Monday, October 28, 2013
Abstract: What role should mercy play in immigration law? This essay draws on the robust debate in the criminal law about the role of mercy in the hopes of starting a conversation among immigration law scholars and practitioners. Mercy skeptics argue that mercy contravenes justice, while advocates argue that mercy is a necessary countermeasure to the unrelenting harshness of criminal law today. I argue that the problems of mercy in the criminal law are amplified in the immigration law context. The lack of procedural and substantive protections for immigrants, the acceptance of unfettered discretion and lack of oversight of agency action, and the political subordination of noncitizens all push in the same direction — towards sovereign mercy rather than equitable justice. Sovereign mercy can have laudable effects, as when it encourages the creation of humanitarian programs of immigrant admission. But it can also have harmful effects, departing from important rule of law norms and placing recipients outside the law rather within its protections. I do not seek to resolve these contradictions but rather to draw our attention to them and to encourage scholars and practitioners to look critically at the role of mercy in the regulation of migration.