Emails, Rick T. Su, professor, University of Buffalo School of Law, April 19-20 and 24, 2018
On Thu, Apr 19, 2018 at 8:34 PM Selby, Gardner (CMG-Austin) wrote:
Professor Su:
Hello from the Austin, Texas newspaper and the fact-checking PolitiFact Texas project.
Mindful of your expertise, as noted here, I write seeking your attributable on-the-record analysis.
Col. Steve McCraw, director of the Texas Department of Public Safety, said in Texas testimony this week that the term “illegal alien” is in federal statute. McCraw was responding to a legislator questioning his use of the term in a Texas hearing, as described in the Austin American-Statesman news story posted here.
Is it correct that the term “illegal alien” is presented and defined in federal law? I’m interested in the specific statutory background of the term.
Also, are there any other legal experts or resources you’d recommend we consult on this story?
Thank you,
g.
Want our fact checks first? Follow us on Twitter.
W. Gardner Selby
Reporter / News
Austin American-Statesman
PolitiFact Texas
11:21 p.m.
April 19, 2018
I know of only one federal statute that uses the term "illegal alien," but how it is defined and for what purpose does not match up with how people typically use the term "illegal alien." Notably, "illegal alien" is not used in the Immigration and Nationality Act, the main statute that deals with immigration.
The only mention of "illegal alien" that I know is in the Immigration Reform and Control Act (IRCA) passed in 1986. IRCA is mostly known as the last mass legalization of unauthorized immigrants, and also for creating a national system of employer verification. It refers to "illegal aliens," however, in a little known (and as states and cities would argue, little used) section referring to reimbursement to states for the incarceration of "illegal aliens." 8 U.S.C. 1365.
But in defining "illegal aliens," it states:
“An illegal alien referred to in subsection (a) is any alien who is any alien convicted of a felony who is in the United States unlawfully and -- (1) whose most recent entry into the United States was without inspection, or (2) whose most recent admission to the United States was as a nonimmigrant and -- (A) whose period of authorized stay as a nonimmigrant expired, or(B) whose unlawful status was known to the Government, before the date of the commission of the crime for which the alien is convicted.”
Of course, the term illegal alien is ordinarily used not only to refer to those who have been convicted of a felony and is present in the United States without authorization. It is more commonly used to refer to immigrants who are simply present in the United States without a valid visa or legal status, or whose legal status expired or is terminated. Moreover, this definition of "illegal alien" in federal law is only with regard to this particular section, which, again, refers to reimbursement for states. We use "illegal alien" to refer to a lot more than that.
If we were going with what federal statute says, especially those parts of the INA that refers to those aliens we would now consider to be "illegal aliens," it is probably more accurate to say "inadmissible aliens" or "deportable aliens" (8 U.S.C. 1227, referring to those immigrants who are subject to deportation) or "unauthorized aliens" (8 U.S.C. 1324a concerning the employment of unauthorized aliens). "Inadmissible aliens" and "deportable aliens" are different individuals under the INA, and have specific criteria. Among the two, "inadmissible aliens" is probably closest to how the term "illegal aliens" is commonly used (federal law treats those who enter without inspection to be construed as not having been "admitted"), though it would not technically include visa overstays who would be considered a "deportable alien."
"Unauthorized alien" gets a little closer, because it would include both inadmissible and deportable aliens. But it is also closely connected to lacking authorization to work, which may actually include aliens who have legal status but no work authorization (certain nonimmigrant visa holders, for example).
It must be noted that the INA refers to "illegal immigration," but only because the 1996 immigration reform law was called the "Illegal Immigration Reform and Immigrant Responsibility Act." It actually doesn't use the term "illegal immigration" in any other way other than to refer to that law.
It must also be noted that other government documents (memos, directives, reports, etc.) do use the term "illegal alien." The Supreme Court has also used the term "illegal alien" (Decanas v. Bica; U.S. v. Arizona).
In short, when it comes to federal law, the only time that I know of that the term "illegal alien" is used, it is used in a manner that is inconsistent with common usage.
Hope that helps,
Rick
On Fri, Apr 20, 2018, 11:11 AM Selby, Gardner (CMG-Austin) wrote:
Many thanks.
We spotted “illegal alien” nine times in the 1996 act but our search of the act failed to turn up what you shared in your email. I will take another look.
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.
7:45 p.m.
April 20, 2018
Good catch. It makes sense that illegal alien would be used in the 1996 act. The mention that I spotted is in the 1986 act (IRCA), though it is interesting that the language has not made it into the INA even with all the amendments.
I would need to check on when and why illegal aliens became a common terms. It is at least as early as 1976 when the supreme court used it in Decanas.
As for the term "alien," that has been used to describe noncitizens since before the founding of this country and derive from the common law usage that we adopted from England. In fact, it is prominently featured in the earliest federal law concerning immigrants: the Alien and Sedition Act, passed in 1798. This is a term that existed to refer to noncitizens long before it had ever been used to refer to, say, space aliens.
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.
Want our fact checks first? Follow us on Twitter.
W. Gardner Selby
Reporter / News
Austin American-Statesman
PolitiFact Texas
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
(Su)
12:04 p.m.
April 24, 2018
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.