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Ex-Alien Judge Speaks Out in Favor of Using the Statutory Term "Alien" Rather Than "Noncitizen"
"This word is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings."
From yesterday's Ninth Circuit opinion by Judge Mary Murguia, joined by Judge Marsha Berzon, in Avilez v. Garland:
This opinion uses the term noncitizen unless quoting language from the immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become a common practice of the Supreme Court, see Patel v. Garland (2022) (Barrett, J.); United States v. Palomar-Santiago (2021) (Sotomayor, J.); Barton v. Barr (2020) (Kavanaugh, J.) ("This opinion uses the term 'noncitizen' as equivalent to the statutory term 'alien.'"), whose lead on matters of style we ordinarily follow, and of the Board of Immigration Appeals, e.g., Matter of Dang (BIA 2022), whose decisions we review.
Second, even if that were not the case, "[c]areful writers avoid language that reasonable readers might find offensive or distracting—unless the biased language is central to the meaning of the writing." Chicago Manual of Style Online 5.253, https://www.chicagomanualofstyle.org/book/ed17/part2/ch05/psec253.html. The word alien can suggest "strange," "different," "repugnant," "hostile," and "opposed," Alien, Webster's Third New International Dictionary 53 (2002), while the word noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (5th ed. 2011), avoids such connotations. Thus, noncitizen seems the better choice. Respectfully, we do not see how this choice "comes at a real cost to litigants." Judge Bea Concurrence at 43. Litigants may use either word, and we do not think our choice here will cause judges to "respond negatively" to litigants who use the term alien. See Judge Bea Concurrence at 43.
Judge Carlos Bea disagreed:
It is an unfortunate trend in the caselaw that certain words and expressions are gaining continued acceptance to stand in place of terms and definitions put forth in binding statutes. In this regard, the non-statutory word "noncitizen" has attained a certain prominence throughout the federal judiciary. See, e.g., Patel v. Garland (2022). Of course, the term is textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico. Indeed, most of the petitioners appearing before this Circuit are citizens of one country or another.
Defenders of "noncitizen" sometimes claim that this word is interchangeable with alien because everyone is a citizen of somewhere, sans the unusual case of the individual who has somehow been rendered stateless. This contention is not an accurate excuse. For one, monarchies exist. A Spanish born person is a "subject" of the Kingdom of Spain, albeit he may have democratic rights. One born in Saudi Arabia is similarly a "subject" of the House of Saud. Even more, a person born in American Samoa or Swains Island is a U.S. national, but not a citizen; he or she cannot vote in federal elections nor hold federal office.
These distinctions matter. Words matter. Our federal immigration statutes concern themselves with aliens. This word is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings. Nor is the use of the term "alien" wholly untethered from its judicial context that it permits being construed in the manner the principal opinion suggests. Alien is a statutory word defining a specific class of individuals. And when used in its statutory context, it admits of its statutory definition, not those definitions with negative connotations that can be plucked at will from the dictionary.
I must note that the judiciary's embrace of "noncitizen" also comes at a real cost to litigants, who are now forced to make a lose-lose choice. On the one hand, a litigant could decide to use the statutory term "alien" in his briefing before the court, which risks offending devotees to "noncitizen." On the other hand, a litigant could decide to use the non-statutory term "noncitizen" in his briefing before the court, at the risk of showing a disdain for statutory definitions. Sadly, this quandary is laid bare by the principal opinion's express association of the statutory term "alien" with the label "offensive." By intimating that "alien" in its statutory context has this meaning, the majority has substantiated the concern that a contingent of judges will respond negatively to the term, even though its neutral, statutory definition governs this case. This situation is entirely unnecessary, and I hope my colleagues throughout the judiciary can be persuaded to dispense with such rhetoric altogether.
Perhaps one day the federal statutes will be changed to reference only "noncitizens." And if that day comes, our decisions will respond accordingly to such changes. But until then, I respectfully suggest my colleagues hew closely to the laws as they are written, both in form and in substance.
Here's Judge Bea's biography from Wikipedia; the deportation reference matches the reference in his opinion:
Bea was born in San Sebastian, Spain and emigrated with his family in 1939 to Cuba. While present under a non-immigrant visa, he studied at Stanford University and received his Bachelor of Arts degree there in 1956…. In 1952, Bea represented Cuba as a member of the country's basketball team in the Helsinki Olympics. Upon his return, he was put into deportation proceedings for allegedly avoiding the draft. Bea suggested to the Immigration Judge that he be drafted to cure the apparent violation, but the Judge refused as the Korean War had already ended. Bea won his appeal at the Board of Immigration Appeals, opining that the lower court had abused its discretion. After having his residency reinstated and accumulating the requisite physical presence, Bea petitioned for and became a naturalized citizen in 1959.
Just to be clear, neither the majority nor the concurrence would call for expurgating "alien" when the term is mentioned (for instance, in quoting statutes or precedents); the judges in the majority would only prefer not to use the term in their own voices.
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Of course, the term is textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico. Indeed, most of the petitioners appearing before this Circuit are citizens of one country or another.
Likewise, most petitioners are not aliens wrt their country of origin. Hence we can assume that the dissent was knee-jerking, rather than thinking his point through.
Likewise, most petitioners are not aliens wrt their country of origin.
What an obtuse and irrelevant response. A citizen of Mexico is an alien in the jurisdiction of this particular court and as defined under the statutes at issue. In a Mexican court, a citizen of the US is an alien. Why would anyone substitute a word as vague as ‘noncitizen’ when a much more specific word that illuminates the context in which it is used exists? Examining it critically, they use it because they desire to be vague and are defining it as insulting to rationalize their poor behavior.
Someone is not thinking his point through, but it is not Judge Bea. You should apologize.
The argument Bea advanced was that every noncitizen was a citizen somewhere else. Well every alien is a non-alien somewhere else.
More specifically, not every noncitizen is an alien.
It won’t do a bit of good, any perceived denigration in a word relates to the words meaning, not to its spelling or pronunciation.
Lets just remember again that the use of the word retarded to describe a mental disability came about because people were using the prior terms of art as insults: “Imbecile included people with an IQ of 26–50, between “idiot” (IQ of 0–25) and “moron” (IQ of 51–70). In the obsolete medical classification (ICD-9, 1977), these people were said to have “moderate mental retardation” or “moderate mental subnormality” with IQ of 35–49.”
And of course retarded is now a forbidden insult, but idiot or imbecile is ok, but none of them can be used as terms art anymore.
The same will happen to non-citizen.
My wife is a non-citizen but a resident alien not an illegal non-citizen.
” In this regard, the non-statutory word “noncitizen” has attained a certain prominence throughout the federal judiciary. See, e.g., Patel v. Garland (2022). Of course, the term is textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico. ”
What paltry pedantics.
Another voice from the party of xenophobia and other bigotry heard from.
What’s next? Justice Thomas observing that he does not consider it a problem when police engage in racially biased stops?
Carry on, clingers. Just so far and so long as better Americans permit, though.
If a statute or regulation uses what we “enlightened” folks regard as a slur, we ought to repeat that word over and over again. What better way to dramatize the prejudice baked into the law or regulation?
Those on your side of the political aisle embrace and applaud that prejudice.
That’s part of what makes conservatives the losers in America’s settled-but-not-quite-over culture war. Bigotry is a loser at the modern American marketplace of ideas.
Clingers hardest hit.
(And ‘dramatizing the prejudice’ is not the reason this white, male, right-wing blog loves to use a vile racial slur with remarkable regularity.)
Like handicapped and negro theres nothing inherently offensive about most terminology thats replaced, its just replaced for the sake of virtue signaling by terms that will themselves eventually be considered offensive and replaced as well. So it would be easier just to stop giving into this nonsense than continue the cycle and clutter up our language.
It’s virtue signalling all the way down. Why else take up pages in the federal reports over this? Judges should, by and large, stick to their knitting and focus on whatever resolves the case.
Lack-of-virtue signaling, by the bigots and conservatives.
There is a completely false narrative that is still being promoted that the word ‘handicap’ has its origins from the expression ‘cap in hand’, the connotation being that such people are being regarded as beggars. The truth is that ‘handicap’ evolved from the old practice of betting against ‘the hand in the cap’, in regards to laying odds on races. Anyone who plays golf should be able to see how it came to mean ‘a person at a disadvantage’ in general from its use in betting and sport.
Having lived for a number of years with a quadriplegic, I can tell you that it is not an insult to imply that such a person is at a disadvantage.
Your bigotry will be rewarded by political irrelevance and replacement, AmosArch. So far as I can determine, you are a stain on modern America. I will celebrate your replacement. Mostly because I just don’t like right-wing bigots.
How you spend your time until you are replaced — by a better American — is your choice.
Someone doesn’t understand that the feelings of special people are sacred and have to be protected and catered to, to the nth degree, to avoid sinning against intersectionality.
These aren’t mere Americans, who are routinely treated as deplorables by government and institutions. The feelings of special people matter.
” Someone doesn’t understand that the feelings of special people are sacred ”
Are you referring to the gullible snowflakes who demand special privilege that flatters their belief in fairy tales and nonsense?
Aliens bursting out of the chest of our body politic…
The critical element is this.
There are noncitizen permanent residents of the United States who are not “aliens”. They are US nationals.
Usage of the term “noncitizen” in reference to “aliens” is incorrect, in that it groups US nationals into this group.
If you want to, and feel the term “alien” is somehow offensive, you could call them something else. “Blues” or “Buggybodies” or other items. But calling them “noncitizens” in reference to a large class is offensive to those noncitizen nationals of the US
I does make one wonder if the events portrayed in “The Day the Earth Stood Still” happened in reality would Klaatu be referred to as an “Alien” or a “Non Earthling”?
Forgive my poor typing. When you spend all day at different keyboards your fingers never learn the positions of the keys by rote.
As I intimated above, the term “alien” has been arguably ruined by the image of the alien from space with his super weapons, his taste for human flesh, his tentacles, etc.
But “noncitizen” isn’t an equivalent term.
Congress can update the terminology – U. S. colleges use “international students” so why not “international residents [or guests as the case may be].”
Or following European and previous English usage we can use “stranger.” It still sounds othering, but at least it doesn’t sound like the thing Sigourney Weaver kept having to kill.
My mother in law is a “Resident Alien” with permanent status. She has been since 1973. It says so right on the top of the card she carries. She’ll be the first to tell you it describes her status here perfectly.
That’s excellent. My friends and relatives include people who are or were aliens. It’s really not that big a deal.
But so long as we’re discussing the issue of new terminology, we may as well mention the space-alien angle.
I’m not going to justify judges jumping the gun and ignoring Congress’ own language. That’s up to Congress. I’m suggesting that it’s one of those terms which seems strange when you start to think about it.
International students are more complicated than citizen vs noncitizen. US permanent residents are rarely considered international students.
This debate should begin and end with the fact that “alien” and “noncitizen” are not synonymous.
“This contention is not an accurate excuse. For one, monarchies exist. A Spanish born person is a “subject” of the Kingdom of Spain, albeit he may have democratic rights.”
Whatever the merits of Bea’s other arguments, this one is wrong. Under the Spanish Constitution, all Spaniards (Spain’s nationals) are citizens of Spain. There is simply nobody that is a Spanish national but not a citizen. The term “subject” is nowhere to be found in the Constitution. He should have limited his arguments to U.S. law or otherwise carry out proper research.
Mentally retarded has specific meaning and is critical to understanding if a person is responsible enough to manage their own affairs or to be held liable for negligent behavior.
I think the difference is in the case of someone who is “retarded”, generally speaking there is a specific clinical condition that renders them in that state. Just like in this post “Retarded”, much like “Non Citizen” is a broad umbrella term lacking in specificity.
In the case of the intellectually or cognitively disabled is it Down syndrome? Is it the result of some physical trauma? Is it Hydrocephalus? Is it one of a myriad of other conditions that can leave a person intellectually challenged?
Just as the term “alien” is more specific, so are the actual physical conditions a “retarded” person actually suffers from.
In either case linguistic precision needs to take precedent over any sensitivities people may have.
If by that you mean that the point is to make the meaning of ‘diminished capacity’ so vague that punishment and finding of liability can be applied arbitrarily according to the whims of powerful attorneys and judges, then, yes, that is the point.
Lenny was going to die slowly at the hands of a mob. George did right by him.
“I’m pretty sure there is no professionally recognized condition of “retarded” now, is there?”
Isn’t that exactly what I said?
“I’m betting in your personal life people’s sensitivities may trump linguistic precision.”
Actually no. I am pretty well known both personally and professionally for the precision of my speech, and my utter inability to sugar coat anything I say. If you don’t want it both completely factual and brutally honest, I’m probably not the person to approach. Both my wife and I are known for the complete lack of filters in our speech.
It has resulted in a lot of professional associates calling one of us when they want an opinion that pulls no punches. If I think you’re being stupid, I’ll tell you so. If I think you’re a worthless piece of crap, I’ll let you know that as well. On the other hand if I think you’ve taken an unpopular but correct position on a problem or issue I’ll be the first to tell you that you are doing the right thing.
When expressing ourselves, words are the only tools we have. It is critical we use them as precisely as possible.
Meanings only change when people neglect them.
Politics and the English Language
Reading that essay should be a requirement to pass the bar.
If there is a class of noncitizen that is not an alien, then using the former in place of the latter makes the status even more vague. The point, particularly in legal parlance, should always be to choose words that make context clear.
It’s what you get with a xNTx personality type. I am an INTP, she is an ENTP. Emotion and feeling just don’t factor into our world view or approach. That doesn’t mean we don’t have them, as you said (regrettably) neither one of us are Vulcans, we just don’t use them to make decisions, and tend to either think poorly of those who do, or at least find them utterly incomprehensible. In either event the feelings, as opposed to the logical thoughts of others, doesn’t factor into how I craft my approach to them.
Seems a rather inaccurate and undescriptive term to me, not one I would use. It tells me nothing about the nature of their handicap.
Like I said, precision in speech means everything.
It’s offensive because it insinuates that a large group of people (US non-citizen nationals) are actually something else (aliens, associated with illegal immigrants)
Let’s demonstrate this more clearly for you using an example you would understand.
Imagine instead of calling aliens “aliens” we instead decide to just call them “blacks.” What that does it it insinuates the people who currently have that common nomenclature (African Americans) are actually aliens. And it’s offensive to African Americans.
Likewise, using the term “noncitizens” to refer to aliens is offensive towards the current class of people (US noncitizen nationals), as it insinuates that they are actually aliens.
“It’s because “alien” can mean “other” and “othering” is bad. Right?”
As if “noncitizen” used as a substitute for “alien” wouldn’t carry exactly the same connotation of othering.
My oh my. You are the Queen of deliberate imprecision in speech. You don’t want speech to be clear, just polemic. I see this in every post of yours.
One euphemism begets another.
Idiot. Slow. Retarded. None of those were coined as insults.
” I am pretty well known both personally and professionally for the precision of my speech, and my utter inability to sugar coat anything I say. ”
Do you call a bigot a bigot, or do you enable racists (such as race-targeting vote suppressors), gay-bashers (especially the superstitious gay-bashers), xenophobes (immigrant-bashers), and misogynists to hide behind euphemisms such as “traditional values,” “conservative values,” “family values,” and “Republican”?
Arguably, “idiot” was coined as an insult. As the Greek word idiotes it meant a private person, one not engaged or interested in public affairs – and in Athens such an attitude was reprehensible. Only later did the meaning of the insult change.