In discussing the hot button topic of immigration, many on the right use the term “illegal immigrant”. On the other hand, many on the left use the term “undocumented immigrant”. As shown below, the groundwork has already been laid by others for a better term, a term that is hopefully a term that all can agree on. That term is “unlawful immigrant”.
Before you decide whether to continue reading, please note that the compromise term “unlawful immigrant” probably has zero chance of catching on. However, you might learn a fact or two by reading the rest of this short article.
The Oxford English dictionary defines the word “illegal” as meaning “contrary to or forbidden by law, especially criminal law.” In the word “especially” lies the problem: when people hear the term “illegal”, many will think that a criminal act has been committed. In fact, it isn’t a crime. As shown below, the Supreme Court expressly agrees that it is not a crime to “be here illegally”.
Being in the United States “illegally” is neither a misdemeanor nor a felony. It is, however, an infraction, one which carries no fine. Should a person return after being deported, then they commit a felony under federal law (8 U.S.C. § 1326).
Now being in the United States “illegally” is a deportable infraction….but given that there is no fine associated with it, you could argue that a speeding ticket is worse. In my view, we should not use the term “illegal” because many will presume that a crime has been committed. Similarly, we should drop the term “undocumented” because that term incorrectly implies that the people in question are simply missing some documents that they somehow are legally entitled to.
Since both sides use the word “immigrant” in their respective terms, I respectfully submit that “unlawful” would be a better term than either “illegal” or “undocumented”. The term “unlawful” does not carry the implication that a crime has been committed.
The right should not object to the term “unlawful” because the Heritage Foundation already uses the term “unlawful immigrant”. Libertarians should also not object because the Cato Institute uses the term “unlawful immigration”.
Democrats have also used the term “unlawful”. United States Sen. Jeanne Shaheen and Lucille Roybal-Allar, to name just a couple, have used the term “unlawful” to describe immigrants in bills they submitted. See Shaheen’s bill here and Roybal-Allar’s bill here.
In Arizona v. United States, the hotly debated 2012 Supreme Court (SCOTUS) decision, both liberal and conservative justices used the term “unlawful” in their opinions. The liberal majority talked about “unlawful immigration” and “unlawful presence”. Now the liberal justices also used the term “illegal immigration” in their opinion (!), but let’s focus on the fact that the term “unlawful” was used by both liberal and conservative justices in describing those unlawfully present in the US.
SCOTUS was very clear: “As a general rule, it is not a crime for a removable [legalese for “deportable”] alien to remain in the United States.”. That is exactly the point I made above, and their statement isn’t exactly news. It has been the case for a long time, perhaps going all the way back to July 4, 1776.
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Because people are so divided on what they think government policy should be on immigration, there is little chance that the term “unlawful immigrant” will catch on. Both sides will fear that they lose an edge in the debate. But I for one do use the term “unlawful immigrant”.
Personal blog of Tom Rask (florida) 