California Supreme Court wrestles with words: ‘Illegal’? ‘Undocumented’?
Even the California Supreme Court can’t seem to decide what to call people without authorization to be in the U.S. but are here nevertheless.
In the Thursday opinion allowing the State Bar of California to grant a license to practice law to Sergio C. Garcia, the court used the term “undocumented immigrant,” noting in a footnote that it is wording sometimes used in statutes adopted by the California Legislature and opinions by the U.S. Supreme Court to describe people in the same category as Garcia: present in the U.S., not a U.S. citizen, lacking the immigration status to be lawfully present, and not admitted temporarily as a non-immigrant.
The terminology “avoids the potential problematical connotations of other terms,” Chief Justice Tani Cantil-Sakauye wrote, including unlawful, unauthorized or illegal aliens or immigrants.
But wait, wrote Justice Ming W. Chin in a separate but concurring opinion. The justices previously and unanimously rejected “undocumented immigrant,” Chin pointed out, and chose a term they believed was more accurate: “unlawful alien.”
Chin was referring to a 2010 a ruling that upheld a state law granting a California high school graduate the lower in-state tuition rate at a public college regardless of his immigration status. He clearly remembered it, no doubt in part because he’s the one who wrote the opinion.
“The term ‘undocumented immigrant’ is vague and is not used in the relevant statutes,” Chin wrote in the earlier opinion. “It is also euphemistic, because it is unlawful to be in this country and to be undocumented in the sense in which defendants (the University of California regents) use the term. On the other hand, some view the term ‘illegal alien’ as pejorative. Wishing to be as neutral, yet as accurate, as possible in our terminology, we turn to the most relevant statutes for assistance.”
In 2010, the court found California laws that referred to “a person without lawful immigration status” and federal laws that used “an alien who is not lawfully present in the United States.”
“Both of these phrases are too bulky to be used continually,” Chin wrote in the tuition case. “We believe it best to shorten these phrases to the two-word term ‘unlawful alien.’”
Of course, as Cantil-Sakauye’s footnote in Thursday’s opinion notes, statutes were also the court’s guideposts in selecting “undocumented immigrant,” one of the terms the court considered and rejected in Chin’s 2010 opinion.
Journalism has wrestled with the question as well. Last April, the Associated Press, which produces a style guide used by many in the news business, dropped “illegal immigrant” as an accepted use. “Specify wherever possible how someone entered the country illegally and from where,” it advises.
A few weeks later, The Times also changed its style. “Use the term ‘illegal immigration’ to describe the phenomenon of entering or residing in a country in violation of the law,” the guideline reads. Avoid using ‘illegal immigrant’ or ‘undocumented immigrant’ to describe individuals except when necessary in direct quotations.”
Garcia was taken to the U.S. by his parents shortly after birth, lived here until age 9, when he returned to Mexico, and came back to the U.S. at age 17. He was an exemplary student, graduated from college and law school and passed the bar exam. The Obama administration tried to block his admission based on his immigration status, and the California Supreme Court appeared ready to side against Garcia in September – until the state Legislature quickly passed a law specifically allowing law licenses to be granted regardless of immigration status.
State law governs in such matters, the Supreme Court ruled, unless it is trumped by a federal law – and in this case it was. The package of laws that President Clinton said were intended to “end welfare as we know it” included a restriction on “public benefits for aliens,” including any professional license. But the law specifically allowed a state to override that portion if the Legislature chose to do so, as California’s did.
In addition to ruling in the law, the California Supreme Court has the ultimate say over whether a person otherwise qualified to get a law license can do so if he or she lacks the proper moral character. That put the court in the position of determining whether Garcia should be deemed ineligible based on his unlawful entry or presence in the country – and the justices said it did not.
Unlawful presence in the country is not a criminal offense and is not subject to criminal penalties, Cantil-Sakauye noted, although it does violate civil statutes and can result in sanctions like deportation or denial of a request to adjust his status. She distinguished crimes that earlier courts have found do involve “moral turpitude,” including fraud, perjury, theft, embezzlement and bribery.
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