Administrative Violence in Immigration Law

This Article is about violence in the administration of our nation’s immigration laws. More specifically, it focuses on the types of agency actions that might be characterized as “violent,” a key concept in separating legitimate and illegitimate agency actions. In this context, violence is commonly defined in terms of the use or threat of force against immigrants and immigrant communities—i.e., through apprehension, detention, and removal. This Article develops and defends a related theory of violence, what I call “administrative violence,” which focuses on benefits programs that offer relief from removal. Although these programs are often described in inclusive terms, this Article argues that they help normalize and reaffirm the legitimacy of enforcement programs most directly responsible for the use and threat of force. Notably, these benefits programs foist the burden of seeking relief on migrants; obfuscate the realities that relief is temporary, limited, and hard to get; and draw attention away from the ways that relief programs are intertwined—politically, legally, and administratively—with the enforcement programs most responsible for egregious harms in the immigration context. The theory of administrative violence makes two contributions. First, it provides descriptive clarity on the range of illegitimate harms experienced by migrants at the hands of both field agents wielding quasi-police power as well as bureaucrats processing papers in anonymous office buildings. Second, it provides a basic vocabulary for pushing forward current conversations about violence in the administrative state, a dynamic that is attracting increasing scholarly attention, but which remains overly narrow.