United States Supreme Court (SCOTUS) Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson used or referenced the legal term "alien" to describe illegal aliens in the United States during oral arguments,even as President Joe Biden's administration has instructed officials to use the term "noncitizen" instead.
On Tuesday, SCOTUS heard arguments in United States v. Texas where states are seeking to have Biden's so-called "sanctuary country" orders thrown out. The orders ensure that most of the nation's 11 to 22 million illegal aliens are not eligible for arrest or deportation.
In a number of instances, Justices Sotomayor, Kagan, and Jackson — considered the Court's liberal faction — either used the term "alien" directly to describe illegal aliens in the U.S. or referenced the term while quoting prior cases and federal immigration statute. Sotomayor said:
What the government has said, and what the record clearly proves, is that there's been a surge at the border. If left unattended, that surge would overwhelm all of the border states, not just Texas, and that the cost of doing that has to give them greater priorities in terms of aliens who are already here.
"It says that you, does not create 'any' — and any is very broad — 'right or benefit that is legally enforceable by any party.' It doesn't say any alien party, it doesn't say anything like that," Sotomayor said in another instance.
"… that's not the language, isn't limited to that situation," Sotomayor continued. "It doesn't say any right or benefit that is legally enforceable by an undocumented alien. It says 'any party.’"
"You are basically trying to sneak into … and say you must remove these people whether or not you want to or not … so once you say that, then how can the guidelines be wrong because it's simply a statement that says these aliens, we're not going to remove," Sotomayor said, using the term for the fourth time.
Later, Kagan and Jackson each referenced the term "alien" to describe illegal aliens while quoting prior cases and federal immigration statutes.
"If you look at the language of 1231, 'It's the Attorney General shall detain the alien,' it doesn't say anything about shall remove, it doesn't say anything about shall apprehend, shall arrest, it just says 'shall detain,’" Kagan said.
"The statute's text in A says 'Pending a removal decision on whether the alien is to be removed from the United States,’" Jackson said.
The justices using the term "alien" to describe illegal aliens in the U.S. comes as Biden's Department of Homeland Security (DHS) has sought to purge the term from all federal agencies.
In April 2021, for instance, Biden's Immigration and Customs Enforcement (ICE) agents and Customs and Border Protection (CBP) agents were ordered to stop using the terms "illegal alien" and "assimilation" and replace them with "noncitizen" and "integration." The U.S. Citizenship and Immigration Services (USCIS) also removed the term "alien" from its site to be "more inclusive."
Then, in July 2021, the Biden administration ordered federal immigration judges not to use the terms "alien" and "illegal alien." Instead, judges are to use "noncitizen" and "undocumented individual."
In December 2021, USCIS continued purging the terms "alien" and "illegal alien" from its website and lengthy agency manual.
The term "alien" is regularly used as a legal definition to describe a foreign national in the U.S. The Immigration and Nationality Act (INA) codified the term in law and defines it as "any person not a citizen or national of the United States."
The case is United States v. Texas , No. 22-58 in the Supreme Court of the United States.
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