Small Changes Make a Big Difference in Immigration Debate

As the number of people seeking to cross the Mexican border overwhelms our authorities, and the rhetoric on both sides of the political aisle grows heated, it is important to step back to consider the role of language in structuring the debate.

We all remember not that long ago when the term "illegal alien" was the accepted phrase for those illegally entering or residing in the United States.  The term "illegal" means doing something in violation of law.  The term "alien" simply describes someone who is neither a citizen nor a foreign national of the country in which he resides.  In his country of birth, that person would obviously have citizenship and be identified as such.  Therefore, an illegal alien is someone living in a foreign country in violation of that country's laws.  The term merely describes a person's residency status.  The person himself isn't illegal (assuming that such a concept even exists); he is living in a foreign country illegally.

Under our Constitution, illegal aliens have numerous constitutional rights since such rights apply to "persons," not just to citizens.  For example, the Fifth Amendment, including its protection against double jeopardy and deprivation of life, liberty, and property without due process, applies to everyone in the country.  Likewise, the Sixth Amendment's protections of a speedy and public trial and the right to confront all witnesses and to have the assistance of counsel apply to all persons.

In fact, contrary to common understanding, the rights guaranteed by the First Amendment also are not limited to citizens only.  Further, it is already well established that illegal aliens have a constitutional right to attend public school and enjoy other publicly available benefits.  Almost forty years ago in Plyler v. Doe (1982), the U.S. Supreme Court held that "illegal aliens ... may claim the benefit of the Equal Protection Clause, which provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.'"  Indeed, illegal aliens also partake of benefits under a host of federal and state laws, including those prohibiting employment discrimination and guaranteeing workplace rights such as wage and hour protection and unemployment compensation.  So, somewhat paradoxically, to say the least, an employer can break the law by knowingly hiring an illegal alien, yet that same worker can nonetheless enjoy all employment rights and benefits available to every other employee.

The particular point here is that the term "illegal alien" is not a normative term, but one descriptive of a person's residency status, which, in any case, hardly affects the rights afforded him.  In fact, as our country continues to tilt farther to the left, such persons could easily end up with greater rights than those of the citizenry at large.  They have done so already in New York City for two years.  Since 2019, it has been against the law there to call someone an illegal alien if the intent is to demean.  Penalties for violating this municipal law are steep.  It certainly wouldn't be surprising if illegal aliens become the next protected group under federal hate crime legislation.

Once the use of the term "illegal alien" was put out to pasture, it was replaced by the purportedly less offensive phrase "undocumented alien."  At first blush, that appears to describe someone who, whether intentionally or inadvertently, neglected to get his paperwork in order.  The implication is that the person may have done something technically illegal but didn't necessarily intend to flout the law.  He may lack, as we say in the law, mens rea.  Needless to say, a change in terminology does not change a person's residency status; it merely describes it in a less objectionable way to snowflake sensibilities.  If that were all that was sought to be accomplished, we could chuckle at the woke mentality and move on.

The real point, however, is that the change in language is intended to change the way we view a person's residency status, with the ultimate goal being open borders.  Toward that end, the next step is to completely eliminate the word "alien" from the accepted terminology.  It is easier to persuade citizens to accept the inclusion of illegal aliens if we dispense with the word "alien," not just the word "illegal."  So, we substitute "undocumented for "illegal" and "immigrant" for "alien," and presto: we now have people at our borders parading through the Brobdingnagian hole in the wall whose paperwork may not entirely be in order.  Didn't we have many like that landing at Ellis Island for decades?  They weren't shipped back to Europe just because the is weren't dotted and the ts weren't crossed on their documents.

None of this linguistic tour de force, however, addresses the real issue: whether, under law, any of these people overwhelming our border authorities has a legal right to be here.  In a word, none of them does.  Each person crossing our southern border claims to be an asylum-seeker.  Asylum-seekers and refugees must meet the same criteria for entry into the United States.  The only difference is that asylum-seekers can already be here when they apply for asylum.  The definition of "refugee" is based on the 1951 Convention on the Status of Refugees.  It was ratified by over one hundred and fifty countries, including the U.S.  It defines a refugee as someone unwilling or unable to return to his home country because of a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinions.  The U.S. Immigration and Nationality Act ("the Act") adopted this definition.  Importantly, economic distress is not a basis for qualifying for entry.  Nor is fear of persecution on account of anything other than the five specified categories listed in the Act.  A desire to escape gang violence or the cartel, the desire to give one's family a better life, or the desire to meaningfully contribute to American society, or any other reason, no matter how sympathetic, does not entitle a person to asylum.

Since the race, religion, and nationality of all, or at least virtually all, of those crossing our southern border are the same, they cannot be facing persecution on any of those bases.  Likewise, I haven't seen any Solzhenitsyns in their midst.  The point is that anyone can claim anything.  However, as the Supreme Court has held, the applicant bears the burden of meeting the test and must have and document a "well founded fear of persecution."  The type of relevant documentation includes affidavits or witness statements from friends or family who witnessed the persecution on one of five specified bases; medical experts who evaluate the applicant for signs of prior persecution; and country condition experts familiar with human rights violations based on race, religion, or nationality in the home country.  I won't hazard a guess at how many among the hordes of people crossing the Mexican border are equipped with that paperwork, but I would be surprised if I needed both hands to complete the count.

It is for good reason that the first step toward creating an open border is to change how we describe the people crossing.  Eliminating the word "illegal" goes a long way toward changing the debate from the legality of their entrance to the humanitarian crisis that drove them from their homes.  Perhaps the next term used to describe them will be "victimized entrants."

By this reasoning, any poor person anywhere in the world has a right to enter, enjoy all of our constitutional rights and privileges, obtain social welfare benefits, and get fast-tracked to citizenship.  The only difference is that hopping on a caravan is cheaper than buying a plane ticket.

Language can accomplish amazing things.  As this Biden-created debacle worsens, we will surely become the United States of Americas.

Image via Pxhere.

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