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.

US visa policy: a cross between Kafka, Orwell, racism, and aristocracy

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It’s always fascinating to see an immigration lawyer’s take on how the immigration process works. In 2009, lawyer Angelo Paparelli responded skeptically to then-US Secretary of State Hillary Clinton when she said she would push for a streamlined visa process. Then, he noted the most important thing she could do here would be to pursue the amendment or repeal of an obscure section of the US Immigration and Naturalization Act, noting that this law, § 214(b), is responsible for 99% of all non-immigrant visa refusals:

The 99% rate of § 214(b) refusals is important because:

  • Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa.
  • INA § 291 requires a visa refusal if the applicant “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa.”
  • Under the doctrine of “consular nonreviewability” (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa. Your burden can only be met if it is “to the satisfaction of the consular officer.” No one but that officer has the power to decide.

Imagine if you had to prove to a government officer in 1 or 2 minutes why you should be allowed to attend university: you have to prove you won’t fail out, you’ll work hard, you won’t drop out (for any reason), and you’ll go far away after you graduate. Or imagine if you wanted to visit a popular tourist destination or travel for work, but had to prove to a government official in 1 or 2 minutes that you would go home afterwards (and wouldn’t abuse your travel approval to, say, move nearby or find a job there). Prove all this, in 1 or 2 minutes. To someone whose decision is final, and can never be overturned.

This particular provision is so noxious that it is cited multiple times in this UC Irvine report on international students in the US. Its repeal or replacement was an explicit recommendation of the report. The American Bar Association has (since 1990, according to Paparelli) recommended that the US government “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles.”

Yet a 2005 State Department report reviewing section 214(b) suggested the only way to improve it would be to expand it to include all classes of visas other than green cards. The State report explicitly considered the possibility of limiting consular officers’ totalitarian discretion, but rejected this out-of-hand on the basis that any publicly-published standards or requirements for visa approval ran the risk of increasing application fraud. The report stressed instead the importance of officers’ discretion and flexibility in feeling out visa applicants’ intent; no need for any explicit policy here. In other words, the US government doesn’t want you to know how you can get in!

The consequence of consular officers’ power to make or destroy lives in the span of a few minutes? Lord Acton: absolute power corrupts absolutely. Angelo Paparelli later followed up with some of the most ready-at-hand and egregious examples of consular abuse. He brought up two New York Times stories:

  1. Septuagenerian German theatre director Peter Stein being denied a visa because he refused to laugh at a consular officer’s joke and instead complained he had to stand for 2 hours waiting for his consular interview
  2. Former US consular officer Robert Olsen suing State for wrongful termination after he refused to implement a visa policy he considered racist and discriminatory against the poor

The second case is especially striking because Olsen presented documentation for his claims; the full judgment is especially worth reading, and I plan to write about it separately. Just note for now that some documented reasons for denial of US visas which Olsen complained about include gems like “Slimy looking[;] wears jacket on shoulders w/ earring” and “Bad Appearance. Talks POOR.” Paparelli concluded:

Regrettably for most refused visa applicants who lack the notoriety and influence of a Peter Stein, arbitrary consular decisions to deny a visa are virtually impossible to overturn… The Immigration and Nationality Act (INA), as interpreted by the courts, has enshrined in law “doctrines” of “consular nonreviewability” and “consular secrecy” (INA § 222(f) [8 U.S.C. § 1202(f)]) that in virtually all instances deprive the public, the courts and stakeholders (foreign visa applicants and their American sponsors) of a means to hold consular officers accountable. The interests of fair process, impartial consideration, respectful treatment, government transparency, the cultivation of a favorable opinion of the U.S. among citizens of other countries, and the application of solely lawful grounds to grant or deny a visa — all of these are thrown under the bus.

People in the US complain about feeling degraded when they have to choose between an X-ray and a pat down by Transportation Security Administration officials. How about placing your life in the hands of a government official who has the power to cut you off from your education (and, if the State Department had its way with H visas, your job) for something like “Bad Appearance. Talks POOR”? And no government official, not even the President himself, can do anything about it. US citizens may be tempted to complain that their treatment at the hands of the TSA makes them feel like they live in a police state. But it really is the over 1 million people who are refused US visas every year that truly know the feeling of a US government boot stamping on the human face forever. US visa policy:

  1. By design has no clear rules or guidelines
  2. Gives consular officers totalitarian power which not even the President can cross, thus empowering them to oppress people who:
    1. Come from the wrong racial or national background
    2. Look poor

Disdain for basic fairness and human dignity: that’s just plain US visa policy. Have a nice day folks.

The photograph featured at the top of this post is the identification photo of Wong Kim Ark, a descendant of Chinese immigrants to the US who successfully sued the US government for US citizenship in 1898.

Humiliating and dehumanising: border controls

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I’ve often found it a bit odd how civil libertarians get so upset about the introduction of strict travel regulations post-9/11. The TSA is a favourite whipping boy of civil libertarians, across the political spectrum. Whether you lean Democratic, Republican, Green, or Libertarian, you have little love lost on the TSA. A number of potential explanations come to mind:

  1. Most post-9/11 intrusions on civil liberty are abstract, but everyone who flies gets exposed to this
  2. People get upset that an act as mundane as human movement is presumed to be a danger until proven otherwise
  3. The opacity and arbitrariness of transport regulations terrify and upset people

The true answer is likely to be some combination of these (plus other factors I’ve probably not even thought of). When reading security blogger Bruce Schneier’s summary of the harms of post-9/11 security, factor #3 especially stood out to me. This paragraph in particular stuck a chord:

…if you’re on a certain secret list, you cannot fly, and you enter a Kafkaesque world where you cannot face your accuser, protest your innocence, clear your name, or even get confirmation from the government that someone, somewhere, has judged you guilty. These police powers would be illegal anywhere but in an airport, and we are all harmed—individually and collectively—by their existence.

Schneier is wrong on that last point — these police powers apply to almost any non-citizen at almost any border control in the world. And we sit down and take for granted that this is right. Even if you have a visa, you are never guaranteed entry. In many countries, the US included, your entry is entirely at the discretion of the enforcement officer at the checkpoint, who can decide that, for whatever reason, you shouldn’t be allowed in.

It’s difficult I find to really explain what this feels like to someone who has never experienced it personally. My aunt, who has been a US citizen for two decades, still recounts vividly how happy she was to gain citizenship because she would no longer live in fear of her green card being taken away, or of being denied entry every time she re-entered the US after visiting family and friends abroad. At my company, stories abound of people who flew home to visit relatives and wound up being stuck there for months after they were denied re-entry to the US for various bureaucratic reasons. And figuring out this Kafkaesque maze of bureaucracy is more opaque than you might think: the official position of the US government is that the only way one can see one’s own immigration records on file with the government is to file a Freedom of Information Act request — even if one needs these files to fight a deportation proceeding.

Governments take liberties with foreigners’ rights in ways that they would never dream of doing to their own citizens. The concept of due process is at best tenuously applied to dealing with foreigners. One UK Minister recounts seeing whole carts of files being wheeled past him so that officials could truthfully tell Parliament he had “reviewed the files” of those requesting asylum. The way the governments of the world treat people who simply want to cross an arbitrary line drawn on the map is morally wrong.

None of this is to say we ought to abolish borders: open borders and no borders are not the same thing (that’s a debate we can have another time). Those opposed to the “security theatre” that has sprung up since 9/11 don’t demand that law enforcement vanish from the world’s airports. Essentially all of them support the maintenance of airport security checkpoints. Likewise, open borders is not about abolition of border controls: it is about properly according every person the dignity and respect which every human being deserves.

Humane immigration policies would provide prospective visitors and immigrants a clear process for obtaining visas, and grant visas as of right except in unusual cases (such as those with evidence of criminal history or the contagiously ill). All those with visas would be guaranteed entry, again, except in extraordinary cases. Those facing immigration proceedings would be assured access to their files, and would be assured that their case gets the attentive review demanded by due process. These things might sound elementary, but they are near-wholly missing from the immigration process today.

If civil libertarians protest restrictions on domestic transportation, one wonders why so many are silent about the evils of deportation or the arbitrariness of visa policy. The same problems that compel these activists to decry opaque and arbitrary government coercion apply even more in spades to foreigners crossing the border. Here, I think the first reason I suggested for civil libertarians’ concern is the predominant one: the problems of immigrants and other foreigners are simply too abstract for most civil libertarians to bother. That’s literally a crying shame — if libertarians think it’s an unimaginable humiliation to deal with the TSA for a few hours every so often in order to travel, they ought imagine having to deal with an even worse bureaucracy every so often in order to hold down your job and live in your home.

The photograph featured at the top of this post is of a Customs and Border Patrol agent conducting a patdown of a Mexican girl being detained. Courtesy of the US government.

Understanding the place premium, or; building the economic intuition behind open borders

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There are plenty of misconceptions about the place premium — the arbitrary wage gap between different countries of the world. (The term “place premium” was introduced in a working paper titled The Place Premium: Wage Differences for Identical Workers across the U.S. Border – Working Paper 148 by Michael Clemens, Claudio E. Montenegro, and Lant Pritchett. See also our blog posts that mention the place premium). Some common ones include the mistaken beliefs that estimates of the place premium don’t account for purchasing power, or that the place premium doesn’t adjust for characteristics like job type or labour quality. But even if one avoids these missteps, it can be difficult to grasp the source of the place premium and the intuition around why labour mobility would erode the place premium by increasing real incomes worldwide.

Here’s the classic example of the place premium: the bus driver. You take the bus driver in Yemen and transplant him to the US. Same guy, doing the same job, driving the same bus, even. Just in a different place. You’ve just boosted that Yemeni’s income by about 15 times over, because now he’s ferrying highly-productive Americans instead of relatively unproductive Yemenis. He’s driving them between Boston and New York instead of between Sana’a and Aden. And yes, that 15x multiplier is real — it’s the actual point estimate from the seminal paper on the place premium, calculating the premium between Yemen and the US in terms of real wages, adjusted for all statistically-identifiable characteristics of the worker and the job.

Now, you might contend that the Yemeni bus driver isn’t himself being more productive. After all, he’s doing exactly the same job he was before. The extra income he earns now doesn’t represent any increase in his productivity; it just represents some income he’s siphoned away from Americans, who pay a Yemeni bus driver the wages of an American bus driver, even though he’s plainly less productive than the American who might otherwise drive that bus.

This intuition, I think, is related to why people make a couple of rather unintuitive (to me, anyway) conclusions about the place premium and its implications:

  1. Open borders erodes the place premium primarily, if not only, by redistributing the income of richer people to poorer people. The poor of the world do in fact benefit immensely from migration, but this is not because migration makes them more productive. They simply earn an economic “rent” by taking rich-world wages which are incommensurate with their actual poor-world productivity. World GDP does not actually increase from open borders, and rich-world GDP actually falls.
  2. People in poor countries are poor because they are innately unproductive. This is because of one or both of the following:
    1. Levels of productivity are endogenous to you as an individual, not the society you happen to be in. The value of your work is determined by you and you alone, not the society you live in.
    2. Levels of productivity are endogenous to your country of origin. The value of your work is determined by some combination of your personal qualities and the institutions you grew up in. The society you live in has little to no impact on your productivity.

These claims are incredibly unintuitive to me, because even if they might be true to some degree, there isn’t any economic theory or data to support the strong claim that where you live has no impact on productivity. The very fact that economists who study labour mobility consistently conclude that the gains from open borders would roughly double world GDP means that these conclusions are wrong. Moreover, there are plenty of reasons why your intuitions about the relationship between your environment and your productivity ought to run the exact opposite way.

If you lived in a society currently facing a civil war, or a natural disaster, you would be incredibly unproductive. An engineer isn’t of much use in a famine-ridden country; he has to spend most of his time looking for food, instead of designing bridges. The claim that the society you live in has no impact on your productivity is totally unintuitive; of course the engineer becomes less productive if you take him from his comfy home in an OECD country and plop him into somewhere like Somalia or the Congo. So vice-versa, if you find an engineer in Somalia or the Congo, and you take him with you to somewhere like France or Italy, you’ve immediately increased his productivity. He spends less time figuring out how to get food and shelter, and more time figuring out how to build bridges.

You might protest that this is a high-skilled immigrant, so let’s go back to the bus driver. Exactly the same intuition applies. Take an American bus driver and drop him down in Yemen. Would he still really deserve his American wages in Yemen? Sure, it’s no fault of his own that we’ve forced him to live and work in Yemen instead of the US. But the fact is that the Yemenis he’ll be driving around are less productive than his old American passengers. He used to drive software engineers and Starbucks baristas (you laugh, but baristas save productive doctors and executives plenty of time and money) in the US; in Yemen, he drives shepherds and hotel cooks. Given that the entire productivity of being a bus driver comes from ferrying valuable people around, it’s unsurprising that when the economic productivity of the people he transport drops, his productivity drops as well. So vice-versa, taking a Yemeni bus driver and giving him a bus in the US to drive makes him incredibly more productive. He used to support a small, relatively undeveloped economy; now he supports a much more prosperous economy. His taking that American job has directly lowered the transportation costs for quite a few highly-productive people.

You might protest that while this is true at the individual level, you couldn’t simply take every person from Yemen and put them in the US and expect to achieve the same result. You’d be right, which is why nobody that I know of seriously suggests forcing poor people to immigrate to the rich world. It’s the people who have a lot to gain from immigration — those whose potential productivity means they can reasonably expect a substantial wage hike from moving to a better society even just doing the same work they’re used to doing — that will migrate. People who aren’t productive enough to justify the large financial and non-financial costs of moving simply won’t move. Unless you subsidise migration, you won’t see unproductive people swarming highly-productive societies.

Still, on one level, it can seem intuitive to say that if you’re doing exactly the same job in two different places, your productivity doesn’t matter: you should earn the same wage for the same work wherever you are. But that’s actually incredibly unintuitive. Even if you’re just a farmer, your crop yields depend on where you are. If you can buy or rent land elsewhere that is more fertile, you can do the identical job on that piece of land and immediately become more productive. And that’s just the simplest scenario. If you’re a machinist, you are more productive working in a society with a functioning power supply than you are working in a society with frequent blackouts. If you’re a hairdresser, you are more productive working in a society where your clients are corporate executives instead of a society where your clients are subsistence wage-earners — because even if you save your clients exactly the same amount of time and effort, in one society your clients’ time is worth a lot, and in the other it is worth little.

It might be intuitive to conclude that open borders is simply redistribution, allowing unproductive people to claim wages meant for highly-productive people. But some basic economics suggests this can’t be true. If a Yemeni bus driver is 15 times less productive than a US bus driver, he basically will get his passengers lost or injured so often that the only way his employer can find it profitable to keep him on staff is if they slash his wages down to the levels he earned in Yemen — if they slash his high-productivity wages by 15 times. Something has to give: either he has to be productive enough to merit higher wages, or he has to go back to Yemen and back to his old job. Otherwise, he ends up jobless and destitute in the US.

Having travelled on public transport in different countries, I could swallow the claim that a bus driver from a poor country is only half as productive as a bus driver from a rich country (because of poorer driving habits, etc.), though I’d still be skeptical of it. But I’ve never met a bus or taxi driver who is so thoroughly incompetent that I would deem his driving skills worth 1/5th or 1/10th of his professional counterparts whom I’ve encountered in the rich world.

The place premium doesn’t actually mean all the gaps we see between rich and poor countries would disappear under open borders. Even in jurisdictions with open borders, such as between Guam or Puerto Rico and the mainland US, we observe a place premium where it seems the American bus driver earns 25% to 40% more than his statistically-identical counterpart in Guam or Puerto Rico. That probably is explained by true productivity differences (though some of it might also stem from xenophobia or other reasons making it difficult for a bus driver in Guam or Puerto Rico to undercut a bus driver on the mainland). But nowhere in the history of the world have wage gaps as big as the ones we see internationally today been observed. We can quite surely say that most of the place premium comes from arbitrarily coercing otherwise productive people into staying in unproductive regions or societies.

The intuition behind this is clear: your productivity does in fact depend on where you are. You produce more living in Australia than you do in Antarctica for a reason — just as you produce more living in South Africa than in Zimbabwe for a reason. Whether it’s a better geophysical climate or a better political climate, some places just make us more productive citizens and human beings than other places do. We need a damn good reason to arbitrarily force people to stay unproductive — especially when it means consigning them to a life of grinding poverty that would shock just about anyone reading these words.

The photograph featured in the header of this post depicts Italian immigrants laying tram tracks in Springfield, Massachusetts circa 1900.

Changing the US justice system’s views on immigration: Sri Srinivasan a harbinger?

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Sri Srinivasan

The US Senate recently approved (97-0) US deputy solicitor general Sri Srinivasan’s nomination to fill an empty seat on the US Court of Appeals for the District of Columbia. While this sounds dry, it’s actually a pretty big deal: Srinivasan is generally regarded as a lock for the US Supreme Court. Srinivasan himself is an immigrant: he was born in Chandigarh, India, and is the first judge in history of South Asian descent to sit on any US federal court of appeal.

In his response to the Senate Judiciary Committee’s questionnaire, Srinivasan provided some examples of his pro bono legal work (question 25). The very first example listed was his work representing the petitioner at the Supreme Court in Carachuri-Rosendo v. Holder. Although we’ve not discussed this particular case by name on the Open Borders blog yet, it has come up before, when I blogged about New York Times columnist Linda Greenhouse’s shocking realisation at the immorality of contemporary US immigration law. Specifically, this was the case where US Supreme Court Justice Ruth Bader-Ginsburg argued with the lawyer representing the federal government (emphasis added):

Here we are talking about two crimes. One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that. If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill — it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute….

Now seems a fitting time to mention the resolution of this case: the Supreme Court unanimously (9-0) rejected the US government’s argument and reversed the Court of Appeal ruling that would have deported Srinivasan’s client, Carachuri-Rosendo. Lengthy imprisonment or death are about the only sentences I can imagine that would be worse than the one Carachuri-Rosendo was facing. The Jewish Talmud says, “whoever saves a life, it is considered as if he saved an entire world.” Srinivasan and his team might not have saved Carachuri-Rosendo’s life, but they sure as heck came close. This was a worthy case to put front and centre in Srinivasan’s pro bono track record.

In concluding her reflections on immigration law, Greenhouse suggested:

[The Congress that takes a hard line with people who smoke a single joint and take  a single unprescribed pill] would be the same Congress that spent months tied up in knots over how conclusively to prohibit insurance coverage for abortion under the new health care legislation, ostensibly out of concern for the unborn. Maybe someday, members of Congress will display the same concern for those who happened to have been born, but on the wrong side of the border. Maybe, just maybe, the Supreme Court will show the way.

Unfortunately to date, the US judicial system has been extremely deferential to government coercion in the area of immigration, demonstrating an incredible refusal to restrict the government’s reach in this area in almost any way. The doctrine of consular nonreviewability, which is literally rooted in racism, is one good example. Even when there are legitimate interests of US citizens that would be protected by judicial review of the government’s claims to power in restricting immigration, the courts have been reticent to take action.

It is unlikely that Srinivasan will be the judge who finally undermines the immoral foundations of US immigration law — though I think given his personal background and his close work with the Carachuri-Rosendo case, it also seems unlikely he is totally unaware of the arbitrary and senseless nature of US immigration laws. But the 9-0 ruling in Carachuri-Rosendo, as feeble as it is, gives one some hope. I am not a Whig in the historical sense (i.e. I do not believe the march of history is one that is ever onward and upward towards a better future), but I see some sense in the notion of the “expanding circle” of the people whom we regard as our moral equals. Some day, I hope, the US courts will see reason and justice and overthrow the arbitrary, tyrannical reach of modern US immigration laws. Perhaps Srinivasan’s appointment, to the federal courts may be just the start of something better.

Open borders and the impending apocalypse

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A common approach rebutting open borders is to argue that the costs of liberal immigration policies outweigh the benefits to humanity. I’ve never actually seen this belief explicitly expressed in a universalist manner — the argument is usually focused on how immigration will destroy the wealthy economies and liberal societies of the world. But I think this argument is a serious one, and I give it serious credit.

This does not always seem to be the case; one may sometimes feel that open borders advocates are a tad glib in dismissing concerns that open borders might “kill the goose that lays the golden egg.” To be blunt, this is because there is no empirical evidence supporting this claim.ChineseExclusionActHandbill[1]

If we look at the past, the same concerns people have today about Latin American, African, Arab, or South Asian immigrants used to be directed at East Asian, Southern European, and Eastern European immigrants. The same people today who vocally embrace “high-IQ” or “high-skilled” immigration of Jews, Europeans, and East Asians, would find that these very same groups of people used to be the “low-IQ” and “low-skilled” immigrants who were not so long ago literally treated as vermin in their countries. Fears that the unintelligent, criminal, brute Catholic Irishman or Italian, or the conniving and unintelligent Jew, might ruin civilisation turned out to be unfounded.

If current levels of immigration were a harbinger of impending doom, it would be quite easy to prove this. It’s fairly easy to point to anecdotes — but surely laying one’s finger on the data would be easy too. You’d show skyrocketing rates of crime, environmental collapse, or economic depression and clearly link them to immigration in some fashion. Yet no credible academic study I’m aware of has been able to do this. Restrictionist memes blame immigrants for the impending collapse of civilisation in Western Europe or California, yet the actual academic backing for these views is hard to find.

It’s surely not because academics are afraid of voicing politically incorrect views. A vast conspiracy of intellectuals to open the borders and silence such a devastating finding would be quite difficult to keep secret. And yes, one can find credible empiricists skeptical of immigration. Yet the most famous academics whose works actually credibly show negative impacts from immigration — George Borjas and Robert Putnam — both do nothing but disappoint.

Borjas finds that immigration to the US slightly reduces the incomes of the poorest American citizens — something that could easily be addressed through keyhole solutions which redistribute some of the gains from migration to poor natives. Putnam finds that social diversity reduces a theoretical measure of “social capital“, but even his credible result has been challenging for other researchers to replicate. If this is the worst we have to fear from immigration, I say bring it on.

The truth is, we don’t know very well what a world with open borders would look like. We know it would double world GDP — studies of the effects of  greater immigration on world GDP are remarkably consistent in predicting a massive boost to world income, regardless of their theoretical specifications or empirical approach. But given that far too few academics are seriously studying the impacts of immigration in an empirical fashion, we don’t have enough data to say with certainty that much of what we currently know to be true about immigration would still hold true in a world with massively looser immigration policies than today’s. We couldn’t guarantee that immigration would continue to be more or less neutral with respect to native incomes, and have a neutral to positive impact on crime.

But the precautionary principle only militates against immediate open borders. There is nothing stopping us from experimenting with a little more immigration. As the world’s population grows, as humanity grows richer, it makes absolutely no sense that our visa policies are held hostage by the immigration quotas of decades ago.

Open borders advocates actually aren’t asking for much. We simply believe in making the presumption that all who seek to move may do so — a presumption that can be overriden by a clear and pressing need, such as, say, the actual risk that your civilisation might collapse if you don’t shoot the next prospective immigrant in the face. As philosopher Phillip Cole puts it:

In effect all I’m proposing is that immigration should be brought under the same international legal framework as emigration. Immigration controls would become the exception rather than the rule, and would need to meet stringent tests in terms of evidence of national catastrophe that threatens the life of the nation, and so would be subject to international standards of fairness and legality.

I and I think other open borders advocates take concerns about global catastrophe quite seriously. Given that we typically come from universalist and sometimes even nationalist or citizenist moral starting points, we have every reason to be concerned that open borders might mean the end of the world as we know it, in a horrible way. But search the evidence, and you find no actual reason to be concerned about current immigration levels, and every reason to believe that open borders would immensely benefit us all. Even if you don’t find the evidence sufficiently compelling to tear down the border checkpoints right this moment, it’s compelling enough to demand more thorough research and compelling enough to demand experimentation with ever more liberal immigration policies.