Abstract

Excerpted From: Elizabeth Choo, The False Promise of Immigration Deterrence: Unauthorized Migrants' Decision-making in the Face of U.S. Immigration Law, 48 New York University Review of Law and Social Change 161 (2025) (183 Footnotes) (Full Document)

In the summer of 2021, during a press conference in Guatemala City, Vice President Kamala Harris said: “I believe if you come to our border, you will be turned back .... So let's discourage our friends or neighbors or family members from embarking on what is otherwise an extremely dangerous journey.” Vice President Harris had been charged by President Joe Biden with “controlling migration at the southern border.” Her statement rests on the false premise that individuals make migration decisions by comparing the costs, such as the danger of the journey and the criminal and civil penalties for unauthorized entry, with the reward--the possibility of a better life in the United States.

Vice President Harris is not the first to make claims that implicitly endorse a deterrence logic. John Kelly, the White House Chief of Staff during the first Trump administration, speaking on immigration policy, stated that “a big name of the game is deterrence.” When asked about family separation, he replied “[i]t could be a tough deterrent--would be a tough deterrent.” This bipartisan, deterrence-focused logic has driven U.S. immigration policies for decades, going at least as far back as the U.S. Border Patrol's adoption of “Prevention Through Deterrence” as its chief strategy in 1994. But, in practice, individuals often do not actually make migration decisions by weighing the costs imposed by deterrence-motivated policies against the potential benefits of successful migration. Focusing on potential migrants “as atomistic, utility maximizing opportunists diverts our attention away from the complex and wide-ranging moral systems within which prospective migrants are embedded.” Understanding the decision-making process of prospective unauthorized migrants is crucial for the process of reforming the U.S. immigration system to make it more effective, humane, and just.

This Article seeks to explore how prospective migrants make decisions about entering the United States without authorization and aims to determine to what extent, if any, U.S. immigration law factors into migration decisions. To answer this question, this Article will address several underlying issues: (1) Do migrants have sufficient knowledge about the U.S. immigration system and the consequences of unauthorized entry to make fully informed choices? (2) What do prospective migrants think of the U.S. immigration system, and how does that affect their considerations about whether to follow U.S. immigration law? (3) How do migrants evaluate ethical and practical considerations, including facing immediate danger in their home country, violating U.S. immigration law, and embarking on a dangerous journey to the U.S. border? Finally (4) Which values are most powerful when individuals make their ultimate decision about migrating?

In answering these questions, this Article will demonstrate that migrant decision-making in practice undermines common assumptions underlying how immigration deterrence is expected to operate. The logic of deterrence tells us that making life more difficult for migrants will directly reduce the number of people willing to attempt to cross the border, but these laws and policies do not have the effect politicians promise. Despite this reality on the ground, deterrence logic is still used to justify dangerous and inhumane treatment of migrants. By highlighting research that illustrates how immigration law does not have a significant deterrent effect, this Article challenges the use of deterrence logic as a façade to legitimate cruelty to migrants and their families.

The paper proceeds as follows. Part I provides a brief history of immigration enforcement in the United States since 1994 and describes the current legal context, including criminal and civil immigration penalties associated with unlawful entry and the role of immigration detention. Part II surveys existing literature on the deterrent effects of U.S. immigration law and the literature on legal consciousness. Part III demonstrates that unauthorized migrants are unlikely to have sufficient legal knowledge about U.S. immigration laws for the “deterrence” approach to have the effect that U.S. policymakers imagine. Part IV describes how prospective and current unauthorized migrants see the U.S. immigration system--namely, as unfair and illegitimate. Part V describes the thought processes migrants engage in when deciding whether to migrate to the United States without authorization. Part VI discusses which factors are most influential and outcome-determinative for migrants when deciding whether to try and enter the United States without authorization. Part VII concludes with recommendations for legal reforms and advocacy in light of the findings of this paper.

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When deciding to attempt an unauthorized entry, prospective migrants are making complex decisions informed by their values and their perceptions of the U.S. immigration system. Despite harsh criminal and civil penalties for unauthorized migration, migrants are not deterred. Understanding the values motivating migration decisions helps explain why U.S. immigration law does not have a large deterrent effect. The fact that U.S. immigration law lacks a deterrent effect, while also being viewed by migrants as illegitimate, provides further impetus to decriminalize unauthorized entry and reentry and end civil immigration detention. Understanding the decision-making processes of unauthorized migrants will help formulate fairer and more just immigration laws and policies.

Further research is necessary to better understand migrant decision-making processes and the effect of U.S. immigration law and policy. Developing a nuanced view of migrant decision-making that goes beyond the paradigm of deterrence requires understanding migrants' diverse values and social contexts. Additional research on understudied populations is especially vital. Insights from disciplines outside of legal academia will help explain the role the law plays in the lives of migrants. For example, additional research about migrants' knowledge of U.S. immigration law would be helpful in determining what prospective migrants know in advance of crossing and what types of information are most influential in their ultimate migration decision.

By highlighting research demonstrating that immigration law does not have a significant deterrent effect, scholars and activists can challenge the use of deterrence logic as a façade to legitimate cruelty to migrants, especially as that cruelty disproportionately affects migrants of color. Undermining the legitimacy of the immigration enforcement system, and revealing its underlying goal of harming migrants, clarifies the moral imperative to end criminal prosecutions of those charged with immigration violations and to abolish immigrant detention. Setting aside the confines of a deterrence-based approach to immigration law will give scholars and activists the space necessary to envision how the law can be used to create a future for all migrants consistent with the principles of equality and inherent human dignity.

Class of 2024, New York University School of Law.