Abstract
Deportation of illegal immigrants is a complex and controversial issue; every country has the sovereignty to protect its borders, but the process should be under the constitutional ambit. Human dignity is a universal right, and every country should ensure basic human rights. There should be a balance between protecting national interests and ensuring human dignity, regardless of their legal status. Countries should consider the social, political, and economic ramifications before taking any harsh measures against illegal immigrants. There should not be a one-size-fits-all approach; instead, consider the diverse needs and perspectives of the stakeholders involved.
Introduction
Deportation is the formal removal of a foreign national from a country if their presence is against immigration law. It is typically enforced when an individual: Enters a country illegally (without a visa or proper documentation), Overstaying a visa beyond the permitted period, or commits crimes that result in removal orders for national security. The deportation of illegal immigrants is a highly debated issue that must be understood holistically. It has become a contentious issue, particularly after the newly elected president of the U.S., Donald Trump, has started fulfilling his election promises of removing all the illegal immigrants from the U.S., protecting the resources and employment for its people. Countries have mixed views regarding the recent mass deportation. Legally, it is acceptable and justified that the U.S. is deporting the illegal immigrants to their origin countries, condemning the unlawful entry or stay in the state. However, there is more to this problem that needs to be considered. This article seeks to understand the complex and controversial issue of deportation of illegal immigrants through law, economics, and public policy by analysing it through various economic theories, practical challenges, and the way forward.
Legality Of The Issue
The constitutional debate surrounding the deportation of illegal immigrants extends beyond questions of national sovereignty. The rights of illegal immigrants are not on par with those of refugees. Refugees are people who are forced to flee their home country due to violence, persecution, or war and seek asylum in other countries to obtain protection, whereas illegal immigrants are people who enter a country illegally without proper documentation and visas or who overstay the permitted stay in the country.
The rights of refugees are protected under international law: The 1951 Refugee Convention[i]and its 1967 protocol [ii]recognize the rights of refugees and are binding on signatory countries. Even if countries are not signatories, they may still be bound by certain principles, such as non-refoulement, as, due to wider acceptance, it is deemed to be customary international law. On the other hand, illegal immigrants do not have the same legal protections as refugees and are treated according to the domestic immigration laws of the countries, which sometimes adopt harsh measures and infringe basic human rights that should be given. Countries need to adhere to the basic human rights and follow the due process of law.
The U.S. Constitution, through the Fifth and Fourteenth amendments[iii], broadened the scope of due process of law. It mentions “person”, not citizen, to ensure that all individuals in the country, including undocumented immigrants, are entitled to the protection of due process of law before being deported or detained. Courts in key precedents held that deportation must satisfy the essential features of due process, which include fair notice, judicial review, right to be heard, and humane treatment. The Indian constitution also provides equal protection of laws by ensuring protection to undocumented immigrants under Articles 14[iv]and 21[v]which mentions the word “persons”. Indian courts have consistently emphasised that the procedure established by law must be just, fair, and reasonable.
There should be a balance between protecting national interests and ensuring human dignity, regardless of their legal status. Countries should consider the social, political, and economic ramifications before taking any harsh measures against illegal immigrants. There should not be a one-size-fits-all approach; instead, consider the diverse needs and perspectives of the stakeholders involved.
Contextual Background
Donald Trump has announced that the U.S. is conducting the largest deportation program in American history.The universe of potential deportees — immigrants living in the United States without legal status—is about 11 million, according to a 2024 report by the Department of Homeland Security. Many immigration analysts believe that figure is now higher due to record border crossings during Biden’s term.[vi]
The number of illegal immigrants constitutes a large chunk of People from South Asia, Central America, North America, and Africa who migrate to the U.S. legally or illegally for better employment and living conditions. High unemployment and relatively low wages in their home countries compel them to undertake the risk. Hence, the benefit of entering illegally or remaining there is more to them than the costs of being deported, which justifies the action in their eyes.After Mexico, the U.S. had the highest number of illegal immigrants from these countries in 2022:El Salvador (750,000),India (725,000),Guatemala (675,000), and Honduras (525,000)[vii].
Economic Theories In Application
Rational Choice Theory: Cost-Benefit Analysis
Rational choice theory is an economic principle that assumes a rational person always makes decisions, analysing their costs and benefits to maximise personal gains. According to the latest data, the wage rate has been increased by 12% from $248.93 pesos to $278.80 pesos per day, approximately $13.75 per day[viii], but still not at par with the U.S. wage rate. U.S. workers earn in an hour what Mexican workers earn in a day: U.S. workers make $30.84 hourly, approximately $246.72 in an 8-hour workday. Hence, the stark wage disparity is the strongest push factor that compels workers to cross the border legally or illegally.
Similarly, as of 2023, according to data fromTheGlobalEconomy.com, Honduras continues to experience a high poverty rate; 64.1% of the Honduran population lives below the national poverty line. [ix]Also, a survey conducted in 2021 indicated that85% of Honduran migrants cited economic reasons, such as better jobs and living conditions[x]hence, the persistent high poverty rate in these countries drives people to migrate in search of employment and better living conditions. For immigrants, the benefits of earning significantly higher wages often outweigh the risks of deportation, including smuggling fees, travel expenses, and the risk of being deported. Even after incurring these costs, their net earnings in the U.S. would be higher than in their home countries.
Public Choice Theory
Public choice theory is based on the idea that politics function like an economy; people generally make decisions driven by self-interest rather than just the “public good”. Politicians generally driven by electoral considerations often prioritise vote-bank politics, so they make promises that appeal to the majority section of society, concerned about job competition or national security. Voters demand policies that generally benefit them more personally, even if they aren’t best for everyone. Newly elected president, Donald Trump, promised the biggest deportation in American history, overlooking the ramifications of such mass deportation on the U.S. society and economy. On the other side, business owners benefiting from immigrant labor may vote for politicians who are in favour of pro-immigration policies. In the U.S., California, having a higher immigrant population, tends to support more relaxed immigration policies, while states with fewer immigrants prefer stricter controls. Also, to protect native workers’ wages, labor Unions oppose pro-immigration policies. All the stakeholders have different demands that suit their interests, irrespective of the public good.
Practicality Of Such Mass Deportation Plans
Implementing such plans involves serious political, legal, logistical, economic, and humanitarian challenges. The belief that removing all unauthorized immigrants would free up jobs for U.S. citizens justifies such policies. However, this approach is not straightforward and comes with on-ground challenges.
Logistical challenges:
Deporting around 11 million unauthorised immigrants would require extensive logistical coordination. A single large-scale operation would cost $315 billionto deport these immigrants. An annual cost of $88 billion would be incurred to deport one million immigrants. It would require somewhere between 220,000 and 409,000 government employees to carry out 13 million arrests in a short duration[xi], which is nearly impossible given current hiring challenges. Also, it doesn’t have the required detention centres to hold millions of people awaiting deportation. Operation of this scale would require over 65,700 individual removal flights.ICE also relies on immigration courts, which already have a backlog of over 3 million cases which means many deportation orders could take years to process.
Economic effects
Mass deportations would result in aloss of 4.2% to 6.8% of the US GDP annually [xii].There would be a loss of labour force, as in 2022, 89.4 percent of undocumented immigrants were between the age group of 16 and 64, which explains the high labor-force participation rate of undocumented immigrants.As rightly said by an economist, Chloe East, “the economy is not a zero-sum game”. It doesn’t mean one less job for somebody else if one person has a job. Native workers would not be able to fill all the occupations of unauthorized workers. Since 2022, the unemployment rate has been below 4.0 percent. There still wouldn’t be enough native workers to fill all the positions left vacant by their removal. It would also result in losses of tens of billions of dollars in tax revenues.
Mass deportation would significantly impact sectors like construction, agriculture, and hospitality, which are heavily dependent on unauthorized workers. The US labour market is mainly divided into two tiers: the Primary Sector and the Secondary Sector.[xiii] The primary sector is dominated by highly skilled native workers, who get high wages and have stable jobs. The secondary sector is characterised by low wages, unstable working conditions, and minimal benefits. This sector includes jobs that are often low-skilled, so these positions are frequently occupied by immigrants, including undocumented workers, who may be willing to accept lower wages, which many native workers reject.
About 30 percent of the workers in major construction trades, nearly 28 percent of graders and sorters of agricultural products, and many in housekeeping services.[xiv] Many undocumented entrepreneurs are involved in local businesses too, such as grocery stores, restaurants, clothing shops, and gas stations, which employ many Americans. A study conducted by the American Farm Bureau Federation found that removing all undocumented farmworkers would bring a $60 billion reduction in agricultural output and significantly lead to an increase in food prices. [xv]Undocumented immigrants also contribute hundreds of billions of dollars through their consumption expenditure annually. Their removal would reduce demand for housing, food, transportation, and services, slowing economic growth.
Way Forward
Instead of advocating for mass deportation, which is impractical and costly, the U.S should adopt a balanced approach, considering the macro impact on society and the economy, which ensures economic growth without compromising the nation’s security. Unauthorised immigrants play a crucial role in the US economy, so blanket removal of all would be fatal for the economy. Here are some measures that can be taken by the country:
● The US government, while deporting, should prioritize immigrants with criminal records. According to data, the majority of the unauthorised immigrants don’t have a criminal conviction;the group is relatively small, numbering about 650,000. [xvi]
● Border security needs to be strengthened, and new advanced technologies should be incorporated, like drones, AI surveillance, and sensors, to keep a check on illegal border crossings.
● Expansion of temporary work visas for the sectors that are heavily dependent on unauthorised workers. It would help the country to meet labour demands while reducing unauthorised workers. Currently, the H-2A visa is available for seasonal farmworkers, not for year-round employment, and the H-2B visa is for non-agricultural seasonal workers, currently capped at 66,000 visas annually, which is far below the industrial demands. In 2023, employers requested to increase the visa availability to 215,000 H-2B workers, reiterating their importance in the U.S. economy.
● Legalisation and grant of citizenship to the undocumented immigrants who have been living in the country for many years, well-settled in the country with their families, having no criminal records, and contributing positively to the economy. In 2019, according to theU.S. Census Bureau data, there were 2,43,000 undocumented immigrants who have been living in the U.S. for 20 years or more.[xvii] Hence, such deportation may be regarded as morally unethical and unfair to deport them from the country where they have been living for years.
Author Name- Godavari Sharma is a 2nd-year student of BALLB, Gujarat National Law University
