Tag Archives: racism

Journalist Stephan Faris: Modern border regimes are apartheid

Border controls that prevent innocent foreigners from travelling peacefully are in every meaningful way identical to laws enshrining racial segregation and apartheid. Both aim to exclude people from peaceful participation in civilised society, not because of anything they have done wrong, but purely because of a circumstance of birth that they had no choice over.

Open borders advocates have long compared the modern border regime to apartheid and other forms of racial segregation. But American journalist Stephan Faris has done us one better: in his brief book Homelands: The Case for Open Immigration last year, he outlined exactly why and how we shouldn’t let artificially-drawn borders delude us into thinking our immigration laws don’t somehow constitute an arbitrary form of discrimination comparable to apartheid. Stephan was recently gracious enough to spare some time for an email interview with us, which we’ll be publishing next week.

In the mean time, I’d strongly urge you to head over to Amazon and buy the book; it’s currently listed for under 3 US dollars, and is only thirty pages. I finished the book in one sitting, and felt I got far more than my money’s worth. The intro blurb from the publisher:

As a child, Stephan Faris nearly failed to qualify for any country’s passport. Now, in a story that moves from South Africa to Italy to the United States, he looks at the arbitrariness of nationality. Framed by Faris’s meeting with a young orphan as a reporter in Liberia and their reencounter years later in Minnesota, Homelands makes the case for a complete rethinking of immigration policy. In a world where we’ve globalized capital, culture, and communications, are restrictions on the movement of people still morally tenable?

I’d say the book delivers on these claims. But rather than take my word for it, why not preview an excerpt and judge for yourself? Deca, the publisher of Homelands, has allowed us to publish an edited excerpt of the book — one that doesn’t give you the full colour of Stephan’s stories or arguments, but should whet your appetite for the full-length item:

After some 250 years of nationalism, the segregation of the world’s population into separate countries seems as natural as the division of the globe into continents. So it’s important to remember that restricting immigration is a political choice, one whose burden is carried largely by the less fortunate.

Joseph Carens, the philosopher, is right to describe nationality as a birthright reminiscent of medieval feudalism. But as I discovered during my time in Africa, you needn’t go back as far as the Middle Ages to find an unsettling analog to our closed borders. If I’ve come to the conclusion that our immigration policies are one of the great moral challenges of our time, it’s in part because they very much resemble one of the most clear-cut acts of injustice in recent history: an attempt by South Africa’s apartheid regime to preserve racial privileges in the face of worldwide opposition.

Apartheid was clearly becoming untenable, but they couldn’t contemplate giving up white privilege. So they settled on a different solution, one that would abolish overt discrimination but still allow them to retain their grip on social, economic, and political power: a partition of South Africa modeled explicitly on existing national borders, with the nation divided into rich and poor countries.

South Africa had already set aside land for the native population. Thirteen percent of the country was designated as native reserves, known as “homelands,” where black Africans had to live unless they could prove they were working for a white employer. Movement in and out of these homelands was restricted. The Pass Laws required nonwhite citizens to carry “passbooks” with their name, address, and photograph or risk imprisonment and expulsion back to the reserves. It didn’t seem like a big leap to go from “homelands” and “passbooks” to “countries” and “passports.”

The idea didn’t seem as crazy then as it might today. In the period after World War II, new countries were erupting out of disintegrating colonial empires all over the globe. The border between India, Pakistan, and what would later become Bangladesh wasn’t drawn until 1947, when a British administrator was given five weeks to decide where the division would run. All across Africa, new nations were hoisting new flags: Ghana in 1957, Guinea the year after. By 1960, the continent had seen the creation of sixteen new independent states, from Somalia to Senegal, from Mali to Madagascar.

At the same time, all around South Africa, new nations were coming into being. The Republic of Botswana, just to the north, elected its first government in 1966. Swaziland, in the east, declared independence from the United Kingdom in 1968. Most remarkable of all was the transformation of the British Protectorate of Basutoland, a tiny landlocked colony completely surrounded by South Africa. In 1966, it pulled down the Union Jack and joined the roster of nations as the Kingdom of Lesotho.

If such a miniscule patch of land could stand alone as an independent country, why not the 13 percent of South African territory set aside as native reserves? “The dream was: how do you get rid of the immorality of apartheid?” said [former South African Minister Roelof Frederik] Botha. “How do you get rid of the reprehensible suppression and racial discrimination? If a sufficient number of black people in their homelands—exactly like Swaziland, like Basutoland, like Botswana—if they could also become independent, then maybe the whites might not feel that much threatened anymore by the overwhelming majority of black people. And apartheid, in its nefarious sense, in its reprehensible sense, could be dismantled.”

“So the idea took root,” he said. “Let us make these nations independent. They can have their own parliaments, their own governments, their own courts, their own judges. Each one must have a capital and a parliament and a president and a prime minister and a cabinet. They will be sovereign, and they will be independent. And then you would have a sort of equality, a constellation of southern African states.”

Blacks could have their independence. But when they came to where the work was, they would have to do so as immigrants. “The problem was reality,” said Botha. “It did not resolve the issue of racial discrimination. So the dream was turned into a nightmare. It was a dream that was not based on reality.”

To be sure, there are differences between the global system of immigration restrictions and South Africa’s attempt to entrench white privilege through the partitioning of its territory. But it should give us pause to think that when the architects of one of history’s most recognized evils set out to codify their system of injustice, they looked at our borders and passports and saw a lot to like. Intentions aside, the biggest difference between the two is that the South Africans wanted to draw the boundaries and assign the nationalities. We make do with the existing ones.

What’s most striking about the story of South African apartheid is how similar it is to our efforts to restrict immigration today. Numerically, the parallels could hardly be more perfect. In 1994, there were six times as many nonwhite South Africans as white South Africans, according to data compiled by Michael Clemens. Whites earned roughly eight times as much as their black or mixed-race peers. Today, there are roughly six times as many people living in low- and middle-income countries as there are in high-income countries. Residents of rich countries typically earn about seven times the average income of the rest of the world. If numbers are anything to go by, ending economic and geographic—not to mention political—segregation in South Africa was a bigger challenge than dropping barriers to immigration would be today.

There are endless practical objections to allowing people to move where they can best profit from their willingness to work. But there were practical objections to ending apartheid as well, and practical objections to ending slavery in the United States. Few would argue that the practical objections outweighed the moral imperatives.

Again, the full 30 pages are worth buying. I think Stephan very concisely sums up the fundamental moral case for open borders, and in a very compelling way. Check back next week for our interview with Stephan!

The image featured at the top of this post is of a man crawling naked through the South African border fence near Beitbridge, Zimbabwe, making his way to South Africa. Originally published in the Cape Times, it was taken by Henk Kruger in 2008, and won the runner-up prize for World Press Photo of the year.

Paul Krugman and the Immigration Act of 1924

In 2006 Paul Krugman, prominent liberal economist and New York Times columnist, expressed concern that low-skilled immigration could threaten the American welfare state.  Due to this supposed threat and the claim that the wages of some Americans were lowered because of immigration, he supported a reduction in the number of low-skilled immigrants entering the U.S. (See here for this site’s page on Mr. Krugman.)

So it wasn’t surprising when Mr. Krugman recently declared that he didn’t support open borders.  What was surprising was that he justified immigration restrictions that were enacted in the early 1920s. He stated that without those restrictions the New Deal in the United States “wouldn’t have been possible,” in part because “…there would have been many claims, justified or not, about people flocking to America to take advantage of welfare programs.” The New Deal of the 1930s, as many readers may know, involved the establishment under Franklin D. Roosevelt of government programs which continue to exist today, such as monetary support for the elderly (Social Security) and aid to poor mothers and their children.

The immigration legislation to which Mr. Krugman referred included the Immigration Act of 1921, which established the first numerical restrictions on European immigration.  It was followed by the longer lasting Immigration Act of 1924, which also involved numerical restrictions and a national origins quota system in which visas were apportioned predominately to immigrants coming from northwest Europe. Maldwyn Jones, author of American Immigration, notes that:

it was American policy which brought to an end the century-long mass movement from Europe. The adoption of the quota system… all but slammed the door on the southern and eastern Europeans who had formed the bulk of the arrivals in the prewar (World War I) and immediate postwar periods. The result was that European immigration slumped from over 800,000 in 1921 to less than 150,000 by the end of the decade. (page 279)

The legislation was in many respects the model for our current immigration system, with its numerical limitations on immigration from individual countries, numerical limitations for certain categories of immigrants,  use of preference groups within these categories, consular control over permission to immigrate, and the creation of the Border Patrol. From an open borders perspective, it was a disaster, ending a long period of generally open immigration from Europe.

Whether or not Mr. Krugman is correct or not that the 1920s immigration restrictions helped to provide a political environment conducive to passing the New Deal legislation, there are two reasons why his support for the restrictions are surprising. One is that the legislation was largely racist. The Immigration Act of 1924 was inspired by racist sentiment and, as noted, discriminated against the immigration of people from eastern and southern Europe, who were perceived by some to be racially inferior. As John Higham has written in Strangers in the Land, as the House of Representatives worked towards the 1924 legislation, the champions of the legislation:

now largely ignored the economic arguments they had advanced in behalf of the first quota law three years before. Instead, they talked about preserving a ‘distinct American type,’ about keeping American for Americans, or about saving the Nordic race from being swamped. The Ku Klux Klan, which was organizing a vigorous letter-writing campaign in support of the Johnson bill, probably aided and abetted this swell of racial nativism… (page 321)

The second reason why it is surprising Mr. Krugman would be supportive of the 1924 immigration law is that because it, combined with other restrictionist maneuvering, blocked many of Europe’s Jews from fleeing the Nazis during the 1930s and 1940s. David Wyman has written in Paper Walls that,

if, in the crucial years from 1938 to 1941, the world had opened its doors to the victims of persecution, the history of Europe’s Jews from 1942 to 1945 would have been significantly different. Instead the barriers held firm and relatively few refugees found asylum. (page xiii)

Mr. Wyman also has noted that although America received more refugees (about 250,000) from Nazism than other countries during the period 1933 to 1945 (p. 209),  “the total response of the United States… fell tragically short of the need.” (preface) According to Mr. Wyman, it was the 1924 law that was the fundamental barrier to the people seeking refuge in the U.S., noting that “the quota limitations formed by far the most significant bulwark against large-scale American rescue of refugees.” (p. 210)

It is difficult to determine the number of would-be refugees who were killed because of U.S. immigration restrictions.  However, the following information from the United States Memorial Holocaust Museum site suggests the large numbers who were put at risk from the restrictions:

In late 1938, 125,000 applicants lined up outside US consulates hoping to obtain 27,000 visas under the existing immigration quota. By June 1939, the number of applicants had increased to over 300,000. Most visa applicants were unsuccessful.

The fate of 908 refugees aboard the ship named the St. Louis who were denied refuge in the U.S. in 1939 is more certain, with 254 perishing in the Holocaust.  Mr. Wyman also notes that other refugee ships, either without a place to land or planning to land illegally in Palestine, sank, drowning hundreds. (pp. 38-39)

Mr. Krugman must surely be bothered by the racist nature of the 1924 legislation and must certainly wish that the U.S. had been more welcoming to refugees during the Nazi period. Furthermore he has noted that he is “grateful that the door was open when my grandparents fled Russia.” Had his grandparents tried to enter America after the 1924 restrictions were in place, they may not have been allowed in and may have perished at the hands of the Nazis.

How does Mr. Krugman square all this with his support for the 1924 immigration legislation? Was the suffering associated with the legislation an acceptable sacrifice in order to ensure that the New Deal legislation could be passed? Mr. Krugman might respond to this question by wishing that the U.S. had adopted a more generous refugee policy during the Nazi period within a system of immigration restriction, but the fact is that the U.S. didn’t.

Of course, even setting aside the history of the American immigration system’s response to the refugees fleeing the Nazis, the suffering associated with immigration restrictions are immense. Co-blogger Nathan Smith challenges Mr. Krugman’s suggestion that the American welfare state is of higher moral value than open borders.  He writes that: 

Krugman wants a social democratic welfare state even at the cost of excluding most of mankind by force. I start from a utilitarian universalist ethics and conclude that its need for immigration exclusion renders the welfare state a moral travesty. 

Nathan argues that a truly moral anti-poverty policy would focus on alleviating the extreme poverty of the Third World rather than the poverty found in the U.S.:  “Domestic redistribution is at best from the very-rich to the relatively-rich.”  He writes that “the best thing America could do for the poor is to open the borders.”

I support both open borders and the welfare state.  Fortunately, perhaps with the use of keyhole solutions, countries may be able to have both. Mr. Krugman should explore this possibility, as well as reconsider his support for the 1924 immigration legislation.

Featured image: Paul Krugman’s press conference following his receipt of the Nobel Prize in Economics, by Prolineserver from Wikimedia Commons.

The Use of Race As An Argumentative Tactic

Advocates of immigration reform occasionally feel tempted to use accusation of racism as an argumentative tactic. Most recently Minority Leader Nancy Pelosi, Attorney General Eric Holder, and other high ranking Democrats have suggested that the reason their Republican counterparts oppose immigration reform is due to the race of most migrants.

There is certainly a subset of open border opponents that could be classified as racists and oppose open grounds either due to a belief that migrants taint their superior race or that racial homogeneity is itself desirable and  migrants pose a danger to this. Even if this is the case calling out our opponents as racists is counterproductive.

Accusing opponents of racism is a poor argumentative strategy because it antagonizes them. More importantly this strategy antagonizes those who were previously sympathetic but who identify with open border opponents. In the current immigration debate in the United States it causes pro-reform Republicans to defend their peers out of political tribalism. Open border advocates in the US are reminded that several leading Republicans support immigration reform including: the Bush family, Senator John McCain, Senator Lindsey Graham, Governor Rick Perry, and many others. Using race as an argumentative tactic could very well cost us these allies.

In an earlier post Vipul Naik discusses similar points to these and elaborates on why accusations of racism make for poor argumentation. I agree with Naik that accusing open border opponents of racism directly is poor strategy, but leading your opponent to reveal themselves as racists might be good strategy if done properly.

In argumentation one is considered to have conceded a point to their opponent if they do not attempt to refute claims made. As such, while I do not favor directly calling our opponents racist, I do not believe we should implicitly concede to them that migrants and natives are significantly different from one another culturally.  A better tactic would be to emphasize that migrants aren’t significantly different from the native population and that it is the burden of our opponents to prove otherwise.

For example I personally advocate that the largest current migrant group to the United States, Hispanics, are ‘westerners’ and that the perceived differences between Hispanics and natives are smaller than they first appear. I use the term ‘westerner’ here to refer to a set of cultural pillars that are associated with Western Europe and those nations that have been influenced by the region through colonialism or other forms of prolonged cultural exchange. This includes the Americas, Australia, and certain regions of Africa and Asia such as South Africa and Japan respectively.

The United States views itself primarily as a ‘western’ nation, but what is considered ‘western’ and who is considered ‘western’ varies throughout time. There was a time when the Irish, Germans, and other Europeans weren’t seen as westerners and only Christian Anglo-Saxons from the United Kingdom and their American descendants fit the bill.  Jews weren’t considered westerners even if their ancestry was firmly entrenched in the US or the United Kingdom, but today they too are considered westerners.

The definition of ‘westerner’ has since changed and will continue to change but today the major prerequisites are:

As I often remind friends who are skeptical about open borders, Hispanics are primarily Christian and speak a European language (Spanish, Portuguese, or English) as a native tongue. Hispanics all come from countries where republicanism is the norm. Mexico and Brazil both experimented with monarchies in their early histories, but have long since been staunch republics. The only extant monarchies in the Americas are Canada and the Anglo Caribbean.  A Queen of Jamaica exists, but no Hispanic country recognizes a monarch over them.

United States popular culture prevails throughout Latin America. Fidel Castro once remarked that Mexican children knew Disney characters better than their own history. The comment offended Mexican officials but it was made with merit. No one in my extended family, most of whom were born and raised in Mexico, know that Mexico was ruled by Emperor Maximilian during the early 19th century. They can easily list Disney characters and keep up with the latest American fads though. In my family’s defense the 2010 Civics Report Card released by the US Department of  Education showed that US residents weren’t that well versed in civics. Arguably this shared disdain for civics with their northern cousins is another example of how Hispanics are a western people.

Hispanics are westerners  as far as religion, politics, linguistics, and popular culture are concern. I further argue that the third largest current migrant groups in the United States, Indians, are also westerners.

The Indian subcontinent was invaded and colonized extensively by European powers beginning in the 16th century. British Raj reached its peak during the 19th and 20th centuries. The Indian subcontinent was ruled by European powers for nearly half a millennium and only recently did it gain independence in the form of various polities, the largest being the Union of India. By no means should this post be taken to mean that European colonization of the Indian continent was morally right. However it cannot be denied that it changed the subcontinent and left it western character.

Politically India is the world’s largest democracy, a title that it has openly embraced. The last vestiges of India’s attachment to monarchy were severed in 1950 when a republic was proclaimed.

India today has twenty two official languages and several more with varying degrees of recognition. The working language of the Indian Union however is English with 350 million speakers, most of whom speak it as a second language. Hindi, the official language of the Union, has a larger amount of speakers at 422 million. Despite this English enjoys a preferential status as it is a neutral language that doesn’t favor any linguistic group and facilitates trade abroad.

Knowledge and use of English among Indian migrants in the US is greater still. According to the US Census’ 2012 American Community Survey approximately 80% of Indians in the US speak English ‘very well’. This is superior to the Mexican community’s 68% or Argentine’s 74%. These results shouldn’t be surprising as migrants self-select and those most likely to migrate and settle in the United States long term are those most likely to already have a deposition to become western.

The only measure by which Indians fail to qualify as westerners is in terms of religion. Arguably this is the least important qualifier as Judeo-Christianity is being challenged by secularism for dominance in the west. Linguistically English still enjoys a favorable position in India proper and among Indian migrants in the US. It is extremely doubtful that India will be trading its democracy for a new Mughal Empire anytime soon. As a matter of fact India is currently engaging in an five-week national election consisting of 814 million voters.

None of this should be misunderstood to mean that there are not differences among the world’s cultures. My point here is that we should emphasize similarities instead of differences when discussing immigration policy. As an argumentative tactic we should force our opponents to elaborate on what they mean by cultural differences and fight them for every inch. If they claim that Hispanics are different because they speak Spanish instead of English let us ask if they have similar views in regards to Germans. Germans are the United States’ largest ancestry group in no small part due to massive migration and various German languages still persist to this day, including Pennsylvania Dutch among the Amish people. If our opponents claim their concern is that Hispanics are primarily Catholics, ask them if they have similar views towards the Irish or ask them to elaborate on which sect of Christianity they believe the United States should adopt. Mormon?

It is well possible that our opponents will retort that they would have opposed both German and Irish migration. This is okay. If our opponents do this they will isolate those of German and Irish descent who might otherwise have been inclined to listen to them.  Ultimately the goal of public debate is not to convince an opponent but to persuade the minds of those yet undecided or who are on the fence.

Asking an opponent to elaborate on how migrants and natives are different culturally is a good tactic when an immigration debate moves away from economics and towards culture as it causes opponents to attempt to get specific without offending natives who fail to meet the prerequisites for being considered western. In comparison calling our opponents racist ends the conversation or isolates those who might otherwise be sympathetic to open borders.

When using this tactic one should attempt to make it clear that they don’t necessarily support basing migration policy on whether a group is western or not. Co-blogger Chris Hendrix has addressed this issue previously. The purpose of this tactic is to get your opponent to expend energy on detailing on what grounds migrants are different from natives culturally and to hopefully have him isolate himself.

Finally, when using this argumentative tactic one should not forget to make the economic case for open borders. Immigration debates tend to start off discussing the economics of immigration. If the open borders advocate makes a strong economic case then the debate will move onto more abstract reasons for opposing open borders, including the above concerns of cultural differences between migrants and natives. If the debate takes this turn then using the above tactic can be useful. However if the open border advocate fails to make a compelling economic case then he should not move onto other areas. This tactic should be used to supplement, not substitute, the economic case for open borders.

US visa policy: where everything’s made up, and due process doesn’t matter

In 1998, Robert Olsen successfully sued the US State Department, winning his claim that he had been fired for refusing to enforce racist and arbitrary immigration policies. The full judgment in Olsen v. Albright is worth reading. Olsen, who was stationed in Sao Paulo, was a law graduate working as a consular officer reviewing visa applications. He was troubled by the consulate’s policy. The Sao Paulo consulate’s visa manual explicitly documented common abbreviations used when documenting visa refusals, such as these gems:

  • LP = looks poor
  • LR = looks rough
  • TP = talks poor

Note that these determinations were not made on the basis of actual evidence, such as affidavits, bank statements, or letters. They were made simply on the basis of a consular officer deciding the applicant “looked poor” or “talked poor”. Imagine being denied your driver’s licence because the bureaucrat at the DMV felt that you just “look” like a bad driver. Here are some actual, documented reasons for visa denials:

  • “Slimy looking[;] wears jacket on shoulders w/ earring”
  • “LP!!!!!!”
  • “Look Really Poor”
  • Bad Appearance. Talks POOR”
  • “Looks + talks poor.”

Of course, if we’re turning down applications because of arbitrary things like someone’s physical appearance, it’s a short hop and a skip to turning them down because of race. The Sao Paulo visa manual further singled out various races and nationalities as especially suspect (ostensibly because of fraud). The manual explicitly states: “Visas are rarely issued to [Koreans and Chinese] unless they have had previous visas and are older.” One would assume that if fraud were the reason, the manual should have laid out ways to corroborate suspicion of fraud, instead of making blanket assumptions about people of a particular nationality or ethnic descent. Instead of providing any such guidance, Olsen’s superiors scolded him for issuing too many visas to people who fit certain unspecified “fraudulent” profiles, and arbitrarily demanded that he double his visa rejection rate from 15% to 30%. Judge Stanley Sporkin eventually found in Olsen’s favour, ruling (emphasis added):

The Consulate’s policies instruct visa officers to view members of these groups as far more suspicious and dishonest than applicants of other races and nationalities. In effect, the manual places a heavy additional burden on applicants of particular nationalities and races that other individuals do not have to face. Based on generalized stereotypes about their behavior, Koreans, Chinese, and Arabs are singled out and stamped with the ignominious badge of “major fraud” before any facts about them are known.

…Although the Court understands the difficulty of the Consulate’s task, greater efficiency is not a sufficient reason to justify the discrimination of people based upon their skin color or national origin. …The Court is aware of the State Department’s difficult responsibilities in adjudicating visa applications under strict time constraints. However, the Court is confident that the State Department can dispatch its duties effectively without using generalizations based on national origin. This nation’s officials once deemed it necessary to make the broad generalization that American citizens of Japanese origin were inherently suspect and likely to commit espionage.

Sporkin noted that Olsen’s superiors did not cite any actual instances of fraud in their evaluation of his performance; they merely demanded he arbitrarily reject more people who they viewed as inherently more susceptible to fraud: “the administrative record reveals numerous instances where Plaintiff’s superiors, in instructing Plaintiff how he should improve his performance, told him to rely more heavily on the profiles.” When Olsen was posted to a different consulate without Sao Paulo’s discriminatory policies, he received an exemplary performance review which noted he “appeared to apply consistency and good judgment to each visa case.”

Sadly, Sporkin’s decision did nothing for the hundreds of people refused visas for being born into the wrong race, or wearing the wrong clothes. Even more sadly, the New York Times noted at the time that “similar policies are in effect at American visa offices around the world.” And this was in a pre-9/11 world; it is a truth universally acknowledged that US visa policy has become even stricter since then. And US consular officers’ discretion has not shrunk: they remain empowered to use virtually any reason they like to deny you a non-immigrant visa, and they strongly oppose the establishment of any rules- or principles-based process, especially one that the public might rely on, citing fraud concerns.

We know that power corrupts, and absolute power corrupts absolutely. As immigration lawyer Angelo Paparelli notes, US consular officers literally have the final say on who gets a visa: it is a decision not even the President can overturn. One immigration lawyer has a heartrending tale of how the absence of any appeals process destroyed her client’s life. Another immigration law blog from Thailand puts it more bluntly: “Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers.” The end result: a US visa policy that denies you a visa simply because you “Look Really Poor.”

The scary thing is, we have no idea how many such cases like these there are. The only reason this matter became public and went before the courts is because of the following chain of events:

  1. The Sao Paulo consulate explicitly documented their racist and arbitrary visa policies
  2. Olsen was stationed in Sao Paulo
  3. Olsen had the moral courage to refuse to apply racist and arbitrary visa policies
  4. State fired Olsen for his courageous stance
  5. Olsen sued State for wrongful termination, and did not accept a private settlement

If any one of those had not happened, we would never have heard about this. Under US law, consular decisions are not subject to judicial review, and there is no appeals process. The racist and arbitrary nature of visa policy only came before the court because it was at issue in Olsen’s allegation of wrongful termination — not because the court was reviewing visa policy or specific visa denials, something the court had absolutely no legal right to do.

There is literally more due process and transparency involved in applying for a US government secret security clearance than there is in applying for a tourist or student visa. Anyone who has their clearance application denied is allowed to appeal, and the findings of these hearings are documented and made public. Until the courts told the US government that they were simply going too far, immigrants were not even allowed to see the evidence that the US government had used in deciding to deny their visa. The US government’s position until 2011 literally was:

  1. Appeals against denied security clearances are public matters, and the evidence behind the government’s decision needs to be public by default
  2. Appeals against denied visas are a threat to national security, and the government should not make public any evidence without undergoing the tortuous Freedom of Information Act process

The people whose visas were denied by the Sao Paulo consulate are in all likelihood the tip of the iceberg. Because there is no appeals process and the US government hides the visa adjudication and decision-making processes behind a veil of “national security” that doesn’t even apply to top secret security clearances, we have no way of knowing how many other US consular outposts might be enforcing similarly arbitrary or racist policies. Considering the opacity and dictatorial discretion here, it would be surprising if Sao Paulo was the only one. Every year, 1 to 2 million people are denied US visas for no real reason — they’ve passed criminal background checks, they’ve passed medical checks — the consular officer reviewing their application just felt like turning them down.

The victims of racist and arbitrary immigration policies here are not just immigrants — people who want to be with their friends and family, people who want to earn an honest living. They are also people who simply wanted to visit or study in the US. They had family they needed to see, places they wanted to visit, business partners they needed to meet, classes they needed to attend. And all because they “Look Really Poor” — not because they posed any sort of threat to the US. US policy is that they have no channel for appeal — even if, as one immigration lawyer puts it, “the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously”.

Yes, we can improve immigration policy by limiting consular discretion, and guaranteeing more due process. Making the evidence used to deny visas public, and allowing visa denials to be appealed would be a good start. But even these improvements are playing at the margins. We need to abolish immigration policies that assume all foreigners are evil or criminal until they prove conclusively otherwise. As long as we continue to make the assumption that billions of people around the world are guilty until proven innocent, we cannot have any true “due process.” Perhaps the benefits of this manifest injustice outweigh the costs. But there is no evidence, no analysis, truly showing that that is the case. Until you can show me why we should throw fundamental due process protections out the window — why the benefits of making visa decisions in secret behind closed doors, based on arbitrary criteria like race or physical appearance, outweigh the costs — I can only conclude that the immigration policy status quo is an affront to the most basic principles of any civilised justice system.

The cartoon featured at the top of this post depicts a Chinese immigrant being refused entry to the United States, and was published in 1882.

Discrimination and the semi-open border

A couple weeks ago the American Civil Liberties Union updated its position on the Senate’s immigration bill. Overall, the ACLU seemed to favor the bill for its path to citizenship and for due process improvements in detention and deportation processes. One of their concerns was that “LGBT couples do not have the same rights as straight couples in immigration proceedings.” The ACLU blog post was written before the US Supreme Court ruled the Defense of Marriage Act unconstitutional, a ruling that for the most part renders moot discrimination against gay couples in the Senate immigration bill, at least at the federal level. Nevertheless, it’s interesting that at a time of cascading victories for gay rights, when even opponents feel the inevitability of gay equality, one instance where discrimination can gain support is that of gay couples bestriding the border.

Of course, I’m probably overstating this effect. Those pushing to discriminate against gays in immigration proceedings are the same as those pushing to discriminate against all-American gays. Yet discrimination is a common theme in immigration restrictions. Though I view it as strategically unwise–not to mention unfair and not altogether honest–to denounce immigration restrictions as inherently racist, it’s also unwise to ignore the blatantly racist history of American immigration policies. Chris Hendrix has blogged about the first major restrictionist legislation, the Chinese Exclusion Act of 1882, but even before this, naturalization (as opposed to immigration) was restricted on explicitly racist grounds. The Naturalization Act of 1790 restricted naturalization to “free white persons” of “good moral character”. This may not be surprising for a nation that allowed legal slavery of Africans and those of African descent for nearly a century, but this racial requirement was the law of the land until the Immigration and Nationality Act of 1952. Immigration isn’t the same as citizenship, yet this unpalatable history is clearly relevant to today’s discussions of immigrant assimilation (citizen or otherwise).

Perhaps partially as a result of this legal requirement, much of the history of assimilation has been entwined with the idea of “whiteness”. The story of the Irish in America, for example, has been one of transforming from a “racial” group into an “ethnic” group. In a reflection on St Patrick’s Day a few years ago on racismreview.com, blogger Jessie writes:

Over the course of the 19th and early 20th century, Irish Americans managed to a great extent to enter and become part of the dominant white culture. In an attempt to secure the prosperity and social position that their white skin had not guaranteed them in Europe, Irish immigrants lobbied for white racial status in America. Although Irish people’s pale skin color and European roots suggested evidence of their white racial pedigree, the discrimination that immigrants experienced on the job (although the extent of the “No Irish Need Apply” discrimination is disputed), the simian caricatures they saw of themselves in the newspapers, meant that “whiteness” was a status that would be achieved, not ascribed.

For some time now, Irish-Americans have been thoroughly regarded as “white.” Evidence of this assimilation into whiteness is presented by Mary C. Waters (Harvard) in a recent AJPH article, in which she writes that the once-rigid lines that divided European-origin groups from one another have increasingly blurred. Waters goes on to predict that the changes that European immigrants have experienced are “becoming more likely for groups we now define as ‘racial.’” While I certainly agree that the boundaries of whiteness are malleable – it is a racial category that expands and contracts based on historical, cultural and social conditions – I don’t know if it is malleable enough to include all the groups we now define as ‘racial’ Others.

Emphases in original. The intimate relationship between whiteness and American assimilation is possibly best described in the language of historical court decisions. In a paper titled Immigration and the Meaning of United States Citizenship: Whiteness and Assimilation (ungated here), SMU law professor George Martinez quotes some real legal gems:

[Assimilation] as a proxy for whiteness is confirmed by the United States Supreme Court’s decision in United States v. Thind. In rejecting an immigrant from India’s claim to whiteness and the right to naturalize, the Court explained that Indians were unable to assimilate:

The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.

Lower court cases further confirm a connection between assimilation and whiteness. In United States v. Cartozian, the court considered whether Armenians were white. Connecting assimilation with whiteness, the court held that “it may be confidently affirmed that the Armenians are white persons, and moreover that they readily amalgamate with the European and white races.” Similarly, in In re Ahmed Hassan, the court held that Arabs were not white persons, observing that

it is well known that they are part of the Mohammedan world and that a wide gulf separates their culture from that of the predominantly Christian peoples of Europe. It cannot be expected that as a class they would readily intermarry with our population and be assimilated into our civilization.

Martinez goes on to quote the Supreme Court’s logic upholding the legality of the Chinese Exclusion Act: “[If Congress] considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … [Congress’s] determination is conclusive upon the judiciary.”

Explicit racism in immigration restrictions persisted after the Immigration and Naturalization Act of 1952 formally severed the concepts “American” and “white”. In a curious collusion of Mexican emigration restrictionists and American immigration restrictionists, “Operation Wetback” was launched in 1954 to deport illegal Mexican immigrants and limit further Mexican immigration. The dangers, of course, are that a long history of racist justifications for immigration restrictions doesn’t just disappear down the memory hole when the law is officially changed and that explicit racism in American immigration policy has merely been replaced by implicit racism. One place to start looking for such implicit discrimination would be in the federal Secure Communities program, which has been criticized for encouraging racial profiling.

But I don’t want this post to be entirely about the historical connection between immigration restrictions and racism. Another, more subtle kind of discrimination is at play in the modern immigration debate, even in more enlightened quarters: discrimination against lower classes. A recent incarnation of this is the moralized evocation and denunciation of a “moocher class” composed of the lazy poor who take handouts from the government and give nothing back to society in return. The reality is somewhat different, with many upper class individuals failing to realize when they have benefited from government programs. As with racial discrimination, discrimination by socioeconomic class makes generalizations about large groups of individuals and judges them to be somehow worth just a little less than the dominant group.

This class discrimination arises in the distinction between “skilled” and “low-skilled” immigrants. Many people skeptical of allowing more low-skilled migrants across the border can even be quite enthusiastic supporters of more immigration of skilled workers. Reihan Salam of the National Review has summed it up this way:

The goal of means-tested benefits and publicly-funded human capital investment is to better the lives of all members of the American polity, but particularly the most vulnerable, by giving them a foundation for participation in our shared economic and civic life. We might disagree about how much we ought to spend and how these programs are structured, with people like me favoring a limited scope for social programs, choice and competition, and an emphasis on work supports, etc., but support for the idea of a safety net and a place for the public sector in education is pretty firmly entrenched. When we expand the American polity, it makes intuitive sense that we would want to do so by welcoming individuals who are already well-prepared to fully participate in economic and civic life, as we’ve learned through long experience that people who are ill-prepared will face tremendous difficulties, as will their children. For a variety of reasons, individuals with 8th grade education and limited English proficiency are less likely to flourish in the U.S. than individuals with a college education and a high degree of English proficiency. If it is also true that less-skilled and less-affluent U.S. residents with limited English proficiency benefit more from an influx of skilled immigrants (potential customers or complements) than from an influx of less-skilled immigrants with limited English proficiency (potential competitors), the case for a more selective, skills-based immigration policy becomes even stronger.

While this technocratic approach sounds sensible enough from some national central planner’s perspective, it sounds paternalistic from a view closer to the ground, as if those who are deciding when and how to “expand the American polity” are protecting low-skilled migrants from the “tremendous difficulties” of living in a developed country. People have been migrating to strange new places with novel difficulties to navigate ever since we spread beyond Africa. As autonomous agents directing the course of their own lives, presumably migrants have assessed the risks and difficulties of migrating to a new country and have judged their chances of flourishing to be greater with moving than with staying. This is true even for migrants “low-skilled” but nonetheless savvy enough to pursue higher wages when and where they can be found. If “low-skilled” workers will fail to flourish in a high-income host country, then they will almost certainly fail to flourish to a greater degree in their poorer countries of origin. And of course flourishing may be relative, with modest living in a rich country amounting to serious comfort to those who have only experienced modest living in a poor country.

The paternalistic, for-their-own-good argument seems to be a thin veil concealing the desire to make the “American polity” look a certain way.  The low-skilled migration restrictionists do not seem to be concerned with removing poverty so much as with removing poverty from view. I suspect the distinction between low- and high-skilled immigrants is really a euphemism for discriminating against poor and lower class immigrants. High-skilled immigrants, regardless of absolute wealth levels, are usually richer than low-skilled immigrants and they are certainly more educated. High-skilled immigrants have grown up in families that would be considered culturally elite or at least middle class in their countries of origin (this is how they attained the human capital to qualify as “skilled”). As such, high-skilled workers will more easily fit into “nice” parts of the rich world, like suburbs and medical schools. And they will do the host country the benefit of adding diversity to these institutions, making them appear more inclusive while still keeping out the riff-raff. They will not need to live in dense slums many-to-a-room in living conditions middle class natives find distasteful.

Low-skilled immigrants, by contrast, are more likely to come from lower social classes in their countries of origin and this will translate immediately, if not permanently, into a similar socioeconomic status in a rich host country. With that status come all of the disadvantages the native poor face, with the additional disadvantage living under constant threat of unceremonious deportation.

I don’t doubt the desire of folks like Reihan Salam to improve the lots of low-skilled natives, and even better, their desire for an institutional framework in which low-skilled natives improve their lots themselves. The problem is that their motivation to do so is to create a more superficially attractive nation, rather than to construct an actual engine of human flourishing.