Revision:

Upon further analysis, and in light of this article’s advocacy for the use of “unlawfully present”, the use of the word “undocumented” can be considered more accurate than “illegal.”

Undocumented’s umbrella covers all those who are unlawfully present in the United States and who have no lawful status. Those who are lawfully present with no lawful status, on the other hand, fall outside of its description.

For example, Deferred Action recipients will get an employment authorization document which in turn enables them to obtain a social security number and, in most states, a driver’s license. Therefore, they are no longer undocumented nor “illegal.”

End Revision.

This is not to advocate the use of Undocumented. Rather, it is to inform the journalism world that the use of the word “illegal” is woefully inaccurate in describing unlawfully present immigrants in the United States.

The far more accurate and inclusive term is unlawfully present.

The justification proffered by Julia Preston in using “illegal immigrant” shows that journalists nationwide refuse to conduct due diligence when using the term illegal immigrant

The New York Time’s immigration reporter, Ms. Preston, recently revealed why she thinks “illegal” should continue to be used to describe certain immigrants.

While she admits that the New York Times should allow for more flexibility, she insists that illegal immigrant is justified in some instances.

But we should use the term at times – it is accurate. It is a violation of law for a foreign-born person to be present without legal status.” In many cases, she noted, that is a civil violation – for example, if a person has overstayed his or her visa. However, she said, “If you cross the border without inspection, that’s a crime – a federal misdemeanor.”

It is not clear whether Ms. Preston and others use illegal immigrant to describe past actions or the present. Either way, the justification for both the past and the present reveals gaping holes in accuracy.

DEFERRED ACTION INDIVIDUALS WERE BROUGHT TO THE UNITED STATES AS MINORS AND THEREFORE DID NOT COMMIT THE CRIME OF CROSSING THE BORDER WITHOUT INSPECTION (8 USC 1325)

Individuals under the age of 18 cannot be charged with the federal misdemeanor of entry without inspections (18 USC 5031.)

In fact, most under-18 entrants could not even be charged as juveniles because in order to commit the crime, an individual must “enters or attempts to enter the United States at any time or place other than as designated by immigration officers…”

Minors are brought to the United States; they do not make an affirmative entrance. Built within a criminal statute such as entry without inspection, there is a mens rea requirement. Minors do not have the requisite intentional mens rea to violate 8 USC 1325.

An example is in order to illuminate my point:

If Hugo Chavez was kidnapped by the Yankee baseball team and subsequently brought into the United States without inspection against his will, he would not be responsible for the crime of entry without inspection.

For immigration consequences, yes, but that is a totally different issue and has nothing to do with Ms. Preston’s justification of using illegal immigrant due to the commission of a federal misdemeanor.



As such, the use of illegal immigrant to describe unlawfully present immigrants in the United States because they violated a federal misdemeanor cannot be used to describe any deferred action eligible individuals. It is wrong as a matter of law and fact.

Following the logic of focusing on the past actions of individuals to describe their current situation, one can reach wild conclusions (as pointed out by the estimable Loveday Mallamo). There are many individuals who have committed the federal crime of entry without inspection who later became naturalized citizens of the United States.

According to Preston’s justification, it is still accurate to describe these U.S. citizens as illegal immigrants because they committed a federal misdemeanor in the past. The commission of the crime never goes away. Once a convicted felon, always a convicted felon.

ILLEGAL IMMIGRANT EXCLUDES HUNDREDS OF THOUSANDS WHO ARE LAWFULLY PRESENT IN THE UNITED STATES BUT DO NOT HAVE LAWFUL STATUS

It is true that it is a violation of the law for certain foreign born persons to be present in the United States without legal status. However, the word illegal immigrant does not accurately describe hundreds of thousands of persons who do not have lawful status but are lawfully present in the United States and therefore not actually violating any law in the present tense.

The moment that a person is granted deferred action they convert from unlawfully present to lawfully present. The United States Federal Government is aware of their presence but has chosen to allow this person to remain in the United States. Legally, they are “lawfully present.” This explains why the Obama administration went out of its way to create a new regulation to exclude DACA recipients from Medicaid benefits because according to current law immigrants who are “lawfully present” in the United States are eligible to apply for Medicaid.

Often times, there are wild accusations that “illegal immigrants” are receiving medicaid, welfare, food stamps, etc. If a journalist was writing on these allegations, their use of the term illegal immigrant in itself corrupts the article beyond repair.

Why? Because immigrants with no lawful status but with lawful presence are in fact eligible for Medicaid. Virtually no unlawfully present immigrants are eligible for medicaid.

Another example of how illegal immigrant fails is when it is used to describe those who are currently defending their deportations in immigration court.

All of the immigrants in immigration court (excluding permanent residents) are in a legal limbo. They are, for the most part, lawfully present but do not have lawful status. Some will prevail in their defense and obtain permanent residency. Others will be granted permanent permission to remain in the United States but will still not have lawful status, such as those who are granted non discretionary withholding of removal.

What is clear is that as long as the Government is aware of an immigrant’s presence and consents to their presence they cannot accurately be described as illegal immigrants, unless one insists on focusing on the past, which would include the necessity of describing many U.S. citizens as illegal immigrants.

Given the above Ms. Preston, the New York Times, Ruben Navarrette, and others have no other choice but to drop illegal immigrant because it is simply a poor descriptor of the subject they are writing on–unlawfully present immigrants

Legally and as a matter of common sense, “unlawfully present” is indisputably more accurate than “Illegal” to describe the multitude of immigrants that call the United States their home yet do not have lawful status.

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