Open Borders Day Events

Since 2014 we have commemorated Open Borders Day on the anniversary of the website’s launch on March 16th 2012. The day serves to encourage discussion about open borders. This year several events are being planned to coincide with Open Borders day including a debate between Bryan Caplan and Mark Krikorian in DC, a public forum at Harvard, and more. More information can be found here.

If you wish to organize your own event you are encouraged to contact Fabio Rojas who is managing the calendar. Readers are also encouraged to submit Op-Eds to their local newspapers to promote Open Borders Day.

Although we extend best wishes and thanks towards the organizers of these events, all events are independent of OpenBorders.info.

Further Reading:

OpenBorders.info Site History
2015 Open Borders Day Round Up
2014 Open Borders Day Round Up

The Flawed Asylum Policy of the European Union

 

This is a guest post by Julie Putseys. Julie has a bachelor’s degree in History and master’s degrees in Comparative and International Politics and International relations of the Middle East. She works as a freelance journalist in Belgium.

The war in Syria has brought us one of the worst refugee crises our world has ever known. While Syria is terrorized by a repressive government on the one hand, and radical groups like ISIS on the other, the conflict has resulted in a death toll of around 200,000 and a refugee flow of about 4 million.

Except for the actions of Angela Merkel, and a few countries like Sweden, the European Union has shown very little empathy towards the Syrians. Instead of offering asylum to the refugees to prevent an aggravation of the crisis, we’ve largely kept our borders closed and our eyes shut. Yet not that long ago, we’ve been through this ourselves: the two World Wars, which both started in Europe, brought forward the largest refugee movements in the 20th century. You’d think that the European Union – especially as it presents itself as a so-called ‘normative power’ – would take its asylum policy seriously. This is not the case.

Instead, the European Union has undermined its international obligation to give asylum to refugees, laid out in the 1951 Refugee Convention, herein after referred to as the Geneva Convention. Perhaps out of fear to lower our living standards or to damage our economy, our leaders have decided to draft legislation that shifts asylum responsibilities to countries outside Europe.

‘You saw them first!’

Take the ‘Safe Third Country’-concept for example, which is applied in several European member states. The principle is as follows: when an asylum seeker flees from an unsafe country, consequently passes a safe country and then reaches his final destination, he should have applied for asylum in the first safe country he’s been to. According to this concept, neighboring countries of conflict zones are basically screwed. According to this concept, it is fair that Turkey currently hosts 2 million Syrian refugees, Jordan 1.5 million and Lebanon around one million.

Another principle which is applied in Europe is the ‘First country of Asylum’-principle, which states that someone who has been granted asylum in one country, shouldn’t apply for asylum in another. This is more problematic than it sounds, because sometimes refugees don’t get a choice where to apply in the first place. In the recent EU resettlement plan, for instance, in which the EU decides on how many asylum seekers each member state should take in, the asylum seekers get no say in their designated country. So, they could be fluent in Polish yet be obliged to apply for asylum in France. Or, they could have family in France, yet be obliged to apply for asylum in Poland. If they still try to apply in a different country they are fined, detained and afterwards sent back. However, taking into account the preferred countries of the asylum seekers would go a long way in helping them integrate in society.

EU Resettlement Plan

Speaking of the EU resettlement plan, did you know we have only decided on approximately  half of asylum seekers who made their way into our fortress? Indeed, we’ve decided the fates of 66,000 asylum seekers in Greece and Italy, but 54,000 more are in Hungary. The Hungarian government doesn’t want to be considered as a ‘frontline state’ and thus we are to first transport them to Greece or Italy before deciding on their fate in a second resettlement plan. And did you also know that it isn’t certain yet that the 66,000 of the current resettlement plan will effectively be given asylum? Of the thousands of asylum seekers in Greece and Italy, a selection is made of those who are most likely to receive asylum. This means, only the people from Syria, Iraq and Eritrea are chosen. But even then, their application can still be denied in the countries they end up in.

One of the important principles of the Geneva Convention is the Freedom of movement. Refugees fleeing war or persecution should be able to enter a safe country to apply for asylum, without visa and even without identification. In theory, the EU subscribes to that principle, but in reality transport carriers don’t allow passenger who don’t have any valid travel documents. According to the EU Directive 2001/51/EC transport carriers would have to pay for the return flight of asylum seekers whose application proved unsuccessful. Unless these transport carriers have a crystal ball, this policy doesn’t make any sense. This is why refugees pay 5000 Euro for a dangerous boat ride in the  Mediterranean Sea instead of paying for a much cheaper plane ticket.

For a while now, European leaders have been discussing extraterritorial processing of asylum claims, ‘hot spots’ at the borders of the European Union. As a positive point, this would prevent asylum seekers from making life-threatening trips to reach Europe. However, which country would sign up to host such a center? It could pose significant stress to the countries that host it. Not just due to the large amount of asylum seekers, but also because many of them, whose application has been turned down, might decide to stay. Of course, the European Union would come up with significant payment to help these countries, but is it right to burden another country just because we can pay for it? It’s kind of like paying our way out of our international obligations, is it not?

Treatment of asylum seekers and refugees

Either way, for now asylum seekers are still admitted in our countries. They get food, water, a roof over their heads, and a few months after the start of their asylum process – generally between four and nine months, depending on the EU state – they can apply for a work permit. This all sounds reasonable, except that some of them end up in a closed detention center. In principle, according to the EU directive 2013/33/EU, asylum seekers can only be detained as a last resort. However, the criteria determining when an asylum seeker can be detained, don’t sound particularly strict. For example, they can be detained when their identity isn’t clear, when they’ve already applied for asylum elsewhere or when they’re a threat to national security or public order. This last one is particularly vague. In theory, asylum seekers can only be detained for a short period of time, but in reality their detention is often extended. In addition, the circumstances in the detention centers are far from ideal. They’re completely secluded from the outside world, often without knowing the reasons for their detention or how long they have to be there. As a consequence, detained asylum seekers sometimes go on a hunger strike, or worse, commit suicide.

If they finally receive asylum, it should be noted that there’s a notable differences between the statuses of ‘refugee’ and ‘war refugee’. A refugee is someone who has flown from persecution; he receives the refugee status. A war refugee, on the other hand, is someone who has flown from war; he receives subsidiary protection. Those who receive the refugee status are good – it’s as if they are full-blown citizens. However, war refugees receive a different treatment. In Belgium, for example, war refugees have to reapply for asylum each year. Only after five years, they can get a permit to stay indefinitely. The same goes for their work permit. They have to reapply for one each year, and even need a special permit if they want to work as an independent contractor. Another disadvantage of this kind of asylum is that they can only make use of the family reunification program after five years, after they’ve received the governments permission to stay indefinitely. The UNHCR has already pointed out that the distinction between the status of ‘refugee’ and ‘war refugee’ is too big. I wonder why this distinction exists at all.

A rise in xenophobic policies

In recent months, despite the magnitude of the refugee crisis, several EU member states opt for a stringent asylum policy. The UK and Denmark opted out of the EU resettlement plan because they thought it was too ambitious. Instead, Denmark decided on just admitting 1000 asylum seekers while the government of the UK has stated it will only admit 20,000 over the next five years. Not particularly spectacular. Another worrying trend in the countries’ policies is the decrease in welfare for asylum seekers or refugees. Denmark and Finland recently decided to cut their welfare payment, while other parliaments, like the Belgian one, are discussing similar laws. In another xenophobic move, Denmark and Belgium decided to place advertisements to discourage asylum seekers to apply. In Eastern European countries, the situation is even worse. The Czech Republic detains its asylum seekers and then asks them financial compensation for it. Finally, Hungary has built a wall to keep asylum seekers out. If one does manage to get in, he can get up to three years of prison.

Compared to the above mentioned xenophobic policies, Angela Merkel almost seems like an angel (never thought I’d say this). She’s opened up the German borders to refugees and freed up 6 billion euros to accommodate them. By the end of 2015, Germany admitted 800,000 refugees or migrants. For this, Merkel was awarded ‘Person of the year’ by TIME magazine.

Rightly so.

 

 

Open Borders Plus Reparations

Open borders is a tough sell in Western countries. Generations of closed borders and anti-open borders propaganda has led most Westerners to conclude that having open borders is reckless and potentially disastrous for receiving countries. My fellow bloggers and I have worked hard to reverse this current of thought, but much work still needs to be done to help realize our goal. So why burden ourselves by also pushing for reparations for immigrants on top of open borders, as I advocate in this post? Because it is morally warranted. (See here for my post that outlines why open borders itself is warranted. In this post the focus is on open borders plus reparations in the U.S. context, but the same arguments apply universally. )

In the United States, reparations for harm committed against certain ethnic groups by the government have periodically been considered. Decades after the government interned over one hundred thousand Japanese-Americans during War II, the U.S. provided monetary reparations to former internees. Reparations for African Americans and Native Americans have also been debated, including Ta-Nehisi Coates’ recent article “The Case for Reparations” concerning African Americans.

The malign actions committed against these groups by the government and European American citizens have been horrific. Forcible relocation in the case of Japanese and Native Americans. Wars of aggression against and theft of land from Native Americans. Slavery, Jim Crow, de facto slavery after the Civil War, theft, unpunished murder, federal redlining of African American neighborhoods, and the mass incarceration of African Americans. The fruit of this oppression, in the case of African Americans, has been a huge wealth gap between African Americans and the rest of the country, as well as high incarceration rates.

Actions by the U.S. government against would-be immigrants have also been devastating. Millions of individuals have been deported from the country over the years, leading to immiseration, family separation, and sometimes death. (While not strictly a case of deportation, 254 refugees from the ship St. Louis, which was denied entry into the U.S. in 1939, died in the Holocaust. More recently, a man deported in 2012 to El Salvador, “dubbed by the United Nations as one of deadliest countries in the world,” was murdered earlier this year by assassins hired by a disgruntled former tenant. A forthcoming study shows that close to one hundred deportees to Central American from the U.S. have been murdered over the last two years.) Moreover, hundreds of thousands of people have been detained each year and others harmed, even killed, by immigration agents. In addition, thousands have died in deserts trying to evade border enforcement along the southern U.S. border, while others have suffered abuse by non-government entities in transit to the U.S. or after arriving in the U.S. due to their undocumented status.

Furthermore, immigration restrictions on would-be immigrants have kept many in the developing world from escaping poverty. Restrictions prevent would-be immigrants from benefiting from the place premium, which allows a person from a disadvantaged country to earn much more in an advanced country, even without an increase in the person’s skills. A paper by Michael Clemens and others concludes that “simply allowing labor mobility can reduce a given household’s poverty to a much greater degree than most known antipoverty interventions inside developing countries.” Restrictions also have blocked would-be immigrants access to a decent education in the U.S., which would increase their earnings potential.

In addition to locking would-be immigrants into poverty in the developing world, restrictions force them to work for low wages in dangerous conditions in sweatshops they would otherwise avoid by migrating. Some commentators have argued that having sweatshop jobs in poor countries is preferable to not having the jobs available at all (Nicholas Kristof: “… the central challenge in the poorest countries is not that sweatshops exploit too many people, but that they fail to exploit enough.”).  However, they fail to acknowledge that the fact that there are only these two alternatives is due to, as John Lee argued in a 2013 post on Bangladeshi sweatshop workers, “laws that ban Bangladeshis at gunpoint from working in our countries.” John’s post was published in the wake of a factory fire in Bangladesh that killed over 1,000 people, some of whom might have migrated to the U.S. under open borders rather than toiling in the unsafe factory.

Consider also women living in countries where they are mistreated who might escape to the freedom of the U.S. under open borders. It is difficult to determine the number of women who have been forced to endure misogyny in other countries because of restrictions, but it may be many.

The harm that our immigration laws have visited upon would-be immigrants is cumulative. They not only prevent today’s would-be immigrants from improving their economic lives (not to mention that they kill and enable the abuse of some of them), they have been doing the same to their ancestors, leaving today’s would-be immigrants much less well off than they might have been had their ancestors been able to migrate to the U.S. People in each generation who are barred from migrating are prevented from accumulating the wealth and educational capital to pass down to the next generation, and so on. The poverty one sees in developing countries is often largely the result of an inability of multiple generations to have accessed the advanced U.S. economy. This parallels the African-American predicament: An African American man  told Mr. Coats that “The reason black people are so far behind now is not because of now… It’s because of then.”

The American government, and the people who have elected it, have caused immense harm, economic, physical, and psychological, to many immigrants over many years. Not only must we open our borders, some reparation is due to all immigrants. (Since most would-be immigrants have probably been negatively impacted by restrictions in some way, either directly or through their impact on their ancestors, reparations should be provided to all immigrants.) Determining the amount and nature of the reparation is complex, especially for those who have been killed or abused due to restrictions. As Mr. Coates suggests with regard to reparations for African Americans, “perhaps no number can fully capture the multi-century plunder of black people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed.”

Nonetheless, here are some ideas for reparations for immigrants under open borders. Part of a reparations package would be to grant immigrants immediate, full access to the American welfare state: Obamacare, Medicaid, Medicare, Social Security, TANF, job training, Pell Grants, federal student loans, housing assistance etc. For those concerned about elderly immigrants arriving to our shores and claiming benefits to which they have never contributed, remember that they would have happily contributed earlier had open borders been available when they were younger, and besides their personal finances have often been decimated for years due to immigration restrictions. With a center-left perspective, I believe some of these investments could reap later rewards, such as making it easier for new immigrants to attend college, which would in turn enhance productivity.

Moreover, new immigrants would be provided a set amount of money (maybe $5000), the services of cultural counselors and English teachers to help them get settled and oriented in the U.S., and low cost housing, services similarly provided for refugees today. These measures could smooth the country’s transition to a significant increase in immigrants under open borders and bolster the economy by spurring construction of new housing and consumer spending. Finally, for those migrants who don’t have resources to finance their travel to the U.S., travel assistance could be provided.  (With regard to voting, I would continue to limit the franchise to those who have lived in the U.S.for a number of years to ensure that they fully understand the democratic foundation of our country before voting.)

Admittedly this all may be difficult for most people to accept: open borders and instant access to the welfare state, a cash allowance, low cost-housing, and travel assistance. Open borders plus reparations may not be popular even among many of my fellow open borders advocates. For example, it differs greatly from Nathan Smith’s DRITI open borders plan, which burdens new immigrants with higher taxes than native-born Americans.

Mr. Coates has written about the deeper value of advocating for reparations (in the case of African Americans): “I believe that wrestling publicly with these questions matters as much as—if not more than—the specific answers that might be produced… An America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future.” Similarly, providing reparations for immigrants entering under open borders could eventually help instill the idea in Americans’ hearts and minds that restrictions have constituted a great sin against a large portion of humanity, hopefully incubating Americans against reverting back to immigration restrictions.

Related reading

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

The Islamophobic Case for Open Borders

To simplify somewhat, I don’t care much about terrorism, because it’s too unimportant and ineffective. The statistical risk of dying in a terrorist attack is, in the United States, the West, and most of the rest of the world, negligible, and will be under any reasonably likely scenario. If we’re still driving cars despite thousands of automobile accident deaths per year, we don’t really set the value of human life so high that attacks in Paris (130 victims) and San Bernardino (22 victims) objectively warrant the massive media attention, revolutions in foreign policy, and proposals to shut the borders completely to Muslims that they evoke. Such events get such attention because of statistical illiteracy. People don’t understand that terrorism does less damage than tiny blips in highway safety. Terrorism is dramatic and makes a good story, so the news media cover it out of self-interest, and people can’t put the stories in proper perspective, so as to realize that terrorism only affects a tiny number of people, and therefore just isn’t very important.

But while terrorism matters less than people think, religion matters a lot more, if not than people think (for at some level, most people understand that the eternal questions with which it deals are the most important of all), at least than people talk about in public. Its importance can hardly be overstated. It shapes society from the foundations up, altering family structures, morals, aesthetics, ways of life, institutions, ideas of political legitimacy, and so forth. I am a Christian and so perhaps biased, yet I think clever irreligious people should attribute scarcely less importance to religion than I do, for religion affects everything else, for good or ill. In my last two posts, I sought imaginatively to flesh out an open borders scenario for the future, based on the abstract, numerical predictions in my article “The Global Economic Impact of Open Borders.” Here I build on that effort by trying vaguely to forecast the likely religious makeup of a future world with open borders.

  1. (Not) Defining Religion

Religion is impossible to define adequately, for at the heart of what is usually meant by religion is the worship of a deity or deities, but defining deity is one of the tasks of religion itself, so we quickly run into a peculiar kind of circularity. What is religion? Human activity, individual and collective, dedicated to propitiating, appealing to or worshipping a deity or deities. What is a deity? Ask religion: it’s a task of religions to answer this question. But what is religion?… Certain superficial characteristics, like shrines and rituals and sacrifices, solemnity and festivity, are shared between the paganism of Greco-Roman antiquity, or contemporary Asia, and Christianity and Islam. They have, for that matter, analogues in modern nationalism, e.g., the “tomb of the Unknown Soldier,” flag codes, national anthems, which is a clue that nationalism is in part a substitute for religion. It seems to be part of human nature to want to worship something, to pray to something, to hold something sacred, and people will insert all sorts of somethings into that formidable black box, whether it be a philosopher like Confucius or Buddha, or the licentious and irresponsible gods of the ancient Greeks, or a black stone in Mecca, just so that something may be sacred, and our appetite for veneration, worship, humble awe, might not be starved. But the things inserted can be very dissimilar. The omnipotent and omniscient God of the monotheistic faiths has little in common with the whimsical “gods” of the pagan Greeks who can be defeated and deceived, or a merely human philosopher like Confucius.

I’ll cut through all these difficulties with a blunt declaration: CHRISTIANITY, ISLAM, and THE ENLIGHTENMENT are the three great faiths competing for the allegiance of modern mankind. I hope to address objections to this large claim in a follow-up post, but for now, I’ll focus on Islam, whose inclusion in the list no one, I suppose, will object to.

2. Am I an Islamophobe? Yes and No

When I wrote “The Citizenist Case for Open Borders,” I was not admitting to being a citizenist. Rather, I was making the case for open borders on citizenist assumptions, so that people who are citizenists, or who accept a citizenist objective function for purposes of evaluating policy for rich countries like the US, would have reason to support open borders. Similarly, I’m not exactly characterizing myself as an Islamophobe here… yet I’m closer to being an Islamophobe than to being a citizenist. If Islamophobia is taken literally to mean “fear of Islam,” I do fear Islam in the sense that I regard it as a source of error at best and a source of terror at worst. I believe the Islamic religion to be false, in key theological doctrines, in the general tenor of its ethical teachings, in its view of history, and in its view of how society ought to be organized. On the other hand, I think there is more truth in Islam than in some modern teachings such as communism, and perhaps than in the Enlightenment liberalism that is the prevailing ideology on Western college campuses today. I can easily imagine scenarios in which I’d gladly make common cause with Muslims against certain strands in Western public opinion.

Since I believe Islam to be false, I would be a poor lover of my fellow men if I did not wish for it to disappear, that is, if I desired that millions of people remain forever imprisoned in a web of errors. But inasmuch as the word “Islamophobe” implies irrational, uncritical feelings of hatred and disgust towards Muslims as an opaque Other, I do not feel that way at all. I have traveled in Muslim countries like Turkey, Azerbaijan, Tajikistan, Kyrgyzstan, and Uzbekistan, have been on warmly friendly terms with many Muslims (some nominal, but some devout), and have admired the Blue Mosque, the ruins of Samarkand, the poetry of Omar Khayyam and Rumi, and the Arabian Nights. In foretelling a steep decline of Islam under open borders, I am anticipating developments of which my head and my conscience approve, but towards which my heart and imagination are ambivalent.

Perhaps the fairest definition of an Islamophobia (fair in the sense that it makes the word something other than a mere term of abuse) is someone who thinks Islam is a net negative influence on human history, and is harmful to its adherents. Even in that sense, I’d hesitate to self-identify with it. I’d ask, a negative influence compared to what? From Muslim to Christian is a change for the better, from my perspective, but from Muslim to Communist is a change for the worse. At any rate, if Islamophobes desire that there should be less Islam in the world, my argument that open borders will bring that about, is a reason for them to support it.

3. Religious Assimilation

In making predictions about open borders and religion, my chief basis for extrapolating is the principle of ASSIMILATION. While the speed of assimilation is debatable, it’s well-known that immigrants begin to learn about their adopted country as soon as they arrive, some faster than others, that children born in a country of foreign parents exhibit a mix of their parents’ culture and that of their new homeland, and that second- or third-generation immigrants come to resemble the fellow residents of their adopted country so much that for many purposes, they are indistinguishable. Yet while we’re familiar with this pattern for language, professions, levels of education, popular culture preferences, hobbies, and most other facets of life, there seems to be a widespread impression that religion is an exception. We may expect a third-generation Mexican-American,  say, to speak English and like American popular music, yet still to be a Catholic. This view is partly justified, and there are communities of otherwise-assimilated immigrant peoples still holding onto their religions and thereby to traces of an old national identity.

Yet there’s actually a lot of religious switching, too, and it cumulatively dilutes away the religious distinctiveness of immigration-originated populations. The Pew Research Center finds that “depending on how ‘religious switching’ is defined, as many as 42% of U.S. adults have switched religions.” Considering that there’s so much religious churn, it shouldn’t be surprising that 18% of Indian Americans are Christian, even though just over 2% of India’s population is Christian, or that half of Irish-Americans are Protestant, compared to one-third who are Catholic. The 42% of Asian Americans who identify as Christian are surely a larger share than in their home countries, which have historically had few Christians (except the Philippines). So if, as the economic models generally predict, open borders would lead to the migration of billions, leading to about half the world’s population being concentrated in the West, while India, China, and many other developing countries would see their populations reduced several-fold, simple extrapolation would suggest that the dominant religions of the West, Christianity and the Enlightenment, would see large gains in membership through the assimilation of immigrants, at the expense of the prevailing religions in the countries of emigration, which many of the emigrants would leave behind as they adapted to their new homelands.

In America, 77% of those raised Muslim, are still Muslim, according to Pew. That’s a fairly high retention rate, but Islam in the West still loses about one-fourth of each Muslim-born generation. At that rate of member loss, less than half of the descendants of Muslims would still be Muslim after three generations. Germany’s assimilation of Turkish migrants seems to illustrate how this process plays out. Less than 2% of the German population self-identifies as Muslim. Almost twice as many people in Germany are of Turkish descent, and there are also substantial numbers of Arabs. Since Turkey’s population is almost exclusively Muslim, it seems that Islam must have lost roughly half of the natural increase of its emigrants in Germany to apostasy. Germany is a relevant case study because its great Turkish immigration mostly occurred around half a century ago, so it’s had time for assimilation to play out across a couple of generations.

What about conversion the other way? In America, there are probably a few hundred thousand converts to Islam in America, mostly in the black nationalist Nation of Islam, most famously exemplified by Malcolm X. The Nation of Islam is an interesting instance of the special political purposes that a Muslim religious identity can serve, and might foreshadow future uses of Islam as a vehicle of radical politics in an open borders world. But it doesn’t seem indicative of an ability of Islam to make many converts, in general. There may be 100,000 converts to Islam in Britain.

Historically, Islam has never made major advances by migration, or by conversion from below, as Christianity has often done. Stagnation or decline has been its fate where it was politically subordinate. Islam spread by conquest, not missionary work. It is still strongest in the historic heartland where it was established by Arab conquerors in the 7th and 8th centuries. That’s not to say that the Middle East and North Africa became Muslim through forced conversions. Forced conversions to Islam were not the norm. Rather, first Arab, and later Turkish, conquerors, became the power elite, permitting Christianity, Judaism, and sometimes other religions, such as Hinduism in India, to persist among the subject populations. But non-Muslims enjoyed various disadvantages, such as paying a special tax called the jizya, could not proselytize, sometimes suffered political violence, sometimes had their children kidnapped to become janissaries, and in general, enjoyed few or no rights and comprehensively inferior treatment. In the very long run, this made it hard for Christian and other minority communities to flourish. Their vitality atrophied, and a slow trickle of conversions to Islam depleted their numbers. So Islam spread through conquest followed by a gradual, top-down conversion of subject peoples to the dominant faith. The exceptions to this rule, such as the seemingly peaceful conversion of Indonesia to (majority) Islam, tended to occur in relatively easy mission fields, where no higher religions had a strong presence.

There are, as far as I know, no historical examples of substantial Christian populations converting to Islam except under Muslim rule. I suspect that one reason why is Islam’s attitude to women. Islam is notoriously anti-feminist, confining women to the veil and the home, and thus preventing them from playing the crucial role as volunteers and community organizers that they play in Christian parishes. When I was a guest at Muslim homes in Central Asia, the wives didn’t sit down to dinner with the men, but served them, staying in the kitchen, then ate dinner later. Historic Christianity didn’t accept women’s equality in the modern sense, but they were regarded as moral and spiritual equals, and they participated in worship alongside men. The Christian saints are the only class of famous people where women have always enjoyed fairly equal representation with men. Importantly, Christianity made the duty of sexual fidelity in marriage mutual, whereas outside Christianity’s influence it had been a duty of the wife only. Christianity has often spread first among women, who then convert their husbands. Islam, I think, is at a disadvantage relative to Christianity because it doesn’t give women enough freedom to be important as community organizers and spreaders of the faith. Anyway, for whatever reason, Islam has never been competitive in a free religious marketplace, and I don’t think it ever will be.

Under open borders, I would expect most of the population of the Muslim world to emigrate to non-Muslim countries over the course of a few decades or perhaps a century. Since Muslims comprise less than one-fourth of the world population, though, migration alone would be very unlikely to lead to a Muslim majority in Western countries. Instead, open borders would lead to a world in which most Muslims live as immigrant minorities in countries where Christianity and/or the Enlightenment were historically the dominant religious influences. That’s a big change from the contemporary world, where Muslims constitute the majority in most of the countries where they live. And while my bits of data and my quick retrospective glance at history hardly constitute ironclad evidence, they point to a scenario in which Islam’s new status as a minority religion in most of the countries where it’s present will lead to a slow but steady dissolution of its membership and influence.

How would Muslims cope with that?

4. Islam and Violence

It is widely perceived that Muslims have a special propensity for violence, which other religions lack, and while Buddhist monks inciting violence against Burmese Muslims and violence against abortion providers in North America are counter-examples, the perception is basically correct. Islamic terrorists, over the past 20 years, have perpetrated dozens of terrorist attacks in non-Muslim regions, with a death toll of thousands, the vast majority of whom had done nothing in particular to earn the enmity of Islam. The global scope of Islamist violence, and its indiscriminate nature, set it dramatically apart. Most denials of Islam’s special propensity for violence represent politically correct spin doctoring rather than serious analysis. That most Muslims oppose terrorism is not inconsistent with Muslims turning to religiously-motivated violence at much higher rates than members of other religions do.

The violent insurgencies of Muslim Palestinians against Israel, Muslim Chechens against Russia, Muslim Algerians against France in the mid-20th century, and so on, illustrate an important pattern, namely, that Muslims are not accustomed to being a quiescent minority in a state where other religions predominate, and often react to it violently. Of course, Palestinians, Chechens, and Algerians had strong historical claims to the lands on which they were living, and could accuse the Israelis, Russians, and French as being imperialist usurpers. Muslim immigrants in the West under open borders could make no such charge. But is irredentism the real motive for these Muslim insurgencies, or just a kind of pretext or secondary cause? Does Islam simply make its adherents disinclined to accept non-Muslim rule, however originated?

Islamic scholar Bernard Lewis argues that there is a fundamental difference in the way Muslims regard the relationship between religion and state:

In [the Muslim] world, religion embraces far more than it does in the Christian or post-Christian world. We are accustomed to talking of church and state, and a whole series of pairs of words that go with them – lay and ecclesiastical, secular and religious, spiritual and temporal, and so on. These pairs of words simply do not exist in classical Islamic terminology, because the dichotomy that these words express is unknown. They are used in the modern languages. In Arabic, they borrow the terminology used by Christian Arabs. They are fortunate in having a substantial Christian population using Arabic, and they therefore have a good part of the modern terminology at their disposal, in their own language. In Turkish, Persian, Urdu and other languages of Islam, they had to invent new words. The word in Turkish and in Persian is laik [from the French word laïque, which describes the prevailing concept of separation of church and state].

In the Islamic world, from the beginning, Islam was the primary basis of both identity and loyalty. We think of a nation subdivided into religions. They think, rather, of a religion subdivided into nations. It is the ultimate definition, the prime definition and the one that determines, as I said, not only identity, but also basic loyalty. And this is quite independent of religious belief. In Islam, there isn’t – or rather, there wasn’t until recently – any such thing as the church, in the Christian sense of that word. The mosque is a place of worship. It’s a building, a place of worship and study. And in that sense, it is the equivalent of the church. But in the sense of an institution with a hierarchy and its own laws and usages, there was no such thing in Islam until very recently.

If Lewis is right about this, his argument strongly suggests an explanation for the widespread impulse to Muslim insurgency. No situation in which Muslims live under non-Muslim rule can be quite normal in Muslims’ eyes. Their religious laws demand to be implemented as civil laws. Their religious community is meant to be realized as a political community. Without a separation of church and state, it’s difficult for the pious to live under infidel rule.

A Christian’s loyalty to the Church is compatible with being a subject of a non-Christian state, because the Christian is commanded to “give unto Caesar what is Caesar’s, and unto God what is God’s.” The highest law to which Christians regard themselves as subject, the teachings of Jesus in the New Testament, are not meant to be, and surely could not be, embodied in the legal code of any state. By contrast, at the heart of Islam lies sharia, a legal code, which, according to majorities of Muslims in most countries where Islam is present, is supposed to be the law of the land. To tell Muslims they may practice their religion privately within the framework of a central state is to impose on them a role congenial to Christians rather than Muslims, and fundamentally at odds with their religious tradition.

My co-authored paper Rowley and Smith (2009) demonstrated that there is a democracy deficit in the Muslim world, an even more marked deficit of freedom, and a lack of religious freedom in particular. Politically correct efforts to explain this in terms of other variables such as oil or the legacy of colonialism don’t stand up to statistical scrutiny. Islam just seems to be inherently illiberal.

5. The Duty to Murder Apostates

Perhaps most importantly, as Pew reports, many if not most Muslims support the brutal stop-loss policy that has been a feature of Islam from the beginning, namely, the death penalty for apostasy:

Compared with attitudes toward applying sharia in the domestic or criminal spheres, Muslims in the countries surveyed are significantly less supportive of the death penalty for converts.19 Nevertheless, in six of the 20 countries where there are adequate samples for analysis, at least half of those who favor making Islamic law the official law also support executing apostates.

Taking the life of those who abandon Islam is most widely supported in Egypt (86%) and Jordan (82%).

How widely is the death penalty for apostasy enforced? According to a Library of Congress report, “The countries surveyed that expressly make apostasy a capital offense are Afghanistan, Brunei, Mauritania, Qatar, Saudi Arabia, Sudan, the United Arab Emirates, and Yemen,” though enforcement may be inconsistent. Elsewhere, apostasy may entail lesser penalties, such as loss of property, and apostates may be murdered by vigilantes. Nor is this stop-loss policy limited to Islam’s historic heartland. Even in the West, many apostates from Islam live in fear. High-profile cases like the Islamic Republic of Iran’s attempt to murder Salman Rushdie aren’t just the aberrations of an occasional crazy ayatollah. They express Islam’s historic practice.

It’s worth stopping to rescue any hapless readers who may be under the impression that Christianity, too, mandates the death penalty for apostasy. Put simply, it does not. One thing that will never happen to any Christian in his entire life, is that he’ll be reading his New Testament, and he’ll come across some passage that makes him think, “Hmm, this seems to say that we should kill apostates. Why don’t we do that now?” There is not a single word or phrase in the New Testament that would remotely suggest a thing to an unbiased reader. Even a reader who scanned the whole New Testament desperately seeking some scriptural pretext for religious coercion would come away nearly empty-handed. Neither Jesus nor any of the other protagonists of the New Testament, apostles and disciples etc., use lethal violence, and even of non-lethal violence, the only instances are Jesus’s cleansing of the temple (which sets a precedent only for the use of non-lethal force to protect holy places from defilement) and Peter’s cutting off of the high priest’s servant’s ear (which Jesus rebukes, even though Peter is defending Jesus from men who intend to kill Him).

The Old Testament, to be sure, contains some hair-raising passages that seem very much opposed to religious freedom, but that’s part of the Mosaic law, which St. Paul’s epistles clearly and insistently establish is not comprehensively binding on Christians, but has been superseded, fulfilled, replaced by the higher ethical teachings of Jesus. The early Church never used violence. After the conversion of Constantine, the state got somewhat entangled with the Church, and unfortunately it often made political sense to use violence to suppress paganism or heresy, if only because the Christian religion had become an important determinant of political loyalties. Nonetheless, in the east, violence was used far more by heretics, such as Arians and Monophysites and Iconoclasts, against the orthodox, than the other way around.

Augustine, around the turn of the 5th century AD, wrote a very unfortunate book entitled “On the Correction of the Donatists,” in which he argued that coercion could be used against the Donatist heresy in North Africa. Nonetheless, killing for Christ remained rare for centuries afterwards. The much-maligned Crusades, though spiritually misguided and ultimately quite harmful, sought to acquire and hold territory, rather than impose orthodoxy. Only in the 13th century, with the Albigensian Crusade and the founding of the Inquisition, did the Roman Catholic Church turn into a coercive agency holding the allegiance of its flock with death threats. By this time, Rome had split from the east, and the popes had launched a kind of revolution, called the Investiture Controversy, against the western emperors, leading to a century and a half of intermittent, increasingly unscrupulous warfare, in which the popes became more and more culpable in bloodshed and corruption. It is against this tainted and wayward church that the Protestants rebelled in the 16th century.

So of the three major branches of Christianity, Orthodox, Roman Catholic, and Protestant, only the Roman Catholics are really tainted by historical association with the practice of murdering apostates. True, events like the murder of Michael Servetus in John Calvin’s Geneva mar Protestant, and episodes like the persecution of the Russian Old Believers mar Orthodox, history, but these were acts of individual religious leaders and/or of secular regimes rather than of “the Church” corporately. Modern Protestants and Orthodox take it for granted that these persecutors were in the wrong, and would reject as absurd the notion that their faith required them to approve of such crimes. If anything, they assume that their religion requires them to sympathize with the persecuted. Only for Roman Catholics is it problematic to embrace religious tolerance, and even here, the problem isn’t that any Roman Catholic could suppose it’s against his religion to condone the religious tolerance policies of contemporary Western democracies, since the Church itself does so, but rather, that if conscience compels a Roman Catholic to affirm that the murder of apostates for their unbelief is always and everywhere intolerable, that person will be somewhat at odds with the historic practices, and perhaps teachings, of a Church that claims (in a special, rather difficult to understand, sense) never to have erred.

Yet it is significant that even at the nadir of its wicked career, the Inquisition didn’t actually do the killing of heretics. Victims were “relaxed to the secular arm” to be murdered. This hypocrisy does less than nothing to justify the Inquisition’s crimes, but it does show that even the Inquisitors couldn’t quite pretend that Christ had authorized the Church to kill apostates. Rather, the fiction was that the state was doing it for its own raison d’etat. Also, the Church didn’t authorize vigilante violence against apostates, of the kind often perpetrated in Muslim countries today, either. The Holy Inquisition practiced scrupulous due process. I don’t think this makes the Inquisition any less evil. If anything, it makes it more evil, since the worst crime of the Inquisition isn’t the murder of people but the murder of truth, making people tell lies from fear, and scrupulous due process enabled the Inquisition to carry out this evil purpose more efficiently. But since the Roman Catholic Church never authorized private violence against heretics and apostates, it would be pretty impossible for a Roman Catholic believer to imagine that it’s his or her duty to kill apostates now, when it’s not the Church’s policy to advocate or be involved with such crimes in any way. That said, the Roman Catholic Church’s medieval crimes, not adequately repented of until recently, cast a long shadow, making the Roman Catholic Church an illiberal force for much of the modern period, with some culpability for Catholic dictators like Francisco Franco of Spain.

If people think Christianity authorizes the murder of apostates, that might make people more relaxed about Muslim immigrants. After all, Christians obviously get along fine as citizens of liberal societies, so if they can do that in spite of being theoretically required by their religion to kill apostates, might we not expect the same happy result from assimilating Muslims into liberal societies? But the reason Christians today don’t kill apostates is that their religion doesn’t require them to do so, and never did. On the contrary, it forbids them to do so, a fact that even the Roman Catholic hierarchy in the darkest chapters of its history never quite managed to obscure. By contrast, in Islam, the death penalty for apostasy is an evil idea whose time will probably come again, and again, and again, as long as Muslims keep reading the Koran, and regarding their faith’s early history of conquest as a model to emulate.

6. Islam versus Free Speech

Also symptomatic of the tension between Islam and political freedom are the protests that erupted across the Islamic world when Jyllands-Posten cartoonists depicted Muhammad, provoking violent protests and riots all over the Islamic world. No respect here for freedom of speech. The notion that Denmark is an independent country with its own laws, which can’t be required to abide by Islamic rules against depicting Muhammad, also apparently enjoys little credence among the masses of the Islamic world. The Charlie Hebdo shootings are another case of (certain) Muslims refusing to accept freedom of speech even outside Islamic lands.

A theme of Rowley and Smith (2009) was that Muslims claim to like democracy, yet they have very little. A post at Gallup.com cites evidence that vast majorities of Muslims think they support free speech, even in some countries, such as Egypt, where widespread advocacy of the death penalty for apostasy makes it clear that they really don’t. This seems to show that Egyptians haven’t thought very much about what free speech means.

I’m not really an expert on Islam, even though I’ve spent time in a lot of Islamic countries and had long, deep conversations with many Muslims. Rowley and Smith (2009) was mainly a number-crunching exercise, with no deep causal analysis of the kind that a real expert could offer. But my impression is that there is widespread admiration of Western institutions in the Islamic world, but there is a failure to understand the moral principles that undergird Western institutions, and the incompatibility of key Islamic tenets, deeply rooted in the mindsets of ordinary Muslim people, with those principles. The man-on-the-street in Jordan or Palestine or even Baku, I think, could not, without a fundamental re-education, assimilate the idea that people have a right to apostatize from Islam, or draw Muhammad, and that to prevent such apostasy or blasphemy by force of any kind, much less by murder, is an intolerable violation of human rights.

Personally, I think Westerners should defer to Muslim sensibilities to the extent of not drawing Muhammad. It’s unnecessarily provocative, and there’s no real need or reason to do it. But I would have very little confidence that, if Muslims got norms and/or laws established in the West preventing the depiction of Muhammad, they would stop there, and respect the right of Westerners to attack Muhammad in speech or writing. Some Muslims would, of course, but it seems likely that a determined majority of Muslims would strive to punish apostasy and suppress blasphemy, elastically defined, and with each success, would move the goalposts further, until all public discourse was smothered by a compulsive deference to Islam, if free countries don’t stop them. A few would resort to extra-legal violence, and more would approve of it, but the West would have the force to resist, if it had the will.

And that’s why I’m so worried by incidents like Canadian lawsuit against the journalist Mark Steyn for “defaming” Islam in his writings. We could expect more such efforts to hijack Western institutions for Islamist ends.

7. The Danger of Relativistic Surrender

The real scandal about the Mark Steyn case isn’t that the Canadian Islamic Congress filed a complaint, but that the Ontario Human Rights Commission gave a favorable hearing to it:

While it dismissed the complaint by the CIC against Maclean’s, the OHRC also issued a statement saying the article in question “portray[ed] Muslims as all sharing the same negative characteristics, including being a threat to ‘the West’,” and thus promoted prejudice towards Muslims and others.[14] In an interview, Chief Commissioner Barbara Hall stated that “When the media writes, it should exercise great caution that it’s not promoting stereotypes that will adversely impact on identifiable groups. I think one needs to be very careful when one speaks in generalities, that in fact one is speaking factually about all the people in a particular group.”[15]

Let me take a moment to deconstruct this cowardly, misguided, unacceptable statement. “Stereotype” essentially means “generalization,” with a gratuitous negative connotation attached to it. It can be thought of as a generalization which some authority figure chooses to disapprove of. Generalizations are essential for understanding the world. So for an authoritative body like the OHRC to condemn the use of “stereotypes” is almost to say that people can only use officially approved generalizations, which is almost to say that people can only think in officially approved ways. Such a suggestion is utterly inimical to free speech.

Whether the media should “exercise great caution” not to “adversely impact… identifiable groups” is an interesting ethical question for individuals to ponder. There are strong arguments pro and contra. On the contra side, many true and important things might be impossible to say publicly without adversely impacting identifiable groups, so that such scruples would effectively silence much or most of public discourse. On balance, I think “the media” should not “exercise great caution,” or at least that it’s very important that at least some media outlets tell the truth without worrying about the consequences. What I’m certain of is that a public body like the OHRC, in a free society, has no business having an official opinion about how much caution the media should exercise. The marketplace of ideas must be free.

The most philosophically inept part of the quote is the suggestion that one mustn’t “speak in generalities” unless “one is speaking factually about all the people in a particular group.” The vast majority of general statements by which people communicate with each other and help one another to understand the world have exceptions. If no generalization is permissible to utter unless there are (knowably?) no exceptions to it, the vast majority of human speech would be prohibited. This absurd desideratum could never be put into practice in ordinary life, but it could, under pressure from domestic Islamists, be applied selectively to silence whatever speech the authorities happened to take a dislike to. Freedom of speech could be virtually extinguished in the West without much more sophistry to justify it than the OHRC provides in the quoted paragraph.

In a healthy free society, where public opinion is robust in its understanding of the nature of, and institutional prerequisites for, liberty, the mindless blather of the OHRC might do little harm. What makes the present case so mischievous is that the OHRC is functioning as enforcer for a creeping suppression of free speech by a Muslim minority instinctively allergic to freedom of expression because of the history and doctrines of Islam. That the OHRC surely doesn’t understand this makes them all the more dangerous. It’s not an isolated case. From France, we hear that:

A critical report about the problems faced by — and posed by — school pupils with immigrant backgrounds… says Muslim pupils and parents in France are increasingly making religious demands on the state school system and that teachers should rebuff these demands by explaining the country’s principle of laïcité, the official separation of church and state. Among the problems it listed were pupils who upset classes by objecting to courses about the Holocaust, the Crusades or evolution, who demand halal meals and generally “reject French culture and its values.”

“It is becoming difficult for teachers to resist religious pressures,” said the report.

Luca Volonte has more examples in “Europe, Multiculturalism, and Nihilism.”

Freedom depends on a certain paranoia. Free peoples must know how to nip threats to liberty in the bud, before they’re too strong to be stopped. For every brave Mark Steyn, who writes boldly about Islam in the face of threats from velvet inquisitions like the OHRC, there are a dozen writers who will take the safe route by not saying anything that’s politically incorrect, no matter how true and important it may be. I suspect that there’s already less criticism of Islam in the movies and the mainstream media than its illiberal character and epistemic implausibility would warrant, because the thought leaders of Western society are afraid of a backlash, including acts of violence, if they speak out.

With people like the Ontario Human Rights Commission in positions of power within the West, I think there’s a significant, though small, chance that Muslim immigration could lead to a sweeping loss of freedom in the West. Cases like Mark Steyn’s may be rare, not because officials have the intelligence or integrity to defend the principles of a free society, but because it wouldn’t occur to Westerners, schooled in the traditions of freedom, to file such complaints. Without the Canadian Islamic Congress to file a complaint, the OHRC might have carried on the routines of liberty forged by their wiser and better ancestors, and their unworthiness might never have been exposed. How much of the Western elite is similarly indifferent to truth and freedom, ready to throw away the best traditions of the West at the first suggestion? The fortress of Western liberty is very strong, but this won’t do much good if all the guards are asleep at their posts.

But I’m pretty confident the guards would wake up in time. It would be an easy matter for a resolute West to admit hundreds of millions of Muslim immigrants while keeping its own traditions of freedom intact. I’ve stressed the OHRC because its sophistries are very dangerous, but it turned out to be just words, and Mark Steyn is still a free man. Under open borders, there would be more Muslims, but they would almost certainly be a minority. Christian and/or Enlightened Westerners would enjoy large structural advantages as being the incumbent population, and having much greater wealth and education. In the face of efforts by Muslims to push a pro-Islamic political agenda, they would have natural allies in billions of Christian, Hindu, Buddhist, and other non-Muslim immigrants from the developing world. If Western elites have sometimes made compromises that they shouldn’t, they’ve done so in a spirit of generosity from what they feel is a position of strength. If Islamist agendas brought to the West by Muslim immigrants became a real, existential threat to the West’s heritage of freedom,  I think Western elites would either rise to the challenge of defending it, or be removed and replaced with people willing to do so.

8. Let Them In First, then Change Them

The free governments of the West ought to communicate to the Muslims of the world the following message:

“You are welcome to come and live among us, and in return for moderate taxes and obedience to our laws, we’ll protect your rights to life, liberty, and property, as well as religious freedom, insofar as practicing your religion doesn’t require you to violate the rights of others. But the rights of others include some things you’re not accustomed to, such as the right to proselytize other faiths, to apostatize from Islam, to condemn Muhammad as a false prophet, and to insult all that you regard as holy. You may build mosques at will, and attend them, and fast during Ramadan, and try to persuade others, peacefully, to do so with you, but you must utterly and forever repudiate the evil practice, which has stained your faith with murder and shame from the beginning, of killing apostates from Islam. If this despicable and barbarous doctrine is taught among you, you will be imprisoned for incitement of violence. Similarly, while you are free not to depict Muhammad yourselves, you must henceforth understand this as a law binding on you only, and in conscience, not as a law that binds non-Muslims, or that can be enforced against anyone, Muslim or not, by violence. We do not care how incompatible these demands are with your faith as it has been practiced for a thousand years. We are more powerful than you, and we insist that, while you live among us, you submit to the principles of a free society. Any effort to subvert those principles will be ruthlessly crushed. Your religion must henceforth become something out has never hitherto been, an affair of private worship and peaceful speech, destitute of temporal power, as our own Christian churches willingly are. Even as you venerate the conquering Muhammad, you must make your religion emulate that of Jesus, Who taught that His kingdom is not of this world, and told His disciples meekly to accept the rule of earthly masters, while awaiting their rewards in heaven.”

As long as Western governments resolutely insisted that the rights to denounce Islam, missionize Muslims, and apostatize from Islam would be defended to the death against any and all challenges and never mitigated or compromised in the least, they could easily carry their point. I think, ultimately, this would happen, as lapses like that of the OHRC provoked popular backlash from conscientious disciples of Christianity and the Enlightenment. Westerners would develop and refine and popularize the case against Islam. Parts of it might come to be taught in schools, since the mere facts of history, properly told, are a strong case against Islam. Christian missionaries would carry the case against Islam deep into Muslim communities. Each wave of apostates from Islam would make it easier for the next, by writing ex-Muslim books, and forming ex-Muslim communities. Their stories would bolster the case against Islam with invaluable inside information. Islam would be tested as Christianity has been tested in its long contest with the Enlightenment, by critiques from former insiders who know its weaknesses. I don’t think it could withstand the test.

So if open borders brought hundreds of millions of Muslims to the West through migration, I would expect these Muslim immigrants to try to co-opt Western institutions, and/or engage in private vigilante violence, to prevent criticism of Islam, enact and enforce bans against apostasy from Islam, impose Islamic proscriptions on non-Muslim populations, and otherwise Islamize Western societies at the expense of truth and freedom. Westerners would need to be alert, resolute, and principled, to block these efforts from succeeding. Yet it wouldn’t really be very difficult to block them from doing so on any large scale, and if Muslims were forced to submit to Western norms of religious freedom, I’d expect them to lose at least one-fourth to one-third of their youth to apostasy in each generation. Meanwhile, the historic heartland of Islam would be largely depopulated by emigration, and its weight in world affairs would become negligible. There would still, even after a century or more, be more Islam in the West than there is now, but there would be a lot less Islam in the world. And I would probably welcome that.

9. Can Islam Reform?

One of my co-bloggers read an earlier draft of this post, and asked me if I thought Islam could reform, so as to become more appealing to Western natives and/or to the assimilated descendants of Muslims living in the West. When people talk of Islam “reforming,” they tend to assume it will “reform” in a direction they like, a liberal and tolerant direction, more conducive to peaceful co-existence with other religions, and perhaps with greater equality for women. But there’s another kind of reform, the reform of ISIS and al-Qaeda and Saudi Wahhabism and the Iran of the ayatollahs, a reform that seeks, not compromise, but renewal, a deepening of commitment. The Protestant Reformation in Europe wasn’t moderate and compromising, but fanatical and often violent.

I think we’ll continue to see reform movements of both kinds in Islam: reform in the direction of liberal tolerance, and of violent fundamentalism. Open borders might tip the balance in favor of the former rather than the latter, by exposing more Muslims to Western tolerance and prosperity and mitigating their sense of grievance by giving them access to opportunity. But I suspect that violent Islamic fundamentalism is actually a more intellectually coherent position than any kind of liberal, tolerant Islam could be. “If past generations of Muslims were wrong about so many things,” the children of liberalized Muslims will ask, “why should we believe that they were right to revere Muhammad?” Liberal forms of Islam would prove to be pathways out of Islam, while violent fundamentalisms would arise in reaction against them. A transformation of the Islamic religion as a whole, such that it became unproblematic for Muslims to live peacefully under non-Muslim rule, scrupulously tolerant of their neighbors and committed to freedoms of speech and religion, seems unlikely.

I could imagine new sects sprouting out of Islam as Mormonism sprouted out of Christianity. They would discard most of Islam’s historical legacy so as to be comfortably modern, yet still call themselves Muslim and acknowledging Muhammad, appealing to people whose heritage inclines them to regard Muhammad as a holy man. Such sects might then base their appeal primarily on strong community, family values, and clean living, combined perhaps with political radicalism like that of the Nation of Islam. But I doubt such sects would become either dangerous or numerically important.

As usual, the views expressed in this blog post are those of the author, Nathan Smith, only, and do not represent any sort of official position of Open Borders: The Case.

Do I have a right to be here?

Every human being has an inalienable right to migrate across their planet without restriction or fear.1It is impossible to place a restriction upon this right that is not animated by racism and classism.2 An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate3 someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.4 She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.5 It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,6 many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.7

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”8

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.9 What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers10 – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”11

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”12 I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”13 Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.14 Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.15 As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”16

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents17) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”18 Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”19 And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”20 in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.21 This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”22 This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.23

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book24 introduced the idea into the minds of people looking to justify their contempt for immigrants.25 The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.26 That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,27 nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people28 whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.29 I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.30 One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,31 cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.32 Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.33

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person34 would need to get “cancellation of removal.” The law says ten, and it means ten.35 So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.36 Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.37 Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.38 Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.39 It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.40 Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,41 this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),42 or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),43 or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,44 acquiring a green card through a close family member is just about45 the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,46 you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),47 because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”48 This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”49 Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”50– persecution for any other reasons, or danger from any other source, won’t get you asylum.51 But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.52 If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.53 That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.54

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac56), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?57 Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”58 Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”59 A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

Related reading

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Footnotes

1 More on this right to come in future posts.
2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).
3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.
4 See ship manifest on file with author.
5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.
6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).
7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).
8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).
9 See 8 U.S.C. 1182(a)(4).
10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.
11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161
12 Hayter, at 161.
13 Hayter, at xxV.
14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.
15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.
16 Aviva Chomsky at 20.
17 See 8 U.S.C. § 1401.
18 Motomora at 98.
19 Chomsky at 36.
20 HAYTER, at 152.
21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).
22 Chomsky at 19.
24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).
26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).
29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.
30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.
31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).
32 See 9 USC § 1259.
33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011
34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.
35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)
36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).
37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).
38 See literally any post on this website.
39 See ship manifest on file with author.
40 See 8 USC 1229b(b)(1).
41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.
42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.
43 See 8 U.S.C. § 1153(c).
44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.
45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.
46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.
47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).
48 Hayter, at vii.
49 Hayter, at xxv.
50 (a phrase that is legally more complicated than I can possibly relate here).
51 See 8.S.C. § 1158(a).
52 See 8 U.S.C. § 1158(b).
53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.
54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).
55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).
56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.
57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).
58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).
59 Gündoğduat 113.
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