In Moncrieffe v. Holder, Justice Sotomayor consistently uses the term “noncitizen.” Nowhere in her opinion does the word “alien” appear. Justice Alito takes exception to this, and adds in a footnote:
1 “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).
In Mohawk Industries v. Carpenter, as noted Adam Liptak, Justice Sotomayor “marked the first use of the term ‘undocumented immigrant,’” rather than “illegal immigrant,” which “has appeared in a dozen decisions.”
I previously speculated what term the Court would use in Chamber of Commerce v. Whiting. The relevant statute uses the phrase “illegal alien.” During arguments, Justice Sotomayor used the phrase “illegal alien,” and quickly changed to “undocumented alien.”
JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?
In arguments in Whiting, Justices Scalia and Alito consistently used the phrase “Illegal Alien.”
In a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.”