All posts by John Lee

John Lee is an administrator of the Open Borders website. Liberal immigration laws are a personal passion for him. See all blog posts by John.

A DREAM Act for Singapore? Or, the arbitrariness of nationality-based residence laws

There is a 19-year-old Filipino citizen who has literally lived her entire life in Singapore who, as of this writing, risks being kicked out of the only country she has ever called home:

Nadirah was born out of wedlock in Singapore and given a Filipino citizenship, as her mother was a Filipino. Along with her five siblings, two other siblings are also non-citizens while the other three siblings were given citizenship as her parents got officially married in Philippine before they were born.

As Nadirah graduates from ITE, she will soon be asked to return to Philippine once her student visa expires in a month’s time. To be relying on relatives whom she never spoken to for years and a country where she has no memory of, the situation looks utmost depressing for this young lady with a uncertain future.

Nadirah’s situation reminds me all too much of the “DREAMers” of the US –young people who are present in the US without lawful immigration status who have spent most, if not all, of their lives as law-abiding members of US society. The immigration laws of Singapore ought to give people like her relief: there’s an argument to be made that even if she doesn’t deserve citizenship, she certainly ought to be able to reside in the only country she’s ever called home.

But we ought to look beyond the specific issue of young people whose paper nationality does not match the nationality written on their hearts. There are plenty of older people who, whether or not they feel a sense of national belonging to another country, are productive and harmonious members of that country’s society.

My mother may provide a useful illustration: she is a Filipino citizen who resided in Malaysia with our family for several years on a renewable 1-year “social visit pass”: the Malaysian immigration authorities maintained this legal fiction that she was making a “social visit” to my father for an extended period of time. While this is certainly more favourable than how other immigration legal regimes treat families, it also meant my mother had no legal standing to work in the country (despite possessing a post-graduate degree in a STEM field) and risked deportation or being barred entry for fairly arbitrary reasons.

A real risk my family faced was that if my father died, there would be no legal fiction for her to remain on a “social visit” and force her to return to the Philippines (where she has not lived for decades). Moreover, the restrictions of the pass forced my parents to spend multiple working days every year processing the necessary red tape to renew my mother’s visa (a luxury which many less-educated, working-class families probably can’t afford), and deterred my mother from leaving the country (on one occasion, a bureaucratic error in her visa meant that she risked being unable to re-enter the country if she left, even for a brief visit — so she simply did not visit any friends or family in neighbouring Southeast Asian countries until the next year, when her visa was renewed and the error corrected).

In principle, my family could have obtained permanent residency for my mother. In practice, the immigration bureaucracy seemed content not to bother itself with her application. It’s going on 15 years since her application was first filed, and every single time we’ve checked on its status, we’ve been told: “Wait for a letter from us.” The last time my father visited a Malaysian immigration office to discuss this, he saw a white woman berating a civil servant. She had apparently married a Malaysian who had since died, which is probably why she was there at the office that day. She was shouting at the government clerk in fluent, well-accented Malay: “I have been living in this country for longer than you have been alive!”

(Of course, there’s always a story that can top any story you think of. If we are speaking of immigrants’ pulling rank based on seniority, I can only imagine what a Mr. Padilla, who had lived in the US for over 4 decades and fought for it in the Vietnam War, had to say when he received his deportation order.)

The way we think about immigration law assumes citizens must, more or less, live in the country of their nationality. If they live or develop ties elsewhere, they need to prioritise their loyalties and naturalise as necessary. The permanent residency systems of most countries assume that those holding permanent residency will eventually naturalise: I have heard of one Malaysian holding permanent residency in the UK who calls both the UK and Malaysia home being frustrated at the UK border when its immigration officers demand to know why she wants to come in (“because it’s my home!”).

Yet there is no reason to bind citizenship and residency together: even in the status quo we can simply define citizenship as membership in a polity, and residency as the right to reside there and submit to that polity’s laws. Perhaps Nadirah wouldn’t be satisfied without citizenship — she might have grounds for this, since it sounds like she has always thought of herself as a Singaporean. But she and her Singaporean friends and family would still find this arrangement a whole lot more palatable than the alternative, which is to expel her as a non-resident to a country that is just as foreign to her as it is to Lee Kuan Yew.

The very fact that some of Nadirah’s siblings are Singaporean citizens and some are not speaks volumes about the arbitrariness and ridiculousness of how immigration law treats human beings: the entire lives of people, and the communities they are embedded in, hinge on some pieces of paper. Whether it’s a birth certificate (God bless those lucky people whose foreign parents were rich enough to give birth to them in the US and entitle them to American citizenship) or a marriage certificate (which gave some of Nadirah’s siblings the legal imprimatur that she lacks), it serves as an entirely arbitrary division between people who, for all other intents and purposes, are identical.

If immigration policy prevents people who call a place their home — a home that their community recognises as theirs — from actually living in that home, then as a moral matter, immigration policy is wrong. Plain and simple. We recognise the moral truth of platitudes like “Home is where the heart is.” We may sing paeans to the importance of community and how that defines the space we call home. But when home is on the line for members of our communities who, by an accident of birth, don’t have the legal right to live in their own home, do we have the moral courage to change the laws which make a mockery of the concepts of home, family, and community?

Comparing US states by their unauthorised immigrant population

California is a common rhetorical example used to illustrate the harms of immigration (unauthorised or otherwise) in the US. People point to California’s runaway government debt, poor public school system, and rising rates of social disorder/crime as the inevitable consequences of more liberal immigration policies. I thought it might be worth pulling together a 50-state view (plus the District of Columbia) to see what we can generalise from a ranking of jurisdictions by their unauthorised immigrant populations.

The Pew Research Center has provided some estimates of the unauthorised immigrant population by state in 1990 and 2010 (see tables A3 and A4), and I combined these with US Census Data of the population by state to calculate the share of unauthorised immigrants in each state’s population in 1990 and 2010. It was then a simple step to calculate how much the unauthorised immigrant population has grown or shrunk over the intervening 2 decades.

In 1990, these were the top 10 states (and DC) by share of unauthorised immigrants in their population:

  1. California
  2. Texas
  3. District of Columbia
  4. Arizona
  5. Nevada
  6. New York
  7. Florida
  8. Illinois
  9. New Mexico
  10. New Jersey

In 1990 the bottom 10 were:

  1. Tennessee
  2. Wisconsin
  3. Missouri
  4. Mississippi
  5. Indiana
  6. Iowa
  7. South Carolina
  8. Kentucky
  9. Alabama
  10. Ohio

And as of 2010, here are the top 10 states by share of population:

  1. Nevada
  2. California
  3. Texas
  4. New Jersey
  5. Arizona
  6. Maryland
  7. District of Columbia
  8. Florida
  9. Georgia
  10. New Mexico

The bottom 10 are:

  1. South Carolina
  2. Alaska
  3. South Dakota
  4. Missouri
  5. Ohio
  6. Vermont
  7. North Dakota
  8. Montana
  9. Maine
  10. West Virginia

While I’m not sure what life in these United States was like in 1990, I do know that in 2010 I would much prefer to live in any of the top 10 states ranked by the proportion of unauthorised immigrants in their population than I would prefer to live in the bottom 10. (In fact, I almost live in the District of Columbia: it’s literally walking distance from my current home, though to be fair, the parts of DC that are most accessible to me are also the swankiest. I am quite sure I would not have wanted to live in the District in 1990, however.)

Another way to rank the states would be how much their unauthorised immigrant population has grown. Here are the top 10 states ranked according to the absolute percentage point change in their unauthorised immigrant population:

  1. Nevada
  2. New Jersey
  3. Texas
  4. Maryland
  5. Georgia
  6. Arizona
  7. Oregon
  8. North Carolina
  9. New Mexico
  10. Utah

Meanwhile the bottom 10 (the bottom 3 are actually negative, i.e. the proportion of unauthorised immigrants fell over these 20 years):

  1. New Hampshire
  2. Missouri
  3. Wyoming
  4. South Dakota
  5. West Virginia
  6. Maine
  7. Alaska
  8. Montana
  9. North Dakota
  10. Vermont

Again, I would much prefer to live in most any of the top 10 states than I would in the bottom 10. I lived in New Hampshire/Vermont for the first 4 years of my time in the US (I lived actually on the border of those two states) and as beautiful as they are in the autumn, I can’t say they have much to offer otherwise, especially in the depths of winter (though it would also depend on how much you love skiing or other winter sports). Obviously there is cause and effect here: nice states attract more immigrants. But it does seem clear that if unauthorised immigrants “kill the goose that lays the golden egg” by laying waste to the land of these attractive states, it isn’t terribly apparent from these rankings.

There is one way to slice the data that might be more favourable to restrictionist conclusions, though: we can rank states by the percentage change in their unauthorised immigrant population. So Alabama, with 0.12% of its population unlawfully present in 1990 versus 2.5% in 2010 would have a (2.5 – 0.12) / 0.12 = 1920.2% increase. The low base effect means that these rankings are somewhat suspect, but for your benefit, here they are (along with all the other data I used to construct the rankings above):

State/District 1990 % of pop 2010 % of pop %age point change over 20 years % growth over 20 years
Alabama 0.12% 2.50% 2.38% 1920.19%
Iowa 0.18% 2.50% 2.32% 1288.42%
Kentucky 0.14% 1.80% 1.66% 1227.28%
Tennessee 0.21% 2.20% 1.99% 972.98%
Indiana 0.18% 1.80% 1.62% 897.95%
Ohio 0.09% 0.90% 0.81% 876.24%
North Carolina 0.38% 3.50% 3.12% 828.54%
Wisconsin 0.20% 1.80% 1.60% 780.52%
Arkansas 0.21% 1.80% 1.59% 746.22%
South Carolina 0.14% 1.20% 1.06% 736.71%
Mississippi 0.19% 1.60% 1.41% 724.15%
Georgia 0.54% 4.40% 3.86% 714.40%
Nebraska 0.32% 2.40% 2.08% 657.64%
Hawaii 0.45% 3.10% 2.65% 587.10%
Maryland 0.73% 4.60% 3.87% 528.33%
Pennsylvania 0.21% 1.30% 1.09% 517.91%
Connecticut 0.61% 3.40% 2.79% 458.81%
Michigan 0.27% 1.50% 1.23% 457.72%
New Jersey 1.23% 6.20% 4.97% 404.50%
Oregon 0.88% 4.30% 3.42% 388.88%
Minnesota 0.34% 1.60% 1.26% 366.74%
Missouri 0.20% 0.90% 0.70% 360.52%
Utah 0.87% 3.80% 2.93% 336.46%
Oklahoma 0.48% 2.00% 1.52% 319.41%
Washington 0.82% 3.40% 2.58% 313.67%
Delaware 0.75% 3.00% 2.25% 299.70%
Kansas 0.61% 2.40% 1.79% 296.41%
Colorado 0.91% 3.60% 2.69% 295.34%
Louisiana 0.36% 1.40% 1.04% 293.88%
Nevada 2.08% 7.20% 5.12% 246.08%
Virginia 0.81% 2.70% 1.89% 234.22%
New Mexico 1.32% 4.30% 2.98% 225.74%
Rhode Island 1.00% 3.00% 2.00% 201.04%
New Hampshire 0.45% 1.20% 0.75% 166.22%
Massachusetts 0.91% 2.40% 1.49% 162.53%
Texas 2.65% 6.70% 4.05% 152.91%
Arizona 2.46% 6.00% 3.54% 144.36%
Florida 1.85% 4.50% 2.65% 142.59%
Illinois 1.75% 4.10% 2.35% 134.33%
Idaho 0.99% 2.20% 1.21% 121.48%
District of Columbia 2.47% 4.50% 2.03% 82.07%
West Virginia 0.28% 0.50% 0.22% 79.35%
New York 1.95% 3.20% 1.25% 64.49%
South Dakota 0.72% 1.00% 0.28% 39.20%
Wyoming 1.10% 1.50% 0.40% 36.08%
California 5.04% 6.80% 1.76% 34.90%
Maine 0.41% 0.50% 0.09% 22.79%
Alaska 0.91% 1.00% 0.09% 10.01%
Montana 0.63% 0.50% -0.13% -20.09%
North Dakota 0.78% 0.50% -0.28% -36.12%
Vermont 0.89% 0.50% -0.39% -43.72%

One interesting reaction to all these numbers might be that two decades is too little time to truly assess the long-run impact of unauthorised immigration on a state’s economy and society. So we should be looking for states like Nevada, Texas, New Jersey, Maryland, etc. to become “wastelands” like California over the next decade or two (or at least see some pernicious effects such as bankrupt local governments or increasingly horrid public schools). Then again, many of these states were already in the top 10 in 1990, so it’s not all that clear that we shouldn’t be seeing these supposed effects already.

If you have any thoughts or reactions, feel free to share in the comments. I’ve also uploaded the same numbers in Excel spreadsheet format for ease of use. Hopefully these figures can drive some interesting conversation going forward; it’s quite plausible that I or another Open Borders blogger may return to them in the future.

Imaginary lines: the borders of Southeast Asia and the Nusantara

As I write, a stand-off has been ongoing in East Malaysia for almost a month: the Sultan of Sulu, who in reality is a private Filipino citizen with no sovereignty in his own right, ordered his paramilitary forces to press his historic claim to the territory of Sabah, which has been a state of Malaysia since 1963. Already dozens have died in the conflict. The conflict is a sad reminder of the generally arbitrary and somewhat accidental nature of many borders: it’s purely an accident of history that the main territory of Sulu passed to the Philippines instead of Malaysia, and that its hereditary Sultan is today a Filipino instead of a Malaysian.

Farish Noor, a respected Malaysian scholar who currently teaches in Singapore, recently authored an excellent piece on the subject. Even if you are otherwise completely uninterested in the region, I think it makes for fascinating reading. Farish is by training a historian, and he does a fantastic job of illustrating how the modern nation-state maps rather awkwardly to the way people historically have led their lives, and even awkwardly to the way people live today. A snippet:

Sabahans have never had a problem with other communities settling there, and that is why we still see large numbers of Suluks, Bajaos, Malays and Chinese across the state, settling into mixed families or into smaller settlements. Furthermore Sabahans are attuned to the reality of living in a fluid archipelago, which is why its coastal settlements have always been transit points where people from abroad come in and out with ease.

Just before the Lahad Datu incident I was informed that a large number of Suluks had arrived for a wedding, and they came in without passports and visas, and left peacefully afterwards.

It has been like that in Sabah since my childhood. But my fear is that culture of openness and fluidity came to an untimely and graceless end when some of the followers of the Sultan of Sulu landed with guns and rocket-launchers.

Historian Benedict Anderson chose Indonesia as the classic example of an “imagined community” for a reason: most Southeast Asian states have no real reason to follow the boundaries they do today. The Nusantara (the Malay name for the Malay archipelago, which today maps more or less to Indonesia, Malaysia, the Philippines, Brunei, Timor Leste, and possibly some other states/territories I’ve neglected to name) has historically been, as Farish says, “a fluid space.” The nation-state is an extremely blunt instrument that maps poorly to the multitude of identities — many of which are blended and melded in the same person or household — forming the cultural patchwork of Southeast Asia. The divisions on this map below map more to the arbitrary carving up of the Nusantara by colonial powers in the 19th century than they do to any meaningful differences between their peoples, then or now:

CIA-Malaysia-map[1]

Does this mean we should abolish the nation-state? Work towards no borders, instead of open borders? Not necessarily so, and again Farish is incredibly insightful on this point — so insightful that it’s difficult not to quote him almost in full:

Gone are the days when a Malaysian, Filipino or Singaporean would be born in his country, study in the same country, work and die in the same country. In the near future, we may well live to see the birth of the first ASEAN [Southeast Asian equivalent of the European Union] generation who are born in one country, study in another, work in another and die in another, all the while feeling that he or she is still at home, in Southeast Asia.

But for this to happen, we cannot bypass the nation-state entirely; for we need the nation-state in order to transcend the nation-state. We need the nation-state to evolve where it may one day accept the reality that its citizens have multiple origins, multiple destinies, multiple and combined loyalties.

We need to work towards an ASEAN future where our governments may come to accept our complex, confounding hyphenated identities as something normal, and not an anomaly; when someone who is Javanese-Dutch-Indian-Arab like me can claim to come from Indonesia, be born in Malaysia, work in Singapore and love the Philippines.

Ironically, this is the impasse we are at today: To revive our collective memory of a shared Southeast Asian past, we need to work with and through the nation-state as the dominant paradigm that governs international relations.

Like Farish, I see no necessity for the abolition of the nation-state. The nation-state is a tool of governance; it is not a suicide pact. Where the nation-state furthers our lives by protecting us from harm and pursuing the common interest, all is well. But we should not ramshackle the nation to the state and the state to the nation.

I am the global version of Farish’s ASEAN citizen: I am of Chinese-Filipino descent, born in Japan, raised in Singapore and Malaysia, studied in the US and the UK, and now working in the US. I have multiple affiliations, loyalties, identities. These are just as arbitrary as the accidents of fate that determine which sports team you root for, and yet no less meaningful. We have learned to live and let live in our sporting affiliations (for the most part, the occasional European football or Canadian hockey riot notwithstanding), recognising their arbitariness but reveling in their significance. We can do the same with the nation-state and its borders.

Borders serve a purpose: they delineate the laws and institutions which govern a territory. To the extent that our legal institutions need to track comings and goings of people, just as they do with goods or services, they can erect border checkpoints and controls. To the extent that they need to maintain order and forestall invasion, they can forcibly keep people out at these checkpoints. But that is all. We need not make a fetish out of these borders: they are significant but arbitrary boundary markers. There is no reason beyond prejudice to arbitrarily keep some people out, and arbitrarily let others in. When we keep people from seeking gainful employment, when we keep friends and families apart, we need a good reason to do so.

The nation-state once was an instrument for oppression: initially oppression of domestic subjects by the sovereign, later the oppression of foreigners in distant lands. Over time, we have discarded the oppressive aspects of the nation-state, and embraced the state’s furtherance where it seems beneficial. And so as Farish says, the clarion call for open borders is not to abolish the nation-state: it is to take the nation-state toward the next step in its evolution.

What is the most fundamental human right? A lesson from North Korea

The title of this post may be a trick question, considering that the name of this website is Open Borders: The Case. I recently finished reading Only Beautiful, Please: A British Diplomat in North Korea (Amazon link), authored by former British ambassador to North Korea John Everard. Everard lived in Pyongyang and built relationships with many North Koreans in the professional class, which is how he came by the information in his book.

The book is interesting for many reasons — how often do we get a look inside the world’s most secluded and arguably most oppressed society? But from an immigration standpoint, one passage on page 82 of the paperback edition caught my eye:

The attraction of the West was its much higher standard of living, not the ability of Western citizens to speak freely or to vote. The only real freedom that I found my contacts did want was the freedom to travel — to be able to visit relatives without the cumbersome bureaucracy of travel permits, and (among some of the less poor ones) the ability to travel abroad. Cheju Island, off South Korea (where South Korean newlyweds used to aspire to spend their honeymoons before honeymoons abroad became fashionable) was a particular draw; it seemed to have caught the imagination of young North Koreans as a place of great beauty, and I was scolded more than once when I had to admit that I had never been there.

One can argue that North Koreans don’t really understand the value of other freedoms, some which they’ve never experienced at all. But North Koreans have experienced the most closed borders regime in modern history; it seems absurd to argue that they have a significantly better grasp of what it means to have freedom of movement than they do with freedom of speech or the ballot. Yet in one paragraph, Everard captures the burning North Korean desire for freedom that burns brightest: open borders.

Closed borders keep people from working in the legal and social regimes which foster economic prosperity. They keep people from living in legal and social regimes which protect and promote the rights and dignity of human beings. They keep people apart from their most loved ones. They keep people away from the beauty of new experiences, new sights, and new sounds.

The complaints most of us have about our lives and our governments pale in comparison with most anything a North Korean has the right to complain about. And yet the one freedom North Koreans seem to want most is the freedom most of us lackadaisically dismiss as one not worth thinking about. Modern passport and visa regimes force people to live under unjust governments or hollow economic systems. They tear people away from their friends and family. They prevent people from learning new things about the world, prevent them from experiencing new wonders of life and nature.

You may argue that allowing people the presumptive right to travel where they wish is too much of an imposition on you. Fair enough. But you need to show reason to believe that this is the case — that we can reasonably believe a sojourner or immigrant to your country will prove an imposition, and that the cost of this imposition is too much for society to bear. You cannot simply say “I just don’t care about you — go on and suffer, because you weren’t lucky enough to be born in my country”, unless you wish to disclaim any pretense of common humanity with those foreign to you.

There is an argument to be made that untrammeled freedom of movement for literally all people would be too much of an imposition to bear. But in some sense, this is a strawman: I think most open borders advocates believe that a single country which immediately opened its borders today would likely face significant costs enough to outweigh the benefits to humanity from its open borders. And I think most open borders advocates are open to revoking the presumptive right to freedom of movement for individuals who constitute proven or likely threats to public order or health. It remains that the focus of our conversation on borders should not be: “Why should we have to let them in?”

After all, most people are not thieves or criminals. Most people don’t carry contagious diseases that threaten public health. We should be asking ourselves: “Why should we have to keep good human beings out?” The burden of proof has to be on those who would deny to any human being, born in North Korea or not, a most fundamental human freedom, a freedom that is perhaps second only to the right to life itself: the freedom of movement. Without movement, we have no agency in our lives; without movement, we lose all that makes life worth living.

True stories from immigration law: US citizens have no right to be with their spouses

The US legal doctrine of consular nonreviewability leads to over a million people being refused visas every year, with no legal avenue to challenge the consular officer’s decision, no matter how arbitrary, prejudiced, or groundless it may be. But beyond affecting these foreigners’ lives, there are real effects on US citizens too. One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed. Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.

Filipino-Hawaiian lawyer Emmanuel Samonte Tipon last year blogged a useful overview of relevant cases touching on when someone might have legal standing to sue for judicial review of a visa application. Let’s go over them one by one.

  1. Sabataityte v. Powell: Sabataityte was denied a visa because the Warsaw consulate believed she had been previously unlawfully present in the US. She challenged this determination. The courts ruled that regardless of the merits, she had no right to mount such a challenge.
  2. Saavedra Bruno v. Albright: Saavedra was denied a visa, and had another visa revoked, because the US government believed he had previously illicitly trafficked drugs (based on a hit when they searched his name in a database). This was news to Saavedra and his American employer, both of whom sued the government to present the evidence so they could challenge the determination that he was a drug trafficker. The courts ruled that both Saavedra and his American employer had no legal basis to confront the claims against him or challenge the visa refusal.
  3. Hermina Sague v. United States: Sague, a citizen, married Berger, a Frenchman, and applied to permit him to enter the US so they could live together as a family. The government denied Berger a visa, and Sague sued, insisting she had a right as a citizen to live with her husband in the US. The courts ruled that it was impossible to challenge the consular refusal and moreover, based on legal precedent, “there is no constitutional right of a citizen spouse … to have her alien spouse enter the United States.” Perhaps even more perversely, “once an alien has entered our jurisdiction, even illegally, he may only be expelled after proceedings conforming to the traditional standards of fairness encompassed in due process of law. However … ‘an alien on the threshold of initial entry stands on a different footing.'” In other words, if you want due process, you need to enter the US illegally.
  4. Centeno v. Shultz: Centeno, a Filipino citizen, applied for a visa to visit his American family, and was denied. He and Coane, his American brother-in-law, sued to appeal this decision, arguing that the decision was arbitrary and violated Coane’s first amendment rights to engage in discussion with his brother-in-law. (You laugh, but violation of citizens’ first amendment rights is one of the few grounds citizens have to challenge consular officers’ decisions.) The US Court of Appeal essentially laughed Centeno and Coane out of court in a one-page decision.
  5. Patel v. Reno: Patel, a US citizen, applied for visas for his non-citizen wife and children. The government, suspecting Patel had obtained citizenship by fraudulent means, instructed the consulate in Mumbai to place Patel’s application in limbo, where it laid for 8 years. The courts ruled that since no final decision had been made, this visa application was subject to judicial review. Since the application had been in suspended state for 8 years, the courts ordered the consulate to make a final decision on whether to grant the application within 30 days. At the same time, the courts affirmed that not even the Secretary of State had the power to overturn the visa decision once it had been made.
  6. Kleindienst v. Mandel: A seminal case in US immigration law. Mandel was a Belgian Marxist who had travelled to the US many times to speak. In 1969 he applied for a visa and was refused on grounds of his politics. He and the citizens who had invited him to speak sued, citing amongst other factors, the government’s denial of the citizens’ first amendment rights to freedom of speech. The Supreme Court eventually ruled that an infringement of first amendment rights could be grounds for judicial review; broadly, the consular decision on a visa application must have “a facially legitimate and bona fide reason”. Immigration lawyers regard this as a landmark case for immigrant rights, but in reality, the Supreme Court went on to say that allowing Mandel his visa on first amendment grounds risked destroying the doctrine of consular nonreviewability, since by definition virtually all immigration restrictions infringe on citizens’ first amendment rights. The court then held that Mandel was not entitled to judicial review of the consular decision.
  7. Udugampola v. Jacobs: Udugampola, a US citizen, applied for an immigrant visa for her non-citizen father. The government initially approved the petition, but at the consular interview, the officer there denied the visa because he suspected her father of terrorism. Udugampola and her mother (also a legal immigrant to the US) sued the government. The courts ruled that neither Udugampola’s rights as a daughter nor her mother’s rights as a wife were constitutionally-protected in this case, and they had no basis to challenge the consular decision.

A common thread runs through all these: no matter whose interest are at stake, there is virtually no right to question a consular decision, even if it is based on flimsy evidence or is egregiously wrong. Even if it splits up a marriage, the government has absolute totalitarian power. And these are just the cases which get as far as prominent courts in the US. How many thousands of families must there be, lives ruined by immigration law, around the world? How can any self-respecting person in this day and age reconcile the outright disdain immigration law has for our families and communities with modern ideals of liberty and human rights?

The photograph featured at the top of this post is of Mario Chavez embracing his wife Lizeth through the US-Mexico border fence at Playas de Tijuana. The original photograph is copyright David Maung, and was published by Human Rights Watch; a higher-resolution version is available at their website.