I thought a fair piece about this opinion over the weekend. Not about doctrine or anything, although there's surely important stuff at issue there. (The cases is about the availability of habeas relief and bond availability for people who are in immigration detention for prolonged periods; here for over a year.) Instead, I was mostly thinking about language -- words.
Chief Judge Murguia's opinion uses the term "noncitizen" to describe the petitioner in this case. Judge Bea writes a concurrence in which he decries the use of that term, and instead markedly prefers to describe the relevant class of individuals as "aliens." Chief Judge Murguia defends her use of this term in a footnote:
"This opinion uses the term noncitizen unless quoting language from the immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become a common practice of the Supreme Court, see Patel v. Garland, 142 S. Ct. 1614, 1618 (2022) (Barrett, J.); United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021) (Sotomayor, J.); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (Kavanaugh, J.) (“This opinion uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” (citing 8 U.S.C. § 1101(a)(3)), whose lead on matters of style we ordinarily follow, and of the Board of Immigration Appeals, e.g., Matter of Dang, 28 I. & N. Dec. 541, 543 (BIA 2022), whose decisions we review. Second, even if that were not the case, “[c]areful writers avoid language that reasonable readers might find offensive or distracting—unless the biased language is central to the meaning of the writing.” Chicago Manual of Style Online 5.253, https://www.chicagomanualofstyle.org/book/ed17/part2/ch05/psec253. html. The word alien can suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,” Alien, Webster’s Third New International Dictionary 53 (2002), while the word noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (5th ed. 2011), avoids such connotations. Thus, noncitizen seems the better choice. Respectfully, we do not see how this choice “comes at a real cost to litigants.” Judge Bea Concurrence at 43. Litigants may use either word, and we do not think our choice here will cause judges to “respond negatively” to litigants who use the term alien. See Judge Bea Concurrence at 43."
Judge Bea takes the opposite view, including for the reasons discussed in the above footnote. For one thing, Judge Bea says that he prefers the word "alien" because, he argues, the term "noncitizen" is "textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico." This seems to me by far the weakest of Judge Bea's arguments. Yes, he's a "citizen" -- of Mexico. But he's a "noncitizen" of the United States, and everyone understands that's the relevant comparison. Moreover, Judge Bea's preferred terminology suffers the same flaw. On his theory, the term "alien" is "textually inaccurate" as well, since the petitioner is not "alien" to Mexico. So I don't find this particular argument persuasive at all.
But what really had me thinking deeply over the weekend was Judge Bea's personal background and experiences. One upside of a diverse judiciary is that you sometimes get different perspectives. And here, one interesting thing is that Judge Bea was previously subject himself to deportation proceedings -- he's from Spain, and then Cuba, and after he attended Stanford on a non-immigrant visa, the United States tried to kick him out on the theory that he avoided the draft during the period in which he was competing on the basketball team for Cuba during the 1952 Olympics.
So Judge Bea's got some personal background in this area. And uses that background to effect, saying that the term "alien" "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."
That's useful. It's sometimes informative to get a personal perspective from someone who's not just looking at things from an isolated, academic viewpoint.
That said, with respect, that a particular word might not have been offensive in the 1950's does not say much, I suspect, about whether that term might be offensive in 2022. We said a lot of things, and used a lot of words, during that prior era that would -- quite rightly -- not be deemed polite or permissible in the modern era. This view reminded me of the occasional argument by those of a different generation that it's okay to use the word "colored" to describe a certain minority group because (1) that word was commonly employed in the 1950s, and (2) remains what the "C" stands for in the NAACP. Both of the predicates of that argument are true. But still; that's not a word that one would use in the modern era, much less in a judicial opinion. (Even if, I might add, an outdated statute continued to contain that old language.)
Nonetheless, I thought that Judge Bea's perspective was valuable. Even if, in the end, I think that Judge Murguia has the better of the argument.
If only because, as Judge Bea himself argued, "distinctions matter. Words matter."
On that, we all agree.
