All posts by 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

It Can’t All Be About (the) U.S.

In February, National Public Radio aired a segment, part of its Planet Money series, in which it asked three immigration experts what sort of immigration system they would have if they “controlled the borders.” To NPR’s credit, one of the experts was the Cato Institute’s Alex Nowrasteh (a contributor to the Open Borders site). He proposed letting all immigrants in, except for suspected terrorists, criminals, and those with serious communicable diseases. He noted that this policy would benefit the economy and would mean that people wouldn’t have to put themselves at risk crossing the border.

Not surprisingly, the other two experts chosen by NPR did not propose open borders. One expert was the economist Giovanni Peri, a professor of economics at the University of California, Davis, who has researched the economic impact of immigration on the U.S. and found it to be mostly positive. His ideal immigration system would be one in which employers would bid for permits allowing them to employ individual foreign workers, including low-skilled workers. The other expert was Dean Baker, co-director of the Center for Economic and Policy Research (we’ve critiqued Baker before). He would admit immigrants with families in the U.S. and would provide visas to highly skilled individuals who, in the words of NPR’s host, “would benefit our economy the most.” Mr. Baker said he “would like to make sure that you had a lot of immigrants at the high end” but is “less concerned about farm workers.”

The proposals from Mr. Peri and Mr. Baker seem designed to maximally benefit the U.S. and apparently make the interests of immigrants who are excluded from their systems irrelevant. Formulating such an immigration policy probably makes sense to many Americans. After all, some may think, the government should look out first and foremost for the interests of its citizens. Joseph Carens of the University of Toronto articulates this view: “The power to admit or exclude aliens is inherent in sovereignty and essential for any political community. Every state has the legal and moral right to exercise that power in pursuit of its own national interest…”

Mr. Carens suggests, however, that this nationalist position doesn’t justify immigration restrictions. He explains that “When the stakes are high (e.g., legal proceedings) we normally create institutional rules to try to prevent people from being able to favor their friends and relatives. In other words, our notion of justice constrain the extent and ways in which we think it is acceptable for us to favor family members… even if we are morally entitled to favor compatriots in some ways, it is not self evident that we are entitled to favor them by excluding potential immigrants. Perhaps that form of preferential treatment goes too far.” Restricting immigration in effect would be nepotism writ large, an attempt to favor those identified as being more closely connected to us by giving them access to the U.S. labor market and denying access to those deemed less connected.

Bryan Caplan of George Mason University (who has also guest blogged for Open Borders) echoes Mr. Carens in his critique of the analogy between the nation and a family: “…almost everyone recognizes moral strictures against familial favoritism.  Almost everyone knows that ‘It would help my son’ is not a good reason to commit murder, break someone’s arm, or steal.  Indeed, almost everyone knows that ‘It would help my son’ is not a good reason for even petty offenses – like judging a Tae Kwon Do tournament unfairly because your son’s a contestant.” Despite this, Mr. Caplan points out that at the national level citizens tend to lose this sense of morality and use nationalism “as an acceptable excuse for horrific crimes against outgroups.” Nationalism leads to immoral treatment, such as interfering with the right to immigrate.  The logic of Mr. Carens and Mr. Caplan discredits nationalist arguments around the world supporting immigration restrictions, not just those in the American context.

Given Planet Money’s focus on economics, the underlying question posed to the three experts about their preferred immigration regime may really have been: “From a purely economic standpoint, which immigration policy do you believe would most benefit current American citizens?” (Even within these parameters, the proposals of Mr. Peri and Mr. Baker are questionable; open borders, as Mr. Nowrasteh suggests, may have the most beneficial economic impact on the U.S.) Actual policymaking, however, should not exclude moral concerns. NPR should air another segment asking guests, “What would be a moral immigration policy?” That would help Americans think more profoundly about immigration policy.

An Apology, Not a Fine

During the last week in January, frameworks for American immigration policy changes were unveiled by both President Obama and a group of senators from both parties. Both frameworks propose legalizing the status of millions of undocumented immigrants, which would be wonderful for these individuals. However, both involve the payment of a fine as part of the application for legal status. While legalization with a fine is preferable to the status quo, imposing a fine is inappropriate.  Undocumented immigrants deserve an apology with their legalization, not a fine.

These fines of unspecified amounts are apparently meant to punish immigrants for violating the law by either entering the country without permission or staying beyond the period of time permitted by their visas. Mr. Obama’s framework states that “immigrants living here illegally must be held responsible for their actions by passing national security and criminal background checks, paying taxes and a penalty…” The senators’ framework states that their legalization process would involve undocumented immigrants “… settling their debt to society by paying a fine and back taxes…”

But haven’t undocumented immigrants residing in the U.S. been punished enough? Many have had to endure the expense and hardship of sneaking across the U.S. border, paying smugglers large amounts for their services, and exposing themselves to harsh terrain, weather, and criminals. Once in the U.S., they have faced limited employment opportunities, often having to work for low wages under abusive employers who ignore labor laws. They have had to live with the constant fear of apprehension, detention, and deportation of either themselves or family members. Some have been separated from family members who have been detained or deported.

Moreover, prohibiting their entry or ability to stay was immoral in the first place. The Open Borders site offers a number of arguments showing that restricting immigration is unjust.

Another argument against restrictions which is germane to American policy can be added.  While the argument on its own does not make a complete case for an open borders immigration policy, it does create a presumption in favor of such a policy in which the burden is on opponents of the policy to prove that it would not be not morally correct.  The argument is founded on the concept that a large portion, probably a majority, of today’s Americans are the beneficiaries of largely open immigration policies for Europeans and Canadians which existed before restrictionist laws were instituted in the 1920s. Until the federal government took control of immigration in the late 19th century, colonies and then the states had some restrictions on the immigration of some groups, such as paupers. However, Mae Ngai of the University of Chicago states in Impossible Subjects: Illegal Immigrants and the Making of Modern America that “until the late nineteenth century in the United States, immigration was encouraged and virtually unfettered.” Even after the federal government assumed control of immigration in the late 19th century, Ms. Ngai notes that “as a practical matter mass immigration from Europe faced few legal impediments in the late nineteenth and early twentieth century… Despite the growing list of excludable categories, the Immigration Service excluded only 1 percent of the 25 million immigrants from Europe who arrived in the United States from 1880 to World War I.” Before the 1920s, immigrants did not face the maze of requirements that exist today, such as having family in the U.S., particular skills, or a job offer, nor were there annual limits on the number of immigrants.

How many Americans today are U.S. citizens because their European or Canadian ancestors were able to easily immigrate before the 1920s? Probably a majority. About 63% of the current U.S. population is non-Hispanic white. It is difficult to precisely determine the percentage of this group whose ancestors came before the 1920s, but some estimates can be made. In 1920, before the restrictive immigration laws, about 95 million out of the about 106 million people in the U.S. were counted as “white,” which one can safely assume were the immigrants or descendants of immigrants who benefitted from the open immigration laws. While about 13 million European, Canadian, and Oceanian immigrants have arrived since then, it is safe to conclude that a large majority of today’s European Americans, perhaps about 90%, are the descendants of the 95 million “white” Americans from 1920. European Americans are still the largest demographic group in the U.S. today, and most of them (myself included) are citizens today due to the much more open pre-1920s immigration systems.

There are other fortunate European Americans who owe their citizenship to ancestors who broke the immigration laws of the 1920s or the restrictionist laws that replaced them. Attesting to the fact that many European immigrants have been illegally in the U.S. since the 1920s, the Immigration Policy Center states that about 200 thousand Europeans illegally present in the U.S. received amnesties from 1925 to 1965. One illegal entrant was the grandfather of Frank Bruni. Mr. Bruni, a columnist for the New York Times, writes that his Italian grandfather entered the U.S. illegally in 1929 and that “… for a long time, like the estimated 11 million illegal immigrants at the center of our current political debate, Mauro Bruni wasn’t supposed to be here. He was trespassing in the country he came to love more fiercely than the one he’d left, the country in which his children and their children would lead highly productive lives, pay many millions of dollars in taxes over time, and get to be a small part of the decision, as voters, about how we were going to treat his spiritual descendants, who traveled here as he did: without explicit invitations or official authorization but with such ferocious energy, such enormous hope.” While not advocating for open immigration, Mr. Bruni adds that “more Americans than admit or even know it have roots like mine and are the flowers of illegal immigration… it must inform our understanding of the people whose tomorrows are in the balance.”

The Immigration Policy Center notes that “many people assume that their family immigrated to the U.S. legally, or did it ‘the right way.’ In most cases, this statement does not reflect the fact that the U.S. immigration system was very different when their families arrived, and that their families might not have been allowed to enter had today’s laws been in effect.” Most of today’s Americans should recognize that their citizenship is due to the good fortune that their forebears entered when America was mostly open to immigrants or that when the gates were later mostly closed their predecessors broke the law to get here. The implication is that the imposition of harsh immigration laws by these Americans on today’s immigrants may be unjust, and, in cases where the ancestor broke the law, hypocritical.  Unless there is strong evidence that an open immigration policy is not morally correct (other arguments show that an open borders policy is indeed the only moral policy), current immigrants should be allowed to move as freely (or more freely) into America as did the ancestors of most European Americans.

Almost twenty years ago, after undocumented immigrants from China arrived on a ship named the Golden Venture that ran aground off Queens, New York, A.M. Rosenthal of the New York Times wrote in a column entitled “Give Them a Parade”: “Let them in, those heroes from China, those men and women who sought the beautiful land, let them out of detention as swiftly as possible and then treat them with the courtesy, dignity and respect their brave hearts merit — that is what America should do for its own soul’s sake…we can show we remember who we are — a city that was made in large part by immigrants and refugees — by opening ourselves to their spiritual descendants, the Chinese of the Golden Venture.” A parade for the millions of undocumented in the U.S. today might not be feasible. But legalization without fines would be. So would an apology, for unjustly imposing immense suffering on a group that came to America with the same dreams as immigrants of past centuries.

The Administration’s Deferred Action Policy: Is the Glass Half Full or Half Empty?

For the open borders advocate in the United States, policy changes which modestly expand the opportunity for more people to live and work legally in the U.S. create ambivalence. The beneficiaries of the changes gain access to the American job market and can live without the fear of deportation. At the same time, the limitations of the new policies highlight the plight of those still excluded from freely entering or staying in the U.S. The Obama administration’s Deferred Action for Childhood Arrivals, or DACA, which allows some undocumented immigrants to temporarily stay in the U.S., is a stark example of such a policy change.

The administration’s action certainly helps a sympathetic group of immigrants. Since August 2012, many undocumented individuals 30 years old or younger who came to the U.S. when they were younger than 16 have been eligible to receive deferred action, which allows them to stay in the U.S. and receive work permits for two years. Individuals have to have been in the U.S. for five years or more, have generally clean criminal records, and be in school, have graduated from high school, or be military veterans. The two year period is renewable. According to the National Immigration Law Center, over one hundred thousand immigrants have received deferred action under DACA, as of December 13, 2012. It is estimated that over 1.5 million immigrants could benefit from the administration’s action. These individuals could lead happier lives with unlimited work opportunities, access to driver’s licenses, and the chance to live without the fear of imminent deportation.

There are several reasons to be concerned about DACA, however. First, there are significant weaknesses in the policy itself. By applying for deferred action, undocumented immigrants are making the government aware of their immigration status, making them vulnerable to future deportation. According to a document produced by several legal groups, “Attorneys are advised to warn their clients in writing that even for prima facie eligible cases, deferred action is not guaranteed. The warning should further explain that applicants will be revealing and, in most cases, documenting their removability to a government agency that can initiate removal proceedings.” A future administration that is opposed to the policy could quickly rescind it. Underscoring the temporary nature of deferred action, the legal groups’ document states that “DHS can renew or terminate a grant of deferred action at any time.”

Second, some of the rhetoric by supporters of DACA suggests that the parents of the young immigrants are to blame for the perilous immigration status of their offspring. In announcing the new policy, Mr. Obama suggested these younger immigrants should not be deported “simply because of the actions of their parents.” (transcript of speech) This is reminiscent of comments made by those who want tighter immigration policies which blame undocumented immigrants for any suffering their children experience from immigration enforcement actions. As reported in the New York Times, Rosemary Jenks, from the restrictionist group NumbersUSA, “said the responsibility for the impact on children of the deportations rests with their parents. ‘If parents are going to come here illegally, unfortunately the child faces the consequences as well…’”

Such remarks by DACA supporters communicate the wrong message to the public about what has caused the young immigrants’ predicament. The threat of deportation for these immigrants ultimately stems from immigration restrictions, not from any fault of the parents. By bringing their children to the U.S. to improve their lives, the parents have shown great dedication toward them. Seeking a quality education, safety, and economic well-being for one’s children is the epitome of being a responsible parent. Conversely, keeping your children in a country that is unsafe, has weak schooling, and/or offers limited economic opportunities in deference to U.S. immigration laws could be considered poor parenting. The rhetoric also implies a dubious distinction between “worthy” immigrant sons and daughters who deserve protection and “unworthy” immigrant parents who do not. (The credit for this criticism of dividing immigrants into worthy and unworthy groups goes to the organization No One Is Illegal.)

Third, DACA protects only a small portion of undocumented immigrants from deportation. Most of the millions of undocumented individuals in the U.S. do not meet the criteria to apply for deferred action. This has been illustrated in recent cases reported in the media. In one, a Mexican woman and her daughter won money at an Arizona casino, but after the casino called the police when they thought their identification was fraudulent, the government learned that the two were undocumented. They were both arrested, but while the daughter was released because she qualified for DACA, the mother was deported because she did not qualify. In another Arizona case, a woman who had been granted deferred action status under DACA watched as her mother and brother were arrested by immigration agents at their home. The mother and brother were released the next day, apparently only because of pressure on the Obama administration, but still face the possibility of deportation. The pressure existed because the woman who had benefitted from DACA was a well-known advocate for young undocumented immigrants.

The policy is an example of the arbitrary and invariably unfair nature of immigration laws. For instance, it does not help immigrants who are 31 years old, who have only lived in the U.S. for four years and eight months, or who came to the U.S. when they were sixteen. It does not help those who did not complete high school, even though they may be upstanding members of their communities. No One Is Illegal has articulated nicely the inherent unfairness of having the government determine who may immigrate and who may not: “… the achievement of fair immigration restrictions… would require a miracle.”

Similar problems will arise should the DREAM Act or “comprehensive immigration reform” be enacted.  The only way to permanently fulfill the hopes and dreams of all immigrants is to regularize the status of current migrants and move towards open borders for prospective future migrants, possibly incorporating some of the keyhole solutions to address restrictionist concerns.  Not only will all immigrants gain when these changes are made, America will have instituted a just immigration policy it can be proud of.