined as follows:
Alien illegally or unlawfully in the United States. (a) Aliens who are unlawfully in the United States or are not in a valid nonimmigrant or immigrant status. The term includes any alien-- (1) Who has entered the country illegally; (2) Nonimmigrant whose authorized period of admission has expired; (3) Student who has failed to maintain status as a student; or (4) Under an order of deportation, whether or not he or she has left the United States. (b) The term does not include aliens who are in ``immigration parole'' status in the United States pursuant to the Immigration and Naturalization Act (INA).
The Immigration and Naturalization Service (INS) suggested that the definition be modified to better reflect the terminology used in the Immigration and Nationality Act (INA). The commenter states that the INA uses specific legal terms to refer to the status of aliens in the United States. Therefore, INS recommends that the proposed definition be amended to read as follows:
Alien illegally or unlawfully in the United States. Aliens who are unlawfully in the United States are not in valid immigrant, nonimmigrant or parole status. The term includes any alien-- (a) Who unlawfully entered the United States without inspection and authorization by an immigration officer and who has not been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA); (b) Nonimmigrant whose authorized period of stay has expired or who has violated the terms of the nonimmigrant category in which he or she was admitted; (c) Paroled under INA section 212(d)(5) whose authorized period of parole has expired or whose parole status has been terminated; or (d) Under an order of deportation, exclusion, or removal, or under an order to depart the United States voluntarily, whether or not he or she has left the United States.
ATF agrees with the INS that the wording of the definition for this particular category of prohibited persons should reflect the terminology used in the Immigration and Nationality Act. Accordingly, ATF is adopting INS' proposed definition into the final regulations. The DOJ Office of Policy Development asked whether the proposed definition of illegal aliens would cover asylum applicants. According to the INS, asylum applicants are not lawfully in the United States and would fall within the definition.