Thank you for joining us and congratulations on your new book, Borders and Belonging! At the core of the book is your claim that aspects of immigration policy must be evaluated based on how well they respect the “humanity claims” and “belonging claims” of all stakeholders. Could you explain to our readers what these claims are? What are some examples of borders and immigration policies failing to respect these claims? Why do you think these claims are better tools for assessing policies than human rights frameworks?
Thank you for inviting me to engage in this conversation. You are quite correct to identify respect for “humanity claims” and “belonging claims” as foundational to the analysis in Borders and Belonging. I explain these concepts in the Introduction and Chapter One, and they do lots of work as the book explores many other topics.
Humanity claims refer to the idea that borders must not inflict injuries that no human being should suffer. In contrast, belonging claims are grounded in the connections that people have to communities in a country. These ties give rise to claims to be treated like others with such ties, though not always identically. Some immigration policies might disrespect both humanity claims and belonging claims. With these terms, I try to provide a vocabulary for understanding how borders might be troubling, or made less troubling, and move toward fair immigration policy.
“Humanity claims” refer to the idea that borders must not inflict injuries that no human being should suffer. In contrast, “belonging claims” are grounded in the connections that people have to communities in a country.
Take, for example, putting migrants in harsh detention conditions, in freezing temperatures with scant or spoiled food. Humanity claims can persuasively challenge this practice, no matter who the detained noncitizens are. If they are also long-time residents, then they also have persuasive belonging claims against this practice because this treatment also disrespects their connections to the country.
Why don’t I use more familiar terms, such as “human rights” instead of humanity claims? I am avoiding the implications of the word “rights,” among them that the claims presuppose societies that emphasize individual rights. Similarly, I say belonging claims instead of “civil rights” or “constitutional rights,” which are terms linked to some legal and political cultures (like the United States) but not others.
More generally, I am writing for a worldwide readership, even though I focus on the United States because that is what I know best. I hope that my exploration of migration policy makes sense throughout the world. Many issues in U.S. migration policy have counterparts elsewhere, even if the terminology might differ.
You argue that the arguments and appeals of immigration advocacy in the United States are often couched in a “civil rights framework.” What is this framework, and how has it been successful in the past? You also identify some weaknesses in this approach. What are these? Do you believe that Donald Trump and his MAGA movement have been able to exploit them?
In recent U.S. history, advocacy for immigrants has been tied closely to the civil rights movement and its pursuit of equality and dignity for African-Americans.
As I explain in Chapter Three, in recent U.S. history, advocacy for immigrants has been tied closely to the civil rights movement and its pursuit of equality and dignity for African Americans. This is understandable once we recognize that racial discrimination, sometimes quite explicit, has infected U.S. immigration history.
The first naturalization statute, adopted in 1790, limited eligibility to “free white persons.” A series of immigration laws expressly barred Chinese laborers and then almost all migrants from countries in Asia. The admissions system at the core of U.S. immigration law from 1921 to 1965 favored northern and western European immigrants over immigrants from southern and eastern Europe. That system also favored all Europeans over people from elsewhere in the world. Immigration from countries in Asia and Africa was almost completely blocked.
In 1965, legislative changes rid U.S. immigration law of this explicit discrimination. The push in Congress came from the same coalition that achieved the 1964 Civil Rights Act and the 1965 Voting Rights Act. With these simultaneous reforms, it was natural for immigrants and their allies to adopt much of the rhetoric and concepts of the civil rights movement. This pattern persisted because much of U.S. immigration law has continued to reflect racism, albeit in more subtle forms.
A landmark U.S. Supreme Court decision in 1971 recognized lawful permanent residents of the United States as a group protected by the same analysis that protects other minorities. Equality was also the impetus for a 1982 Supreme Court decision that undocumented children have a constitutional right to a public K-12 education.
This civil rights version of immigrants’ rights centered on concerns about people in the United States and rested on the claim that many noncitizens “belong.” But when the focus of migration debates shifted in the 2010s to the arrival of large numbers of migrants who had never been to the United States, rhetoric and concepts based on belonging lost traction. Candidate (and later President) Trump started to portray immigrants as invaders, unlike people in our midst with belonging claims.
I want to look a bit closer at the role that American courts play in immigration politics. Your book provides examples of courts playing both restrictive roles, like a recent case finding that a citizen’s right to marriage does not include a right to live with their spouse in the US, as well as more liberal ones, like the Supreme Court cases preventing states from refusing services to non-citizens. Courts still seem to play this ambivalent role today. What factors determine how courts approach immigration issues? To what extent should those advocating for more just immigration policies rely on the courts?
One dimension of the answer explains how courts—and the lawsuits filed in the courts and the actual decisions of courts—influence immigration policy. These court cases have reflected opposing trends. Noncitizens and those close to them (including U.S. citizens) have won some cases and lost others.
Chapter Three discusses one major trend: that courts often defer to Congress and the executive branch without listening seriously to humanity claims or even belonging claims asserted against government immigration decisions. Many of these court decisions arose in times of heightened concern about harms from foreign sources. The legal doctrine that emerged in these moments has been sticky, continuing to apply in times when public concern about foreign harms becomes less intense.
The cumulative effect of U.S. courts’ decisions often weighs against noncitizens. But a fuller picture highlights how lawsuits can lead to or galvanize social movements. The first Trump administration’s ban on entry by noncitizens from several majority-Muslim countries was a rallying cry for the immigrants’ rights movement, even if the U.S. Supreme Court would ultimately uphold the ban. The effects of advocacy beyond the lawsuits themselves did much to bring together people, organizations, and communities in common cause, and this matters. Many social movements include court battles, but the movements can prevail only with broader traction.
The cumulative effect of U.S. courts’ decisions often weighs against noncitizens. But a fuller picture highlights how lawsuits can lead to or galvanize social movements.
You make an interesting connection when discussing the importance of considering history; for example, to rectify ongoing harms from older racist immigration policies. You link efforts to omit these historical contexts from immigration decisions to broader attempts by illiberal movements to restrict history teaching, saying “perhaps [they] fear that knowledge of the past is a subversive force.” What types of immigration-related historical education do you see being targeted, and what effect is that having on national immigration discussions? How should this be remedied?
Chapter Ten closes the book by discussing, among other things, the role of history in making immigration policy. I map out a spectrum. At one end, the role of history is so immediate that we might not see it as history at all. For example, the withdrawal of American troops from Afghanistan and the Taliban’s takeover put Afghans who had worked as translators for the United States’ armed forces at great risk. To argue that U.S. law should protect them illustrates reliance on (very recent) history to make immigration policy.
The steady increase in the undocumented population of the United States is the consequence of a severe mismatch between the economy’s thirst for workers and an immigration system that lets in few workers legally.
Another example may seem more attenuated, but here too, history should influence immigration policy. The steady increase in the undocumented population of the United States—to around eleven million—is the consequence of a severe mismatch between the economy’s thirst for workers and an immigration system that lets in few workers legally. Chapter Six explains why the best, most durable solution is to reform the system and admit more newcomers to work. Relatedly, Chapter Eight discusses the need to address the concerns of people who feel displaced. And it is important to offer status to the undocumented through legalization. To urge legalization, as I do, is to say that labor history and immigration history are relevant to making policy.
What is on the opposite end of the spectrum? Some people approach immigration policy by noting that national borders reflect centuries of imperialism and colonization. This perspective can see as illegitimate any national borders that limit migration from poorer countries to more wealthy regions. The argument is that immigration policy is a logical site for reparations for historical wrongs.
This view has a lot of persuasive force, at least in ideal terms. But I fear that asking immigration policy to correct all historical wrongs is to ask more of immigration policy than it can realistically bear. I write in the Introduction that the book is an exercise in realistic utopia. I identify what would make immigration policy fair, but I also recognize the constraints of realistic politics. Many people do not know history, let alone use history to shape policy today. Realistically, my goal is first to make sure history is not forgotten, then to use it incrementally to work toward fair policy.
Let us now discuss how immigration enforcement has changed in the first months of the second Trump administration. Contrary to your book’s proposals, Trump has relied more on punitive measures, increased the power of largely unaccountable enforcement agencies, and has set few prosecutorial discretion guidelines, if any. The raids carried out by Immigration and Customs Enforcement (ICE) across the United States clearly disrespect the humanity and belonging claims of migrants. Do you believe that the new administration can achieve its stated goals with these efforts? What kind of negative knock-on effects could they have?
The second Trump administration has spent a lot of political and financial capital on enforcement. Congress has increased funding astronomically over prior levels. It is essential to assess these developments and their implications not just for immigration, but also for society, democracy, and this country’s future. More funding for enforcement means more arrests, more detention, and more deportation. But beyond this, we need to consider what it would take to increase deportations to the “mass deportations” level the administration has promised and seems to strive for. The implications of this campaign are quite visible in Los Angeles, though similar trends are evident throughout the country to some degree.
The second Trump administration has spent a lot of political and financial capital on enforcement. It is essential to assess these developments and their implications not just for immigration, but also for society, democracy, and this country’s future.
The administration’s tactics include neighborhood sweeps, masked agents pulling people off street corners, and targeting based on appearance or language. The dragnet has swept up U.S. citizens. The administration has commandeered the California National Guard and sent in U.S. Marines. A lawsuit may curtail these practices, but the administration has shown its willingness to disobey court orders.
One important lesson from Los Angeles has been that the intense enforcement required for “mass deportations” requires turning America into a police state in targeted neighborhoods and cities.
One important lesson from Los Angeles has been that the intense enforcement required for “mass deportations” requires turning America into a police state in targeted neighborhoods and cities. This means arrests without the reasonable suspicion that the U.S. Constitution requires. It also means that people arrested and detained have little chance to explain their immigration status, or that they are citizens. They are not given due process before deportation. This matters because the line between lawful and unlawful presence is complicated. That is how the law is written, and a fair hearing in court is essential for applying the law correctly.
Why is the law like this? My reply to an earlier question noted the severe mismatch between the economy’s thirst for workers and an immigration system that admits few workers legally. As long as the system is like this, the economy requires undocumented workers, and enforcement will be impossible without hyper-aggressive practices of the sort that prompt broad concerns. The administration’s enforcement plans will ultimately fail—after causing immeasurable pain—because today’s system is unenforceable. Chapter Seven explains this more fully.
One last point. The real purpose of “mass deportations” is not just mass deportations. It is mass fear. Many of the administration’s immigration initiatives—and its effort to reinterpret the Constitution to restrict U.S. citizenship—reflect an attempt to turn back the clock to earlier times in national history when a racial hierarchy was not only prevalent but assumed to be natural.
The real purpose of “mass deportations” is not just mass deportations. It is mass fear.
We will end with our usual final question, about the concept of illiberalism. I am curious about how useful you think this term is. Immigration seems like one of the most significant “non-liberal pockets” of policy in most countries. In the United States, you show how racist immigration laws persist, and you mention the Plenary Power Doctrine, where the Supreme Court largely defers to executive and legislative decisions. Given this context, which predates Trump, can the concept of “illiberalism” meaningfully describe how ultraconservative political movements are approaching immigration?
Your question gets at the broader role of immigration policy in nation-states. I write in Chapter One that national borders are the Achilles heel of a fair and just society. In other words, borders can make injustice, oppression, and cruelty seem normal. But I do not argue that national borders are always bad. The book’s subtitle is “Toward a fair immigration policy,” implying that immigration policy can be fairer. I name some good things that can come from borders, and I note that borders may be justified in treating people on the inside better than people on the outside.
But there must be limits on how borders and immigration law disadvantage outsiders and on how borders refuse to recognize the belonging of some insiders. This is why it is useful to think about humanity claims to fight against things that no human being should have to endure. And borders often conceal and normalize the unjust treatment of insiders and thus disrespect their belonging claims.
The administration has cast immigration law as some kind of shield protecting “us” on the inside from “them” on the outside. This is why the word “invasion” appears so prominently in the President’s executive orders. But this word implies a view of immigration law that disregards a crucial fact: people who belong to America are connected to immigration and immigrants in many ways and have valid belonging claims to have those connections honored.
The “invasion” label silences the voices of people who belong to America and have spouses who want to join them here, or of employers who want to hire newcomers to work, or of colleges and universities that want international students to enrich their campuses. The invasion label amplifies the voices of people with fewer of those connections or interests, and who want to practice the same isolationism that drives trade wars and turns its back on international cooperation and alliances.
The link to illiberalism is plain. The key moves toward illiberalism make the erosion of liberal democracy seem normal, even necessary, and even inevitable. Immigration law does a lot of this work by making the silencing of some insiders’ voices seem a normal, even necessary, and inevitable aspect of protecting the nation. These moves have illiberal effects in many areas beyond immigration. But a lot of illiberalism starts with immigration law. Regressive immigration law is an indispensable tool for authoritarians.
Hiroshi Motomura is the Susan Westerberg Prager Distinguished Professor of Law at the UCLA School of Law, where he is also Faculty Co-Director of the Center for Immigration Law and Policy. He is the author of Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States; Immigration Outside the Law; and most recently, Borders and Belonging: Toward a Fair Immigration Policy.
