Terminology history and usage: alien and illegal alien

Definitions

An immigrant is defined by the Merriam-Webster dictionary as "a person who comes to a country to take up permanent residence".

An immigrant is defined in 8 U.S.C. § 1101 : US Code - Section 1101 as:

(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens... (F)(i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study... as "any person not a citizen or national of the United States". The term is defined by United States statute, in Section 1101(a)(3) of the Immigration and Nationality Act of 1952 (with amendments by Congress through 2001). Aliens can be either legally or illegally present in the U.S.

Thus, an immigrant is an invited guest - a person who comes to a country where they are not a citizen in order to settle there. The term "immigrant" implies permanent, legal, residency. (Although because of amnesties and status adjustments, about 25% of currently legal immigrants first came to the U.S. illegally).

An alien is defined in 8 U.S.C. § 1101 : US Code - Section 1101 as "any person not a citizen or national of the United States. 8 U.S. Code § 1325 - Improper entry by alien states:

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties

Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

An illegal alien is defined in the Department of Homeland Security Media Resources Glossary as "A foreign national who (a) entered the United States without inspection or with fraudulent documentation or (b) who, after entering legally as a non-immigrant, violated status and remained in the United States without authority."

Thus, an illegal alien is "a foreigner who has entered or resides in a country unlawfully or without the country's authorization." An illegal alien is an alien - that is, a foreign national - who has illegally entered the United States, or who enters legally and then deliberately overstays their visa. An illegal alien is a criminal subject to as much as six months in jail for first offense and subject to federal felony charges for subsequent entries after initial deportation. (From What is an alien?, Juan Mann's Frequently Asked Questions About Immigration and the Law, VDare.com, December 11, 2002.)

The term illegal alien was coined by a Federal Appeals Court in 1950.

Colorado defines an illegal alien as "anyone who has entered the United States illegally and is deportable, or anyone who has 'overstayed a visa' or otherwise violated the terms of his or her legal admission into the United States. Sometimes known as an 'illegal immigrant.'" (From Implementation of Senate Bill 06-090 Performance Audit, Colorado State Auditor, Department of Public Safety, Department of Local Affairs, May 2009.)

U.S. Government law and legal definitions

Laws, Regulations, and Guides Immigration and Nationality Act, summary by the U.S. Citizenship and Naturalization Services:

The Immigration and Nationality Act, or INA, was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law. The Act has been amended many times over the years, but is still the basic body of immigration law.

The INA is divided into titles, chapters, and sections. Although it stands alone as a body of law, the Act is also contained in the United States Code (U.S.C.). The code is a collection of all the laws of the United States. It is arranged in fifty subject titles by general alphabetic order. Title 8 of the U.S. Code is but one of the fifty titles and deals with "Aliens and Nationality". When browsing the INA or other statutes you will often see reference to the U.S. Code citation. For example, Section 208 of the INA deals with asylum, and is also contained in 8 U.S.C. 1158. Although it is correct to refer to a specific section by either its INA citation or its U.S. code, the INA citation is more commonly used.

Title 8, Code of Federal Regulations, summary by the U.S. Citizenship and Naturalization Services:

The general provisions of laws enacted by Congress are interpreted and implemented by regulations issued by various agencies. These regulations apply the law to daily situations. After regulations are published in the Federal Register, they are collected and published in the Code of Federal Regulations, commonly referred to as the CFR. The CFR is arranged by subject title and generally parallels the structure of the United States Code. Thus, Title 8 of the CFR deals with "Aliens and Nationality", as does Title 8 of the U.S. Code.

Search 8 U.S.C. § 1101 : US Code - Section 1101: Definitions, Findlaw, April 13, 2016:

(3) The term "alien" means any person not a citizen or national of the United States.

(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens... (F)(i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study...

8 U.S. Code § 1365 – Reimbursement of States for costs of incarcerating illegal aliens and certain Cuban nationals

(a) Reimbursement of States
Subject to the amounts provided in advance in appropriation Acts, the Attorney General shall reimburse a State for the costs incurred by the State for the imprisonment of any *illegal alien or Cuban national who is convicted of a felony by such State.
(b) *Illegal aliens convicted of a felony
An *illegal alien referred to in subsection (a) of this section is any alien who is any alien convicted of a felony who is in the United States unlawfully...

INA: Act 274A - Unlawful Employment of Aliens: Sec. 274A. [8 U.S.C. 1324a].

Definition of unauthorized alien. As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

Inspection and Expedited Removal of Aliens Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures [62 FR 10312] [FR 10-97].

Internal Revenue Service: Taxation of Nonresident Aliens: An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test...

U.S. Government usage of terminology

The legal terms "alien" and "illegal alien" are used extensively in U.S. government publications. Some, but certainly not all, usages are included below.

Usage by the U.S. Citizenship and Naturalization Services: Glossary of Terms

From the U.S. Citizenship and Naturalization Services, Glossary of Terms, April 10, 2016:

Alien: Any person not a citizen or national of the United States. From U.S. Citizenship and Naturalization Services, Glossary of Terms, April 10, 2016.

Legalized Aliens, U.S. Citizenship and Naturalization Services, Glossary of Terms, April 10, 2016:

Certain illegal aliens who were eligible to apply for temporary resident status under the legalization provision of the Immigration Reform and Control Act of 1986. To be eligible, aliens must have continuously resided in the United States in an unlawful status since January 1, 1982, not be excludable, and have entered the United States either 1) illegally before January 1, 1982, or 2) as temporary visitors before January 1, 1982, with their authorized stay expiring before that date or with the Government’s knowledge of their unlawful status before that date. Legalization consists of two stages--temporary and then permanent residency. In order to adjust to permanent status aliens must have had continuous residence in the United States, be admissible as an immigrant, and demonstrate at least a minimal understanding and knowledge of the English language and U.S. history and government.

Permanent Resident Alien, U.S. Citizenship and Naturalization Services, Glossary of Terms, April 10, 2016:

An alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a)(15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by U.S. Citizenship and Immigration Services in the United States.

Resident Alien, U.S. Citizenship and Naturalization Services, Glossary of Terms, April 10, 2016:

Applies to non-U.S. citizens currently residing in the United States. The term is applied in three different manners; please see Permanent Resident, Conditional Resident, and Returning Resident

Deportation

The formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement.

Usage by the U.S. Citizenship and Immigration Services: Services Help Center

Questions related to: "Unaccompanied Alien Child", April 10, 2016:

Who is an Unaccompanied Alien Child (UAC)? Unaccompanied Alien Child (UAC) is a legal term referring to a child who: has no lawful immigration status in the United States; has not attained 18 years of age; and has no parent or legal guardian in the United States, or for whom no parent or legal guardian in the United States is available to provide care and physical custody.

Usage by the U.S. Citizenship and Immigration Services: various

USCIS Service and Office Locator: Other Government Agencies Involved in the Immigration Process, April 13, 2016:

Immigration Investigations, Enforcement, Detention and Removal:

For information about immigration investigations, enforcement, detention or removal of aliens from the U.S., or to report suspected illegal aliens or other illegal immigration activity, please visit the United States Immigration and Customs Enforcement website at www.ice.gov

Penalties: Employers must not: Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

Sponsor: There are many ways to sponsor an alien.

Information for Employers and Employees: If the alien is not already a permanent resident, you will need to file a petition... No alien may accept employment in the United States unless they have been authorized to do so... Aliens employed in the U.S. may have a U.S. tax obligation.

Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Worker.

Parole of Aliens.

Title 8, Code of Federal Regulations: Title 8 of the CFR deals with "Aliens and Nationality", as does Title 8 of the U.S. Code.

INA: Act 274A - Unlawful Employment of Aliens.

Inspection and Expedited Removal of Aliens.

Usage by the Department of Homeland Security: Media Resources Glossary

From the Department of Homeland Security Media Resources Glossary, April 10, 2016:

Illegal Alien - A foreign national who (a) entered the United States without inspection or with fraudulent documentation or (b) who, after entering legally as a non-immigrant, violated status and remained in the United States without authority.

Usage by the Internal Revenue Service

Immigration Terms and Definitions Involving Aliens, IRS, April 13, 2016:

Alien: An individual who is not a U.S. citizen or U.S. national.

Immigrant: An alien who has been granted the right by the USCIS to reside permanently in the United States and to work without restrictions in the United States.

Nonimmigrant: An alien who has been granted the right by the USCIS to reside temporarily in the United States.

Illegal Alien: Also known as an "Undocumented Alien," is an alien who has entered the United States illegally and is deportable if apprehended, or an alien who entered the United States legally but who has fallen "out of status" and is deportable.

Taxation of U.S. Resident Aliens: Taxable Income: A U.S. resident alien's income is generally subject to tax in the same manner as a U.S. citizen. If you are a U.S. resident alien... U.S. resident aliens can claim the same itemized deductions as U.S. citizens.

Taxation of Nonresident Aliens: An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test... If you are any of the following, you must file a return: A nonresident alien individual engaged or considered to be engaged in a trade or business in the United States during the year.

Nonresident aliens who are required to file an income tax return must use: Form 1040NR, U.S. Nonresident Alien Income Tax Return, or Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents.

For additional details, refer to When To File in the Filing Information chapter of Publication 519, U.S. Tax Guide for Aliens.

The Taxation of Capital Gains of Nonresident Alien Students, Scholars and Employees of Foreign Governments.

Usage by the U.S. Court of Appeals

On November 9, 2015, the 5th U.S. Circuit Court of Appeals in New Orleans ruled against Obama's immigration plan. Read the ruling here. The ruling contains approximately 39 references to the term illegal alien. Footnote 14 on pages 4-5 explains the terminology:

14. Although “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,” it is a civil offense. Arizona v. United States, 132 S. Ct. 2492, 2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers to such persons as “illegal aliens”:

The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning.

More than one writer has argued in favor of undocumented alien . . . [to] avoid[] the implication that one’s unauthorized presence in the United States is a crime . . . . Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal”).

BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted). And as the district court pointed out, “it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op., 86 F. Supp. 3d at 605 n.2 (citing Arizona v. United States, 132 S. Ct. 2492, 2497 (2012)). “[I]legal alien has going for it both history and well-documented, generally accepted use.” Matthew Salzwedel, The Lawyer’s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING 69, 76 (2015).

Usage in the U.S. Supreme Court

Plyler v Doe, Decided: June 15, 1982

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Whatever his status under the immigration laws, an alien is a “person” in any ordinary sense of that term. This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments...

Arizona Chamber of Commerce v. Whiting - When the U.S. Chamber of Commerce teamed up with the ACLU and La Raza to kill the Arizona E-Verify law designed to protect jobs and wages from illegal aliens:

Wikipedia: “Chamber of Commerce v. Whiting was a United States Supreme Court case which dealt with the question of whether the Legal Arizona Workers Act was invalid under federal statutes, in particular the Immigration Reform and Control Act. On May 26, 2011, the Supreme Court ruled, in a 5-3 decision, that The Legal Arizona Workers Act was not preempted by federal legislation...

Illegal alien was used three (3) times. Once by Justice Sonia Sotomayor

Arizona v. United States (2012)

“Illegal alien” is used either ten or eleven times and seven or eight times by Sotomayor.

Usage in Presidential Executive Orders

High Seas Interdiction of Illegal Aliens: Proclamation No. 4865, Ronald Reagan, Sept . 29, 1981, 46 F.R. 48107.

Interdiction of Illegal Aliens, Executive Order No. 12807, George Bush, 1992.

Presidential statements

Video: President Bill Clinton on illegal aliens and illegal immigration, 1995.

Colorado law and legal definitions

Implementation of Senate Bill 06-090, Department of Public Safety, Department of Local Affairs, Performance Audit, May 2009:

Glossary: Illegal Alien - anyone who has entered the United States illegally and is deportable, or anyone who has “overstayed a visa” or otherwise violated the terms of his or her legal admission into the United States. Sometimes known as an “illegal immigrant.”

Senate Bill 06-090:

Prohibits local governments from enacting such policies. In addition, the bill requires local law enforcement personnel to report suspected illegal aliens to the u.s. Immigration and customs enforcement office.

House Bill 06-1343 - Article 17.5 Illegal Aliens - Public Contracts for Services:

Concerning measures to ensure that an illegal alien does not perform work on a public contract for services, and making an appropriation in connection therewith.

House Bill 06s-1009 deny business permits to illegal aliens

House Bill 06s-1017:

(d) "unauthorized alien" has the same meaning as set forth in 8 u.s.c. Sec. 1324a (h) (3).

House Billl 06s-1023:

Issue Brief number 06-04 a legislative council publication, May 26, 2006:

Immigration in colorado: state impact and recent legislation

One study estimated the number of illegal alien students in colorado at 25,000 in 2000. Based on this estimate adjusted for the growth in Colorado's population between 2000 and 2004, Colorado schools expended approximately $157.9 million to educate undocumented alien students in fy 2003-04.

References

Illegal alien, illegal alien, illegal alien – save this for when the illegal alien lobby tells you there is no such legal term as “illegal alien”, D.A. King, The Dustin Inman Society, November 10, 2015.

U.S. Appeals Court consistently uses the correct terminology 'illegal alien', CAIRCO, November 10, 2015.

It’s Official–A Federal Appeals Court Coined The Term “Illegal Alien” In 1950, Paul Nachman, VDare, October 19, 2015.

Opposition To ‘Illegal Aliens’ Is Opposition To Borders, by Jon Feere, Legal Policy Analyst, Center for Immigration Studies, Daily Caller, May 25, 2016.

Those who are driving the effort to control and contort language in the immigration debate are not truly motivated by the notion that the term “illegal alien” is a pejorative. This is a distraction. The real goal of those demanding that media outlets, courts, and now the Library of Congress supplant accurate legal terminology with activist-created terms is to eradicate the distinction between citizen and non-citizen, between legal activity and illegal activity, between “us” and “them” so that the concept of borders and the nation state slowly slip away. Any official heading an organization or governmental agency who thinks they are being sensitive by bowing to demands to alter their use of language is being played by the open-border crowd...

In reality, we’re a nation of citizens. And as citizens, we have a right to decide who gets to immigrate here, how many people get to immigrate here, and also set the conditions they must abide by if they want to stay. Anything less than that destroys the concept of citizenship and sovereignty. Media shouldn’t help the open-border crowd achieve its goal.