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Exclusive–Kobach: The Biden Administration Bans the Phrase ‘Illegal Alien,’ Once Again Ignoring the Law

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On Monday, President Biden’s acting directors of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) distributed memoranda that once again show how out of touch the Administration is.  In the middle of the worst border crisis in decades, with rampant abuse of the asylum system and record numbers of border apprehensions, they decided to take action to ban officers from using the phrase “illegal alien.”

This gesture speaks volumes.  To the Biden administration, politically correct terminology is more important than securing the border.  At a time when morale among ICE and Border Patrol officers is flagging, their political overlords signal the Administration’s disdain for the very laws that those officers have devoted their careers to enforcing.

The move also displays the legal ignorance of the Biden administration.  The term “illegal alien” is not a derogatory term invented by those of us who favor border enforcement.  It is a legal phrase that has long been found in federal law.  You can find examples at 8 U.S.C. § 1356(r)(3)(ii) (“expenses associated with the detention of illegal aliens”); 8 U.S.C. § 1366(1) (“the number of illegal aliens incarcerated”); and 8 U.S.C. § 1252c (“to arrest and detain certain illegal aliens”).

In contrast, the politically-correct phrase that the Biden Administration is ordering officers to use—“undocumented migrant”—is found nowhere in federal law.  Moreover, “undocumented migrant” is a contradiction in terms. Calling an illegal alien an undocumented migrant is like calling a thief an undocumented owner.  There is no missing document, and there cannot be one.  

Let’s break it down further.  The language patrol of the Left doesn’t like the term “illegal” or the term “alien.”  But neither term is derogatory.  They are descriptive, and they are accurate.

Consider the term “illegal.”  An illegal alien has broken the law, usually in multiple ways.  At a minimum, he has broken the law in some way to become an illegal alien.  It is a violation of federal law to cross the border illegally, under 8 U.S.C. § 1182(a)(6)(A); and it is a violation of the law to overstay a temporary visa, under 8 U.S.C. § 1182(a)(6)(B)(ii).  Indeed, the former is also a criminal offense, under 8 U.S. § 1325(a).

But most illegal aliens violate a host of additional laws while remaining unlawfully in the United States.  It’s a federal crime to use someone else’s Social Security number, under 42 U.S.C. § 408(a).  And it’s a federal crime to present a fake identity document in various circumstances, under 18 U.S.C. § 1028.  And the list goes on.  Being an illegal alien means breaking the law, usually breaking lots of laws.  If law enforcement officers are forbidden to use the term “illegal,” then they are forbidden to tell the truth.

Similarly, there is nothing derogatory about the term “alien.”  We are all aliens when we are outside our country of citizenship.  If you are a U.S. citizen on vacation in Europe, you’re an alien.  Big deal.  It’s just a descriptive term that international and domestic law has used for centuries to distinguish between a country’s citizens and other people inside the country.

What the Biden administration is doing is mind-numbing.  Indeed, it’s Orwellian.  They have also evidently decided that “rioters” are to be called “peaceful protesters.”  What’s next?  Will they bar all federal law enforcement officers from using the term “criminal?” Are criminals now to be called “victims of legal persecution?”

If those who are charged with enforcing the law are forbidden to say plainly that they are stopping illegal activity, it has a corrosive effect.  Not only on the morale of the officers, but also on our culture and our country.  The rule of law itself begins to erode.  Unfortunately, it seems that that is the objective.

Kris W. Kobach served as the elected Secretary of State of Kansas during 2011-19.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA executive amnesty.  He currently serves as general counsel for the Alliance for Free Citizens.  His website is kriskobach.com.