Compensatory justice and the wrongs of deportation

ABSTRACT

The paper argues that there are resources within theories of corrective justice to make the case against the deportation of immigrants, including those accused of committing criminal actions. More specifically, the argument defended here is that a nation acts impermissibly by deporting criminal immigrants who belong to countries that the nation itself wronged in a manner that contributed to create the migratory flow that led the immigrants in question there. In that case, admission and, equally important, permanent residence in the host nation must be understood as a form of compensation for past wrongs, the interruption of which represents a breach of its duties of rectification, and is therefore unjust. Put in slightly different terms, some migrants have a retributive right-claim against their host state (which they may or may not exercise) to be admitted into the host state and not be deported.

KEYWORDS:

• Compensation
• justice
• immigration
• deportation

Acknowledgments

For their valuable feedback, the author would like to thank two anonymous reviewers for the Journal, as well as audiences at the Instituto Tecnológico Autónomo de México, the Universidad Panamericana, and the Instituto de Investigaciones Filosóficas of the Universidad Nacional Autónoma de México. I would like to thank in particular Adriana Alfaro Altamirano, Amalia Anaya, Michael Blake, Linda Bosniak, Luis Enrique Camacho, Luis Xavier Farjeat, and Paulina Ochoa Espejo for their comments. Part of this paper was written while at the University of Columba with the support of the Edmundo O'Gorman Fellowship I'm grateful to Claudio Lomnitz for his encouragement to apply for the Fellowship.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The objection applies to documented migrants, and to undocumented migrants as well. The point of focusing particularly on the former is to stave off the claim that since the latter entered the host society irregularly, they thereby forfeited their right to rectification. The irregular character of immigrant presence, however, does not really affect the calculus of wrongs and rights in the rectification analysis.

2. The paper is agnostic with respect to familiar debates about the moral permissibility of borders (Abizadeh, 2008; Wellman, 2008; Miller, 2005, 2016; Carens, 2013; Pevnick, 2011, among many others). It assumes for the sake of the argument that states have authority to control admission, as closed-borders advocates claim, subject to certain constraints of justice.

3. Those charged with terrorism belong to an entirely different category and the argument of the paper does not apply to them. Since their sole intention is to harm as many innocent civilians in the host society as possible (in fact, to harm the collectivity as a whole), terrorists make themselves liable to deportation, analogous to the idea that a soldier causing an unjust threat makes himself liable to justified retaliation insofar as such retaliation is a proportionate way to remove the threat they wrongfully pose to others, as defended by Jeff McMahan (2009), for instance. In other words, deportation might be a proportionate response to terrorism, given the egregiousness of the terrorists’ intended wrongdoing.

4. For some philosophers, a criminal record may be disqualifying factor for access to citizenship as well (Miller, 2016, pp. 62–63).

5. A third reason is that deportation of an immigrant criminal may negatively impact family members who may themselves be citizens. I will not explore this objection here.

6. I use the terms compensation, reparation, and rectification interchangeably, although to some effects these may be distinguished. Walker (2015) argues that the notion of corrective justice misses important interests and values at stake in repairing harm done to victims.

7. Similarly, Amighetti and Nuti argue that former colonial powers have an obligation of justice to admit postcolonial migrants into their former ‘motherland’ (Amighetti & Nuti, 2016, p. 542).

8. Following well established precedent in international law, Souter draws a distinction between restitution (recreating the status quo ante), compensation (focusing on the wellbeing of the refugee via material transfers), and satisfaction (acknowledgment of wrongdoing and guarantees of non-repetition).

9. This phrasing reflects the legal definition of refugee contained in the Organization of African Union Convention (1969), which states that a refugee is someone ‘who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.’ (Article I(2)).

10. Through the Indochina Migration and Refugee Act, and later the Refugee Act, in the mid-seventies and eighties.

11. On the problems arising from collective responsibility see List and Pettit (2011). But see also Young (2004) for a different understanding of collective responsibility, one that is less concerned about establishing ‘liability responsibility as grounds for reparatory duties.’

12. Nickel (1974) argued along these lines in his defense for reverse discrimination on the basis of race considerations. His argument might be flawed for reasons that are irrelevant in the present discussion (Goldman, 1975).

13. Acknowledgment.

14. For an argument that the lack of rectification poses a problem for liberal theory even at the level of ideal theory see Espindola and Vaca (2014).

15. The argument of the ongoing agency of the wrongdoer is also useful for dislodging the potential criticism that descendants of victims of wrongdoing cannot claim compensation for that wrongdoing because their very existence depends on the occurrence of that wrongdoing; this is the widely-discussed non-identity problem. SeeMeyer (2016).

16. For a richer conceptualization of what would constitute a just return, see Bradley (2013), but she focuses on the responsibilities that societies of origin bear toward their repatriating citizens. For a discussion on the ethics of return migration see Espindola and Jacobo-Suárez (2018).

17. Souter (2014) advances a similar argument on this specific point.

18. The opposite is true for voluntary migrants, who experience increased psychiatric and physical problems under the same circumstances.

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Juan Espindola

Juan Espindola is a Research Fellow at the Institute for Philosophical Research at the National Autonomous University of Mexico. His research interests focus on transitional justice, punishment, compensatory justice, and educational justice. He is the autor of Transitional Justice after German Reunification. Exposing Unofficial Collaborators (Cambridge University Press, 2015), and articles in journals such as Res Publica, Ethical Theory and Moral Practice, Journal of Global Ethics, Studies in Philosophy and Education, Journal of Social Philosophy, and others.