Immigration Law Isn't So "Civil" Anymore: The Criminal Nature of the Immigration System

53 Am. Crim. L. Rev. Online 31

Leigh Ainsworth*

Immigration law finds its roots early in the creation of the United States. The Constitution gives Congress the power to enact laws governing the naturalization of non-citizens, underscoring the importance of both immigration and citizenship to this country. The subsequent Naturalization Act of 1790 laid down the first requirements for obtaining citizenship and helped set the precedent that immigration status, particularly citizenship, was a benefit to be given at the discretion of the government. Throughout the history of the United States, immigration law has developed into a complex area of civil law, reflecting the view that immigration law is a type of public benefit law. Immigrants who come to the United States are allowed to do so out of the good will of our lawmakers and our citizens. Thus, the taking away of immigration status should not be looked at as a punishment, but rather as a remedy for violating the laws of American society. This notion has been well established in immigration law since the Supreme Court’s decision in Fong Yue Ting v. United States, in which the Court held that, because deportation was not a punishment for a crime, constitutional due process protections were not implicated in removal proceedings.

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