Abstract

Excerpted From: Stephen Lee, Administrative Violence in Immigration Law, 66 Arizona Law Review 739 (Fall, 2024) (236 Footnotes) (Full Document)

For years, legal scholars have documented the brutalizing harms stemming from apprehension, detention, and deportation policies. This scholarship has made important contributions by highlighting the immigration system's cruelty and its essential unfairness. Recently, a small but growing number of scholars have tried to shift this conversation towards a more pointed set of concerns. These scholars have reframed debates about harms noncitizens experience in the immigration system in terms of whether and how agencies commit violence in the regulation of migrants. A slight but significant change in approach, this body of work squarely poses questions about accountability, legitimacy, and rationality--reflecting on what role administrative law doctrines and norms play in fostering morally troubling outcomes for migrants. Reframing harms that happen to noncitizens in terms of agencies exacting violence helps stop the political project of normalizing subordination and degradation of migrant communities. Most accounts of violence in the immigration system focus on enforcement policies that use or threaten force. Such examples include aggressive and sometimes lethal attempts to apprehend migrants, the abusive and negligent treatment of migrants in detention, as well as the deportation of noncitizens. Our legal system accepts that some degree of force is necessary and therefore legitimate. Only illegitimate acts of force--unnecessary, excessive, or cruel--carry the weight and the consequences of the label “violent.” As critics point out, the problem is that so many instances of the use of force have been legitimated that the law has made violence disappear at least when exercised by state actors like the police. Critics of violence in the immigration system make similar arguments.

This Article contributes to this conversation by advancing a theory of administrative violence. I am less focused on (though no less concerned by) the kinds of agency actions that might be characterized as violence, and instead more interested in the universe of immigration agencies that help prop up and support the worst acts of violence. In mobilizing against immigration agencies, advocates understandably scrutinize and pressure front-line actors like Border Patrol agents, who pursue migrants attempting to cross into the United States, or Immigration and Customs Enforcement (“ICE”) officers, who apprehend, detain, and deport legally vulnerable migrants. Cruel, demeaning, and objectionable in the eyes of advocates and of many in the public--these actions embody or implicate what I call forms of direct violence, which involve agencies using or threatening force for the purposes of physically harming or immobilizing migrants. By contrast, administrative violence describes tasks performed by agencies operating in adjacent institutional settings. Agencies like Citizenship and Immigration Services (“USCIS”) and the State Department and, to a certain extent, administrative actors like political appointees across different agencies do not directly oversee the process of detaining and removing noncitizens. For this reason, it is easy to conceptualize their authority as operating outside of the regulatory domain of violence. If anything, these institutional actors are thought of as pursuing an inclusive regulatory agenda through the adjudication of benefits that provide relief or assurance against removal. Adjudicated on a case-by-case basis usually through individual applications, notable examples include immigrant visas or green cards, the Deferred Action for Childhood Arrivals (“DACA”) program, cancellation of removal, and naturalization.

Developing the concept of administrative violence can help clarify the range of institutional settings implicated by agency policies grounded in the use of force. In the immigration context, agencies are often understood as carrying out enforcement duties like detention and removal or as allocating benefits like relief from removal, both temporary and permanent. Agencies like ICE and the Border Patrol are understood as most directly responsible for violence in the immigration system. But these agencies operate within a broader constellation of institutional actors that carry out different missions but draw authority from the same or similar underlying grants of power. Most notably, former Secretary of Homeland Security Janet Napolitano expressly justified and defended DACA as an exercise of prosecutorial discretion, a concept that animates much of the modern criminal legal system. And programs like cancellation of removal are squarely embedded within removal proceedings with immigration judges--aptly described by Professor Angélica Cházaro as “violence workers”--overseeing the entire process. Other actors, like consulate officers, engage with noncitizens outside of the United States where the Constitution does not apply, thereby reproducing power imbalances characteristic of the enforcement system. Agency bureaucrats reviewing applications for DACA, green cards, and citizenship, or immigration judges adjudicating applications for cancellation are often thought of as operating outside of the removal system. Therefore, these agency actors mostly avoid criticisms and the disapproval that comes with legal and political efforts to characterize enforcement policies as violent. This overly narrow understanding of violence and accountability ignores a more complicated reality, which facilitates the process by which regulatory norms shift in a more punitive direction without attracting much public scrutiny.

A part of the problem is that the benefits that agencies adjudicate emphasize the inclusive principle underlying the relief and the voluntary nature of the proceedings. Under administrative law doctrine, the discretionary nature of the benefits renders those decisions unreviewable in most instances, thereby giving agency bureaucrats the final word. Approval by an agency means relief from removal, but a denial doesn't mean that the noncitizen maintains the status quo--i.e., continuing to live in the United States without status. Instead, it can mean something much worse, like removal or exclusion from the United States. This Article's holistic treatment of agency and interagency power provides a more accurate assessment of administrative law's domain of violence, which in turn can help the public resist the normalization of punitive governance strategies.

Part I of this Article provides a basic definition of administrative violence. Specifically, it distinguishes administrative forms of violence from the more familiar forms of direct violence. Part II illustrates how administrative violence operates within the immigration system. Here, I focus on immigration benefits programs that ostensibly advance inclusive regulatory goals meant to protect migrants against detention and removal. Compared to removal proceedings, the procedures governing these types of agency adjudications provide fewer procedural protections, thus raising the risk of denials on the basis of agency mistakes executed with little transparency and without judicial review. And because the consequences of a denial can often mean deportation, agency denials present the paradigmatic concern at the heart of the concept of violence: the illegitimate use of force by an agency actor. To illustrate how administrative violence operates in practice, Part III focuses on a few real-life examples. Part IV considers how the concept of administrative violence might help advance discussions about violence in immigration law. This is an important conversation that is still in its early stages and currently remains fixated on the use of force. I then conclude.

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In this Article, I have drawn attention to the administration of immigration benefits--the process that governs them, the human costs at stake, and the elements that inform the range of possible outcomes. At its heart, this Article focuses on the process by which migrants become visible to agency officials--to the state itself. Although the concepts of attachment, papers, and risk management seem neutral and self-evident--not touching upon broader elements of the immigration system that seek to punish migrants--as I have tried to show, the immigration benefits system implicates and reveals the reach of a punitive system. Moreover, while these benefits programs have undoubtedly provided relief to discrete classes of individuals, they do not address structural elements of the immigration system and, in some ways, obscure them. Using the example of immigration benefits programs can help sharpen understandings of how harm from the most obvious exercises of force-- apprehension, detention, and removal--radiate outwards and unsettle many parts of the administrative state. It also can help shape a growing interest in legal scholarship on the topic of violence within the administrative state. Relative to other fields of law, critical perspectives on race, power, and inequality have arrived late to the field of administrative law. In recent years, legal scholars have called on administrative law scholars to take up these issues with more urgency and in greater numbers--to help build out “a moral framework of administrative law.” Accepting this challenge means developing a broader and more expansive vocabulary. This Article attempts to do that by analyzing the modern immigration system in terms of administrative violence.

Professor of Law, University of California, Irvine (“UCI”).