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Migrants and Citizens

Justice and Responsibility in the Ethics of Immigration

William B. Eerdmans Publishing Company

The Inadequacy of Human Rights and the Preferential Option for the Poor

Mario Alapizco Castro was stranded in Altar, a Sonoran town sixty miles south of the U.S.-Mexico border. He had worked and saved for seven years to pay a "coyote" $8,000 to smuggle him from his hometown of Guatemala City to the United States. Just four months after he had settled into a new job in California, a job that allowed him to send money home and to save for the surgery he needed to repair his congenital heart defect, he was apprehended by US Immigration and Customs Enforcement and deported to Altar. Castro could not make the journey into the United States again because of his illness; it would not allow him to survive the rigors of the journey a second time. With no money to pay for transport back to Guatemala City, he was neither here nor there.

Mario Castro was only one of the hundreds of migrants staying in shelters along the US-Mexico border that journalist Margaret Regan encountered in her research for her book The Death of Josseline (2010). Like Castro, some of these migrants had been deported from the United States and were stranded on the wrong side of the border; others were preparing themselves for the long and dangerous trek across the Arizona desert. The story of Mario Castro and others who risk their lives to provide a better life for themselves and their children is repeated all over the world. Some migrants risk drowning in the Mediterranean Sea en route to Continental Europe from Africa; others journey across the Sahara Desert in hopes of scaling the fences of the Spanish enclaves of Ceuta and Melilla. The dangers of the journey and the enormous vulnerabilities these migrants experience if and when they arrive at their destination raise crucial issues for any Christian ethics of migration.

Mario Castro and many other migrants stranded at the US-Mexico border are citizens of neither the United States nor Mexico. Similarly, African migrants apprehended at the borders of Ceuta and Melilla are usually citizens of neither Morocco nor Spain. The division of the world into a system of territorially sovereign states makes some people citizens and others migrants. Had Mario Castro been a citizen of the United States, he would not have been deported. He might have qualified for Medicaid and Social Security and would have his heart surgery and recovery taken care of. Had he been a citizen, he might have been able to sponsor his wife and children on a family reunification visa. However, Mario Castro was not a citizen of the United States. The US government did not owe him anything at all; in fact, it deported him at the first opportunity. The nation-state system protects citizens and enables them to provide essential goods for one another, but it does not grant noncitizens the same protections.

Castro was not a citizen of the United States, but he was a citizen of another country — Guatemala. While Regan does not explain why Castro decided to make the dangerous and expensive journey north, we can surmise that it had something to do with his desire to provide for his wife and three children back in Guatemala City, and perhaps to secure medical treatment for himself. Castro's lack of access in the country of his birth to goods that many would count as basic human rights — medical care and a living wage that would enable him to support his family — surely spurred his decision to make the dangerous journey to the United States.

Mario Castro's predicament raises critical questions about human rights, migration, and responsibilities. Stranded between two countries, Castro is unable to claim basic protection of his rights in either the United States or Mexico. Yet, if human rights are indeed universal, then surely Castro's claim on the citizens of both the United States and Mexico should be broader than the right to humane treatment during deportation. But while documents like the UN Convention on the Rights of Migrants are quite insistent that migrants are endowed with rights by virtue of their very humanity, few UN statements or academic books discuss who has the duty to protect the rights of migrants and why. This is the case even in Christian ethics, even though the idea that human rights are linked to duties is one with a long history in the field. Yet most Christian ethics of migration do not directly address the question of who has responsibility for protecting the rights of migrants and on what basis these responsibilities are allocated. This is the central question that any ethics of migration must answer: What responsibilities do citizens have to noncitizens?

The importance of this question is not limited to the ethics of migration. What responsibilities do the residents of wealthy, developed nations have to those who live in desperate poverty around the world? Are these responsibilities the same as our responsibilities to the homeless person we pass on the way to work? Are these responsibilities the same as the responsibilities of citizens to the undocumented migrants already in their midst?

Many Christian ethicists have addressed these questions by drawing on two foundational principles that have become central to Christian social ethics: universal human rights and the preferential option for the poor. This chapter argues that, though these principles work quite well for issues of poverty and justice in the domestic sphere, they are by themselves inadequate to address issues of transnational justice such as migration. Human rights and the option for the poor — in focusing on the rights of migrants and the claims they have by virtue of their poverty and vulnerability — do so without allocating responsibility for who must protect their rights and respond to their claims.

Christian Ethics and the Problem with Human Rights

Christian migration ethics has generally answered the question of responsibilities to noncitizens by affirming the full humanity and dignity of migrants: migrants are humans made in the image of God. Regardless of their citizenship, their legal status, or their ethnicity, every person is "a child of God" who "bears the image of Christ." Migrants, created in the image of God, have an inherent dignity that must be protected by human-rights laws. These theological claims are common to both Catholic and Protestant ethics of migration, and to both academic and pastoral Christian ethics.

The commitment to the human rights of migrants means that, though they are not citizens, migrants can make moral claims against the state and its citizens. These claims include a whole host of positive rights, such as the right to employment, a living wage, food and water, in addition to negative rights such as freedoms from interference with rights of association, speech, and self-determination. When these rights are in danger at home, a person has the right to migrate. In other words, when migration becomes a matter of survival for people and their families, the right to leave the country of one's birth and enter another becomes a human right. In the Catholic tradition, because rights are always linked to duties, this right to migrate is linked to the duty of nation-states to welcome migrants. The Christian ethics of migration are refreshingly bold in this insistence on the human rights of migration. In contrast to public-policy discussions about migrants, which rarely begin with the radical notion that migrants are people, Christian ethics of migration affirm both the person's right of immigration and the state's duty to welcome needy migrants, going far beyond the rights accorded to migrants in international law.

This emphasis on human rights leads to a moral cosmopolitanism in which Christian commitment to our own countries and our fellow citizens cannot outweigh our commitment to the worldwide community that extends beyond the borders of our own countries. In this reasoning, the good of the nation-state cannot be secured at the expense of the human rights of migrants. For migration ethics and policy, this cosmopolitanism means that the right of the nation-state to control migration is limited by the obligations of the entire political community to the global common good. States should not refuse entry to migrants solely on the basis of national interest.

Basing a Christian ethics of migration on universal human rights has much to recommend it. In contrast to public discourse that dehumanizes migrants, Christian ethics insists on that radical principle that migrants are people. Instead of focusing on how migrants might have broken the law by crossing borders, human-rights discourse draws attention to the ways that migrants are already the victims of injustice. Instead of coupling human rights to citizenship in one nation-state, Christian ethics insists that migrants have rights by virtue of their very humanity. Instead of reducing migrants to what Pope Francis has termed "pawns on the chessboard of humanity," Christian ethics opens us up to the possibility that citizens have responsibilities and obligations to migrants.

Despite the promise of this approach, the asymmetrical emphasis on the human rights of migrants, without a corresponding discussion of who is obligated to protect these rights, risks reducing migrants' rights to empty rhetoric. For example, both the UN Declaration of Human Rights and Pope John XXIII's encyclical Pacem in terris (1963) contain thick, substantive lists of positive rights: rights to food, shelter, clean water, employment, health care, education; plus a list of negative rights: the right to be free from slavery, torture, discrimination, and so forth. While the negative rights listed in both documents would easily correlate with a universal duty to refrain from interference in people's freedoms, the positive ones do not lend themselves to universal duties so easily. The idea that every person in the world bears the responsibility to provide positive goods such as food, water, shelter, medical care, and education to every other person in the world is impossible to sustain on any practical level.

Political philosopher Onora O'Neill says that universal positive rights cannot correlate with universal duties because we are finite embodied beings — in her words, "spatially and temporally dispersed." Our attention, time, and material resources are limited. We do not have the "access to one another that universal 'positive' intervention would demand." In other words, our finitude prevents us from being able to provide the goods that universal human rights would demand that we provide to everyone who lacks them. As the saying goes, what is everyone's responsibility becomes no one's responsibility.

If it is insufficient to insist on universal human rights without specifying what persons or institutions have the duty to protect those rights, how do we decide which persons or communities have the obligations to provide for and protect the human rights of others? Many theories of justice presume a world made up of closed nation-states whose citizens do not move around or have relationships with those outside their borders. In such theories, borders themselves can assign specific duties that correlate with universal human rights. In other words, citizens are responsible for providing and protecting the positive rights of one another. The Catholic tradition also insists that the purpose of the nation-state is to protect human rights. Because fellow citizens are often literally our neighbors, and because there are already institutions set up to ensure rights for fellow citizens, this system seems to work quite well much of the time. Every person on earth lives in the territory of some nation-state; every person belongs to a political community that is responsible for guaranteeing his or her human rights.

But the situation of Mario Castro and the millions like him upends the elegance of the nation-state system of guaranteeing human rights. Nation-states often protect the positive human rights of their members; nonmembers are often excluded. Though he was ill and needed heart surgery, Mario Castro could not apply for Medicaid because he was not a US citizen. Though he may have paid Social Security taxes under a counterfeit Social Security number at his restaurant job in California, Castro could not claim disability benefits because he was not a citizen. Castro was not completely excluded from the protection of his human rights; political communities often do protect positive rights even for noncitizens. For example, if Castro had had his family with him in the United States, his children would have had access to both primary and secondary education. However, even when political communities choose to protect the positive rights of nonmembers, noncitizens receive these social goods as a result of the whim of the political community. Their access to these goods cannot be secured because they lack what is perhaps the most important positive right of all: the right to political participation.

Of course, the right to political participation is generally recognized to be a universal human right: it is declared so both in the UN Declaration (Article 21) and in Pacem in terris (para. 26). However, this universal right of political participation is a prime example of how it is not enough to insist on human rights without at the same time naming who has the duty to provide for and protect those rights. The right of political participation is surely linked to a universal duty, but whose? The UN Declaration narrows this right by specifying that "Everyone has the right to take part in the government of his country," implying that people do not have the right to take part in the government of another's country. Indeed, it would make little sense to say that everyone has the right to take part in the government of every country or any country in the world. As long as we presume that the world is made up of only closed societies, limiting the right of political participation to one's own government works just fine. However, Mario Castro's situation demonstrates that, if we do not specify which government has the duty to extend opportunities of political participation to which noncitizens, the entire ground of universal human rights becomes shaky indeed.

In other words, while citizens may vote to ensure that their interests are represented by their government, noncitizens are generally not allowed to. Mario Castro is not permitted to participate in shaping society through the democratic process: he may neither vote nor run for office. While he is not legally barred from public speech or protest, such activities, practically speaking, would expose him to the risk of deportation. In the United States, when journalist José Vargas publicly "came out" as an undocumented migrant, he was, in his own words, "risking everything" — his career, his family, and the only home he has known since he was twelve. Many undocumented migrants across the world decide that they cannot take such risks and thus avoid public exposure at all costs.

While US laws do protect Castro and other noncitizens — whether undocumented or not — from workplace exploitation and wage theft, undocumented migrants are not allowed to claim this protection without bringing themselves to the attention of the authorities and risking deportation. Even when migrants are in the territory legally, their presence is based on the whim of the government and not on rights. Ultimately, Castro was deported from the United States and stranded in Mexico; whatever minimal protections he could claim from the US government ended the moment he was deported and no longer under the territorial sovereignty of the United States.

After World War II, Hannah Arendt described the plight of refugees and stateless persons as having lost "the right to have rights." In other words, the loss of a community of people that is responsible for protecting one's rights entails the effective loss of those rights. For Arendt, putative universal human rights are anything but that if a person has no government to protect her. Unlike the refugees and stateless persons who were the subject of Arendt's reflections, economic migrants have not necessarily lost the protection of their governments, but they are living in nation-states not their own. They often have no voice in political processes and secure access to positive human rights.

In essence, Castro and other migrants all over the world lack the fundamental right that secures access to all other rights: they lack the right to be in the territory. Although a Christian ethics of migration can endlessly repeat that migrants have universal human rights, the nation-state system is inadequately structured to protect those rights. Human rights are too closely tied to citizen rights. Noncitizens have no effective way of securing either positive or negative rights, because they are guaranteed access to neither of the two most foundational rights: the right to political participation and the right to remain in the territory.

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Excerpted from Migrants and Citizens by Tisha M. Rajendra. Copyright © 2017 Tisha M. Rajendra. Excerpted by permission of William B. Eerdmans Publishing Company.
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