Recently I stumbled on a Bryan Caplan blog post I remember reading a couple years ago, about a businessman who was refused entry to the US purely on the basis of a technicality with his visa. The businessman, Tim Worstall, had a valid business visitor’s visa which he’d used several times before without issue. On this occasion, he was refused entry because US immigration officers just felt he ought to have a different visa in order to enter the US. They held him for interrogation without a lawyer, without recording what was said. An officer wrote an account of what happened from memory, and forced Worstall to sign this account, despite Worstall’s protests that it was inaccurate, because he “was told that if [he] did not [he] would be deported, [his] passport declared invalid for travel to the US for the rest of [his] life.” Worstall concludes:
There is no law, evidence, representation nor even accurate recording of proceedings in such “voluntary departures”. It is entirely at the whim of the agents at the border post. I was actually told by one agent “I’m gonna screw you over”. Something of a difference from what’s scrawled over that statue in New York really.
The comments are interesting; quite a few people seem horrified by the lack of due process in these proceedings. But they are really just par for the course. As I’ve written before, US consular officers essentially have dictatorial discretion in denying visa applications. Border agents have similar authority. In the comments on Caplan’s post, a Pierre Honeyman wrote about how one unprofessional US border officer arbitrarily reduced the validity of his 1-year work visa to 2 weeks, and arbitrarily invalidated the work visas of several of his colleagues.
There was another commenter, one Brian, who argued that some fault must lie with the victims of arbitrary immigration policies:
Don’t perjure yourself by signing a false statement. Don’t do or say suspicious or clever things to hostile and armed agents of a cruel and nasty government. Demand access to a supervisor, a lawyer and a judge, even if they tell you you’re not entitled to them. Have some friends expecting you who know to demand answers from local officials. Never say or do anything whatsoever in the USA without advice from a good lawyer.
I’m not sure how often Brian crosses international borders, but this is really something easier said than done. I’ve been crossing borders since young, and few things strike more fear in my heart than dealing with immigration agents, even though I know I’ve done nothing morally wrong (I’ve never crossed a border unlawfully, never been deported, never had any trouble with the law, in fact). A simple typo in your immigration papers can ruin your life. This is as true outside the US as it is in the US, though this problem is especially pernicious there.
Demanding access to a lawyer in US immigration proceedings is easier said than done, especially when you’re trying to enter lawfully. US deportation proceedings are no beacon of due process or justice, but even those subject to deportation have more legal rights than foreigners trying to enter lawfully do. Worstall could have refused to sign false statements and demanded a lawyer all he liked — the fact is, given US immigration agents’ dictatorial discretion, all of this would have been in vain. Standard principles of due process and fair trials which most of us in civilised societies take for granted simply don’t apply.
(None of this is to say we ought to blame the individual professional civil servants in immigration bureaucracies. The worst personal encounters I’ve had with immigration bureaucrats have been limited to facing mildly unpleasant demeanours; the best have been quite helpful and pleasant. But the professional conduct of individuals can never excuse the corruptness of the system that employs them.)
I don’t think it’s an accident that immigration laws are so inhumane, arbitrary, and unjust. US legal scholars note that this dictatorial discretion offered to individual US government employees stems directly from the US judicial precedent of Chae Chan Ping v. United States — better known as the Chinese Exclusion Case. As one of them says:
Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson [two since overturned cases which similarly sanctioned government bigotry and prejudice]. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.
When we base our laws on the moral principle that foreigners have no rights worth respecting, it should not be surprising that due process and a fair trial are consigned to the dust heap. When we base our laws on the moral principle that we can do whatever we like to foreigners who come in peace, it should not surprise us that foreigners try to come in peace without getting our attention and immigrate illegally.
Americans love to complain about government bureaucracies like the TSA, the IRS, or the DMV. At least those bureaucracies actually have rules they need to follow and can’t arbitrarily decide you really should pay more taxes than what the law says, or you really should have a driving licence for only 1 year instead of the usual 5 years, or you really need an anal probe before you board that train. Immigrants live in fear of a bureaucracy that’s worse, more powerful, and more arbitrary than the TSA, the IRS, and the DMV combined — and because they’re foreigners, we’ve apparently decided that that is perfectly fine.