The Semantics Game: Illegal Immigrant vs. Illegal Alien - Defined and Conquered
By David D. Murray
So, the Society of Professional Journalists has recently voted to support the recommendation that newsrooms abandon the terms “illegal immigrant” and “illegal alien.” That body of journalists who from my observation of over thirty years, never does seem accurately report on immigration matters, has resolved that journalists and style guide editors should stop the use of the term “illegal alien” and encourage continuous discussion and re-evaluation of the use of illegal immigrant in news stories.
The Society’s resolution is:
“WHEREAS, the Society of Professional Journalists Code of Ethics urges all journalists to be ‘honest, fair and courageous in gathering, reporting and interpreting information’ and;
“WHEREAS, mainstream news reports are increasingly using the politically charged phrase ‘illegal immigrant’ and the more offensive and bureaucratic ‘illegal alien’ to describe undocumented immigrants, particularly Latinos and;
“WHEREAS, a fundamental principle embedded in our U.S. Constitution is that everyone (including non-citizens) is considered innocent of any crime until proven guilty in a court of law and;
“WHEREAS, this constitutional doctrine, often described as ‘innocent-until-proven-guilty,’ applies not just to U.S. Citizens but to everyone in the United States and;
“WHEREAS, only the court system, not reporters and editors, can decide when a person has committed an illegal act and;
“WHEREAS, the National Association of Hispanic Journalists is also concerned with the increasing use of pejorative and potentially inaccurate terms to describe the estimated 11 million undocumented people living in the United States;
“THEREFORE, be it resolved that the Society of Professional Journalists convention of delegates: urges journalists and style guide editors to stop the use of illegal alien and encourage continuous discussion and re-evaluation of the use of illegal immigrant in news stories.”
This is all great, but I wonder, if journalists do not use the long-used terms “illegal immigrant” and “illegal alien” just what terms are they going to use to describe those unlawfully present in the United States?
It is time we once and for Congress to decide whether the term "illegal immigrant" can properly be applied to any class of alien present in the United States. I suggest not . . . the term "illegal immigrant" is an oxymoron - one cannot be "illegal" and at the same time be an "immigrant". It's kind of like "jumbo shrimp" or "peace force", “plastic glass” or “pretty ugly” – phrases we all use on a daily basis and think nothing of.
I submit that the correct term for those unlawfully present in the United States is "illegal alien" because they are both aliens and they are illegally present in the country . . . and this equally applies to those who entered without inspection and those who overstayed their visa.
Section 101(a)((15) of the Immigration & Nationality Act of 1952, as amended (INA), defines the term "immigrant" to mean . . . "…every alien except an alien who is within one of the following classes of nonimmigrant aliens." And therein lies the rub.
I do not believe that in drafting this statute back in 1952 it was intended by the legislature to include persons unlawfully present within the borders of the United States as being immigrants.
To rectify this linguistic uncertainty, perhaps when redrafting the Immigration & Nationality Act (INA), this is one of the many things Congress should seriously take into consideration. But before that happens, how should the term “immigrant” be defined?
I believe it should be defined logically. Let’s face it, back in 1952 the present massive illegal immigration as we know it today did not exist. In 1952, legislators could not have envisioned a time, just fifty short years later, when there would be an estimated ten million to twelve million people unlawfully present in the United States, working and blending into society, even demonstrating for their “rights”.
I do not believe it was the legislative intent to create a sub-class of immigrants, i.e., as has been suggested by some, labeling them “illegal immigrants” because as I mentioned before, this is oxymoronic and not defined that way anywhere in the INA or the Regulations. Common sense tells me that the legislature did not intend that people unlawfully present in the United States be considered “immigrants”.
If I were a jurist interpreting the INA definition of “immigrant”, I would interpret the definition as "every alien lawfully present in the United States who is not classified as a nonimmigrant". This appears to me to be what the legislature had in mind back in 1952 and how it should be amended to read today.
In reality, there are three basic classes into which non-US-citizens fall when they enter the United States - (1) Nonimmigrant; (2) Permanent Resident; and (3) Illegal. (I am not herein going to split hairs as to exactly what category a refugee, asylee, or other parolees or other special immigrants may fall, as it is not germane to this analysis – after all, immigration is a complex and multi-layered subject.)
Nonimmigrants who legally enter the United States and who subsequently overstay their nonimmigrant visas, become "illegal aliens" right along with those who sneaked across the Southern border. However, we call them “overstays,” as though this were some sort of special status they have achieved by intentionally flaunting the law. These overstays are not immigrants, any more that is the guy who jumped the fence, although perhaps we could technically call them all “migrants”, since they have migrated. But since they do not have lawful status, they cannot be immigrants, because the legislature never intended there to be two classes of immigrants – one legal and one illegal – and nowhere in the INA or the Regulations is it suggested otherwise.
It has been claimed by some pro-immigrationists that, "An immigrant is a person who obtains an immigration visa from a U.S. Consulate, expresses a wish to become a U.S. citizen, and abides by the law." But is an incorrect definition, because there is no requirement under the law or regulations that an immigrant, i.e. a permanent resident, need not ever express "a wish to become a U.S. citizen.
Although a dictionary of the English language cannot be relied upon to define legal terms (that's why Mr. Black published his dictionary for lawyers), many dictionaries define "immigrant" as something like, "people who leave a country to settle permanently in another". To an immigration lawyer, however, the words "settle permanently" are words of legal art. My Black's Law Dictionary, Revised Fourth Edition (yeah, an old one – I’m old), does not define "immigrant", but defines "immigration" as, "The coming into a country of foreigners for purposes of permanent residence".
Applying lawyer's logic to both these definitions, illegal aliens are not "coming" the US for purposes of permanent residence, or settling permanently, because they have no right or reasonable expectation to reside permanently. And they are not "leaving" their country for that purpose either. In actual fact, their purpose of coming is merely to find work, and often to send money home to their families in their native land – pure and simple economics. And they unlawfully work, notwithstanding that they are breaking law, and notwithstanding that their breaking the law subjects them to the ten-year bar to admissibility set forth in INA Section 212(a)(9)(B), which will most likely prevent them from ever becoming a permanent resident, much less a citizen, of the United States.
I submit that a subjective, wishful intent to settle permanently - to possibly, maybe, someday become a permanent resident, if the law changes - does not rise to the level of a present objective intent to "settle permanently", any more than my entry into a bank evidences my intention of becoming a millionaire by somehow getting into the bank vault and carrying out sacks of money.
The bottom line is, an uninspected alien, or an overstay, simply cannot, as a matter of law, be "coming" to the United States "for purposes of settling permanently” and therefore they are not immigrants. Applying real world logic, and a realistic construction of the present US immigration law, along with a realistic construction of the dictionary definitions, we can only conclude that illegal aliens are not immigrants, and thus should not be referred to as such.
I believe it is time we all got the semantics straight. It is time we called an illegal alien an illegal alien, and forget the dictionary definitions, which are slow to change, and not interpret the INA so literally as to believe that it confers such status on a person who is unlawfully present. As a practical matter, to ignore the distinction and to call persons illegally present in the United States "immigrants" is not only contrary to common sense, law and regulations, but demeans those who actually are immigrants by virtue of their lawful permanent residence status.
If the immigration lawyers, the president, the press - especially the president and the press - and the general public would all homogenize their terminology, casting political correctness to the wind (the term "illegal alien" is not a four-letter word), it would go a long way toward achieving understanding and harmony in the immigration debate. But so long as the term "immigrant" is applied to both legal and illegal aliens alike, we will never all be on the same page. I hope someone out there is listening.
So, semantics resolved, what to do with the illegal aliens?
I am a great fan of Emma Lazarus' poem, "The Golden Door". But poets are often idealists, and that poem was written in a different time, a different age. And what Emma was talking about, of course, was legal immigration from around the world, coming on boats, not by airplane, automobile or foot -people coming to a land that needed immigrants to spark to the economy of a new and developing nation. Let us not confuse Emma's well-meaning observations of her day with the dilemma that today faces the United States of America. It is truly a different age, especially along our southern border, where over the past two centuries leaders of many of the countries south of that border have, through greed, power mongering and corrupt politics, created an environment of poverty and economic stagnation, while at the same time the Catholic Church was putting the kybosh on birth control and planned parenthood, resulting in overpopulation, resulting in a natural migration northward, where there was prosperity and jobs. The old “carrot-and-stick” syndrome.
We must remember that while touching, Emma's epic poem is not a government regulation, notwithstanding that it appears on a government-owned monument at the entrance to New York Harbor. The last time I looked at the US Constitution, the INA and 8 CFR, I found no mention of any right, law or regulation granting immigration benefits on the basis a qualifying as ". . . tired, poor, huddled masses yearning to breathe free . . .,” much less allowing any automatic immigration benefits to ". . . the wretched refuse of your teaming shore . . ." In fact, quite to the contrary, since the U.S. government attempts to disallow the wretched refuse of the world through tight security checks, affidavits of support and educational and experiential requirements as qualification for some visa categories.
The bottom line is, no matter what we call them, “illegal immigrants” or “illegal aliens”, we all know about whom we are talking . . . it is people who chose to break the law and who seek to benefit from their arrogance by demanding that the nation whose laws they have chosen to break forgive and accept them.
Well, maybe they are right. Yes, these illegal aliens broke the law, but they were encouraged by laws that were not enforced for the past twenty years, and a nation of laws that does not enforce its laws is not a nation of laws at all. Today’s illegal aliens were, over the past twenty-five years, encouraged by a laxsidasical system of law enforcement that, aided by law breaking U.S. employers, encouraged these hard working people to break immigration laws. Perhaps it is the employers who should be punished, the employers who broke the law and benefited from the cheap, reliable labor. Perhaps illegal aliens should be given a break, provided they have no criminal history. But if the break be given, unlike in the Amnesty of 1986, this time the door to illegal immigration must close tightly.
Now that we have the semantics correct, we must remember that when the tired, poor, huddled masses arrived at Ellis Island, they legally immigrated and were admitted as immigrants. They learned English and they assimilated into the American culture, while at the same time adding their own cultures into the melting pot. And that's the way it should be, because America was, is and hopefully always will be a nation of immigrants. But we are also a nation of laws, and it is respect for the law that is the tie that binds the fabric of our society.
About The Author
David D. Murray is an attorney with offices located in Newport Beach, California. A graduate of Ball State University and Western State University College of Law, Mr. Murray has been a successful practitioner and consultant in connection with business law and immigration matters since 1978. His practice concentrates in the areas of Civil Litigation, Copyright, Trademark, and Trade Secrets Litigation, Employment Law, Contracts, International Transactions, and U.S. Business and Family Immigration matters. Mr. Murray served in the U.S. Army from 1967 to 1969, including deployment to the Republic of South Vietnam, where in addition to regular military duties, he served as a professor of English at the University of Hue. Holding a Merchant Marine Captain’s license for both sail and power vessels up to 100 net registered tons, Mr. Murray has sailed in excess of 100,000 miles in sailing boats between 22 and 197 feet in length. When not practicing law, or otherwise engaged in other various business endeavors, Mr. Murray is an avid Harley-Davidson motorcycle rider, collector of Chinese art, an amateur guitarist (electric and acoustical), five-string banjo picker, writer, poet, philosopher, backpacker, hiker, sailor, skier, and lover of the great outdoors.