Andrew Tae-Hyun Kim
88 Geo. Wash. L. Rev. 76
“Illegals.” “Rapists.” “Criminals.” “Aliens.” “Animals.” These labels have defined what it means to be an undocumented immigrant in the United States today. Undocumented status as stigma is an overdetermining identity trait that overwrites other identity dimensions and has become entrenched in both legal and cultural norms. Officials at the highest levels of all three branches of the U.S. government continue to employ metaphoric language that conflates undocumented immigrants with illegality, criminality, and extraterritoriality. More recently, the Trump Administration has weaponized such labels to support and normalize shifts in immigration policies.
How did we get here? One answer lies in the current statutory framework that enables this false narrative. The Immigration and Nationality Act penalizes unlawful presence as a deportable offense and potentially bans certain unlawfully present immigrants from reentering the country for three years to permanently. While the law should penalize unlawful acts, such as the surreptitious entry or the visa overstay that produces the unlawful presence, penalizing presence does not punish conduct, but rather the person’s state of being. This Article prioritizes this underexamined aspect of U.S. immigration law and uncovers its consequences not only for the lives of immigrants, but also for the law. This Article frames an argument for statutory reform by showing the identity and legal harms stemming from penalizing presence. It argues that this statutory choice stigmatizes and subordinates millions of undocumented immigrants in the United States. It also contends that the harms of penalizing presence extend beyond the person to the law. It shows how penalizing presence has stymied legal efforts to integrate into society the undocumented immigrant population in the United States by incentivizing their further evasion of the law and by thwarting opportunities for imposing a reasonable statute of limitations on deportations. In exposing immigration law’s errant departure from established legal norms, the Article moves in a novel direction continuing scholarly discourse on immigration law’s exceptionalism..
