Immigration Law's Arbitrariness Problem

Abstract

Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative closure, orders of supervision, and deferred action, agency bureaucrats decide whom to deport and who stays, and on what terms, on a purely ad hoc basis. In this so-called shadow system, immigrants, their advocates, and the broader public lack basic information about what penalties are being imposed and why.

This Article argues for reframing the problem of immigration law’s disproportionality as a problem of insufficient justification, one remediable only by building the infrastructure for reason-giving in the immigration bureaucracy. Deportation strikes many as disproportionate because the government often lacks satisfactory reasons for imposing such a drastic penalty. But in the system of shadow sanctions today, the government not only fails to offer good reasons: it fails to offer any at all. As a result, the system of shadow sanctions represents a classic case of an arbitrary exercise of government power. Looking to examples of procedural innovation across the administrative state, this Article backs prudential reforms to create immigration law’s missing reason-giving infrastructure. With it in place, the public can demand better reasons, or proportionality. But the first step is addressing immigration law’s arbitrariness problem.

Keywords: deportation, immigration enforcement, discretion, graduated sanctions, proportionality, arbitrariness, reasoned administration

JEL Classification: K37, K23, K42