An Immigrant Judge Defends the Use of ‘Alien’

More notable is the pushback from Judge

Carlos Bea,

who immigrated to the U.S. from Spain via Cuba and successfully appealed a removal order. “Defenders of ‘noncitizen’ sometimes claim that this word is interchangeable with alien because everyone is a citizen of somewhere,” Judge Bea writes. Not so. “For one, monarchies exist. A Spanish born person is a ‘subject’ of the Kingdom of Spain, albeit he may have democratic rights.” Or consider American Samoans by birth, who are U.S. nationals but not citizens.

“These distinctions matter,” Judge Bea writes. “Words matter. Our federal immigration statutes concern themselves with aliens. This word 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.”

Judge Bea explained in a 2019 oral history that he was studying at Stanford as a permanent U.S. resident when he took a break to play basketball outside the country, including at the 1952 Olympics in Helsinki for the Cuban team. When he returned to Stanford, he was given a student visa, which “broke the continuity of my resident status,” though he didn’t know that at the time.

This led to a removal order, since a suspicious immigration official said he thought the young Judge Bea had changed his status in an effort to avoid the draft. After a successful appeal, Judge Bea became a citizen in 1958 and eventually a jurist on the Ninth Circuit in 2003, appointed by President

George W. Bush.

The Immigration and Nationality Act defines “alien” as “any person not a citizen or national of the United States.” Judge Bea calls it a “statutory word,” used in the legal context to mean exactly that, not anything else that might “be plucked at will from the dictionary.” Federal courts, he says, “should not invent their own terminology to stand in place of definitions used in the congressional statutes they are tasked with applying.”

As a final point, Judge Bea says the current case-by-case semantic shift “comes at a real cost to litigants, who are now forced to make a lose-lose choice.” Do they file their briefs using the textual word “alien,” or do they put alleged sensitivity above the statutory language by deploying “noncitizen”? What’s the risk that each will pique a given judge?

“This situation is entirely unnecessary,” he says, “and I hope my colleagues throughout the judiciary can be persuaded to dispense with such rhetoric altogether.” Maybe his example will embolden more judges to buck political correctness and stick to the law’s text. But given the Ninth Circuit’s liberal tilt, it’s more likely Judge Bea will find himself, well, alienated from his colleagues.