Jennifer Lee Koh, Rethinking Removability

65 Fla. L. Rev. 1803 (2013) |

jennifer-koh

Prof. Koh

Removability, in the context of immigration law, refers to the government’s legal authority to seek deportation for violations of the federal immigration statute. Removability matters now more than ever before, both for individuals facing possible deportation as well as for the many governmental institutions charged with assessing removability. Using four areas of emerging law—claims to U.S. citizenship, the categorical approach to determining the immigration consequences of crime, the application of the exclusionary rule in removal proceedings, and the exercise of administrative discretion—this Article places removability at the center of its analysis and presents a framework for better understanding removability. Under what this Article calls a narrative of “complex removability,” removability is both legally and factually complex, as well as subject to change, notwithstanding the temptation in legal and popular discourse to treat removability as simple and settled.

This Article identifies several common themes that characterize complex removability today. First, obstacles to obtaining substantive, discretionary relief have caused removability to become more complex. Second, challenges to removability tend to be limited across the legal system due to barriers associated with immigration detention, such as the absence of counsel and the pressures of time. Third, complex removability leads to a deeper appreciation of the fluidity and uncertainty associated with immigration status. Fourth, complex removability is not static, but is produced through dynamic interactions between the government and the individual. Fifth, this Article explores the relationship between tensions in the horizontal separation of powers and complex removability. This Article concludes by suggesting several areas in which taking complex removability seriously might bear upon immigration policy, practice, and
discourse.

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