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Kansas Law Review




Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding contributions or connections to the United States.

The current political moment invites deeper reflection about the equities that should insulate undocumented noncitizens from removal, and how those equities should be assessed vis-à-vis allegations of criminality. Over the years, scholars have articulated a range of factors that justify protection from removal or even regularization of status. This article builds upon that literature, and presents a more nuanced typology of the societal contributions that should weigh against removal, along with the theories that undergird noncitizens’ claims in this context. A second purpose of this article is to expose how the powerful trend of criminalization has begun to infect even the limited space where discretion can be exercised, and has converted seemingly favorable conduct into undesirable criminal activity. This development, which is examined through the lens of several case studies, enables exclusion and expulsion, and disrupts the incentives that noncitizens have to contribute to and support the state.



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