The Shifting Categorization of Immigration Law

TALLY KRITZMAN-AMIR*

For political reasons, the rise in forced migration and arrival of mixed flows of migrants to the U.S. and Europe is frequently referred to as a crisis or an emergency. Such statements fail to adequately characterize the crisis, and focus on its scope.

This paper argues that the current international migration crisis is not merely one of numbers, protection, or policy, but rather a deep categorical and ethical crisis. In this crisis, the fundamental organizing categories of immigration law are shifting, as is their underlying logic. Immigration law experiences a shift of focus: from migrants to migration, from causes of migration to the hardship and political interest of the destination state, from other-regarding and community interest-infused ethics to nationalist self-interest ethics.

The process of categorization in migration law and policy occurs in a respectful dialogue, in the best of circumstances—or in a conflictual struggle, in other cases—between executives, legislatures, civil societies and judiciaries. This paper offers a critical analysis of this dialogue on categorization, looking at the recent case law on the termination of temporary protection, the blanket exclusion of nationals of certain countries (widely referred to as the “travel bans”), and the different policies addressing the perceived large-scale migration through the Mexican border.

* Visiting Associate Professor, Harvard University Department of Sociology; Senior Lecturer of International Law and Refugee and Immigration Law, the College of Law and Business, Israel. This Article was conceived and partially written during the period of my fellowship in the Harvard Law School Human Rights Program in 2017–2018. I would like to thank Dr. Keren Yalin-Mor for her devoted research assistance and thorough editing work and Katrina Doyle-Black for her language editing. I would also like to thank Professor Sabrineh Ardalan, Dr. Avinoam Cohen, and Professor Jaya Ramji-Nogales for their helpful comments and important assistance. This Article was submitted for publication in February 2019 and has since then been updated.