In a brief opinion yesterday (concurring in the judgment in Khan v. Garland), Fifth Circuit judge James C. Ho joins forces with his “fellow former alien” Ninth Circuit judge Carlos Bea in defending the use of the legal term alien against ill-founded charges that the term is offensive. As I observed recently, several Supreme Court justices are among those who have substituted the term noncitizen for alien, even though the federal immigration law uses alien and the two terms are not in fact synonymous.
Judge Ho observes that alien “is ubiquitous in statutes, regulations, judicial decisions, and scholarly commentary on federal immigration law.” He celebrates that his “own path to [the] privilege” of United States citizenship—“one of the greatest privileges this world has ever known”—“began with [his] admission into this country as an alien,” and he regards the various documents bearing his alien registration number as among his “most treasured possessions.” Further:
There’s no need to be offended by the word “alien.” It’s a centuries-old legal term found in countless judicial decisions. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 370 (1816); Gibbons v. Ogden, 22 U.S. 1, 221 (1824). It’s used in numerous acts of Congress—including the ones that allowed me to become an American. To this day, both 8 U.S.C. and 8 C.F.R. address the subject of “Aliens and Nationality.”
Some members of the judiciary are nevertheless concerned that “[t]he word alien can suggest ‘strange,’ ‘different,’ ‘repugnant,’ ‘hostile,’ and ‘opposed.’”
That may be true in certain contexts. The word also refers to extraterrestrials in other contexts. But we always read words in their proper context. And in the context of immigration law, we use “alien,” not to disparage one’s character—or to denote one’s planetary origin—but to describe one’s legal status.