Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings

Abstract

This article argues that the Supreme Court's designation of immigration removal proceedings as civil, rather than criminal, and the body of scholarship critiquing that civil designation both suffer from a common fatal flaw. Both treat immigration removal proceedings as a monolith, a single entity. In fact, packed within the term "immigration removal proceedings" are two distinct entities, "expulsion proceedings" and "exclusion proceedings," which each require independent analysis to ascertain their civil or criminal nature. Expulsion proceedings, as I define them, involve the decision whether to cast out a noncitizen whom the United States has previously invited into the national community as a lawful permanent resident. Exclusion proceedings, in contrast, involve the decision whether to admit a noncitizen into the physical territory of the United States and/or into the American political community. By bifurcating the analysis of immigration removal into independent analyses of expulsion and exclusion proceedings we are able to resolve otherwise contradictory guidance from both doctrine and history. A detailed analysis of the historical treatment of expulsion and exclusion proceedings and application of the modern Supreme Court jurisprudence delineating the civil-criminal divide provide compelling evidence that exclusion proceedings are civil but that expulsion can only be imposed as a criminal punishment. The redesignation of expulsion proceedings as criminal would represent a sea change in the conception of immigration removal proceedings; however, this article will demonstrate that criminal protections can be applied in expulsion proceedings without fundamentally undermining the government's interest in those proceedings.

Keywords: immigration, civil, criminal, procedure, deport, deportation, immigrant, exclusion, removal, expulsion, constitutional law, legal history

JEL Classification: K41, K42