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Associate Professor Andrew Kim
Syracuse University, College of Law

“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 over-determining identity trait that overwrites all other identity dimensions and has become entrenched in both the 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 historic shifts in immigration policies.

How did we get here?  One answer lies in the current statutory framework that promotes this false narrative.  The U.S. Immigration and Nationality Act penalizes unlawful presence as a deportable offense and potentially bans an unlawfully present immigrant from entering the country for ten to twenty years.   While the law should punish 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 unexamined 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 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 U.S.  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 the undocumented immigrant population in the U.S. by incentivizing their further evasion of the law and by thwarting opportunities for imposing a reasonable statute of limitations on deportations. By exposing U.S. immigration law’s errant departure from established legal norms, the Article moves in a novel direction the continuing scholarly discourse on U.S. immigration law’s exceptionalism.

Andrew T. Kim is an Associate Professor of Law at Syracuse University, College of Law. He teaches and researches in the areas of Immigration Law, Administrative Law, and Torts. His work has been published or forthcoming in top U.S. law journals, including the Washington University Law Review, George Washington Law Review, and William & Mary Law Review, among others, and has been cited in a leading treatise and in briefing to U.S. federal courts. He has been invited to present his work both nationally and internationally.

Professor Kim received his B.A. from Duke University and his J.D. from Harvard Law School. Upon graduation, he clerked for the Honorable John R. Gibson of the United States Court of Appeals for the Eighth Circuit. Prior to entering law teaching, he was an Honors Program Trial Attorney with the Constitutional Torts Section of the Civil Division of the United States Department of Justice.

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