A new concept has been added to the discourse on an old argument – immigration (Schroeder). The new intermeddler in the migration dissertation is the idea that immigration is a human right. Of course, this flies in the face of the more red-letter and foundational concept, that immigration is a matter of sovereignty – the business of the country at hand. And in a world where the United States is reviled by many who have nefarious intentions, at a minimum, does the question of human rights as a factor in the immigration dialogue deserve a footing?
The question of immigration offers a powerful set of interrelated considerations that create a complex amalgam for reflection (Schroeder). Immigration itself is no easy choice, not for immigrants and their family, nor for the recipient country. Considerations include citizenship, autonomy, economic impact, politics, taxes, labor and the American worker, borders, consequences of deportation, federal, state and local law enforcement, crime, terrorism and much more (Schroeder; “Should the Government”). No wonder Congress is not anxious to engage in developing an immigration reform strategy, it’s has to be a pretty overwhelming prospect.
For centuries, immigration has been the under the bailiwick of the politics of sovereignty (Schroeder). States and countries have had the sovereign right to control that which occurs within their borders, including who comes in. Anyone who has waited in line at an airport’s customs and passport control area is quite familiar with the concept of sovereignty. Uniformed personnel look at you with stern glances, ask you questions that seem silly, and sometimes open your luggage to catch a peek of the boredom contained within. A country’s sovereignty is no laughing matter and most countries take the process very seriously. Think of fugitive Edward Snowden, the whistleblower, who is likely stuck somewhere in Russia, sovereignty allowed him in, and sovereignty is preventing him from going to other allied countries (Graham).
The true sovereignty aspect of immigration took a stranglehold in America in 1898, with the Supreme Court’s decision in Chae Chan Ping v United States (1898), also known as the Chinese Exclusion Case (Lindsay). In this case, the court shifted congressional and executive authority from its origins in the Commerce Clause to the non-constitutional idea of national sovereignty. Ping, a Chinese laborer, had lived in the United States for about 12 years, left the country temporarily having secured a certificate of re-entry, but was not allowed back in the U. S., because several days before a law was passed that excluded any Chinese laborer who had lived in the United States and thereafter left the country, from ever returning to the United States again.
Civil rights activist and U. S. Representative (D-Texas) on the House Judiciary Committee, Barbara Jordan said of immigration a year before her death: Immigration is not a right guaranteed by the U.S. Constitution to everyone and anyone in the world who wishes to come to the United States. It is a privilege granted by the people of the United States to those whom we choose to admit (Krikorian). The choice to admit or not to admit is at the core of the concept of sovereignty and reflects U. S. policy on immigration quite succinctly.
The newest conceptual entry on the immigration dialogue is that the right to immigrate is a human right. So what exactly are human rights? Human rights are the fundamental freedoms that all human beings are entitled to regardless of whether or not they are immigrants ("What are Human Rights?"). The United Nations Universal Declaration of Human Rights (UDHR), created in part by Eleanor Roosevelt, chair of the Human Rights Commission for the United Nations, states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” ("What are Human Rights?"). The UDHR along with additional documents which came later, the International Covenant on Civil and the Political Rights and the International Covenant on Economic, Social and Cultural Rights, serve as the foundation of the what is meant by human rights, a right that we as humans have despite our citizenship or the status of our immigration circumstances. The concept is based on the Bill of Rights which grants to everyone in America freedoms and protections under the law, disregarding citizenship, non-citizenship, documentation or lack of documentation ("What are Human Rights?").
So how do human rights impact immigration? Ray Ybarra Maldonado, an attorney, human rights activist, author, public speaker, and filmmaker, says that freedom of movement, the right to travel, often called mobility rights, is the most rudimentary of human rights ("Ray Ybarra Maldonado"). For example, in the United States, freedom of movement is expressed in the Privileges and Immunities Clause and the 14th Amendment of the Constitution ("What are Human Rights?"). In the United States, we are free to move from one state to another and back, without regard to our point of origin. There are those who advocate that individuals should also have the right to mobility across nations, otherwise known as human mobility ("What are Human Rights?"). Maldonado states: International law recognizes an individual's right to leave her country. However, there is no right to enter a state other than one's own. If the right to emigrate is acknowledged, why not the right to immigrate? The former cannot be meaningful without the latter ("What are Human Rights?").
The right to immigrate between national borders, though, is a right that will require international cooperation. In a world with so many striking differences between countries, and so many issues to sort out, the human right to immigrate across borders may be a long time coming. Yet, there was a time when the United States had an open borders policy (Appel). In fact, America had an open door immigration philosophy as early as 1790. The Naturalization Act of 1790 allowed “all ‘free white persons’ of ‘good moral character’” who travelled to the United States, an easy path to obtain full citizenship (Appel). Catholics who were restricted from full citizenship in the UK were welcomed, as well as Jews who had been denied naturalization in France. The words of the poet Emma Lazarus’ were almost fully in play - Give me your tired, your poor / Your huddled masses yearing to breathe free. The open border policy was not true, of course, for Asians and Africans. The Emergency Quota Act of 1921 marked the end of the open border policy (Appel).
So with the implementation of a human rights policy woven into an open door border policy, that does not accept one type of people to the exclusion of others, perhaps the idea of immigration as a human right is not so farfetched. Non-discriminatory practices are central to our Constitution, so application of a non-discriminatory border policy would be consistent with our fundamental principles. “Treating human beings differently, simply because they were born on the opposite side of a national boundary, is hard to justify under any mainstream philosophical, religious or ethical theory” (Appel). Should a person’s birthright be the basis of allowing an individual entry into the country? Birthright may be important in the case of inheritance and property, but in the context of nationality, it has no function. The freedom for a human being to be able to determine where he or she wants to travel to, and to live, in an effort to gain freedom from the clenches of politics, or to gain financial stability is an intrinsic human right. The open door policy does not offer safe haven to terrorists, felons, or persons with communicable and highly infectious diseases (Appel). The goal is to provide a home to those who share our ideas, are excited by the potential opportunities, and who want to flourish, just like most human beings do.
An unnamed New Zealander, seeking asylum in 2014, said, “we are not aliens. We are human beings who lost their families” (Sacco). The label alien creates disturbing mental images, in effect, it alienates us. That guy over there is an alien. It certainly does not inspire love and acceptance. When you add the terminology illegal, it makes the alienating term even more repulsive. Who wants anything to do with someone referred to in that way? It’s dehumanizing. These same concepts came from the mouth of Fredrick Douglass, humanitarian, activist, abolitionist, orator, writer, social reformer and statesman. He said people of African American descent are not aliens, they are Americans, they are a part of the fabric of this nation. The same cry is heard today from the LGBT community (Sacco).
The problem with borders, which are drawn on a map, and may be delineated by walls or barriers on the land, is that they create borders in the mind, as well (Sacco). The borders divide us making us “us” and them “them.” If you happen to live in a border town, what is the difference between the person who was born on the California or Arizona side and the person who was born on the Mexico side, especially when the difference between the people is only one street? It is no more than the luck of the draw. The problem of the person who seeks asylum or becomes an undocumented worker is they lose their human rights. They can be subject to abuse, discrimination or worse. Once the person crosses the border the “alien” tag is shackled to their leg and follows them as they make their way to prospective opportunities. The shackle remains with that person as they make their way through the process of life (Sacco). As a result of crossing the border they have questionable employment opportunities, loss of their family, cannot get welfare, cannot vote, and they are subject to the threat of deportation continuously. In addition, the person who crosses the border is called names with the objective of causing harm to them, or marginalizing them. They are an illegal immigrant, the line that is drawn on the map is drawn on their backs, they are dehumanized – stripped of their humanity, violence against them is legitimized, and they feel the polarization. The border shackle on their leg makes them part of the others, the thems. It’s just another form of discrimination (Sacco). Citizenship or lack of it seems to be tied to humanity. If you do not have a government sanctioned document to verify your status as belonging here, then, most importantly, you do not belong, and you are consequently sub-human. If Mary was born in Arizona, one block away from Maria, in Mexico, and Maria and her family move to America (across the street) for a better life, they are now somehow less-than.
Is immigration a human right? It is certainly not a human right yet, but we should consider the fact that just because a person was born in a different place than us does not mean that they are not to be valued, and are not valuable. The borders that exist between countries are not the actual problem. The problem are the borders we create in our minds.
Appel, Jacob, M. "The Ethical Case for an Open Immigration Policy." Opposing Views. Render Media. 4 May 2009. Web. 14 June 2016. <http://www.opposingviews.com/i/the-ethical-case-for-an-open-immigration-policy>.
Chae Chan Ping v United States, 130 U. S. 581 (1889).
Graham, David. A. "Edward Snowden Says He'd Go to Prison to Come Home." The Atlantic. The Atlantic Monthly Group. 5 October 2015. Web. 14 June 2016. <http://www.theatlantic.com/politics/archive/2015/10/edward-snowdens-prison-offer/409075/>.
Krikorian, Mark. "Immigration and National Sovereignty." The Social Contract Press. 2001. Web. 14 June 2016. <http://www.thesocialcontract.com/artman2/publish/tsc1202/article_1043.shtml>.
Lindsay, Matthew, J. "A Power “Inherent in Sovereignty and Essential to Self-Preservation” Connecticut Law Review. February 2013. Web. 14 June 2016. <http://connecticutlawreview.org/files/2013/02/Lindsay.ImmigrationSovereigntyandtheConstitutionofForeignness.45Conn.L.Rev_.743.pdf>.
"Ray Ybarra Maldonado." Global Exchange. n. d. Web. 14 June 2016. <http://www.globalexchange.org/events/speaker/ray-ybarra-maldonado>.
Sacco, Steven. "We are not Aliens." 3 March 2016. Web. 14 June 2016. <http://openborders.info/>.
Schroeder, S. Andrew . "Immigration Policy: Sovereignty, Humanitarian Law, or Human Rights?" Harvard University: Safra Center for Ethics. The President and Fellows of Harvard College. <http://ethics.harvard.edu/event/immigration-policy-sovereignty-humanitarian-law-or-human-rights>.
"Should the Government Allow Immigrants Who Are Here Illegally to Become US Citizens?" ProCon.org. n. d. Web. 14 June 2016. <http://immigration.procon.org/>.
"What are Human Rights?" We are One America. OneAmerica. n. d. Web. 14 June 2016. <https://www.weareoneamerica.org/human-rights-immigrant-rights-fact-sheet>.