Shadow Sanctions for Immigration Violations

Prof. Shalini Bhargava Ray, Lawfare, Feb. 2, 2022

"With 11 million deportable noncitizens and the capacity to remove roughly 400,000 per year, the immigration bureaucracy inevitably selects a subset of deportable noncitizens for deportation. This tension between the formal terms of the INA and enforcement realities has played out in every administration since the last round of immigration reform in 1996 and, most recently, in legal challenges to President Biden’s immigration agenda. How bureaucrats decide who stays and who is removed remains poorly understood. But one thing is evident: Immigration law does not, in practice, have only one penalty—the formal terms of the INA notwithstanding. Examining agency implementation of immigration law, I argue in a recent article—originally published in the Columbia Law Review—that the immigration bureaucracy uses a host of “shadow sanctions” that offer a penalty less than deportation. These sanctions include deferred action (apart from Deferred Action for Childhood Arrivals, or DACA), administrative closure based on low-priority status, and post-order stays of removal that allow noncitizens to remain indefinitely in the U. S., if they check in with Immigration and Customs Enforcement (ICE) periodically. None of these tools resolves the immigrant’s underlying deportability, but they offer forbearance from removal. In my article, I detail how the immigration bureaucracy could use these shadow sanctions to instantiate a more nuanced, proportionate scheme of sanctions. In this post, I explore the specific problems with shadow sanctions described in my article as well as summarize my suggestions for how the immigration bureaucracy can move forward with a few key reforms. ...  [A]gencies should explain how enforcement against an individual noncitizen advances the government’s purpose. Does deporting this noncitizen enhance public safety or safeguard important economic interests? If so, how? Building an infrastructure for reason-giving creates a foundation for higher-quality reasoning that requires an agency to link government action to government purpose. Such an approach to agency action is a far cry from the status quo, but it might just be the best hope for implementing a more transparent, proportionate scheme of immigration penalties."