In the definitional statute at 8 U.S.C. § 1101(a)(3), it states “The term ‘alien’ means any person not a citizen or national of the United States,” which would seem to suggest two things, that the statutory word “alien” is, well, the statutory word, and that replacing it with “non-citizen” isn’t too far a stretch. Then again, the definition is for application of the Title 8, Chapter 12, immigration and nationality, so there is a contextual overlay as well. But is it really an issue?
This opinion uses the term noncitizen unless quoting language from the immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become a common practice of the Supreme Court, see Patel v. Garland (2022) (Barrett, J.); United States v. Palomar-Santiago (2021) (Sotomayor, J.); Barton v. Barr (2020) (Kavanaugh, J.) (“This opinion uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’”), whose lead on matters of style we ordinarily follow, and of the Board of Immigration Appeals, e.g., Matter of Dang (BIA 2022), whose decisions we review.
Second, even if that were not the case, “[c]areful writers avoid language that reasonable readers might find offensive or distracting—unless the biased language is central to the meaning of the writing.” Chicago Manual of Style Online 5.253. The word alien can suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,” Alien, Webster’s Third New International Dictionary 53 (2002), while the word noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (5th ed. 2011), avoids such connotations. Thus, noncitizen seems the better choice.
The majority of the Ninth Circuit panel went non-citizen. Its first point, that the Supreme Court has adopted this change in language, even if only partially and recently, is strong. If it’s what SCOTUS uses, and this circuit court is subordinate to SCOTUS, then it should follow the Supreme Court’s lead. Fair enough.
The second argument, that unrelated uses of the word can “suggest” negativity is lame and dangerous. This is reminiscent of the demand to eliminate the title Housemaster because it had the word master in there, and master was used to describe slaveowners in an entirely unrelated context. It also completely ended the practice of masterbation.
But the third judge on the Ninth Circuit panel, Carlos Bea took issue with the majority.
It is an unfortunate trend in the caselaw that certain words and expressions are gaining continued acceptance to stand in place of terms and definitions put forth in binding statutes. In this regard, the non-statutory word “noncitizen” has attained a certain prominence throughout the federal judiciary. See, e.g., Patel v. Garland (2022). Of course, the term is textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico. Indeed, most of the petitioners appearing before this Circuit are citizens of one country or another.
Of course, the public reasoning is not much of a mystery. The legal term “alien” has become joined at the hip to be part of the phrase “illegal alien,” which is better than the slur “wetbacks” when referring to Mexicans by the slimmest of margins. Rather than distinguish “illegals” from, say, resident aliens, it’s easier to throw the phrase away and replace it with something that has yet to gain negative connotations.
These distinctions matter. Words matter. Our federal immigration statutes concern themselves with aliens. This word is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings. Nor is the use of the term “alien” wholly untethered from its judicial context that it permits being construed in the manner the principal opinion suggests. Alien is a statutory word defining a specific class of individuals. And when used in its statutory context, it admits of its statutory definition, not those definitions with negative connotations that can be plucked at will from the dictionary.
As Judge Bea notes, the word “alien” is just a word to describe a status under federal immigration law. And as Judge Bea notes, he’s been through deportation himself and comes to his view organically. But even if there’s nothing wrong with “alien” per se, is there anything wrong with replacing it with “non-citizen”?
I must note that the judiciary’s embrace of “noncitizen” also comes at a real cost to litigants, who are now forced to make a lose-lose choice. On the one hand, a litigant could decide to use the statutory term “alien” in his briefing before the court, which risks offending devotees to “noncitizen.” On the other hand, a litigant could decide to use the non-statutory term “noncitizen” in his briefing before the court, at the risk of showing a disdain for statutory definitions. Sadly, this quandary is laid bare by the principal opinion’s express association of the statutory term “alien” with the label “offensive.” By intimating that “alien” in its statutory context has this meaning, the majority has substantiated the concern that a contingent of judges will respond negatively to the term, even though its neutral, statutory definition governs this case. This situation is entirely unnecessary, and I hope my colleagues throughout the judiciary can be persuaded to dispense with such rhetoric altogether.
By “declaring” the word “alien” to be offensive, did the majority make it so? And by doing so, did the majority then turn any lawyer or litigant using the word “alien” into a person seeking to offend others, whether the court or otherwise? Who would use an “offensive” word except someone seeking to offend? And yet, the only thing that’s turned this completely benign legal term into a pejorative word is that it was used by antagonists. If the word “non-citizen” is seized by immigration antagonists, will that word too become forbidden? Will we keep having to make up new words as otherwise ordinary words are soiled by adversarial use?
While this has happened organically throughout our history (remember when “colored person” was the politically correct phrase?), it’s been weaponized over the past few years to change law by forcibly redefining the words used in laws (think “sex” discrimination or “rape”) to shift the scope of law without going through the hard labor of amending.the laws. But not only will those who refuse to adopt the pop definitions be tainted as haters, but the new word will soon enough become a pejorative (think “SJW” and “woke”) and lose its sparkle. At the pace we’re going, there won’t be many words left. Then what?