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Wednesday, September 13, 2017

Some Thoughts on DACA and Child Migrants

"A peculiarly disenfranchised population that clearly illustrates this functional statelessness
and its dire consequences is the subset of child migrants who lack their own government. I will call this population Arendt's children." 

Bhabha, J. "Arendt’s Children: Do Today’s Migrant Children Have a Right to Have Rights?" Human Rights Quarterly, vol. 31 no. 2, 2009, pp. 410-451. Project MUSEdoi:10.1353/hrq.0.0072: Available online:

Jacqueline Bhabha argues that we can expand the definition of "stateless" to include those who for all extents and purposes have no government to appeal to and no one to enforce their rights. Undocumented migrants, for example, have a citizenship but not the citizenship of the country they reside in and the home country is not generally in a position to protect them in the same way that they ostensibly protect citizens within the territory.  Undocumented child migrants, Bhabha argues, are a particularly vulnerable subset of the "functionally stateless."

The DACA children in the US (those who entered as minors) are seeking a regularization of their status because, it could be argued, they are effectively stateless;  they are not under the protection of their country of origin, and they are in a rights limbo in the US, their country of residence.  There is no question that they suffer severely in the US because of this.  As chldren they did not choose to come to the US so they did not enter illegally of their own volition. Now that they are old enough to make their own decisions, they wish to stay.  Most American are agreeable to this.  In fact, only a very small minority of Americans support deporting them.

The US is not the only country coping with this issue.  Nation-states are struggling come up with legal solutions to address what is an issue of ethics - how we treat and protect non-citizen undocumented children residing irregularly in the national territory?   Japan deports them.  France offers some protection when they are minors.  The former is harsh, the latter is only (like DACA) a temporary solution leaving the children with an uncertain future.

Do these child migrants have a moral claim on the community in which they reside?  The answer to this is, in my view, "Of course!"  If a child is drowning, we don't say "Papers, please!" before we pull them out of the river.

But do undocumented children have rights?  Ah, that is a much stickier question.  Even citizen children don't have the same set of rights as adult citizens and most of us find that to be quite normal. But there is one right that citizens supposedly have from birth but is entirely at the discretion of their parents in childhood and that is "the right to remain."  Most migrants/expatriates I know did not ask their minor children if they wished to remain in the home country (France, Japan or the US) - they simply announced the decision. A couple of interesting question would be:  Does a child have the right to remain in the country of citizenship even if the parents want to migrate?  If a child does migrate with his/her parents does she have the right to insist upon returning to the country of origin regardless of the parent's wishes?  Something to think about....

I would agree with Bhabha and say that the DACA argument over child migrants comes down to "the right to have rights" and for me it centers around one specific right:  the right to remain in the country of long-term residence, the only country in a position to actively protect/enforce that child's rights.

So far I am hearing two arguments against recognizing their moral claims and giving them the right to remain:  The first says that this combination of recognition and rights creates an incentive for undocumented parents to bring in their children which will simply perpetuate the problem (or in the parlance of the anti-immigration crowd, "reward" them.)  This is not not an entirely specious argument when you consider that children can be in real danger when they enter a foreign country.  They can fall prey to child traffickers and other unscrupulous people.  They can also fall into the hands of the immigration authorities who may detain even very young children. (See the case of Tabitha.)  It is not wrong to want to limit situations where children can be endangered.

What this argument ignores is the most important incentive which they cannot legislate out of existence:  the desire of parents to have their children with them and vice versa. (And I should not be having to explain the importance of family to my fellow social conservatives but, hey, that's where we are.)

The second argument I've heard sends a chill down my spine and that is "the prevention of chain migration."  If the DACA children/young adults are legalized and put on a path to citizenship then eventually they can sponsor their relatives to come to the US.  Well, yes, last time I looked US citizens do have the right to request "family reunification"  and bring relatives and spouses to the US.
This means that every US citizen whether a citizen by birth or naturalized is a possible source of "chain migration." So, if preventing this is the goal, than are they suggesting that all US citizens should lose that right or have it be more limited than it already is?  I think that's where they are going with this and for those of us with foreign spouses we need to pay attention because we could lose or see limited our family reunification rights.

Neither argument is convincing to me and I believe that there is a moral imperative to regularize the situation of the "functionally stateless" children in the US and elsewhere.  Children without sufficient rights or even "the right to have rights" are in danger.  It's the child drowning in the river, folks. As Bhabha argues:  "[B]eing functionally stateless, whether by virtue of "alienage" or familial noncitizen status, also brings with it economic, social, and psychological dangers."  Fundamentally, removing the danger means recognizing their right to have rights, putting them under the protection of the state in which they live which agrees to enforce those rights, and guaranteeing their right to remain.

Now the question becomes how to do that.  Joseph Carens (The Ethics of Immigration) argues that just as we don't ask native born children whether or not they want to be citizens, we shouldn't ask the DACA children.  They should simply be made citizens.  I don't care for that idea.  His argument is that we give citizenship to children when they born because we have an expectation that they will grow up in a particular political community (or with at least one parent who is a member.)  His view of birthright citizenship reminds me a lot of baptism.  In my church, babies and very young children  are baptized without their consent because the expectation is that they will grow up in the Church and then, if they choose to, there is a validation of that baptism when they become adults.  However, older children and adults have to give their explicit consent: they must "opt in."  And all this seems quite reasonable to me.

The flaws I see in Carens argument are twofold:  1. I think all birthright citizens should explicitly consent to citizenship and there should be some kind of procedure/ritual for instantiating that consent when they become adults; and 2. I am uneasy at the idea that older children/young adults can be deprived of the right to make a decision about whether or not they want to be US citizens.  Perhaps they wish to defer it.  Perhaps they will chose never to become citizens.  Regardless of the decision they make they should still retain the right to remain without any risk of deportation.  And, yes, that means that that the right to stay should be unconditional  and not contingent on their behavior. Their long-term residence since childhood should be sufficient to shield them from any possibility of being removed.  A Green Card Plus is in order here.

Those are my thoughts so far.  What do you think?


bubblebustin said...

"And that fact that they may have citizenship somewhere else is in a real sense irrelevant because they are no longer under the protection of that state."

This will likely be part of the argument for providing status for these children and in turn a viable argument against the US's Citizenship Based Taxation. Cook v Tait claimed that citizenship benefits citizens wherever they are, so therefore the state has the right to tax citizens for thos benefits wherever they are.

Deborah S. said...

Limitations on family reunification in the US are already in the offing. The RAISE Act proposes to cut immigration by at least half from current levels. It eliminates family-based immigration preference categories by restricting ability of U.S. citizens and permanent residents to petition for family members. Only spouses and minor children can be petitioned. Parents, siblings and adult children will be eliminated as beneficiaries of petitions.
The current state of tribalism has brought America's ugly side to the fore, as old, white Christian men seek to recreate a time that never really was. I have some solace being in Canada, with my citizenship application pending. I don't think I could return to the States today.

Victoria FERAUGE said...

bubbebustin: That's a good point. And its reality - when you are a resident of another country you are effectively under their protection. The home country does not have much to say about it and frankly can't do much to help except offer a loan so the person can go back to the US. This always suprises Americans who think their country is omnipotent but there you have it.

Deborah, Thanks for the comment and the information. This does not surprise me and the US isn't the only country where family reunification is under attack. I don't know about Canada but France and the UK have made it harder even for spouses.

Have to agree with you about the tribalism. I am finding it impossible to have a civil conversation with a fellow American about politics these days. I give up and I am limiting my exposure for the sake o my sanity.

Inaka Nezumi said...

I guess I don't feel like I have the right to tell the US how they should handle their DACA kids, so will focus on the Japanese case you mentioned, which seems basically similar. Looking at Japanese reports of the situation, it seems the basic facts are:

Utinan Won was born in Japan of Thai parents, who were living in Japan illegally as tourist visa overstayers. He was not sent to Japanese elementary school, and was raised in the Thai expat community. Apparently, in this environment, he never learned either Japanese or Thai properly, until he was 12 and received help from some support group to study Japanese enough that he could enter Japanese middle school partway through, and where he apparently is now.

Illegal stayers are reportedly sometimes granted permission to continue staying, if they are married to a Japanese national or otherwise show deep ties to Japanese society. He applied for that kind of exception, and was denied. The reasoning? Not explicitly laid out, but there seems to be an inference that the court thought his Japanese ties were not sufficiently deep and compelling (did his lack of Japanese elementary schooling, and being raised in a form of gaijin bubble, hurt?). They also thought that since he demonstrated the ability to cram-learn Japanese well enough to function at school, then he could probably do the same with Thai, so sending him to Thailand would not represent a real hardship for him. (This almost seems as though his efforts to catch up in Japanese ended up counting against him.) I also wonder if the fact that his country of citizenship is Thailand, and not some more oppressive regime, worked against him. They probably would not have been so willing to deport an illegal North Korean, I'm guessing.

Personally, I would like to see someone in his situation allowed to stay until he is an adult, and legally responsible for his own actions. At that point, he should be allowed to apply for proper residency (or even citizenship), without his illegal status as a minor being held against him. After all, it is not his fault he ended up in this situation.

And whose fault is it? If I were him, I would be pretty angry at my parents for putting me in this situation. Of course, they presumably found living illegally in Japan preferable to living legally in Thailand, and maybe thought they were giving him a better life by continuing to do so after he was born, but in the end they screwed him out of having a decent life in either country.

And then one has to ask, how is that they managed to stay illegally for so long? (At least his mother -- his father apparently left the family at some point.) Was there someone benefiting from the mother's cheap labor and willing to fudge paperwork so she didn't get caught? What is that person's responsibility here? Should the immigration system be changed to make it easier for people like the mother to work here legally instead? I think these are the kind of issues that really need to be addressed to find a long-term solution to the problem of illegally-staying minors.

Despite my declining to opine on the DACA situation directly, much of the above could probably be transcribed to the US situation more or less directly if forced to do so.

Eric said...

Undocumented migrants, for example, have a citizenship but not the citizenship of the country they reside in and the home country is not generally in a position to protect them in the same way that they ostensibly protect citizens within the territory.

On one hand, refusing to offer protection or acknowledge nationality can sometimes be the kindest thing the ostensible "origin country" can do. I'm thinking particularly of Vietnam, which tells Western countries to go pound sand about 100% of the time when those countries try asking for travel documents in order to deport Vietnam War refugees. Obviously there's an element of self-interest there on Hanoi's part (they don't want a bunch of angry South Vietnamese veterans coming back, let alone non-Vietnamese-speaking kids with criminal records), but it also means that the responsibility for dealing with the kids who grew up abroad rests firmly on the countries where they were raised.

On the other hand, many countries have allocated consular resources for serving undocumented populations in the US, and also have programs to re-integrate those who get deported (even if those programs can't necessarily respond to a giant surge in demand). Mexico comes to mind:

And on the third hand, South Korean DACA recipients, in particular men, get the worst of both worlds. Careless and uncaring legal draughtsmanship in South Korea turned them into criminals (because conscription deferrals only apply to people with legal residence abroad). If they get deported there, their "reintegration program" is going to be either military service in a language they don't speak (with all the other conscripts resenting them because they can't pull their weight), or a prison term. And because South Korea deems them draft evaders, they can't get passports, only emergency one-way travel documents - but some US states, e.g. Georgia, will only give driving licenses to DACA recipients who show a valid passport.

Victoria FERAUGE said...

Inaka-san, Thank you for providing more information and some insight into why the Thai boy was deported. What to do about child migrants is something that many states are grappling with. I think most agree that it isn't any of their doing though Bhabha points out that they may have more agency that you might think. She tells of one older child who got tired of waiting for his mom who was in the US to come home. So he packed up and went looking for her and found her in LA. That was a damn dangerous trip but he did it. Note that he wasn't so interested in going to the US, he just wanted to be with his mother.

How did this Thai family manage to stay for so long? Good question. And I suspect you're right that they had help. I would also note that keeping track of people in a nation-state with a large population is very difficult. Osaka has some dark corners - areas I've walked into where I never see any cops but I do start to hear languages other than Japanese (one of the water districts is not far from my apartment.) I have heard (but can not verify) that organized crime has real power in the city and may have a role in smuggling people in and employing them. I also note that there are many mom and pop businesses here - so many that I can't imagine how the government could stop them from hiring whomever they like.

And lastly we need to consider that strong border security which is designed to keep people out also serves to lock them in. What would have been the penalty if that Thai couple had turned themselves into the authorities? Would they have been summarily deported or would they have been detained and punished and their child turned over to agents of the state? They may have deemed it safer to stay - or it may have been the least bad option they had.

Eric, Fascinating. Thank you. I would also recommend Aftermath: Deportation Law and the New American Diaspora by Daniel Kanstroom which explains what happens to deportees sent back to their countries of citizenship.