Ex-Alien Judge Speaks Out in Favor of Using the Statutory Term “Alien” rather than Than “Noncitizen”

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 alien or past opinions containing the term. 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, eg, 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, eg, 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 US 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 his residency reinstated and accumulating the requisite physical presence, Bea having 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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