Two recent events prompted me to think about the use of nomenclature in immigration law.
One was a tweet criticizing a colleague for using the word "alien". The second was my review of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), a case involving the application of the term "aggravated felony" under section 101(a)(43)(B) of the Immigration and Nationality Act (INA).
In the first sentence of Moncrieffe, Justice Sotomayor, writing for the majority, states: "The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an "aggravated felony" may be deported from this country." (Emphasis added.) All told, the phrase appears 33 times in the majority decision. The term "alien" appears 26 times, but not at all in the majority opinion; rather, it appears in the two dissents, one by Justice Thomas, and one by Justice Alito.
The Supreme Court is generally known for the precision of its language, and so Moncrieffe raises the question whether "noncitizen" is an appropriate legal term for a person who is subject to removal under section 240 of the INA. The answer is "no"; I will therefore attempt to delineate amongst the terms.
First, section 101(a)(3) of the INA, in the "definitions" section of that act, states: "The term 'alien' means any person not a citizen or national of the United States." Section 101(a)(22) of the INA, in turn, states: "The term 'national of the United States' means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."
Thus, a person can be a "national of the United States" but not a citizen. In her dissent in Miller v. Albright, 523 U.S. 420, 467 n.2 (1998), Justice Ginsburg helpfully explained the differences between "nationals" of the United States and citizens:
Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen. [Section 101(a)(22) of the INA]. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island.
This might seem like a minor point, but it actually has real-world implications, at least for the "nationals" affected. For example, in an early version of the bill, section 202 of the REAL ID Act of 2005 (H.R. 418) (2005) stated:
Beginning 3 years after the date of the enactment of this Act, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section.
Among the requirements for issuance of a federally acceptable State driver's license were the following, in section 202(c)(2):
(B) EVIDENCE OF LAWFUL STATUS.—A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person—
(i) is a citizen of the United States;
(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;
(iii) has conditional permanent resident status in the United States;
(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;
(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;
(vi) has a pending application for asylum in the United States;
(vii) has a pending or approved application for temporary protected status in the United States;
(viii) has approved deferred action status; or
(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.
Pursuant to H. Res. 151 (2005), the text of the REAL ID Act, as it had passed the House of Representatives, was appended as Division B to the end of H.R. 1268 (2005), the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, which was signed into law on May 11, 2005.
In conference, it was realized that driver's licenses from American Samoa could not be accepted by federal agencies under the text as written, because, as Justice Ginsburg noted, individuals from American Samoa are nationals, but not citizens, of the United States. For that reason, in the enrolled version of H.R. 1268, section 202(c)(2)(B) of the REAL ID Act of 2005 was amended to read: "A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person-- (i) is a citizen or national of the United States."
So, citizens are nationals of the United States, but not all nationals are citizens. Therefore, the term "noncitizen" includes aliens and nationals who are not citizens. But, nationals are not subject to removal proceedings under section 240 of the INA, only aliens are; therefore, any case that discusses whether or an individual is to be removed, unless it is a case involving contested citizenship, relates to an "an alien" not a "noncitizen".
What about immigrants? The term "immigrant" is defined in the negative, in section 101(a)(15) of the INA, as "every alien except an alien who is within one of the [specified] classes of nonimmigrant aliens". Thus, an "immigrant" is every alien who is not a "nonimmigrant". So what is a "nonimmigrant?"
As U.S. Citizenship and Immigration Services explains it, a "nonimmigrant" is:
An alien who seeks temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information media, exchange visitors, fiance(e)s of U.S. citizens, intracompany transferees, NATO officials, religious workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.
Therefore, generally, to be a nonimmigrant, you have to be an alien who seeks entry (or has been admitted) under one of the nonimmigrant classifications, and have an intention to leave the United States and go home when the purpose that brought you to the United States is done. Importantly, however, not all aliens are immigrants, but all immigrants and nonimmigrants are aliens. So, when in doubt, the legal term for someone who is not a citizen or national of the United States is "alien".