On the Illegality of Illegal Immigration

Years ago, between college and figuring out my life, I worked on a construction site in Manhattan. There were work crews from all over—the Guatemalan demolition crew, Polish painters, Russian tile guys—all renovating a crummy old building into a boutique hotel. I was on the finishing crew making sure rooms were ready to sign over to the hotel. Victor ran the crew. He always asked me to correct his broken English, picked up on job sites over the years. When he told me to storage the tools, I would point out he should say store the tools. He made fun of me for being bad at soccer; I made fun of him for putting lotion on his hands after work. I remember him describing breakfast as a kid in rural El Salvador. He would go outside and pick a mango, better than any he could find in the U.S. It sounded idyllic as we shivered in an unheated renovation project. “Why leave?” I asked. He pulled his shirt up and there on his lower back was the scar of a bullet wound. He was just a college student then, but some gang members shot him. So, he healed up, headed up, and illegally crossed our border. I do not know where he is now, maybe still working sixty hours a week in NYC. Maybe sitting in a detention center. Maybe shipped back to his now dictatorial homeland.

Amidst the growing chorus of Catholics standing up to President Trump’s immigration enforcement, you will find the pope, the American bishops, priests, sisters, and laypeople. However, a lot of conservative Catholics are raising their voices against what the Church is telling us regarding immigration and in support of Trump’s campaign against immigrants.[1] A key argument they make is that they oppose illegal immigration and that the Bishops and others are insufficiently attentive to this. For instance, John Grondelski claims the Church gets immigration wrong because it “evades the question of legality” and the bishops are “dodging the question of illegal status, a posture more befitting a lobbyist pushing an agenda.” Further for Grondelski, Leo XIV risks “contempt for lawful authority” and laments that his Dilexi Te does not ask about “the legal status of a migrant.”

Is the fundamental question the illegality of immigration? And thus are Leo, the Bishops, and the pro-immigrant faithful missing the point? Certainly, some people should be deported, such as the person who comes here illegally and proceeds to a life of crime or the financially secure person who is in no danger but overstays their visas to live here. There are clearly occasions when some form of humane deportation is morally acceptable and even morally required. But most of those detained and deported are not criminals and certainly are not the well-off. To return to my former coworker, was Victor wrong to have come here, and are we right to send him back? How ought Catholics think about this?

The Right to “Steal” and to Migrate

Everyone should follow the law. This includes migrants of any kind, as the Catholic Catechism states: immigrants are “obliged to respect with gratitude the material and spiritual heritage of the country that receives them, to obey its laws.” Further, as Aquinas argued, human-made laws bind our consciences such that breaking a just law is sinful and so migrants are morally obliged to follow our laws. And it seems clear that illegal immigrants are not obeying our immigration laws. Conservatives are right to highlight that illegality is an important question, and people can be in the wrong for coming here illegally.

Much hangs on that “can be.” A relevant analogy between theft and illegal immigration will help us think through this. Theft is morally wrong and against the law. One who steals sins doubly by violating the moral law regarding theft and violating the moral obligation to abide by just laws. Illegal immigrants do something analogous to stealing. We can say they trespass on what is not theirs (a sin) and violate the law while doing it (thus double sinning).

So, the matter seems clear. Deport the sinful lawbreakers. But there is more to say. Theft, it turns out, for Thomas, is not always a sin. As with the Christian tradition in general, for Thomas need is a central ethical concern. This is particularly the case with theft. Thus, he states that “in cases of need all things are common property, so that there would seem to be no sin in taking another’s property, for need has made it common.” And so, for the starving person unable to acquire bread by purchase or begging, the act of theft is not only justified, it is not theft.

All material things for Aquinas were primarily created to fulfil human needs. Aquinas articulates what Catholic Social Thought calls the universal destination of goods, which states that all of creation belongs to all of us to supply what we all need. Often, private property is the path for fulfilling that need but “the division and appropriation of things which are based on human law, do not preclude the fact that man’s needs have to be remedied by means of these very things.” The reality and goodness of private property does not change that those without still need. Thus, when someone is in “manifest and urgent” need, she may take what is another’s because it is, in a real way, hers. Really, they are obliged to do so because the natural law obliges us to care for ourselves and keep ourselves alive.

This right (and obligation) to take corresponds with our duty to give. Thus, Aquinas writes that “whatever people have in superabundance is owed, by natural law, to the poor.” He further quotes Ambrose that when we do not give, “it is the hungry person’s bread that you withhold.” To not give from my abundance is to steal from the needy who have the right to take if their need is urgent. Urgent need inverts the question of theft. Those with excess who deny steal; those in dire need who take do not steal.

How is this relevant to illegal immigration? A person in manifest and urgent need who chooses to leave their homeland for another is fundamentally not that different than a person in genuine hunger. Where theft can give the needy the right to a private good (which is still foundationally common), the migrant’s need gives them a right to the common good, that is the nation’s shared possession. Our abundance obliges us to share with them by welcoming them; need gives them a right to trespass on our nation.

And so, we return to Victor. To have remained in his gang-ridden homeland would have put him in clear and manifest danger of death. Consider also the risk of those who have travelled nearly two thousand miles through the Darien Gap to the United States. Many were coming from Venezuela, but others took dangerous boat trips from Haiti or traveled from Africa or Bangladesh to walk in grievous danger to get here. They were not doing so lightly. They were doing so (in general) because of manifest and urgent need. The person afraid of being disappeared by communists in Venezuela, the father of daughters threatened with sexual slavery in Angola, the Haitian whose malnourished children are in danger of another cholera outbreak, or the person chronically unable to provide for himself or his family in Bangladesh and watching their health and future die—these are people whose manifest and urgent need mean that they are not really breaking our laws and are not really trespassing or stealing from us when they come here illegally.

They are living out their moral obligation and taking what they need. To say, “No, you should stay where you are,” is morally outrageous. To say, “No, you should go back from whence you came,” is a sin. To put them into detention centers for having tried to live violates the natural law. To do so in the name of the law violates the natural law.

Illegal Immigration is Bad

In this sense, critiques of the bishops are right. They do not treat the illegality as the fundamental question because it is not. The fundamental questions are need and dignity. When a person’s need is severe enough it is a violation of their intrinsic human dignity, which is precisely why the pope and bishops highlight dignity in relation to immigration so often.

But is that it? We have millions of illegal immigrants, and we should just accept the illegality? Conservatives are right that this creates an untenable situation where the law is undermined by the frequency of illegality. Consider a society with one group of people who have plenty of food and a large, malnourished population who are constantly stealing to live. The Christian response is to not see these actions as morally wrong and in a real sense to see them as not really illegal. A just violation of a just law is morally perplexing, but the action remains just while also being socially destabilizing. Something in such a context would have to be done. What would our options be? First, we could punish the hungry thieves, à la Javert imprisoning Jean Valjean. But that would of course miss the point of Les Misérables and Christian ethics. But must we, as option two, allow the social destabilizing process to continue?

No, we are not limited to those options. The society in question would need to find a way to ensure those without food have legal pathways to get food. They would have to make some kind of major reform to help the needy and restore the law because a society is unjust if it neglects the needy or neglects the law.

This is precisely why the bishops do care about the illegality. They are not ignoring it. Instead, they rightly see that the illegality problem is not primarily a burden on the immigrants but on our system of immigration. The problem with a Catholic critique focused on illegality is that it places the burden on those fleeing urgent and manifest need. They end up taking the immoral first option. What we tended to do during President Biden’s administration was the irrational second option. What the bishops and Leo are calling for is the third option which, in the words of Pius XII, entails keeping “open ways of migration.”

The Catechism teaches that “prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin.” Just as those who have excess are obliged to provide for the needs of the hungry, so too prosperous nations are obliged to keep open pathways to needy foreigners. As Vatican II taught, there is a fundamental human right to migrate just as there is a fundamental human right to food. This right displaces the question of illegal immigration such that we must attend to reform our migration laws to foster this right. Thus, the Bishops’ statement denouncing the current immigration policy states that we need “a meaningful reform of our nation’s immigration laws and procedures.” In this, the bishops do not deny the importance of legality but affirm it, for “nations have a responsibility to regulate their borders and establish a just and orderly immigration system for the sake of the common good.” Our current system fosters illegality and harms the needy. It must be reformed for the sake of migrants and the law. In so doing, we would enrich the American common good (by growing in virtue, supporting the law, and enrichening our country with the gift of migrants) and the human common good (by helping the broader human family in need). We need to find ways for more and easier legal immigration so that we end the illegality without harming the needy.

Ours is a bad system that leads to millions of illegal immigrants, but it would be worse to solve it by harming the needy. We need a better immigration process. The bishops’ emphasis here is on both our sovereignty and care for the stranger. Without legal pathways, “immigrants face the risk of trafficking and other forms of exploitation. Safe and legal pathways serve as an antidote to such risks.” Fostering legal immigration keeps migrants safe and secures our system of laws. The bishops echo Pope Benedict XVI, who lamented the abuse of immigrants and called for “an orderly migration policy which does not end up in a hermetic sealing of borders, more severe sanctions against irregular migrants and the adoption of measures meant to discourage new entries.” While Benedict is sometimes seen as less of an immigrant advocate than his successors, it is notable that his statement in support of immigration enforcement centers on opening the ways of migration. In other words, our reformed system should not close off the borders but control them, should not punish illegal immigrants but give them a path to legality, and should not discourage needy people from coming to our country.

Conclusion

So conservative Catholics are partially right that we need to do something about illegal immigration. But the danger is heaping the burden on the most burdened. What we need to do is comprehensive immigration reform. At this point, it seems only the Catholic bishops are calling for this, but we can pray and work for their voices to be heard. This reform should include several things: continued border control, paths to citizenship for illegal immigrants who are not criminals, deportation for those who are, and a large increase in funding for immigration courts that can help determine which immigrants have urgent and manifest need. Along these lines, we need to reopen and expand our refugee program and to expand legal pathways for migrants. Further, we should recommit to robust foreign aid and development support so that the right not to migrate is supported while reducing the number of needy migrants.

In all of this, we need to keep our eye on loving the stranger and thus welcoming, promoting, protecting, and integrating the needy migrant. What we will find when we help those in need is that we live the Gospel in its superabundance. How so? We will fulfill our obligation to the needy and our obligation to uphold the law. More importantly, we will welcome the gift of migrants. Victor fled another bullet in his back. What did he do here? He worked. He contributed. He may be illegal but welcoming him here and finding a path to legal status for him and others will restore our human laws and, more importantly, fulfill the Higher Law.

Church Life Journal | Articles

Tags: Illegal Illegality Immigration