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December 10, 2009

Diversity! Justice Sotomayor Is Lauded for Using The Term "Undocumented Immigrant" in a Supreme Court Opinion

Apparently, the justices have previously used the more accurate terms "alien not lawfully present in the United States" or "illegal alien." But in her very first published decision as a Supreme Court justice, Sotomayor went with (PDF) the technically inaccurate but politically correct euphemism "undocumented immigrants."

The sloppy phrase "undocumented immigrant" is a blurry, inoffensive term. But it's generally meaningless in the context in which it is used. It doesn't mean what it says. It is both underinclusive and overbroad.

It's underinclusive for its purpose because it does not include the entire group of those we ordinarily think of as "illegal aliens." Right? That's the group that Justice Sotomayor and her fellow blurry-brained advocates want to reference when they say "illegal aliens." So they've got to at least cover that whole group.

"Undocumented immigrants" doesn't. Not for legal purposes. The group "illegal aliens" includes many aliens who come to the United States for non-immigrant purposes, but who then decide to stay either temporarily or for the longer term. These aren't "immigrants." Not in the legal sense. They may have entered on the usual B1/B2 "business or pleasure" visa. Or they may have entered on a student visa and then dropped out of school for a while or gone to a different school than the one they were authorized for.

Those admissions to the United States are not as "immigrants." For legal purposes, they are nonimmigrant aliens. Sotomayor and others are attempting to blur that distinction. They'd like it if people forgot that when that group entered the United States, they promised to leave. Sotomayor'd like them to get treatment under the laws for immigrants, not the laws for nonimmigrant status violators.

More than that, many status violators aren't immigrants even in the conversational sense. They actually intend to go back where they came from...just not quite yet. Student visa violators do that a lot (it used to be a good way to make some nice American cash before bugging out).

This blurring of the lines is a cancer for legal purposes. Judges rely on precedent to guide them in many circumstances. And now the highest court in the land is casually dropping vague euphemisms, apt for quotation and further metastization in the hands of lawyers and judges and advocates all over the country.

So it's underinclusive. But it's also overbroad. Because many of those we think of as "illegal aliens" are not actually "undocumented." Like I just wrote, many of them entered with temporary, non-immigrant visas which they later violated. They have documentation. It's just not documentation giving them lawful status. It's not like these folks are unknown. Or have no birth certificates or IDs or passports. They do.

They are in "unlawful status", as it were. But most recognize that calling them "unlawful aliens" is as inaccurate as calling them "undocumented aliens" because it carries a vastly more criminal connotation than the term "illegal aliens."

Illegal immigration advocates don't like the term "illegal alien" because (they say) "No person is illegal!" Well, whatever.

We're not talking about aliens' existence and they know it. We're talking about status. That's doubly true for the courts, which really don't care to waste time on your philosophical discussion about the whether or not people living in shadows really exist and just want to know whether aliens have entered the United States legally.

If you want to get down to it, the most correct term under the relevant law (the Immigration and Nationality Act) is "alien not lawfully present in the United States." But that's a bitch of a mouthful, so "illegal alien" is better for most purposes. It avoids the negative connotations of "unlawful alien" while capturing the entire relevant group: all aliens who are here illegally.

Extra: alexthechick says that I should mention that this case isn't an immigration case. She's right; it's a rules lawyer-ish discussion of interlocutory appeals in which the underlying case involves illegal immigrants. Justice Sotomayor's mention of undocumented immigrants is used only to describe the background.

Knowing that, the first use of the fuzzy term "undocumented immigrants" in a Supreme Court decision is noteworthy. As we have written about on, oh, several hundred occassions: words matter.

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posted by Gabriel Malor at 09:34 AM

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