Aliens vs Noncitizens – The Anatomy of a Debate

The term “alien” appears in the immigration laws to encompass all individuals who are neither citizens nor nationals of the United States, regardless of their U.S. immigration status or lack thereof. However, despite the fact that “alien” is a statutory term with a definition that readily lends itself to a clear and distinct understanding, a growing number of commentators dislike the term. I recall the anti-alien movement began with opposition to the term “illegal alien,” which is defined in the U.S. Code at 8 U.S.C. § 1365(b) as encompassing those aliens who entered the United States without inspection or who either overstayed their lawful nonimmigrant status or whose otherwise unlawful status is known to the U.S. Government. The opposition to the statutory term “illegal alien” has reached the highest levels of the U.S. Government’s immigration bureaucracy – with the current leadership of the Department of Homeland Security opting for “undocumented noncitizen” or “undocumented individual” to describe certain aliens who are present without being compliant with the U.S. immigration laws – notwithstanding the fact that neither term replicates the plain meaning of “alien” (much less illegal alien) or describes much at all (many removable aliens are well-documented).

What began (to the best of my recollection) as a crusade against “illegal aliens” has now reached the shores of the term “alien” generally. The Department of Homeland Security has largely eschewed the term “alien” from its online materials such as its Policy Manual. As Mr. Josh Blackman explains, the disagreement has reached the Supreme Court of the United States:

…Justice [Amy Coney] Barret has joined Justice [Brett] Kavanaugh, Justice [Sonia] 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.

Mr. Blackman noted that Justice Sotomayor, unlike her colleagues who favor “noncitizen” to “alien,” has gone so far as to “expurgate the word ‘alien’ from quotations.”

The entire Supreme Court, however, is not in accord – and the disagreement does not necessarily turn on being sympathetic to the cause of an alien in one particular proceeding or another. Notably, the decision that prompted Mr. Blackman’s article involved Justice Barrett writing for a five-Justice majority in ruling against the Petitioner (being the alien in that case) and holding that Federal appellate courts lacked jurisdiction to review his challenge to an administrative finding that he was ineligible to adjust his immigration status to that of an alien lawfully admitted for permanent residence. Justice Neil Gorsuch, writing for the three-Justice dissent that included the aforementioned Justice Sotomayor, used the word “alien” instead of a newfound replacement.

The term “noncitizen” is far closer to being descriptive and accurate than is any of the variety of admixtures of terms involving “undocumented” as replacements for illegal aliens. However, for reasons that I explained in an article on noncitizen nationals, using the term “noncitizen” as a replacement for “alien” has a technical flaw under the U.S. citizenship and nationality laws:

’Aliens’ are often referred to as ‘noncitizens.’ While this suffices for a good definition in almost every case, it is not technically accurate. For example, a noncitizen national born in American Samoa is a noncitizen, but he or she is not an alien. An alien does not owe permanent allegiance to the United States. Mr. Andrew R. Arthur noted a very key distinction. Aliens are subject to removal proceedings under 8 U.S.C. § 1129a, INA 240A, if they violate the immigration laws or are otherwise removable from the United States. Noncitizen nationals, like citizens, are not subject to removal or other provisions of U.S. law applicable to aliens.

One may call this quibbling, but Mr. Andrew R. McArthur noted in a 2017 article, which I referenced in my post on noncitizen nationals, that “[t]he Supreme Court is generally known for the precision of its language…” Indeed, the Supreme Court, whose judgments are nationally binding, should aspire to the highest standards of precision in its decisions. Mr. McArthur listed several legal issues wherein the distinction between those noncitizens who are U.S. nationals and those noncitizens who are aliens has been materially significant. He also explained why the term “immigrant” is terribly misleading since the immigration laws distinguish between those aliens who are immigrants (lawful permanent residents) and those aliens who are nonimmigrants (aliens who are admitted until a date certain or until specified purposes are achieved).

Technically speaking, the terms non-citizen-or-national or non-national would replace the plain meaning of alien. But there is no reason to venture down such a path. There is much to quibble with in the U.S. immigration and nationality laws, but the definitions of citizen, national, and alien, as well as the immigrants and nonimmigrants, are not among them. These terms are clearly and expertly defined. We need not delude ourselves into deeming the term alien offensive due to the faddish impulses of the day. In a single word, rather than two, three, or four, the term “alien” distinguishes foreign nationals who lack U.S. citizenship and/or nationality from U.S. citizens and noncitizen nationals. I submit for the record that the most enthusiastic proponents of transmogrifying the language of section 101 of the Immigration and Nationality Act tend to have greater aspirations for changing the immigration laws than merely changing a few terms.

If this has left you unpersuaded, I submit for the record that the nonimmigrant category for “an alien who has extraordinary ability” defined in section 101(a)(15)(O) of the Immigration and Nationality Act sounds much cooler than the Department of Homeland Security’s statutorily-detached “individuals with extraordinary ability” formulation in its Policy Manual.