Ex-Alien Choose Speaks Out in Favor of Utilizing the Statutory Time period “Alien” Slightly Than “Noncitizen”

This opinion makes use of the time period noncitizen except quoting language from the immigration statutes or previous opinions containing the time period alien. There are two causes behind this selection. First, use of the time period noncitizen has grow to be a standard observe of the Supreme Court docket, see Patel v. Garland (2022) (Barrett, J.); United States v. Palomar-Santiago (2021) (Sotomayor, J.); Barton v. Barr (2020) (Kavanaugh, J.) (“This opinion makes use of the time period ‘noncitizen’ as equal to the statutory time period ‘alien.'”), whose lead on issues of favor we ordinarily comply with, and of the Board of Immigration Appeals, e.g., Matter of Dang (BIA 2022), whose selections we overview.

Second, even when that weren’t the case, “[c]areful writers keep away from language that cheap readers would possibly discover offensive or distracting—except the biased language is central to the which means of the writing.” Chicago Guide of Type On-line 5.253, https://www.chicagomanualofstyle.org/guide/ed17/part2/ch05/psec253.html. The phrase alien can recommend “unusual,” “totally different,” “repugnant,” “hostile,” and “opposed,” Alien, Webster’s Third New Worldwide Dictionary 53 (2002), whereas the phrase noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (fifth ed. 2011), avoids such connotations. Thus, noncitizen appears the higher selection. Respectfully, we don’t see how this selection “comes at an actual value to litigants.” Choose Bea Concurrence at 43. Litigants might use both phrase, and we don’t assume our selection right here will trigger judges to “reply negatively” to litigants who use the time period alien. See Choose Bea Concurrence at 43.

Choose Carlos Bea disagreed:

It’s an unlucky development within the caselaw that sure phrases and expressions are gaining continued acceptance to face instead of phrases and definitions put forth in binding statutes. On this regard, the non-statutory phrase “noncitizen” has attained a sure prominence all through the federal judiciary. See, e.g., Patel v. Garland (2022). After all, the time period is textually inaccurate as utilized to the petitioner on this case, who’s a citizen of Mexico. Certainly, a lot of the petitioners showing earlier than this Circuit are residents of 1 nation or one other.

Defenders of “noncitizen” generally declare that this phrase is interchangeable with alien as a result of everyone seems to be a citizen of someplace, sans the bizarre case of the person who has one way or the other been rendered stateless. This competition just isn’t an correct excuse. For one, monarchies exist. A Spanish born particular person is a “topic” of the Kingdom of Spain, albeit he might have democratic rights. One born in Saudi Arabia is equally a “topic” of the Home of Saud. Much more, an individual born in American Samoa or Swains Island is a U.S. nationwide, however not a citizen; she or he can not vote in federal elections nor maintain federal workplace.

These distinctions matter. Phrases matter. Our federal immigration statutes concern themselves with aliens. This phrase just isn’t a pejorative nor an insult. I definitely didn’t think about it an insult to be known as an alien in my deportation proceedings. Neither is using the time period “alien” wholly untethered from its judicial context that it permits being construed within the method the principal opinion suggests. Alien is a statutory phrase defining a particular class of people. And when utilized in its statutory context, it admits of its statutory definition, not these definitions with unfavorable connotations that may be plucked at will from the dictionary.

I have to be aware that the judiciary’s embrace of “noncitizen” additionally comes at an actual value to litigants, who are actually pressured to make a lose-lose selection. On the one hand, a litigant may resolve to make use of the statutory time period “alien” in his briefing earlier than the court docket, which dangers offending devotees to “noncitizen.” Then again, a litigant may resolve to make use of the non-statutory time period “noncitizen” in his briefing earlier than the court docket, on the threat of exhibiting a disdain for statutory definitions. Sadly, this quandary is laid naked by the principal opinion’s specific affiliation of the statutory time period “alien” with the label “offensive.” By intimating that “alien” in its statutory context has this which means, the bulk has substantiated the priority {that a} contingent of judges will reply negatively to the time period, though its impartial, statutory definition governs this case. This case is solely pointless, and I hope my colleagues all through the judiciary may be persuaded to dispense with such rhetoric altogether.

Maybe sooner or later the federal statutes will likely be modified to reference solely “noncitizens.” And if that day comes, our selections will reply accordingly to such modifications. However till then, I respectfully recommend my colleagues hew intently to the legal guidelines as they’re written, each in kind and in substance.

Here is Choose Bea’s biography from Wikipedia; the deportation reference matches the reference in his opinion:

Bea was born in San Sebastian, Spain and emigrated together with his household in 1939 to Cuba. Whereas current beneath a non-immigrant visa, he studied at Stanford College and acquired his Bachelor of Arts diploma there in 1956…. In 1952, Bea represented Cuba as a member of the nation’s basketball group within the Helsinki Olympics. Upon his return, he was put into deportation proceedings for allegedly avoiding the draft. Bea prompt to the Immigration Choose that he be drafted to treatment the obvious violation, however the Choose refused because the Korean Warfare had already ended. Bea gained his enchantment on the Board of Immigration Appeals, opining that the decrease court docket had abused its discretion. After having his residency reinstated and accumulating the requisite bodily presence, Bea petitioned for and have become a naturalized citizen in 1959.

Simply to be clear, neither the bulk nor the concurrence would name for expurgating “alien” when the time period is talked about (for example, in quoting statutes or precedents); the judges within the majority would solely favor to not use the time period in their very own voices.