Elizabeth A. Hacker and Mahlon F. Hanson are retired immigration judges and Department of Justice attorneys who now write commentary on the proper enforcement of immigration law and the current state of immigration enforcement policies. Several of their articles have been published by the Immigration Reform Law Institute; however, a recent submission regarding sanctuary cities was rejected by “a subscription legal news source” that they say “characterizes itself as a trusted news source for top lawyers, business leaders, federal agencies and the entire U.S. federal judiciary.” Why was it rejected? Because the publication’s immigration editorial board finds the term “illegal alien” derogatory, and prefers “undocumented immigrant” instead.
Hacker and Hanson refused to comply:
We explained that the term is factually incorrect because many of the aliens illegally present in this country have documents. These documents may range from those unlawfully obtained, like social security cards or social security numbers, fraudulent drivers licenses, or other documents legally obtained such as “cedulas” (“Cedulas” is the term commonly used for matricular identification
or driver documents issued by the Mexican government to its citizens in the United States.) or licenses.Also, the term “immigrant” only applies to a person who has either legally entered the United States as a lawful permanent resident or has been adjusted to that status while in the United States.
We also explained that the term is legally incorrect for several reasons.
First, the Immigration and Nationality Act (INA), our nation’s immigration law, does not use the term. Instead, the law expressly uses the term “illegal alien” when referring to a person who has either illegally entered the United States or violated the terms of their admission, such as overstaying a visa. For example, in Title V of The Immigration Reform and Control Act of 1986, which added provisions to the INA, there are five references to “illegal alien” alone while the term “undocumented” is not mentioned once.
Furthermore, Hacker and Hanson pointed to the following from the recent U.S. Court of Appeals for the Fifth Circuit’s ruling in Texas v. USA challenging Obama’s de facto amnesty:
There is some confusion–not necessarily in this case but generally–regarding the proper term for non-citizens who are in the United States unlawfully. The leading legal lexicographer offers the following compelling explanation:
The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning. More than one writer has argued in favor of undocumented alien . . . [to] avoid[ ] the implication that one’s unauthorized presence in the United States is a crime . . . . But that statement is only equivocally correct: although illegal aliens’ presence in the country is no crime, their entry into the country is. . . . Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal”).
BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted).
The Supreme Court and every federal circuit court of appeals uses the term “illegal alien.”
In the end, the editors ended up replacing “illegal alien” with “unauthorized alien,” which, as Hacker and Hanson explain, is just as misleading:
Who has not “authorized” these aliens? The term also does not encompass the full spectrum of those aliens illegally present in this country, nor is it the legally accepted term.
If even a supposedly non-biased legal publication isn’t willing to use the legally accepted terminology, it’s really no wonder that illegal aliens aren’t taking America’s immigration laws seriously.
