Language in the Immigration Debate

By Jon Feere on October 26, 2012

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Jon Feere is the Legal Policy Analyst at the Center for Immigration Studies.

Illegal aliens and their advocates have been at the forefront of a movement that seeks to abolish the use of accurate legal language in journalism and the judicial system. The activists are demanding that journalists and judges use activist language when describing illegal aliens and illegal immigration generally. Many organizations have been pushing the agenda, including the National Association of Hispanic Journalists, the Arizona Hispanic Bar Association, and illegal alien journalist and admitted fraudster Jose Antonio Vargas, who is calling the Associated Press and the New York Times his "two main targets". So far, both the AP and the Times have not completely given in to the demands. In fact, the AP has drawn a line in the sand.

After months of pressure from activist groups, Associated Press stylebook co-editor Dave Minthorn last year explained in a memo:

Undocumented might imply that illegal immigration is simply a matter of not having one's papers in order. It may be used to minimize what could be a violation of the law — evading controls at a border or living in a country without legal permission. So we advise against using the term on our own. If an authority uses it, and we quote the authority, that's different. But as a blanket synonym for illegal immigrant? No, it's usually imprecise or inaccurate.

As I recently explained to a journalist writing on this topic, it is very important for people to use legally accurate language when talking about legal matters. I pointed out that a legal immigrant who loses his wallet becomes "undocumented". Mr. Minthorn would seem to agree.

The Associated Press continued to lay down the law this week, clearly tiring of the activist demands:

Terms like "undocumented" and "unauthorized" can make a person's illegal presence in the country appear to be a matter of minor paperwork. Many illegal immigrants aren't "undocumented" at all; they may have a birth certificate and passport from their home country, plus a U.S. driver's license, Social Security card, or school ID. What they lack is the fundamental right to be in the United States.

Without that right, their presence is illegal. Some say the word is inaccurate, because depending on the situation, they may be violating only civil, not criminal law. But both are laws, and violating any law is an illegal act (we do not say "criminal immigrant"). Finally, there's the concern that "illegal immigrant" offends a person's dignity by suggesting his very existence is illegal. We don't read the term this way. We refer routinely to illegal loggers, illegal miners, illegal vendors, and so forth. Our language simply means that a person is logging, mining, selling, etc., in violation of the law — just as illegal immigrants have immigrated in violation of the law.

That's some powerful stuff. And it's accurate. The AP's updated definition of "illegal immigrant" is now:

Used to describe someone who has entered a country illegally or who resides in a country in criminal or civil violation of immigration law. Acceptable variations include living in the country without legal permission. Use of these terms, as with any terms implying illegalities, must be based on reliable information about a person's true status. Unless quoting someone, AP does not use the terms illegal alien, an illegal, illegals, or the term undocumented.

While it is good to see that the Associated Press has not fully embraced activist language, the news source still gets it wrong by advising against use of the legally accurate term "illegal alien".

When asked by the American Journalism Review whether it makes a difference to use the term "illegal alien" as opposed to "illegal immigrant", linguist Jennifer Sclafani — a supporter of activist language — responded, "Yes, absolutely it does. No matter which way you look at it, an alien is always an outsider."

And that is the correct way of looking at immigration. Those who are here on tourist visas, for example, are legal aliens. Those who entered illegally are illegal aliens. In both instances, they are aliens — i.e. "outsiders" — who are not part of the American citizenry. This is a basic legal and logical fact. The word "immigrant" should be reserved for those who — as defined by Merriam-Webster — come to a country for "permanent residence". In other words, the term "legal immigrant" or "immigrant" should only be used where the individual is entering the United States on a permanent basis and has received a green card. In fact, the official USCIS glossary defines "immigrant" as someone who has been "admitted to the United States as a lawful permanent resident". If he later acquires U.S. citizenship he becomes a citizen and is no longer an immigrant.

Neither temporary legal aliens nor illegal aliens are permanent residents. By supporting the term "illegal immigrant" the Associated Press has arguably endorsed use of an oxymoron. Certainly this analysis is based on a tight, legal reading of the terminology; colloquially, people use the terms "illegal immigrant" and "illegal alien" interchangeably. Furthermore, federal agencies and courts are not entirely consistent in their use of language. This is partly attributable to the fact that immigration law — both in Congress and federal agencies — has been amended many times over the past century on a piecemeal basis. For example, judges often refer to all non-citizens (even green card holders) as "aliens" as a result of federal law. Yet green cards — which used to be called Alien Registration Cards — are now called Permanent Resident Cards, suggesting that these individuals are more appropriately considered immigrants rather than aliens. (And illustrating the inconsistency further is the fact that green cards have not always been colored green!) Nevertheless, journalists should not use this as an excuse to use imprecise language in their writing.

The Associated Press's media relations director, Paul Colford, told ABC News the following in regard to the term "illegal immigrant", further muddying the waters:

We do not insist that the term be stamped on everyone who's here illegally. In fact, as in the case of a person who was brought here as a child without permission, the term can be misleading, since the person wasn't a willing "immigrant" at all. In such a case, we might simply state the situation: He doesn't have legal permission to live in the United States, since his parents entered the country illegally (or without authorization).

But regardless of whether someone willingly broke the law on his own or was brought here by his parents through no fault of his own, the legal fact remains that either way he has no colorable right of entry and is an illegal alien. Use of accurate legal terminology would absolve AP writers from having to take a moral stand on the matter; they would not always have to factor the alien's methodology of entry into their description. If they stated the legal facts and the situational facts, the AP's worries about being misleading could be alleviated. An accurate sentence to describe Mr. Colford's hypothetical would be: "The individual is an illegal alien who was brought here illegally by his parents." Saying anything less could result in misinterpretation.

Of course, this entire debate was not initiated by people concerned about grammar. Those who are attempting to get the media to use activist terms have made it their goal to erase the line between legal and illegal activity. As Otto Santa Ana, a founding member of the Cesar Chavez Center for Chicana and Chicano Studies at the University of California, Los Angeles, complains, "When you label a person as criminal, as illegal, it structures the way we think about those people." As well it should. Mr. Santa Ana let the cat out of the bag: This entire movement is designed to get Americans to stop thinking about law-breakers as law-breakers. It is part of an effort to legitimize illegal immigration.

The activists have not limited their focus to journalists. Shockingly, they have attempted to get courts to stop using legal language. As I explored in an earlier blog, the Arizona Hispanic Bar Association is demanding that courts in Arizona stop using over a dozen words and phrases they consider offensive including "aliens", "illegal aliens", "resident or non-resident aliens", "illegal immigrants", and "illegal immigration". Much of the language they want banned is used throughout federal immigration statutes and case law. Only months before the Arizona Hispanic Bar Association made its demands, a case in the California Court of Appeals slapped down different open-border advocates for using activist language in their brief:

Defendants prefer the term "undocumented immigrants". However, defendants do not cite any authoritative definition of the term and do not support their assertion that the terms "undocumented immigrant" and "illegal alien" are interchangeable. We consider the term "illegal alien" less ambiguous. Thus, under federal law, an "alien" is "any person not a citizen or national of the United States". (8 U.S.C. § 1101(a)(3).) … . In place of the cumbersome phrase "alien[s] who [are] not lawfully present", we shall use the term "illegal aliens".

— Martinez v. Regents of Univ. of California, 166 Cal.App.4th 1121 (2008)

After the case was appealed, the California Supreme Court addressed the language issue once more and settled on the phrase "unlawful alien", explaining that it allowed the court to be "neutral, yet as accurate, as possible". For its part, the Arizona court system also does not appear to have capitulated to the activist group's demands.

The New York Times's Phil Corbett, associate managing editor for standards, recently responded to a journalist's inquiry about terminology and argued against use of activist language:

Julia [Preston] and other Times reporters try to be detailed, descriptive, and as accurate as possible in writing about immigrants in a whole range of different situations.

But in referring in general terms to the issue of people living in the United States without legal papers, we do think the phrases "illegal immigrants" and "illegal immigration" are accurate, factual, and as neutral as we can manage under the circumstances. It is, in fact, illegal to enter, live, or work in this country without valid documents. Some people worry that we are labeling immigrants as "criminals" — but we're not. "Illegal" is not a synonym for "criminal". (One can even park "illegally", though it's not a criminal offense.)

Proposed alternatives like "undocumented" seem really to be euphemisms — as though this were just a bureaucratic mix-up that can easily be remedied. Often those phrases seem deliberately chosen to try to soften or minimize the significance of the lack of legal status. We avoid those euphemisms just as we avoid phrases that tend to cast a more pejorative light on immigrants. For example, we steer clear of the shorthand "illegals" and also the word "aliens", both of which we think have needlessly negative connotations.

This sentiment is not shared by all newspapers, however. Despite AP standards, some media outlets continue to try to legitimize the presence of illegal aliens. Two California newspapers recently referred to illegal aliens within the state as "undocumented Californians" — as if citizens of foreign countries become "Californians" simply by violating federal law and entering the United States illegally.

Immigration reporting has a long way to go in most of the nation's newsrooms. The media commit very little ink or airtime to investigating the effect mass immigration has on the United States, whether it is the impact on wages, poverty, or natural resources, for example. And while it will take some effort to get journalists to cover the important topics in the immigration debate, at a minimum journalists should be expected to be cautious in their use of language.

UPDATE: After this report was published, the AP changed its policies, once again, and capitulated to the demands of the illegal alien advocates. AP has pledged to not use "illegal immigrant". The executive editor explains that AP will "use illegal only to refer to an action, not a person: illegal immigration, but not illegal immigrant." One wonders whether an illegal alien who has engaged in identity theft would be appropriately described as a "criminal alien".