Rethinking Removability

"The concept of removability in the immigration laws 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 the 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.

The Article then identifies several common themes that characterize complex removability today. First, removability has become complicated in large part because substantive, discretionary relief has become woefully difficult to obtain. 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, the Article explores the relationship between horizontal separation of powers tensions and complex removability. The Article concludes by suggesting several areas in which taking complex removability seriously might bear upon immigration policy, practice and discourse. - Prof. Jennifer Koh, Florida Law Review, Vol. 65, 2013, Forthcoming.

- Prof. Jennifer Koh