Judge Ho Writes Entire Concurrence Just To Complain That English Language Has Synonyms For ‘Alien’

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(via YouTube)

You’ve got to give Judge James Ho credit — he’s remarkably committed to the bit. The Fifth Circuit judge nurtures his reputation with the MAGA crowd that could, hypothetically, place him on the Supreme Court with a loving caress generally reserved for newborns and pets. He’s going to war with woke law schools, spitballing bizarre defenses for Clarence Thomas, and inventing new categories of damages for anti-Vaxxers. If there’s a right-wing grievance, James Ho wants to be on the record as robed culture warrior supreme.

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In an otherwise routine and unanimous case involving a noncitizen felon, Judge Ho took the opportunity to pen nearly 600 words in concurrence to object to the fact that no one in the case used the term “alien.”

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The word “alien” is ubiquitous in statutes, regulations, judicial decisions, and scholarly commentary on federal immigration law. But despite this established usage, some members of the judiciary have recently begun to signal their opposition to using that term, on the ground that it is “offensive.” Avilez v. Garland, 48 F.4th 915, 917 n.1 (9th Cir. 2022). Respectfully, I do not share in that sentiment.

There are a whole bunch of words that were “ubiquitous in statutes, regulations, judicial decisions, and scholarly commentary” until recently. Maybe he’s prepared to take the Pepsi Challenge and argue in favor replacing “African-American” or “Black” with some of those other terms with “established usage” in his future opinions, but somehow that seems unlikely.

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Some members of the judiciary are nevertheless concerned that “[t]he word alien can suggest ‘strange,’ ‘different,’ ‘repugnant,’ ‘hostile,’ and ‘opposed.’” Avilez, 48 F.4th at 917 n.1.

This may be true in certain contexts. The word also refers to extraterrestrials in other contexts.

Almost as if the term is better recognized today for conveying that something is not human than marking a human being’s citizenship. Might that have something to do with the growing interest in finding a substitute term? It’s a real stumper!

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Also, it’s interesting that Judge Ho leans into “context” here since couldn’t be bothered to read the cases he cited in a February opinion to note that after the sentences he plucked out of context, both cases concluded the opposite way.

Poor Bryan Garner gets dragged into this bit of political theater, with Judge Ho citing the author’s 2011 claim that “Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence ‘illegal’).” Unsurprisingly, with the benefit of another decade, Garner’s a lot less strident about this take today, as he told Bloomberg Law News:

“Although ‘alien’ in legal prose was not meant to belittle, the popular connotations of the word have inevitably infected some people’s view of it,” Garner told Bloomberg Law in an email. “The linguistic lines have now been drawn as part of the Culture Wars.”

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Which is all this concurrence is about. Everyone actually involved in the case used the term “noncitizen,” which not only accurately describes the scope of the laws at issue, but arguably does so better since courts ostensibly write these opinions to communicate the law to the public and contemporary vernacular beats 18th century lingo on that score. And that’s putting aside the argument that “alien” carries additional negative baggage in 2023 that noncitizen doesn’t.

You could say Ho wrote 600 words where one — noncitizen — would do, but that’s not even accurate because he’s concurring. Ho didn’t need to say a solitary word about this subject because no one cared except him.

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Every single argument Ho musters in this concurrence — at best — supports the contention that people can use the term “alien” but there’s not a single argument for why they should. It’s been used in the past? Sure. He personally didn’t object to it when he was designated an “alien”? Bully for him. There’s not a single sentence in this whole tirade suggesting that noncitizen fails to accurately communicate the law here. He’s defending that parties could use a term that none of them wanted to use anyway.

He wasted some clerk’s time and muddied up the Federal Reporter to throw a fit over a synonym. Sometimes there are words that can mean the exact same thing. That’s how words work.

So I see no need to bowdlerize statutes or judicial decisions that use the word “alien” by substituting terms like “non-citizen.”

You know… “bowdlerize” would involve removing a term from something already written down. And while legislation may someday edit out the term, right now all that Ho is being asked to do is use a synonym today. That’s not bowdlerizing.

Actually… maybe Ho doesn’t understand how words work.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Courts, Immigration, James Ho