The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms

Starting approximately twenty years ago, and accelerating today, a clear trend has come to define modern immigration law. Sometimes dubbed "criminalization," the trend has been to import criminal justice norms into a domain built upon a theory of civil regulation. An embryonic literature chronicles this process well but fails to showcase its consciously asymmetric form. This Article argues that immigration law has been absorbing the theories, methods, perceptions, and priorities associated with criminal enforcement while explicitly rejecting the procedural ingredients of criminal adjudication.

The normative thesis is that this asymmetry has skewed both discourse and outcomes by excluding the careful consideration of the many, often competing goals of a national immigration policy. At the macro level, asymmetric incorporation has deterred policymakers from balancing law enforcement against the equally vital mission of facilitating lawful immigration. At the micro level, it has produced a deportation regime so substantively harsh and inflexible that too often the penalties are cruelly disproportionate to the transgressions. Procedurally, the preoccupation with enforcement has left noncitizens in deportation proceedings exposed to large risks of error when the personal stakes are high.

In short, asymmetric incorporation has virtually invited policymakers to abandon any sense of proportion. To permit the fullest and most productive use of our national immigration resources, this Article urges return to an immigration regime that accepts the civil regulatory model as its foundation