In 2013, the Dream 30 Fought to Come Home

Note: The National Immigrant Youth Alliance (NIYA) is not affiliated with the Open Borders website, and the views expressed herein are those of the author alone.

On September 30, 2013, 34 people crossed the pedestrian bridge from Nuevo Laredo, Mexico, and presented themselves to U.S. officials at the port of entry in Laredo, Texas. Thirty-one were Mexican citizens, two from Honduras, and one from Peru. None had permission to enter the U.S. They were dressed in the graduation caps and gowns that have become identified with undocumented youth and the DREAM Act, the perennial bill which would provide legal status to young people who grew up in the U.S. without papers. The group was accompanied by reporters covering the event for audiences across the U.S. and Mexico. Each of the 34 handed an ID to Customs and Border Protection (CBP) officials. Each was interviewed and expressed a fear of returning to his or her country of birth. All 34 were then taken into custody by CBP.

What these 34 individuals had in common is that each had previously lived in the U.S. without lawful status prior to being deported or “attritioned” due to anti-immigrant state and federal policies. Most were in their late teens or early twenties and would have qualified for the Deferred Action for Childhood Arrivals (DACA) initiative, a federal administrative reform that tracks the requirements of the DREAM Act, had they not been on the wrong side of the border on June 15, 2012, the date the policy was announced. A few had left the U.S. just weeks–even days–before that date.

This group became known as the Dream 30. Organizers at the National Immigrant Youth Alliance (NIYA) conceived of and coordinated the action. As an immigration attorney, my role was to provide legal advice to the participants and represent them in the immigration interviews and hearings that were to follow. The organizers built on a similar action which had taken place two months earlier with nine participants, dubbed the “Dream 9.” The Dream 30 differed from the Dream 9 in two important ways. First, four participants in the Dream 30 action were parents, older individuals who would not have qualified for DACA or the DREAM Act because of their ages when they came to the U.S. (This is one reason that the “Dream 30” shorthand was used even though there were 34 participants.) By contrast, each of the Dream 9 participants was a Dreamer, someone who had come to the U.S. as a child and grown up here without lawful immigration status. Second, three of the participants in the Dream 9 action had voluntarily crossed from the U.S. to Mexico for the purpose of participating in the action with the other six participants already in Mexico. This was a controversial and, to some observers, brazen element of the Dream 9 action which was not part of the Dream 30 action.

Life in Exile

The Dream 30 had departed the U.S. for a variety of reasons. Some were deported or left to join parents who had been deported. A disproportionate number hailed from Arizona and had been driven out by the campaign by elected officials there to purge the state of Latinos. Many had hit a wall after high school or college, unable to pursue work or continue education because of their immigration status. One had traveled to attend a green card interview based on an approved petition filed by her U.S.-citizen stepfather and was wrongly rejected and denied re-entry to the U.S.

Most of the Dream 30 were from Mexico. After returning to Mexico, they found a different country than the one they had left as children. The drug war that began in 2006 had claimed between 60,000 and 120,000 lives and is still raging in much of the country. Members of the Dream 30 came from states wracked by cartel violence like Sinaloa, Michoacan, Veracruz, and Guerrero. In much of Mexico, the authorities cannot be trusted. The entire police force of the city of Veracruz was deemed irredeemably corrupt by the federal government in 2011 and disbanded. Viligante self-defense groups have formed in Michoacan as lists emerged of government officials on the payroll of the cartels. Several of the Dream 30 were victims of extortion or threats by the police themselves. Many had relatives who were kidnapped or murdered. Most of the Dream 30 were readily identifiable as having lived in the U.S. due to their accents or appearance, or by word of mouth. Consequently, they were at risk of being targeted by the cartels or police on the assumption that they had relatives in the U.S. who could pay ransom. Some experienced persecution based on their race or sexual orientation. Some had left the U.S. to apply for visas “the right way” on the mistaken assumption that they would be able to return to the U.S. on student or visitor visas. Instead, they were told their sentence of exile was anywhere from 10 years to life. Many found their school credit didn’t transfer over to schools in Mexico and that their education and career opportunities were no better than in the U.S. They had become foreigners in the land of their birth. The situation was all the more painful because they had missed, some by days, the protections and opportunities they would have been afforded under DACA had they been able to remain in the U.S. until the date the policy was announced.

Fighting to Stay

Elsy, one of the Dream 30 from Honduras, crossed the footbridge with her severely disabled four-year-old U.S. citizen daughter. Elsy was released into the U.S. later the same evening to seek medical treatment for her daughter. Seven others–all minors and their parents–were released on October 1, the first day of the government shutdown. Another 17-year-old who was not accompanied by a parent was taken to San Antonio to be processed for release two weeks later as an unaccompanied minor. The remaining 25 participants were transferred into Immigration and Customs Enforcement (ICE) custody and transported to the El Paso Processing Center, a ten-hour drive from Laredo.

Each of the 25 Dreamers was scheduled for a telephone interview with one of a team of officers at the Houston asylum office the following week to determine whether he or she had a “credible fear of persecution” if deported. The asylum offices are part of U.S. Citizenship and Immigration Services (USCIS). USCIS, ICE, and CBP are sub-agencies of the Department of Homeland Security (DHS). The credible fear interview is only an initial step in the typically lengthy and difficult process of applying for asylum. Asylum is a status granted to those who meet the legal definition of a “refugee” but are either already inside the U.S. or are knocking at the door. The credible fear standard is lower than the standard that must be met for a grant of asylum in a full removal proceeding. As Professor Bill Hing wrote in a letter of support for the Dream 30:

The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture.

During the initial interviews on October 7, some of the interviewing asylum officers were openly skeptical and cut my clients off as they described their experiences. The asylum office refused to accept the asylum applications and packets of supporting documents we had prepared for each individual, as had CBP at the port of entry, saying the detailed information and evidence of persecution wouldn’t affect their decisions anyway as it would not be reviewed. (Later, after NIYA publicly criticized the asylum office, the officers agreed to accept and review some supporting evidence.) The asylum office took the unusual step of re-interviewing twelve of the participants on October 15 since, as a supervisor told me, these were high-profile cases.

The asylum office began issuing credible fear decisions shortly after the second set of interviews. The average credible fear denial rate nationally for Fiscal Year 2013 was about 8% (AILA InfoNet Doc. No. 13081316, p. 29). However, nine of the 25 Dreamers interviewed for credible fear were denied by the asylum office, a denial rate of 36%. The officers refused to acknowledge that the heightened risk of extortion, kidnapping, or murder by virtue of being a Dreamer warranted a full asylum hearing in front of an immigration judge. While the Houston asylum office is bound by the rulings of the conservative Fifth Circuit Court of Appeals, even there, the law governing the specific claim of fear of persecution based on being a member of the class of Dreamers is not settled. The majority of immigrants interviewed for credible fear are unrepresented by counsel, don’t speak English, and often lack formal education. Often there are discrepancies between the initial border interview and the subsequent credible fear interview. For instance, an applicant might tell a border official she was coming to work in the U.S. and later disclose the additional motivation of fear of persecution to an asylum officer. My clients requesting credible fear had all been educated in the U.S., were represented by counsel both prior to and during the interviews, and were fluent in English. There were no significant discrepancies between the border interviews and the credible fear interviews. I emphasized to my clients the importance of telling the truth, and I and the small team of lawyers and assistants working with us reviewed the case histories for consistency and accuracy. Anecdotally, it is rare for credible fear applicants represented by counsel to be denied by the asylum office. I would have expected the credible fear denial rate for the Dream 30 to be lower than the normal rate, not four and a half times higher. By comparison, all of the Dream 9 passed their credible fear interviews and were paroled into the U.S., including the three who had returned to Mexico for the purpose of participating in the action.

Little Help from “Champions” in Congress

Days stretched into weeks, and still ICE refused to release those of the Dream 30 with positive credible fear determinations. This was in violation of an ICE policy announced in 2009 to parole people found to have credible fear who do not pose a flight risk or danger to the community. I believed at the time that ICE’s intransigence was a form of retaliation for this unorthodox, highly-public action. Later, NIYA learned that ICE’s practice of holding asylum-seekers in violation of its own policy was more widespread than we had thought.

The mothers of two of the participants with negative credible fear findings–Jonathan and Rocio–traveled to Senator Bob Menendez’s D.C. office on October 24 to ask for his help. Menendez is the only Senator in the Congressional Hispanic Caucus (CHC) and is a visible proponent of immigration reform in Congress. Over the last few years, he and other members of congress had worked behind the scenes with NIYA and other youth organizations to persuade ICE to stop deportations in individual cases. But the Dream 9 and Dream 30 actions represented a bridge too far for most of the CHC and the immigrant advocacy organizations that guide the politicians’ decisions. Comprehensive immigration reform legislation was still on life support in October, and congressional Democrats and their organizational boosters feared the Dream 30 action might kill it by giving Republicans in the House another reason to oppose reform. Menendez and most of the CHC closed ranks and left the Dream 30 hanging, giving the green light to ICE to deport any who didn’t make it through the credible fear process. The two mothers refused to leave Senator Menendez’s office unless he agreed to help their children. Instead of helping, Menendez’s staff called the police to arrest the mothers. Defiant, Jonathan and Rocio’s mothers came back to the office the next day. Menendez still refused to help.

Meanwhile, the Dream 30 were becoming increasingly frustrated with their continued imprisonment. The men staged a sit-in on Friday, October 25. Most of the participants went on hunger strike over the weekend. Early the following week, ICE took some of the men to emergency care. I was later told that ICE attempted to obtain a court order to force feed the hunger strikers, but that the treating doctors refused to sign off on the request since the men were still in good health. Tuesday morning, October 29, an ICE officer called to ask me to persuade my clients to end their hunger strike, saying they could not be released while their health was in question. I suspected that the opposite was true, that the pressure tactics were working and ICE didn’t want the negative press that might come if the hunger strike continued. Around the same time, I received word that ICE had denied my last-ditch request to stop the deportation of Rocio, one of the participants whose negative credible fear decision had been rendered first. By the time I was notified of the decision, she was already on her way to Mexico. Later that evening, eleven Dreamers were released. Five more were released on Friday, November 1. While the hunger strike and protests going on around the country had not prevented Rocio from being deported, they had successfully brought others in the group home despite the best efforts of the U.S. government to keep them out.

The Dream 30 forged strong bonds at the migrant shelter in Nuevo Laredo where they met and in prison in El Paso. The 16 who had been released from the El Paso Processing Center promptly got in a van and Benito Miller, a NIYA organizer, drove them to Washington, D.C. The morning of Monday, November 4, they began a series of sit-ins in the offices of members of the Congressional Hispanic Caucus, including Representative Gutierrez. Gutierrez lashed out, declaring he was severing ties with NIYA. Mohammad Abdollahi, a NIYA organizer, dryly noted that NIYA hadn’t had a working relationship with Gutierrez’s office in years.

To deflect the negative attention the offices of Menendez and Gutierrez were getting in the press, staffers told the parents of the Dreamers that I had provided bad legal advice to their children and that they and their children were being manipulated by NIYA. Furious, Maria Hernandez, the mother of one of the Dream 30, wrote a scathing open letter to Gutierrez that was published in the Huffington Post. She wrote, in part:

Personally, these “manipulative” organizers, as the congressman calls NIYA and the Dreamers, have been a constant support to me, to all the parents and to our children, and to the community. Despite their young age they know what they do. But why do they know? Because they have lived it. Such a person can move the world. Thanks to them we have been reunited with our children, which is what these politicians should do.
. . .
Congressman Gutierrez said he will withdraw support from these organizers, but I say, what support? The only thing he has supported is the deportation of these two young people, Brandon and Rocio. Congressman Gutierrez and his colleagues in Congress are well aware that if they support these Dreamers, more Dreamers will come and that is what they do not want, family unity.

By trying to discourage the parents from pursuing the release of their children, the offices of Senator Menendez and Representative Gutierrez were in effect working with ICE to deport the Dream 30. The staffers, including lawyers who should have known better, attempted to impede my ability to represent my clients by giving false information to their parents.

Most of the national immigrant advocacy organizations ignored the Dream 30 action, as they had the Dream 9, hoping that the story would quickly disappear. The action didn’t fit with the approved narrative that Republicans are to blame for the nearly two million people deported during Obama’s presidency. The estimated 500,000 Dreamers living in Mexico are an inconvenience that most congressional Democrats would prefer to forget.

Challenging the System, Shifting the Debate

I and my nine clients who had received negative credible fear determinations asked for review by an immigration judge. The regulations provide for a limited hearing that falls far short of a full asylum hearing and its attendant due process protections, such as they are. Three of the negative decisions were overturned on review by a judge or after reconsideration by the asylum office. ICE deported the remaining six despite their strong ties to the U.S. and legitimate fear of harm in Mexico. Some of those deported had lived in the U.S. since they were toddlers. In all, 28 of the original 34 were released into the U.S. to pursue asylum or other relief in immigration court in their home states.

At the outset, I had hoped for the same outcome that the Dream 9 had achieved: parole of all participants after passing a credible fear interview. I believe the different result this time came from a combination of factors. The DHS agencies involved–CBP, ICE, and USCIS–closed ranks in an attempt to shut the action down. DHS was on notice after the Dream 9 action and wanted to discourage future attempts by exiled Dreamers to return to the U.S. The asylum office manipulated the legal standard for credible fear determinations in order to deny my clients’ cases at over four times the normal rate, and ICE ignored its own directives on discretionary release of low-priority detainees. Over the past couple of years, ICE rank and file officers have chafed at instructions from D.C. not to deport Dreamers. In the absence of support from legislators and the administration, ICE was free to treat the Dream 30 as though they weren’t Dreamers and deport some of them. A few prominent immigration lawyers gave the administration and the CHC political cover by publicly undermining the Dream 30’s legal cases.

It was important for DHS to discourage more Dreamers from trying to rejoin their families in the U.S. Otherwise the public might become aware that the consequences of U.S. immigration policy extend beyond our borders, and that people don’t vanish once they are deported. They keep living, they keep dreaming. As Prerna Lal aptly wrote

“the deported are not lost to us. They will come back because they are responsible, committed, and dedicated mothers, fathers, children, siblings.”

Even though those of the Dream 30 who were paroled have not secured permanent status in the U.S., they now have the time and resources to prepare to fight their cases. Inside prison, ICE has the upper hand, as legal representation and support networks are disrupted and the cases are heard on an expedited schedule. Immigration judges presiding over prison courts are among the harshest in the country. That dynamic is flipped once a person is released. With time to gather supporting evidence and locate reliable local counsel, and in front of more sympathetic judges, chances of success rise dramatically. But perhaps more importantly, upon release, my clients have likely secured their futures in the U.S. While it is impossible to predict the outcome of the individual cases, it is unlikely that ICE will detain and deport the Dream 30 even if they ultimately lose their cases. They are now embedded in a network of Dreamers and allies that will mobilize to protect them if necessary. The Obama administration says it doesn’t deport Dreamers, and the Dream 30 have become Dreamers on the right side of the border once again. If Congress crafts a DREAM Act that excludes the Dream 30 and the Dream 9, they and their supporters will fight back.

In the midst of the Dream 30 action and a series of civil disobedience actions coordinated by the National Day Laborers Organizing Network (NDLON) to disrupt ICE operations, Representative Gutierrez pivoted away from the comprehensive reform orthodoxy, acknowledging that piecemeal legislation would now be the only realistic way forward. The week following Gutierrez’s public dispute with NIYA, he criticized President Obama for saying one thing and doing another.

While pressure is rising on Obama to enact additional administrative reforms, immigrant rights supporters remain divided over who to target: the President or House Republicans. At the heart of the rift is a difference in objectives and analysis. The first approach involves a sustained push for compromise legislative reform, understanding that it may not produce results until long-term demographic changes work their way through the electoral system. Most analysts predict that the GOP will hold onto the House in 2014, and I believe that House Republicans will become even more resistant to immigration reform as the primary season progresses. I do not know if or when broad amnesty legislation will pass through Congress, but it could be years. The changes contemplated under existing proposals would not significantly alter the immigration system. The second strategy is to directly challenge the deportation system and and push for fundamental changes to the underlying immigration regime. Both approaches have their merits, but disputes are inevitable where the stakes are so high and the analysis so different. We are entering another window of opportunity for an administrative policy shift, as comprehensive immigration reform is stalled and public focus shifts back to Obama’s deportation record. Direct action keeps up the pressure and helps shape public opinion, challenging the “Democrats good, Republicans bad” narrative that has facilitated the administration’s deportation and attrition policies.

I can’t speak for the participants or organizers of the Dream 9 and Dream 30 actions or for the undocumented communities they represent. But to me, the actions represent a challenge to the border as an illegitimate construct, built in a misguided attempt to protect status and power in a changing world. The actions question the global immigration and citizenship regime which, perhaps more than any other single factor, perpetuates extreme social, political, and economic inequality. I believe the actions:

  1. Pushed for a new “Dreamer” particular social group to be defined as a protected ground under asylum laws.
  2. Reunited families.
  3. Helped shift control over policy messaging and strategy back to undocumented people themselves and away from citizen allies purporting to speak for undocumented communities.
  4. Put pressure on the administration and the Democrats to enact further administrative reforms.
  5. Raised awareness of the large number of exiled Dreamers and their family members, most of whom will be shut out of legislative or administrative reforms as currently proposed.

Too much, I have become hardened against the suffering endured by my undocumented clients. Perhaps it’s a necessary response to continue to do the work. Even so, I was powerfully affected by a stream of Facebook posts showing happy reunions with family and friends as members of the group finally made their way back to their homes in November. The Dream 9 and Dream 30 bravely challenged the morally illegitimate laws that would separate them from their families and their dreams. As the Twitter hashtag for the actions succinctly puts it, #BringThemHome.

Open Borders Benefit First World Citizens Too

A primary advantage of open borders is the opportunity provided to Third World citizens to escape their impoverished conditions and find a better life in more economically advanced countries.  While open borders would probably most benefit those in the Third World,  its advantages for citizens of more advanced countries should not be overlooked.

Many First World citizens might benefit under open borders from the positive economic impact of a greater influx of immigrants into their countries.  In response to a 1990 Alexis de Tocqueville Institution survey question “What reforms in U.S. immigration laws or quotas would you recommend to improve the U.S. economy,” the late economist Milton Friedman, 1976 Nobel laureate, stated “From an economic point of view, unlimited immigration, but limiting access for a decade or so to welfare and similar benefits would be ideal.”  And Philippe Legrain writes in Immigrants: Your Country Needs Them that immigrants “… bring different skills, varied views, diverse experiences and a zeal for self-improvement that combine with the talents of local people to boost innovation, productivity and economic growth.” (page 19)

Another advantage of open borders for citizens of countries with advanced economies would be the expanded opportunity for them to move to another country in search of economic opportunities.  In fact, some Americans are currently emigrating to other countries to find work, especially given the high unemployment rate in the United States and the millions of people who are considered long-term unemployed   (See also here.)   An article on the NBC site  states that “Reversing a trend that’s perhaps 400 years old, workers are leaving America to find opportunity elsewhere.”  The article refers to Americans who have found work in China, Australia, and the United Arab Emirates.  An emigrant to China was reported as saying that her standard of living was better there than in the U.S.  In a report that collected stories from Americans who are struggling in the U.S. job market,  an American teaching English in South Korea, referring to fellow Americans working abroad, stated that “… for many of us the best way to find a steady job or pay off a student loan is to leave America.” The NBC article notes that the U.S. government has had difficulty determining how many Americans are working overseas, although it could be in the millions.

Hein de Haas, blogger and co-director of the International Migration Institute, notes that Europeans are similarly looking for work outside of their countries’ borders.  He writes that many Irish are emigrating to a number of English speaking countries, Portuguese are emigrating to France, Brazil, Mozambique, and Angola, Greeks are emigrating to Germany, Australia, and Turkey, and Spaniards are moving to a number of other European countries and Morocco.  Mr. de Hass states that “what many people ignore… is that some African economies are growing fast, and can nowadays offer better opportunities to skilled, entrepreneurial Europeans than the stagnating economies of Southern and European Europe.”

Many from advanced countries are emigrating to Mexico, according to a New York Times article entitled “For Migrants, New Land of Opportunity Is Mexico.”  Almost 70,000 Americans were legally working in the country in 2011, as were tens of thousands of Europeans, Canadians, and Asians.   A French citizen moved to Mexico, according to the article, “… because college graduates in France were struggling to find work.  He has stayed here… because the affordable quality of life beats living in Europe–and because Mexico offers more opportunity for entrepreneurship.”  He has opened a successful communications business in Mexico and said, “‘We’re not going back to France… The business is doing well and we’re very happy in Mexico.’”  The article notes that “… Spanish filmmakers, Japanese automotive executives and entrepreneurs from the United States and Latin America arrive practically daily–pursuing dreams, living well and frequently succeeding.”

Some American retirees are also emigrating to improve their quality of life.   Some who moved to Mexico between 2007 and 2010 had houses and stock that had lost a significant amount of value.  More emigration to cheaper countries would, in the opinion of Don Peck of the Atlantic, “… give recession-battered Baby Boomers more choices and opportunities.”

I am not an expert on immigration policies throughout the world, but the apparent ease with which many citizens of advanced countries emigrate to other countries is probably due to the substantial financial, educational, and occupational resources they possess compared to emigrants from Third World countries.  In the New York Times article on emigration to Mexico, it was noted that “most of the immigrants who have the resources or corporate sponsorship to gain legal residency here come from the United States and Europe. The thousands of Central American immigrants coming to Mexico without visas — to work on farms or in cities, or to get to the United States — are often greeted with beatings by the Mexican police or intense pressure to work for drug cartels.”

However, none of this is to suggest that open borders currently exist for First World citizens, with the exception that citizens of European Union countries can freely look for work in other EU countries. (See also here and here.)  Americans are sometimes deported from Mexico,  Canada,  and Europe (see here and here), and Europeans are deported from Australia  and the U.S. (see here and here).  John Lee has shared that his American employer no longer sponsors work visas for foreigners, including Canadians, because of the cost and uncertainty involved.

A universal acceptance of open borders would provide insurance against fluctuations in the health of national economies.  It would allow citizens in countries who experience flagging economies in the future to seek employment in economies with greater opportunities.  Consider the dramatic vacillations in Spain’s economy.  According to the Atlantic, after years of being a “poor, backward country,” in the late 20th century it quickly evolved into a “… modern, wealthy, technologically-advanced European social democracy…” with a single digit unemployment rate by the mid-2000s.  However, the 2008 global economic crisis has led it to have one of the highest unemployment rates in the developed world.  Fortunately, Spain’s membership in the EU has allowed its citizens the opportunity to seek work in other EU countries.

Similarly, the relative ease with which citizens from advanced countries can currently move around the world, even in the absence of open borders, may not last.  Perhaps one day Americans, Canadians, and Europeans may have great difficulty emigrating to China, Brazil, or Africa, for example.  Establishing durable, universal open borders would help insure against the future closing of borders in many countries.

Even in the absence of a compelling need to emigrate to find work in another country, the unobstructed ability to move to another country would enrich the lives of many citizens of First World countries.  Victoria Ferauge has referred to the “joy of discovering a new country and building a life and a career there,” and Paul Crider has stated that “migration is a valuable right and capability for all kinds of people, not just those who ‘need’ it to escape poverty or persecution.”   Some people are happier living in a country other than their own, economic (and political) considerations aside.

Citizens of advanced countries have much to gain from open borders.   And, as Mr. Crider has noted, appealing to their self-interest may make the case for open borders more attractive to them than focusing on how it can help people in the Third World.

Weekly link roundup 26

Here’s our weekly installment of links from around the web (see here for all link roundups). As usual, linking does not imply endorsement.

The stability of excluding migrants from the franchise: part 1

One of the main concerns surrounding open borders, or radical immigration liberalization in general, is political externalities: migrants may vote in ways that destroy the prosperity-creating institutions of their destination countries. This would be bad not merely from a citizenist point of view, but could also entail killing the goose that lays the golden eggs, thus leading to an overall decline in global utility. To minimize this (potential) danger, a keyhole solution that has been advocated is to significantly increase the length and complexity of the path to citizenship.

My co-blogger John Lee has argued that open borders can be separated from open citizenship both in theory and practice. My co-blogger Nathan Smith, in his DRITI proposal for migration to the United States, has suggested that migrants have some fraction of their income be stored in a mandatory savings account, and once the amount in the account crosses a threshold, they can become citizens, if they are willing to forfeit the amount to the state. This creates a de facto waiting period as well as what amounts to a citizenship tariff.

Stability and other dimensions

In a previous blog post, I had written that any proposed keyhole solution needs to be evaluated along four dimensions:

  • Moral permissibility
  • Desirability
  • Feasibility
  • Stability

The purpose of this post is to consider the keyhole solution of an extended (or, in the limit, an infinite) waiting period for migrants to obtain citizenship (and hence access to the franchise) along the fourth of these dimensions, namely stability. In other words, I’m asking the question: suppose a political compromise were somehow worked out where a new visa class were created whereby it would be very easy to migrate — temporarily or permanently — but very difficult, or almost impossible, to obtain citizenship, and therefore, to vote. Would such a compromise be stable?

Before I begin discussing this, a few brief words about the first three dimensions. Each of these dimensions is very tricky:

  • Moral permissibility is something that many people would disagree on. Is a society where a large fraction of the resident population is disenfranchised morally permissible? I think it is, for similar reasons as those that John Lee offers in his blog post. But it’s a difficult and contentious issue, as Nathan has noted in the past. So I’ll duck the question entirely in this post. Obviously, one would need to seriously consider moral permissibility before actually advocating or lobbying for such a proposal, but the goal of this post is more limited: let’s first figure out if the solution can be stable! I do think that the keyhole solution is, at any rate, not so obviously morally impermissible as to make it pointless to even study it along the other dimensions.
  • Desirability would depend crucially on what we understand of the research on political externalities and the arguments that free migration might kill the goose that lays the golden eggs. My co-blogger Paul Crider recently argued that a lengthy path to citizenship was undesirable, contra co-blogger Nathan. To say something intelligent about this would require a lot of space. Suffice it to say that concerns about political externalities are sufficiently plausible that one can make at least a prima facie case that keyhole solutions should be investigated.
  • Feasibility would be something that depends heavily on the current political climate and the specific country where the proposal is being considered. It’s a topic worth exploring in its own right. I believe it makes sense to investigate stability before investigating feasibility, because one of the arguments for infeasibility is that people (whom one would need to get on board for feasibility) are concerned that the solution (of delaying or denying citizenship) isn’t stable.

Stability and the political tug-of-war

My ultimate goal will be to examine historical instances of disenfranchised segments of the resident population and when, if ever, these segments of the population got to vote. Prior to doing that, I’d like to explore a theoretical framework intended to address the question. The framework begins with the observation that decisions about enfranchisement and disenfranchisement are controlled by the elected governments, and the politicians here are concerned about getting re-elected. Although it is not the only motive, one major constraint affecting what politicians can afford to support is the effect it has on their electoral prospects.

A year ago, I had blegged for which of four possible positions on immigration and US politics readers found most plausible:

  1. Immigration good for Democrats, bad for Republicans regardless of either party’s position on immigration. In other words, even if the Republicans took a pro-immigration stance, more immigration would still hurt them. The electing a new people argument offered by Peter Brimelow of VDARE has this structure. Mark Krikorian of CIS also makes similar arguments. This argument naturally appeals to:
    • Those trying to sell restrictionism to the Republican Party.
    • Those trying to sell pro-immigration policies to the Democratic Party.
  2. Immigration good for Republicans, bad for Democrats regardless of either party’s position on immigration. I don’t know anybody who has taken this position, but I’m adding it for logical completeness. This argument naturally appeals to:
    • Those trying to sell pro-immigration policies to the Republican Party.
    • Those trying to sell restrictionism to the Democratic Party.
  3. Immigration good for whichever party adopts a more pro-immigration stance: In this view, both parties need to compete to be more pro-immigration, and whichever party manages to be more pro-immigration will benefit more from immigration. This seems to be the view of many open borders advocates and other pro-immigration forces, such as my co-blogger Nathan here and here. This argument naturally appeals to pro-immigration forces trying to simultaneously make inroads into both parties, setting up a “race to open borders” between both parties.
  4. Immigration bad for whichever party adopts a more pro-immigration stance: In this view, both parties gain from adopting a more restrictionist stance. Restrictionists who are trying to make a broad-based appeal to both parties would find this argument appealing. In this view, the vote of people with restrictionist sympathies matters a lot more than the votes of potential immigrants and their apologists. Thus, whichever party adopts a more pro-immigration stance will lose a lot more in terms of restrictionist votes, even if they gain a few immigrant votes. Such an argument, if believed, would lead to a “race to closed borders” between both parties. Some restrictionists have made these types of arguments, though they’ve largely focused on (1).

One can consider a similar story with respect to excluding migrants from the franchise. I’ll form the story more generally, since the purpose here is to consider historical examples around the world, not to study modern-day politics. Consider a country with a de facto two-party system where the parties are A and B. Consider the following possibilities for what might happen if migrants excluded from the franchise (under a keyhole solution compromise) were given the franchise:

  1. This would significantly improve the electoral prospects of party A, regardless of whether party A or party B plays they key role in granting them the franchise.
  2. This would significantly improve the electoral prospects of party B, regardless of whether party A or party B plays they key role in granting them the franchise.
  3. This would significantly improve the electoral prospects of whichever party were seen as taking the lead, or being more actively involved, in giving them the franchise.
  4. This would significantly improve the electoral prospects of whichever party were seen as less enthusiastic, or more opposed, to giving them the franchise. One possible story for this is nativist backlash against whichever party is seen to be championing migrants.

In the earlier discussion of Democrats and Republicans, (3) was the ideal position from the pro-immigration perspective, and (4) was the ideal position from the restrictionist perspective. In some sense, the story is flipped now: when trying to judge the stability of the keyhole solution, (3) is the worst possibility (both sides have incentives to compete for granting migrants the franchise), and (4) is the best (each side wants to avoid being seen as friendly to the idea of extending the franchise to migrants). (1) and (2) are intermediate: if it is known in advance that one specific party would benefit by granting the franchise, then the other party would oppose it. If decisions to grant the franchise require supermajorities in the legislatures, and political power is approximately evenly distributed in the legislature, the existing arrangement of denying the franchise would be relatively politically stable.

Although (3) is in some ways the worst for stability, it is plausible to imagine the keyhole solution being stable even if (3) were true, as long as one party had accumulated a huge lead over the other in terms of being seen as friendly to the idea of the migrant franchise. In this case, the other party would need to either expend a lot of effort overtaking its competitor in terms of how friendly it appears to the migrant franchise, or it could just block the legislation to grant migrants the franchise. The latter course of action might well prevail for a fair length of time, if for no other reason than status quo bias.

Stability and feasibility: it’s relative

One plausible argument is that if a keyhole solution were sufficiently feasible as to actually get implemented, it would also be stable. In this view, then, stability is not something to be worried about per se, and all our energies should be focused on the question of feasibility. However, this is not completely satisfactory particularly in the context of the franchise because of the incentives (for members who agree to the original compromise) to later defect and enfranchise the migrants, particularly if (3) is the most valid.

The relevant question (that we will consider for each example we explore) is what, historically, has been relatively easier: liberalizing migration, or enfranchising existing migrants?

Short versus long run: a brief note

The answer to the question of whether a particular electoral arrangement is stable depends to a considerable extent on the timeframe over which the arrangement is considered (as some of the historical examples below, that I’ll discuss in my next blog post, shall clarify). One can critique practically any arrangement by arguing that it will not be stable over the next 100 or 200 years. But such a critique, to be taken seriously, would need to be clarified in at least two ways.

  1. The critique should point out to specific features of the proposed arrangement that make it more unstable relative to other arrangements. It is not enough to point out that the arrangement will be unstable. Even the status quo isn’t particularly stable over a sufficiently long time frame. The world in 2013 looks different — very different — from the world in 1913.
  2. The critique should elaborate on whether the factors that make the arrangement unstable over the long run also affect our assessment of its desirability over the longer run. In other words: does the keyhole solution self-destroy because the problem to which it was a solution became irrelevant? To the extent that this is the case, the long-term instability of the keyhole solution is not a problem. Let’s say, for instance, that a concern is that if migrants are given a quick path to citizenship, then they will vote badly. Somebody proposes a keyhole solution of a lengthy path to citizenship. One might critique such a keyhole solution on the grounds that in a century, most people will be very loath to make any distinctions based on nationality of origin or length of stay in granting citizenship, due to a shift in global values surrounding human rights and the relationship between people and political institutions. This is plausible, but one would simultaneously need to consider whether this changed relationship also nullifies, or at any rate, weakens, the original political externalities concern. On the other hand, if the instability of the keyhole solution arises from factors that make the underlying problem worse (for instance, a world war or large-scale ethnic conflict) then indeed this is a problem.

As Nick Beckstead and Carl Shulman explained, the long run is very important, if we care about humanity without much bias for the present. And the long-run effects of open borders and/or keyhole solutions are very important. To the extent that we can speculate intelligently about these, or even better, make guesstimates, such speculation and guesstimates have considerable value. Nonetheless, we should be wary of the risk of making the future a Rorschach test for whatever we prefer to believe about the world, a point that Will Wilkinson eloquently made in a related context.

What historical examples are useful for understanding the question?

Any arrangement that has persisted for a reasonable length of time in the real world can safely be called stable, concerns of tipping points notwithstanding. There may well be other stable arrangements that have not yet existed in the real world, so this is just a starting point. The most direct evidence in this regard would be historical examples of large non-citizen populations that arose as a result of guest worker programs or illegal immigration, and the extent to which there were pressures to grant citizenship and the franchise to the large numbers of non-citizens that accumulated as a result of these programs.

In my next post, I will look at the following historical examples.

  • In the United States, slavery was ended after the Civil War of 1861-1865. However, blacks (including freed slaves) were de jure and de facto barred from political participation on a significant scale via Jim Crow-era voter literacy tests, until the Civil Rights Act of 1965 (there were admittedly a number of smaller civil rights acts in the years leading up to that). The arrangement appears to have been stable for a considerable length of time, and does not seem to have attracted any vocal political opposition until the end of World War II, although there were unsuccessful legal attempts to overturn other parts of Jim Crow-era legislation such as enforced segregation. In private conversation, Ilya Somin cited this as an example of how excluding people from the franchise can be stable for considerable lengths of time, and my co-blogger Chris Hendrix cited the same example in an EconLog comment. Is that a justified inference to draw? What other lessons can we draw from this historical fact? (Note that the purpose here is to assess stability, not to discuss the moral permissibility or desirability of the exclusion from the franchise).
  • In relative terms, have pushes for granting citizenship (and hence the franchise) to existing non-citizen residents (including both legal and illegal immigrants) been more powerful than pushes for expanding migration, or less? The answer is not clear-cut, and a reasonable case could be made either way. In the United States, for instance, a typical “comprehensive immigration reform” proposal typically focuses on (a) creating a path to citizenship for existing residents (the pro-immigration side), (b) more resources for enforcement and border security (the restrictionist side). This is what is considered a reasonable compromise. Even expanding high-skilled immigration gets low priority in comprehensive immigration reform bills, and guest worker programs are opposed by both the territorialist left and citizenist right (loosely speaking). On the other hand, “comprehensive immigration reform” proposals rarely make headway anyway (the only major amnesty in the US was in 1986, though Europe seems to have had amnesties on a more regular basis). Expansions of legal migration opportunities have happened in small steps, but more steadily. The evidence is decidedly mixed.
  • Germany has had a large Gastarbeiter (guest worker) program and it has been argued that, for a considerable period of time, there was no political pressure to grant citizenship to these guest workers (a large number of them from Turkey), despite their forming a large mass of possible voters. How true is this? This question is worthy of further investigation.
  • Other examples worth looking at might be: how did the Reform Act of 1867 (enfranchising the British working class and lower middle class), championed by Benjamin Disraeli, affect the electoral landscape in Britain? How did the 19th amendment to the United States constitution (granting women the right to vote), favored mainly by the Democratic Party, affect US electoral politics? How sensitive were the votes of Jews to the perceived anti-Semitism of European parties?

Weekly link roundup 25

Here’s our weekly installment of links from around the web (see here for all link roundups). As usual, linking does not imply endorsement.