Fitting Punishment

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration Law relies on one sanctiondeportation- as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration Law stands alone in the legal landscape in this respect. Criminal Law incorporates proportionality when imposing graduated punishment based on the gravity of the offense; contract and tort Law provide for damages that are graduated based on the harm to others or to society. This Article represents the first and fundamental step in a larger project of articulating a proposed remedial scheme that would align immigration Law with the broader landscape of legal sanctions. It traces the history of immigrations anctions, offering a historicalp erspective on the recent arrivalo f deportation as the central immigration sanction. The Article takes a fresh approach to remedying violations of immigration Law, proposing a system of graduated sanctions that would align immigration remedies with the overarching goals of U.S. immigration Law

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society. Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation. This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty. This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society. Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation. This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty. The article begins with a dystopia, narrating a future in which criminal and immigration law have completely merged, and membership theory has resulted in extreme divisions in our society between insiders and outsiders – between the included and the alienated. The rest of the article describes the seeds of that future in the past and present. Part II describes the present confluence of immigration and criminal law. Part III sets out the role of membership theory in those areas in excluding noncitizens and ex-offenders from society. It details the role of sovereign power in drawing and enforcing those lines of exclusion. The article concludes by describing the potential consequences of the convergence of these two areas and the use of membership theory to justify decisions to exclude

D(e)volving Discretion: Lessons from the Life and Times of Secure Communities

The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program\u27s downfall. Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion. This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program. It then spotlights a little-noticed attribute of the PEP-one that addresses head-on Secure Communities\u27 devolution of enforcement discretion to the lowest level. PEP attempts to recapture ftderal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials. This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground

Speaking a New Language : Immigration and Civil Rights in a Global Economy

Migrations of worker’s currents across state borders confront nations with conflict relations to questions on cultural and economic status of the population at growing demands for work. In the United States of America the law on immigration- the fundamental instrument of the government for the control of borders of its country offered the answer. In defence before non-documented immigrations the government of the USA adopted a series of laws and put into force new strategies to control the effects of immigration on domestic market of labour force. But those strategies, which are to the protect the labour market, can cause disadvantageous consequences on it when not considering the civil legal rights of individuals within the same labour market. Those strategies can as well affect the individual outside labour force market in an unpredictable and negative way. The text thus analyses the interacting influences of the immigration and legal civil rights, and the consequences of that relation on the labour market, in both ways. Firstly, we are opening the question of the role of civil rights of individuals in the reformation of the immigration law (Act of 1986), which interdicted the employers to employ people to whom the state does grant the right to employ themselves. Attention is also directed on analysing the situation of victims of non-documented “transport of people” and of the law Violence Protection Act of 2000

Understanding Sanctuary Cities

In the wake of President Trump’s election, a growing number of local jurisdictions around the country have sought to disentangle their criminal justice apparatus from federal immigration enforcement efforts. These localities have embraced a series of reforms that attempt to ensure immigrants are not deported when they come into contact with the criminal justice system. The Trump administration has labeled these jurisdictions “sanctuary cities” and vowed to “end” them by, among other things, attempting to cut off their federal funding. This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and its campaign to “crack down” on sanctuary cities. We then outline the diverse ways in which localities have sought to protect their residents by refusing to participate in the Trump immigration agenda. Such initiatives include declining to honor immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications that local jurisdictions have advanced. Our examination reveals important insights for how sanctuary cities are understood and preserved in the age of Trump