Protection As Punishment: Victim Relief In The Crimmigration State by Erika Nyborg-Burch

Abstract

Over the past three decades, Congress has repeatedly promised noncitizen survivors of domestic violence, trafficking, and other serious harms a route from legal precarity to safety through victim-based immigration relief. Yet in today’s enforcement system, that promise is increasingly inverted. The same law-enforcement contact that makes survivors eligible for relief often triggers arrest, serving as an on-ramp to removal proceedings. As requests for statutory protection move through slow and discretionary agency adjudication, immigration court proceedings and deportations often outpace relief, especially for survivors in detention. This enforcement architecture cuts off access to protections and reproduces harm as state policy, undermining Congress’s commitments to noncitizen survivors.

This Article offers the first account of how the immigration enforcement system is vitiating the victim protections that were meant to temper it. The collapse of protections is not primarily a problem of individual ineligibility but a design flaw in federal immigration law. This Article’s intervention operates on three levels. Conceptually, it shows how victim statutes carve out a narrow, deserving victim against a legal system that increasingly treats illegality as a marker of criminality, blurring the line between victim and offender that relief presupposes. Doctrinally and institutionally, it identifies the mechanisms that thwart statutory protections: enforcement pipelines that link law enforcement encounters to deportation, criminal and discretionary filters that disqualify survivors for conduct shaped by coercion and precarity, jurisdictional separation between the immigration benefits agency and immigration courts, and detention-driven acceleration of removal. Normatively, it argues that this architecture both produces and obscures state-inflicted harms, like seizures in spaces of care, coercive confinement, and forced dislocation, perpetuating and legitimizing the very violence the federal statutes were enacted to prevent.

In response, the Article advances a reconstruction designed to operate where the current system fails. It proposes structural reforms that decouple survivor safety from enforcement: first, stabilizing protection on the front end through interim work authorization and access to essential services. Second, constraining enforcement overreach by cabining arrest authority, deputation arrangements, and enforcement in spaces of care. And third, making relief operative even after an arrest by narrowing disqualifiers, dismantling mandatory detention, and requiring pauses in removal proceedings during agency adjudication. Finally, because the communities most exposed to this enforcement.