The Equity of Immigration “Amnesty”

A fundamental question of justice—a question of balance between law and equity—lies at the heart of current U.S. immigration reform debates. That question is reflected in two ongoing controversies over rhetoric on the fate of the country’s eleven million unauthorized immigrants. For the rule of law, some decry as “amnesty” any proposal that would spare “illegal immigrants” from removal. They often add that the last so-called “amnesty” law in 1986 was a complete failure. However, this overlooks the fact that illegal immigration immediately dropped after the law was enacted and stagnated for several years thereafter, only to explode again after new immigration restrictions were enacted in 1996. Meanwhile, others decry the expression “illegal immigrant” as dehumanizing and unfair, because it stigmatizes unauthorized immigrants but completely overlooks U.S. nationals’ share of responsibility in fostering unauthorized immigration.

An immigration “amnesty” is always likely to become justified over time as a matter of legislative equity and on account of the atypical characteristics of immigration and nationality law in general. This includes how it necessarily limits the enjoyment of human and natural rights; how it is not fully justified by the democratic principle of rule of law; how naturally it becomes associated with civil rights abuses; and how naturally it lends itself to special leniency considerations over time.

Although international migration law does not yet explicitly include a right to immigrate (to enter and settle in a country), it explicitly includes a human right to emigrate (to leave a country) as part of the universal freedom of movement. Yet no right to emigrate might be enjoyed if immigration were disallowed. Thus, the sovereignty of nation-states in regulating the flow of persons across their borders is limited; on my reading, nation-states legitimately constrain free movement as a corollary to their preference for nationals in order mainly to avoid increasing their pre-existing burden of maintaining lives, cultures and welfare at an unmanageable pace, which should be less of a concern in the case of long-residing unauthorized immigrants.

At the same time, there is a degree to which even such legitimate immigration and nationality constraints might always remain inequitable, given their inherent structure. Socrates’ classic argument for the moral duty to obey unfavorable laws depends mainly on citizens having prior opportunities to either change the laws or emigrate. Indeed, per the democratic justification for the rule of law, those who must live by it have a right to define it. However, this argument fails to apply to immigrants since they lack the right to vote.

This exclusion is particularly problematic insofar as the international structure inequitably divides natural resources, broadly defined. For a country with the low population density and high natural resources of the United States especially, accepting immigrants should be an impersonal matter of public regulation somewhat akin to property law; it is less akin to private association or family law, although even the latter allows the mere passage of time to transform extralegal relationships into legal ones. And assuming that current economic opportunities emerge from some irreducible mix of natural resources with the past labor of nationals (keeping in mind that current nationals—some of them former immigrants—can take only partial credit for the labor of earlier generations), then, arguably, new immigrants retain some presumptive, residual “natural right” to share in those (pre-labor) opportunities.

Other (post-labor) rights equities are likely to also apply in the case of long-residing immigrants. Time spent in the United States in any status is already a key element of individual removal relief in immigration courts, especially for unauthorized immigrants with immediate family ties to the country. Likewise, mass immigration relief should be further justified at the political level based on accrued socio-economic ties, especially considering that unauthorized immigrant contributions to social welfare have become both significant and irreducibly entangled with national contributions. Nationals could try to claim this windfall as the fruit of a violation of their immigration laws; however, insofar as the failure to enforce those laws resulted from their representatives turning a blind eye (even arbitrarily—only to some violators—on purely discretionary grounds other than budgetary constraints), then unauthorized immigrants could reclaim at least some rights based on their contributions.

In addition, we should note that immigration law is often inequitable, too, in how naturally it lends itself—be it in other countries or at the local level—not only to arbitrary enforcement but also to abuse based on suspect classifications such as race and national origin.

Finally, other atypical features of immigration law might justify leniency over time. Consider, say, the fact that violating it automatically extracts from most violators a hefty penalty by condemning them to an often-precarious existence “in the shadows.” Or consider the fact that unauthorized immigrants violate their host’s immigration laws only in an effort to more fully become its subjects by submitting to its larger set of laws as a logical result of their act; in fact, studies show that immigrants are less likely to violate criminal laws. This painful quest for inclusion could not, admittedly, meet the classic standard for civil disobedience laid out by Martin Luther King, Jr. since, as conceded above, some initial nationality-based exclusion is justified and, thus, any “direct action” should be delayed. However, such noble political intentions should distinguish unauthorized immigrants from ordinary criminals and further mitigate their violation of immigration laws.

In time, these leniency equities should add to the rights equities discussed earlier, so the initial legal sanction of removal loses out in the balance of justice. Under such conditions as currently prevail in the United States, while immigration laws remain indispensable as a practical buffer, “forgiving” their violation—at least for immigrants who pose no distinct threat to their host—becomes more indispensable as a matter of not just mercy or charity but justice. Hence, an immigration “amnesty” becomes justified.

Amien Kacou is an attorney in private practice specializing in immigration law and a graduate of Johns Hopkins University's Global Security Studies program.