The i-word in any form (“illegals”, “illegal alien” and “illegal immigrant”) is packed with ideas about who immigrants are and what their role is in society and in this nation. Whether used by a reader in a newspaper’s comment section, or in the Supreme Court as it was this week in Arizona v. the United States, The i-word is the furthest from neutral language and communicates anti-immigrant animus that has over time become deeply embedded and accepted throughout media and government institutions.
In an important paper in the Fordham Law Review, Keith Cunningham-Parmeter unpacks the U.S. Supreme Court’s three dominating metaphors: “immigrants are aliens,” “immigration is a flood,” and “immigration is invasion.” He contends that metaphors influence judicial outcomes, social discourse and the immigration debate in the United States and thus, “how we think metaphorically affects how we talk about problems and the solutions we formulate in response to those problems.”
To our great disappointment this week, Justice Sonia Sotomayor and others used the terms “illegal immigrant,” “illegal alien,” and “criminal alien” during proceedings over SB 1070. It mattered that Sotomayor made the choice to use this language, because she’s made the choice to use other terminology before.
The case itself, buttressed by a political environment rich with anti-immigrant language and metaphor, is lifting up major hypocrisy and contradictions for all to see. How can the government argue against SB 1070 and mean to protect people from being victimized while upholding other comparable draconian anti-immigrant programs? And how can a human being be heard and legally advocated for when Sotomayor says, “it is an illegal alien”?
These metaphors mirror and reinforce language accepted in the media by anti-immigrant extremists, so as Parmeter says, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican.
At the Drop the I-Word campaign we’re not ready to call this a complete reversal just yet, as there is still an opportunity for justices to re-introduce “undocumented” and, or, “unauthorized” into SCOTUS opinions as they have in two recent cases:
- In 2009, the term “undocumented immigrant” appeared for the first time in Supreme Court history along with “undocumented worker,” in Associate Justice Sotomayor’s oral arguments and opinion on the case Mohawk Industries v. Carpenter. It was the first SCOTUS opinion authored and delivered by Justice Sotomayor.
- In December 2010, the Supreme Court considered an Arizona law penalizing businesses that hire undocumented immigrants by revoking or suspending their business licenses. In the case Chamber of Commerce v. Whiting, Sotomayor used the term “undocumented immigrants” in oral arguments regarding the issue of whether federal law pre-empts Arizona’s tougher penalties. The law was upheld in May 2011 and in the majority opinion by Chief Justice John Roberts he did not use the term “illegal immigrants” or “illegal aliens,” except when quoting other sources. Instead he opted for the terms “unauthorized aliens” and “unauthorized workers.”
The law provides no clear definition of the terms “illegal alien” and “illegal immigrant.” Referring to people with these “illegal” terms is equivalent to referring to defendants awaiting trial as “convicted criminals.” The Supreme Court has shown that they do not have to use the i-word. Here are five reasons attorneys practicing immigration and human rights law do not use the i-word in court:
The i-word is imprecise because under the Immigration and Nationality Act (INA), there are all kinds of non-citizens many of whom may temporarily be out of status but may eventually be able to stay in the U.S. Immigration status is fluid. In some instances, victims of labor abuse or of trafficking are eligible for immigration relief and if that were the case, then that same person might go from authorized to unauthorized to authorized again. The same fluidity could hold true for someone seeking asylum.
The i-word is a biased because people conflate “illegal” with criminal. So if a journalist or anyone uses the term “illegal”, they are taking one side of the issue by labeling the person whom they are describing as a “criminal”. The term “illegal” conflates criminality with immigration issues and brings the taint of criminality to a non-criminal process. And it promotes bias against Latinos and people with brown skin regardless of migratory status.
In international law, the term “illegal” is not used. “Undocumented migrants” (CERD Committee) is used as is “unauthorized migrants” or “irregular migrants.”
As Parmeter puts it: Although “illegal alien” is often used to refer to people who overstay their visas or enter the country without inspection, there are several scenarios in which these immigrants may remain lawfully in the United States. For example, many of the people described as “illegal aliens” have family connections, community ties, or legitimate fears of persecution that entitle them to discretionary relief. But when courts use “illegal alien” as a descriptive term, these rights have rarely been adjudicated.
- The i-word is meaningless in immigration proceedings “Illegal alien” and “illegal immigrant” are incoherent terms from the standpoint of immigration law. The Board of Immigration Appeals (BIA), the highest administrative body for interpreting and applying immigration laws, does not use the terms because they are meaningless in the context of immigration proceedings. No person is ever found by any court to be “illegal.”