Discrimination and the semi-open border

A couple weeks ago the American Civil Liberties Union updated its position on the Senate’s immigration bill. Overall, the ACLU seemed to favor the bill for its path to citizenship and for due process improvements in detention and deportation processes. One of their concerns was that “LGBT couples do not have the same rights as straight couples in immigration proceedings.” The ACLU blog post was written before the US Supreme Court ruled the Defense of Marriage Act unconstitutional, a ruling that for the most part renders moot discrimination against gay couples in the Senate immigration bill, at least at the federal level. Nevertheless, it’s interesting that at a time of cascading victories for gay rights, when even opponents feel the inevitability of gay equality, one instance where discrimination can gain support is that of gay couples bestriding the border.

Of course, I’m probably overstating this effect. Those pushing to discriminate against gays in immigration proceedings are the same as those pushing to discriminate against all-American gays. Yet discrimination is a common theme in immigration restrictions. Though I view it as strategically unwise–not to mention unfair and not altogether honest–to denounce immigration restrictions as inherently racist, it’s also unwise to ignore the blatantly racist history of American immigration policies. Chris Hendrix has blogged about the first major restrictionist legislation, the Chinese Exclusion Act of 1882, but even before this, naturalization (as opposed to immigration) was restricted on explicitly racist grounds. The Naturalization Act of 1790 restricted naturalization to “free white persons” of “good moral character”. This may not be surprising for a nation that allowed legal slavery of Africans and those of African descent for nearly a century, but this racial requirement was the law of the land until the Immigration and Nationality Act of 1952. Immigration isn’t the same as citizenship, yet this unpalatable history is clearly relevant to today’s discussions of immigrant assimilation (citizen or otherwise).

Perhaps partially as a result of this legal requirement, much of the history of assimilation has been entwined with the idea of “whiteness”. The story of the Irish in America, for example, has been one of transforming from a “racial” group into an “ethnic” group. In a reflection on St Patrick’s Day a few years ago on racismreview.com, blogger Jessie writes:

Over the course of the 19th and early 20th century, Irish Americans managed to a great extent to enter and become part of the dominant white culture. In an attempt to secure the prosperity and social position that their white skin had not guaranteed them in Europe, Irish immigrants lobbied for white racial status in America. Although Irish people’s pale skin color and European roots suggested evidence of their white racial pedigree, the discrimination that immigrants experienced on the job (although the extent of the “No Irish Need Apply” discrimination is disputed), the simian caricatures they saw of themselves in the newspapers, meant that “whiteness” was a status that would be achieved, not ascribed.

For some time now, Irish-Americans have been thoroughly regarded as “white.” Evidence of this assimilation into whiteness is presented by Mary C. Waters (Harvard) in a recent AJPH article, in which she writes that the once-rigid lines that divided European-origin groups from one another have increasingly blurred. Waters goes on to predict that the changes that European immigrants have experienced are “becoming more likely for groups we now define as ‘racial.’” While I certainly agree that the boundaries of whiteness are malleable – it is a racial category that expands and contracts based on historical, cultural and social conditions – I don’t know if it is malleable enough to include all the groups we now define as ‘racial’ Others.

Emphases in original. The intimate relationship between whiteness and American assimilation is possibly best described in the language of historical court decisions. In a paper titled Immigration and the Meaning of United States Citizenship: Whiteness and Assimilation (ungated here), SMU law professor George Martinez quotes some real legal gems:

[Assimilation] as a proxy for whiteness is confirmed by the United States Supreme Court’s decision in United States v. Thind. In rejecting an immigrant from India’s claim to whiteness and the right to naturalize, the Court explained that Indians were unable to assimilate:

The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.

Lower court cases further confirm a connection between assimilation and whiteness. In United States v. Cartozian, the court considered whether Armenians were white. Connecting assimilation with whiteness, the court held that “it may be confidently affirmed that the Armenians are white persons, and moreover that they readily amalgamate with the European and white races.” Similarly, in In re Ahmed Hassan, the court held that Arabs were not white persons, observing that

it is well known that they are part of the Mohammedan world and that a wide gulf separates their culture from that of the predominantly Christian peoples of Europe. It cannot be expected that as a class they would readily intermarry with our population and be assimilated into our civilization.

Martinez goes on to quote the Supreme Court’s logic upholding the legality of the Chinese Exclusion Act: “[If Congress] considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … [Congress’s] determination is conclusive upon the judiciary.”

Explicit racism in immigration restrictions persisted after the Immigration and Naturalization Act of 1952 formally severed the concepts “American” and “white”. In a curious collusion of Mexican emigration restrictionists and American immigration restrictionists, “Operation Wetback” was launched in 1954 to deport illegal Mexican immigrants and limit further Mexican immigration. The dangers, of course, are that a long history of racist justifications for immigration restrictions doesn’t just disappear down the memory hole when the law is officially changed and that explicit racism in American immigration policy has merely been replaced by implicit racism. One place to start looking for such implicit discrimination would be in the federal Secure Communities program, which has been criticized for encouraging racial profiling.

But I don’t want this post to be entirely about the historical connection between immigration restrictions and racism. Another, more subtle kind of discrimination is at play in the modern immigration debate, even in more enlightened quarters: discrimination against lower classes. A recent incarnation of this is the moralized evocation and denunciation of a “moocher class” composed of the lazy poor who take handouts from the government and give nothing back to society in return. The reality is somewhat different, with many upper class individuals failing to realize when they have benefited from government programs. As with racial discrimination, discrimination by socioeconomic class makes generalizations about large groups of individuals and judges them to be somehow worth just a little less than the dominant group.

This class discrimination arises in the distinction between “skilled” and “low-skilled” immigrants. Many people skeptical of allowing more low-skilled migrants across the border can even be quite enthusiastic supporters of more immigration of skilled workers. Reihan Salam of the National Review has summed it up this way:

The goal of means-tested benefits and publicly-funded human capital investment is to better the lives of all members of the American polity, but particularly the most vulnerable, by giving them a foundation for participation in our shared economic and civic life. We might disagree about how much we ought to spend and how these programs are structured, with people like me favoring a limited scope for social programs, choice and competition, and an emphasis on work supports, etc., but support for the idea of a safety net and a place for the public sector in education is pretty firmly entrenched. When we expand the American polity, it makes intuitive sense that we would want to do so by welcoming individuals who are already well-prepared to fully participate in economic and civic life, as we’ve learned through long experience that people who are ill-prepared will face tremendous difficulties, as will their children. For a variety of reasons, individuals with 8th grade education and limited English proficiency are less likely to flourish in the U.S. than individuals with a college education and a high degree of English proficiency. If it is also true that less-skilled and less-affluent U.S. residents with limited English proficiency benefit more from an influx of skilled immigrants (potential customers or complements) than from an influx of less-skilled immigrants with limited English proficiency (potential competitors), the case for a more selective, skills-based immigration policy becomes even stronger.

While this technocratic approach sounds sensible enough from some national central planner’s perspective, it sounds paternalistic from a view closer to the ground, as if those who are deciding when and how to “expand the American polity” are protecting low-skilled migrants from the “tremendous difficulties” of living in a developed country. People have been migrating to strange new places with novel difficulties to navigate ever since we spread beyond Africa. As autonomous agents directing the course of their own lives, presumably migrants have assessed the risks and difficulties of migrating to a new country and have judged their chances of flourishing to be greater with moving than with staying. This is true even for migrants “low-skilled” but nonetheless savvy enough to pursue higher wages when and where they can be found. If “low-skilled” workers will fail to flourish in a high-income host country, then they will almost certainly fail to flourish to a greater degree in their poorer countries of origin. And of course flourishing may be relative, with modest living in a rich country amounting to serious comfort to those who have only experienced modest living in a poor country.

The paternalistic, for-their-own-good argument seems to be a thin veil concealing the desire to make the “American polity” look a certain way.  The low-skilled migration restrictionists do not seem to be concerned with removing poverty so much as with removing poverty from view. I suspect the distinction between low- and high-skilled immigrants is really a euphemism for discriminating against poor and lower class immigrants. High-skilled immigrants, regardless of absolute wealth levels, are usually richer than low-skilled immigrants and they are certainly more educated. High-skilled immigrants have grown up in families that would be considered culturally elite or at least middle class in their countries of origin (this is how they attained the human capital to qualify as “skilled”). As such, high-skilled workers will more easily fit into “nice” parts of the rich world, like suburbs and medical schools. And they will do the host country the benefit of adding diversity to these institutions, making them appear more inclusive while still keeping out the riff-raff. They will not need to live in dense slums many-to-a-room in living conditions middle class natives find distasteful.

Low-skilled immigrants, by contrast, are more likely to come from lower social classes in their countries of origin and this will translate immediately, if not permanently, into a similar socioeconomic status in a rich host country. With that status come all of the disadvantages the native poor face, with the additional disadvantage living under constant threat of unceremonious deportation.

I don’t doubt the desire of folks like Reihan Salam to improve the lots of low-skilled natives, and even better, their desire for an institutional framework in which low-skilled natives improve their lots themselves. The problem is that their motivation to do so is to create a more superficially attractive nation, rather than to construct an actual engine of human flourishing.

7 thoughts on “Discrimination and the semi-open border”

  1. In my experience as an immigration lawyer, the U.S. immigration regime is in practice incredibly racist. White people are more likely to be middle class. It is easier for middle class people to navigate the system (working class undocumented people have less of a paper trail to prove the validity of family relationships, presence in the U.S., or financial solvency; middle class people can hire better attorneys and hold them accountable; etc.). Even working class whites have an easier time of it than non-whites. Canadians and white Europeans get away with things that most of my clients could never do (e.g., overstaying temporary visas and returning to the U.S. without trouble, living abroad while maintaining permanent residence). I ascribe this to notions–whether consciously held or not–among immigration adjudicators that people from certain countries are more likely to commit fraud or crime or be less likely to assimilate.

    There are discriminatory race-based laws as well: non-whites are more likely to have crossed the border and therefore be penalized; the NSEERS program targeted people from Muslim countries for deportation; the nonsensical “crime involving moral turpitude” designation in immigration law was also used during Jim Crow to target blacks when other laws couldn’t produce the desired punishment; visas from major nonwhite sending countries (Mexico, India, China, Philippines) are assigned longer wait times than other countries; DNA tests to prove biological relationship among family members are required for most Liberians but not Europeans … the list goes on. The first couple of years in this field were an unpleasant education for me.

    1. Thanks for these insights, David. From my brushes with immigration laws as a legal immigrant, your experiences don’t surprise me at all. It’d be interesting to hear more about your experiences here.

      Do you have any books or other materials like blogs which you’d recommend for someone looking to get a sense of how immigration laws operate in practice? I recently finished Paul Grussendorf’s My Trials, which is a good book on precisely this subject, but I wonder if there are others like it out there: http://www.amazon.com/gp/product/B0054S7G0U/ref=oh_d__o08_details_o08__i00?ie=UTF8&psc=1

      1. Some books on immigration law:
        Bill Ong Hing – Defining American
        Hiroshi Motomura – Americans in Waiting
        Aristide Zolberg – A Nation By Design

        Some blogs on immigration law:
        Greg Siskind http://blogs.ilw.com/gregsiskind/ (policy and law developments, assumes some background knowledge)
        Prerna Lal prernalal.com
        Citizen Orange http://www.citizenorange.com/orange/ (my blog, not often updated)
        ImmigrationProf Blog http://lawprofessors.typepad.com/immigration/

  2. Also, a good exposition of the history of whiteness and assimilation is David Roediger’s “Working Toward Whiteness.” One of the main themes in the book is that, while different waves of “ethnic” groups gradually became accepted as white, the group against which all other groups measured themselves was African Americans. The recurring theme was something like “we may not be white, but at least we’re not black.” Unfortunately, I see this dynamic even today with some of my clients.

  3. Thanks for these comments. I didn’t know about the NSEERS program or Roediger’s book. I got most of my exposure to the idea of a “socially constructed whiteness” from Thaddeus Russell’s Renegade History of the United States.

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