Circuit Judges Get into Spat Over the Term ‘Alien’

Judge Humpty Dumpty follows the Biden administration through the looking glass

By Andrew R. Arthur on July 15, 2021

The Court of Appeals for the Eleventh Circuit recently issued an unpublished opinion in Martinez Rivera v. U.S. Attorney General, a case involving an alien’s eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) (42B cancellation). It is most notable for the spat two of the judges on the three-judge panel got into on whether to call the alien “an alien”.

First, briefly, here are the facts: The petitioner is a native of Honduras, who apparently entered the United States illegally. He was placed into removal proceedings in April 2018, after DHS served him a Notice to Appear (NTA, the charging document in removal proceedings).

That NTA did not contain the time, date, or place of his first hearing (called the “initial master calendar”, which is similar to an arraignment in a criminal case), but a few days after he received the NTA, the immigration court sent him a hearing notice.

He appeared at his proceedings and applied for 42B cancellation, which allows removable aliens to seek green cards if they: have been physically present for 10 years; establish good moral character during that period; have not been convicted of certain criminal offenses; and establish that “removal would result in exceptional and extremely unusual hardship to” certain qualifying relatives.

The immigration judge (IJ) had concerns about Martinez Rivera’s good moral character (there were some unusual tax issues, including the fact that the applicant owed the IRS more than $12,000 for claiming dependents he should not have), but denied the application because the alien failed to show the requisite hardship to his two United States children.

The alien respondent appealed that decision to the BIA, which affirmed the IJ, and then filed a petition for review with the Eleventh Circuit, which issued the opinion in question.

As I explained in a May 1 post, the Supreme Court recently held that the service of an NTA that does not include time, date, and place information does not “stop the clock” on the alien accruing the 10 years’ presence required for 42B cancellation, even if the immigration court subsequently sends a hearing notice containing that information within that 10-year period.

That case was Niz-Chavez v. Garland, and Martinez Rivera (in essence) wanted the Eleventh Circuit to extend the Supreme Court opinion that Niz-Chavez clarified, Pereira v. Sessions, to hold that the service of the defective NTA in his case deprived the IJ of jurisdiction, meaning that ICE would have to start the process all over again.

Relying on its own case law, the Eleventh Circuit dismissed that argument, as well as the alien’s contention that he was denied due process and that the IJ was biased against him, and denied Martinez Rivera’s petition.

So far, so good, and the correct legal decision by the unanimous three-judge panel.

It was then that Judge Beverly Martin decided that she needed to complain in a concurrence that the panel’s decision used the term “alien” in lieu of “noncitizen”. She plainly felt strongly about that verbiage because she counted up the number of times that the term was used (10), referenced a Washington Post article to support her contention that it was “archaic and dehumanizing”, and (for good measure) cited an assessment by the Library of Congress that concluded (according to Judge Martin) the word “has become pejorative”.

Plainly feeling somewhat defensive, Judge Elizabeth Branch (who authored the opinion) filed her own concurrence spiritedly defending her use of the word “alien”. As she stated, “each time the majority uses the term ‘alien’ — in citing the statutory provision at issue, the holding of a court, or a court document, its use of the term is grounded in the text of the” INA.

I have addressed (and questioned) the Biden administration’s attempts to swap “noncitizen” for “alien” previously, but Judge Branch’s points are particularly well-taken given the facts in this decision.

That’s because Niz-Garland and Pereira — the Supreme Court opinions that played a big role in this case — were solely decided based on the actual words that appear in the INA. In fact, Niz-Chavez hinged on one single word — the indefinite article “a” as it appears in section 240A(d)(1) of the INA — as I explained in May.

In the law, words matter, and when it comes to interpreting federal statutes (which is what federal courts do in every decision), the specific words Congress uses are key, as Niz-Chavez and Pereira show.

When judges use the wrong word, or just swap out their own (as Judge Martin would do), they run a significant risk of getting it wrong. As Judge Branch explains, “if we were to substitute the term ‘alien’ for ‘noncitizen’ in reference to specific statutory provisions, we risk stating the law inaccurately”.

That is especially true when it comes to “alien” and “noncitizen”, as I explained back in January. Section 101(a)(3) of the INA states: “The term 'alien' means any person not a citizen or national of the United States.” By definition, that means that there are people who are not “aliens”, but not “citizens”, either (in this case residents of American Samoa and Swain’s Island).

They are “noncitizens”, too (a made-up word that has no legal meaning), but under the INA, they are not subject to the restrictions and conditions on aliens that appear in the INA, because they are not “aliens”.

Lest you think that this is just kvetching, the Biden administration’s own difficulties applying the term “noncitizen” are enlightening.

In the January 20 memorandum from then-Acting DHS Secretary David Pekoske that kicked off the “noncitizen” craze in the current administration, footnote 1 has to explain: “’Noncitizen’ as used in this memorandum does not include noncitizen nationals of the United States.”

In other words, “’Noncitizen’ means what I want it to mean,” as if Pekoske were Humpty Dumpty in Lewis Carroll’s Through the Looking Glass, proclaiming (“in rather a scornful tone”): “When I use a word ... it means just what I choose it to mean — neither more nor less.”

For what it’s worth, Pekoske (and Judge Martin, for that matter) appear to be attempting to change (administratively and judicially, respectively) the language of the INA for the same reason that Humpty Dumpty did. The quoted passage continues:

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them — particularly verbs, they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That’s what I say!”

With due respect to the executive and judicial branches, by law Congress gets to say what the immigration laws are, and to pick and define the words that are used within the INA. Judge Branch probably felt as flustered drafting her concurrence as I do writing this post, because the words are clearly defined, and the definitions matter.

I will note, in this regard, that Judge Martin took some liberties with her citations. She writes, again citing the Washington Post: “’Alien’ is increasingly recognized as an ‘archaic and dehumanizing’ term.”

Here is what that article actually says:

Advocates for immigrants, who have increasing influence on the White House, say the terms are archaic and dehumanizing — “alien,” for instance, is more likely to conjure visions of space creatures than people, they say — and should be scrapped in favor of a more civil tone.

I trust that the “advocates for immigrants” to whom the Post refers would probably also prefer that Martinez Rivera be given a green card, too, but that’s not what the law says either.

Then, there is this from Judge Martin, quoting the Library of Congress: “I see no need to use a term that ‘has become pejorative’ where a non-pejorative term works perfectly well.”

In actuality, the Library of Congress was explaining that its Policy and Standards Division “concluded that the meaning of Aliens is often misunderstood and should be revised to Noncitizens, and that the phrase illegal aliens has become pejorative.”

I disagree with each of the Library of Congress’s points. As explained above, “noncitizen” is “misunderstandable” and confusing when it comes to non-citizen nationals of the United States (who pay the Policy and Standards Division’s salary, too), and “illegal aliens” is descriptive, not pejorative.

But in any event, the Library of Congress did not identify the word “aliens” as “pejorative”, except (in the opinion of the Policy and Standards Division) when the adjective “illegal” is put before it, a point that Judge Martin elides.

I seriously doubt that one single unpublished opinion or Judge Branch’s thoughtful concurrence is going to change much. Congress’s words are “the law” when it comes to the INA, however, though if others follow Judge Humpty Dumpty and the Biden administration through the looking glass, it will be an unelected judiciary and a handful of advocates — not the people’s representatives — who are soon deciding what that law is.