I will continue to use "undocumented." (Note to the AP: Residency is not the issue. The issue is whether one's presence in the U.S. is authorized.)
Having the proper documents is what distinguishes a person whose presence is authorized from a person whose presence is unauthorized. It is a requirement for immigrants, their visiting relatives, and for non-immigrant visitors, such as tourists, temporary workers, and students. Proper documentation is the common denominator.
An undocumented person simply means a person who is present in the U.S. without proper authorization for his or her particular circumstances. Unauthorized presence is not a crime.
Many undocumented persons enter the country lawfully and overstay their visa. Overstaying a visa is also not a crime. It carries civil consequences with respect to one's ability to obtain future visas or a green card, and it can result in one being physically removed from the country, but it is not a crime.
Up to 40% of those whose presence in the U.S. is unauthorized entered the country lawfully. Many simply overstayed their visas. While this can result in one becoming out of status, which may make their presence unauthorized, there are also ways to cure being out of status so one’s presence does not become unauthorized. Neither overstaying one's visa, being out of status or unauthorized presence is a crime.
While overstaying one’s visa or being out of status can result in physical removal from the U.s., an order of removal is not reflective of criminal activity because removal proceedings are civil, not criminal.
Nor is it a crime to fail to depart the U.S. after an order of removal has been entered. Failure to depart following a removal order is also a civil matter.
What is a crime? Entering the U.S. illegally. A first offense is a misdemeanor carrying up to six months in jail and civil penalties. the offense applies to one who:
- enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
- eludes examination or inspection by immigration officers, or
- attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.
Another crime is illegal re-entry after deportation, which has more substantial penalties.
For the 40% of the undocumented population who entered the U.S. lawfully, their presence here, while it may be unauthorized, is not illegal. The notion that they are “illegal” or have committed a crime is simply inaccurate.
Another term used for an undocumented person is "unauthorized alien." But the term alien comes from the Immigration and Naturalization Act and may not be applicable to mere visitors who obtain non-immigrant visas rather than immigrant visas or green cards. So not every person whose presence is unauthorized is an immigrant or alien. More examples here and here.
It seems to me the most inclusive descriptor for those whose presence is unauthorized is “undocumented person,” because the determining factor as to whether their presence is unauthorized is the documentation required for their individual circumstances. They may or may not be “aliens” or immigrants.
Here is a Congressional Research Report on "Unauthorized Aliens" dated February, 2013.
Regardless, the principal point is that unauthorized presence is a status, not a crime. There is no such thing as an illegal person. No human being is illegal. I’m glad the AP has decided to recognize this. It’s time other media outlets did too.
I stopped linking to articles using the word “illegal” in describing a person years ago and urge others do the same. For every news item on immigration, there are ten publications reporting it. Link to one who uses an acceptable rather than deprecated term in their coverage.
