Let them in

Illegal immigrants are breaking the law of the land. In a forthcoming book, Joseph Carens makes the moral case for waiving it.

By Rebecca Tuhus-Dubrow
May 23, 2010

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For most unlawful acts, we can all pretty much agree about the egregiousness of the offense: Murder is worse than burglary is worse than parking violations. But when it comes to illegal immigration, that consensus breaks down dramatically. As undocumented immigrants and their supporters see it, these residents are doing what any of us would do — seeking better lives, often driven by intolerable poverty. To opponents, illegal immigration is not only a crime, but a crime that takes jobs from American citizens. From this point of view, the punishment — simply being sent home — can even be seen as lenient.

The recent Arizona legislation to step up enforcement of immigration law embodies the second outlook — and has returned the issue to the fore of national debate, triggering protests by those who believe we should ease up on illegal immigrants rather than crack down on them.

Why should we decide not to enforce a law? In an upcoming book, the political scientist Joseph Carens stakes out a moral case for letting immigrants, even illegal ones, stay. He accepts the prerogative of states to deport unauthorized immigrants — up to a point. But after the newcomers have established lives and ties here, he argues, they have acquired what he calls the “right to stay,” a moral claim to a place in the society where they’ve settled. When enough time has elapsed, he suggests, deportation no longer amounts to sending people home but rather uprooting them from home. Instead, Carens submits that after a designated period — he proposes five to seven years — undocumented immigrants should be embraced as Americans and granted the chance to formalize their status.

Raised mostly in Wellesley, Carens himself emigrated to Canada, where he is a professor at the University of Toronto and a dual citizen. The book, “Immigrants and the Right to Stay,” to be published in September by MIT Press, includes his essay and responses from six other experts. He recently spoke with Ideas by telephone from his home in Toronto.

IDEAS: You write that after a certain period of time, people who entered the country illegally acquire a “right to stay.” On what grounds do they have this right?

CARENS: The fundamental argument is, over time people become members. Regardless of the terms under which they entered, the situation, the conditions under which they entered, they become members.

IDEAS: What does the word “member” mean to you?

CARENS: What makes you a member of society is living your life in a particular place, and having social connections with the other members of that society....The legal status of membership should flow from that social reality, rather than the legal status warping the social reality by excluding people.

IDEAS: There’s a story in the news right now about a college student in Georgia, Jessica Colotl, who was stopped for a traffic violation and may be deported because she came here illegally.

CARENS: She came at a young age, she clearly speaks English very well, has been a very successful student, she’s graduating from university. So I think this is a kind of classic example of what I’m saying about a person who has become an American. That’s where she grew up, that’s who she is. But she doesn’t have formal status.

IDEAS: Does a person ever forfeit the right to stay?

CARENS: You could make an argument that, again, somebody who comes at the age of 2 without authorization and now they’re 30 and they commit a crime, you know, they may be bad people, but they’re Americans. And they’re our problem and not somebody else’s problem — we should deal with it.

IDEAS: You note that a variation of this idea was applied more commonly in the past, here.

CARENS: The law was written in a way that granted the attorney general the discretionary authority to permit people to stay, and to take into account family circumstances and so on. In recent years, as there’s been this growing anti-immigrant sentiment, in various ways the discretion has been restricted.

IDEAS: It seems surprising now, but I think I remember that amnesty was granted under Reagan?

CARENS: When Reagan was president, there was a law passed, this was a 1986 law, which did grant amnesty to a very substantial portion, not all, but a very substantial portion of the population of immigrants who were here without authorization at that time....There were huge numbers, millions, who were given legal status at that time....Until the last few years, this hasn’t divided so strongly along party lines. It’s only in the last few years that the Republicans as a party have been so vehemently anti-immigrant.

IDEAS: There’s a middle ground that advocates opening channels to legal status, but also enforcing penalties. You don’t think it would be appropriate to have immigrants pay some penalty for their initial transgression?

CARENS: One of the analogies I use here is with the statute of limitations. You know, there is no such penalty under the statute of limitations. The penalty is that you lived for seven years with this sword hanging over your head.

IDEAS: These days terrorism affects how a lot of people feel about this issue.

CARENS: Most of the terrorist incidents we’ve had in the United States, including most famously 9/11, but almost all of the others — and including the latest [the Times Square attempted bombing] — have been people who were present under some lawful immigrant status....Do people make this association, as an empirical matter? Probably so. Is there a basis for that association? Almost certainly not. We’re talking about 11 million people, the vast majority, you know, over half of them from Mexico. We know that terrorism is not an issue in this population.

IDEAS: Wouldn’t your policy encourage more illegal immigration?

CARENS: I don’t think people are going to come in much larger numbers because they have some hope for five or seven or ten years down the road they will get status. They come now, without that hope, in huge numbers.

IDEAS: As a matter of principle, don’t nations have a right to determine who lives within their borders?

CARENS: That right to control immigration is never morally unrestricted. Everybody knows that. We no longer think, although historically we had a racially discriminatory immigration policy, nobody thinks it would be morally acceptable for the United States or any state to adopt an immigration policy that discriminated today on the basis of race....I’m trying to say, here’s an additional moral’s an obligation to respect the moral claims to membership of people who have settled over a long period.

Rebecca Tuhus-Dubrow is a contributing writer for Ideas. She can be reached at