Immigration Article of the Day: Punitive Legal Immigration by Pedro Gerson

Punitive Legal Immigration by Pedro Gerson, Kentucky Law Journal, Forthcoming

Abstract

The American immigration system is plagued with rules and regulations that deeply interfere with migrants’ lives and freedoms. Depending on their status, people that migrate lawfully may face restrictions or prohibitions on employment, travel, and even family separation. Moreover, certain kinds of legal immigrants may never acquire the entire bundle of rights of citizens even if they eventually attain citizenship. These are what I call the collateral consequences of legal immigration.

Much like in the criminal contexts, these collateral consequences have tremendous effects on the lives of those bearing them as well as their communities and the economy at large. Academic literature on immigration has largely ignored these costs. However, the collateral consequences of immigration affect such fundamental interests that it is time for a reassessment.

This paper is the first one to describe the collateral consequences of legal immigration and what gives rise to them. It then explores whether they should be conceived as administrative burdens, Pigouvian taxes, or punishment. This paper concludes that collateral consequences are best understood as punishment because neither the tax nor the burden framework accurately capture what these costs do nor how they are experienced. This theoretical discussion serves to establish the normative need to eliminate the collateral consequences of legal immigration. The paper concludes with some regulatory and legislative fixes to achieve this goal.

KJ