The sheer length of stay is not by itself decisive.
May 1, 2009
With Responses From
May 1, 2009
6 Min read time
The sheer length of stay is not by itself decisive.
Joseph Carens’s defense of amnesty for irregular migrants is written with generosity of spirit and purpose. It helped me understand why incessant repetition of the term “illegal immigrants” is so grating, being one side of an increasingly pointless debate pitting often-hysterical anti-“illegals” on one side and advocates of open borders—who insist that people can come and go as they please and receive the full provision of services and panoply of rights available to legal citizens, minus citizenship obligations—on the other. Anyone troubled by the extreme rhetoric on both sides of this debate will greet his essay as a breath of fresh air.
I am one of the many Americans who remains in intimate contact with an immigrant past. My maternal grandparents of blessed memory were “Volga Germans,” ethnic Germans who had made their home in Russia for centuries but were in increasing danger of having the autonomy of their communities eroded. Had they remained in Russia, they would either have been murdered under Stalin or been sent on the “long march” into the Asiatic republics of the Soviet Union, with many perishing en route. The assault on the Volga Germans was a small genocide as twentieth-century genocides go, but a genocide nonetheless. As the granddaughter of immigrants, I am keenly aware of the importance of immigration to American identity and the American experience. Should we become inhospitable to immigration, we would be an entirely different country.
That said, uncontrolled immigration poses real problems. These problems are particularly acute, as Carens points out, for liberal democracies that must refrain from certain extreme actions—for example, mass deportation of illegal or, better, irregular migrants—that would constitute a massive violation of the core principles of such democracies. Carens’s proposal—accepting irregular migrants as members of the community if they have been present for an extended period—seems an attractive option. Initially, I thought that some penalty should, perhaps, be attached for having been an irregular migrant for an extended period of time. But, for the life of me, I could not think of one that would be appropriate. Dealing with the daily fears that haunt the lives of irregular migrants seemed penalty enough.
Carens’s judicious approach recognizes, as the advocacy of the easy border-crossing camp does not, that a state has the “right to determine whom it will admit and to apprehend and deport migrants who settle without official authorization.” At least “most people” think so, he adds as a caveat. I would cast this right in stronger language for it is a recognized feature of what it means to be a sovereign state. Carens is correct that that right, like any right, is not and can never be absolute. What he proposes is to soften that right and to explore whether the state incurs moral obligations to irregular migrants over a period of time. He makes a powerful case on behalf of this view.
To be sure, the stories of those he chooses to illustrate his position were no doubt selected because they are particularly poignant and powerful. Any but the hardest of the hard-hearted will understand the rationale for regularizing the presence of such persons among us. But suppose someone has slithered along for the requisite time Carens suggests—five to seven years—selling illegal drugs, participating in gang activities, trafficking in stolen goods. Do we incur a moral obligation to this sort of irregular migrant? Surely not. The irregular migrants he describes are those who can make a reasonable claim that the United States has become their home; that they are law-abiding members of the society; and that, therefore, their de facto presence should generate a de jure right to remain. The sheer number of years is not by itself decisive.
Carens’s essay is not the work of one interested in rewarding lawbreaking. Were that the case, he would surely go for blanket amnesties to be issued every few years. Instead, he calls for a certain form of recognition of what a person does over a span of time during which he or she works, pays taxes, goes to school, perhaps starts a family, and does not run afoul of the law except insofar as he or she is present without authorization. It has never made sense to me to treat all such persons as criminals, a point Carens makes. Given our messy, conflicted immigration situation at present, his moderation is welcome. I do, however, see some difficulties. Let me mention two, one is pragmatic, the other conceptual.
First, it would require considerable finesse and care on the part of officials to weigh the cases and avoid regularizing the presence of those who have by no means made America their home so much as the place they have exploited for shady purposes. Careful procedures would need to be drawn up. By retraining those who are currently devoted to ferreting out “illegals,” we could avoid adding another layer of inefficient bureacracy to our existing immigration control efforts. I may be overstating the difficulties, given that the irregular migrants Carens has in mind do not have to prove anything other than their presence among us for a given period of time as law-abiding persons who are working and raising families. But if his criterion is not just the passage of time, as he insists, but on what was done over that span of time, officials must be provided the means to make important distinctions.
On the conceptual front, here is the irritant: Carens notes that most irregular migrants engage in a kind of cost-benefit calculation. They “come because they think they can find work that is considerably more financially rewarding and because they think they will be able to evade the immigration authorities, at least long enough to make it worthwhile.” Why is this troubling? Because it seems so calculating and utilitarian, not being tied to aspirations for freedom and legal equality, as it was for my grandparents and so many others over the years. Those dimensions cannot be ignored: they are central to the American ideal of what it means to be a free citizen of a republic.
In light of this second concern, I propose an addition to Carens’s argument: those whose status is changed from “irregular” to “legal” will be obliged to take the citizenship classes now incumbent upon legal immigrants who become citizens. The waiting period for legal residents is five years. The waiting period for irregular migrants should also be at least five years. A ritual of citizenship and recognition of membership are vital—hence the obligation to study, to pass the test, and to take one’s oath as a full-fledged citizen. Anyone who has made the United States his or her home should not cavil at such a requirement. I recall tutoring my grandmother in civics when she decided, in her 60s, to become a citizen at long last. The citizen granddaughter tutoring the noncitizen grandmother whose life had made the grandaughter’s possible was, for me, a touching experience and reminded me of how much I owed to my unlettered and impoverished grandparents, who, as children, came to this bewilderingly complex country and made it their home—in every sense of the word. We should never underestimate or ignore the power of this process.
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