The Simplicity and Fairness of Open Borders

“It is not up to the British state to decide where people should or should not live, or anyone else but migrants and refugees themselves. We support the unfettered right of entry of the feckless, the unemployable and the uncultured.” This quote comes from the 2003 Manifesto of the No One Is Illegal (United Kingdom) organization and is a favorite of mine in the literature supporting open borders.  These sentences appear in a paragraph opposing having to justify the immigration of people based on their contributions to the receiving country, but their appeal is that they communicate that borders should be open to everybody, with rare exceptions such as when an individual immigrant is determined to be likely to commit terrorism in the receiving country.  A policy which allows everybody to enter, stay, and work in a second country regardless of their occupational skills, their family or employment connections in the receiving country, their country of origin, or other factors, is both simple and fair.

The opposite exists under the current restrictionist immigration policy of the U.S., which is anything but simple or fair.  Kevin Johnson of the University of California, Davis notes its complexity: “By many accounts, only the much-maligned Internal Revenue Code rivals the intricate, lengthy, and frequently obtuse Immigration & Nationality Act of 1952, which is the centerpiece of modern American immigration law…  The areas of complexity of the U.S. immigration laws are too numerous to review here in detail. The labor certification process for certain employment visas is one of those areas. The myriad of exclusions, criminal removal provisions (and removal grounds generally), judicial review provisions, and many other rules also are incredibly complex, cumbersome, ambiguous, and obtuse. As a result of their complexity and ambiguity, the U.S immigration laws create much work for immigration attorneys…” (The complex laws also keep government lawyers, officials, and judges busy.  There are over two hundred immigration judges, who are employed by the Department of Justice and not part of the judiciary, applying the law to cases.  Federal judges all the way up to the Supreme Court also rule on matters of immigration law.)

Consider the intricacies of the immigration laws concerning marriage, a flashpoint in the current debate over the immigration bill proposed in the Senate.  U.S. citizens and permanent residents can sponsor foreign born spouses to become permanent residents.  But what about same sex couples?  Current law does not allow this, and efforts to change the law to include the sponsorship of immigrants who have a same sex citizen or permanent resident partner face significant opposition in the Senate.  It is also not necessarily a simple legal path for heterosexual spouses, especially if there have been prior violations of immigration laws. Even without prior violations, what about situations in which married couples are separated? (Answer: it depends on the type of separation.)  Another aspect is that the government tries to determine whether a marriage is based on love or is really only a means of gaining legal status for one of the spouses.  In New York, a unit of 22 immigration officers is devoted to examining marriages, based on which immigration applications are filed, for fraud.

Consider the complexity of laws concerning asylum.  To obtain asylum, “an individual must prove that he is unable or unwilling to go back to his home country ‘because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion.’” Legal decisions distinguish between prosecution, when the individual is subjected to “fairly administered laws” that are applied to all citizens of that country, and persecution.  In one case an Iranian national sought political asylum for, among other things, distributing movies and concert videos made in the Western Hemisphere. His request for asylum was denied, even though he faced a two-year prison sentence and 19 lashes under Islamic law if he returned to Iran. A federal court of appeals held that, standing alone, asylum seeker’s prosecution for distributing movies and videos was not persecution, but prosecution “for an act deemed criminal in Iranian society, which is made applicable to all people in that country.”  Also, how persecution is defined determines case outcomes.  “Generally, harassment and discrimination will not constitute persecution. Persecution is regarded as an extreme concept that differs from general discrimination against minority groups.” In a 2011 opinion by the a federal court of appeals, Richard Posner, one of the judges, identified “three forms of oppressive behavior toward a group despised by the government or by powerful groups that the government can’t or won’t control. The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.  Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had Lions furious at Naumov’s being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment… Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity…” Additionally, sometimes how the five grounds on which persecution can be based (race, religion, etc.) are applied to asylum cases determines how they are decided.

The issue of fairness arises for almost every aspect of the American restrictionist system.  For asylum cases, problems of fairness have abounded, and historically politics appears to have intruded on decisions.  During the Cold War, asylum seekers from the Soviet Union were favored over those from non-Communist countries like  El Salvador, Haiti, and Guatemala, according to Bill Frelick and Court Robinson (International Journal of Refugee Law, Vol. 2, 1990). The U.S. has had a much more restrictive policy towards Haitians seeking asylum compared to Cubans.  Furthermore, Stephen Legomsky notes that research “has brought home the extraordinary extent to which the outcome of an asylum claim hinges on the particular adjudicators who are assigned the case.”

Beyond asylum cases, here are a few examples.  There is the unfairness of the administration’s Deferred Action for Childhood Arrivals (DACA). There is the fact that lower skilled workers are allotted very few permanent residence visas compared to more highly skilled individuals.  Same sex spouses are excluded from sponsoring a spouse for permanent residence.

At the same time, complete fairness would not be achieved even if same sex couples were allowed to sponsor a spouse, if there were equal numbers of visas for unskilled workers as for skilled  workers, if the deferred action program protected more people from deportation, or if other modifications were made to the restrictionist system.  Some people would still be barred from immigrating.  As the No One Is Illegal Manifesto observes:  “…what about the single gay person, the celibate, the lonely, those of no sexual orientation or the promiscuous of any sexual orientation? Including gay couples within immigration law and its spurious ‘rights’ means that all these other people are by definition excluded… The way forward is to fight for the rights of all gay women and men along with everyone else to be able to come and remain irrespective of personal circumstances or relationships. The only equal opportunities immigration controls are no immigration controls.”

So aside from improving the lives of massive numbers of people and being morally preferable to having immigration restrictions, an open borders policy offers the advantages of simplicity and fairness.  Resources currently devoted to navigating complex immigration laws or attempting to make the laws fairer could be devoted to more productive uses under an open borders policy.

Joel Newman

Joel has a bachelor’s degree in history from Pomona College and works as a teacher in Beaverton, Oregon.

See also:

our blog post introducing Joel
all blog posts by Joel

2 thoughts on “The Simplicity and Fairness of Open Borders”

  1. The immigration regime reminds me a little of the European aristocracy in the 18th century. Complexity was part of the problem, but complexity isn’t a bad thing per se. As capitalism develops, property rights tend to become more and more complex, and arguably crises like those of 1929 and 2008 occur when this complexity becomes excessive and suddenly breaks down, but the gradual complexification of property rights is generally a good thing, reflecting and making possible the progressive diversification of risks, specialization of productive functions, and fine-tuning of incentives to align individual self-interest with the good of society. The common law, too, is quite complex, but at least to some extent it is grounded in good reasoning and a realistic view of human nature.

    But in the case of the aristocracy in pre-revolutionary Europe, the complexity had largely ceased to serve valuable societal functions, or to seem ethically justified. The Enlightenment was in part a return to simplicity and a reaction against the hollow absurdities of the legacy of the past. The ancien regime was no longer a thing to be argued for or argued against; it was a thing to be insisted on, or laughed at. Perhaps the immigration regime will collapse in the same way. The lack of any plausible notion of JUSTICE at the bottom of it leaves it with no way to renew or rationalize itself.

    Incidentally, I think *complexity* and *discretion* need to be distinguished, though doubtless they are related. To have a bureaucrat judging whether a couple really loves each other is one form of absurdity. If the law is so complex that no one knows what his or her obligations are, if everyone ends up breaking the law because no one understands it, that’s a different kind of absurdity. Of course, reducing discretion sometimes leads to more complexity. Imagine we tried to remove the absurdity of bureaucrats judging love by quantifying love, e.g., you have to have kissed at least ten times, you must have written e-mails an average of at least once a week, of which at least one-third must be signed “Love,” you must sign the dotted line affirming a statement that you love each other, in a fashion that is at least in some degree erotic and not merely the abstract willing of another’s good that all human beings ought to have for one another… By such means, you might be able to eliminate discretion, at the price of an absurd micromanagement of romantic relationships.

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