Is the word 'alien' objectionable? Federal appeals judge sees 'no need to bowdlerize' decisions and laws

  • Print

Judge James Ho

Judge James C. Photo from the 5th U.S. Circuit Court of Appeals at New Orleans.

A federal appeals judge who announced plans to boycott Yale Law School students for clerkships is taking aim at his colleagues for using the word “noncitizen” instead of “alien."

Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans made his point in a May 30 concurrence noted by Bloomberg Law and Above the Law.

“I see no need to bowdlerize statutes or judicial decisions that use the word ‘alien’ by substituting terms like ‘noncitizen,’” he wrote.

“The word ‘alien’ is ubiquitous in statutes, regulations, judicial decisions and scholarly commentary on federal immigration law,” Ho wrote. “But despite this established usage, some members of the judiciary have recently begun to signal their opposition to using that term, on the ground that it is ‘offensive.’ … Respectfully, I do not share in that sentiment.”

Ho said he was admitted into the United States “as an alien” before he became a citizen.

“Alien” can be found “in countless judicial decisions” and is “used in numerous acts of Congress—including the ones that allowed me to become an American,” Ho said.

Some judges are concerned that “alien” can suggest that someone is strange, different or repugnant, Ho wrote.

“That may be true in certain contexts. The word also refers to extraterrestrials in other contexts,” he wrote.

In the context of immigration law, however, “alien” merely describes a person’s legal status, Ho said.

Ho cited another judge who also sees nothing wrong with “alien”—Judge Carlos T. Bea of the 9th Circuit at San Francisco. Bea, who was born in Spain, wrote about the issue in a September 2022 concurrence.

Ho also cited Bryan A. Garner, editor-in-chief of Black’s Law Dictionary and an ABA Journal columnist. A 2011 edition of Garner’s Dictionary of Legal Usage states that: “Illegal alien is not an opprobrious epithet: It describes one present in a country in violation of the immigration laws.”

But Garner offered a nuanced comment to Bloomberg Law in an email.

“Although ‘alien’ in legal prose was not meant to belittle, the popular connotations of the word have inevitably infected some people’s view of it,” Garner said. “The linguistic lines have now been drawn as part of the culture wars.”

“Only time will tell how the language will settle the issue,” Garner added. “For the time being, ‘alien’ doesn’t appear to have a bright future.”

Give us feedback, share a story tip or update, or report an error.