Words are powerful. They influence our thinking and give meaning to our concepts. They communicate cultural memes and taboos. Words are one of the oldest tools we humans developed to enable us to live together in groups larger than a handful (like our pre-verbal, grassland-walking ancestors used to do).

The words used in our laws carry the power of our society’s choices about how to handle our affairs. Words in statutes and regulations are (usually) carefully chosen. Judges use the same words when interpreting those laws. But sometimes the words used are no longer appropriate. Sometimes we fight over the right word to use.

There is a word in immigration law where a battle is brewing in the courts: alien (disclaimer: I loath this word and have refused to use it from the time I first started writing immigration appeals back in 2010).

The word is used to refer to any person in the US who is not a citizen. I’m not sure when the word first became the dominant way to refer to immigrants and migrants, but it dates back to at least the turn of the 19th century — and likely before our nation of laws was even born. It’s a word derived from Latin that means stranger. Maybe it was appropriate to use it as a label for a certain group of humans hundreds of years ago, but a growing consensus holds that it no longer is.

When Biden came into power, he issued an order to the United States Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE) requiring them to cease using the word “alien” in favor of “nonimmigrant” or “migrant.”

Not long after, a judge on the Eleventh Circuit Court of Appeals had this to say about the word change:

“I write separately [*21] to note why I prefer not to use the term “alien,” which the panel opinion uses ten times. Justice Kavanaugh has equated the term “noncitizen” with the statutory term “alien.” Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020); see also United States v. Estrada, 969 F.3d 1245, 1253 n.3 (11th Cir. 2020). “Alien” is increasingly recognized as an “archaic and dehumanizing” term ...

... To the extent the term “noncitizen” does not, in every instance, serve as a perfect replacement for the term “alien,” that concern is not present in this case. I see no need to use a term that “has become pejorative” where a non-pejorative term works perfectly well.”

— Rivera v. United States AG, 2021 U.S. App. LEXIS 20217 (11th Cir. 2021) (Martin, J., concurring)

Judge Martin’s rationale has not caught on: in at least two decisions entered after the one in Rivera other 11th Circuit Court judges specifically decline to use the words nonimmigrant and migrant. Their rationale is basically that the word “alien” is used in the immgration statute so they have to use the same word because the courts should not engage in rewriting the law (what’s known as “judicial draftsmanship” in judge parlance). See Murugan v. United States AG, 10 F.4th 1185, 1190, fn2 (11th Cir. 2021); Abakporo v. United States AG, 2021 U.S. App. LEXIS 24179 (11th Cir. 2021) (Branch, J., concurring).

In a system based on the rule of law, and one that shuns violence as a means of dispute resolution, courts are where we fight our battles. Right now, the side of those wanting to replace a dehumanizing word is not gaining ground. But battles ebb and flow, like tides. The outcome could yet turn in favor of judicially referring to our national guests and hopeful citizens with words more appropriate to the sensibilities of the 21st century.

The Battle Over Immigration Language

There is a word in immigration law where a battle is brewing in the courts: alien (disclaimer: I loath this word and have refused to use it from the time I first started writing immigration appeals back in 2010).

When Biden came into power, he issued an order to the United States Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE) requiring them to cease using the word “alien” in favor of “nonimmigrant” or “migrant.”

Not long after, a judge on the Eleventh Circuit Court of Appeals had this to say about the word change:

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