On The Ethics Of Deporting Citizens

September 01, 2016 Picture: Brendan McDermid/Reuters.

This article is part of The Critique’s September/October 2016 Issue “The Bright Continent: Illuminating The Challenges, Opportunities & Promises Of A Rising Africa”.

The Dominican Republic has recently denationalized tens of thousands of Dominicans of Haitian descent. The Constitutional Court of the Dominican Republic stripped these people of their citizenship. The government has since deported some former citizens, including people who have spent their whole lives in the Dominican Republic.

How did this happen? The 1929 constitution of the Dominican Republic granted citizenship to children who were born on Dominican territory unless they were the children of diplomats or migrants who were “in transit.” But a 2010 amendment to the constitution abolished birthright citizenship and conferred citizenship only on the children of legal residents. In 2013, the Constitutional Court in effect applied this amendment retroactively. The Court used the legal exceptions to birthright citizenship to exclude the children of unauthorized migrants. The Court considered the children of unauthorized migrants to be “in transit.” Thus, this group was ineligible for birthright citizenship.[i]

Many Dominicans are the children of Haitians who were unauthorized migrants. In addition, state officials sometimes refused to issue passports, birth certificates, and other forms of identification to Dominicans of Haitian descent. As a result, some Dominicans lack the ability to prove that their parents were legal residents. The Court’s ruling had the effect of denationalizing these groups. According to one estimate, the Court’s decision deprived up to 200,000 people of citizenship.[ii]

The Dominican government responded to the Court’s ruling by implementing a regularization program for “foreigners” in Dominican territory. But observers claim that this program is ineffective.[iii] It appears that only a fraction of denationalized citizens were able to register in the program and the government has failed to provide many of them with legal identification. The government has also begun to deport people. Dominican officials have deported about 14,000 unauthorized residents. About 70,000 people left on their own, although journalists and human rights groups have reported that widespread violence and intimidation against people of Haitian descent compelled many to emigrate.[iv]

The Dominican Republic’s denationalization and deportation of citizens has attracted widespread criticism. Amnesty International and Human Rights Watch strongly condemned this policy.[v] The Inter-American Court of Human Rights ruled that the Dominican Republic violated 11 articles of the American Convention on Human rights and arbitrarily deprived Haitian descendants of Dominican nationality.

For ease of reference, I will refer to a policy of denationalizing and deporting citizens as “compatriot deportation.” It may seem obvious that compatriot deportation is unjust. But why exactly? After all, states routinely deport another group of people—immigrants. Rich democracies have deported millions of migrants in recent years. States use coercion to prevent many more people from immigrating in the first place. These activities are legal. International law gives states extensive discretion to shape their immigration policies and control access to their territories.

International law reflects the belief that states have rights to control membership and exclude foreigners. States exercise their rights to control their membership by deporting unauthorized migrants and preventing foreigners from entering their territories. But notice that states can control access to membership in another way. They can denationalize and deport citizens. So, if states have the right to control access to membership, why shouldn’t states have the right to revoke access to citizenship and deport denationalized residents as well?

In a report on the situation in the Dominican Republic, Amnesty International recorded testimony from Dominicans who were denationalized and deported. One of the people that the authors interviewed is named Gerarcito Suarez. Geracito said:

“I am 19. I was born in Pedernales [a city in the Dominican Republic]. My parents are Haitian. I was living in Avila. I worked as a driver and I also studied in the evenings. The first time they expelled me was in January 2015, they took me when I was coming out of school. I went back there and they took me again on 23 June. Both times, officers asked me for some Dominican papers. I didn’t have them and so they brought me to La Fortaleza. I spent the night there and then when more people arrived they brought us to Haiti. The first time in Jimani they told us “Walk, Haiti is there!”[vi]

It seems unjust for Dominican officials to deport Gerarcito and others like him. Deportation sets back some of Gerarcito’s urgent interests. Gerarcito plausibly has strong interests in satisfying his basic needs, living near or with his friends and family members, participating in the culture in which he was raised, and so on. By deporting and denationalizing him, Dominican officials impermissibly damaged these interests.

But let’s consider another case. The journalist Margaret Regan describes the story of Gustavo Perez:

“[Gustavo] was a twenty-five-year-old landscaper from Phoenix…. Gustavo had moved with his family from Mexico to the United States as a child. Born in Veracruz, he’d come to Phoenix at the age of eight and lived there ever since. He spoke perfect English. He and his wife had two small children, a boy of four and a baby girl, both of them US citizens. Gustavo had been arrested in Phoenix for riding his bicycle at night without a light and then detained by ICE. He’d rotated through several detention centers, in Arizona and in Colorado, before being tossed back over the border into Nogales. He’d always worked hard to support his children. What was their mother doing now, he wondered, without his wages coming in?”[vii]

Gustavo’s case is hardly unique. The United States government has deported over two million people under the Obama administration.[viii] Many of them had lived in the United States for long periods of time. Other democracies also deport large numbers of unauthorized migrants and failed asylum-seekers.

As I noted above, it is legal for the United States to deport Gustavo. Moreover, many citizens and politicians endorse a policy of deporting unauthorized migrants from the United States. But it is hard to see how Gustavo’s case is different from Gerarcito’s in morally relevant ways. Deportation in both cases sets back the same basic interests. When state officials deported Gustavo, they likely damaged his interests in living with his family, economic opportunity, participating in the culture in which he was (for the most part) raised, and so on.

Arguments for the view that the United States can permissibly deport people like Gustavo also entail that it is acceptable for the Dominican Republic to deport and denationalize people like Gerarcito. To clarify why, let’s see how some standard arguments for the right to exclude apply to these cases.

One argument for immigration restrictions appeals to a state’s right to collective self-determination. According to this argument, states, or their citizens organized in states, have rights to control their membership and shape their collective destiny together. Michael Walzer claimed: “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination.”[ix] The idea here is that citizens have rights to shape the composition of, and access to, membership in their political community.

Some philosophers understand collective self-determination in cultural terms. They think that citizens have rights to control how their public culture changes. Immigration changes a society’s culture. So, citizens have rights to control immigration in order to prevent unwanted cultural change. For example, many Americans disapprove of and dislike the cultural change that is induced by immigration. If immigrants would change American culture if they were allowed to permanently reside in the United States, then perhaps citizens of the United States have rights to exclude and deport them.

Yet, if collective self-determination can justify the exclusion and deportation of foreigners, then it can justify compatriot deportation too. The citizens of the Dominican Republic can shape their culture and exercise control over their membership by denationalizing and deporting Gerarcito and other people of Haitian descent. Maybe Gerarcito belongs to a cultural minority and this minority is changing Dominican culture in ways that many Dominicans disapprove of. To prevent cultural change, citizens might decide to denationalize and deport members of this cultural minority. Nationalists in the Dominican Republic have actually justified laws that marginalize citizens of Haitian descent by citing the cultural differences between Haitians and Dominicans and the threat that Haitians pose to Dominican culture.[x]

“If collective self-determination can justify the exclusion and deportation of foreigners, then it can justify compatriot deportation too”.

Other arguments for immigration restrictions invoke the costs of immigration. Immigrants might drive down the wages of citizens by competing with them for jobs, consume more in welfare and social services than they contribute, and raise the costs of housing. Many people argue that states can permissibly restrict immigration and deport unauthorized migrants in order avert the burdens that immigration imposes on their citizens.

Notice though that the same argument implies that compatriot deportation is acceptable. Some people impose net costs on their compatriots. Let’s assume for the purpose of illustration that Gerarcito is poor and consumes more in public services than he contributes in taxes. Gerarcito also competes with other citizens for jobs, housing, and other scarce resources. The government of the Dominican Republic might expel Gerarcito and strip him of his citizenship in order to shield other Dominican citizens from the costs that Gerarcito imposes on them.

We can generalize even further to immigration restrictions as a whole. Deportation inflicts harms on migrants. But so do border controls. Immigration restrictions that prevent people from entering other states help trap people in situations of poverty, insecurity, and violence [See Sager for a discussion of the burdens of border control of African migrants]. These restrictions enable harm to potential immigrants by stopping them from improving their lives. The standard arguments for immigration restrictions say that states can permissibly restrict entry because citizens have rights to self-determination or because these laws are necessary to protect citizens from the costs of immigration. If restrictions on entry are justified for these reasons, then it is unclear how we can rule out compatriot deportation in principle. The arguments that justify coercing and harming potential immigrants can likewise justify deporting and denationalizing citizens.

You might argue that there are relevant differences between immigration restrictions and a policy of compatriot deportation. One difference might be that compatriot deportation is more harmful than immigration restrictions. If compatriot deportation inflicts more harm than immigration restrictions, then that is a morally relevant difference between these policies. But it is hardly obvious that compatriot deportation causes more harm than immigration restrictions in general. For instance, there is little reason to believe that the deportation of Gerarcito is necessarily more damaging than Gustavo’s deportation.

“The arguments that justify coercing and harming potential immigrants can likewise justify deporting and denationalizing citizens”.

A critic could respond that compatriot deportation is especially harmful because it renders people stateless. In contrast, the people who are harmed by immigration restrictions are usually citizens of other states. And it appears that some Dominicans of Haitian descent are now stateless.[xi] Stateless people are often extremely vulnerable to abuse and rights violations. However, compatriot deportation does not necessarily cause statelessness because denationalized citizens might still have access to citizenship elsewhere. For example, some people have dual citizenship or are eligible for citizenship in other countries. Consequently, the risk of statelessness does not categorically distinguish compatriot deportation from immigration restrictions.

You might differentiate between compatriot deportation and immigration restrictions by arguing that states have special obligations to their own citizens while they lack obligations to advance the interests of foreigners. So, the Dominican government owes a special obligation to protect its citizens, while the United States government lacks an obligation to protect the interests of immigrants. This difference explains why it is wrong to deport and denationalize citizens, but it is permissible to deport immigrants and restrict their entry.

Let’s grant for the sake of argument that public officials have special obligations to protect their own citizens. Even still, the above argument doesn’t work.

It seems wrong to denationalize and deport citizens because this would harm them by coercively setting back their urgent interests. In other words, compatriot deportation violates “negative” duties to refrain from harming people without adequate justification. But the same point applies to immigration restrictions. The government of the United States harms Gustavo by deporting him to Mexico. So, the American government violates a negative duty in Gustavo’s case as well.

Why does this matter? Because it is implausible that state officials owe significantly weaker negative duties to foreigners than they owe to their own citizens. Imagine that an American police officer assaults and injures two pedestrians without justification. One of these victims turns out to be a United States citizen and one of them is Canadian. It is hard to believe that it is any less wrong for the police officer to assault the Canadian citizen just because this person turns out to be a foreigner. Instead, it is just about equally wrong for the officer to injure the Canadian pedestrian as it is for him to harm the American one. If this point generalizes, then it is equally wrong for state officials to harm foreigners and citizens.

Immigration restrictions and compatriot deportation harm people. So, you can’t object to compatriot deportation while endorsing immigration restrictions by citing a state’s special obligations to its citizens. Why not? Because states have equally weighty negative duties to refrain from harming citizens and foreigners. In this case, states do not have stronger duties to their own citizens than they owe to foreigners. If immigration restrictions and compatriot deportation violate negative duties, then the special obligations of governments are unable to explain why compatriot deportations are unjust while immigration restrictions are permissible.

Finally, an objector might argue that unauthorized migrants do something wrong by violating immigration law and this wrongdoing renders them liable to deportation. Unauthorized migrants break the law and perhaps deportation is a fitting response to these violations. Yet this argument won’t do either. Almost everyone violates the law. Many Americans frequently violate traffic laws, drug laws, and so on. The lawyer Harvey Silverglate writes: “it is only a slight exaggeration to say that the average busy professional in this country wakes up in the morning, goes to work, comes home, takes care of personal and family obligations, and then goes to sleep, unaware that he or she likely committed several crimes that day.”[xii] According to Silvergate, ordinary citizens often commit crimes because the number of laws with criminal penalties has exploded. If mere law-breaking renders people liable to deportation, then most American citizens are eligible for deportation. Anyway, potential immigrants—people who live in other countries and want to immigrate—don’t necessarily violate any laws. What justifies using coercion against them?

The Dominican Republic’s denationalization and deportation of its own citizens is unjust. But we cannot defend this conclusion without objecting to other ways of excluding people from membership. Compatriot deportation inflicts wrongful harm on people. Moreover, the value of collective self-determination and citizens’ interests in avoiding economic and social costs are unable to justify this harm. Yet the same reasons why we should condemn the denationalization and deportation of citizens imply that many immigration restrictions are unjust as well.[xiii]

Footnotes & References

[i] For an analysis of this decision, see: Monique Hannam, “Soy Dominicano – The Status of Haitian Descendants Born in the Dominican Republic and Measures to Protect Their Right to a Nationality,” Vanderbilt Journal of Transnational Law 47 (2014): 1123-1166.

[ii] Jonathan Katz, “In Exile,” New York Times Magazine (January 13, 2016).

[iii] Michele Wucker, “The Dominican Republic’s Shameful Deportation Legacy,” Foreign Policy (October 8, 2015), available at: http://foreignpolicy.com/2015/10/08/dominican-republic-haiti-trujillo-immigration-deportation/

[iv] Katz, “In Exile.”

[v] Amnesty International, Without Papers I Am No One: Stateless People in the Dominican Republic (London 2015); Human Rights Watch, We Are Dominican: Thousands at Risk of Expulsion in Haiti, available at: https://www.hrw.org/report/2015/07/01/we-are-dominican/arbitrary-deprivation-nationality-dominican-republic.

[vi] Amnesty International, Where Are We Going to Live? Migration and Statelessness in the Dominican Republic (London 2016), p. 33.

[vii] Margaret Regan, Detained and Deported: Stories of Immigrant Families Under Fire (Boston, MA: Beacon Press 2015), p. xv.

[viii] Ana Gonzalez-Barrera and Jens Manuel Krogstad, “U.S. Deportations of Immigrants Reach Record High in 2013,” PewResearch Center (October 2^nd, 2014), available online at: http://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/

[ix] Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), p. 61.

[x] Katz, “In Exile.”

[xi] Amnesty International, Without Papers I am No One.

[xii] Harvey Silvergate, Three Felonies a Day (New York: Encounter Books, 2009), p. xxx.

[xiii] I give a more sustained argument for this conclusion in “Self-Determination, Immigration Restrictions, and the Problem of Compatriot Deportation,” Journal of International Political Theory 10.3 (2014): 261-282.