Immigration Law Article 132 Harv. L. Rev. 1878

Self-Deportation Nation


Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their settlements. The new nation then adopted this approach to Indian removal and debated using self-deportation to remove freed slaves; later, states and municipalities embraced self-deportation to keep blacks out of their jurisdictions and drive out the Chinese. After the creation of the individual deportation system, the logic of self-deportation began to work through the threat of direct deportation. This threat burgeoned with Congress’s expansion of the grounds of deportability during the twentieth century and affects the lives of an estimated 22 million unauthorized persons in the United States today.

This Article examines the mechanics of self-deportation and tracks the policy’s development through its application to groups unwanted as members of the American polity. The approach works through a delegation of power to public and private entities who create subordinating conditions for a targeted group. Governments have long used preemption as a tool to limit the power they cede to these entities. In the United States, this pattern of preemption establishes federal supremacy in the arena of removal: Cyclically, courts have struck down state and municipal attempts to adopt independent self-deportation regimes, and each time, the executive and legislative branches have responded by building up the direct deportation system. The history of self-deportation shows that the specific property interests driving this approach to removal shifted after abolition, from taking control of lands to controlling labor by placing conditions upon presence.

This Article identifies subordination as a primary mode of regulating migration in America, which direct deportations both supplement and fuel. It highlights the role that this approach to removal has played in producing the landscape of uneven racial distributions of power and property that is the present context in which it works. It shows that recognizing self-deportation and its relationship to the direct deportation system is critical for understanding the dynamics of immigration law and policy as a whole.

An incentive called misery.

— William Safire1

Yet for all of its influence, the Migration was so vast that, throughout history, it has most often been consigned to the landscape, rarely the foreground.

— Isabel Wilkerson2

* Critical Race Studies Fellow, UCLA School of Law. I am grateful to many people for generous feedback that helped me develop this paper. I owe especial thanks to Greg Ablavsky, Aziza Ah-med, Amna Akbar, Asli Bâli, Stuart Banner, Bill Buzbee, Devon Carbado, Guy-Uriel Charles, Ingrid Eagly, Karen Engle, Sam Erman, Cheryl Harris, Stephen Lee, Darryl Li, Jerry López, Hiroshi Motomura, Sherally Munshi, Shaun Ossei-Owusu, Shakeer Rahman, Beth Ribet, Angela Riley, Alicia Solow-Niederman, Sanjay Pinto, Michael Tan, Leti Volpp, and Noah Zatz for in-sightful comments and encouragement. This Article also benefited from workshops hosted by the Immigration Law Scholars and Teachers Workshop, the Immigrants’ Rights and Policy Clinic of UCLA Law, the UCLA Law Advanced Critical Race Theory seminar, and the Culp Colloquium. Gerald Neuman supervised this project in its earliest stages and offered useful suggestions along the way. I thank Adrian Hernandez and UCLA law librarians Cheryl Fischer, Rebecca Fordon, and Jodi Kruger for valuable research assistance. This Article is for Rina and Alejandro Paiz, who I hope have found a safe home elsewhere.

  1. ^ William Safire, Self-Deportation?, N.Y. Times, Nov. 21, 1994, at A15.

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  2. ^ Isabel Wilkerson, The Warmth of Other Suns 13 (2010).

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