Noncitizens’ Remedies Lost?: Accountability for Overreaching in Immigration Enforcement
Florida International University Law Review, Vol. 6, p. 319, 2011
25 Pages Posted: 9 Sep 2011 Last revised: 25 Sep 2015
Date Written: September 8, 2011
Remedies for government overreaching in immigration cases have always embodied a dilemma. On the one hand, the government sometimes acts excessively, failing to provide appropriate procedural safeguards, using excessive force, or detaining non-citizens under poor conditions. On the other hand, since the government has legitimate concerns about both immigration violations and the threat of terrorism, overly expansive remedies may chill government efforts and leave the nation vulnerable. Courts sometimes react to this dilemma with what I call the specificity two-step, narrowly construing a term or test when that serves government interests but pivoting to a broader construction when a narrower approach would hold government accountable. The specificity two-step produces undue deference. This paper suggests a sliding scale approach that curbs short-sighted officials while minimizing litigation’s chilling effect.
Suggested Citation: Suggested Citation