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

I. IntroductionThere is an embryonic literature on the growing convergence of two critical regulatory regimes-criminal justice and immigration control.1 As discussed below,2 the two systems intersect at multiple points: Violations of the immigration laws trigger broader, harsher, and more frequent criminal consequences. Indeed, it is no longer rare for refugees seeking asylum to be criminally prosecuted for illegal entry. Conversely, Congress has steadily expanded the list of non-immigration-related crimes that trigger deportation and other adverse immigration consequences, and the sheer numbers of deportations on crime-related grounds have skyrocketed. The underlying theories of deportation increasingly resemble those of criminal punishment. Preventive detention and plea bargaining, longstanding staples of the criminal justice system, have infiltrated the deportation process. Some of the same government actors, including federal sentencing judges and state and local police, are now frequently called upon to perform both criminal and immigration functions simultaneously. Public perceptions of criminals and foreigners have become ever more intertwined. Apprehension and removal of those who violate the immigration laws command increasing priority over programs for the lawful admission of immigrants. And the transfer of immigration functions from the Department of Justice to the Department of Homeland security has changed the politics of immigration in ways that reward officials for prioritizing criminal and other enforcement goals.The trend to import the criminal justice model into the domain of immigration law is unmistakable; it has begun to displace what I shall call the civil regulatory model of immigration law. At first blush, one might expect these trends to be a boon to immigrants, particularly those placed in deportation (now called "removal")3 proceedings. After all, the criminal justice system operates under stringent constitutional and sub-constitutional constraints familiar to all who have taken courses in criminal procedure.For more than a century, however, the courts have uniformly insisted that deportation is not punishment and that, therefore, the criminal procedural safeguards do not apply in deportation proceedings.4 Those and similar principles remain untouched by the gradual importation of criminal justice norms into immigration law. As a result, the criminal justice model has had no discernible benefits for immigrants. It has, however, had some harmful effects, not just on immigrants but on native-born Americans as well.The new literature on convergence chronicles well some of the ways in which the criminal justice model has taken hold in immigration law. But it falls short, I would argue, in failing to showcase the selective, asymmetric nature of this importation process. A pattern has emerged: Those features of the criminal justice model that can roughly be classified as enforcement have indeed been imported. Those that relate to adjudication-in particular, the bundle of procedural rights recognized in criminal cases-have been consciously rejected. Rather than speak of importation of the cnmaial justice model, then, a more fitting observation would be that immigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement model while rejecting the criminal adjudication model in favor of a civil regulatory regime.To the immigrant, of course, this state of affairs is the worst of both worlds. Is it more broadly desirable nonetheless? This Article argues that it is not. From a procedural standpoint, this asymmetry leaves policymakers with little political appetite for allowing adjudicative fairness and accuracy to temper cost and efficiency concerns. From a substantive standpoint, it leaves them little incentive to balance the government interests in deterring and incapacitating immigration offenders against either the interests of the immigrants themselves or the interests of the U. …