Conservative Judge Offers Defense of ‘Alien’ in Immigration Case

Fifth Circuit Judge James C. Ho said the term “alien” shouldn’t be seen as offensive, in a concurrence to an immigration opinion.

In recent years, some Supreme Court justices have used “noncitizen” as a substitute for “alien” to describe “a person who is not a citizen or national of the United States.”

The Biden administration has pushed executive agencies, including the Justice Department, not to use “the terms ‘alien’ or ‘illegal alien’ to describe migrants” outside a previously issued statute or legal document, in a move to “develop welcoming strategies that promote integration, inclusion, and citizenship.”

In an immigration concurrence Tuesday, Ho used his own immigration history to disapprove of the majority’s use of “noncitizen” where the 2018 Fifth Circuit opinion cited used the term “alien.”

“There’s no need to be offended by the word ‘alien.’” Ho wrote. “It’s a centuries-old legal term found in countless judicial decisions.”

Ho has been an outspoken conservative on and off the bench, including suggesting that his colleagues are applying a “woke Constitution” and saying he wouldn’t hire any clerks from Yale Law School because of the school’s embrace of “cancel culture.” He later added Stanford to his boycott.

“In the context of immigration law, we use ‘alien,’ not to disparage one’s character—or to denote one’s planetary origin—but to describe one’s legal status,” he continued.

The concurrence came as the US Court of Appeals for the Fifth Circuit rejected an appeal from a Cambodian immigrant who argued that a Pennsylvania robbery statute was too broad to match the federal version that would trigger deportation.

Ninth Circuit

Ho’s concurrence follows a similar immigration concurrence from Judge Carlos T. Bea of the Ninth Circuit, who wrote in 2022 that the change could cause litigants to choose between offending a judge or statutory definitions.

“This word is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings,” Bea wrote, hoping judges “dispense with such rhetoric altogether” until the statutes themselves are changed to use “noncitizen” exclusively.

There, Judge Mary H. Murguia disagreed that litigants would be disadvantaged by the shift from “noncitizen” to “alien.” “Litigants may use either word,” Murguia said in that majority opinion.

Bryan A. Garner, editor in chief of Black’s Law Dictionary, said that the question has become contentious since the Fifth Circuit cited him in a 2011 opinion to defend its use of the term “alien.”

“Although ‘alien’ in legal prose was not meant to belittle, the popular connotations of the word have inevitably infected some people’s view of it,” Garner told Bloomberg Law in an email. “The linguistic lines have now been drawn as part of the Culture Wars.”

Scholars like Michael Lechuga of the University of New Mexico say that the use of the term “alien” goes back to the 19th century, when Federalists passed the Alien and Sedition Acts to keep the country’s population culturally homogeneous.

“The label ‘noncitizen’ is much more accurate in describing the legal conditions for migrants than ‘alien’,” Lechuga said, suggesting the change from the Biden administration might have been “a way to disentangle the legacy of colonial anxiety from the current complexities of the asylum politics at the U.S./Mexico border.”

“Only time will tell how the language will settle the issue,” Garner added. “For the time being, ‘alien’ doesn’t appear to have a bright future.”

Texas A&M School of Law represented Khan before Judge James E. Graves Jr. who wrote the opinion, and Stuart Kyle Duncan.

The case is Khan v. Garland, Khan v. Wilkinson, 5th Cir., No. 21-60146, 5/30/23.