By Shahid Haque, Immigration Attorney.
One can rarely enter into a discussion about immigration without hearing the term "illegal alien," or references to undocumented immigrants as simply "illegals." Our basic discourse has come to accept these terms, despite the fact that they are highly inaccurate and pejorative. Whether intentional or accidental, the use of these terms has shaped public opinion on immigration policy. Of course, not everyone who uses these terms intends to color undocumented immigrants with the stigma that these terms carry with them. Therefore, the purpose of this editorial is to explain why these terms should be eliminated from our discourse.
"Illegal alien" is not a legal term defined anywhere in the Immigration and Nationality Act. The term “alien” is defined and means anyone who is not a citizen or national of the United States — a non-citizen. It makes little sense to refer to someone as an illegal non-citizen. Similarly, it would make little sense to refer to a person convicted of a crime as an “illegal citizen.”
When one refers to an immigrant as an "illegal alien," they are using the term as a noun. They are effectively saying that the individual, as opposed to any actions that the individual has taken, is illegal. The term “illegal alien” implies that a person’s existence is criminal. I’m not aware of any other circumstance in our common vernacular where a crime is considered to render the individual – as opposed to the individual’s actions – as being illegal. We don’t even refer to our most dangerous and vile criminals as being “illegal.”
For some, the use of the term "illegal alien" is likely based on a misconception that an immigrant's very presence in the United States is a criminal violation of the law. While the act of entering the country without inspection is a federal misdemeanor, and for repeat offenders could be a felony, the status of being present in the United States without a visa is not an ongoing criminal violation.
In addition, estimates are that almost half of the undocumented aliens in the United States actually entered with lawful status but merely overstayed their visas. These aliens have not committed a criminal offense at all. Their presence in United States while being out of status is a civil infraction, not a criminal offense.
To make it a criminal violation of the law to be present without a visa would be a "status offense." A status offense is an offense that is based on the fact that the offender has a certain personal condition or is of a specified character, rather than any action or inaction that the offender takes in violation of the law. A common example is vagrancy; if a law rendered homelessness illegal, then the status of being homeless would be criminal. Our courts wisely look upon status violations with heightened scrutiny, as the creation of status offenses infringe upon personal liberties and carry significant due process concerns.
Over the years, anti-immigration activists have proposed criminalizing the presence of the millions of immigrants here without documentation. Such attempts have failed, as our legislators have recognized that social, economic, and political forces often forcibly displace immigrants and compel them to come to the United States. To make federal criminal offenders of the individuals who are present in the United States under these circumstances would ignore their basic human rights.
By using the term "illegal alien" to refer to those without a visa or I-94 to show lawful entry into the United States, the speaker purports to assign guilt before a Judge ever considers the evidence and makes a determination on the individual's status. A basic principle of our legal system is innocence until guilt is proven. This same principle applies to removal hearings in immigration court, and the government bears the burden of proving removability.
When white collar criminals are arrested, we are careful to label them as "accused" and state that the government's accusations are merely "alleged." But when newspapers refer to immigration raids by Immigration and Customs Enforcement (ICE), the headlines often repeat ICE's figures on the number of "illegal aliens" who were arrested. These individuals are effectively convicted in the media before trial ever begins. Officers in the Department of Homeland Security (DHS) often take full advantage of this to the detriment of the immigrants who are unfairly stigmatized as a result.
The reckless use of the term "illegal alien" is belied by the complexity of our immigration laws. Immigration attorneys often discover that their clients -- many of whom may have believed they were present without status -- are actually citizens or are entitled to adjust status to become lawful residents. Those without any specialized training in immigration law should be reluctant to make snap judgments on issues that they are not familiar with.
Further, the term is imprecise, and is used to encompass individuals who are in the United States under vastly different circumstances. Some individuals are brought here against their will, such as victims of human trafficking. Others come here on valid visas but subsequently fall out of status. For instance, many victims of domestic violence have legal status that depends on the continued sponsorship of their abuser. Some individuals are here under "temporary protected status" because of strife in their home country, but fall out of status when our government removes their protected status. To blanket all immigrants who are out of status as being "illegals" is overly simplistic.
For many, the term "illegal alien" serves an entirely different purpose. As David Bacon points out in his book "Illegal People: How Globalization Creates Immigration and Criminalizes Immigrants," the term is used as a divisive tool to define the social strata in which some believe that undocumented immigrants should be confined. It serves to distinguish those with papers from those without, and to cement the idea that "illegal" people should be entitled to fewer rights and privileges. Simply put, the term is an effective tool in the age old struggle of inequality between the "haves" and the "have nots."
The term "illegal alien" has been used to dehumanize immigrants and divorce ourselves from thinking of them as human beings. For some, this may serve as a defense mechanism to avoid feeling sympathy for undocumented immigrants, many of whom are separated from their children or loved ones when they are deported. However, Elie Wiesel, a Holocaust survivor and Nobel Peace Prize winner, wisely stated that "No human being is illegal." We should all take care to recognize this ideal and avoid using the term "illegal alien."