AP's Argument That "Illegal" Is More Accurate than "Undocumented" Doesn't Hold Water

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I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today addressing Jose Antonio Vargas's recent request to the AP and the New York Times to stop using the term "illegal immigrant."  Thank you for discussing this important issue.  I am an immigration attorney based in Philadelphia, Pennsylvania.  You cited Mr. Corbett, the associate managing editor for standards at The Times, as stating:

[I]n 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.

I wanted to respond to this comment with a few points.  First, the terms "illegal immigrant" and "illegal alien" are not defined in the Immigration and Nationality Act and are generally disfavored by immigration judges and the members of the Board of Immigration Appeals, who make decisions about whether someone is to be removed from the U.S. or not.  According to applicable law, the terms are no more accurate than "undocumented" or "unauthorized."  "Alien" is the most accurate legal descriptor of a non-citizen.  I've attached and copied below a blog post I wrote for change.org a few years ago that explains this in more detail, with citations to applicable law (change.org recently removed the blog posts from that time period from its site, so the post is no longer available online.)

Second, the term illegal immigrant is not accurate because it usually assumes a person's immigration status when that status has not yet been determined by a court of law.  It has been documented that the Department of Homeland Security routinely attempts to deport U.S. citizens, and sometimes succeeds.  
People born in a foreign country can sometimes derive citizenship when their parents naturalize, and this can be used as a defense against deportation.  Such a person might not know he or she was a U.S. citizen.  The government bears the burden at the outset of removal proceedings to demonstrate that a person is not a U.S. citizen.  Too often, the government gets it wrong.  In many other cases, an immigrant can assert a defense against deportation in immigration court and either gain or confirm lawful status.  The clearest parallel here is when a journalist refers to an individual suspected of or charged with a crime as a "criminal" or "felon," which I understand is disfavored.

Third, there are many types of immigration status ranging from U.S. citizen to no lawful status, and it is not always clear where an individual falls within that spectrum.  For instance, immigrants brought to the U.S. as children can apply for deferred action for childhood arrivals under the policy announced by President Obama on June 15, 2012.  The government claims that this type of deferred action is not a lawful status, but it looks very much like lawful status to me.  It confers a two-year protection against deportation which is renewable indefinitely and, in most cases, also grants permission to lawfully work in the U.S.  With a work permit, deferred action beneficiaries can obtain a Social Security Number and, in most states, a driver's license.  In some cases, they will be able to leave and reenter the U.S. through lawful channels. 

Is someone who has been granted deferred action for childhood arrivals an "illegal immigrant" or even "undocumented?"  It is hard to say.  I think the question of whether deferred action is a lawful status with the procedural protections that confers will eventually have to be decided by the federal courts.  There is a panoply of other types of status.  The immigration laws are confusing even (or especially) to government officials and immigration judges, whose decisions are often overturned on appeal.  Yet I often see all foreign-born people lumped into a single catch-all category in the press. 

There are other reasons not to use the term "illegal immigrant," but my point here is that the argument that the term is used because it is more accurate than the terms favored by immigrants and advocates is baseless. 


David Bennion

Here is the post I originally published on change.org's Immigrant Rights blog:

"Illegal Immigrant" Is the Real Euphemism

2009-07-02 07:00:00 UTC

Is Senator Chuck Schumer taking his talking points on immigration from far-right anti-immigrant websites?

Last week, Schumer (NY-D) gave reporters an indication of the administration's rhetorical strategy as Congress prepares to draft immigration reform legislation.  From the Washington Post:

Schumer said legislation should secure control of the nation's borders within a year and require that an estimated 12 million illegal immigrants register with the government and "submit to a rigorous process to convert to legal status" or face immediate deportation. Rejecting the euphemism "undocumented workers," he said: "Illegal immigration is wrong -- plain and simple."

McClatchy described Schumer's comments in similar terms:

Schumer said Democrats no longer can afford to use soft, euphemistic language about illegal immigration.

"When we use phrases like 'undocumented workers,' we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose."

So either Senator Schumer himself used the word "euphemism" to describe the phrase "undocumented workers," or two media outlets did in describing his comments.  Regardless, his message is clear.  According to Senator Schumer, "undocumented" is a misleading term, and he intends to be straight with the public by using accurate language.

But Senators and their speechwriters rarely construct their own arguments from scratch.  So where did this meme come from?

The top result in a google search for "undocumented" and "euphemism" right now is a blog post about Schumer's recent remarks. But the second and third results go to far right-wing nativist websites VDare and 24Ahead (formerly Lonewacko).  From 24Ahead:

Is "undocumented immigrant" a euphemism?

Yes, it's just a politically-correct way of saying the legally correct term: "illegal alien". They're "aliens" - people who are citizens of some other country - and they're here illegally.

The post goes on to quote a thinly-sourced portion of the nativist site illegalaliens.us (scroll to the bottom) which argues that "illegal alien" is a more accurate term than "undocumented" or "out of status," but doesn't bother to cite to any case, statute, or legal document.

I've often seen in comment threads on immigration stories or blog posts the assertion that the terms "undocumented" or even "illegal immigrant" are politically correct euphemisms for the legally correct term: "illegal alien."  This is the meme that Schumer picked up on last week.

Unfortunately for Schumer and the nativists, the meme is wrong.  "Illegal alien" and "illegal immigrant" are not recognized terms of immigration law.

"Alien" is a legal term defined in the Immigration and Nationality Act and used in immigration court and Board of Immigration Appeals (BIA) decisions day in and day out.  "Illegal alien" and "illegal immigrant" are not.

Conservative legislators wrote federal legislation in the 1980s and 1990s that uses the term "illegal alien," but most of these laws are not immigration laws, they deal with eligibility for public benefits and reimbursement of states by the federal government for incarcerating immigrants.  And this was part of an effort to give credibility to the term.

The term "illegal alien" itself makes two brief appearances in the INA: in Sections 280 and 286, both dealing with accounting arrangements among the federal agencies.  The term, though, is not defined in the INA and is not part of the terminology used by immigration judges and lawyers to communicate with each other about a person's immigration status during the course of removal proceedings (now there's a euphemism for you: "removal").

"Illegal alien" is an incoherent term from the standpoint of immigration law.  It assumes the thing that is to be proven: status under the immigration laws.  Immigration judges, the BIA, and even ICE attorneys don't use it because it is meaningless in the context of immigration proceedings.

The point of having a legal process to determine immigration status is to exhaust claims and defenses in an adversarial setting.  A person who crossed the border or overstayed a visa might have a valid asylum claim, could qualify for discretionary cancellation of removal, might have a current family-based or employer-sponsored petition, may have been the victim of a serious crime in the U.S., might have had grandparents who immigrated back when immigration from within the Western Hemisphere was much less restricted, might have been the victim of domestic violence, or could even be a citizen through their parents without having realized it.  In removal proceedings, an immigration judge must review all allegations made by the government and claims for relief made by the respondent before coming to a decision as to whether or not the respondent should be deported under applicable immigration laws.

Using the term "illegal alien" waves away that whole legal process and assumes a predetermined result: guilty, lawbreaker, criminal.  That is why restrictionists favor the term, not because it is legally accurate.

Immigration restrictionists know that language matters, which is why they have pushed so hard to discredit accurate descriptors and inject their preferred terminology into the discourse on immigration.

Representative of this effort is the site referenced above, Illegalaliens.us.  In addition to "undocumented," the site lists other supposed euphemisms for illegal aliens, including "foreign students," "residents," and "Mexicans."  The site also lists "possible euphemisms" such as "Hispanics," "Latinos," and "Spanish speakers."

It may come as a surprise to the millions of Spanish-speaking U.S. citizens, myself included, to learn that we are actually illegal aliens, or to the millions of Latin@ citizens living in the U.S.  Likewise, the 100 million Mexicans in Mexico may not realize that they are living euphemistic lives south of the border.

Deborah Howell, former ombudsman for the Washington Post, got snowed on this issue by a State Department officer who even told her that "he was not speaking for the State Department" when giving her his legal analysis.

On terminology, Chip Beck, a State Department officer and former U.S. consul, believes it's important to use "illegal alien." Beck, who said he was not speaking for the State Department, said, "Foreign nationals who come across the border without papers or who overstay their visa are deemed 'illegal aliens.' Those are the legally correct terms."

Beck may deem them to be "illegal aliens," but the legally correct term is "alien." He continued:

"The correct terminology is not derogatory but carries precise meanings under law." He sent a copy of the federal law [ed.: looks like a broken link from the problematic USCIS website] that says: "The term 'alien' means any person not a citizen or national of the United States."

So let's be precise, then.  "Illegal alien" is a nonsense term in the context of U.S. immigration law.  It is not defined anywhere in the INA.  It's no more accurate than the terms I prefer: "undocumented" or "unauthorized," [ed.: link fixed] which also appear in the INA.  In my experience, you are much more likely to hear the terms "entered without inspection" or "out of status" come out of the mouth of an immigration judge than "illegal alien."

Now somebody just needs to let Chuck Schumer know he should be getting his immigration analysis from the Sanctuary or AILA, not from Lonewacko and Steve Sailer.

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