Should They Stay or Should They Go?

Immigrants and the Right to Stay is a tiny book that raises a big question: Are undocumented immigrants who have managed to remain in the United States for an extended period of time—say, five to ten years—entitled to remain? The book consists of a short essay by Joseph H. Carens, a professor of Political Science at the University of Toronto, and responses by six eminent scholars. Carens argues for allowing the passage of time to help determine how to treat undocumented immigrants. His position, in a nutshell, is that, after a certain period of time, such immigrants become members of our society and are therefore entitled to remain here. Deporting these people is inhumane because it functions as a kind of exile that, in other contexts, we do not accept as a legitimate form of punishment. Moreover, at least for immigrants married to lawful U.S. residents, it disrupts family life by separating undocumented immigrants from their spouses and children.

Carens’s position is morally compelling. One reason I like his argument is that the idea of limiting “amnesty” to those who have been in the United States for a significant period of time is consistent with the right of states to regulate entry. Carens does not base his argument on the imperative of “open borders,” an extreme position he has supported in the past. While he recognizes that the violation of immigration laws as wrong in some sense, his argument is founded on the notion that, over time, a legal (and even moral) wrong can be mitigated to the point that it becomes wrong to try to undo it. That is an idea with deep roots in our legal system. Carens points to criminal statutes of limitations. Such statutes exist “[b]ecause it is not right to make people live indefinitely with a threat of serious legal consequences hanging over their heads for some long-past action, except for the most serious sorts of offenses.” That is surely one reason for criminal statutes of limitations, but I suspect worries about proof and erroneous conviction are probably more important in that context.

The better analogy is with the twin doctrines of adverse possession and prescription. These doctrines, which are virtually universal in systems of private property, recognize that possession or use of property that goes on for a long enough period of time should eventually be recognized as legal, even if they were illegal when they began. In most states, even an act of intentional squatting will ripen into full-blown property ownership after roughly seven to ten years. Scholars disagree about the foundations for this legal recognition of an act that begins in illegality, but most explanations focus on the kinds of factors that Carens discusses in the immigration context: the reliance on continued possession that builds up over time and the disruption that results from ousting a longstanding possessor. The case for the significance of time in the immigration context is even more compelling than it is for land because, as long as we do not believe we have reached the maximum sustainable population of our country, recognizing the right of undocumented immigrants to remain does not hinge on denying someone else the same right. 

In her response, Carol Swain tries to generate a sort of zero-sum conflict between undocumented immigrants and lawful U.S. residents by arguing that illegal immigrants do harm the poorest Americans by depriving them of jobs. “Carens and other amnesty advocates,” she argues, “should apply their considerable intellectual prowess and compassionate hearts to the plight of millions of American citizens and legal immigrants who struggle at the margins of society and who have few advocates other than some mostly Republican members of Congress and media figures such as Lou Dobbs and Fox’s Glenn Beck.” Set aside the implausibility of counting congressional Republicans as among the “few advocates” for those struggling “at the margins of society.” While there is no doubt some competition between illegal immigrants and those at the bottom of the employment ladder, there is very little evidence of the kind of zero-sum conflict that Swain’s objection requires. The recent passage of a draconian law targeting illegal immigrants in Georgia, for example, left tons of unharvested fruits and vegetables rotting in the fields. Those on the margins did not rush in to claim the economic opportunities that illegal immigrants had been denying them. In addition, it is not clear what role “illegality” has in Swain’s zero-sum argument.  Presumably, to the extent that immigration harms those at the bottom of the income scale, it does so whether it occurs illegally or under, say, a legal guest-worker program. Finally, Swain’s argument dodges the question of temporality. It seems likely that those undocumented immigrants who have been here longest are least likely to be working in the lowest-paid jobs and therefore least likely to be generating the sort of harm to which Swain points.

None of this is to say that the book is perfect. I would have preferred a slightly longer format, both for the main essay and for the responses, all of which occasionally seem superficial. In addition, it would have been nice to see more discussion of the role of race in Carens’s essay. This gap is filled to a certain extent by Mae Ngai’s response, which details the historical connection between race and Americans’ attitudes towards immigration, both legal and illegal. But, overall, this engaging book, which can easily be digested in a single sitting, is well worth the read.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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