Seeking a Better Life: Rights and Protections of Economic Migrants
Millions of migrants, both documented and undocumented, enter the United States every year searching for a better life. Many will undoubtedly face discrimination, exploitation, and criminalization. What’s in store for them in the next four years?
President Biden proposes a plan for legalization of 11 million unauthorized immigrants.
By: Esther kang, Staff member
Background
People around the globe are on the move, often crossing national borders in search of a better life. Whether in search of better economic opportunities or fleeing persecution, approximately 258 million international migrants left their home countries last year. However, while some view economic migrants sympathetically, increasing societal suspicion and hostility toward economic migrants have made them the target of restrictive immigration policies, and they are often despised by citizens of receiving countries. Also, because economic migrants leave their states voluntarily, the United Nations (UN) was slow to recognize them as a category of people in need of international protection.
After World War II, international migration increased significantly, and the UN was especially concerned for the millions of displaced Europeans left without homes or legal protection. In response, many nations came together to create international treaties to organize and regulate transnational movement, leading to the development of a robust body of international law. States that ratified these treaties were bound by their provisions, which constrained states’ broad right to exclude certain people from crossing their borders. Although a number of international treaties and human rights declarations regulate movement across borders, states are generally free to regulate the flow of migration with their own immigration policies This post examines the rights of economic migrants in international and U.S. law and finds that even though the International Convention on the Rights of Migrant Workers and their Families (ICRMW) is praised as one of the most ambitious and comprehensive legal protections for migrant workers, it still fails to protect the majority of economic migrants.
The International Convention on the Rights of Migrant Workers and their Families
The ICRMW was a landmark convention addressing the rights of both authorized migrant workers and unauthorized migrants. The ICRMW recognizes the vulnerable situation of migrant workers and their families who are outside their countries of origin, lack citizenship or permanent status, and often face discrimination and exploitation in the states where they are employed. However, despite acknowledging the vulnerabilities of unauthorized migrants, the ICRMW excludes unauthorized workers from a number of its provisions. Although it excluded unauthorized migrants from a number of its provisions, the mere inclusion of unauthorized workers in the treaty sparked debate among states. The United States was one of many states which did not ratify the ICRMW. Nevertheless, because of the exclusion of unauthorized migrants, the ICRMW has proved ineffective in protecting economic migrants.
Economic Migrants in the United States
Economic migration is the cornerstone of American history. Generations of economic migrants have continuously contributed to the U.S. economy. Currently, around 45 million people in the United States are foreign-born, of which 28.4 million are in the U.S. labor force. Out of the 45 million, about 20 million are naturalized citizens, and almost 15 million are non-U.S. nationals, of which at least 11 million are undocumented migrants. Lastly, there are about three million authorized migrant workers in the U.S.
The 11 million undocumented migrants have limited protections under the ICRWM. Most unauthorized migrants who enter the United States at an illegal border crossing are economic migrants who leave out of financial desperation or other, similar reasons that make entering the United States without the required documentation worthwhile. Securing proper immigration authorization is often a lengthy and expensive process. Even though the Convention recognizes a migrant’s right to leave his or her country, it does not address the variation in the ability of economic migrants to lawfully emigrate.
Additionally, though undocumented immigrants in the United States are supposedly protected under the U.S. Constitution, in reality, this is not so. While cases such as Plyer v. Doe and Reno v. Flores guarantee equal protection, access to public education, and due process for undocumented immigrants, practices such as expedited removal deprive them of due process and other constitutional rights. Federal statutes such as the Civil Rights Act of 1964 and the Fair Labor Standards Act also aim to improve the situations of undocumented migrants, but their utility is limited by the system of fear that the criminalization of immigration has created.
In order to decrease unauthorized immigration, both the ICRMW and U.S. law forbid employers from hiring undocumented workers. Also, the U.S. government and the ICRMW allow and endorse deportation and designate it as a punishment for many people with unlawful status—even those never convicted of a violent crime. The threat of deportation without due process deters undocumented immigrants from accessing public services such as healthcare and reporting employers that violate their rights, despite existing legal protections.
Additionally, over the past 10 years, a plurality of unauthorized immigrants to the United States arrive legally and overstay their visas. The Department of Homeland Security estimates that about 40% of illegal immigrants overstayed their visas. Thus, a significant portion of migrant workers who would have originally fallen under the ICRMW’s extensive protections is transformed into illegal immigrants and no longer protected under the ICRMW to the fullest extent.
As a result, the ICRMW would only protect approximately three million migrant workers, a large percentage of whom will most likely overstay their visas in the future. The ICRMW does not take into account the privileges and access that migrants from wealthier nations have or the economic challenges facing many undocumented migrants. International law should be the standard individual states look to for guidance. However, by conceding to the sovereignty of state parties, the ICRMW does not effectively protect economic migrants.
What changes will the Biden Administration bring?
Immigration remained a highly controversial topic during the transition from the Trump Administration to the Biden Administration. Due to the Senate ratification process, the U.S. rarely ratifies international treaties and will most likely not ratify the ICRMW. However, even if the United States does not ratify the Convention, the U.S. would go beyond the high standards of the Convention if it successfully legalizes the 11 million members of its undocumented population.
Recently, President Biden implemented a 100-day pause on deportations and has proposed a plan to create a pathway to citizenship for the 11 million undocumented immigrants. Although a Texas judge ordered a temporary restraining order against the deportation freeze due to federal law concerns and a contract signed during the last months of the Trump Administration, this marks the beginning of a change for unauthorized immigrants in the U.S. In a perfect world, creating a path to legalization would grant migrant workers full protection under the Constitution, and resolve the issues the ICRMW highlighted. Even though the road to comprehensive reform will be a long one, President Biden’s immediate actions towards immigration reform show a strong likelihood that legalization is possible.
Esther Kang is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from UMass Amherst in 2019.