Abstract

Excerpted From: Elana Fogel and Kate Evans, The Road to Slow Deportation, 74 Duke Law Journal 1389 (March, 2025) (209 Footnotes) (Full Document)

Traffic stops have become the preferred tool for policing. As the prevalence of traffic stops has increased, so too have their costs. For the twenty million motorists stopped every year, these costs range from highly publicized police killings of Black motorists during traffic stops at one extreme to the more common issuance of warnings for moving violations. Traffic stops that result in a ticket or citation impose a financial penalty with compounding potential consequences, such as driver's license suspension and revocation. The ensuing debts, totaling tens of billions of dollars nationwide, can “result in the loss of employment, housing, ... and ... voting rights.” Numerous studies have shown that traffic stops and subsequent searches are directed disproportionately at Black and Latiné drivers. What is less well- known, however, is how stops are experienced by noncitizens when they do not lead directly to deportation.

As a growing number of states pass legislation that requires cooperation between local law enforcement agencies and Immigration and Customs Enforcement (“ICE”) and create new state criminal offenses associated with travel and lack of immigration status, the impact of traffic stops on noncitizens is only growing in scope and severity. Policymakers argue the provisions are necessary to address the “thousands of people who ... shouldn't be here.” The result is that large swaths of the country are now blanketed with a patchwork of laws that raise the stakes of traffic stops for noncitizens and create harms for families and communities that extend well beyond any direct legal effects. As a second Trump administration takes office with promises of mass deportation and local law enforcement alliances, the impacts of traffic stops on noncitizens and their families will only grow.

This Article focuses on the impact of traffic stops that do not initiate removal proceedings. It conceptualizes the experience of traffic stops for noncitizen drivers as a process of “slow deportation.” It adapts the theories of “slow violence” and “slow death” developed by humanities and social science scholars to describe diffuse harms that unfold over time and thus escape attention and intervention. These accumulating harms sit in contrast to spectacular acts of violence, which are easy to recognize and rally around. Through privileging and contextualizing individual client stories within the existing legal and policy literature of traffic policing, this Article produces a novel ethnography of slow deportation by traffic stop. The framework reveals how the legal doctrine on traffic stops, their racialized use, and their multifaceted and mounting effects work together to create a system experienced by noncitizens as one of surveillance and exclusion. This framework not only brings into focus the cumulative and compound harms of traffic stops, it also demands new approaches by lawyers, health service providers, and policy advocates that correspond to this experience.

This Article sits between, and seeks to connect, several discrete bodies of literature. Criminal procedure literature on the racialized use of traffic stops has generated the powerful rhetorical and theoretical concepts of “Driving While Black” and “Driving While Brown”; however, scholars have been less focused on the role of immigration status in these interactions with police. On the other hand, although a large body of immigration literature explores the intersection of criminal and immigration law and enforcement, this scholarship focuses largely on the immigration consequences of various substantive crimes, sentences, and postconviction relief, or the convergence of enforcement mechanisms and efforts to resist this merger. Finally, much of the crimmigration literature understandably focuses on the spectacular violence of traffic stops as a direct pipeline to immigration arrests and removal proceedings and does not address the impact of stops on noncitizens who have driver's licenses. It has yet to explore the cumulative and compounding legal and nonlegal effects of traffic stops, which unfold gradually for noncitizens when deportation does not immediately follow. This Article addresses that gap in the literature by looking beyond the role of traffic stops as an entry point to the deportation pipeline. It extends the work of immigration scholars who apply the framework of slow death to other areas of immigration law and frames the experience of traffic stops as one of slow deportation. By connecting the lived experiences of our clients to theory and praxis, we identify new interventions in client counseling, health services, and policy change.

This Article proceeds in three parts. Part I examines how Fourth Amendment doctrine developed alongside policing priorities to render traffic stops as the preeminent law enforcement tool. Next, Part II adapts the concepts of slow violence and slow death from social science and humanities literature to create the lens of slow deportation. This Part combines our clients' stories with scholarship examining the impact of racial profiling, mass surveillance, and social control in Black and Latiné communities and with interdisciplinary literature on the economic and health impacts of traffic stops. It asserts that for noncitizen drivers, racialized surveillance and social control, accumulating economic and health effects, and compounding immigration consequences culminate in an unfolding experience of exclusion and separation, which this Article labels slow deportation. Part III concludes by outlining how practitioners can mitigate the experience of slow deportation with interdisciplinary and integrated responses and how policymakers and advocates can broaden their reform movements to achieve structural change.

[. . .]

The regime of racialized traffic stops at a large scale subjects noncitizens to surveillance of both race and immigration status. Individuals, families, and communities experience a constellation of accumulating economic, physical, mental, and legal harms that result in isolation and exclusion. Noncitizens experience these harms as a slow process of metaphorical and sometimes actual deportation. The slow deportation framework enables a new understanding of these insidious harms as compounding and structural. The slow deportation paradigm, in turn, demands interdisciplinary, systemic, and status-informed responses by individual service providers and proponents of policy reform.

Elana Fogel, Assistant Clinical Professor of Law and Director, Criminal Defense Clinic, Duke University School of Law.,

Kate Evans, Clinical Professor of Law and Director, Immigrant Rights Clinic, Duke University School of Law.