Producing Liminal Legality

Inside and outside of the sphere of immigration law, liminal legal statuses are proliferating. These legal categories function simultaneously as a means to effectuate administrative resource conservation through community-oriented risk management strategies and as a form of “preservation through transformation” that enable governmental actors to reassert and maintain control over populations identified as risky in ways that do not trigger the rights-protective schemes that evolved both internationally and domestically in the mid-Twentieth Century. This Article uses the existing literature on liminal legal subjects as a starting point for understanding and critiquing the legal mechanisms that produce liminal legality. Part I discusses the taxonomical features of liminal legality identified in studies focusing on the life experiences of marginalized noncitizens. These features include uncertainty about the scope of reprieve from banishment, a reliance on administrative grace to effectuate freedom from banishment, an obligation to pay one’s way to prevent that banishment, experiences of heightened monitoring by governmental actors, and a related vulnerability to control, exclusion, and abuse by private actors. Part II tests the possibility of expanding notions of liminal legality outside of the iconic cases of noncitizens granted temporary reprieves from removal. This section expands the analysis first to other, more legally privileged noncitizens, then to citizens in immigrant communities, and finally to broader classes of citizens with relatively high rates of contact with law enforcement agents. This analysis highlights the commonalities of the legal structures that regulate and punish these diverse categories of individuals and communities that experience liminal legality. Part III explores the potential benefits that transubstantive legal analysis focusing on liminal legality offers over more subject-specific frames like “crimmigration.” Framing legal analysis in terms of liminal legality could both check unjustifiable presumptions of immigration law exceptionality and foster the identification of the common regulatory practices that have generated a broader social normalization of liminal legality. Additionally, a focus on the legal production of liminal legality may open up a path to return crimmigration scholarship to its deeper theoretical grounding in membership theory, thereby reinvigorating the discussion of the role that race, class, place and other markers of difference play in structuring governance strategies both at the border of criminal and immigration law and beyond it