Monthly Archives: March 2013

Wedging a crack in trans-Atlantic borders: reforming the Visa Waiver Program

1 Comment

Credit for featured image: Wikimedia Commons. It shows in green the countries eligible for the US Visa Waiver Program. For more, see the Wikipedia article.

A few years ago, the South Carolina Journal of International Law and Business published an article by then-law and business student Robert Wilson on the risks that US visa policy poses to trans-Atlantic foreign relations. The article is a good and I think fair review of the case for and against stricter non-immigrant visa policy. Wilson never hides that he favours a looser policy, but he accurately notes the reasons why the US government has felt compelled to tighten the borders.

Wilson’s focus is on the US visa waiver programme (VWP) which allows people from certain countries to enter the US without a visa. They simply need to pass a quick (30 seconds is the figure he cites) check at border control. Wilson notes that this is how some of the 9/11 terrorists were able to enter the US. This is why since 9/11 the US has mandated interviews for almost all visa applicants, and why the US has been reluctant to extend the reach of the VWP.

I-94W

Visa Waiver Program I-94W form that any person from a VWP-eligible country needs to fill in when landing in the US for a short-term, VWP-eligible trip. Source: magazineUSA.com

But as Wilson notes, sealing the borders in this manner is not practical. It is not any more useful or pragmatic than demanding the search of every cargo container entering the US for bombs or drugs. Other than a cursory check at the border, the VWP essentially throws open US borders to eligible foreigners, with no obligation to present additional information prior to entry. And these foreigners are screened not on any meaningful factual basis other than national origin: an person from Nigeria has to face stringent checks prior to boarding a flight to the US, while an identical twin who happens to have British citizenship can waltz right on up to the border.

I am in favour of open borders, but this manner of implementing them strikes me as arbitrary and self-defeating. Just as there are safe ways to deregulate, there are also plenty of unsafe ways, and this arbitrary discrimination strikes me as just one such unsafe way. Wilson cites how the number of people travelling to the US for tourism and business has been falling since 9/11 because of stricter visa procedures, while equivalent figures for other countries have been trending up.

Wilson recommends the US pre-screen VWP-eligible foreigners, using a system similar to Australia’s. Nathan Sales, a law professor, testified before Congress that this approach would be much more sensible compared to the arbitrary status quo, and more importantly, would allow the US to expand the reach of the VWP. It makes sense to me: a government can legitimately limit entry at its borders if it justifiably believes that this addresses a concerning security risk. Refusing to submit basic biographical information or fill out a basic form signals that you are likely to be a risk of some kind.

I’ve used the Australian electronic equivalent of the VWP before: it’s straightforward and transparent. It’s not open borders, but I’d much rather have an extended visa waiver programme on a similar basis, open to as many people as possible. My belief is that the government should approve visas for anyone who is acting in good faith. Right now, the US denies visas to over 1 million people annually for essentially no reason (they’re not criminals, not carrying communicable diseases, etc.). Give those 1 million people the visas they need to visit or study.

One final point Wilson raises is that expanding the VWP to all the European countries who desire it would allow cooperation with those countries in immigration enforcement. By coordinating governance systems in this area, the US could more effectively deter people with outstanding criminal issues from entering, while opening the borders to those acting in good faith. If the US pursues this, this could eventually lead to trans-Atlantic open borders: even if border controls remain, visas would be available to all good-faith visitors, and one day perhaps even workers or immigrants.

Migration and Christianity

3 Comments

When I wrote Principles of a Free Society, I hinted at a Christian case for open borders:

American Christianity has not been only a conservative force, fending off bad foreign ideas and keeping America true to its heritage of freedom. It has often championed reform, progressively realizing the latent imperatives of America’s founding ideals.

Nobel laureate Robert Fogel has argued that American history has followed a pattern by which the evolution of religion leads the evolution of political reform, with four “Great Awakenings” in religion– in 1730-60, 1800-40, 1890-1930, and 1960 to around 1990– leading to four great eras of political reform: the American revolution, the anti-slavery movement and the Civil War, the creation of the welfare state, and the civil rights movement; and finally the tax revolt of the Reagan era and the 1996 welfare reform.

Fogel’s periodization could be disputed; but the links he draws between religion and political reform are compelling. Churches enjoy no institutional representation in the American political system, nor do they typically instruct their members how to vote. Yet religion heavily influences voting behavior and other forms of political participation. Today, for example, one of the strongest predictors of voting Republican is church attendance.

In spite of the Republican bias of American Christians, however, and the anti-immigration bias of the Republican Party, I think there are signs that immigration (that is, support for immigration) is emerging as a distinctively Christian political issue. An immigration amnesty in 1986 was championed and signed by a born-again Christian president, Ronald Reagan. Another Christian president, George W. Bush, strove for and nearly succeeded in passing immigration reform in 2006 and 2007, with widespread support from churches.

The Catholic Cardinal Mahoney of Los Angeles compared a repressive anti-immigration law in Arizona to Nazism. Richard Land, president of the general conservative Southern Baptist Convention’s Ethics and Religious Liberty Commission, has advocated comprehensive immigration reform. Polls by Pew show that religious leaders and frequent churchgoers are significantly more pro-immigration than less frequent attenders.

Ultimately, I think the Bible, the New Testament, the Parable of the Good Samaritan, and in particular one detail in the Parable of the Good Samaritan, will force Christians to turn against the world apartheid system of border controls. When the priest and the Levite see the wounded man on the road to Jericho, they do not just fail to help, they pass by on the other side of the road— that is, they deliberately create physical distance between themselves and the suffering man in order to avoid incurring the moral responsibility to help him.

But of course, this is exactly what migration restrictions do: they keep the world’s poor at a distance, so that we will not feel conscience-stricken and have to help them. But of course it is perfectly clear in the parable that the priest and the Levite only make themselves more culpable by trying to avoid moral responsibility; and so it is with rich countries that close their borders to poor immigrants. Christians cannot go on failing to see this indefinitely. Time for a Fifth Great Awakening?…

How would church-state relations change if the conviction became widespread among Christians that to “love thy neighbor” meant not collaborating with the enemies who want to deport him? (Principles of a Free Society, pp. 189-191)

At that time, however, I had not read what the Old Testament specifically has to say about immigrants. When I did so, last May, for the post “The Old Testament on Immigration,” I was astonished at how thoroughly they confirmed my views. Again and again, the Bible stresses that foreigners are to be given justice, treated fairly, loved, and included in Jewish festivals and Sabbath observances. They were often grouped with widows and orphans as a protected class. In correspondence with readers after that post, I learned that there seems to be a distinction between a ger, which I’ve seen translated as “resident foreigner” but which means something close to “convert to Judaism,” that is, someone who has accepted the religious rules of ancient Israel, and a “foreigner at the gate,” zak or nekhar. Many of the Biblical passages which most strongly urge “foreigners” to be treated well use the word ger, and some argue that these exhortations do not apply to the zak or nekhar. I believe it is the latter, moreover, to whom the Mosaic law permits Jews to lend at interest and sell meat found already dead, which Jews are not allowed to eat. Some contemporary writers equate ger with legal immigrants and zak with undocumented immigrants. But this is certainly untenable, for several reasons. First, ancient Israel had no passport regime, and zak were not breaking the law by dwelling there: they were not illegal. Second, while the Bible does suggest that ger must obey the Mosaic law and thus shared the obligations as well as the privileges of Jews, there is no hint of some process of permission by Jewish authorities that had to take place for a person to become a ger. And in the story of Ruth the Moabite, no permission is asked. Ruth admittedly has a Jewish mother-in-law, Naomi, but her admission to Israel is not conditional on that. She simply comes, and gathers grain behind the reapers, taking advantage of a sort of ancient Jewish poor law. In short, there were open borders under the Mosaic law. And if that was the case even under the Old Testament law, which in many respects is rather harsh– a girl found guilty of premarital sex was to be stoned, for example (Deuteronomy 22:21)– then what about the New Testament, which often seems to endorse complete nonviolence…

“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’[a] But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well.” (Matthew 5:38-40)

… which pointedly softens the Mosaic law, e.g., when Jesus pardons the woman taken in adultery (John 8:1-11), and which is far more universalist in spirit, for example in eliminating the circumcision requirement so as to integrate Gentile converts? Surely it would be odd for someone to agree that the Old Testament called for open borders and then say that the New Testament offered a warrant for a harsher and more exclusionary migration policy than what the Old Testament allowed.

Given the comparative rarity of open borders advocacy among Christians, however– devout Christians are more likely to favor open borders than others, but it’s still a small minority view– I’m always interested in hearing the other side. What do Christian restrictionists have to say for themselves? Continue reading Migration and Christianity →

US immigration law creates hundreds of mini-dictators, empowered to enforce racist policy without question

14 Comments

Donald Dobkin is a Canadian-American immigration lawyer who, a few years back, authored a Georgetown Immigration Law Journal article titled Challenging the Doctrine of Consular Nonreviewability in Immigration Cases. The whole article is worth reading, but the short story is:

  • US consular officers are entitled to deny you a non-immigrant visa if you cannot prove to them you won’t immigrate to the US
  • Because this is considered a question of fact, under US law, this decision cannot be questioned or overturned, not even by the Secretary of State or the President
  • Courts have held that under very limited circumstances, they can review non-factual issues that affected the visa application outcome
  • However, the end result is that for the vast majority of people refused a non-immigrant visa to the US, there is no appeal mechanism and no check on US consular officers’ power to disrupt or destroy foreigners’ lives

One interesting thing I learned is that the doctrine of consular nonreviewability (sometimes mockingly called consular absolutism; John Lennon supposedly once referred to US consular officers as “absolute monarchs”) has its roots in the 1889 case Chac Chan Ping v. United States (often simply called the Chinese Exclusion Case). This is the case which first held that the government has the right to do whatever it likes to foreigners trying to enter the US, for whatever reason. Consequent immigration law doctrine in the US has built on the foundation of the Chinese Exclusion Case, especially in the area of consular nonreviewability. As Dobkin quotes one scholar saying:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

(For non-Americans, Dred Scott and Plessy v. Ferguson are two famous US Supreme Court cases which respectively held that black people have no rights and that racial segregation is constitutional.)

Immigration law’s roots in racism go deep. Beyond the US, virtually every modern Western country rooted in the common law tradition originally adopted immigration controls in order to exclude foreigners from the wrong racial backgrounds. See for instance the UK closing its borders to Commonwealth citizens because they received too many black and Asian immigrants, Australia adopting a “White Australia” legal regime to keep out Asian immigrants, or Canada pursuing immigration controls in the 19th century to restrict Chinese immigration.

And the best traditions of immigration law continue today. In Olsen v. Albright, former US consular officer Robert Olsen sued the State Department for wrongful dismissal after he refused to enforce a visa policy that discriminated against people who “look poor” or were born into the wrong race.  Given how well-documented the racist nature of State’s visa policy was, the judge had no choice but to agree with Olsen — but given the doctrine of consular nonreviewability, he had no power to overturn the denial of visas to anyone who, as one visa refusal documented, “Looks + talks poor.”

Dobkin notes that in many European countries, including Germany, judicial review of visa decisions is enshrined in law. The catastrophic effects which US judges and consular officers fear from permitting judicial review have not materialised. Dobkin suggests that this is because:

  1. Pursuing judicial review is costly, so applicants will only pursue it if they strongly believe the consular officer was wrong
  2. More importantly, the risk of facing judicial review forces consular officers to get visa decisions right

One interesting point Dobkin highlights is that unfortunately for foreigners, immigration law cases tend to be decided precisely when anti-immigrant sentiment runs high: you get a lot more immigration lawsuits when immigration law enforcement is at its peak. This bias means that immigration legal precedents favourable to immigrants are relatively rare, and likely accounts for the long survival of the Chinese Exclusion Case.

There are of course rare instances where the courts do decide to review a consular officer’s decision, and Dobkin cites quite a few. These are worth a separate post, which I will publish in due time. But they do not materially change the picture: US immigration policy enthrones consular officers as dictators, capable of punishing people for reasons as trivial as wearing the wrong coat or being from the wrong ethnic origin. Not even the President or Supreme Court can overturn their decision. And there is no real reason for this, except for the US immigration legal system’s peculiar attachment to consular nonreviewability, a doctrine rooted in racism, and one that plenty of other developed countries are fine doing without.

The painting featured at the top of this post depicts the deportation of Acadians from Canada in 1755.

Paul Kersey on immigration and multiethnic societies

Leave a comment

Paul Kersey has a thought-provoking piece up at VDARE with some speculation about the potential consequences of expanded migration and/or legalization initiatives currently being mooted by US legislators and policy wonks. Kersey uses an interesting technique similar to something that has often cropped up in the posts and comments at this site (including, specifically, comments by BK): an analysis of the performance of multiethnic societies to inform the debate about the short-run and long-run consequences of open borders. While Kersey’s rhetorical style is perhaps more upfront and forthright than that employed by the typical sophisticated restrictionist, the style of argument he makes does appeal to a wide range of people.

Let me begin by noting what I like about Kersey’s approach. It seems to me that too often, discussions about the effects of policies are built on exceptionalist rhetoric that fails to learn from the experiences of other countries. For instance, discussions of affirmative action in one country often fail to consider evidence about affirmative action and similar policies employed in other countries. The same applies to discussions of the effects of the minimum wage, or of tax increases, or of conscription. The problem with ignoring other countries is that a single country usually doesn’t offer enough variation in its history to provide a lot of insight. Comparing across countries can help overcome this problem. There are a lot of caveats to be considered when doing inter-country comparisons, but it’s a tool that should be given a shot. This kind of analysis, incidentally, is one of the things that I admire Thomas Sowell for, even though I don’t often see eye to eye with Sowell’s moral outlook, empirical assertions, and rhetorical style (see here for my discussion of Sowell on migration and here for my personal views on Sowell’s output as a whole).

In addition to using an international perspective, it may also be important to extend the analysis beyond migration to other situations that might mimic the effects of migration. A common and plausible strand of thinking is that the performance of multiethnic societies compared to more homogeneous societies provides some insight into the effects open borders might have, in so far as open borders would make certain societies (the target countries of migration) more multiethnic. The use of these indirect proxies, weak and questionable though they may be from some perspectives, is better than just throwing up one’s hands or refusing to consider the question. Open borders is a radical proposal, and it behooves those discussing it to try their hardest to look at all the various things that could go right and wrong with open borders.

Based on the above, I was initially quite sympathetic to Paul Kersey’s attempt to figure out the impact of open borders by looking at two examples of racially and ethnically diverse societies that have been known to be ridden with conflict and problems — South Africa and Brazil. Clearly, my bottom line differs from Kersey’s, but I was hoping to gain some insight from Kersey’s piece on the matter. I was somewhat disappointed in this respect.

Kersey’s analysis of South Africa is similar to many other restrictionist analyses — South Africa ended apartheid, and look how bad things are in South Africa today. What does the evidence actually suggest? Grieve Chelwa did an excellent post on South Africa in the open borders debate. A very brief summary of his post: things were pretty bad and in many ways getting worse in the period 1980-1994 (prior to the end of apartheid), and things have generally been improving 1994-2008, though not very fast. But the improvement post-1994 is certainly quite impressive compared to the 1980-1994 performance. Within the 1994-2008 period, things have generally been better in the latter half of the period, and the poor performance in the beginning can be attributed to some bad leadership and statist economic policy. Grieve looks at poverty, inequality, unemployment, and crime. In the comments, BK brought up the decline in life expectancy, which is certainly one worrisome negative trend, and is mostly attributed to the HIV denialism of Thabo Mbeki. Clearly, there are no easy answers here, and South Africa is at best modestly encouraging and at worst modestly discouraging in terms of the case for open borders. With this background in mind, I thought Kersey might have some interesting insights to offer on the negative side of the ledger.

Kersey’s analysis of South Africa, however, involves block quoting the entirety of a sidebar (!) from a Daily Mail article about a rich guy shooting his girlfriend (it’s unclear whether the shooting was intentional or accidental). The sidebar laments South Africa’s high crime rate, and this is the main piece of evidence used by Kersey to conclude that apartheid was a failure. But as Grieve’s analysis showed, the rates for most violent crimes (including homicides, which have the most reliable data in general) has declined considerably since the end of apartheid, with the main exception to the trend being armed robberies (a quick-and-dirty version of the homicide data can be viewed here, but see the links in Grieve’s post for more). Probably, there are many interpretations of the statistics, but I’d have hoped that Kersey would not use a single-point-in-time number to draw conclusions about trends in post-apartheid South Africa.

I don’t really know enough (or in fact anything) about Brazil. Kersey’s analysis of Brazil looks potentially interesting, but I’d be loath to use it as an information source for reasons very similar to those that I elucidated for South Africa. I would strongly urge restrictionists like Kersey to perform deeper analyses of trends so that people on all sides of the debate have a better idea of the restrictionist end in the range of plausible conclusions one can draw from the data. By taking shortcuts and preferring sensation over substance, Kersey does both his own cause and the cause of truth a disservice.

Stan Tsirulnikov on progressive immigration restrictionism

Leave a comment

Writing at The Umlaut, Stan Tsirulnikov offers an interesting take on progressive immigration restrictionism. Tsirulnikov dubs it “immigration protectionism” and critiques it as being against the spirit of the bold changes that progressivism should be about. The targets for Tsirulnikov’s criticism include Dean Baker, head of the progressive Center for Economic and Policy Research, for espousing strict limits on high-skilled immigration and apparently zero (?) low-skilled immigration. Another target is a piece by Josh Harkinson in Mother Jones titled How H-1B Visas Are Screwing Tech Workers. Tsirulnikov concludes:

Harkinson isn’t wrong to be concerned about the plight of struggling Americans. But as Bryan Caplan has pointed out in the past, it is morally questionable to put more emphasis on the “American” rather than the “struggling” part. Nevertheless, many progressives want to use immigration restrictions as a round-about way of helping vulnerable American workers. They know that the American public will not support direct subsidies to individual workers harmed by immigration, so they use restrictions as a cynical half-measure to prevent the supposed harm from happening at all. Baker’s proposal has the restrictions fall disproportionally on unskilled and poor foreigners, while Harkinson wants to make hiring high-skilled foreigners more difficult. But both view immigration as a potentially hostile force that needs to be managed for the exclusive benefit of Americans.

Overall, I tend to agree with Tsirulnikov. I considered progressive immigration restrictionism and its territorialist underpinnings in a blog post a little over two months ago (see also a ollow-up by Arnold Kling). I’ve also tried to address specific concerns raised by employees of the Economic Policy Institute (referenced by Harkinson’s Mother Jones piece) in the following blog posts: guest worker programs and worker abuses and Eisenbrey argues against increasing US visas for high-skilled work. Alex Nowrasteh offered a more detailed and forceful critique of Eisenbrey here.