Emails, Denise Gilman, clinical professor, director, Immigration Clinic, University of Texas School of Law, April 20 and 24, 2018

8:54 a.m.

April 20, 2018

 Illegal alien is not in the statute, although alien is.  See the definitions here - https://www.law.cornell.edu/uscode/text/8/1101

 

For this reason, the AP style guide now urges against use of the term - https://blog.ap.org/announcements/illegal-immigrant-no-more

 

Let me know if you have  further questions.

 

 

Denise Gilman

Clinical Professor

Director

Immigration Clinic

University of Texas School of Law

From: Selby, Gardner (CMG-Austin)

Sent: Friday, April 20, 2018 10:36 AM

 

Thanks for your quick responses.

 

As mentioned, we spotted “illegal alien” nine times in the 1996 act.

 

I wrote Professor Su this morning:

 

Have you any guidance on how the term “illegal alien” originated and, perhaps more to the point, why “alien” landed in the vernacular and law?

 

What we spotted in the 1996 act included:

 

--A section titled “Demonstration project for identification of illegal aliens in incarceration facility of Anaheim, California.”

 

--A section requiring an annual report detailing “the number of illegal aliens” sentenced or jailed for felonies in state and federal prisons, broken down by offense.

 

--A section titled “Pilot programs on limiting issuance of driver’s licenses to illegal aliens.”

 

--A section authorizing the hiring of 25 new federal lawyers to “prosecute persons who bring into the United States or harbor illegal aliens or violate other criminal statutes involving illegal aliens.”

 

Anything else come to mind on this topic?

 

g.

10:49 a.m.

Interestingly, of the references below in the 1996 act, all but one use the term “illegal alien” in the title but not in the actual language of the legislation.  The title is a political marker in the legislation but is not the law itself.  For example, the section titled “PILOT PROGRAMS ON LIMITING ISSUANCE OF DRIVER'S LICENSES TO ILLEGAL ALIENS” goes on to use legal terms in the actual text:

   “ (a) IN GENERAL.-Pursuant to guidelines prescribed by the Attorney General not later than 6 months after the date of the enactment of this Act, all States may conduct pilot programs within their State to determine the viability, advisability, and cost-effectiveness of the State's denying driver's licenses to aliens who are not lawfully present in the United States.”

 

The only reference that mentions illegal aliens in the text is the last one that has to do with the criminal statute.  It also appears to be a funding or personnel provision rather than a law that will have legal effect in changing the meaning of any categories in the law.

 

Denise Gilman

Clinical Professor

Director

Immigration Clinic

University of Texas School of Law

On Tue, Apr 24, 2018 at 8:40 AM, Selby, Gardner (CMG-Austin) wrote:

Hello again. Each of you was kind enough to respond when I asked last week about the presence of “illegal aliens” in federal law. You universally said that it’s scarcely so (of course, tell me if I misread!).

 

We separately heard back from a federal official who noted the mentions of “illegal aliens” I am sharing below. Does what this official shared have significance to the accuracy of the claim we’re checking? Why or why not? Reply ALL if you’d like to share with your fellow legal experts.

 

To rehash, Steve McCraw of the Texas DPS was asked if the agency could reconsider referring to unauthorized immigrants as illegal aliens. “I always use IAs,” McCraw replied. “It’s a legal term, a federal term in statute, and it’s not intended to degrade anyone in any shape or form,” he said. We had asked you if he was right about the term being in federal statute.

 

Here is the federal official’s reply to us:

 

You can find instances of the term “illegal alien” in federal law.  A few examples are: 8 USC 1252(c), 1365, and Section 204 and 332 of the Illegal Immigration and Reform and Immigration Responsibility Act of 1996.

 

Arwen FitzGerald

Public Affairs Officer –  Texas, Oklahoma and New Mexico

Office of Communications | U.S. Citizenship and Immigration Services

 

g.

From: Rick Su

Sent: Tuesday, April 24, 2018 12:04 PM

 

The laws identified are the same as those that we had talked about earlier.  And Jeff is right, they are scattered, ill-defined, and largely pertain to issues not at the center of immigrant admissions or enforcement.  

 

S. 1252c was part of the 1996 reforms I discussed, though I guess technically part of AEDPA and not IIRIRA (immigration provisions were scattered throughout both).  That goes along with the last two sections mentioned.  

 

S. 1365 was part of IRCA in 1986, which was the first one that I pointed to.

 

It is worth noting that just like s.1365, s. 1252c applies to a more limited category than how the term "illegal alien" is used--both apply to those who are not only present without authorization, but also have been convicted of a felony.  To be sure, s. 1252c is labeled as "certain illegal aliens," which suggests that the base term "illegal alien" is envisioned to be broader.  But all of these also suggest that federal law does not use "illegal alien" as a distinct legal category with a consistent definition.

 

On Tue, Apr 24, 2018 at 12:03 PM Jeff Baker wrote:

Gardner,

 

This limited use is consistent with my response to you earlier, and I will let that response stand without anything further on the record.

 

Thank you for careful reporting.

 

JRB

(Gilman)

3:48 p.m.

April 24, 2018

I also stand by my earlier statements and also agree with my wonderful colleagues Rick and Jeff.  I would also just note that of the two provisions actually codified in the law, 8 USC 1252(c) and 8 USC 1365, only one (1365) actually uses the term “illegal alien” in the operative text of the law itself.  8 USC 1252© just uses the term in the title but then recognizes in the text that the term has to be further defined or explained to function in the law since there is no definition of the term elsewhere.  The two provisions of IIRIRA cited are funding statements of intent in a bill that did not make their way into the actual immigration code.  So that takes us back to 8 USC 1365 as being the only actual provision of law that uses the term, as Rick has pointed out, and it does so outside of the context of immigration enforcement.