"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 MUSE, doi:10.1353/hrq.0.0072: Available online: http://www.corteidh.or.cr/tablas/r22419.pdf
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?