In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail.
Second, Bhargava Ray challenges the scholarly obsession with deportation, pointing out that immigration agencies’ implementation of the Immigration and Nationality Act “involves a spectrum of penalties short of deportation” that create a “shadow system” of sanctions. She’s right, although we don’t tend to think about it that way. She explains that the immigration bureaucracy uses discretionary tools of lenience when deportation looms. These tools include enforcement priorities, deferred action, administrative closure, and post-order forbearance, and they are doled out by agency officials on an ad hoc basis. This “shadow system” means that immigrants, their advocates, and the public have no idea when these leniency tools, dubbed “shadow sanctions” are imposed in lieu of deportation and why. It’s not that the government gives no good reason for when it applies or withholds lenience. It’s that it gives no reason. At all.
That’s a blueprint for arbitrary government action. Bhargava Ray proposes that the government must satisfy the fundamental norm requiring a sufficient justification for a particular penalty. She suggests that we rummage in the toolbox of the bureaucratic apparatus of immigration law itself to find the “informal, discretionary tools” that agencies use to avoid deportation and impose “shadow sanctions.” How does one go about shining a light on shadow sanctions? By drilling down into administrative law doctrines and concepts such as notice-and-comment rulemaking, interpretive guidance and centralized discretion, and procedural innovation to render these shadow sanctions more available, open, and consistent. Shining a light on shadow sanctions will promote “reasoned immigration administration.” Then we can lay the foundation for a reason-giving infrastructure in immigration law.
Hand me that hammer.
Editor’s Note: for an earlier review, see Mila Sohoni, Immigration Law’s “Shadow Dockets”, JOTWELL (November 29, 2021).