The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Now Justice Barrett Uses "Noncitizen" Instead of "Alien"
"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States."
Justice Barrett's majority opinion in Patel v. Garland begins:
Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances.
Yet, Congress does not use the word "noncitizen." The immigration laws use the word "alien."
Now, Justice Barrett has joined Justice Kavanaugh, Justice Sotomayor, the Solicitor General, and others, with swapping out "alien" for "noncitizen." The lower courts—including the Eleventh Circuit—continue to squabble over this issue.
Fortunately, Justice Barrett did not expurgate the word "alien" from quotations, like Justice Sotomayor did.
Section 1182(a)(6)(C)(ii)(I) renders inadmissible an "alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under" state or federal law.
In Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), we had to decide whether subparagraph (C)—which bars review of "any final order of removal against an alien who is removable by reason of having committed" certain criminal offenses—prohibits review of how a legal standard applies to undisputed facts.
Meanwhile, Justice Gorsuch's dissent that ruled for Patel, which was joined by the Court's progressives, used the word "alien" repeatedly.
