Sotomayor Addresses Her Use of “Undocumented Immigrant” Rather Than “Illegal Alien”

February 5th, 2014

During her recent conversation at Yale Law School, Justice Sotomayor addressed her decision to use the phrase “undocumented immigrant” rather than the phrase used in the statute, “illegal alien.”

Sotomayor also addressed her use of the term “undocumented immigrants” rather than the term “illegal alien,” characterizing the immigration issue as a regulatory issue.

“To dub every immigrant a criminal because they are undocumented, to call them illegal aliens seemed and has seemed insulting to me,” said Sotomayor. “I think people then paint those individuals as less than worthy human beings and it changes the conversation.”

Justice Sotomayor first used the term “undocumented immigrant” in Mohawk Industries v. Carpenter in December 2009, her first opinion on the bench.

The following term, in Chamber of Commerce v. Whiting, the question presented used the statutory term, “unauthorized aliens.” During oral argument, Justice Sotomayor used the term “illegal alien,” but quickly corrected herself and said “undocumented aliens.”

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?

Justices Scalia and Alito had no problem, and used the phrase “illegal alien.”

In 2012, in Arizona v. United States, Justice Sotomayor used the phrase “illegal alien.”

JUSTICE SOTOMAYOR: What happens if — this is the following call — the call to the — to the Federal Government. Yes, he’s an illegal alien. No, we don’t want to detain him. What does the law say, the Arizona law say, with respect to releasing that individual?

In 2013, 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 a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.”