Surprise Deportations

The Attorney General and Board of Immigration Appeals regularly flex their immigration policymaking power to expand or alter the range of criminal convictions that can trigger deportation from the United States or disqualification from immigration relief. They then give retroactive effect to their new immigration rules, imposing life-altering consequences on conduct previously unregulated by the immigration system. This application of new rules to old conduct results in a phenomenon I call surprise deportations. Noncitizens who resolved their criminal cases, reasonably believing that those resolutions were safe for immigration purposes, can find themselves unexpectedly subject to deportation.

     Surprise deportations have profound theoretical and practical implications, but they remain unexamined in the academic literature. This Article is the first to center the practice and analyze its institutional, doctrinal, and normative underpinnings. My account surfaces how courts reviewing challenges to surprise deportations have ported into the immigration context an administrative law doctrine designed to evaluate retroactive decision-making by a wide range of federal agencies regulating diverse subject matters. I argue that this doctrinal approach does not sufficiently account for the immigration system’s unique features, including its deep entanglements with the criminal legal system. As a result, courts can overlook retroactivity’s harms in some immigration cases and also exaggerate the government’s need for flexibility in this policy domain. Building on these insights, this Article identifies doctrinal interventions to curb surprise deportations.