Migration levels have reached unprecedented rates. Within a global population exceeding eight billion, the number of displaced individuals continued to rise in 2023, resulting in more than one hundred seventeen million displaced people worldwide. As displacement surges, receiving countries increasingly rely on violent and even lethal means to curb migration. As a result, 2024 was the deadliest year for migrants on record globally. In the United States, this increase in mass migration now results in a record 2. million border encounters annually and the continued detention and deportation of hundreds of thousands of noncitizens each year. In 2022, migrants experienced a record number of documented border deaths (853), as well as record deaths and disappearances in the Caribbean (341), while fatalities caused by detention, deportation, and encounters with immigration enforcement officials persist. Further compounding challenges for migrants, those surviving the enforcement system face systemic harms such as diminished rights in legal, political, and employment contexts. Migrants of color primarily bear the brunt of such state-sanctioned violence.

Contemporary migration control laws and policies perpetuating violence continue to supersede any meaningful effort to address the root causes of migration. Rather than confront the consequences stemming from imperialist policies, protracted conflict, and the climate crisis, recent U.S. enforcement efforts continue to build on previous administrations' destructive migration control strategies, culminating in the intensification of migrant expulsion, the disappearance of migrants, and the externalization of borders to foreign nations. Meanwhile, recent Supreme Court doctrine has bolstered impunity for violence perpetuated by immigration officials, diminished accountability within the immigration detention and removal systems, and affirmed broad executive discretion to exclude migrants, even when targeting nationals of selected countries.

This Article provides a novel perspective on the evolution of immigration law and policy increasingly perpetuating racialized state violence. It applies the framework of necropolitics to the immigration enforcement system to examine the root causes of increased displacement and the corresponding role of immigration law and policy in empowering violent responses to migration. This examination reveals that the U.S. immigration regime's increasing power over life and death represents one of the primary pillars of the nation's departure from democracy. The ongoing erosion of democratic principles is furthered by legislators, courts, administrative agencies, and presidential administrations regardless of political affiliation, culminating in a second Trump term effectuating mass deportations and significant restructuring of the immigration system to restrict migration.

The theory of necropolitics holds that the subjugation of life to the power of death defines contemporary global relations. Cameroonian theorist Achille Mbembe contends that "enmity now constitutes the spirit of liberal democracies," fostering hostility toward those deemed undesirable and expanding the state's power to define who is disposable within society. As increased conflict drives human displacement, the solution is increased border closure. As increased migration persists, migrants and refugees reign prominent among so-called undesirables, who are subjected to various forms of subjugation--including actual mortality as well as more protracted harms--to ensure those with power may live. This reality reflects a "time of exit from democracy" and a return to colonial desires and strategies. Grounding necropolitics in U.S. immigration policy reveals the motivations and implications of the current racialized exclusion of migrants as well as the pressing need to reimagine the state's role in its encounters with noncitizens.

With the underlying motive of deterring migration, the immigration enforcement system perpetuates death. After defining death for the purposes of this analysis, Section I catalogues both spectacular and slow death, or readily perceived and incremental mortality, resulting from migration control policies. It places the record number of recently documented border deaths, which received relatively more media attention, within the context of other, often overlooked, forms of violence against migrants. While migrants lose their lives as a result of detention, deportation, and encounters with immigration officials, they also suffer less conspicuous harms--not only within these systems but also due to pernicious policies related to their employment, healthcare, government benefits, and voting rights. This mapping of migrant death serves to illuminate and quantify the increasing violence inflicted on migrants, illustrating the state's increased inclination to exert power over life and death, while also providing context to examine broader implications for the nation's trajectory and ethos. The various forms of death inflicted on migrants rest largely in power dynamics related to their subordination, racialization, and vilification.

Employing interrelated frameworks from the theory of necropolitics, Section I examines the role of colonialism, racism, and insecurity in creating a society imbued with hostility toward, and animus against, people who migrate. According to the theory of necropolitics, colonial desires undergird the violence of our times, race drives the concomitant devaluing of life, and a state of insecurity justifies hostility and violence against undesirable members of society, including migrants and people of color. Section I also considers how colonialism and neocolonialism represent primary root causes of migration, focusing on U.S. subordination of Global South nations. It also explores the role of hydraulic and nanoracism--akin to institutional and everyday racism, respectively--in rationalizing both (neo)colonial actions and hostile migration control policies. Lastly, it addresses the construction of migrants of color as a threat to national security justifying violent migration control.

Immigration law and policy give force to the colonial and racial motivations underlying the violent exclusion of migrants. Contemporary immigration policies and recently established Supreme Court doctrine have, as Section II analyzes, built upon decades of restrictionist strategies to further entrench necrolaw and policy, defined here as jurisprudence and policy implementation that perpetuates death in nation-states exercising necropolitics. Despite illusory promises to "fix" the immigration system, the Biden administration's policies increased migrant mortality and exacerbated slow death among migrants. These policies included approaches in line with the first Trump administration, such as outsourcing immigration enforcement to Latin American nations, particularly Mexico, and diminishing protections for asylum seekers. Federal officials have further escalated policies hostile to migrants under the second Trump administration. States have also taken unprecedented steps to enforce migration, including Texas legislation that empowers state officials to effectuate removals. Meanwhile, the Supreme Court has largely rendered decisions detrimental to migrants related to issues which are already rife with violence such as use of force, deportation, and detention.

In the first year of the second Trump term, the United States finds itself at an inflection point. As the nation embraces a resurgent ethos of animus toward migrants and enforces its hostility to migration through immigration law and policy, it further distances itself from its prior purported democratic aspirations. Section III argues that the United States is in the throes of embracing its "nocturnal body," the dark and violent side of democracy, reverting to colonial desires and tactics. In conjunction with diminished domestic civic representation (voter suppression, disenfranchisement, gerrymandering) and unrelenting intervention abroad (imperialism, neocolonialism, war), security state strategies constitute one of the primary pillars of the nation's departure from democracy. These strategies include racialized immigration policing, lethal border policies, punitive immigration detention, and violent deportations. Immigration has become the primary fulcrum of the abandonment of democratic ideals. Achieving democracy will necessitate, among other significant changes, non-reformist immigration reforms and a radical reimagining of responses to migration.

This Article makes three central contributions. First, in addition to cataloguing migrant death, it provides novel analysis of largely overlooked data, such as those related to the disproportionate deaths of Black and Latine immigrants in immigration detention, as well as the trajectory of deaths in encounters with Customs and Border Protection (CBP) officials. Second, it provides the first sustained, robust analysis of immigration law and policy through the lens of necropolitics, a powerful heuristic to understand violent contemporary migration control policies, particularly the racialization, militarization, and inequality driving these strategies. While scholars have noted the utility of necropolitics to examine asylum policy and due process, this Article applies this framing to understand the broader implications of immigration enforcement for U.S. society at large. Third, the Article contextualizes destructive and deadly immigration law and policy within broader questions regarding power and democracy. In this way, the Article bridges immigration law and the politics of democracy, contributing new insights to critical discussions of the nation's diminishing adherence to democratic principles.

This Article reaches publication shortly after the first year of the second Trump administration. Rather than an aberration or an errant detour on the nation's path toward democracy and just immigration policy, the second Trump term represents the culmination of the nation's pursuit of death as it embraces colonial desires and racialized social control. Through examination of immigration law and policy, it becomes evident that both liberal and conservative approaches to migration control have increasingly pursued agendas that escalate violence against migrants and abandon democratic principles. This bipartisan evolution of immigration law and policy has set the stage for the far-right policies of the Trump administration that extend and exceed the established boundaries of immigration enforcement. Framing these laws and policies through the lens of necropolitics serves to examine both the motivations and implications of such policies.

Increasingly, the U.S. immigration system subjects migrants of color to slow and spectacular death. Rooted in deterrence strategies, these harms target migrants largely fleeing the destabilizing effects of colonialism, neocolonialism, and racial capitalism. The current prevailing doctrine of migration control empowers the immigration enforcement regime to treat migrants as threats to national security and correspondingly to use force against them with diminishing limitations. Immigration law and policy empower state actors to respond to migration with such violence. As this hostility escalates, the nation further embraces the dark, violent side of democracy rooted in its (neo)colonial past, slipping further from its democratic ideals and eroding its standing in the international community. Given the urgency of increased migrant death and this democratic decline, showing no signs of abating, it is imperative to reorient to non-reformist reforms to abolish violent systems of migration control and construct democratic institutions that redistribute power and ensure migrant self-determination.

Assistant Professor of Law, Wake Forest University School of Law.