Amnesty for Undocumented Immigrants: Moral Imperative?

There’s an important roundtable in the May/June issue of Boston Review on the subject.  (Who else finds Boston Review to be more interesting than the New York Review of Books these days?)  It includes a lead-off piece making the case by University of Toronto political theorist Joseph Carens, with responses from Alex Aleinikoff, Linda Bosniak, Gerry Neuman, Peter Schuck, and Rogers Smith, among others.  Carens concludes that “states should establish an individual right for migrants to transform their status from irregular to legal after a fixed period of time, such as five to seven years.”  In other words, a sort of rolling amnesty.  The basic justification is that the law must account for the moral importance of social membership, which will inevitably attach after some period of presence.

I’m sympathetic; the longer the period of presence, the tougher it is to justify the sometimes extreme dislocation of removal.  (Carens plays heavily on stories like this one.)  Beyond the moral question, this may be the leading edge in framing immigration policy as a matter of human rights concern, which marks a radical shift away from sovereign discretion in the area.

In the US context, that should help move some pro-immigrant policies through the legislative side.  The lowest hanging fruit: the DREAM Act, which would regularize the status of many undocumented alien high school graduates (meanwhile, who’s working public relations over at DHS?).  The next rung are cases involving family unity.  So-called mixed status families have been getting a lot of play lately for the good reason that there are a lot of them (four in ten U.S.-born Latino children have at least one undocumented alien parent).  If immigrant advocates can’t win a broad amnesty, they might accept the regularization of illegal aliens who have family ties to citizens or LPRs, especially by marriage (this could be accomplished with a simple date change in section 245(i) of the Immigration Act).  But Congress is unlikely to conceive a individual right against deportation, especially where an alien has engaged in criminal behavior.

Might the courts?  In the long tradition of immigration exceptionalism, the courts have been extremely hands off when it comes to the regulation of immigration.  But there are signs of retreat from the plenary power doctrine.  The major NGOs have started a drumbeat, and they have international practice for ammunition.  It’s not impossible to imagine the courts interceding in, say, the case of a near-lifelong resident facing deportation for a relatively minor criminal offense, under the aegis of substantive due process.