Excerpted From: Pedro Gerson, Punitive Legal Immigration, 112 Kentucky Law Journal 331 (2023-2024) (288 Footnotes) (Full Document)

PedroGersonMy wife and I have resided legally in the United States for the last six years. Throughout that entire time, my wife has been unable to obtain gainful employment because her visa status prohibits her from doing so. Also, during the past six years, both of us have gone through spells of time where we cannot leave the country. If we did, we would be unable to legally re-enter on our current visas, which would lead to me losing my job. At the time of writing, we have been unable to travel to visit family members for twelve months (and counting). All of this has been the normal, and some would say, the natural, part of the legal immigration process.

As far as legal immigration burdens go, what my wife and I have experienced (and are experiencing) is relatively minor and incredibly common. It is, in fact, just one example of the numerous consequences of onerous--and perhaps nonsensical--rules and regulations that plague the American legal immigration system. There are stories of professionals who cannot work, individuals who miss out on weddings or funerals of their loved ones, and thousands of dollars and hours wasted in procuring temporary employment and travel permits over the years. Although paling in comparison to the suffering of irregular or undocumented migration, the legal immigration system causes and tolerates a myriad of human tragedies that unfold in the face of an ossified and uncooperative bureaucracy.

Over 100,000 lawful migrants who arrived as children and grew up in the country face returning to their countries of origin because they do not qualify for any type of status, leading them to be separated from their family members who can legally stay in the country. Others, who have migrated permanently can, in theory, sponsor their relatives to join them. Those family members, however, will be unable to realize their dreams because, in spite of having approved immigration petitions for their relatives, the case backlog and wait times for citizens of certain countries are so severe. Another at-risk group is beneficiaries of “temporary” immigration programs that have gone on for over two decades, leading people to establish livelihoods in the U.S. that could be destroyed at the whim of any administration.

As will be explored more fully in Section II, documented immigrants face restrictions or prohibitions on employment, travel, and study, as well as potential family separation, duplicative and increasing filing fees, unconscionable delays in acquiring status, and perennial lesser rights than full citizenship (even if citizenship is granted). While not all documented immigrants face all of these harms, an immigrant's exposure to them is not premised on any wrongdoing by that person whatsoever. Rather, these restrictions, prohibitions, costs, delays, and risks exist for completely law-abiding immigrants. For this reason, I call them “the collateral consequences of legal immigration.”

Once the collateral consequences become visible, the next question is how do we account for them theoretically. One possibility is that they are simply administrative burdens. In this framing, collateral consequences are akin to the difficulty of many Americans in dealing with the Social Security Administration to receive welfare benefits. While there are collateral consequences, such as application fees, that fit such a comparison, other collateral consequences interfere with much more fundamental interests that designating them as mere burdens is woefully inadequate. Moreover, the administrative burdens of complying with immigration law are what many times cause these collateral consequences.

Another view is that collateral consequences are nothing but disincentives, or perhaps more conceptually useful: Pigouvian taxes of immigration. After all, restrictions, quotas, and delays may simply be costs crafted by the legislature to internalize the social cost of migration to disincentivize would-be migrants and keep migration rates down. As explored in Part III, however, there are a number of conceptual as well as positive complications with this view. Namely, to the extent there is a social cost of migrating, can any individual migrant ever actually bear it in any way? Furthermore, the ever-increasing demand for U.S. visas shows that legal status has an inelastic demand. If a policy measure designed as a tax does not produce any of the outcomes associated with a tax, can we nonetheless describe it as a tax?

Finally, the collateral consequences of legal immigration can be conceptualized as punishment. Of course, under current precedent, U.S. courts will not recognize legal immigration's collateral consequences as punishment. After all, while courts continue to explore whether certain types of criminal collateral consequences can be conceived as punishment, it is undeniable that most of them have been deemed not to be. Nevertheless, as scholars have argued in other contexts, ill-fitting formalistic legal conceptualizations can and should be discarded for framings that more accurately describe people's lived experiences and thereby serve to highlight the need for change. Because the many collateral consequences of legal immigration are deprivations of fundamental liberties, people experience them as fundamentally punitive, so they should be conceptualized in that way. The discussion of what collateral consequences are is relevant both theoretically and practically. Starting with the latter, an accurate characterization of immigration's collateral consequences will better highlight what current policy is doing and force policymakers to confront whether, normatively, this is the immigration system they want.

Theoretically, this discussion fits within the context of the crimmigration literature at large. Over the past decade and a half, legal scholars have explored the many ways in which the criminal and immigration legal systems have begun (or continued) to intertwine and overlap. Crimmigration analyzes this overlap from both the criminal and the immigration sides. In particular, crimmigration scholars have focused on the punitive features of the immigration system. The most salient example is immigration detention, which is virtually indistinguishable from criminal incarceration. Scholars have also pointed out the rise in the types of crimes that have immigration consequences, the growth in the criminalization of migration, and the use of traditional police enforcement tactics for border control.

This scholarship has largely ignored legal immigration. This makes sense when we consider that undocumented immigrants suffer the most punitive laws and enforcement. After all, undocumented individuals make up the majority of detainees, deportees, face fewer protections if they do become criminalized by the state, and can be prosecuted for more federal immigration crimes. Moreover, undocumented immigrants are also subject to criminalization at the hands of state law enforcement agencies. In other words, crimmigration scholars have rightly focused on the undocumented population. This paper builds on that crimmigration literature by showing that the immigration system's punitiveness is not bounded by legal status.

This Article is organized as follows. Section I provides a brief sketch of the legal paths to migration. What counts as a path to legal immigration, however, is complicated; therefore, I made choices of including and excluding paths based on how discretionary or contingent they were. This Section also divides the legal immigration paths into categories, which will help in the following section in explaining which kind of migrant is most at risk of facing collateral consequences. Section II describes the collateral consequences of immigration and explains what gives rise to them. Section III explores three analytical frameworks to understand the collateral consequence of legal immigration: administrative burdens, Pigouvian taxation, and punitiveness. Section IV proposes solutions that can lessen the scale of these consequences, many of which can be achieved through administrative processes rather than legislation. Given the difficulty of achieving the latter, reformers should focus on the ability of administrative agencies to improve the lives of migrants.

[. . .]

The harms borne by legal immigrant through the collateral consequences of legal immigration pale in comparison to those borne by undocumented migrants as well as people who do not currently fit into the narrow categories that allow people to migrate caused by restrictive and punitive immigration policies. Just because the state imposes more pain on some, however, does not mean we should tolerate pain on others.

This argument is not based on the notion of legality. I do not want to focus on the idea that normatively the state owes more to legal immigrants because they followed the law in getting to the U.S. As many have argued, this centering “illegal” versus “legal” immigrants serves to reify racist tropes and serves to otherize and alienate human beings. Rather, the argument presented here was to highlight a problem that certain people face, why they face it, and what can be done to fix it.

Normatively, my only claim is that the problem should be fixed. First, it should be fixed because it can be and second because the collateral consequences are both real and unnecessary. An immigration system that leads to individuals missing weddings and funerals of their loved ones, or periods of prolonged unemployment, that traps people in potentially inefficient jobs, constrains entrepreneurship to the ultra-wealthy and separates young adults from their families is nothing but dysfunctional. Moreover, it serves no legitimate government interest and is therefore indefensible from any other perspective than anti-immigrant restrictionism. In short, the reality is that legal immigration policies are an insult to the idea that the U.S. is a nation of immigrants.