Commentary

Biden Admin Calls Illegal Aliens ‘Undocumented Citizens’

By Hans Bader | August 23, 2021 | 2:52pm EDT
Joe Biden participates in a debate. (Photo credit: MANDEL NGAN/AFP via Getty Images)
Joe Biden participates in a debate. (Photo credit: MANDEL NGAN/AFP via Getty Images)

The Biden Administration has come up with a new euphemism for illegal alien: "undocumented citizen." Law professor Josh Blackman notes that on Aug. 12, "the Department of Justice published a press release, titled 'Young soldiers admit to transporting undocumented citizens.'"

The "first sentence of the release" made clear that "two military men stationed at Fort Hood" had admitted transporting illegal aliens. Blackman suspects "undocumented citizens" was used because a "DOJ press person was following a policy to strip the word 'alien' from all documents, but did not follow the policy properly."

The Biden Administration's use of the term "undocumented citizen" is misleading because illegal aliens are, by definition, not citizens.  "Illegal alien" is the correct term. Federal law uses the term "illegal alien," not "undocumented citizen." Two examples of laws using the words “illegal alien” are 8 USC 1365 and 6 USC 240.

In July, the Biden administration forbade immigration judges to use the word "alien," even though it is found in the very laws they administer. On July 23, Jean King, acting director of the Executive Office for Immigration Review (EOIR) — the DOJ entity that oversees the immigration courts -- issued a Policy Memorandum that “directs EOIR staff, including adjudicators" -- that is, immigration judges -- "to use [more welcoming] language." They can no longer use the term “undocumented alien" or "illegal alien;" instead, such people are now to be called “undocumented noncitizens, undocumented non-U.S. citizens, or undocumented individuals.” Instead of the word “alien," words like “migrant, noncitizen, or non-U.S. citizen” must be used.

But “illegal alien” is a legal term that comes up again and again in federal and state laws. As the pro-immigration scholar Alex Nowrasteh notes, “illegal alien” is the most commonly used term for people in the country illegally. In federal laws,

The term “illegal alien” was mentioned most of all – 33 times. … The second most common term was “unauthorized alien,” which appeared 21 times or about a quarter of the time. Interestingly enough, “undocumented alien” was the third most common with 18 uses. My preferred term of “illegal immigrant” was used only six times.

Illegal alien is also the term used by the Supreme Court in cases such as Arizona v. United States.

But the term "illegal alien" deeply offends many progressives, who view it as racist. For example, New York City's human rights commission has issued “immigration guidance” warning against use of the term "illegal alien." Its guidance restricts the use of the term “illegal alien” in workplaces, housing, and schools, threatening those who use it with fines of up to $250,000 for "discrimination." Lawyers have criticized those restrictions, saying they violate the First Amendment. One of their objections is that “illegal alien” is legally accurate terminology that the government lacks a valid interest in targeting based on its viewpoint. But New York City’s restriction on using the term “illegal  alien” violates free speech regardless of whether “illegal alien” is the best term to use, because the First Amendment protects speech regardless of its “truth, popularity, or social utility.”

Many progressives would like to replace the term “illegal alien” with euphemisms like “undocumented immigrants” or “new Americans.” These euphemisms are confusing and misleading, because many “new Americans” are legal immigrants, and many illegal immigrants are not “undocumented”: they have documents such as U.S. driver’s licenses, or school IDs issued in the U.S.

Some progressives like to use the word "non-citizen" instead of "alien," which they view as dehumanizing. But doing that can be misleading, because the two terms have different meanings. Not all non-citizens are aliens. For example, people from American Samoa are not American citizens, but they are also not aliens — they are “American nationals,” even though they can’t vote in most federal elections

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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