Excerpted From: Abel Rodríguez, Lethal Immigration Enforcement, 109 Cornell Law Review 465 (January, 2024) (396 Footnotes) (Full Document)

AbelRodríguezIncreasingly, migration control policies produce and perpetuate death. As the number of displaced people increases globally, receiving countries use more violent and lethal means to secure borders and deter migration. In the United States, Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) use violence to prohibit noncitizens from entering, remaining in, or returning to the United States. In many instances, that violence results in the death of migrants forced to flee their home countries because of poverty, persecution, or political instability. Border policies push migrants into lethal terrain, which has led to record deaths, and CBP and ICE agents routinely use military-style weapons and force against unarmed noncitizens. Immigration detention centers maintain harsh conditions, leading to migrant death through medical neglect and suicide, and inadequate immigration laws continue to ensure the removal of migrants to countries where they face fatal persecution. Many of these deaths are avoidable. Many disproportionately impact communities of color.

The number of people forced into migration shows no signs of abating. According to the United Nations, the number of forcibly displaced people has increased steadily since 2011, reaching a record 89.3 million people in 2021. It stands to reason that migration may continue to increase as a result of economic deprivation, political instability, and natural disasters. Climate change may become a more significant driver of migration. The World Bank estimates that climate migration may displace 216 million people within their own countries by 2050. Inevitably, many of those internally displaced people will migrate beyond their countries' borders. Further escalation of violent enforcement and increased preventable migrant deaths are likely concomitants of heightened migration. As a major receiving country, the United States--particularly its lawmakers, jurists, scholars, and people of conscience--must grapple with the legal, political, and moral questions this gratuitous loss of life raises as well as its racial implications.

This Article challenges its readers to engage with these timely questions. It contributes a novel perspective to scholarship examining racialized violence in policing and enforcement, providing the first comprehensive analysis of lethal immigration enforcement. It argues that racialized policy rationales, impunity instituted by courts, and prevailing political paradigms have coalesced to render migrants of color expendable. Among its contributions to the existing literature, the Article examines largely unexamined data related to loss of life, establishes that the immigration enforcement system increasingly produces preventable death, and explores the racialized nature of such prevalent violence and migrant mortality. Ultimately, this analysis interrogates the normative rationales perpetuating death in immigration enforcement, underscoring the need to denaturalize violence as a response to migration. Absent meaningful action deterring violence against migrants and a reimagining of the immigration enforcement system, racialized immigration enforcement will perpetuate the needless death of migrants of color, reinforcing their racial subordination and structural racism.

Part I maps how the immigration enforcement system kills. Death is the most extreme consequence migrants face. It provides a measurable indicator of the level of violence the immigration enforcement system inflicts on particular people in migration at a given moment. This Part provides a comprehensive cataloguing of death caused by immigration enforcement previously unexamined in legal literature. After defining lethal enforcement, it explains how law and policy empower each facet of immigration enforcement to take migrant lives, including border policies pushing migrants to hostile terrain, violent encounters with CBP and ICE, deplorable detention conditions, and deportations to lethal danger. It provides quantitative measure of migrant mortality and identifies areas requiring further research to understand more fully the violence produced by immigration enforcement. This mapping highlights the punitive nature of enforcement and the rising levels of documented premature death for people largely fleeing circumstances well beyond their control.

Ostensibly vital motivations undergird this lethal immigration enforcement, such as crime control, national security, and sovereignty. A racial analysis of these rationales, as Part II explains, hollows these rationales. Lethal enforcement points more readily to preserving racial hierarchies than securing the homeland. This discussion provides novel findings related to race and enforcement. Rather than control crime, for instance, detention causes premature death among migrants of color. Reflecting the anti-Blackness found in other facets of the immigration and criminal systems, immigrants racialized as Black die in detention well beyond their proportion of the immigrant community overall, and the average age of those who die in detention is lower than the life expectancy of any country in the world. Border Patrol has used force approximately every nine hours for the past decade, and those killed in these encounters are largely migrants of color who posed no threat to national security. Arguably, most posed no threat even to the immigration agents involved. Furthermore, many migrants killed hail from countries whose sovereignty has been undermined by profound and protracted U.S. intervention rooted in claims to racial superiority and national exceptionalism.

As migrant deaths persist, particularly among migrants of color, the Supreme Court has weakened protections for noncitizens. Part III examines wrongful death actions and recently established Supreme Court doctrine that may lead to increased migrant mortality. It considers the erosion of Bivens v. Six Unknown Named Agents, which established causes of action against federal agents infringing constitutional rights, culminating in Egbert v. Boule's virtual abrogation of legal remedies for use of force. In Egbert, Justice Sotomayor, concurring and dissenting in part, names a “restless and newly constituted Court” for effectively foreclosing the already limited protections for excessive use of force by federal officials. In addition, in Johnson v. Arteaga-Martinez, the Court recently ruled noncitizens can be held indefinitely in immigration detention without bond hearings, overruling Third and Ninth Circuit Courts of Appeals decisions. As stated in a press release from leading advocates, this decision has “life-threatening consequences, especially given ICE's record of abuse, neglect, and death in its detention centers.” Wrongful death suits under Bivens prior to these Supreme Court decisions demonstrate these rulings have likely opened the door to increased racialized violence against migrants.

Especially in light of these evolving precedents, preventing migrant deaths will require a paradigm shift. Through the lens of Howard Lesnick's trichotomy of conservative, liberal, and radical perspectives, Part IV proposes potential responses to migrant mortality. With influence from liberal perspectives, conservative thought has largely shaped immigration law and policy. Conservative perspectives have imagined and implemented restrictionist immigration policies while liberal perspectives have sought to limit abuses within this framework. If the past is any predictor, this dynamic will lead to further increased federal spending, intensified immigration enforcement, and escalating migrant mortality. Notably, liberal perspectives have called for increased legal rights for migrants and proportional immigration enforcement, which may decrease but not end migrant deaths. To curb preventable migrant deaths and the racialized nature of immigration enforcement, however, the path forward lies in emerging abolitionist scholarship and activism calling for an end to detention and deportation. This shift will require scholars, lawmakers, and advocates to reimagine immigration policy and espouse more radical approaches to altering enforcement practices.

While scholars have considered the violence within the immigration system, a comprehensive examination of the ways the Department of Homeland Security (“DHS”), and its predecessor the Immigration and Naturalization Service (“INS”), has produced death as a result of that violence is absent from legal scholarship. There exists no comprehensive examination of the ways immigration law and policy routinely take life, overlooking a crucial reality of the consequences of migration control. Moreover, scholars have given scant attention to the racial implications of lethal policies and wrongful death suits in the context of immigration enforcement. An analysis of lethal immigration enforcement contributes to understanding the confluence of increased human displacement, heightened migration control enforcement, and diminished accountability for immigration enforcement agents who violate noncitizens' constitutional rights. Ideally, this analysis also contributes to a more complete picture of law enforcement's racialized state violence across the country as well as the value of life in the nation's embedded racial hierarchies.

[. . .]

Immigration law and policy have become devices of death, particularly for the past three decades. As migrant mortality rises, lethal border policies show no signs of abating, CBP and ICE continue to use violent policing tactics, profit-driven detention centers neglect detainees, and immigration law ensures noncitizens are removed to countries where they face harm or even death. Meanwhile, judicial remedies for constitutional violations and wrongful death have become more elusive. Justifications for such violent immigration policies stand on shaky ground, perpetuating racialized legal fictions of migrants as criminals, foreign workers as aggressors, and sovereignty as a shared right that preserves autonomy and protects democratic principles. The purported rationales for enforcement, which ostensibly protects the nation from peril, hold diminished weight under the scrutiny of critical analysis, particularly in light of increasing preventable deaths among migrants of color.

It is critical to contemplate more meaningfully how immigration law and policy have contributed to racialized violence and rendered migrants expendable. In recounting the horrors of the Holocaust, Elie Wiesel states in the preface to his memoir Night, “To forget would not only be dangerous but offensive; to forget the dead would be akin to killing them a second time.” It is imperative not to forget those who have lost their lives prematurely in migration or the causes of their displacement and death. It is also necessary to look forward as the United States stands on the precipice of increased racialized violence in the immigration enforcement system with little recourse for those migrants directly impacted. With each year that passes, thousands more displaced people lose their lives, perpetuating the racial subordination of migrants of color. As migrant mortality rises, it is time to reimagine an immigration system that values and preserves human life.

Assistant Professor of Law, St. John's University School of Law.