Philosophy paper

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Chapter 5

The Ethics of Immigration Enforcement

In Chapter 4, I summarized Christopher Heath Wellman’s argument in support of a legitimate state’s presumptive right to control immigration. I focused on this argument because it seemed to provide the best resolution to the liberty dilemma as it arises with respect to the issue of immigration. I then outlined four general types of criticisms that have been leveled against this view along with how Well- man has or could respond to each. In this chapter I provide my own criticism of Wellman’s argument, but one that goes in a different direction than the others. This criticism challenges Wellman’s conclusion, that the presumptive right is on the side of legitimate states and not migrants, by considering what moral or political limits there are on immigration enforcement. By immigration enforce- ment, I have in mind the entire coercive apparatus a regime has at its disposal to prevent the unauthorized entry of or to locate and remove otherwise peaceful civilian noncitizens. This includes, but is not limited to, such things as guards, physical barriers, raids, detention centers, weapons, sensors, surveillance tech- nology, and the strategies by which these are used in concert.

As prior chapters have shown, philosophers working on the issue of immigration have primarily focused their attention on questions of admission and exclusion (i.e., who may be let into a political community and who may be kept out), so a criticism that focuses on enforcement (i.e., how and through what means a legitimate state can keep unwanted foreigners out) might seem a little out of bounds. After all, philosophers often bracket questions of enforcement, at least initially, when attempting to determine who is entitled to certain rights and who is bound by certain duties. For example, in just war theory it is not uncommon to separate discussions about whether to go to war (i.e., jus ad bellum) from discussions about what kind of conduct is proper while fighting a war (i.e., jus in bello). This chapter therefore challenges the way the immigration debate has been framed within the ethics of immigration

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literature by showing that enforcement does matter in determining the pre- sumptive rights or duties of immigrants.

The first section of this chapter will make the case that there are presumptive moral limitations on what a legitimate state can do to enforce its border. It will argue that in order to properly adhere to those limitations a legitimate state’s immigration policy cannot be discretionary, but must instead be circumvented by such factors as economic realities, family relationships, and socio-historical circumstances. The second section of this chapter then turns to the issue of internal enforcement and the concern for political equality. That section argues that when minority communities are forced to bear a disproportionate amount of the surveying, identifying, interrogating, and apprehending that comes along with internal immigration enforcement, members of those particular minority communities become socially and civically ostracized. In other words, they are not given equal political consideration. In order to avoid such an outcome, inter- nal immigration enforcement must be constrained so that no citizen (or group of citizens) comes to bear a disproportionate amount of the negative externali- ties that come with enforcement (e.g., an “equality of burdens” standard) and certain protections must be put in place that shield all citizens from the excesses of immigration enforcement (e.g., “universal protections” standard). Together these two standards create a canopy that provides all persons, including undoc- umented immigrants, with certain presumptive protections against a legitimate state’s internal enforcement apparatus.

If the arguments in either section are convincing, then they will show that when enforcement is taken into consideration a commitment to universal equality (e.g., moral or political equality) cannot be reconciled with a legiti- mate state having a presumptive right to control immigration. Instead, a com- mitment to universal equality entails that a legitimate state’s right to control immigration should be limited by presumptive duties (e.g., equality of bur- dens and universal protections standards) and its admissions and exclusions criteria must be determined, at least in part, by external factors such as social, historical, and economic circumstances. In short, when an ethics of immigra- tion is considered in its entirety—admission, exclusion, and enforcement— the only way to consistently reconcile democratic self-determination with a commitment to human rights (e.g., individual freedom and universal equality) is for the burden of proof (i.e., the presumptive duty) to be on legitimate states and not immigrants.

JUSTIFIED LIMITS ON BORDER ENFORCEMENT

In 1994 the US began to employ a military-style border enforcement strat- egy along its southern border dubbed “prevention through deterrence.”1

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This strategy was put in place in response to the increased number of undocumented immigrants living in the US and in particular to the unauthor- ized crossing of migrants at easily accessible points of entry (e.g., urban areas along the US/Mexico border). The idea behind prevention through deterrence was simple. Given that the personnel and resources at the disposal of the US Border Patrol is finite and that not all areas along the border are as easily accessible, the inhospitable parts along the border (e.g., deserts, mountains, and rivers) would be used as natural barriers to prevent unauthor- ized entry. This strategy therefore concentrated personnel and resources at easily accessible points of entry, while at the same time paying less attention to the more inhospitable (and less easy to patrol) areas. The assumption was that the risk posed by the inhospitable terrain would deter unlawfully entry in those areas of the border. At the same time, a strong show of force at more easily accessible points of entry would deter unauthorized crossing at those points as well.

The architects of this strategy were well aware that the number of migrant deaths along the border would likely increase during the first few years of this strategy’s implementation. Unauthorized crossings would obviously get fun- neled away from the safer, but now more heavily patrolled, urban areas toward the more dangerous, but less patrolled, mountainous and desert regions. They believed, however, that the number of undocumented immigrants, as well as the death toll along these regions of the border, would begin to decrease as word got out about the dangers of trying to unlawfully enter the US through these areas. Hence the name: prevention through deterrence.

Unfortunately, their prediction was wrong on both accounts. Unauthorized crossings through these inhospitable terrains, along with the exposure deaths that come with it, have remained unabated. To put this in perspective, migra- tion expert, Wayne Cornelius, made the following observations ten years after the implementation of prevention through deterrence:

the fortified US border with Mexico has been more than 10 times deadlier to migrants from Mexico during [1995–2004] than the Berlin Wall was to East Germans throughout its 28-year existence. More migrants (at least 3,218) have died trying to cross the US/Mexico border since 1995 than people—2,752— were killed in the World Trade Center attacks on 11 September 2001.2

According to an even more recent report, close to 6,000 migrants have died trying to cross into the US between the years 2000 and 2014 with most of these deaths being directly attributed to the prevention through deterrence strategy.3

To add insult to injury, this strategy has also been both very expensive and ineffective at reducing the number of undocumented immigrants. In 1993— the year before prevention through deterrence strategy went into effect—the

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budget for US border enforcement was close to 1.5 billion dollars,4 while the requested budget for border enforcement for 2016 was close to 19 billion dollars. This is almost a 1300% increase!5 Yet before 1994 the estimated number of undocumented immigrants living in the US was believed to be about 3.5 million. In 2007—so thirteen years into the strategy—the number of undocumented immigrants living in the US was estimated to be about 12 million.6 The prevention through deterrence strategy has therefore proven itself to be an absolute humanitarian, economic, and practical failure.

Part of the reason for this strategy’s failure was its misguided understand- ing of migration to the US. Before 1994, most undocumented immigrants who came to the US followed a pattern of circular migration. They would work in the US for a few days, weeks, months, or even years and then return home. Few migrant workers came to the US with the intention of remain- ing permanently. The prevention through deterrence strategy disrupted this pattern of migration. As it became more dangerous and more expensive to enter the US without proper documentation, more undocumented immigrants simply began staying in the US instead of returning home. As migrants began to stay permanently they did what most people do, they set down roots in the US, made a life for themselves, and began to bring their family. So this is why instead of keeping undocumented immigrants out, the prevention through deterrence strategy actually had the unintended consequence of sealing many undocumented immigrants in. On top of that, it appears that the US economy needed these undocumented immigrants. This changed, however, after the 2008 financial crisis. During this crisis demand for migrant labor dropped and with it came a corresponding drop of about one million undocumented migrants. This signaled the first drop in the number of undocumented immi- grants in the US in almost twenty years.7

The ineffectiveness and morally questionable consequences of preven- tion through deterrence are damning and they raise an issue to which few philosophers have given much consideration: what, if any, are the limits to the coercion a legitimate state may use to enforce its immigra- tion policies and could these limits be weighty enough to circumvent the discretion legitimate states have in determining admissions and exclusions criteria? One philosopher who has attempted to address this question is Arash Abizadeh. In “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,” Abizadeh argues that:

Anyone who accepts a genuinely democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control and close the state’s boundaries, whether boundaries in the civic sense (which regulate membership) or in the territorial sense (which regulate movement).8

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In other words, the use of coercive force by a political regime is legitimate only when those subject to the coercion have (or have had) a voice in the direction or the shape the regime has taken. Given that foreigners have had no voice in the direction or shape that border enforcement has taken in the political communities they wish to enter, the coercion immigrants encounter at borders appears to be illegitimate.

One possible communitarian/nationalist response is to suggest that democracy requires political boundaries at some level. For example, members of one political community (e.g., US citizens) should not be free to vote in elections of a totally different political community (e.g., elections in Canada). This example seems to show that at some level political boundaries are neces- sary and not unjustified. These boundaries would also be completely useless if they could not be enforced (e.g., if US citizens were simply free to ignore them). Abizadeh understands this concern, but notes:

The mere existence of a border delineating distinct political jurisdictions does not necessarily entail anything about its regime of border control, which comprises the reigning entry policy (how open, porous, or closed the border is) and who controls the entry policy.9

Abizadeh is here arguing that even if boundaries between political com- munities are necessary and justified, it would not entail that one political community has the right to unilaterally control the border it shares with another political community. Unilateral control of the border would require a further argument, which has yet to, and that Abizadeh doubts can, be offered. Abizadeh’s point here is simple and yet brilliant: the principle of democratic self-determination, which has been offered in defense of a political commu- nity’s right to control immigration, does not necessarily entail a unilaterally right because the control of borders affects people on both sides of the divide. It therefore requires both parties have a voice in such matters. As Abizadeh points out:

To be democratically legitimate, any regime of border control must either be jointly controlled by citizens and foreigners, or, if it is to be under unilateral citizen control, its control must be delegated, through cosmopolitan democratic institutions giving articulation to a “global demos,” to differentiated polities on the basis of arguments addressed to all.10

David Miller has provided a response to Abizadeh, claiming that immi- gration controls are not coercive (i.e., they do not violate the self-determina- tion of others nor do they fail to respect the equal moral worth of persons). Therefore, border controls do not need democratic justification from both

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parties. This is because, while border regimes do prevent certain individu- als from performing certain actions, they do not necessarily circumscribe the range of all adequate alternatives.11 According to Miller, it is the later part—the circumscription of adequate alternatives—that makes coercion morally wrong and therefore in need of democratic justification. Miller continues: “By conflating being subject to coercion, in the proper sense, with hypothetical coercion, Abizadeh severs the link he is trying to forge between coercion and autonomy.”12 In reply, Abizadeh has pointed out that Miller’s distinction between proper and hypothetical coercion is mistaken and if it were correct it would allow for a vast array of laws to be exempt from democratic justification, thereby undermining self-determination at a far grander scale.13

While this is a fascinating discussion over the nature of coercion, its focus on autonomy and democracy does not cover everything that is mor- ally problematic with border enforcement strategies like prevention through deterrence. The moral wrong of such strategies has less to do with the fact that the victims had no voice in their design or implementation and more to do with the fact that these sorts of strategies fail to give them adequate moral consideration. So even if Miller is correct about the nature of coercion and self-determination (and I am not convinced that he is) the larger point that is driving Abizadeh’s argument remains relevent: the lives and interests of foreigners need to be taken into consideration when determining the moral appropriateness of border enforcement—even if that means limiting the dis- cretion legitimate states have in controlling immigration. This expansion of Abizadeh’s argument therefore offers a powerful and yet overlooked objec- tion to Wellman’s argument. Using Wellman’s own definition of a legitimate state, it would seem that border enforcement strategies that fail to give for- eigners adequate moral consideration (e.g., prevention through deterrence) should be off the table. However, this can only be accomplished, as the rest of this section will show, if the control legitimate states have over immigration policy is circumvented not discretionary.

As we saw in the previous chapter, Wellman acknowledged that legitimate states have an obligation to respect individual liberty and universal equality. In doing so, legitimate states amassed some fairly onerous moral obligations. For this reason, Wellman proposed various, and at times very ingenious, ways for legitimate states to discharge those obligations without, at the same time, accruing any limits on their right to exclude unwanted immigrants. It there- fore seems safe to assume that in assessing the morality of border enforce- ment, Wellman would continue to accept that legitimate states must respect commitments to individual liberty and universal equality.

If we begin from the assumption that there is nothing inherently unjust about the boundaries that exist between political communities (which is an assumption that can and should be challenged, especially in nonideal

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circumstances), then border enforcement does not on its face appear to be a violation of individual liberty or universal equality. Border enforcement becomes unjust only when it uses certain intrusive methods or practices that infringe on the liberties of individuals in morally objectionable ways.14 For example, imagine a case where everyone attempting to enter a country, including citizens, were subjected to extensive interrogation without counsel or indefinite detention until their legal status could be positively confirmed. One does not necessarily need to have strong libertarian tendencies to see that such practices, even if everyone were equally subjected to them, run counter to a commitment to individual liberty. Under normal circumstances, justice requires that legitimate states not deploy such harsh and invasive measures— even when they are the only way to prevent undocumented immigration.

A concern for individual liberty therefore places certain moral limits on the kinds of enforcement a legitimate state may properly implement at its border. This means that the need for border enforcement is not a moral blank check for legitimate states to do anything they want. These limits, however, are still not yet limits on the discretion legitimate states are thought to have in granting or denying immigrants admission. Even if legitimate states are limited in what they can do to enforce their immigration policy at the border, it does not mean they must therefore admit immigrants they would rather not associate with.

A concern for universal equality, however, might prove to be a different story. Recall the earlier example of prevention through deterrence. In that case, the US government deployed a border enforcement strategy that has been responsible for an increase in migrant deaths. The dire consequence of this strategy was both foreseeable and confirmed by over twenty years of experience. In this case the border enforcement strategy was also inef- fective, but what if that had not been the case? Could legitimate states be free to implement a border enforcement strategy that fails to give foreigners adequate moral consideration, if it is the only effective way to enforce their democratically supported immigration policy? If not, as I think an account like Wellman’s must concede, then what could a legitimate state do to enforce its immigration policy in a morally acceptable way?

In such a case, a legitimate state seems to have four options at its disposal. First, (1) it could try to entice precluded immigrants either to remain in their home countries or to migrate to a different country. This option might allevi- ate enough pressure on border enforcement and thereby make it possible for a legitimate state to enforce its preferred immigration policy without having to resort to any use morally problematic means (e.g., prevention through deter- rence). Second (2), and likely in conjunction with the first, it could modify the internal “pull” factors that are attracting precluded immigrants to its territory and in that way alleviate some of the pressure on border enforcement. Third, (3) it can limit its border enforcement to morally acceptable levels while at the same time tacitly accepting that some precluded immigrants will gain

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unauthorized (i.e., not official) entry into its territory. Finally, (4) it can limit its border enforcement to morally acceptable levels and at the same time change its immigration policy to better reflect internal “pull” factors that are attracting precluded immigrants to its territory, thereby alleviating the pressure on border enforcement that make morally problematic means of enforcement necessary.

In the previous chapter Wellman faced a similar difficulty as the one we are facing here, but he was able to overcome it by suggesting that legitimate states could discharge their egalitarian duties by “exporting justice” (e.g., supplying humanitarian aid, providing restitution, intervening in unjust soci- eties, or paying other countries to take in needy immigrants). In the case of morally problematic border enforcement—when the implementation of a political community’s preferred immigration policy would require not giv- ing foreigners full moral consideration—could a similar tactic of “exporting justice” be possible? If it is, then the closest thing to such an approach would be something along the lines of options (1) and (2).

On its face, there seems nothing wrong with legitimate states trying to entice precluded immigrants to either remain where they are or to migrate to a different country. This could be accomplished in a variety of creative and non- coercive ways. A legitimate state could provide various forms of assistance or reparations to make where precluded immigrants currently reside a much more attractive option for them to remain. A legitimate state could also work with other countries, either by offering them money or other incentives, to be both receptive to and also more attractive destinations for precluded immigrants.

The problem, however, is that this tactic will only alleviate pressure from precluded immigrants whose primary impetus for migrating are “push” fac- tors. In other words, this will only address the issue of precluded immigrants who are simply trying to escape the situation they are currently in and do not care so much where they eventually end up, so long as it is better than where they are now. Enticements to remain in place or to migrate to a dif- ferent country are much less effective when the primary motivation for migration are “pull” factors. Pull factors can include, but are not limited to, economic conditions where wages are higher and the current domestic labor pool is not or cannot adequately satisfy demand, where close family relations exist (e.g., young children trying to reunite with parents and vice versa), or where migration patterns have a long and established history (e.g., circular migration, colonialism, and military interventions). In these sorts of cases, enticements are not usually enough to override the strong impetus precluded immigrants have to enter a particular country.

A legitimate state could therefore supplement option (1) with something like option (2), which is to modify the internal factors that are attracting precluded immigrants to their particular territory. This option, however, raises a whole host of other serious problems. If these internal factors are primarily things such as the economy, family relationships, and history, it is unclear what a liberal (as

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opposed to say a totalitarian) state could do to significantly modify these factors. The economies of liberal states are increasingly becoming more globalized and more market-based than command-based. This means that while government intervention is not necessarily inconsistent with a globalized free(ish) market economy, liberal governments do not enjoy the same kind of control over their economy as totalitarian regimes do with a command-based economic system. In short, there is not much a liberal government can do to alter the economic factors that create the demand for immigrant labor (e.g., domestic labor’s inability, unattractiveness, or unwillingness to satisfy domestic demand) since these factors are largely outside of government control.

The same can also be said for family and socio-historical relationships. Once these relationships are established it is not easy (and at times might even be immoral) for a liberal government to try to sever them. For example, it would be naïve to expect that a parent would allow a lack of immigration status to prevent him or her from being with their child. In such cases, deport- ing citizen child (or any other close family member) might be the only way to effectively end the attraction a precluded immigrant has with a particular territory, but deporting citizens is inconsistent with a commitment to political equality, so again this is not an option open for liberal states. There are also cases where circular migration, colonialism, and military involvement have had the effect of creating close relationships between certain countries and foreigners. In these sorts of cases a legitimate state can do some things to try and sever the relationship, but the inertia of these types of relationships is not easily or instantaneously brought to a halt. For these reasons, options (1) and (2) do not provide a sufficient enough a response for how legitimate states can both maintain both their legitimacy (e.g., not employ morally problematic border enforcement), while implementing an immigration policy that runs counter to global realities.

Option (3) seems to split the difference: limit border enforcement to morally acceptable levels, while at the same time accepting that there will be some degree of unauthorized entry by precluded immigrants. This option, however, starts to take us away from an account like Wellman’s. While this option does not deny that a legitimate state may attempt to deter unlawful border crossings, it does limit what a legitimate state can do in its attempts to not associate itself with precluded immigrants. So while is true that these limits do not necessarily generate a positive right to be admitted, they do seem to generate a presumptive right in the negative sense: it accepts that there are some things that a legitimate state may not do in preventing unauthorized entry into its territory. Furthermore, these limits are in place not to ensure the civic standing of citizens, but for the sake of noncitizens.

This option therefore offers a slight departure from Wellman’s earlier position, where fulfilling moral obligations to foreigners did not entail limits

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on a legitimate state’s right to control immigration. This option, however, can still be made compatible with an account like Wellman’s. After all, it does allow legitimate states to maintain their discretion over official admissions policy and immigrants who enter through unauthorized means have not offi- cially been “admitted” by the state. In other words, even though unauthorized entry of precluded immigrants is tacitly accepted on this option, those pre- cluded immigrants have technically not been allowed in.

The problem with this option, besides the apparent hypocrisy, is that it enables conditions of exploitation, oppression, and discrimination. Undocumented immigrants, because of their susceptibility to automatic deportation, are some of the most vulnerable people in society. Their pre- carious situation leaves them virtually unprotected against various forms of exploitation, oppression, and discrimination by both public (e.g., tax col- lectors and police) and private (e.g., private employers and landlords) enti- ties. This kind of treatment is a violation of moral equality because, even if undocumented immigrants do not have the political right to be present, they are nonetheless still entitled to have their basic human rights respected.

Some might argue that the situation undocumented immigrants find themselves in is of their own making, so a political community is not mor- ally required to ameliorate it. A view like this is mistaken for two reasons. First, it is not clear that even those who knowingly put themselves in bad situations deserve to lose or have their basic human rights ignored. Second, even if there are such cases, the case in question is not of this kind. In the case we are considering, the political community has tacitly accepted some degree of unauthorized entry and to that extent is at least partially respon- sible for the presence of undocumented immigrants and whatever injustices befall them due to their unlawful status. A legitimate state could remedy this situation simply by lifting the threat of deportation, and thereby bringing undocumented immigrants out of the proverbial shadows, but this would then undermine the very discretion option (3) was supposed to be ensuring. This is because if the threat of deportation were lifted, legitimate states would find themselves associating with foreigners they would rather not associate with. Therefore, option (3) does not appear to be a viable option either.

The fourth and final option (4) is for legitimate states to limit their border enforcement to morally acceptable levels while at the same time changing their immigration policy to better reflect internal “pull” factors. The upside of this option is that, if successfully implemented, it should reduce the demand for unauthorized entry. Undocumented immigrants who currently migrate mainly due to “pull” factors will now have legal means by which to enter. This in turn would reduce the pressure on border enforcement such that morally acceptable levels of deterrence and screening would be sufficient to reduce unauthorized entries to a bare minimum.

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This option marks a significant upgrade over option (3) in that it would prevent legitimate states from being implicated in the creation of an under- class susceptible to various forms of exploitation, oppression, and discrimi- nation. It also presents an improvement over options (1) and (2) because it would deal not only with “push” but also with “pull” factors and do so in a way that would not ask government to intrude into the economy or the lives of its citizens in illiberal ways. At the same time, option (1), which entices immigrants either to remain where they are or to migrate to a different coun- try, would not be inconsistent (and could be used in conjunction) with option (4). For these reasons, something like option (4) seems to be the best and most effective option for guarding against morality excessive border enforcement.

Option (4), however, seems to be at odds with a position like Wellman’s and there does not seem to be a way to reconcile the two. Option (4) not only limits what a legitimate state can do with regard to border enforcement, but it also circumvents the discretion it has in determining for itself its own admissions and exclusions criteria. On this option, admissions and exclusions criteria have to take into account internal “pull” factors, such as economic realities, family relationships, and even socio-historical circumstances. These limitations are problematic for an account like Wellman’s because they present presumptive duties that cannot be exported, but can only be discharged by conceding that there are at least some foreigners who must be granted admission (i.e., those who are pulled in by economic realities, family relationships, and socio-historical circumstances) even when the vast major- ity of citizens within that state would rather not associate with them.

If the preceding argument is correct, it provides an indirect argument against legitimate states having a presumptive right to control immigration. It shows that when border enforcement is factored into an ethics of immi- gration the only way to remain committed to democratic self-determination, individual liberty, and universal equality is for the burden of proof to be on the political community to justify any restrictions it wishes to place on immigration. This is because restrictions on immigration must be enforced and enforcing these restrictions always runs the risk of violating commit- ments to individual liberty and universal equality. For this reason, border enforcement must be limited, but limits on border enforcement are also what make undocumented immigration possible and sometimes necessary. While some forms of undocumented immigration can be alleviated by attending to the “push” factors in immigrant-sending countries (e.g., lack of opportunity, poverty, crime, and violence) and by diverting some of those immigrants to other more receptive countries, these actions will not be sufficient on their own. A lot of undocumented immigration is primarily driven by “pull” fac- tors and there is little that liberal states can do to alter those factors. There- fore, an account like Wellman’s must either abandon its claim to liberalism or

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make the concession that the immigration policy of legitimate states should not be discretionary but dictated by the “pull” factors that are drawing in immigrants.

JUSTIFIED LIMITS ON INTERNAL ENFORCEMENT

In 2008, Roberto Lovato wrote an article for The Nation magazine entitled “Juan Crow in Georgia.” Lovato’s article featured a sympathetic young girl living in less-than-ideal circumstances, who nonetheless had big dreams of one day going to college and becoming a clinical psychologist. The young girl in question was fifteen-year-old Marie Justeen Mancha. Mancha and her mother were living in Reidsville, Georgia, where the two of them had recently migrated, and were eking out a meager existence by working in onion fields and living out of what Lovato described as a battered old trailer.

In September of 2006, Mancha’s dreams were put in jeopardy. As she was getting ready to go to school, armed Immigration and Customs Enforcement agents (ICE) raided her trailer. These agents had neither warrants, prob- able cause, nor permission to enter Mancha’s residence, but they entered anyway and interrogated Mancha over her and her mother’s immigration status. At the end of this interrogation the agents simply left. Mancha and her mother were not deported. Tragedy was averted because, as Lovato informs us, Mancha and her mother were: “. . . the wrong kind of ‘Mexicans’; they were US citizens.”15

The story of Mancha is instructive because it highlights the fact that not everyone who is ensnared in the dragnets of internal immigration enforce- ment are undocumented immigrants or even noncitizens. It also shows that in practice not all citizens are affected by internal immigration enforcement in the same way. Some citizens (e.g., Latino/as, Middle Eastern Americans, and Asian-Americans) are more likely than other citizens (e.g., white Americans) to have their day-to-day lives disrupted by internal immigration enforcement. In this regard, it seems that philosophers inquiring about immigration justice have another thing to consider. Moral and political philosophers also need to look into how political regimes locate, identify, treat, detain, and remove noncitizens within its territory and what (if any) limits ought to be placed on this exercise of power.

This concern is underscored by the fact that in places like the US almost 50% of the undocumented immigrant population entered the country through legal channels.16 In other words, these immigrants went out-of-status (i.e., became undocumented) only after overstaying or not renewing their entry visa. This means that for nearly half the cases of undocumented immi- gration, stricter enforcement at the border would have made no difference. This point has also not been lost on many anti-immigration groups in the US

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and for that reason many have begun to support a strategy dubbed “attrition through enforcement.”17

According to Mark Krikorian, one of this strategy’s principal architects, attrition through enforcement is “. . . designed to reduce the number of new illegal arrivals and persuade a large share of illegals already here to give up and deport themselves.”18 According to folks like Krikorian, self-deportation can be accomplished by extending immigration enforcement into areas that have very little to do with immigration itself, such as commandeering local police officials to perform immigration enforcement tasks, requiring employers to verify the immigration status of their employees, and similarly landlords with potential renters, doctors with their patients, and school officials with the parents of children seeking to enroll in their schools. The idea is that if undocumented immigrants are too afraid to look for work, housing, schooling or even to see a doctor or call the police, they will eventually grow tired of living this way and will leave the country voluntarily.

As was briefly mentioned in the section above, a strategy like this can be problematic in that it runs the risk of not respecting the human rights that are due to all persons, regardless of their immigration status. A further problem, as we saw with the case of Mancha, is that strategies like attrition through enforce- ment do not just affect the lives of undocumented immigrants; they also come to affect the lives of citizens and also lawfully present immigrants in very illiberal ways. And while Wellman’s account never specifically engages with issues of internal immigration enforcement, we might still be able to gleam what an account like his would have to say about mean for internal enforcement by look- ing at how it dealt with a similar case. In particular, how it responded to the criti- cism that an account like be unable to reject discriminatory immigration policies (i.e., immigration policies that fail to give citizens equal political consideration).

Back in Chapter 4, we saw that Wellman addressed the potential for dis- crimination in immigration policy by grafting a version of Michael Blake’s antidiscriminatory argument onto his. If we recall, Blake’s argument explicitly prohibited legitimate states from adopting discriminatory admissions or exclu- sions criteria because in doing so a state would be diminishing the political standing of citizens who happened to share (or not share) the particular features that were being excluded or given preferential treatment (e.g., race, ethnicity, sex, or gender). So for the sake of political equality, Wellman accepted that certain antidiscriminatory limits must be placed on legitimate states’ right to exclude. Wellman made sure to note, however, that those limitations would not in turn generate a corresponding right of entry. In other words, a legitimate state would be prohibited from excluding or giving preferential treatment to immigrants based on something like race or sex, but this did not mean that they necessarily had to admit (i.e., associate with) any foreigners. Given the apparent parallel between states using potentially discriminatory immigration criteria and using potentially discriminatory internal immigration enforcement, could a similar

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antidiscriminatory argument be deployed to condemn the use of strategies like attrition through enforcement while at the same time not curtailing the discretion legitimate states are normally thought to have in controlling immigration?

Blake’s antidiscriminatory argument, I believe, can be reconfigured to address the potential for discrimination in internal immigration enforcement, but unfortunately for an account like Wellman’s it will in this case lead to a different conclusion with regard to the discretion legitimate states should be allowed to enjoy. Unlike the kinds of cases considered so far, where for- eigners are thought of as existing outside the state’s territory and seeking to enter, the case of internal immigration enforcement deals with foreigners who are already inside the territory (whether lawfully or not) and are seeking to remain. This later case is more difficult to deal with because citizens and immigrants (both documented and undocumented) are not living in isolation from one another but often intermingle and live with and among each other. The task of internal immigration enforcement is to somehow disentangle these two groups without at the same time violating the rights of persons or undermining the standing of citizens. This presents a problem for an account like Wellman’s because, as the rest of this section will show, the only way to ensure that such illiberal practices do not take place is to create a canopy of protections which will not only shield citizens but will also cover noncitizens (including undocumented immigrants) from the excesses of internal immi- gration enforcement. In short, one of the consequences of having internal enforcement respect the basic rights of everyone and preserve the equal stand- ing of citizens is that legitimate states must forgo some of the discretion they normally are thought to have over immigration.

If we return to the earlier case of Mancha, we can see that one of the problems that arise with internal immigration enforcement is that the collateral effects of such enforcement are not distributed equally among the citizenry. These collateral effects typically and disproportionately fall on certain racial, cultural, and ethnic minorities, which in turn degrade their standing as full and equal citizens. It is therefore necessary that internal immigration enforcement adhere to something like an “equality of burdens” standard. This standard would require that any collateral effects that result from internal immigration enforcement be allocated as equally as possible among the citizenry. For exam- ple, if agents are allowed to conduct raids of private homes or places of work, then EVERY citizen’s home or place of work should be as likely as any other citizen’s to be raided. Abiding by such an onerous standard will undoubtedly make enforcement much less efficient and will also inconvenience many more citizens, but there are at least two good reasons for why a legitimate state’s internal immigration enforcement should have to adhere to such a standard.

First, adhering to this standard would make citizens in a democracy much more reflective about the kind of enforcement they are willing to let their

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government deploy internally. This is especially important in a democracy, where decisions are made by the will of the majority. As things currently stand in places like the US, a majority of citizens are unaware of stories like Mancha’s because this kind of enforcement rarely impacts their own lives. This disconnection between what the majority experience in their own daily lives and how the collateral effects of internal immigration enforcement affect the lives of minorities, hides the true cost of enforcement. It is therefore easier for the majority to vote for stricter internal enforcement measures that violate the rights and liberties of minorities, because they of them are either unaware or do not care about this cost and also they do not perceive stricter enforce- ment as in itself unjust.

An equality of burdens standard would reverse this situation. While the American public has shown itself willing to accept stricter internal enforce- ment when minorities foot the bill (as is evidenced by the fact that most legislation proposed in recent years that follows an attrition through enforce- ment strategy has enjoyed tremendous public support in the US), it would be interesting to see if such support remained strong when all citizens had to share in the costs. An equality of burdens standard would therefore distribute the costs of enforcement in a fairer manner and at the same time give the voters in a democracy a more accurate assessment of what stricter internal immigration enforcement entails.

Second, while meeting this standard might not change deeply entrenched social attitudes on race, ethnicity, or culture, it would prevent those atti- tudes (e.g., implicit biases or institutionalized discrimination) from unduly influencing the course of immigration enforcement. An equality of burdens standard would prohibit selective enforcement that disproportionately targets some citizens for morally arbitrary reasons (i.e., facts about them that should garner neither praise nor blame). In other words, even if increased scrutiny on people who are identified with a particular religion (e.g., wearing a headscarf or turban) or with a particular part of the world (e.g., looking Latin American or Asian) would yield better immigration enforcement results, these sorts of practices should be prohibited on account that they diminish the political standing of minority citizens who happen to share those features. In short, a commitment to political equality should never be traded away for any sup- posed benefits to enforcement.

But while something like an equality of burdens standard would be a necessary part of a just internal immigration enforcement scheme, it would not itself be sufficient—at least not to insure that basic liberties (i.e., individual freedom) are not violated. For example, certain intrusive inspections might be okay at points of entry, but when conducted internally or done too frequently could easily constitute a rights violation. For example, routine car inspections might be acceptable at points of entry, but random car inspections on the

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highway (especially if done frequently) might prove to be too excessive in a liberal democracy. Similarly, standard requests to verify one’s immigration status might be okay at points of entry, but excessive when applied often on the streets of a liberal democracy and especially at one’s home. The idea here is that even when citizens are asked to share equally in the burdens of enforce- ment, there are some costs that no legitimate state should ask their citizens to bear. In other words, government actions such as indefinite detention and unreasonable searches and seizures are not simply unjust when the burdens are not shared equally. Those sorts of actions are always and in-themselves unjust. Another way of putting the same point is that even if citizens shared equally all the burdens of internal immigration enforcement, some forms of enforcement would still be too excessive and should always remain off the table.

So along with an equality of burdens standard, it would be necessary for legitimate states to meet a “universal protections” standard. Meeting this standard would require that all persons be reasonably protected from excessive internal immigration enforcement. This standard would comple- ment the equality of burdens standard by putting in place certain mechanisms for oversight against excessive enforcement. Specifying what particular type of oversight or which particular restrictions would be demanded by a universal protections standard, is difficult to pinpoint exactly given that dif- ferent political communities have their own unique set of circumstances and challenges.

With that being said, there seems to be at least one general oversight that a universal protections standard should always adhere to: there must always be a presumption of innocence. In the immigration context this would mean that all persons present should initially be treated as though they are lawfully present until their status has been confirmed to be irregular and even then should still have their dignity and rights respected as human beings. This general oversight is based on the same idea that people should be considered innocent until proven guilty; the famous Blackstone formulation that it is better to let many guilty people to go free than for one innocent person to be found guilty. This is an important point to keep in mind when we consider that places like the US have in the past wrongfully deported of some its own citizens and people who otherwise were eligible to remain in the country. In one case, the wrongfully deported citizen was a developmentally disabled man, whose return trip was traumatic and very easily could have ended in tragedy.19 Another case did end in tragedy, when the wrongfully deported person died in a fire inside a Honduran jail where the Honduran immigration agency was holding him.20

So if a legitimate state’s immigration enforcement were to adhere to some- thing like a universal protections standard and the presumption of innocence that such a standard always entails, it would need to give all persons present,

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regardless of their immigration status, such basic protections as the right to due process, equal protection under the law, freedom from unreasonable searches and seizures, a right to a court appointed attorney, and protection from indefinite detention.21 Protections like these are essential in immigration cases because without them immigration controls could easily infringe on the basic liberties of persons and could also lead to accidently deportations. These protections are not the only ones that would satisfy the universal protections standard, and it is likely that more, rather than less, protections would be necessary in order to adequately meet this standard in most cases. But even just the protections mentioned here are enough to illustrate the following point: protecting basic liberties from potential governmental excesses puts the burden on legitimate states to insure that their immigration enforcement practices do not overreach, especially internally, and this can be done only by putting adequate protections in place.

When taken together, the two standards outlined above form a canopy of protections that ameliorate, if not eliminate, the threat of internal immigration enforcement infringing on the basic liberties of persons or undermining the standing of citizens. For example, the raid that took place in Mancha’s home would have been prohibited under these two standards. In that case, ICE agents would have (1) needed to have a warrant in order to enter Mancha’s home, as would be demanded by something like a universal protections stan- dard and (2) such a warrant could not have been obtained by ICE, under an equality of burdens standard, if its only reason for targeting Mancha and her mother was their ethnicity or occupation.

Similarly, this canopy of protections would prohibit most other nefarious aspects of strategies like attrition through enforcement. For example, the com- mandeering of police officers to perform immigration enforcement duties, a common feature of many recent internal immigration enforcement strategies,22 would be prohibited under this canopy of protections. There are at least two reasons as to why. First, when police are required or have the power to enforce immigration laws, certain citizens are less likely to come forward to report crimes. Currently, many households are of “mixed status,” that is households where the immigration status of individual household members can vary from undocumented to full citizen. Victims of crimes who happen to be living in mixed-status households are often hesitant to call police when they believe that the police will or has the power to deport members of their household. This indirect consequence of internal enforcement is not only a violation of the universal protections standard, but also the equality of burdens standard, since it affects only certain citizens and usually for morally arbitrary reasons.

A second reason is that the safety of a community is dependent on the lawful cooperation of all persons present, regardless of their immigration status. It is not uncommon, for example, that undocumented immigrants are

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themselves the victims of crime or are witnesses to crimes. In either case, it is important that all persons present be assumed to be lawfully present by police in order for officers to adequately perform their primary function, which is to protect, serve, and fulfill the rights of everybody in the commu- nity. In this case the universal protections standard would apply and prohibit police from performing immigration enforcement duties, even when that prohibition would undermine the effectiveness of the current immigration policy.

These sorts of arguments can be extended to cases of employment, renting a home, enrolling children in school, and many other everyday activities that have recently been incorporated as part of internal immigration enforce- ment strategies.23 What each of these prohibitions on internal enforcement show is that the kinds of protections needed to avoid the potentially perni- cious aspects of enforcement are ones that not only cover citizens, but also extends to everyone present, including undocumented immigrants. This canopy of protections is therefore a presumptive check on a legitimate state’s ability to control immigration. It makes it such that there are certain things a legitimate state, all things being equal, is prohibited from doing even when failing to do so negatively impacts its ability to control immigra- tion. In the examples just provided, we see that a legitimate state is prima facie prohibited from using its own police force as part of its immigration enforcement scheme and also that the power immigration enforcement officers have must be curtailed in ways that inhibit their ability to control immigration (e.g., they must get warrants and have substantial probable cause). These sorts of protections do not necessarily generate positive rights to admission, but they are nonetheless overriding negative prohibitions that, all things being equal, protect undocumented immigrants from a legitimate state’s enforcement mechanism.

This is therefore the difference between using Blake’s antidiscriminatory argument for cases like those in Chapter 4 (e.g., those dealing with admission and exclusion criteria) and then redeploying it for cases concerning internal immigration enforcement as we have here. These latter cases do not have the same amount flexibility as the earlier cases. In Blake’s original argument, antidiscriminatory commitments never compromised a legitimate state’s abil- ity to disassociate from noncitizens. A legitimate state was merely prohibited from using discriminatory criteria for admitting or excluding foreigners. With respect to internal immigration enforcement, a state is much more restricted in what it can do to disassociate itself from noncitizens—at least in ways that are consistent with prior liberal commitments. If the argument provided above is correct, a legitimate state will at times have to associate with undocumented immigrants (e.g., either through its police force or public schools), but its liberal commitments—enshrined in the equality of burdens and universal

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protections standards—will prohibit it from using those particular interactions as occasions to remove them. A legitimate state will be in a bizarre position of having to actively restrict itself, because of its liberal commitments, from fully enforcing its own immigration laws. And while this does not necessarily generate a positive right to immigrate, it nonetheless provides presumptive negative rights that shield immigrants from internal immigration enforcement.

OBJECTIONS TO A MINIMALIST DEFENSE OF IMMIGRANT RIGHTS

When taken together, these last two sections provide a basis for what I call a minimalist defense of immigrant rights. It is a defense of immigrant rights in that it puts the presumptive duty on political communities (in this case legitimate states) and not on immigrants. If there are to be any restrictions on immigration, it is incumbent upon political communities to justify the need for such restrictions and explain how it can enforce such restrictions without in turn generating further injustices. This account is minimalist in the sense that it aims to provide a floor, but has little to say about the ceiling. In other words, my view is consistent with (and even sympathetic to) an open-borders position, but does not necessarily require open-borders for minimum justice to be met.

The strength of this view, and the reason why moral and political philosophers ought to adopt it, is that it offers the only consistent way out of both the security and liberty dilemmas, at least with respect to the debates surrounding immigration. This view, however, is not without its critics and so this final section will be devoted to looking at two possible objections. The first objection is that the minimalist defense concedes too much to indi- vidual liberty and universal equality and so does not adequately account for a political community’s security or democratic self-determination. I call this the “conservative” objection. The second objection is that this view does not go far enough in defending immigrants or diagnosing current immigration injustices. It argues that something like my minimalist view could be adopted and yet it would not do enough to end the exploitation and oppression of immigrants— especially undocumented immigrants. I call this the “radical” objection.

My response to the first objection, the conservative objection, really began back in Chapter 1. There I tried to show why an overemphasis on security only traps us in a security dilemma. As I argued toward the end of that chapter, I believe that a constitutional democracy—a form of sovereignty that gives priority to liberty—is really the best hope we have for avoiding this dilemma altogether. It provides a political regime with sufficient enough sovereignty that, like the Westphalian nation-state, it can avoid the threat of a Hobbesian

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state of nature. But unlike a Westphalian nation-state, this kind of political regime does not have authoritarian powers. In constitutional democracies, those subject to the power of the sovereign (including undocumented immi- grants) are not placed completely outside the realm of legal protections. Constitutional democracies in fact are designed to avoid Agambenian states of exception by providing individuals with basic rights and by dispersing political power through various systems of checks-and-balances.

This, however, brings up the issue of democratic self-determination. Political regimes, such as constitutional democracies, are legitimate only in so far as they are sufficiently democratic and self-determined. The view I advocate seems to sacrifice a lot of democratic self-determination for the sake of noncitizens (i.e., nonmembers). This part of the objection is one that I tried to address in the chapters that followed Chapter 1. As we saw begin- ning in Chapter 2, the issue of political legitimacy is complicated. Democratic self-determination is central to any account of political legitimacy, but so are commitments to individual freedom and universal equality. Constitutional democracies attempt to hold these different commitments together so that neither gets sacrificed too much in efforts to obtain the others. What I have tried to show is that a robust notion of democratic self-determination is not only consistent with a minimalist account of immigrant rights, but actually that this minimalist account is entailed in a proper accounting of democractic self-determination. Conversely, the kind of democratic self-determination that would be required to defend a political community’s presumptive right to control immigration would be inconsistent with commitments to individual freedom and universal equality (i.e., it asks us to sacrifice too much of them), and therefore would make it a poor fit for a legitimate state.

In short, the problem with the conservative objection is that it is self- defeating. It asks us to sacrifice our liberal commitments (which keep us safe from authoritarian regimes) for the sake of security or self-determination (presumably from other states or foreigners). Security and self-determination, however, has always been undergirded, not undermined, by commitments to individual freedom and universal equality. So the only consistent way to avoid the security dilemma, I believe, is through a constitutional democracy and the only way to obtain a constitutional democracy is to resolve the liberty dilemma. If the liberty dilemma is to be resolved, a regime must respect the human rights of all persons, including precluded and undocumented immi- grants, and this will entail some strenuous limits on its ability to exclude or remove unwanted foreigners. This is part of the price of taking the liberty concern seriously, which again is the only way we get out of the security dilemma.

Assuming that a constitutional democracy is desirable, possible, and can address the conservative objection; there is still another objection to consider. This objection holds that a minimalist defense of immigrant rights does not

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go far enough. That it gives only the illusion of justice to immigrants, when in fact it could do more harm than good by giving immigrants and their communities a false sense of security. For example, Ernesto Rosen Velásquez has suggested something along these lines when he writes that:

we should consider immigration matters in terms of states of violence as a way to move beyond notions of states that take for granted an idealized political ontology, statist narratives, and assume histories that occlude colonialism and the violence constitutive of states. Introducing a notion of states of violence into the conversation allows us to make a distinction between states of violence and a Wellman-type narrow notion of states as nonconsensual coercive institutions where violence is marginal. This distinction enables us to get a clearer grasp of the underlying divergences in the immigration debate and hopefully opens up conceptual paths to begin to think about unraveling these pressing, complex immigration problems.24

What Velásquez is suggesting is that when philosophers appeal to some- thing like “constitutional democracies” or “legitimate states” they are—either purposefully or inadvertently—covering over many of the injustices that motivate the immigration debate in the first place and that should be central to any theoretical analysis of immigration. He would argue that actually existing states are not and have never been democratic or legitimate in the way philosophers use the terms. In actuality, immigrant-receiving states (i.e., actually existing liberal democracies) have historically benefited from the exploitation and oppression of what are today immigrant-sending countries (i.e., developing countries in the Global South). When we understand immi- gration in this context it becomes easier to see why there is such disdain for certain immigrants (e.g., Latin American, Middle Eastern, or Asian American to the US) while at the same time other immigrants get celebrated as part of the national fabric (e.g., European immigrants to the US). Taking this kind of theoretical approach also helps to better prescribe ways to redress these sorts of injustices.

According to an account like Velásquez’s, these explanatory and critical tasks can only be accomplished if we begin with something like a “states of violence” model instead of the more idealized state models that we have primarily been working with in this book. This is not because people aspire to live in states of violence, in the way people might aspire to live in a demo- cratic or legitimate state, but because we currently find ourselves living in a state of violence and not in a truly democratic or legitimate state. The demo- cratic or legitimate state model is therefore inept at performing the kind of diagnostic and critical tasks that are needed to truly address the current immi- gration crisis. My minimalist defense of immigrant rights might therefore be theoretically sufficient to undermine a Wellman-type defense of immigration restrictions, but as Velásquez would argue it does nothing to help diagnose,

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critique, or resolve any of the immigration injustices that are occurring in the here and now (i.e., in a state of violence).

My response to this criticism is threefold. First, I would like to concede that something like the state of violence model might better describe today’s globally dominant states and that this model operates under a very different kind of logic than the democratic or legitimate state models. This concession, however, is not necessarily incompatible with my view as much as it is a challenge to the current artificial parameters that have been set on the philo- sophical debate over immigration in general. I see my minimalist defense of immigrant rights as working in parallel and not necessarily in opposition to an account like Velásquez’s. To my way of thinking, this is not a situation of having to choose between an idealized state model and an “actually existing” state model, but of understanding what task we need our models to perform. Using an idealized state model allows us to see why immigration restrictions, are fundamentally problematic and why this is so in any and all possible worlds. At the same time, something like the state of violence model helps to explain how the injustice of our particular world came to be, how it operates, and what can be done about it. If this is correct, then it’s not so much an issue of the state of violence model being better or worse than the democratic or legitimate state model (as the objection might have initially seemed to imply), but about using the right model for the right job.

Second, even though my argument concludes with only a minimalist defense of immigrant rights, this minimal conclusion is not nothing. The minimalist defense offers a compelling challenge to supporters of a political community’s right to control immigration; not only in ideal cases, but as many of my examples hopefully showed, in nonideal cases too. The minimal rights that come out of an approach like mine provides some strong reasons as to why all states (including the ones we currently live in) should not engage in strategies like prevention through deterrence or attrition through enforcement, which accounts like Velásquez’s often point to as specific examples of nonideal injustices. In short, the goal of the minimalist approach to immigration justice is emphatically not to put a cap on immigrant rights or the responsibility real existing states might have to foreigners, but to work to create a solid theoretical foundation on which a larger defense of immigrant rights and a critique of unjust regimes can be mounted. The hope is that this foundation will continue to grow and that more expansive configurations of immigrant rights will eventually emerge from it.

Lastly, there is at least one substantial theoretical advantage my approach has over an approach like that of Velásquez. The minimalist approach does not make immigrant rights dependent or contingent upon something else while an approach like Velásquez’s seems to suggest that the rights immigrants have

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to be admitted are based on restorative pleas for prior or ongoing injustices. Conversely, this approach also holds that a state has no right to exclude for- eigners only in so far as it has or is committing injustices. In both of these cases, the rights of immigrants or the duties of states are contingent upon either prior or ongoing injustices. This tells us nothing however about where the right or duty might be in the absence of these injustices or what happens when prior injustices have been satisfactorily redressed (e.g., if Wellman’s “exporting justice” comes to fruition). By contrast, my view is unconditional, immigrants have rights and states have duties regardless of how just or unjust a state may be. In other words, the injustices of states may help bolster my defense of immigrant rights, but in no way is my defense dependent upon those injustices. This, I believe, deepens the case for immigrant rights and makes it much less assailable.

CONCLUSION

The arguments presented in the first two sections of this chapter focused on Christopher Heath Wellman’s freedom of association argument. Wellman’s argument was singled out because it is one of the best attempts at resolving the liberty dilemma within the immigration debate. My objection to Wellman’s argument, which is different from other criticisms that have already been lev- eled against it, is that when immigration enforcement is taken into consideration his argument cannot hold up. Border and internal enforcement present threats to individual freedom and universal equality that legitimate states must guard against. In order to develop a principled way of guarding against these threats, the control legitimate states are normally thought to have over designing and implementing their immigration policy will be bounded and not discretionary. This is a position that I call a minimalist defense of immigrant rights.

I recognize that this minimalist position might not give everyone everything they want—conservatives will object that too much security and self-determination is compromised, while radicals will say that it does not do or go far enough—but I maintain that it will give us what we need, which is a way to consistently avoid both the security and liberty dilemmas within the immigration debate. While I feel that my position holds the most promise, there is still the question of what such a position would mean for actual immigration reform in a world like ours. I do not have the space in this book, not do I know that it would be possible, to provide a fully robust immigration reform proposal that would work for all places and at all times, but in the conclusion to this book I would like to at least provide an outline for what a framework for just immigration reform would look like, based on an account like the one I have provided so far.

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NOTES

1. “Immigration Enforcement Within the United States,” Congressional Research Service, The Library of Congress, April 6, 2006, Accessed December 21, 2014, http:// www.fas.org/sgp/crs/misc/RL33351.pdf

2. Wayne A. Cornelius, “Controling ‘Unwanted’ Immigration: Lessons From the United States, 1993–2004,” Journal of Ethnic and Migration Studies 31.4 (2005): 783.

3. Tara Brian and Frank Laczko Ed., “Fatal Journeys: Tracking Lives Lost during Migration,” International Organization for Migration 1.1 (2014): 54.

4. “Immigration and Naturalization Service,” Department of Justice Accessed November 19, 2015. http://www.justice.gov/archive/jmd/1975_2002/2002/html/ page104-108.htm

5. “Budget-in-Brief Fiscal-Year 2016,” Department of Homeland Security pdf Accessed November 19, 2015. http://www.dhs.gov/sites/default/files/publications/ FY_2016_DHS_Budget_in_Brief

6. “Unauthorized Immigrant Population Trends for States, Birth Countries and Regions,” Pew Research Center, December 11, 2014. Accessed November 19, 2015. http://www.pewhispanic.org/2014/12/11/unauthorized-trends/#All

7. Ibid., 8. Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to

Unilaterally Control Your Own Borders,” Political Theory 36.1 (2008): 38. 9. Ibid., 43.

10. Ibid., 54. 11. David Miller, “Why Immigration Controls Are Not Coercive: A Reply to

Arash Abizadeh,” Political Theory 38.1 (2010). 12. Ibid., 116. 13. Arash Abizadeh, “Democratic Legitimacy and State Coercion: A Reply to

David Miller,” Political Theory 38.1 (2010). 14. For a different, but compatible, account of how political boundaries can

become unjust see Grant J. Silva, “On the Militarization of Borders and the Juridical Right to Exclude,” Public Affairs Quarterly 29.2 (2015).

15. Roberto Lovato, “Juan Crow in Georgia” The Nation, May 26, 2008. http:// www. thenation.com/article/juan-crow-georgia Accessed December 21, 2014.

16. See Ted Robbins, “Nearly Half of Illegal Immigrants Overstay Visas,” NPR, June 14, 2006, Accessed September 15, 2011, http://www.npr.org/templates/story/ story.php?storyId=5485917

17. Jessica Vaughan, “Attrition Through Enforcement: A Cost-Effective Strategy to Shrink the Illegal Population,” Center for Immigration Studies, April 2006, Accessed September 15, 2011, http://www.cis.org/Enforcement-IllegalPopulation

18. Mark Krikorian, “Attrition Through Enforcement Will Work,” San Diego Union Tribune, April 2, 2006, Accessed May 23, 2015, http://www.utsandiego.com/ uniontrib/20060402/news_mz1e02krikor.html

19. Kemp Powers, “Group says U.S. citizen wrongly deported to Mexico” Reuters, June 11, 2007, Accessed May 10, 2012, http://www.reuters.com/article/2007/06/11/ us-usa-immigration-deportation-idUSN1118919320070611

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20. Ruxandra Guidi, “Honduran LA resident accidentally deported, then dies in prison fire” Southern California Public Radio, March 2, 2012, Accessed May 10, 2012, http://www.scpr.org/news/2012/03/02/31481/honduran-resident-los-angeles- wrongfully-deported

21. For an excellent argument on how the detention of undocumented immigrants constitutes a rights violation see Stephanie J. Silverman, “Detaining Immigrants and Asylum Seekers: A Normative Introduction,” Critical Review of International Social and Political Philosophy 17.5 (2014).

22. In the US, federal law currently allows for immigration enforcement and local law enforcement to form a partnership under a program called “Secure Communities.” For more information on this specific program see http://www.ice.gov/secure_com- munities/. Also, this linking up of local law enforcement with immigration enforce- ment has appeared in various state immigration bills. The most notorious of these being Arizona’s SB 1070. See State of Arizona Senate, Forty-Ninth Legislature, Second Regular Session 2010, Senate Bill 1070.

23. For a more detailed argument along these lines see Joseph H. Carens, “The Rights of Irregular Migrants,” Ethics & International Affairs 22.2 (2008).

24. Ernesto Rosen Velásquez, “States of Violence and the Right to Exclude” Journal of Poverty, DOI: 10.1080/10875549.2016.1186777: 19.

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