Tuesday, September 2, 2014

Guest Blogger: Professor Ediberto Román and Bobby Joe Bracy “Words Do Matter in the Immigration Debate”

E Roman and Bobby JoeAfter decades of inaction, this week’s unveiling of the Senate’s “Gang of Eight” immigration proposal suggests that Congress may finally be prepared to reform our immigration system. It is of no surprise that this renewed vigor comes on the heels of a presidential election where an overwhelming majority of Hispanic voters rejected the Republican solution was self-deportation. Yet, despite this crucial and potentially transformative moment, Republican leaders, such as Senator John McCain, one of the Group of Eight, has continued to use of ‘illegal immigrant’ when addressing the subjects of reform. He and many other Republicans who oppose immigration reform continue to use the more provocative yet inaccurate term–“illegal alien”(a term still used by the federal immigration agency, ICE). Conservative Senator Jeff Sessions for his part derided the Gang of Eight’s efforts as “making nearly impossible for ICE officials to distinguish between ‘illegal immigrants’ eligible for legal status and those simply asserting they are amnesty eligible.”

Notwithstanding the insistence to label human beings as “illegal” merely because they have committed what under federal law is a misdemeanor, other important avenues of communication and education are beginning to change the heretofore tone of the debate. Just over a week ago the Associated Press (AP) came to a decision that has gone virtually unnoticed in legal and political circles. Yet the decision was profound. The AP “no longer sanctions the term ‘illegal immigrant’ or the use of ‘illegal’ to describe a person. Instead, it tells users that “illegal” should describe only an action, such as living in or immigrating to a country illegally.”

A week later, USA Today made a similar decision to refrain from using the term, concluding that: “the term illegal immigration is acceptable, but do not label people as illegal immigrants, except in direct quotes. Undocumented immigrant, undocumented worker and unauthorized immigrant are acceptable terms — depending on accuracy, clarity and context… Do not use illegal or illegals as a noun. It is considered pejorative by most immigrants.”

While Fox News subsequently accused the AP of trying to influence immigration debate, the fact is the AP and the USA Today decisions were sound on several fronts, not the least of which is the accurate use of the English language as well as the legal and social impact of a discrediting imprecise term such as “illegal immigrant.”

Legal scholars have long recognized the inappropriateness of the use of the term. University of California, at Davis, Dean Kevin Johnson, for instance, observes: The most damning terminology for noncitizens is “illegal alien…‘Illegal aliens’ is a pejorative term that implies criminality, thereby suggesting that the persons who fall in this category deserve punishment, not legal protection.” Johnson further notes, “The illegal alien label…suffers from inaccuracies and inadequacies at several levels. [In fact,] many nuances of immigration law make it extremely difficult to distinguish between an “illegal” and a “legal” alien.”

Leading linguists agree, and last year a group of 24 scholars criticized the Associated Press’ previous assertion that the term “illegal immigrant” was accurate and neutral. These experts noted: “This misleading construction of illegality is tied to the circulation of troublesome stereotypes about the migration status of different ethnoracial groups. Specifically, assessments of illegality are often associated with unreliable signs of one’s migration status, such as language, religion, and physical appearance. These presumptions lead not only to law enforcers’ regular misidentification of people’s migration status based on wrongful assumptions about ethnolinguistic markers, but also to the broader public stigmatization of those markers.”

As the leading law dictionary, Black’s makes clear, no person, including an alien, is “illegal.” The word “illegal” is an adjective, or “a word … typically serving as a modifier of a noun to denote a quality of the thing named. Thus, no person, including an alien, is illegal. Accordingly, an alien is “a person resident in one country, but owing allegiance to another.” In other words, our laws regulate the legality of the “conduct” of persons, but do not attempt to classify human beings in such a manner. We do not, for instance, classify a seven year old that steals something as an “illegal child.” Such a label would not only be deemed absurd, but also morally bankrupt. Our laws have never gone as far as to make the persons involved “illegal.” The idea that a person might be “illegal” is thus not only inhumane; it is also grammatically inaccurate, as well as legally incoherent. There are simply no laws adequately governing the issue of “illegal personhood.” As Johnson points out, although “alien” appears repeatedly in the Immigration and Nationality Act, the term “illegal alien” is not once defined.

In sum, substances and other objects can be illegal, and conduct can be illegal–but a person cannot. As Nobel Laureate and Holocaust survivor Elie Wiesel’ aptly noted years ago, “No human being is illegal.”

The AP’s decision is couched in bedrock ethical and professional concerns about accuracy in reporting. As AP’s Kathleen Carroll explains…”Will the new guidance make it harder for writers? Perhaps just a bit at first. But while labels may be more facile, they are not accurate.”
Social justice and civil rights advocates have long fought similar battles over truth and accuracy, which is not an easy battle when facility makes ignorance so appealing. As the AP now calls for: Specify wherever possible how someone entered the country illegally and from where. Crossed the border? Overstayed a visa? What nationality?

In other words: do your homework, and describe the action or conduct that is illegal.

The decision is the only fit response to critics who dismiss this issue as “political correctness” or “censorship.” The aim evidently was not to “censor” ideas or speech, but to be critical of terms that bury a great deal of important information. In almost any context, these questions are not only significant for reporting, but legally significant. People’s rights are in the balance. As a federal court recently observed in U.S. v. Cruz-Padilla, where the court held that the defendant was entitled to a new trial because the prosecution relied on the term “illegal alien” in their closing arguments in front of a jury. Citing the Supreme Court’s earlier decisions (holding that the Constitution’s “due process” clause prohibits the use of “racially biased prosecutorial arguments”), the Cruz-Padilla Court characterized the “improper” use of the term “illegal alien” as a “foul.”

Law and psychology experts likewise have long recognized, markers or labels, especially politically loaded negative labels, have the ability to shape public policy and laws. Such labels help shape what is described as implicit bias, or mental shortcuts that allow us to make negative associations of groups that are undeserving of such negative categorizations. Stereotypes, for instance, allow society to use mental shortcuts, or schema, to associate individuals with a discrediting quality. These discrediting qualities in turn make it easier for policy makers to enact laws that seek to protect us from those with such qualities.

Sadly, history is replete with such efforts. For instance, one of the first and easiest ways for the Third Reich to enact its laws and policies was to stigmatize the Jewish community with similar discrediting qualities. These efforts paved the way to pass laws and enact horrific policies to allegedly protect society from these dangerous contagions. The use of the label illegal alien has a similar social effect. It has labeled a group of persons, who under our criminal and immigration laws have committed typically nothing more than a misdemeanor, as a group of hardened criminals that we should fear and exclude. As more and more Americans are realizing, and opinion polls reflect such realization, this label conflicts with reality.

With the recent announcements by the AP and the USA Today, we hopefully begin a path of engaging in narratives based on accurate depictions, and not stigmatizing labels. No longer is it ethical or responsible to use the discrediting marker “an illegal human being”—if indeed it ever was.

Professor Ediberto Román is a nationally-acclaimed scholar and an award-winning educator with broad teaching interests and an extensive scholarship portfolio. A prolific writer, he has published law review articles, news columns, blog essays, and book chapters on immigration policy, international law, securities regulation, evidence, constitutional law, critical race theory, post-colonial discourse, affirmative action, and law and literature. He is the author of several books, including: The Other American Colonies: An International and Constitutional Law Examination of The United States’ Nineteenth and Twentieth Century Island Conquests (Carolina Academic Press) and Citizenship and Its Exclusions: Classical, Constitutional, and Critical Race Perspectives (New York University Press)  and NYU Press – Those Damn Immigrants: America’s Hysteria Over Immigration.

Bobby Joe Bracy is a law student at Florida International University and an immigrant rights advocate. He is currently a research assistant for Ediberto Román, and the President of the National Lawyers Guild at FIU Law.

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