The Volokh Conspiracy
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Today the 11th Circuit decided Martinez-Rivera v. Attorney General, an unpublished immigration decision.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.