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In a recent development, Judge James C. Ho of the 5th U.S. Circuit Court of Appeals in New Orleans has garnered attention for his decision to boycott Yale Law School students for clerkships. However, Judge Ho has now directed his focus towards his colleagues, expressing his disagreement with their use of the term ‘noncitizen’ instead of ‘alien’ in legal language and decisions.
Judge Ho’s stance was outlined in a concurrence on May 30, which caught the attention of legal publications such as Bloomberg Law and Above the Law. In his concurrence, he argued against the alteration of statutes and judicial decisions that employ the term ‘alien’ by substituting it with terms like ‘noncitizen.’ According to Judge Ho, the term ‘alien’ is deeply ingrained in federal immigration law, existing in statutes, regulations, judicial decisions, and scholarly commentary.
As someone who was initially admitted to the United States as an ‘alien’ before becoming a citizen, Judge Ho highlights the ubiquity of the term ‘alien’ and its significance in legal discourse. He stresses that the term can be found in countless judicial decisions and was even used in acts of Congress that facilitated his own journey towards American citizenship.
Some judges argue that ‘alien’ may convey a negative connotation, suggesting strangeness or repugnance. However, Judge Ho contends that within the context of immigration law, ‘alien’ merely serves as a descriptor of an individual’s legal status. He also references Judge Carlos T. Bea of the 9th Circuit in San Francisco, who shares a similar view on the matter.
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Bryan A. Garner, the editor-in-chief of Black’s Law Dictionary and an ABA Journal columnist, is another prominent figure whose opinions Judge Ho references. In a 2011 edition of Garner’s Dictionary of Legal Usage, it is stated that ‘illegal alien’ is not meant as an offensive term but rather as a description of someone present in a country violating immigration laws. However, Garner acknowledges that the popular connotations of the term may have influenced public perception.
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Garner offered further insight into the debate, stating that while ‘alien’ was not originally intended to be belittling, the word’s popular associations have influenced some people’s perception of it. He suggests that the ongoing discussion surrounding terminology reflects the larger culture wars. Garner believes that time will ultimately determine how this issue will be resolved, acknowledging that ‘aliens’ may not have a favorable future.
The controversy surrounding the use of ‘alien’ versus ‘noncitizen’ raises important questions about the power of language and its impact on legal discourse. As the debate continues, it remains to be seen whether legal language will evolve to reflect shifting societal norms or if traditional terminology will persist in federal immigration law.
Judge James C. Ho’s objection to the replacement of ‘alien’ with ‘noncitizen’ by his colleagues in legal decisions and discourse has sparked a broader discussion about terminology and its implications. While some argue for the term’s obsolescence due to potential negative connotations, Judge Ho emphasizes its established usage and descriptive nature within the context of immigration law. The ongoing debate underscores the importance of language in shaping legal frameworks and highlights the broader cultural divisions influencing the conversation. As legal language continues to evolve, the ultimate resolution of this issue remains uncertain.
