Tag Archives: arbitrariness

Exposing the fundamentally immoral bedrock of most immigration laws

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I recently stumbled across this blog post from 2010 by Linda Greenhouse, a Pulitzer Prize-winning journalist who covered the US Supreme Court for 3 decades, about how morally troubling she found a (then recent) Supreme Court decision. She starts:

The Supreme Court’s ruling recently that lawyers have a duty to warn their noncitizen clients about the potentially disastrous immigration consequences of pleading guilty to a criminal charge seemed so sensible that it left me wondering why a question with such an obvious answer needed to be debated by the Supreme Court in the first place. Surely if the Sixth Amendment’s guarantee of effective assistance of counsel means anything, it means that lawyers must advise their clients that admitting to even a minor offense can earn a noncitizen a quick one-way ticket into what immigration law delicately calls “removal proceedings.”

Yet a bare majority of the court agreed. Instead, two out of the nine justices took the federal government’s opinion: lawyers have no duty to advise their immigrant clients that they might destroy their lives by how they handle their criminal case, but if they choose to give legal advice on this count, it must at least be accurate (in the case in question, the advice was plainly wrong). Another two felt that since immigration law does not always automatically deport people who plead guilty to a crime, there is no obvious legal duty for an attorney to advise their client that doing so might ruin their lives.

Greenhouse found this morally troubling because:

That it took the Supreme Court in 2010 to tell us that non-citizens are entitled to be made aware of the full dimensions of their legal peril should be understood, I think, as a kind of wake-up call. In this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity.

She goes on to cite 3 other immigration stories, each worst than the last:

  1. Mentally-ill people deported without their families or lawyers being notified
  2. People being detained for deportation after they were found guilty of misdemeanours like smoking a joint of marijuana
  3. Haitian refugees, brought to the US by Marines on a military transport, jailed pending deportation

Greenhouse closes by quoting from Justice Ruth Bader Ginsburg in the proceedings of a case then before the Supreme Court:

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 ….

The lawyer representing the US government:

“What controls is Congress’s judgment,” Ms. Saharsky replied, “and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens.”

I suppose one could come up with research showing that deporting occasional marijuana smokers or prescription drug abusers, while unjust in individual cases, on average makes the country better off. But I don’t know why that is supposed to justify such blatant discrimination between citizens and non-citizens. What makes the drug addicted citizen who never chose to be born in your country that much morally superior to someone else who was unlucky enough to be born elsewhere, but consciously chose to join your country? As OrganicCBDNugs CBD pre rolls  are now available online too.

We are not even talking about authorised versus unauthorised immigrants: most, if not all, the people in Greenhouse’s stories are legal US immigrants. The man facing deportation because he listened to his lawyer’s horrible advice has lived in the US for 40 years, and served in the Vietnam War. Fortunately for him, the Kentucky Court of Appeals recently ordered a retrial of his case because the original conviction that was on the verge of getting him deported was unsound. And fortunately for many others cited by Greenhouse, media attention led to happy endings (though at least one of the incorrectly-deported mental patients was never found again by his family, and seems to be presumed dead). But how many millions of sad stories must there be, not just in the US, but around the world, all because our immigration laws are built on fundamentally immoral presumptions?

Greenhouse rightly questions the moral presumption that immigration laws are primarily about finding ways to keep people out, as opposed to finding ways to let them in. She closes by obliquely hinting:

[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.

She should have been more explicit, and perhaps even a bit more daring in taking on more than just US law. Beyond the fundamental immorality of a regime focused on ways to keep good people out, we need to attack the fundamental immorality of a regime focused on ways to discriminate against good people purely because they were unlucky enough to be born the wrong way. Greenhouse’s stories may illustrate the need for better handling of mental illness or the reform of drug laws, but they all point in the same direction: the fundamental assumption behind most laws is that you can do to non-citizens unconscionable things that you would never dare do to citizens. We need to end this global apartheid: we need to demand legal systems in our countries that properly recognise the worth and dignity of every human being.

Immigration restrictions and casual moral assumptions

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David Goodhart, a British writer and thinker, has some interesting thoughts on the interplay between immigration, multiculturalism, and policy. I think he does a great job of pointing out some problems with traditional approaches to multiculturalism, and how the left is often too blithe about the problems that living in a plural society can create. However, early on in the interview, he makes some comments that I find questionable. The first is where he quite rightly calls out immigration liberals for making unrealistic assumptions:

In a nutshell, what is the historical context of today’s multicultural Britain?

Britain had an open door policy from 1948 to 1962, when anybody from the empire or Commonwealth could come and live in Britain. That is essentially saying to some 600 million people around the world, most of them from the working classes or the peasantry, that there are no restrictions on their entry. Which was a magnificent idea, but also a bit of a disaster. Those who framed the legislation thought that no-one would come, but they did – half a million came between ’48 and ’62, albeit a small number compared to today’s figure.

Which is over half a million during the last year alone.

Yes, in terms of inflow – although there is also quite a bit of outflow. We had a parallel situation two generations later in the early 2000s, with Eastern Europeans coming to Britain from the EU. Only 15,000 were meant to come, but in reality a much larger number did.

Yes, the liberals were wrong in their estimates of how many would come. But how wrong were they about the harmful impacts of immigration? Did the UK economy collapse because hundreds of thousands instead of tens of thousands came under the EU’s open borders? This is an obvious question, but it’s left undiscussed. The casual assumption is that lots of immigrants are obviously harmful, and the interviewer does not challenge this. Goodhart explains in theoretical terms why he believes they are harmful, citing Robert Putnam’s work on social capital, but he never points to concrete instances of harm from European immigration, nor does he explain a clear causal mechanism for how lower immigrant inflows would have facilitated assimilation.

Moreover, it’s taken for granted that Putnam’s research (assuming it is correct in finding that diversity has undermined social capital in the US) is easily generalisable to other contexts. Abdolmodhammad Kazemipur attempted to reproduce Putnam’s research in Canada, and actually found the opposite: Canadian communities with greater diversity have more social capital than their homogeneous counterparts.

Goodhart makes an interesting point that historically, Britain has pursued a “light touch” when it comes to integrating non-British into its society, citing its approach to colonial governance. I’m not sure how true this is, however: in past centuries the UK had little trouble integrating Huguenot refugees or other European immigrants, even though they initially formed ethnic enclaves of their own. Goodhart makes a fair point that UK policymakers did in fact make some false assumptions about assimilation in the era of Commonwealth open borders: to my knowledge, it is true that contemporarily many people erroneously assumed the working class Briton would embrace his Commonwealth peers from Asia and the Caribbean. Stories abound of Caribbean immigrants entering the UK only to be astonished to find that although they considered themselves British, the Britons did not think the same.

Once we’ve breezily assumed that immigration must by definition reduce social capital, and assumed that this reduction in social capital outweighs all the relevant benefits of immigration (Goodhart does not clearly spell out how he is performing this cost-benefit analysis), the obvious conclusion is to reduce immigration levels:

What is to be done?

I think levels of immigration must be reduced. I certainly favour a cap, although it’s a little arbitrary and difficult to manage. But we also need to relearn how to encourage people to join in. We need to develop better ideas of integration and of what it is to be a British citizen, particularly in areas with high immigration settlement like Tower Hamlets in London, dominated by Bangladeshis, or Bradford in Yorkshire dominated by Pakistanis.

Britain has not set up patterns of residence, schooling and employment that make it easy for people to join in. Certain groups that have the cultural resilience do join in and often flourish, even if they often remain residentially segregated. But other groups tend to live separately in all areas of life, and have reproduced many of the institutions of their home country in England.

If the problem is with integration policy, why not fix integration policy? Arbitrarily forcing people to stay out of the UK is by definition incredibly harmful to all these immigrants, as any exercise of government coercive force would be. As Goodhart concedes, it is also incredibly difficult to implement. I find it particularly galling that Goodhart so breezily assumes away the problems of coercion and arbitrariness in capping immigration that he feels he should spend most of his time dwelling on integration policy instead. If immigration liberals have been too blithe in their assumptions about assimilation or quantifying immigration, this shows incredible blitheness about the injustice and difficulties involved with arbitrarily restricting immigration.

I link to this interview because I think Goodhart has interesting ideas about the challenges of integrating immigrants into British society. Many of his recommendations seem sensible. But I find it interesting that an otherwise sensible person makes so many blithe assumptions of his own about the impact of immigration, and casually embraces arbitrary use of government force against prospective immigrants. The most dangerous assumptions tend to be the ones we don’t even realise we are making.

The cartoon featured in the header of this post dates to 1899, and depicts a Chinese man who has murdered a white woman. The original caption reads: “The Yellow Terror in all his glory.”

Wedging a crack in trans-Atlantic borders: reforming the Visa Waiver Program

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Credit for featured image: Wikimedia Commons. It shows in green the countries eligible for the US Visa Waiver Program. For more, see the Wikipedia article.

A few years ago, the South Carolina Journal of International Law and Business published an article by then-law and business student Robert Wilson on the risks that US visa policy poses to trans-Atlantic foreign relations. The article is a good and I think fair review of the case for and against stricter non-immigrant visa policy. Wilson never hides that he favours a looser policy, but he accurately notes the reasons why the US government has felt compelled to tighten the borders.

Wilson’s focus is on the US visa waiver programme (VWP) which allows people from certain countries to enter the US without a visa. They simply need to pass a quick (30 seconds is the figure he cites) check at border control. Wilson notes that this is how some of the 9/11 terrorists were able to enter the US. This is why since 9/11 the US has mandated interviews for almost all visa applicants, and why the US has been reluctant to extend the reach of the VWP.

I-94W

Visa Waiver Program I-94W form that any person from a VWP-eligible country needs to fill in when landing in the US for a short-term, VWP-eligible trip. Source: magazineUSA.com

But as Wilson notes, sealing the borders in this manner is not practical. It is not any more useful or pragmatic than demanding the search of every cargo container entering the US for bombs or drugs. Other than a cursory check at the border, the VWP essentially throws open US borders to eligible foreigners, with no obligation to present additional information prior to entry. And these foreigners are screened not on any meaningful factual basis other than national origin: an person from Nigeria has to face stringent checks prior to boarding a flight to the US, while an identical twin who happens to have British citizenship can waltz right on up to the border.

I am in favour of open borders, but this manner of implementing them strikes me as arbitrary and self-defeating. Just as there are safe ways to deregulate, there are also plenty of unsafe ways, and this arbitrary discrimination strikes me as just one such unsafe way. Wilson cites how the number of people travelling to the US for tourism and business has been falling since 9/11 because of stricter visa procedures, while equivalent figures for other countries have been trending up.

Wilson recommends the US pre-screen VWP-eligible foreigners, using a system similar to Australia’s. Nathan Sales, a law professor, testified before Congress that this approach would be much more sensible compared to the arbitrary status quo, and more importantly, would allow the US to expand the reach of the VWP. It makes sense to me: a government can legitimately limit entry at its borders if it justifiably believes that this addresses a concerning security risk. Refusing to submit basic biographical information or fill out a basic form signals that you are likely to be a risk of some kind.

I’ve used the Australian electronic equivalent of the VWP before: it’s straightforward and transparent. It’s not open borders, but I’d much rather have an extended visa waiver programme on a similar basis, open to as many people as possible. My belief is that the government should approve visas for anyone who is acting in good faith. Right now, the US denies visas to over 1 million people annually for essentially no reason (they’re not criminals, not carrying communicable diseases, etc.). Give those 1 million people the visas they need to visit or study.

One final point Wilson raises is that expanding the VWP to all the European countries who desire it would allow cooperation with those countries in immigration enforcement. By coordinating governance systems in this area, the US could more effectively deter people with outstanding criminal issues from entering, while opening the borders to those acting in good faith. If the US pursues this, this could eventually lead to trans-Atlantic open borders: even if border controls remain, visas would be available to all good-faith visitors, and one day perhaps even workers or immigrants.

US immigration law creates hundreds of mini-dictators, empowered to enforce racist policy without question

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Donald Dobkin is a Canadian-American immigration lawyer who, a few years back, authored a Georgetown Immigration Law Journal article titled Challenging the Doctrine of Consular Nonreviewability in Immigration Cases. The whole article is worth reading, but the short story is:

  • US consular officers are entitled to deny you a non-immigrant visa if you cannot prove to them you won’t immigrate to the US
  • Because this is considered a question of fact, under US law, this decision cannot be questioned or overturned, not even by the Secretary of State or the President
  • Courts have held that under very limited circumstances, they can review non-factual issues that affected the visa application outcome
  • However, the end result is that for the vast majority of people refused a non-immigrant visa to the US, there is no appeal mechanism and no check on US consular officers’ power to disrupt or destroy foreigners’ lives

One interesting thing I learned is that the doctrine of consular nonreviewability (sometimes mockingly called consular absolutism; John Lennon supposedly once referred to US consular officers as “absolute monarchs”) has its roots in the 1889 case Chac Chan Ping v. United States (often simply called the Chinese Exclusion Case). This is the case which first held that the government has the right to do whatever it likes to foreigners trying to enter the US, for whatever reason. Consequent immigration law doctrine in the US has built on the foundation of the Chinese Exclusion Case, especially in the area of consular nonreviewability. As Dobkin quotes one scholar saying:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

(For non-Americans, Dred Scott and Plessy v. Ferguson are two famous US Supreme Court cases which respectively held that black people have no rights and that racial segregation is constitutional.)

Immigration law’s roots in racism go deep. Beyond the US, virtually every modern Western country rooted in the common law tradition originally adopted immigration controls in order to exclude foreigners from the wrong racial backgrounds. See for instance the UK closing its borders to Commonwealth citizens because they received too many black and Asian immigrants, Australia adopting a “White Australia” legal regime to keep out Asian immigrants, or Canada pursuing immigration controls in the 19th century to restrict Chinese immigration.

And the best traditions of immigration law continue today. In Olsen v. Albright, former US consular officer Robert Olsen sued the State Department for wrongful dismissal after he refused to enforce a visa policy that discriminated against people who “look poor” or were born into the wrong race.  Given how well-documented the racist nature of State’s visa policy was, the judge had no choice but to agree with Olsen — but given the doctrine of consular nonreviewability, he had no power to overturn the denial of visas to anyone who, as one visa refusal documented, “Looks + talks poor.”

Dobkin notes that in many European countries, including Germany, judicial review of visa decisions is enshrined in law. The catastrophic effects which US judges and consular officers fear from permitting judicial review have not materialised. Dobkin suggests that this is because:

  1. Pursuing judicial review is costly, so applicants will only pursue it if they strongly believe the consular officer was wrong
  2. More importantly, the risk of facing judicial review forces consular officers to get visa decisions right

One interesting point Dobkin highlights is that unfortunately for foreigners, immigration law cases tend to be decided precisely when anti-immigrant sentiment runs high: you get a lot more immigration lawsuits when immigration law enforcement is at its peak. This bias means that immigration legal precedents favourable to immigrants are relatively rare, and likely accounts for the long survival of the Chinese Exclusion Case.

There are of course rare instances where the courts do decide to review a consular officer’s decision, and Dobkin cites quite a few. These are worth a separate post, which I will publish in due time. But they do not materially change the picture: US immigration policy enthrones consular officers as dictators, capable of punishing people for reasons as trivial as wearing the wrong coat or being from the wrong ethnic origin. Not even the President or Supreme Court can overturn their decision. And there is no real reason for this, except for the US immigration legal system’s peculiar attachment to consular nonreviewability, a doctrine rooted in racism, and one that plenty of other developed countries are fine doing without.

The painting featured at the top of this post depicts the deportation of Acadians from Canada in 1755.

Arbitrariness

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A bemused Facebook post from Jose Antonio Vargas:

Numbers.

I’ve been thinking numbers since I read about the White House’s immigration plan.

So 8 years? Why not 10? Why not 7? Why not 5?

I grew up with the DREAM Act, when the age limit (per House and Senate versions) were 21, then 25, then 29, then 30, then 35, back to 30.

Numbers.

This should make people uneasy. These numbers have huge effects on people’s lives, yet they’re basically picked out of thin air. How can we avoid this kind of arbitrariness? By going back to first principles, and figuring out what, after all, justice demands.