Noncitizens’ Remedies Lost?: Accountability for Overreaching in Immigration Enforcement

Florida International University Law Review, Vol. 6, p. 319, 2011

Roger Williams Univ. Legal Studies Paper No. 111

25 Pages Posted: 9 Sep 2011 Last revised: 25 Sep 2015

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: September 8, 2011

Abstract

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

Margulies, Peter, Noncitizens’ Remedies Lost?: Accountability for Overreaching in Immigration Enforcement (September 8, 2011). Florida International University Law Review, Vol. 6, p. 319, 2011, Roger Williams Univ. Legal Studies Paper No. 111, Available at SSRN: https://ssrn.com/abstract=1924426

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

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Bristol, RI 02809
United States

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