Monday, September 30, 2019
Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure has far-reaching hidden costs. Scholars have recognized some of these costs, such as the exploitation of undocumented noncitizens. Yet the full cost of this enforcement structure goes deeper. Beyond enabling exploitative actors, it leaves little room for good faith actors to incentivize socially valuable behavior. In its impact, immigration enforcement bears unappreciated structural similarities to certain low-level criminal law enforcement techniques, where a large population is likewise subject to ubiquitous monitoring by public and private actors alike. As important criminal law and sociological literature shows, this enforcement structure can carry far-reaching costs for society at large. It can create system avoidance (where the regulated population avoids contact with key legal institutions) and law enforcement tradeoffs (where efforts to enforce one law result in underenforcement of other laws). This Article applies structural insights from low-level criminal law enforcement to immigration enforcement to assess the costs of monitoring an undocumented population long-term. It calls for restructuring immigration enforcement to consider the full impact of interior enforcement in light of those who remain present in the United States.