Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, May 3, 2013

"Alien:" pejorative or descriptive

The Texas Law Review recently published my essay, "Stirring the Melting Pot: A Recipe for Immigrant Acceptance," reviewing "The Immigration Crucible: Transforming Race, Nation, and the Limits of the Law" by Philip Kretsedemas.

In his book, Kretsedemas suggests that structural-institutional conditions produce immigrant marginality. My response: "Structural–institutional conditions can exacerbate or mitigate immigrant marginality, but they do not produce it.  Immigrant marginality is a reality, inherent to the human condition.  Believing that institutional or structural changes can eliminate it is simply fanciful utopian thinking."

Within the immigration law professors community, the word "alien" has taken on such a perjorative cast that it is even avoided by casebook authors despite being a statutory term of art. One of the leading casebooks begins with “[T]he word ‘alien,’ even when not adorned with the modifier ‘illegal,’ has always struck a disturbing chord.  Many feel that the term connotes dehumanizing qualities of strangeness or inferiority (space aliens come readily to mind) and that its use builds walls, strips human beings of their essential dignity, and needlessly reinforces an ‘outsider’ status.”

I respond that "[e]ven if the term “alien” is in some sense pejorative in labeling an immigrant, in a very real sense “alien” is an appropriate term for describing the relationship between the immigrant and his new country" because "[l]anguage, culture, history, and tradition often create a wide gulf between the migrant and the native. They do not yet belong to each other."  The Oxford English Dictionary defines "alien" as “[b]elonging to another person, place, or family; not of one’s own; from elsewhere, foreign.”

This reality is grasped by Wendall Berry in Jaybar Crow. Jaybar migrated a couple of miles from the town of Goforth to Port WIlliam. Crow says:

If you have lived in Port William a little more than two years, you are still, by Port William standards, a stranger liable, to have your name mispronounced. . . .  [T]hough I was only twenty-two when I came to the town, many . . . would call me ‘Mr. Cray’ to acknowledge that they did not know me well. . . .  Once my customers took me to themselves, they called me Jaybird, and then Jayber.  Thus I became, and have remained, a possession of Port William.

Therefore, I conclude:

The government will assign the nonimmigrant an identifying number but will not learn the nonimmigrants name much less how to pronounce the name.  The government will not take a personal interest in the nonimmigrant’s family, culture, or history.  Immigrant marginality recedes and immigrant integration begins at the backyard barbecue, the pub, and the church as families celebrate births, graduations, marriages, deaths, and holidays together.  The migrant will not be at home in her adopted country until she is known and loved in her new community.  And, that takes time.




Scaperlanda, Mike | Permalink


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This tension was evident in a recent SCOTUS opinion. Sotomayor does not use the term "alien" in her opinion. Justice Alito takes some exception to this, and believes that her using "non-citizen" instead of the proper statutory term of art creates some confusion:


I love the Wendell Berry! Keep it coming...

Posted by: CLS | May 3, 2013 11:19:35 AM

Sotomayor v. Alito should be a source of back/forth for years to come. I'm still waiting for her to put her law school note to good use via an opinion involving Puerto Rico.

Word usage is often hard but acceptance alone doesn't make an "alien" not an "alien," does it? A "residential alien" can be beloved and reside in town for ten years and still be one, since the person is not a citizen or born here.

"Alien" does -- at least for a time -- have a useful descriptive flavor. I think the term "illegal" has more problems, including in a symbolic fashion.

Posted by: Joe | May 4, 2013 12:03:33 PM