Immigration, Criminalization, and Disobedience

This Article explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this Article argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, for example, may provide comfort and aid to certain vulnerable individuals, such procedural protections are unlikely to change the quasi-criminal character of immigration enforcement or to address the plight of the millions of people without a path to lawful status. Just as U.S. constitutional criminal procedure failed to ameliorate the harshness of substantive criminal law, more robust immigration procedural protections would likely fail to reorient immigration enforcement in a more humane and sustainable direction. By contrast, a growing movement of immigrant youth offers a more expansive conception of immigration reform. As these immigrant youth lay claim to a “right to remain,” infiltrate immigration detention centers, and crash the border, they have reshaped our political and legal discourse, gesturing towards an alternative vision of immigration justice