Enforcing Immigration Law: Justifications and Limits

States are not only claiming the rights to control their borders and to set immigration policies, but also enforcing these rights with coercive measures. Under existing international laws and practices, states only have to meet some rather undemanding standards to have external legitimacy, so even thoroughly corrupt and dysfunctional states have the right to enforce its immigration laws against foreigners. In this paper I focus on the morality of enforcing immigration laws. I argue that considerations of justice and legitimacy place significant constraints on immigration enforcement, even if we assume that states are entitled to considerable discretion in admitting or excluding potential migrants. Three different models for immigration enforcement will be examined: (1) the criminal model, (2) the self-defense model, and (3) the trespassing model. These models offer distinct justifications for the use of force by the state against unwanted migrants. On the criminal model, immigration enforcement is analogous to criminal law enforcement. The migrants who cross the borders without permissions are not only “irregular” or “undocumented” but “illegal” and “criminal aliens” who deserve to be punished. In recent years, there has been increasing convergence between immigration enforcement and criminal law enforcement mechanisms in various countries. In fact, many migrants are detained in facilities governed by penal norms, alongside with pre-trial or convicted felons. I argue that this model of immigration enforcement is morally problematic. There is a serious question of whether states have the authority to impose criminal punishments on migrants for violations of immigration law. For one thing, such violations belong to the category of mala prohibita (wrong as prohibited). For another, migrants are excluded entirely from the political process of determining these laws. On the self-defense model, immigration enforcement grounded in the state’s right to self-defense. Unauthorized migration is treated as a threat to national security. In response to such perceived threats, some states have militarized their borders by intensifying their borders security apparatus and transforming their borders into a zone of constant dangers and violence. I argue that this model has only limited application. Even in cases of self-defense, considerations of proportionality and necessity will place significant limits on how force may be used against an aggressor. For example, one may only take a harmful measure to protect one’s right only if there is no less costly means to achieve the same outcome and in some cases there is a duty of retreat. On the trespassing model, unauthorized migration is akin to trespass, so immigration enforcement is a way in which the state protects its own property against unwanted visitors. I argue that there are important constraints on how states could resist unauthorized migrants. Deportations, for example, may sometimes constitute an especially harsh treatment for some unauthorized migrants. To determine whether deportation is an appropriate response to violations of immigration laws, some factors need to be taken into consideration, such as the family ties, duration of residence, and individual responsibility.