Persons Enough to Punish: Illegality, Deportability and the Hierarchy of Personhood in US Immigration

Abstract

This paper argues that contemporary United States immigration law and policy construct a hierarchy of personhood for undocumented migrants which better explains their status as opposed to a classic binary framework of citizen/migrant. It develops a four-layer conceptual framework of personhood including baseline personhood, membership personhood, administrative personhood and social personhood. These layers are argued to be unevenly distributed across legal domains, creating a strong and impactful hierarchization of individuals. Historically situating the current regime within the late-twentieth-century turn towards employer sanctions and one-time legalization, the expansion of deportable offences, the restriction of non-citizens' access to public benefits, and post-9/11 securitization, the paper demonstrates the rise of an ‘immigration industrial complex’. It then draws on critical scholarship relating to deportability, the illegality trap, and crimmigration to argue that illegality is actively produced as a tool for governance that keeps migrants exploitable. A section on doctrinal analysis of constitutional and administrative law shows that undocumented migrants are recognized as persons in some contexts, yet denied secure access to the social state and membership. The paper further identifies mechanisms of personhood-thinning and reads their combined effects through a republican non-domination lens. It concludes by sketching reforms aimed at thickening personhood and reducing domination to escape the illegality trap and move towards a just immigration law framework.