Crimmigration Coda

Two weeks ago, I launched this blog with what I called an “immigration problem.” The problem involved transforming an automatically generated network of Supreme Court immigration cases into a more accurate and useful map of immigration doctrine. In subsequent posts, I chipped away at the problem and ended up with an admittedly incomplete yet arguably more accurate and useful picture of the evolution of the Court’s doctrine from the Chinese Exclusion Case (1889) to Padilla (2009).

Today’s post presents a visual coda to the original problem. Last weekend, I was fortunate enough to talk shop with bona fide immigration scholar and advocate extraordinaire Peter Markowitz. He suggested that I try mapping a different part of immigration territory. This alternate territory concerns the dubious relationship between (a) the Court’s designation of immigration removal proceedings as civil rather than criminal; and (b) the Court’s now-rejected “inherent powers” theory. Here is what I came up with:


This map is based on Markowitz’s 2008 article entitled “Straddling the Civil-Criminal Divide” published in in Harvard Civil Rights -Civil Liberties Law Review. In this article, Markowitz argues that the Court in Fong Yue Ting (1893) relied on the inherent powers theory to justify its designation of removal proceedings as civil. Though the Court initially reaffirmed inherent powers in Curtiss-Wright (1936), it started to reject the theory in Reid v. Covert and then confirmed its rejection in cases like Afroyim (1967) and Verdugo-Urquidez (1990). This effectively negates Fong Yue Ting‘s original doctrinal justification and renders suspect its conclusion regarding the civil nature of removal.

The map above demonstrates one way to tell this complex story visually. I created it in steps. First, I generated a 3-degree citation network connecting Afroyim and Fong Yue Ting (2-degree connections are blue; 3-degree connections are brown). Then I filtered the network to include only those cases that contained the word “inherent.”This left some “stranded” cases — they lacked a connection to either a parent or child in the network — and so I edited those cases out by hand.

Although the resulting map featured most of the cases from Markowitz’s article, my algorithm had notably failed to pick up Reid v. Covert. This is because Afroyim is not connected by three degrees of citation to Reid. To fix this problem, I generated a 2-degree citation network connecting Verdugo-Urquidez to McCulloch v. Maryland (1819) (shown in red above).   I chose Verdugo because it was the latest reference I saw in Markowitz’s article to a case rejecting the inherent powers theory and I chose McCulloch because I noticed Reid v. Covert cited it extensively in its doctrinal discussion. After editing out the resulting network to include only Verdugo, Reid, McCulloch and Curtiss-Wright, I then merged my two maps to come up with the image above.

Readers can judge for themselves, but I think the result usefully visualizes the networks implicated Markowitz’s argument. Scholars interested in testing his thesis can easily access the text of underlying cases by clicking on opinions of interest in the full-sized version of the map. This demonstrates what I hope is another useful feature of the mapping tool — it can efficiently organize a complex doctrinal information in a way that can facilitate further inquiry.

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1 Response to Crimmigration Coda

  1. Peter Markowitz says:

    Fantastic to see the power of Professor Starger’s innovative mapping system. To be able to capture the complex story of multiple evolving doctrinal strands in such an elegant presentation is truly an accomplishment. Not only does the tool help illuminate the complex evolution of Supreme Court jurisprudence but it’s potential to guide our research and investigation is an enormous contribution. Bravo.

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