Doing Time: Crimmigration Law and the Perils of Haste

Abstract

Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen. This Article critiques crimmigration law’s uniquely cabined approach to the temporal aspects of decisions about membership. It explores how crimmigration law wastes the potential for time to usefully evaluate a noncitizen’s connection to the community, the advisability of expulsion, and the potential for inclusion. By establishing permanent expulsion as the default consequence, crimmigration law ignores the potential for reintroduction into the community that criminal sentencing and relief from deportation contemplate. Instead, it combines and heightens the exclusionary power of criminal and immigration law. Focus on that moment has the effect of flattening the hierarchy of immigration status - from permanent resident to unauthorized migrant - that has traditionally informed the level of constitutional and statutory rights granted to individual noncitizens. The Article explores solutions to this temporal stasis, examining the benefits and costs of resurrecting a statute of limitations for crimmigration law.

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