Sheldon Evans (Washington University in St. Louis, School of Law) has posted Deportation Deficiencies and Membership Guidelines on SSRN. Here is the abstract:
The power to remove noncitizens from the country is a defining characteristic of our immigration system that is fraught with theoretically and practically inconsistencies. Hundreds of thousands of legal residents and undocumented people are deported every year, which imposes tremendous costs on entire communities while challenging American ideals of fair treatment and accountability. Specifically, the legal decisions to deport a noncitizen are plagued with disproportionate outcomes and wide disparities. These problems have exacerbated the mass deportation crisis of the modern era in ways that delegitimize the deportation system and question the purposes of immigration law as a foundation of nation building.
Building on existing theories that immigration functions as a body of law that governs national membership, this Article argues that our deportation system falls far short of this purpose. Problems of disproportionality, unfettered discretion, and nonuniformity across multiple states are systemic legal failures to properly define who is a member in the American community. This Article further theorizes how to measure membership more effectively through the types of proxies that immigration law respects and that social communities rally around in an effort to dismantle the mass deportation system by bringing the law back in line with the community values it was meant to support.
This Article intervenes with a novel proposal to develop Membership Guidelines that propose a clear strategy to mitigate the systemic arbitrariness and abuses of the deportation system. This thought project that highlights the values of national membership considers proxies of time, space, and severity while also considering administrative advantages of rebooting the deportation system through institutional design.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum