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September 04, 2015 Practice Points

The Judicial Imagination and "Illegal Aliens"

By Handel Destinvil

With the return of the quadrennial Republican Presidential primary, has come the corresponding return of the language of "illegal aliens." The usage of the term arises in an environment where numerous media organizations no longer sanction its use, and other organizations have advocated for further removal of the phrase in other media publications.

Some commentors have deemed such advocacy to be linguistic sanitation of unlawful activity. Others have gone further, stating that such advocacy is futile in terms of improving public opinion of the population in question.

In the legal context, however, there is some argument that terms such as "illegal immigrant" influence law and public policy. In his 2011 Fordham Law Review article, "Alien Language: Immigration Metaphors and the Jurisprudence of Otherness," Williamette University Professor of Law Keith Cunningham-Parmeter argued that "how we think metaphorically affects how we talk about problems and the solutions we formulate in response to those problems."

As support for his premise, Cunningham-Parmeter analyzed all federal court opinions concerning immigration authored between 1965 and 2010 and found that of 4,200 opinions, "illegal alien" was by far the most common term, appearing in 69 percent of opinions (2,905 cases) while "immigrant" appeared in only 12 percent of opinions (494). Its importance, for him, is in the idea that such cases "not only establish basic principles for the legal treatment of immigrants, [but] dictate how legal actors talk and think about noncitizens." Cunningham-Parmeter also evaluated how the decisions emphasized certain metaphorical aspects of immigration while overlooking others and argued that three immigration metaphors are recurrent in Supreme Court texts: "Immigrants are aliens;" "Immigration is a flood;" and "Immigration is an invasion."

As one case study, Cunningham-Parmeter analyzed Plyler v. Doe, a 1982 Supreme Court decision:

Although they disagreed on the substantive rights at issue, the Plyler Justices shared a common vision of immigration as a dangerous body of water. The word 'influx,' which means 'and inflow, as of a physical fluid,' appears six times in the decision. Justice Brennan wrote of Texas's attempt to 'stem the tide of illegal immigration.' Chief Justice Warren Burger referred to 'millions of illegal aliens flooding across our southern border' and 'an ever-increasing flood of illegal aliens—aliens over whose entry or continued presence [the federal government] has no control.'

For Cunningham-Parmeter, the language and metaphorical imagery went beyond a mere rhetorical flourish but instead worked to imperceptibly limit their judicial imagination: "Rising floods must be contained, lest they drown the citizenry. Accordingly, the solutions proposed in Plyler match the metaphors used to define the problem."

In the context of recent Presidential campaigning, this argument seems to have convincing merit. Donald Trump, the candidate best known for his commentary on "gangs of illegal aliens," has, consistent with his metaphorical thinking, unsurprisingly presented the most punitive of immigration reform measures. His six-page immigration plan "calls for the government to deport large segments of the undocumented population, seize money that these immigrants attempt to send home, and, contravening the Fourteenth Amendment to the Constitution, deny citizenship to their U.S.-born children."

It would be difficult to imagine such an immigration policy growing out of language that acknowledged "immigrants' personhood" and "potential for social contribution." As theorized by Cunningham-Parmeter, "[i]f 'illegal' means 'criminal' and 'alien' means 'stranger,' then through the illegal alien metaphor, immigrants become criminal strangers . . . more than mere border-crossers; like murderers, robbers, and drug dealers, they threaten the social order."

Again, as with the language of the Supreme Court decisions examined by Cunningham-Parmeter, the policy focus of Trump on "illegal aliens" is also notable for how it constrains thought and serves as the foundation to policy uninterested in "conveying a true picture of real demographics." For example, the demographic reality is that the population of unauthorized immigrants in the United States has decreased every year since its peak in 2007, completely without the "Great Wall of Trump" that Trump has stated the country desperately needs along its southern border, and that "Mexican immigrants, including those with limited educations, are incarcerated at lower rates than even native-born high school graduates."

While Trump may be a lost cause in this regard, Cunningham-Parmeter would likely see the usage of the term "undocumented immigrant" by Justice Sonia Sotomayor—the first ever such usage in a Supreme Court opinion—as a hopeful sign that judicial thinking on immigration may still evolve and that perhaps, with continued scrutiny, the wider conversation as well.

Keywords: minority trial lawyer, litigation, illegal alien, undocumented, immigrant, Cunningham-Parmeter, discriminatory language

Handel Destinvil, Esq., is with the Superior Court of New Jersey in Essex Vicinage in Newark, New Jersey.

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