Think Immigration: From “Alien” to “Noncitizen”: The Subtle Power of Language in U.S. Appellate Courts

By Bill De La Rosa and Zachary Neilson-Papish

The language we use to describe people living in the United States without authorization can reveal our political positions on immigration. Consider, for instance, the words lawmakers use on the Senate floor. Research shows that liberal senators favor terms like “undocumented” and “unauthorized,” while conservatives more commonly deploy terms like “illegal” and “aliens.” This is not surprising; language is never neutral. For that reason, the Biden Administration adopted “noncitizen” for use by immigration court personnel as a more humanizing label than “alien,” which was the term preferred by the previous Republican administration. Words have power, especially in immigration politics, where partisan language speaks to differing and seemingly irreconcilable perceptions of immigrants.

What about the courts? The judicial branch is expected to remain apolitical, but could the language judges use when referring to undocumented immigrants reflect ideological bias? In 2011, legal scholar Keith Cunningham-Parmeter determined that it does. His study found that cases where the U.S. Supreme Court employed dehumanizing metaphors (e.g. an “invasion of illegal aliens”) were more likely to result in unfavorable outcomes for immigrants. Little is known, however, about the relationship between language and decisions in lower courts.

Until now. This post provides the first account of language biases in federal appellate rulings on immigration matters. Our analysis focuses on decisions from the Second, Fifth, and Ninth Circuits of the U.S. Courts of Appeals.

Methodology: Analyzing Language and Outcomes

Our study analyzed 572 immigration cases from April 2023 to April 2024 using a manual screening approach. We chose the Second, Fifth, and Ninth Circuit Courts of Appeals because of their ideological leanings: The Fifth Circuit tends to be more conservative, the Ninth more liberal, while the Second Circuit is considered relatively neutral. We tracked the frequency of terms that express a negative bias like “alien” and “illegal,” as well as those that express a more positive bias like “noncitizen” and “undocumented,” across these circuits while also recording case outcomes, judge names, and other relevant details. For our purposes, we deemed a case to be successful if it was granted, remanded, or granted in part, as any of these outcomes would grant a petitioner a second chance before the Board of Immigration Appeals.

Key Findings: Language Reflects Ideology

Our findings reveal clear ideological patterns across the circuits, with differences in the language used by judges:

• The Fifth Circuit, known for its conservative leanings, predominantly used the term “alien.” This term was used in over half of its cases.
• The Ninth Circuit, recognized for its liberal orientation, favored the term “noncitizen,” which appeared in 36.7% of its cases, aligning with a more humanizing approach to language.
• The Second Circuit, considered relatively neutral, largely avoided politically charged terms, preferring neutral references like “petitioner.” 72% of its cases did not include terms like “alien” or “noncitizen.”

“Noncitizen” Linked to Better Outcomes

Interestingly, across all three circuits, the term “noncitizen” was associated with more favorable outcomes for immigrants, particularly in published decisions where language is more carefully chosen. In fact, overall, 54.5% of successful published cases used the term “noncitizen,” compared to just 18.2% using “alien” and 27.3% using none of the terms we tracked. Judges who used “noncitizen” in these published rulings were three times more likely to rule in favor of immigrants than those who used “alien.”

Qualitative Insights: Intentional Language Shifts

Our qualitative analysis revealed subtle but interesting linguistic strategies. In 5.7% of cases, judges replaced the term “alien” in quoted statutes with “[noncitizen],” often styled as “[ ] [noncitizen].” This substitution primarily occurred in opinions where the judge consistently used “noncitizen” throughout, signaling an intentional shift in framing.

Not all judges agreed with this trend. In Avilez v. Garland, Judge Carlos T. Bea of the Ninth Circuit refused to adopt “noncitizen,” arguing that courts should adhere to the terminology used in congressional statutes. Similarly, in Khan v. Garland, Judge James C. Ho of the Fifth Circuit opposed replacing “alien” with “noncitizen,” citing the long-standing use of “alien” in legal discourse.

These disagreements highlight how, for some judges, terminology is not merely a stylistic preference—it represents a deeper policy stance.

Conclusion: Judicial Neutrality and the Power of Words

As immigration remains a deeply contentious issue in American society, the role of language in the courts deserves close scrutiny. By examining how terms like “alien” and “noncitizen” are used in judicial opinions, we can gain insights into potential biases and work toward a more equitable legal system.

Language reflects underlying ideologies. The words judges choose not only convey meaning but also carry the power to reinforce existing biases. That finding offers valuable lessons for legal advocates: understanding how courts frame language in their rulings can help advocates better tailor their arguments and strategically align their terminology to maximize the chances of securing favorable outcomes for their clients.

AILA Law Student Member Bill De La Rosa (Yale University) co-authored this piece with Zachary Neilson-Papish.

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