Why Judge John Bates Embraced 'Undocumented' Over 'Illegal' in DACA Ruling

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Judge John Bates of U.S. District Court for the District of Columbia. Credit: Diego M. Radzinschi / NLJ [/caption] A Washington federal trial judge's ruling Tuesday against the Trump administration's move to end a program that protects certain immigrants from deportation is getting a fair amount of attention for its substance and for the fact the decision was written by a Republican-appointed judge. U.S. District Judge John Bates, appointed to the bench by George W. Bush in 2001, called the termination of the program—Deferred Action for Childhood Arrivals, commonly known as DACA—unlawful. Bates, however, gave the government 90 days to figure out a new way to wind down the program. Two other federal judges issued rulings in support of DACA in recent months, and those decisions are on appeal. Bates was the first Republican-nominated judge to smack the Trump administration. But there's another element of the decision that's worth noting—the language of the court. Bates explicitly chose not to use the phrase "illegal alien" in his 60-page decision. He went with "undocumented immigrant." "Some courts, including the Supreme Court, have referred to aliens who are unlawfully present in the United States as 'illegal' instead of 'undocumented,'" Bates wrote in a footnote, which pointed to the 2015 decision in the case Texas v. United States from the U.S. Court of Appeals for the Fifth Circuit. That ruling was an appeal from a Texas judge's injunction in 2015 blocking another immigration program. The Fifth Circuit spotlighted legal writing guru Bryan Garner's 2011 dictionary on legal usage: "The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near gobbledygook," Garner wrote. In the Texas trial court, U.S. District Judge Andrew Hanen had embraced "illegal alien" because, he wrote, "it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law." Hanen cited the high court's 2012 decision in Arizona v. United States.

Supreme Court Justice Sonia Sotomayor. Credit: David Handschuh/NYLJ

Hanen did not note the Supreme Court's December 2009 ruling in Mohawk Industries Inc. v. Carpenter, which observers said was the first time "undocumented immigrant" appeared in a decision by the justices. The author of that opinion: Justice Sonia Sotomayor, who had been confirmed four months earlier. Bates, in his footnote, did mention Sotomayor's decision in weighing what language to use in his ruling against the Trump administration. "Because both terms appear in the record materials here, and because, as at least one court has noted, 'there is a certain segment of the population that finds the phrase ‘illegal alien’ offensive,' the court will use the term 'undocumented,'" Bates said. The "one court" Bates referred to: Hanen's 2015 opinion imposing a preliminary injunction against the DAPA program, or Deferred Action for Parents of Americans and Lawful Permanent Residents. Bates's ruling came in a case Jenner & Block filed on behalf of Princeton University, Microsoft Corp. and a DACA beneficiary named Maria De La Cruz. The case was combined with a similar suit filed by the NAACP against the Trump administration. Read more: Trump's Statements on Travel Ban Dominate Supreme Court Arguments Supreme Court, Rejecting Trump Petition, Lets DACA Program Continue Covington, Gibson Dunn Are Big Law's DACA Defense at Supreme Court California Judge William Alsup Writes SCOTUS to Correct Trump's DOJ