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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, August 06, 2015

Should I Use the Term “Illegal Immigrant”?

New Yorker (Opinion)
By Jeffrey Toobin
August 5, 2015

I wrote an article for The New Yorker last month about immigration policy, focussing in particular on a family in Columbus, Ohio. The mother and father had crossed the border illegally from Mexico, and in the article I referred to them on several occasions as “illegal immigrants.” Several readers chided me for using the term “illegal immigrant,” which they felt was pejorative and inaccurate. Increasingly, these readers are not alone in holding this view. (The family did not express any preference on the terms that I should use to describe its status.) Should I have used the term?

The New Yorker does not have a formal policy on the use of “illegal immigrant.” Still, if I can reconstruct my thought process, I think I considered three points, which apply broadly to the use of any controversial word or phrase.

1. Is it accurate? As I discussed in the piece, both adults made knowing and voluntary decisions to violate the law when they crossed from Mexico to the United States. The article was about the implications of this illegal border crossing—for them and approximately eleven million others. Opponents of the term dispute its accuracy. According to Felix Salmon, in Fusion, “People who speed aren’t ‘illegal drivers,’ nor are people who fall behind on their taxes ‘illegal filers.’ ” Salmon may be overstating that, but he is right about what we understand when we hear the word “illegal” alone: “The use of the term ‘illegal’ to refer to a person is a usage which is confined to exactly one group of people: Migrants. As a result, ‘illegal,’ when used as a noun, always means immigrants—people whose only crime is the victimless pursuit of liberty and prosperity.” (Salmon’s article also has an interesting summary of which news organizations use the term and which don’t. For example, the Associated Press, NBC, and ABC ban “illegal immigrant”; they generally recommend “undocumented” instead, although the A.P. prefers “living in the country without legal permission.”  The Wall Street Journal and Reuters prefer “illegal immigrant.” The Times and CBS, like The New Yorker, use various formulations.)

I see two issues here—an easy one and a hard one. It’s clearly wrong to call someone “an illegal,” which I did not do. A person, as a person, shouldn’t be illegal. (In a similar vein, there has been a movement to refer to “enslaved persons” rather than “slaves.”)

I think the use of the term “illegal immigrant” is a more difficult call. For starters, I’m not persuaded that “illegal” is inaccurate. It’s true that many immigration offenses are civil rather than criminal, but violations of civil law are often “illegal.” The Securities and Exchange Commission brings civil cases to punish insider trading and other offenses, and it’s still accurate to say that insider trading is illegal. It’s even common to discuss driving errors (which are clearly non-criminal violations) as illegal—an illegal turn, for example.

Salmon, and most others who abjure “illegal” immigrant, prefer to use the adjective “undocumented,” which I also used several times in my article. The term is clearly accurate, but also incomplete. The problem of the family in my piece is not simply that it lacks a document, like an American who, say, is kept from voting because he or she lacks a driver’s license or other photo I.D. The problem is that the law currently forbids the family from living in the United States. The family is not authorized to be here, which is different, I think, from simply needing a piece of paper.

2. Does the term interfere with or advance the story? The point of my article was to show the human cost of the lengthy political standoff over immigration policy. I wanted readers to focus on the people and issues, not on my use of one term or another. It’s no secret, of course, that the use of language has political implications. But my effort was to try to mute the political content of the language as much as possible, and I thought that the straightforward (and accurate, in my view) use of the familiar term “illegal immigrant” would not call attention to itself.

3. What do people prefer to be called? This is, of course, a subjective category, because people often have differences of opinion about what they want to be called. Still, certain conventions become obligatory over time. “Negro” gave way to “black” and “African-American.” “Ms.” became universal. The question, then, is whether “illegal immigrant” has become so widely regarded as pejorative that it should be excluded from civilized discourse. When I wrote my article, I thought it had not; I now think that I may have been wrong. Indeed, the term may have become so toxic that it violates my second principle—by calling attention to itself.

An erudite friend, Michael O’Hare, a professor of public policy at Berkeley, pointed out that there are apt terms in French—sans papiers, and situation irrégulière—but I write in English. If we were being technical, it may be more accurate to describe these individuals’ status as “unauthorized” rather than undocumented or illegal. In the end, though, I think my third category is dispositive. There does seem to be a consensus against the use of the term by the people most affected by it, who happen to be a vulnerable minority seeking a better life, and that’s good enough for me. Personally, I’m dropping the use of the term “illegal immigrant.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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