Bench Memos

Law & the Courts

Alien Versus Noncitizen

The Wall Street Journal highlights a recent exchange (in Hernandez Avilez v. Garland) between Ninth Circuit chief judge Mary Murguia and her colleague Carlos Bea on whether to use the statutory term alien in opinions. WSJ gives a fine account, but not constrained by space limits, I figured I’d set forth fuller excerpts (with some citations omitted).

Chief judge Murguia:

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, 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. The word alien can suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,” Webster’s Third New International Dictionary (2002), while the word noncitizen, which is synonymous, see American Heritage Dictionary of English Language (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.

Judge Bea:

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. 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 nonstatutory 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.

On the passage I’ve underlined, WSJ helpfully explains:

Judge Bea explained in a 2019 oral history that he was studying at Stanford as a permanent U.S. resident when he took a break to play basketball outside the country, including at the 1952 Olympics in Helsinki for the Cuban team. When he returned to Stanford, he was given a student visa, which “broke the continuity of my resident status,” though he didn’t know that at the time.

This led to a removal order, since a suspicious immigration official said he thought the young Judge Bea had changed his status in an effort to avoid the draft. After a successful appeal, Judge Bea became a citizen in 1958 and eventually a jurist on the Ninth Circuit in 2003, appointed by President George W. Bush.

I’m amused to see that a Google search of Judge Bea’s name yields his photo, his name, and the identifier “Basketball player”:

Judge Bea has a delightful sense of humor, so I have to wonder whether he somehow arranged that.

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