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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.

The “Health Tolls” of Immigration (And Why They Don’t Matter All that Much)

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Post by Evan (occasional blogger for the site, joined June 2013). See:

Sabrina Tavernise’s  recent New York Times article on the “health tolls of immigration” doesn’t seem to have a particularly strong pro or anti-immigration agenda.  If anything it’s more along the lines of one of the “obesity epidemic” polemics which condemn western lifestyles for promoting chubbiness and poor health.  To get the best men’s health advice, click on the link here. Still, it does make some statements about the wellbeing of immigrant populations which it is worthwhile to address.

The main argument of the article is that, in their native countries, immigrants often develop eating habits that are more conducive to good health than the eating habits of the average American.  They typically develop these habits out of necessity rather than desire, they simply cannot afford the large helpings of calorically dense food that Americans regularly enjoy.  When they arrive in America, the article argues, they often lose these habits, and their children often do not develop them at all.  The main statistical support the article uses is a series of studies finding that immigrants have longer lifespans, and lower rates of certain health problems, than demographically similar American-born people. (The studies also mention a factor the article downplays, the simple fact that immigrants tend to self-select for health, since they usually need to by healthy enough to work in order to stay in the country, while their children may regress to the mean).

While any reduction in lifespan is obviously bad, it is not a particularly good argument against increased immigration, due to a number of factors.  The first, and most obvious one is that a small reduction in the quantity of one’s life may be easily made up for in the increase of one’s quality of life.  Even if immigration results in a greater amount of obesity-related health problems for the migrants and their descendants, the greater standard of living they will enjoy due to increased opportunities will likely more than make up for this.

To further put this in perspective, imagine an American politician proposed a program of economic contraction as a solution to the “obesity epidemic.”  Imagine this politician advocated a program where the government would actively destroy high-paying jobs and replace them with jobs so low-paying and menial that those who held them simply could not afford enough food to become obese.  Such a politician would be ejected from office by outraged voters.  This is because, as most people understand, a high standard of living is well worth a certain amounts of health problems.

It is also important to note that the studies compare the lifespans of immigrants to the lifespans of the native-born people of the same ethnicity.  A very different picture emerges when the lifespans of people in the immigrant’s originating country are introduced into the comparison (this is similar to a point that co-blogger Chris made in a previous blog post).  According to Singh and Miller (2004), one of the studies cited by the article, the average life expectancy (at birth) of a Hispanic immigrant from 1986-1994 was 77.1 years for men and 84.1 years for women.  The average life-expectancy of an American-born Hispanic was 72.8 years for men and 81.1 years for women.  This seems bad, until one considers that, according to the World Health Organization (WHO) website, in 1990 the average lifespan for a Mexican man was 68 years, and the lifespan for a Mexican woman was 74 years.  The other Latin American countries were mostly similar, many even had shorter average lifespans than Mexico did.  In 1990 the only Latin American country that beat the USA in even one category was Costa Rica, Costa Rican men lived 75 years on average in 1990 (Costa Rican women, however, only lived 79).

The picture is similar in non-Hispanic countries.  Singh and Miller have American-born Chinese lifespans  from 1986-1994 at 81.6 years for men and 87.1 for women.  By contrast, the average lifespan for a Chinese citizen in 1990 was, according to WHO, 67 years for men and 71 years for women.  And then there is the mortality rate of many African countries, many of which have average lifespans well under 60, or even under 50.   US-born African Americans, who average 64 years for men and 75.5 years for women, seem like Galapagos tortoises by comparison.

The simple fact is, if the inhabitants of a third world country wants to maximize their lifespan, and the lifespan of any children they might have, emigration to the United States still seems like a great bet.  Even if their children don’t live quite as long as their parents, they will still live longer than the children the parents would have had in their native country.  And they will be spending those longer lives enjoying more wealth than their hypothetical siblings in their parent’s native lands would have.  Any increase in health problems the American lifestyle creates are far outweighed by its many benefits.

Introducing Evan

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We’re happy to announce Evan will be joining Open Borders: The Case as an occasional blogger!

Evan is a librarian from Ann Arbor Michigan. He’s particularly interested in the moral and political philosophy surrounding questions of immigration and intends to examine issues through that lens. It is his belief that immigration restrictions are one of the great moral wrongs of our time. He intends to engage the moral frameworks used to justify open and closed border views, though still being grounded in empirical evidence where appropriate.

We look forward to seeing Evan’s posts and his first contribution will be ready soon!

REMINDER: If you’re interested in blogging for the site in any capacity, please fill out  our potential guest blogger contact form.

An appeal to emotion in the argument for voting rights

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This post is a break from our normal type of analysis for a more personal look at the impact of immigration and restrictions on individuals. The opinions here are not necessarily the same as those expressed by the regular blogging staff at Open Borders. However, we think personal experiences of immigration can still offer interesting perspectives to consider within the wider context of the evidence for and against open borders.

See also 18 years of immigration torment, a blog post by John Lee about the story of Atanas.

I’m an immigrant entrepreneur. For the past 12 years, I’ve been dutifully paying U.S. taxes and contributing to the American economy. I have committed no crimes, and I have never used social security benefits. Yet I still haven’t received permanent resident (“green card”) status, let alone citizenship. At the same time, the kid next door, who just turned 18 and recently got out of juvenile detention, can vote.

This is the beginning of a story told to me by a fellow entrepreneur. He came to the United States 12 years ago as a software engineer, and went through all the hoops of the system. He worked on an H-1B visa for six years, with the associated risks and downsides – inability to switch employers without losing his place in line for the green card, requirement to leave the United States or find another visa sponsor in case of losing his job at once (there no official grace period), and a permanent feeling of impermanence, of not being supposed to grow roots. Why would one purchase assets such as a house if they knew they could be forced to liquidate those assets within days?

Next, he applied for employment-based permanent resident status, a process that imposes waits from 5 to 10 to 70 years (depending on the country of citizenship – a clear case of discrimination), due to a myopic policy of limiting any country (be it China or Montenegro) to a total of 7% of an again artificially limited visa quota of 140,000 per year. Every time he returned to the U.S. from international travel, he had to be “paroled” (a process solely at the discretion of a Customs and Border Protection officer), with the occasional detention for several hours (which happens even if you have a green card).

Today, my friend is still waiting for his green card, while working on a web startup that he founded. Assuming he obtains his permanent residency status this year, it will take another five years until he is eligible to apply for citizenship. By that time, he will have been in the United States for 18 years, as long as his teenager neighbor with a police record. In the meantime though, he risks being kicked out of the country on a technicality, an occurrence far from rare, if we only consider the widely publicized cases in the media:

One of the keyhole solution alternatives to a blanket immigration ban has been preventing immigrants from voting until they become citizens, after passing a test which in its current form is notably inaccurate, and which many natives would probably flunk. In the light of the story I’ve just shared, one must consider the ethical basis for the inequity between an entrepreneur with 18 years’ worth of contributions to the welfare budget, deep familiarity by now with the social, political and economic realities of the Unites States, and a newly minted voter with likely no history of productive employment.

On what possible ethical basis are we to favor the latter?

I will leave the question above as a rhetorical device in the arsenal of open borders advocates. Hopefully it will be useful where reasoned arguments may not convince. If you interlocutor isn’t impressed by the fact that fully 19% of the 2012 Fortune 500 Companies were founded by a 1st-generation immigrant – while only 1% of the U.S. population are high-skilled immigrants – tell them the story of my Indian friend and his neighbor.

The Simplicity and Fairness of Open Borders

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

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

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

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

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

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

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

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