Over the course of the next few months, I want to spell out what claims undocumented immigrants can make if we assume that the immigration system is just and the immigration system distributes its benefits in a procedurally fair way. For the purposes of this discussion, the benefit in question is the conferral of resident and citizenship status, which I will term “regularization”. Before that, I will present three views in contemporary political discussion about undocumented immigrants.
The first view argues that undocumented immigrants are entitled to nothing. Undocumented immigrants who came through either illegal entry or visa overstay have broken the law; this is sufficient for immigration enforcement to deport them upon discovery. Assuming that the immigration system is just, that justness does not require the protection of basic rights of undocumented immigrants. This line of thought argues that since the system is fair and accessible to those who care to seek it, undocumented immigrants commit an action that goes against such a fair system. Unauthorized entry becomes a sort of “original sin.” Through unauthorized entry and presence, undocumented immigrants have violated a just and fair law and thus have no claim whatsoever beyond being returned to their home country. I do not present this argument as something I will consider, but I present it because it exists – and is influential – in immigration discussions.
A second line of thought suggests that undocumented immigrants have a limited set of claims that derive from their basic human rights, but have no claims to any of the benefits that are only conferred to residents and citizens. The view argues that we should respect the basic rights of undocumented immigrants wherever they are because undocumented immigrants are human beings. However, this view is one that is very partial to residents and citizens. Why does this view stop at the protection of the undocumented immigrant’s basic rights? The worry is not that there is some aspect of the undocumented immigrants’ moral character that could be a danger to the welfare state, but the sheer number of immigrants could drain the welfare state. Further, concerns about undocumented immigrants and the welfare state could stem from the assumption that there would be no guarantee of reciprocity; the state is diverting resources from the welfare state set for residents and citizens toward undocumented immigrants who most likely do not contribute to it. Justness according to this view requires that the influx of immigrants and the conferral of the rights and benefits of residence and citizenship is something that the state has an interest in controlling, although this view takes a weaker stance on restriction than the first. The first view argues that the state should actively seek deport all undocumented immigrants. This view maintains that the state, although protecting undocumented immigrants’ basic rights, should disincentivize current undocumented immigrants from staying and prospective immigrants from entering without authorization. Regularization is possible, but would be restricted in the interests of limiting incentive and protecting the interests of residents and citizens. For example, regularization would likely require a regularized spouse, blood relative, or employer. Regularization may require that the undocumented immigrant leave the country for a certain period of time with no guarantee of return. Even for undocumented immigrants who meet the requirement of a regularized individual petitioning on their behalf, such a process would be a long and difficult one. In sum, this view presents no guarantees that undocumented immigrants can regularize their status.
In addition to these two views, there is a third. This third view argues that although undocumented immigrants, in addition to being entitled to basic moral rights, ought to have an opportunity to regularize their status regardless of the circumstances of entry. Undocumented immigrants have more extensive claims than they would under the second view. According to this view, it would be possible for undocumented immigrants to regularize their status without a regularized individual petitioning on their behalf. A view that allows undocumented immigrants such an avenue to regularize their status behooves political actors (voters, legislators, courts, etc.) to consider the contributions that undocumented immigrants do make, and whether there is a way for the law to recognize those contributions. The law could utilize the passage of time as a morally relevant proxy for the contributions that an undocumented immigrant makes. By “morally relevant proxy” I mean a morally neutral substitute for a morally relevant marker, which grounds an undocumented immigrant’s claim to citizenship. In short, this view maintains that activities that undocumented immigrants partake in ought to be considered when they make claims to receive the benefits of residency and citizenship.
I have put forth the argumentative landscape about the claims undocumented immigrants can make within a just system. In finding the second view inadequate, I will argue for the third view. Undocumented immigrants ought to have their rights protected and ought to have the opportunity to regularize their status. With that being said, I will argue for this position in such a way that it seeks to complement existing immigration systems rather than replace them. In a related note, it is important to state that although this position argues for the naturalization of undocumented migrants, this position does not entail an endorsement of an open borders view.
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