No less a news source than The New York Times has entered into the public debate about how best to describe foreign-born people living in the U.S. without permission. (See “Is ‘Illegal Immigrant’ the Right Description?,” by Margaret Sullivan.)
At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”
I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.
1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).
2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.
As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.
Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.