The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Justice Kavanaugh Uses the Term "Noncitizen" as Equivalent to the Statutory Term "Alien"

He included the same nomenclature in Barton v. Barr and Nasrallah v. Barr .


In April, Justice Kavanuagh wrote the majority opinion in Barton v. Barr. He included this footnote:

This opinion uses the term "noncitizen" as equivalent to the statutoryterm "alien." See 8 U. S. C. §1101(a)(3).

At the time, this footnote jumped out at me. I did not recall seeing another conservative Justice use this nomenclature.

Today, Justice Kavanaugh wrote the majority opinion in Nasrallah v. Barr. He included the same footnote:

This opinion uses the term "noncitizen" as equivalent to the statutoryterm "alien." See 8 U. S. C. §1101(a)(3).

There is some relevant history. In Moncrief v. Holder (2013), Justice Alito chastised Justice Sotomayor for using the term "noncitizen" rather than "alien."

"Alien" is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining "alien" to include "any person not a citizen or national of the United States") with §1101(a)(22) (defining "national of the United States"). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

Justice Sotomayor first used the term "undocumented immigrant" in Mohawk Industries v. Carpenter. Though, she slipped during oral arguments in  Chamber of Commerce v. Whiting, She used the phrase "illegal alien," and quickly changed to "undocumented alien."

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don't disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Justice Kavanaugh also used the phrase "noncitizen" in his concurrence in Nielsen v. Preap. In contrast, Justice Thomas's concurrence, which was joined by Justice Gorsuch, used the statutory term "alien." Justice Alito still uses the term "alien" in Pereira v. Sessions.