The Volokh Conspiracy

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In March, the Solicitor General Began To Use "Noncitizen" Instead of "Alien"

The Acting SG relies on Justice Kavanaugh's footnote in Barton v. Barr (2020)


Today the Supreme Court decided Johnson v. Guzman Chavez. This immigration case split 6-3, along right-left lines. Justice Alito wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Thomas concurred, joined by Justice Gorsuch. They disagreed with a footnote about jurisdiction. Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

The majority opinion unapologetically used the statutory word, "alien." The dissent adopted legal newspeak, and used the word "noncitizen" in a few places. Though Justice Breyer primarily used the word "alien." He did not, like Justice Sotomayor, expurgate the word from precedents.

Out of curiosity, I checked the Solicitor General's list of briefs. At some point in March, the SG adopted the "noncitizen" neologism. As best as I can tell, this change was made in the Respondents Brief in Sanchez v. Mayorkas. This sentence and footnote appear on page 2:

The statutory condition that generally only noncitizens who entered the United States lawfully are eligible for adjustment to LPR status has been part of U.S. immigration law since 1952. See INA, ch. 477, Title II, § 245, 66 Stat. 217 (authorizing adjustment of status for "an alien who was lawfully admitted to the United States").2

FN2: This brief uses "noncitizen" as equivalent to the statutory term "alien." See Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (quoting 8 U.S.C. 1101(a)(3)).

You see, the statute says "alien." But the SG will not use that word, unless it is in a quotation. Instead, "noncitizen." And what authority does the brief cite? Of course, Footnote 2 of Justice Kavanaugh's decision in Barton v. Barr. It provides:

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

I wrote about his decision here. The SG copied Kavanaugh, verbatim.

The same footnote appeared in the response brief for Patel v. Garland, which was granted. This brief also uses the phrase "alien" in quotations.

We will see if the SG begins to expurgate the word "alien" from quotations.