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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 .

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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.

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

  1. As I understand it (correct me if I’m wrong, as if I had to specify that in *this* forum):

    -U. S. citizens are not aliens (though maybe they’re nationals since the greater includes the less?)

    -U. S. nationals are aliens, and they’re not all citizens (maybe someone can clarify this – does it mean for instance Samoans?)

    and

    -aliens are neither citizens nor nationals

    1. Clark Kent is a U.S national, but Superman is an alien, despite all his talk of “truth, justice, and the American way.” Meanwhile, Lex Luthor is a natural-born citizen, Constitutionally-eligible to become President.

  2. If Justice Kavanaugh is trying to be PC, he should reflect that “noncitizen” will come to be as “problematic” from the PC perspective as “alien.”

    “Don’t say noncitizen, he’s a citizen of France/Zaire/India/etc!”

    “Who cares what country he’s a citizen of, he – I mean xe – is a citizen of the world!”

    1. “If Justice Kavanaugh is trying to be PC”
      One person’s ‘PC’ is another person’s ‘respectful.’

      Do you think he should refer to African-American persons as ‘Coloreds’ based on your logic?

      1. Is that a statutory term?

        1. Is your logic based on statutory terms? You stated: “he should reflect that “noncitizen” will come to be as “problematic” from the PC perspective as “alien.”

          This seems to suggest that the problem with using ‘noncitizen’ for ‘alien’ is that the former ‘will come to be as problematic from the PC perspective’ as the latter.

          Well, African-Americans used to be referred to as ‘colored people.’ Then they preferred ‘black.’ Then that became ‘problematic.’ So should we have stuck with ‘colored’ per your logic?

          1. Eddy can speak for himself, and frequently does….

            …but my reading of his point was that if Justice Kavanaugh was tryng to avoid the statutory term “alien” because he feels it might be regarded as non PC / disrespectful (take your pick) then it would be a forlorn effort, since whatever term he chose will become non PC / disresepectful fairly soon. Simply because it refers to the category formerly known as “alien.”

            So the “problem” is that trying to avoid the statutory term, so as to avoid possible offense, is pointless.

            Thus if a statute had referred to a five letter word beginning with n, then making a reference to “black” and later “colored” etc would be a forlornity. However hard Kavanaugh tries, Law Professors in California colleges will still be suspended for quoting from his judgements, because whatever term he uses will become offensive by the time it is read out in class. So he may as well use the statutory term, and gather the opprobrium by being offensive and right. Rather than use the wrong term, and gather opprobrium for being offensive and wrong.

            Still it’s gratifying to see that those who questioned the wisdom of going to the mattresses to help him beat the teenage rapist rap, on the basis that he had a conservative crust and a marshmallow center, don’t appear to be far off the mark.

            Those DC parties must be really something.

            1. So, you agree with the point, K (and others) should have stuck with ‘coloreds’ because if you changed to ‘blacks’ you were just bound to be dinged by those preferring ‘African-Americans,’ right?

              1. If “colored” was the term in the hypothetical statute.

                En passant, I’ll note that most of the dinging these days is done by “European-Americans” eager to take vicarious offense.

                1. This is a bad idea, and using coloreds has nothing to do with why.

                  Judicial opinions should be accessible and use modern language, not statutory language possibly from another era.

                  1. To use an old fashioned term, nonsense.

                    Nobody reads judicial opinions but lawyers, law students and very occasionally the odd journalist. If the actual words of the statute that is being analysed in the judgement are inaccessible to them, they should be in another line of work. Using modern euphemisms instead of the actual words of the statute can only lead to additional confusion. Also makes originalism a little hard to apply – perhaps that’s the point ?

                    Meanwhile, if you’re on, to use another old fashioned word, a crusade to make judgements more accessible, I suggest you have a go at the conventions for referring to the litigants.

                    The petitioner who opposes the application of the defendant for relief from the plaintiff’s appeal of the waiver of the respondent’s motion could just as well be called “Mr Smith” if that is who he is.

                    1. For the avoidance of doubt, there’s no objection at all to journalists or bloggers etc who are writing about a case using the modern tongue, if they think that’s what their audience wants.

                      It’s the judgement itself that ought to use the statutory terms – though again there’s no harm in explaining unfamiliar terms.
                      That Trumpy emoluments case is a good example – judgements do actualy need to say “emoluments” not a modern gloss like say “benefits”, but in analysing what “emoluments” means in the Constitution, the judgement can happily use modern language in the explanation.

                    2. “Nobody reads judicial opinions but lawyers, law students and very occasionally the odd journalist. ”

                      You realize where you’re writing this?

                    3. Yes. Your point ?

                2. This is a bad idea, and using coloreds has nothing to do with why.

                  Judicial opinions should be accessible and use modern language, not statutory language possibly from another era.

                3. FWIW, there are probably still some statutes out there that use “Negro”. And I would suspect that in a court decision regarding such statutes, the text of the decision would use more modern terminology, whether it be “black” or “African-American”.

          2. Just a point of information. “Black” is not problematic. At least not yet. It is one of two terms preferred by African Americans. While the detestable (and disliked) term “LatinX” has been foisted on Hispanics (or Latinos, if you like) via cultural imperialism by the academy, “black” has not yet been banished for these other people of color.

            1. APA style manual says it must be capitalized.

            2. “Black” is certainly to be preferred to the clunky “African American” which gets clunkier the moment you set foot outside the US.

              As clunky circumlocutions go, I much prefer “undocumented” since it can be given extended euphemistic outings in other contexts –

              undocumented drivers
              undocumented visitors
              undocumented babies
              undocumented Governors
              undocumented theatre goers
              undocumented doctors
              undocumented veterans
              undocumented police officers
              undocumented bankers
              undocumented graduates

              etc

        2. “Is that a statutory term?”

          It used to be.

      2. “One person’s ‘PC’ is another person’s ‘respectful.’”

        The word “person,” which you used, includes the sexist term “son.”

        By your logic, would lynching be OK?

        1. So you feel an anxiety or upset if someone offers it up that what people say could be offensive to others and that might be something people might want to not do. Got it.

          1. I’m kind of making fun of your “by your logic” logic.

            I wouldn’t, in a social interaction, say to a person from another country, “how’s it doing, alien?” That would not be nice.

            But a judge using a statutory term in an official opinion would be totally nice. There is a legal distinction between a U. S. citizen and an alien, under U. S. law.

            Just as I as an American am an “alien” or “stranger” or “foreigner” – under the laws of other countries.

            1. Why wouldn’t you use the term alien? The argument you put forward is that it’s problematic because the person offended by the term alien will just soon be offended by the term noncitizen.

              1. Anyone who doesn’t want a judge to use a statutory term in a judicial opinion is being silly. And Justice K is being silly if he’s giving in to that kind of thing. He of all people should know he won’t be able to appease the PC crowd.

                Again, I don’t agree with your “by your logic” logic.

                1. Can you state your disagreement? I’ve described how my logic runs, where does it go off the tracks in your opinion? Your principle behind your example seems to be ‘you shouldn’t use a term that one side urges you to because the alternative term offends them because they will just then be offended by the new term.’ Is that not it? If it is, then it certainly applies to my example as well.

                  1. “where does it go off the tracks in your opinion?”

                    It means “he” has to change something he doesn’t want to change, because other people also have value as human beings. This is an unacceptable result.

                    1. Eddy, just because YOU can’t read doesn’t mean that nobody can read.

      3. African-American is offensive. I prefer ‘black.’

        1. “black” means “absence of color” There are no people who are non-reflective, so this description as applied to human beings is just silly. It’s okay,you’re not alone, classical physicists struggled with finding accurate adjectives to resolve the “black-body radiation” problem for decades.

  3. If you don’t like the statutory term, use the Constitutional term language* “citizens or subjects of foreign states.”

    *though not in the same order

    1. Same words as in the Constitution Art. III but different order

      1. Wait, I forgot about stateless persons.

        Oh, well…

        1. You’re sitting the corner talking to yourself again.

  4. At least it makes more sense than the nonsensical term ‘undocumented’

    1. I think the term ‘undocumented’ is supposed to suggest that there is nothing inherently and immutably ‘Other’ about the person, if they had the ‘right documents’ there would be no issue.

      I imagine it also was adopted to tweak what are seen as ostensible libertarians who’d otherwise be put off by a ‘papers please’ kind of approach to government dealing with people.

      1. It can suggest anything but the literal meaning makes it a nonsensical term to use for this case. illegals almost always have plenty of documents and the point of who can and can’t be allowed in is a lot more than that. You might as well call cats hairless dogs because they have no dog hair.

        1. There’s lots more than the literal meaning to language.

        2. The correct legal term should be “present without inspection and admission or parole” or PWIAP for short. Illegal suggests a criminal offense, which isn’t always the case. Additionally, the thing that is illegal would refer to the act of immigrating, not the status of the person itself, so it really should be illegal immigrator rather than illegal immigrant if we’re really concerned with terms.

      2. Would you object to the undocumented lessee of your basement? Or the undocumented driver/”owner” of your car?

        I guess that is mi casa- su casa taken to its logical end.

        1. “Would you object to the undocumented lessee of your basement?”

          You mean his 21 year-old unemployed son?

        2. I don’t think I’ve heard someone charged with driving someone else’s car as “illegal driver.” I’ve heard thief; I’ve heard unauthorized user – it all depends on the context and the charge, but this seems an odd semantic hill to suggest that people are being silly objecting to “illegal immigrant” while not objecting to terms nobody uses.

          Unauthorized immigrant would be an appropriate analogy, I’d imagine, and I also would imagine that people would have far fewer problems with the term being used.

    2. What’s “nonsensical” about the term “undocumented”? Either you have documents that assert your authority to be in the country, or you do not. Of course, some American citizens are “undocumented”, and some people who have entered unlawfully have all sorts of documents which incorrectly tend to establish authorization to be present.

      1. It looks like you’ve answered your own question.

        Undocumented immigrant (1) as a euphemism for alien present without lawful authority (2) is “nonsensical” since it (deliberately) conflates categories which are different – as you explain.

        (2) concerns whether you have lawful authority to be present, (1) concerns whether you have documents asserting that you have lawful authority.

        The euphemism, though meaningless is not purposeless. It is intended to suggest that what, for immigration purposes, distinguishes folk scooped up while sneaking across the Mexican border, from folk born in the US of A, is simply the lack of a paper formality, rather than actual lawful authority to be present.

        One might illustrate with Senator Blumenthal’s service in Vietnam. Certainly he lacks documentation in his service record of service in Vietnam, but it is not the lack of documentation which makes his service in Vietnam a tall tale.

        1. “It looks like you’ve answered your own question. ”

          Here’s another question I think I can answer.

          Are you an idiot?

  5. It’s more like a regime only including hairy dogs calling those without a government official determined notice of ‘hairiness’ ____’s.

  6. Using “alien” is, well, alienating. Whether Thomas or Alito are conscious of it or not.

  7. Isn’t “statutoryterm” supposed to be two words?
    Firefox agrees with me on this….

  8. What about all the more provocative terms for such people?

  9. An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an **alien**

    If the court is addressing the statutory effect of being an alien, I think it’s perfectly reasonable for the court to use the term “alien.”

    When Congress writes these terms into a statute it gives them meaning. “Noncitizen” is not present in the statute (8 U.S.C. 1101 specifically defines “alien”), and a judge using a non-statutory term is obfuscating the ruling.

    1. “When Congress writes these terms into a statute it gives them meaning. “Noncitizen” is not present in the statute (8 U.S.C. 1101 specifically defines “alien”), and a judge using a non-statutory term is obfuscating the ruling.”

      When the judge wrote the opinion, he defined the meaning of the term he chose to use. Or one of his clerks did. If you’re finding the meaning obfuscated, perhaps the problem is with your ability to read for meaning. There’s a reason they test for that ability specifically in the LSAT.

  10. Poor E.T. just wanted to go home. In that case, the government specifically attempted to intercede to keep him from leaving.

  11. What does Sotomayor use in regard to Indian law opinions? That’s another place where the statutory text and treaties (which use “Indian”) has some tension with the preferred nomenclature (native American).