By the Book : The Use of "Alien"

It seems that discourse on the subject of immigration law is often highly emotional in a way that throws more heat than light upon the subject of discussion.  When this occurs, it becomes impossible to achieve any constructive or useful purpose.  

Flash points in the course of a discussion can occur when the terminology used has different meanings in the minds of the participants.  Not only can terminology trigger an unhelpful surge of blinding emotional energy, but it can lead to participants in a discussion talking past each other about completely different topics resulting in a breakdown of communication that is necessary for any useful outcome.  In this situation, a meeting of the minds that is a condition for any kind of agreement becomes impossible. 

One way to focus the emotions that fuel the legitimate motives of those who advocate or are responsible for establishing immigration policy from overwhelming discussion and debate at the cost of losing objectivity is knowledge of legal terminology on the part of advocates.

For example, “alien” is a word that conjures negative connotations about dangerous space invaders in some people’s minds.  Yet this term is a neutral legal term in United States immigration law that is used to distinguish U.S citizens from persons who are not.  Practitioners and judges in the world of immigration law use the word, “alien,” in the daily course of business without thinking twice about any negative connotations.

 Nevertheless, if it is known that one party to a discussion has an emotional reaction to a certain word or phrase it might be best to avoid using such language for the sake of peace.  However, it could become difficult to avoid legal terminology that might be essential to the subject under consideration. 

The very first title of the Immigration and Nationality Act, as amended (“the Act”) begins with a list of definitions (1 – 51) (Definition 24 was repealed, leaving a total of 50 definitions under section 101(a) of the Act.) See section 101(a)(1 – 51) of the Act. 

Some of the definitions are simple.  Some are complex.  The simple definitions usually raise more questions than they answer.

Also, the Act supplies other definitions.  So it is important to know that the 50 definitions in section 101(a) of the Act do not comprise an exclusive list.

Finally, definitions found in the Act are sometimes expanded with more detail in Title 8 of the Code of Federal Regulations.

In short, the terms defined in the Act are terms of art in the context of immigration law.

Many of the defined terms in the Act are common words in the English language and enjoy common usage.  Therefore, when discussing immigration law it is important for all participants in the discussion to know the legal definition of the term(s) used in discussion.  As noted above, this might help to ensure that everyone is discussing the same subject.

At this juncture the observation of Alexander Hamilton seems to be worthy of consideration:

. . . Men, upon too many occasions, do not give their own understanding fair play; but yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties . . .

See The Federalist, No. 31.

Knowing the legal definitions of the terms used in discussion of immigration law should help to rein in “untoward bias” or at least help to avoid word entanglements.

The first term of art found at section 101(a)(3) of the Act is “alien.”

The word, “alien” as defined in United States immigration law, is not a pejorative term. If you think it is a pejorative term you will not find any evidence for such classification in the law.

I couldn’t help noting during my most recent travel to Hong Kong and Mainland China that a separate inspection line was designated for those who were not Chinese residents.  The word used in the Chinese immigration inspection area for non-residents of China is “foreigner.” This word is the equivalent of “alien” in the context of U.S. immigration law. Every country must find a word to distinguish its citizens and nationals from other persons who are not.

Specifically in United States immigration law, “[t]he term ‘alien’ means any person not a citizen or national of the United States.”

This definition has nothing to do with race or xenophobia. It is simply a neutral term needed not only for immigration law enforcement, but for the awarding of benefits under the immigration law, such as visas, naturalization and even special benefits for battered women and children who are aliens.

So when the word, “alien,” pops up in a discussion or debate about immigration law, there is no need for panic or distress.

In connection to the definition of “alien,” [t]he term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”  See section 101(a)(22) of the Act.

For example, a person born in a United States possession is not a United States citizen, but is a national of the United States.   A person born in American Samoa or Swains Island is a U.S. national because these places, although not part of the United States, are possessions of the United States.

Currently, any person who is born in the United States is a U.S. citizen; and a person can derive United States citizenship, even if born outside the United States to a United States citizen parent or parents; or more recently by adoption if certain criteria are met.

More to come . . .

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