11th Circuit Panel Squabbles Over The Word "Alien"

"Further, if we were to substitute the term 'alien' for 'noncitizen' in reference to specific statutory provisions, we risk stating the law inaccurately."

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Today the 11th Circuit decided Martinez-Rivera v. Attorney General, an unpublished immigration decision. The majority opinion by Judge Branch used the statutory term "alien" several times. Judge Martin wrote a two paragraph concurring opinion, explaining why she will not use the word "alien."

I write separately to note why I prefer not to use the term "alien," which the panel opinion uses ten times. Justice Kavanaugh has equated the term "noncitizen" with the statutory term "alien." Nasrallah v. Barr, 590 U.S. __, 140 S. Ct. 1683, 1689 n.2 (2020); see also United States v. Estrada, 969 F.3d 1245, 1253 n.3 (11th Cir. 2020). "Alien" is increasingly recognized as an "archaic and dehumanizing" term. Maria Sacchetti, ICE, CBP to Stop Using 'Illegal Alien' and 'Assimilation' Under New Biden Administration Order, Wash. Post (Apr. 19, 2021).

To the extent the term "noncitizen" does not, in every instance, serve as a perfect replacement for the term "alien," that concern is not present in this case. I see no need to use a term that "has become pejorative" where a non-pejorative term works perfectly well. Library of Congress, Library of Congress to Cancel the Subject Heading "Illegal Aliens" at 1 (2016), https://www.loc.gov/catdir/cpso/illegal-aliens-decision.pdf.

Judge Branch wrote a separating concurring opinion in response:

In her separate concurrence, Judge Martin takes issue with the fact that the majority uses the statutory term "alien," rather than her preferred term "noncitizen," ten times.1 However, each time the majority uses the term "alien"—in citing the statutory provision at issue, the holding of a court, or a court document, its use of the term is grounded in the text of the Immigration and Nationality Act ("INA"). As it is not our role to "fix" the text of the INA, we should not stray into legislative draftsmanship. . . . Further, if we were to substitute the term "alien" for "noncitizen" in reference to specific statutory provisions, we risk stating the law inaccurately. As Justice Alito cautioned in his dissent in Moncrieffe v. Holder, "'[a]lien' is the term used in the relevant provisions of the [INA], and this term does not encompass all noncitizens." 569 U.S. 184, 210 n.1 (2013) (Alito, J., dissenting). For these reasons, I write separately.

Judge Branch also took a subtle dig at Justice Kavanaugh, noting that Justice Gorsuch still uses the term "alien"

I recognize that, on occasion, the Supreme Court has used the term "noncitizen" rather than "alien" in its general discussion of our country's immigration laws. For example, in Barton v. Barr, the Court noted that "[t]his opinion uses the term 'noncitizen' as equivalent to the statutory term 'alien.'" 140 S. Ct. 1442, 1446 n.2 (2020). But the Court in that same opinion nonetheless used the correct statutory term "alien" when quoting the INA. Id. at 1446. And subsequent Supreme Court precedent has confirmed that the term "alien" remains appropriate. See Garland v. Dai, 141 S. Ct. 1669, 1680 (2021).

Kavanaugh wrote Barton. But Gorsuch wrote Dai.

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  1. Tempest, meet teapot.

    1. It’s not really a tempest in a teapot; The two words actually DO have distinct meanings in a legal context, and the people insisting on using the wrong one actually ARE getting it wrong, meaningfully wrong.

      Stubbornly wrong. I mean, going to the extent of deliberately misquoting a statute? That’s inexcusable for a judge.

      1. So what? That’s what “tempest in a teapot” means, not that A is right or B is wrong, but that, either way, it doesn’t warrant the emotional energy spent on it.

        1. When a judge refuses to use the actual language of a statute involved in a case, and deliberately miscites it, it is a big freaking deal. Don’t downplay it, she should NOT be doing this, and the other judges were right to criticize her for it.

          1. I don’t think this is ‘misciting’ in any significant way.

            1. She knew the word in the statute was “alien”, and deliberately used “non-citizen”, which doesn’t quite have the same meaning, and ISN’T the word the statute used.

              That’s misciting, and it was deliberate, premeditated, and in the teeth of her colleagues pointing out what she was doing was wrong.

              Maybe next time you won’t like the results, and you’ll find some way to distinguish between a judge misciting a law in a way you like, and a judge of different opinions misciting the law in a way you don’t like. You’ll say it’s ‘mean spirited’, or some such.

              But it doesn’t really matter. She knew what the law said, and she deliberately used a different word, and that isn’t something a legal professional in a court proceeding should do, and it especially isn’t something a judge should do.

              1. Again, so what? If this had been a case where the rights of “noncitizens” differed from the rights of statutorily-defined “aliens,” that would matter. It wasn’t. So it doesn’t.

                1. So what? I guess you don’t care that judges revise legislative language. That is how the rule of law is deconstructed one brick at a time

                  1. The rule of law will be just fine unless and until a case comes up where the rights of “noncitizens” and statutorily-defined “aliens” actually differ, and a court decides wrong.

              2. That’s a militant literalism, for sure. Everyone knew what she was talking about as the term she used ‘works perfectly well’ in this case. It’s a strange Rectification of Names kind of crusade you’re on here.

                1. She wasn’t talking about something. She was quoting/citing. What exactly are your boundaries for quoting something? Any old synonyms/”close enough” will do?

                  1. Can you point to the exact page and line where she mis-quoted/cited anything?

                    1. Nowhere, but only because she didn’t get her way. Presumably she wanted the word changed in those ten places it was used in the decision (otherwise what is she complaining about?) and *those* were quotes/cites.

                2. And everyone knew perfectly well what the founders meant with every word they put in the Constitution, but here we are hundreds of years later and we can’t agree on what certain terms and phrases really mean anymore.

                3. I’m not so sure how well it’s going to work in practice, it’s certainly going to make a lot of common terms of art more confusing.

                  For instance my wife is a resident alien, so she has to pay taxes on her income, and is subject to US jurisdiction. But there is also a whole class of non-resident aliens. So are we now going to use the phrases ‘resident non-citizen’ and ‘non-resident non-citizen’. That is less than ideal. Plus it certainly doesn’t turn an illegal alien into a legal non-citizen, so I guess the new phrase would be undocumented non-citizen.

                  1. Undocumented indicates that the person had permission to be here but that permission ended, but they’re still here.

                    Illegal indicates that they entered without documentation or permission to be here.

                    A resident non-citizen would have permission to not just be here through documentation but to live here for extended periods of time, which permission has not ended.

                    Non-resident non-citizen could easily be someone here on a visa. They don’t have permission to live here in a permanent status, but they do have permission to be here (generally up to 6 months on a visitors visa for example). Again, which permission has not ended.

                4. “Hooray for the euphemism treadmill!”

                  15 years from noe: “Non-citizen” is “othering”. Please use the term “spiritual citizen of Gaia”, you inconsiderate hick clinger.

            2. It is. There’s a difference between a non-citizen and an alien. Specifically, the class of people known as “US Nationals”.

              These are people who are not aliens, who owe their allegience to the US, who can freely travel throughout the US, but aren’t citizens.

              If you want to properly cite Aliens a different way, the proper way would be “Foreign Nationals.” Because that’s what they are. Citizens or nationals of a foreign country who are currently in the US

              1. Does the term “foreign nationals” clearly capture stateless persons?

    2. Says the kettle. If it is so insignificant, why waste the energy on the substitution, and why waste the energy in backing the substitution.

      Reminds me of a kid selling the navy newspaper on ship for 20 cents, and declining to offer change when given a quarter. “It’s only a nickel”, and my response was “if a nickel doesn’t matter, give me ten cents change. It’s only a nickel less.”

      (He also said he deserved a tip. I said I’ll give you a tip: don’t join the fucking navy.)

      1. It’s their time to waste. No skin off your nose.

        1. I didn’t say it was a waste of time. You sure implied it. Yet here you are again, saying you think it’s not important while demonstrating you think it is important enough to sneer at as unimportant.

          1. People keep asking him about it.

            1. If he truly thought it was a waste of time, he wouldn’t keep coming back to see who responded.

          2. Am I glad that I muted the thread hijackers!

  2. These people do not even speak English. They cannot be offended by such nuanced distinctions. The people offended are the scumbag American elites that profit from their criminality.

    This scumbag judge is unfit. She lacks judicial temperament, and is a biased, foam at the mouth, Democrat operative.

    1. That last line is like every accusation is a confession to the 10th power.

      1. Queenie. Can you rewrite your comment? It is difficult to follow? To what is each fragment referring?

        1. I’m sure lots of things are difficult for you to follow.

          1. You think in Ebonics, and translate into awkwardly incomprehensible English. No one can understand your incoherent sentence.

  3. Thanks, Josh. I had assumed the culture wars had ended with you not making a post about it in days. Thanks for correcting my unfortunate assumption.

    1. What? Over? Did someone say ‘over?’

      This culture war isn’t over until we (the liberal-libertarian mainstream, victors in the culture war) decide it is.

      1. Game over, man! Game over!

  4. Demostrating once again that progressive judges are clueless products of progressive propraganda pumps.

    1. The more I read about this “propraganda,” the more I feel alienated.

      The way I suggest handling something squeamish like this is just refuse to use a word that has fallen from grace and find a synonym that makes everyone feel warm and fuzzy. If that will ever be possible.

      1. The more I read about this “propraganda,” the more I feel non-citizened.

        FIFY

  5. “archaic and dehumanizing”

    It was those *Alien* movies that did it, wasn’t it?

    https://en.wikipedia.org/wiki/Alien_(film)

    So why not do like some other countries and refer to “strangers”? Or would that contain the dehumanizing word “strange”?

    1. Okay, I propose we substitute the word “xenomorph” for “alien.” It has none of the negative history.

      1. Depends on what planet you are on, no?

  6. What’s frustrating about this controversy is that if we wanted to get rid of the term “alien”, there are better substitutes than “noncitizen”. As Judge Branch points out, not all noncitizens are aliens (e.g. noncitizen U.S. nationals). But you could use the term “foreign national” and lose only a small degree of nuance.

    Having said that, there are all kinds of terms that carry different connotations in a legal context than in an ordinary context, and I don’t think “alien” has become so offensive that we can’t just continue to recognize that fact.

    1. But “foreign national” also applies to non-citizen residents. It is not the same.

      1. You mean like “resident aliens”? Which at least used to be the term of art. Isn’t it still?

      2. “But “foreign national” also applies to non-citizen residents. ”

        This actually isn’t quite true. There’s a class of people known as US nationals who aren’t citizens. They aren’t foreign nationals, and also aren’t foreign citizens. People from American Samoa, for example.

    2. Xenomorph! Xenomorph!

  7. Something similar happened with ‘retarded’ being replaced with ‘intellectually disabled’ in court opinions. I’m kind of surprised this hasn’t been debated in terms of the ‘American Indian this or that Act’ and such.

    1. Part of the reason you don’t see a big push to change “Indian” is that most American Indians embrace the term. They say the frequency of the term “Native American” is inversely related to time spent on a reservation or other American Indian community.

      1. It’s not just “Indian” that they embrace, and not just informally, either, hence such entities which call themselves “The Puyallup Tribe of Indians“, the Affiliated Tribes of Northwest Indians, etc.

    2. And of course “retarded” was itself intended as a more compassionate alternative to clinical terms like “idiot”, “imbecile”, and “moron” that were themselves seen as pejorative. (A 1963 piece complaining about this euphemism is available at https://journals.sagepub.com/doi/pdf/10.1177/070674376300800513).

      Which, in my view, is a good illustration of the futility of Judge Martin’s position. If “noncitizen” completely eclipses “alien” in polite discourse, it’s not going to change how anyone feels about the people under discussion—-“noncitizen” will simply take on whatever pejorative connotations “alien” carries now.

      1. It’s the euphemism treadmill: As soon as you replace a word because you don’t like its connotations, the new word starts to gain those same connotations, because the connotation attaches to the concept, not the combination of letters.

        1. “connotation attaches to the concept, not the combination of letters”

          Correct.

          Libs are always pushing NewSpeak though.

          1. Years ago, I had a law clerk who thought I was racist for not being outraged by the erstwhile practice of almost all courts of referring to an Afro-American litigant as a negro, an example being “negro petitioner.”

          2. I looks to me like what you call NewSpeak is basically 1) intentional, 2) changes in language, 3) you don’t like.

            1. NewSpeak, as Orwell explained it, was intentional changes to the language aimed at rendering ideas the one making the change disliked more difficult to express. In order to pull off NewSpeak, you have to be able to stop others from using the more precise term you’re trying to displace. Like if the judge had tried to sanction counsel for using the word “alien” correctly.

              While it’s possible euphemism could be NewSpeak, it’s more likely to be DoubleSpeak, which is intended to allow you to talk about something without having to think about the truth. Like calling an illegal alien “undocumented”, to avoid thinking about their presence in the country being illegal, not merely a matter of lacking paperwork.

            2. No, S_0. Just #1 and #2 plus an attempt to change ro disguise the meaning.

              1. What meaning is being disguised?

        2. Sure, I think that happens. But I’m not sure that means we shouldn’t try to ditch some terms. Do you think we should bring ‘retarded’ or ‘Chinaman’ back?

          1. To the extent that they’re used in statutes relevant to a case, absolutely. There’s no excuse in a legal proceeding for rewriting the statutes to be politically correct.

            Retarded just means set back, the opposite of advanced. If a man is from China, he IS a Chinaman, what’s the big deal?

            Stop being so obsessed with connotations that you give up on denotations.

            1. But connotations are kind of a thing for human social interactions. I mean, I really doubt you’d use the word ‘retarded’ around anyone who you knew who had an intellectually disabled loved one.

            2. Actually, if someone is from China, he is a Communist Bastard.

              1. Uh, tons of Chinese people hate communism.

                1. Like Goose on Gannon.

                2. Really? I’ve heard from Facebook that insulting the CCP represents ban worthy harassment of anybody of Chinese ancestry.

                  1. I’ll cop to not hearing that one. Citation?

                    1. It was youtube, not facebook.

                      Whatever. All those social media sites look the same to me.

              2. Not necessarily; one might be a refugee fleeing Communist Bastards.

            3. ” Retarded just means set back, the opposite of advanced. If a man is from China, he IS a Chinaman, what’s the big deal? ”

              Superstitious is a perfectly good synonym for religious, and if a person engages in gay-bashes that person is a bigot, and a person who tries to hide behind the euphemistic “traditional values” or “conservative values” is reliably a bigot . . . so let’s ditch the political correctness and start using terms such as superstitious and bigot in statutes, judicial opinions, and everyday speech.

              Carry on, clingers. You know you can’t win this one, either.

          2. I don’t tend to use the term for the actually intellectually disabled. I reserve it for people who are supposedly not challenged in any way and yet don’t use the brains they were born with and do stupid things.

            As an example, years ago my wife and I were working on rebuilding our home after a devastating fire. Our daughter’s boyfriend at the time was helping with the demolition of the old hardwood flooring. He was using a circular saw with a laser line to cut the floor into easily removable sections.

            I walked into the room only to see him obliviously sawing away with the red line running directly across his fingers! I yelled “STOP! Look at what you’re doing! Are you retarded??!!”

            Bought and paid for.

        3. Brett Bellmore said: “It’s the euphemism treadmill: As soon as you replace a word because you don’t like its connotations, the new word starts to gain those same connotations, because the connotation attaches to the concept, not the combination of letters.”

          Very well said. And very true.

        4. As I said before, what’s wrong with a treadmill? How long was alien a fine term?

          Language moves. Connotations change, and matter. I tend to be pretty apathetic on these semantic vanguard arguments, so I’m helping keep the treadmill slow!
          Though I do get the argument for changing it more than I do for calcification, my sloth remains.

          1. I’ve got no problem with the legislature changing the wording of a statute, (Though I might as a matter of policy object to certain changes.) they’re entitled to do that. Judges aren’t entitled to do that, as her colleagues pointed out to her.

            1. This wording choice has no force of law. Quite a stretch to call it a legislative function.

              1. It has had no force of law YET, because she was the dissent.

                If this sort of thing caught on, (“This sort of thing” not being limited to this one example, but being the whole genre of judges thinking they can substitute other words for the actual language of laws.) you’d eventually get cases where it had some legal effect. Best to stop it before that happens.

              2. Nonsense.

                Terminology catching on has no mechanism to have force of law. That’s why connotation is not denotation.

            2. Gross income is income from whatever source derived. You could substitute any word you want in the statute. Even “gross income.”

    3. Retarded was a euphemism for imbecile, idiot, moron. People learned what it really meant after a short time. It became offensive. The word does not matter, the pain comes from the reality of someone like that in the family. I have adopted the term intellectually disabled to describe the lawyer dumbass, to avoid offending the sensitive.

    4. They’re not “intellectually disabled” any more; they’re “persons with intellectual disabilities.”

      (I’m still waiting for the traffic reporter on the radio to say that what’ causing that delay on the Beltway is a “vehicle with disabilities” rather than a “disabled vehicle,” but I guess they just aren’t woke enough yet.)

  8. Failure to interpret statutes using the terms actually in the statute will lead to misinterpretations of the statute and resulting additional ambiguities instead of clarification of the statute.

  9. Judge Martin misrepresented the Library of Congress document. It does not state that the term “alien” “has become pejorative.” It states that the phrase “illegal alien”–a different term altogether “has become pejorative.”

    1. But “illegal alien” is also a statutory term, used in the US code. It actually IS the proper legal term for aliens illegally present in the country.

      It’s only ‘pejorative’ because most people disapprove of aliens being illegally present in the country.

      1. You may very well be right. I’m not taking a position on whether illegal alien is pejorative.

        I’m only stating that the Library of Congress document Martin cited does not stand for the proposition for which she cited it.

  10. The aliens I’m familiar with are from Zeta Reticuli and the Pleiades. There are probably more distant places of origin. Here are some alien mummies from a burial chamber near the ancient Nazca Lines for extraterrestrial navigation in Peru:
    https://min.news/en/science/c30022524df91c0787634a20e259f302.html

    “Since the discovery, the alien mummies have been accompanied by huge controversies, including the Peruvian Ministry of Culture’s refusal of the research results, obstruction and accusations, but with the announcement of the test results, the official has turned into a tortoise, and even released it.”

    Yes, I know I have strayed just a little. But you must admit this diversion is fascinating. And, it makes our pals at the CIA, Pentagon, and NASA nervous.

  11. “Justice Kavanaugh has equated the term “noncitizen” with the statutory term “alien.”

    Conservatives should never concede to lib NewSpeak, every concession is seized upon.

    1. So you found Palin’s objection to Obama using the term retarded to be pretty awful?

      1. Pending context, yes, she should have been ridiculed as a hypocrite even if the magic negro was referring to Palin’s kid.

        1. “magic negro”

          These are your peeps, Volokh Conspirators. They are part of the reason you will always be among a marginalized, token, disaffected conservative element on the faculty of any strong American law school.

  12. SCREW Judge Martin and her Newspeak

  13. Private Hudson : Is this gonna be a standup fight, sir, or another bug hunt?
    Lieutenant Gorman : All we know is that there’s still no contact with the colony and that a xenomorph may be involved.
    Private Frost : Excuse me, sir, a-a what?
    Lieutenant Gorman : A xenomorph.
    Corporal Hicks : It’s a bug hunt.

  14. Seems to me there are two distinct issues. First is declining to use the language of the statute. I think a better approach would be to use the correct term and drop a footnote if you think it’s necessary to point out that you’re only doing so for the sake of accuracy, despite your personal belief that the term has become dehumanizing or archaic or whatever. But the second issue is publicly and gratuitously rebuking a colleague for not hewing closely enough to the woke terminology du jour. That strikes me as an especially petty and self-righteous form of virtue signaling.

    1. On behalf of better America, I propose a better solution. We will revise the statute (with conservatives moaning and whimpering about it), likely after eliminating the filibuster.

      There is no problem a conservative can envision that the modern liberal-libertarian mainstream can not solve (and probably will).

  15. So now First Amendment cases can discuss teh “NonCitizen and Sedition Act.”

  16. I propose that all political uses of the word “investment” be replaced with the word “spending.”

  17. I predict Kavanaugh, Barrett, and perhaps others as well, in a not-distant future abortion case, will start using the term “unborn child” or similar. And they will cite the change from “alien” to “non-citizen” as precedent. And they will argue that in both situations, just because precedent establishes that the constitution does not give them any rights (at least for extraterritorial aliens) does not mean that federal courts should speak of them using intentionally dehumanizing language.

    I predict that the effort to humanize aliens, even while upholding precedents reflecting the consequences of their lacking constitutional rights, is a dress rehearsal for a similar attempt to humanize fetuses.

    1. And they most likely will be doing it in strident, bitter dissents (7-6, 8-5).

      1. You predicted an overwhelming Democratic sweep. It didn’t happen. The Democrats reached a 50-50 split in the Senate with the Vice President breaking the tie. Enough moderates retained office to make it clear that things like abolishing the filibuster and packing the Supreme Court simply aren’t going to happen.

        A nine member Supreme Court is going to be with us for some time. And it’s going to be split 3-3-3 for the tome being, with the middle three often joining the (very) conservative wing but joining the liberal wing or taking a middle position enough that ultraconservatives will often be dissappoimted.

        1. Eh, I’d say the 9 member court has about an even chance of surviving the decade. Long standing norms have been falling like tenpins lately, and there’s no guarantee that the Democratics 😉 won’t end up with a large enough majority to pull of Court packing in the next few years.

    2. I predict that the effort to humanize aliens, even while upholding precedents reflecting the consequences of their lacking constitutional rights, is a dress rehearsal for a similar attempt to humanize fetuses.

      I hate the break the news to you, but fetuses are already human.

      Well, human fetuses, anyway. (Canine fetuses are only unborn dogs, just like feline fetusus are unborn cats.)

  18. The partisan boors who flaunt use of “Democrat Party” and “Democrat governor” — whether because they are flashing right-wing gang signals or are just illiterate — are suddenly devoted to scrupulous language.

    Carry on, bigoted — and defeated — clingers.

    1. Yes. Amazing, isn’t it?

    2. So we should refer to you as a Democratic?

    3. Calling it the “Democrat” party instead of “Democratic” party is an insult, meant to imply that the adjective, “democratic”, isn’t genuinely descriptive. It’s comparable to Democrats calling Republicans “Rethuglicans”.

      So, if the question is, should judges be replacing the words of statutes with insults? I’d say, no.

  19. So is this like White Progressives deciding that “Hispanic” is demeaning to Hispanics, and labeling them “Latinx” without consulting them?

    1. Yeah, something like that. I can’t say that my wife ever took being called a “legal resident alien” as pejorative. It was just an objective description of her legal status before she got naturalized.

      I’m an alien when I visit her home country. Doesn’t insult me, either.

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