The Case for Immigration Amnesty

 

A sign cautioning U.S. drivers to be aware of recent arrivals from Mexico running across the highway.
A sign cautioning U.S. drivers to be aware of recent arrivals from Mexico running across the highway.

 

Joseph Carens is one of the world’s most interesting political theorists. I first became aware of him when I took a class in which we were assigned to read his famous essay , “Aliens and Citizens: The Case For Open Borders,” in which Carens makes the provocative argument that immigration controls should be abolished. Carens, who teaches at the University of Toronto, has made his career writing about immigration, and he often challenges deeply held assumptions about the subject that rarely receive critically examination. Even when you disagree with Carens, as I think I do on the subject of open borders, you often come away from his work feeling like you’ve learned something.

 This side of Carens is on display in a Boston Review symposium on amnesty for illegal immigrants. The symposium takes the form of an essay by Carens making the case for amnesty, followed by responses by 16 writers. Carens argues that whether someone should be grated citizenship of a country should be determined by more than purely legal considerations. It also matters how long the person has lived in that country, legally or not. He establishes his premise with the following example:

Consider the case of Marguerite Grimmond. Grimmond was born in the United States but moved to Scotland with her mother as a young child. At the age of 80, she left the United Kingdom for a family vacation to Australia. It was her first time away from Britain, and she used a newly acquired American passport. When she returned to the United Kingdom, immigration officials told Grimmond that she was not legally entitled to stay and had four weeks to leave the country. She was, in effect, identified as someone who had been an irregular migrant all those years, since she had never established a legal right to reside in Britain. And she clearly knew that she was not a British citizen because she obtained an American passport for her trip.

Despite all this, once the story appeared in the newspapers, Grimmond was not deported. The moral absurdity of forcing her to leave a place where she had lived so long was evident, whatever the legal technicalities. She had been an irregular migrant for all those years, but that clearly no longer mattered.

In a nutshell, Carens argues that if we agree that it would be absurd to deport Grimmond, then we agree that someone can legitimately belong to a country even when the law says she does not. If we grant that, then some forms of amnesty for illegal immigrants can be acceptable in principle. Much still depends on the details of any particular amnesty scheme, but amnesty is no longer automatically wrong simply because the people involved broke the law. In the rest of his essay, Carens goes on to explore what one possible model of “rolling amnesty” would look like.

One of the responses to Carens is by Gerald Neuman, a Harvard law professor. He argues that there are factors in addition to legality and residency that should determine whether or someone is accepted as a member of society:

 

Social rootedness is assumed [by Carens] without asking whether a migrant’s residence within the host state is fixed or mobile; whether the migrant’s personal relationships are stable or fluid; whether the migrant’s social connections are to one heterogeneous community, an enclave of fellow migrants, or a series of unrelated job sites. Nor does the analysis take into account the migrants’ continued ties to their countries of origin—the relatives and friends they left behind, the property they own there, the remittances they send, the visits they may make there. 

 It is not clear if Neuman is using a consistent standard when it comes to citizenship. As Carens points out in his rejoinder, when it comes to people born inside the U.S., no one says their citizenship should depend on how often they move around, or change jobs or relationships. If such factors are irrelevant in the case of the native born, it is not clear why they suddenly become relevant when we switch our attention to people who are born in Mexico and move to the U.S.

Nevertheless, Neuman’s essay does raise the possibility that there are factors beyond legality and duration of residency that should influence whether someone is accepted as a citizen. Whether someone has made an effort to learn the language of the host society, for example, might be one such factor. If so, it would be a consideration the Marguerite Grimmond scenario, illuminating as it is, does not capture.  

There are other areas where one might take issue with Carens, including his claim that granting amnesty after five years of residence would not create an incentive for further illegal immigration (I’d like to see more evidence about that). But there’s no question that Carens’ essay is highly original and thought provoking. It is also persuasive on a central point. The case for amnesty is much stronger than many people are prepared to admit.

One thought on “The Case for Immigration Amnesty

  1. Human migrations flow with a natural power that dismisses the paper pretenses of nationality or sovereignty. People will ultimately move wherever they will, as inevitably as gases and fluids filter through steel and rock.

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