Tag Archives: immigration enforcement

US immigrant processing: funded by user fees since 1882

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The first piece of US federal legislation detailing procedures for immigration enforcement was the Immigration Act of 1882 (passed at about the same time as, though distinct from, the Chinese Exclusion Act of 1882).

The first component of the act, as described by Wikipedia, was its self-financed nature:

The first was to create a “head tax” that would be imposed upon certain immigrants entering the country. The Act states that “There shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.” This money would be paid into the United States Treasury and “shall constitute a fund called the immigration fund.” These funds would be used to “defray the expense of regulating immigration under this act.” Scholar Roger Daniels commented that the head tax eventually “would rise, in stages, to eight dollars by 1917. In most years the government collected more in head taxes than it spent on administration.”

The fact that the costs of immigration administration are largely borne by user fees, unlike most other government agencies, continues to be true today. For instance, Wikipedia says:

Unlike most other federal agencies, USCIS is funded almost entirely by user fees. Under President George W. Bush’s FY2008 budget request, direct congressional appropriations made about 1% of the USCIS budget and about 99% of the budget was funded through fees. The total USCIS FY2008 budget was projected to be $2.6 billion.

This is true not only of the USCIS as a whole but also of incremental programs. For instance, co-blogger Michelangelo notes that Deferred Action for Childhood Arrivals (DACA), announced by Barack Obama in June 2012, is funded by user fees:

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

Similarly, when, after September 11, 2001, people on student and exchange visitor visas were required to go through a criminal background check in order to be able to get a visa (the so-called “SEVIS record”) that cost was also “user-financed” — recipients had to pay $100 in order to have a background check run on them.

Angelo Paparelli notes that Obama’s November 2014 deferred action proposals would also be financed by user fees:

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees.

It should be noted that the “funded by user fees” applies specifically to the USCIS, the branch of immigration enforcement that deals specifically with processing immigrant applications, and not to the other branches of immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE and CBP, focused as they are on interior and border enforcement of immigration and customs laws, don’t really have “customers” — and they cost the taxpayers a decent chunk of money (though still chump change relative to the overall US federal budget). [The SEVIS fee alluded to above is an exception, since the Student and Exchange Visitor Program is managed by ICE rather than USCIS. It is somewhat of an exception to the general rule that status processing is managed by USCIS.] Here are the approximate budgets:

  • USCIS: About $3.2 billion, about 99% funded by user fees.
  • ICE: About $5.3 billion, negligible user fees funding.
  • CBP: About $12.9 billion, negligible user fees funding.

These numbers suggest that liberalizing migration, raising user fees somewhat (cf. immigration tariffs), and cutting down on some enforcement functions would probably lead to significant budgetary savings in the short run. However, all these numbers are small relative to the lifetime economic or fiscal effects of immigrants (even though the signs of the fiscal effects are much disputed, their magnitudes are likely to be at least one order of magnitude greater). This is one reason why “save the costs of border enforcement” is not an argument made prominently on this site or by open borders advocates in general. But in the narrowest sense, the fiscal cost of immigration enforcement arises not from immigrants (who seem to be bearing their share of the burden) but on those who seek to keep them out.

Some might object that illegal immigrants don’t pay any user fees. This is technically true, but they pay amounts that are far greater in fees to human smugglers. And when given the opportunity to regularize their status by paying user fees, as happened with DACA, many avail of the opportunity. Those who don’t are deterred not so much by the cost as by the uncertainty of whether registering themselves with the federal government might endanger them.

PS: See this Open Borders Action Group post where the relative costs of the immigration enforcement agencies and their extent of user funding are discussed.

What part of “immoral” don’t you understand?

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A common retort to suggestions that our governments regularise the status of irregular immigrants is that these people are “criminals”, they’re “illegal”, and just what part of illegal don’t I understand? The mainstream immigration reform has adopted this rhetoric too, even if they claim to reject it; the rhetoric of US President Obama (who at the time I write just announced a deferral of deportation for some few million migrants) and others has been chock full of insistence that irregular immigrants owe a debt to society, that they ought to do some sort of penance — perhaps pay a fine — in return for any sort of regularisation. In short, the mainstreamers say that they do understand that these migrants are “illegal”, and that they do intend to punish them — just not as badly as the hardcore restrictionists want.

I see no justice in this. As co-blogger Joel Newman says, our governments owe irregular migrants an apology, not a fine. Make no mistake about it: if you’ve done something wrong, if you’ve injured someone or taken someone’s property, you ought to pay the price. But if all you’ve done is an honest day’s work, if all you’ve lived in is a home you’ve paid the price for, then there is nothing to punish you for. Living in the shadows our government forced you into for dreaming of a better future for yourself and a family was more than punishment enough.

The persistent, shrill cries of “what part of illegal don’t you understand?” are pretty blind to the meaning of the term “illegal” in the first place. For instance, most of these people don’t seem aware that it’s not a crime to be present without a lawful immigration status in the US; this is such basic legal knowledge that it didn’t make any headlines when the Supreme Court acknowledged this in an aside as part of a larger ruling on immigration law. For another, most of these people routinely break the law and get indignant when it is actually enforced against them. Just witness the furore when bicyclists are ticketed for cycling on the sidewalk, or when drivers are caught speeding by automated cameras. If committing unlawful acts in the course of ordinary business makes immigrants “illegal”, that makes everyone “illegal”.

Now of course people will say immigration law is on a special plane of existence, something that deserves far more respect than menial traffic laws. Sure. I simply say: let the punishment fit the crime.

The consensus is that half of all undocumented migrants in the US entered lawfully at a border checkpoint, and simply took up residence or employment in violation of the terms of their visa. There is no crime in paying rent for a residence, and no crime in searching for work. If an immigrant applying for my job is stealing from me, then who did I steal from when I applied for the job I hold now? Is it only a crime when immigrants do it?

These undocumented migrants should be punished appropriately for any actual crimes they have committed. If they drove drunk, if they shoplifted, if they committed welfare fraud, whatever — they should do the time, and pay the fine. But they should not be deported or excluded from the country they call home. As long as they are willing to accept the laws of their new home, and accept the punishments of these laws, they should be allowed to stay. They entered legally. The most they should be required to do to stay is fill out a basic form, and submit to legal proceedings for any other unpunished crimes in their past. Innocent immigrants who have done nothing worse than pay rent and earn honest wages deserve an apology for the persecution that our laws unjustly put them through.

As for the other half who entered without inspection at a border checkpoint, they should submit to a screening comparable to what they would have gone through at the border, and register with the authorities. Again, the idea is to make restitution for the original offense. The original offense, in legal parlance, was “entering without inspection”. So let the punishment fit the crime.

But it wouldn’t be fair, you might say. What about all the immigrants waiting in line? Well, whose fault is it that they are waiting in that line? Isn’t it your fault that the government you elected made crappy laws which have kept out all these innocent immigrants, and forced them to choose between waiting in a line that will never end (literally: some visa categories have backlogs that exceed 80 years), or migrating illegally?

I do agree it is not fair to do amnesties in a one-off manner. It is not fair to the good people who want to immigrate legally, but who are banned from doing so by irrational quotas and queues. It is also not fair to all of us who are harmed by the bad apples, the actual criminals, who either hide amongst the innocents in the undocumented population, or worse, take advantage of these migrants’ warranted fear of the government to abuse and exploit them.

Many governments — such as those of France and Germany, to name a couple you may have heard of — do not do one-off amnesties; instead, anyone who migrated illegally but who has otherwise complied with the law for a sufficient length of time is allowed to register with the government and become a legal immigrant. If we can’t have open borders, let’s at least allow anyone who has proven their commitment and loyalty to our laws to come out into the open and register as a law-abiding member of our community. That’s the fair thing to do, instead of having these one-offs.

But at the end of the day, if being fair to those immigrants in line is what bothers you so much, well — it’s the line your government created. The absurdity of having queues backlogged such that people applying today would have to wait an entire human lifetime to get their application approved is something only a government could create. The problem isn’t those good people forced to choose between waiting in line versus entering by other means to rejoin their families or seek gainful employment. The problem is your government and the stupid laws it made up.

Now, those laws aren’t stupid you might say. I agree: to the extent that they protect us from criminals, contagious disease outbreaks, and other harms, they are good laws. But to the extent that they “protect” us from people who just want to pay the market price to live in a safe home and work in a functioning economy, they are bad laws. To the extent that they treat someone whose ambition is to earn minimum wage washing dishes 18 hours a day as if he’s the scum of the earth, they are evil laws.

I’ve written before that the best way to secure the US’s border with Mexico would be to open it. Drug lords and slave traffickers rely on being able to disguise themselves among the masses of innocent people crawling through sewers to rejoin their families; let those innocent people buy bus tickets instead of paying thousands to coyotes, and where will the criminals hide? Restrictionists scoff at the idea of these immigrants being innocent — but you tell me, where’s the sense in treating someone who just wants to mop your floors for minimum wage as if he is the equivalent of a murderous drug trafficker?

I understand the intuition that one should comply with the law, and that failing to comply with the law generally marks you as a bad person — somewhere on the scale between reckless and just plain criminal. But this intuition only works for laws where the burden of compliance applies equally to everyone. Everyone knows what it means to not steal. But does everyone know what it means to comply with immigration law?

I would bet anyone that the majority of citizens of any country have no idea how the typical migrant in their country should comply with their own country’s immigration laws. Why should any of us know? All we ever did to comply with the law was be born. We didn’t have to do anything else, just slide out of the right person’s uterus at the right time, on the right soil.

Anyone in the US who has ever been in trouble with their taxes should know the feeling: you did everything right, and yet apparently your filing was still illegal — the government says you didn’t pay enough taxes. US tax law is so complicated that in some cases even the Internal Revenue Service throws up its hands and admits it doesn’t know what the law says. Yet for all your trouble, the public lambasts you as a tax evader, blasts you for not paying your fair share. And that is pretty rich, when virtually everyone who files taxes has likely fallen afoul of some technicality in the law (did you really report on your tax return the $20 in income you earned from that casual bar bet with your cousin?).

Multiply this frustration a few hundred times over and you can imagine the frustration of complying with immigration law. Some of the best, most honest and decent people I have personally known have been “illegal”. In some cases they didn’t even realise it until after the fact: as a student, your visa bans you from working more than a certain number of hours. Exceed the limit, and bam, you’re “illegal”. In other cases, delays or government processing issues while you’re transitioning from one visa type to another mean that you can “fall out of status” until your new visa is approved. Bam! Illegal.

And these are the lucky ones: they were already present in the US, and nobody could conveniently detect they’d committed these violations of immigration law. Usually nobody would ever be the wiser that they had, for a period of time, been “illegal”. Millions more such innocent people are trapped in the unlucky position of either waiting decades in line, or just jumping a fence that shouldn’t be keeping them out in the first place. Long wait times for immigrants to the US aren’t unusual; they’re the norm. Stories of the insanity of immigration law are a dime a dozen: see this, this, this, or this.

But how many citizens know of this? They know nothing, of course: the law has nothing to do with them. They can feel free to demand 100% compliance with the law, because they will always be 100% compliant. All they have to do is breathe. It’s pretty easy to follow the law when you have to do nothing. How can you demand people follow the law when you yourself have no idea what the law demands, and you yourself don’t have to do anything to comply with it?

I am making no claim to perfection here. As a Malaysian, I have no idea what laws the foreigners living in my country have to comply with. When people ask me about how easy it is for foreigners to live in Malaysia, all I can say is “Well I saw a lot of them in my junior college so I think it’s pretty easy to come in”. I honestly have no freaking idea what our visa laws are; I have no reason or incentive to, because by definition, it is impossible for me to ever break the law!

Claims that “Well, my ancestors followed the law” ring pretty hollow. After all, what laws did your ancestors follow? In the case of most Americans, their ancestors immigrated legally because all you had to do to immigrate was not be Chinese. If by definition it is impossible for you or your ancestors to have broken the law, then it is pretty rich of you to insist that you know exactly what laws others should comply with. Yet people often pretend they know exactly what the laws are, and blame the victims of these abusive laws for not submitting to their unwarranted punishment.

Anti-Chinese poster

What’s good for the goose is good for the gander: if you want people to prove their loyalty and knowledge of your country by passing a test, then why don’t you subject yourself to that same test? Why not? Didn’t your schooling prepare you for that test?

If millions of ordinary people can waste 20 years of their adult lives waiting for government permission to pay rent and apply for jobs, why not you? What makes you so special? Isn’t it unfair to others who did wait those decades in line, who actually complied with the bullshit hoops your government made them jump through? Your ancestors didn’t jump through those hoops — so don’t you owe it to them to follow the law on their behalf?

And so on you go, railing against “amnesty”, even though there’s a good chance if you are American that you are only here today thanks to an amnesty your ancestors arguably didn’t deserve. I refer, of course, to that time some of your ancestors took up arms in violent rebellion against the lawful government of the United States, and were rewarded with an unconditional amnesty for their trouble.

At the end of the day, there is nothing that makes sense about most immigration laws. A handful of restrictions actually target terrorists, criminals, or contagious disease carriers. The rest of these laws just treat people who want to pay market rent for a safe home and the chance to earn the market wage for honest work as though they are criminals for doing the same things as everyone else. There is no sense in treating a minimum wage cook like a cutthroat, and there is no justice.

The real question isn’t what part of illegal don’t I understand; I’m well aware that, at least far as my own country goes, I don’t understand, because I have no reason to! No matter how many laws I break or how many wrongs I commit, I’ll always be in compliance with Malaysia’s immigration laws.

The real question is, what part of “illegal” do you understand at all? You don’t understand any of it. You don’t know what it’s like to be worried that accidentally working one extra hour a week this semester might mean that you’ll get deported. You don’t know what it’s like to earn pennies a day, banned from earning the dollars which your hard work could easily earn you because this year, only 23 people from your country of millions will be given work permits.

The persistence in which people pretend that complying with the law is no burden, that if their ancestors could do it then so can anyone else, truly boggles the mind. Laws which ban parents from paying to put a roof over their children’s heads and ban dutiful children from sending home money to care for their aging parents criminalise the virtues we so often commend to ourselves. What can this be, if not hypocritical injustice? Let me ask you — what part of “immoral” don’t you understand?

Joseph Carens on the ethics of immigration: part 2

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This is a continuation of an earlier post where I began discussing The Ethics of Immigration by Joseph Carens (Oxford University Press, 2013). The item numbering continues from the previous post.

#7: Reasonable accommodations by and for migrants

Chapter 4 of Carens’ book covers an aspect of migration that is related to, but at the same time largely orthogonal to, the question of open borders. Specifically, Carens considers what reasonable accommodations migrants and non-migrants should ideally make for each other for harmonious living. Much of this discussion is not specifically related to migration policy or even to politics — though people with an expansive view of the state’s role would infer many political prescriptions from it, those of a more libertarian or voluntaryist nature could simply consider these as soft guidelines for the actions of individuals and organizations.

Importantly, Carens argues the following (the summary presented below is my own — Carens does not list these points together the way I’m doing — and therefore the act of summarizing may reflect to a large extent my own judgment of what is most important):

  • He argues that the democratic ethos goes beyond majority rule, to reasonable accommodation of people’s differences where possible. Such reasonable accommodation is not simply limited to non-violation of people’s legally guaranteed basic rights, but also to not making people unduly uncomfortable or inconveniencing them without appropriate justification. To some extent, this involves migrants accommodating the beliefs and adjusting to the conventions of the majority, even when it conflicts with their personal religious or cultural beliefs. At the same time, non-migrants also have a responsibility to make reasonable accommodations towards migrants where this does not impose huge costs.
  • Generally, Carens says, it is reasonable to expect migrants to do most of the adjusting — after all, they are the ones who chose to move. For instance, they may be expected to acquire (and provide to their children) a working familiarity with the main language of the region, follow the rules of the road, and be respectful to the dress choices and habits of natives. Carens argues that in prcatice, migrants do do most of the adjusting. At the same time, there is a nonzero level of responsibility (in the loose sense) for non-migrants to accommodate migrant preferences. For instance, he argues, natives should not be critical of migrants for talking in the non-native language when conversing among themselves in public, though they may have a reasonable expectation that migrants will attempt to converse in the native language when interacting with natives.
  • Carens argues in favor of being flexible to make exceptions to general rules. He is critical of the idea that rules must be enforced rigidly on everybody, and also opposes the ideal of formal equality. He cites the example of holidays here. In a country influenced heavily by Christianity (even if people are not devoutly Christian), Sunday is likely the day off for most businesses. This works best for Christians who attend Sunday services. For Muslims or Jews, whose religious observances are on Friday and Saturday respectively, this could pose an inconvenience. Carens rejects the option of: (a) a formal “equality” where the holiday date is shifted to a completely unrelated day, such as Tuesday, to be “fair” between religions, or (b) making all three days holidays (insofar as that might not be economically feasible). However, he argues that businesses and institutions can show some flexibility to their employees who hold the alternative religious beliefs, for instance, by giving Muslims a few hours off on Friday. There are no hard-and-fast rules here — the type of accommodation would depend on the employer and employee, but the general principle should be one of looking for possible accommodations.

Here is a quote from Carens:

The challenge for this chapter is to say something about the sort of democratic ethos that is needed in a political community if citizens of immigrant origin are to be fully included . Here a caution is in order. In public discussions of immigration, it is a recurring theme that immigrants and their descendants should accept democratic values and practice democratic virtues. Suitably qualified, that is a reasonable expectation, as we shall see. But an equally reasonable and perhaps more important expectation is that other citizens also accept democratic values and practice democratic virtues . All too often, the assumption seems to be that the majority of citizens already possess the values and virtues that are needed for a democracy to function properly. But that is frequently not the case. Democratic principles require the inclusion of immigrants, and the inclusion of immigrants requires the majority of citizens to embrace the implications of the principles and values that they profess. This will often entail developing attitudes and dispositions that many citizens do not yet exhibit, at least in the requisite degree. I will say more about these requirements as the chapter proceeds. People sometimes speak of the need for democratic states to engage in a more “muscular” assertion of their values and to demand adherence to those values from people living in their societies. If that is indeed what is called for, a lot more of the muscle should be applied to the nonimmigrant majority of citizens than is commonly acknowledged.

Carens, Joseph (2013-09-19). The Ethics of Immigration (Oxford Political Theory) (p. 64). Oxford University Press, USA. Kindle Edition.

#8: Communitarian versus contractarian views of citizenship

Carens makes a theoretically deep point about communitarian and contractarian views of citizenship. In most political philosophizing (cf. social contract theory), the set of people (citizens) is fixed in advance, and their relationship and mutual obligations with the state are considered in that context. Carens believes that bringing migration into the picture helps us step back. We see that citizenship is not really the fundamental source of moral or social obligation, but a consequence — a formalization of a particular level of connection with the community. Carens says that social membership precedes citizenship — that citizenship (or the right thereto) is a consequence of being a part of the community, rather than a formal grant of citizenship creating a right to such a community. Carens also emphasizes the idea that social membership matters morally.

This is important because Carens uses it as a basis (implicitly — he pieces the theory together after examining all the individual cases) for arguing about why people are entitled to citizenship. People such as:

  • children born to citizens, permanent residents, or temporary workers, or even to irregular migrants (his word for illegal/undocumented) who are staying long enough,
  • anybody who’s stayed for a few years as a child,
  • anybody who’s stayed long enough as an adult.

He also argues that levels of social membership aren’t in the binary category of citizen versus non-citizen. Permanent residents who have enough roots to call the place their home deserve most of the same rights as citizens, including the right to return and the right against deportation, even if they haven’t lived long enough to become citizens. He also argues (alluded to in earlier points) that most laws should be the same for temporary workers and irregular migrants. Some exceptions he makes:

  1. Temporary workers may be exempted (optionally or mandatorily) from work-related social programs, and for a limited period (maybe the first couple months) ineligible for welfare or unemployment insurance. He says that if temporary workers are required to participate in work-related social insurance programs (so as not to make them cheaper to employers than permanent employers) the non-redistributive component of the program (i.e., the part that they would in expectation get paid back were they to stay longer) should be returned to them on their departure. What he’s suggesting seems to be a lot like my co-blogger Nathan Smith’s DRITI — except he’s using existing social insurance taxes rather than adding a new set of taxes.
  2. Some restrictions on employment opportunities for irregular migrants.
  3. Non-permanent residents may be barred from government offices that involve sensitive matters of national security.

The communitarian approach followed by Carens is different in focus from Steve Sailer’s preferred foundation for citizenism. Sailer defines citizenism as the doctrine that government policy should be biased in favor of current citizens and their descendants. Now, to be clear, Sailer, like many citizenists, does consider community loyalty and ties to be an important component of citizenship — hence his proposal that prospective immigrants be required to spend 100 hours doing community service outside of their ethnic group in order to receive citizenship. But Sailer, and citizenist restrictionists at large, view community belonging as a necessary but not sufficient condition for a non-citizen to become a citizen. Carens thinks that being a part of the community for a sufficient length of time — without having done anything special (such as Sailer’s community service proposal) for it per se — entitles one to citizenship.

#9: Firewalling government services from immigration enforcement

Carens argues that for irregular migrants, all of their basic human rights (protection of life, liberty, etc.) should apply in theory and in practice. His suggestion for making sure they apply in practice: establish a firewall between all agencies tasked with protecting basic human rights or basic services, and the immigration enforcement. In other words, these agencies are required not to report any information about irregular migration status to immigration enforcement authorities, and any information that is reported via these agencies cannot be treated as evidence. He points out precedents:

  • There are restrictions on the information that the Internal Revenue Service can share with immigration enforcement agencies in the United States, though it’s unclear how strongly these restrictions apply in practice (see here).
  • Some “sanctuary cities” in the United States, such as San Francisco, have policies of the sort Carens advocates.
  • There are rules in criminal cases that evidence collected through illicit means cannot be used, and similar rules can apply in immigration cases.

Carens also says that the children of irregular migrants should have the right to a free public education, just as the children of temporary workers do (this is conditional to such a right existing for citizens, but Carens assumes that that follows from “democratic principles”).

Carens also says that after people have resided for some length of time, they become part of the society, and should be regularized. He suggests 5 years as the length of time after which people deserve to be regularized as permanent long-term residents. This applies both to temporary workers on a regular migration status and to irregular migrants.

So what can governments do to enforce the status quo? Carens says that border security would be acceptable in principle — provided it can be done in a way that doesn’t add to human tragedy (border-crossing deaths, etc.), but that often the human toll of border security makes it unacceptable. But his main proposal is the restrictionist favorite of attrition through enforcement: heavy penalties for employers who hire irregular migrants. He has an interesting twist though: if an employer has hired an irregular migrant, that particular migrant has a right to the wages for that worker and to legal recourse if the wages are denied (and the enforcement of this legal recourse channel has a firewall with immigration enforcement). Also, he says that employers should not be allowed to report their own workers’ irregular status.

Carens offers one argument in favor of blaming employers: they are part of the society, so they can be held to the standard of the laws of that society, whereas migrants aren’t part of the social contract. Nonetheless, I find his arguments unconvincing. Why single out employers as the one group to be punished, while doing the very opposite — firewalling — for all the other groups? Carens says that if immigrants aren’t able to find employment, they’re likely to leave (the attrition-through-enforcement idea) but this applies to housing, and plausibly to education for children, and other services Carens thinks should be firewalled. Carens arguably sees the right to work as somehow less fundamental than all the other rights, at least when he’s putting on his status quo hat, and this seems reminiscent of anti-market bias.

Stay tuned for Part 3, where I’ll look at the case Carens makes for family reunification and reforming the system for refugee asylum and resettlement.

US visa policy: where everything’s made up, and due process doesn’t matter

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In 1998, Robert Olsen successfully sued the US State Department, winning his claim that he had been fired for refusing to enforce racist and arbitrary immigration policies. The full judgment in Olsen v. Albright is worth reading. Olsen, who was stationed in Sao Paulo, was a law graduate working as a consular officer reviewing visa applications. He was troubled by the consulate’s policy. The Sao Paulo consulate’s visa manual explicitly documented common abbreviations used when documenting visa refusals, such as these gems:

  • LP = looks poor
  • LR = looks rough
  • TP = talks poor

Note that these determinations were not made on the basis of actual evidence, such as affidavits, bank statements, or letters. They were made simply on the basis of a consular officer deciding the applicant “looked poor” or “talked poor”. Imagine being denied your driver’s licence because the bureaucrat at the DMV felt that you just “look” like a bad driver. Here are some actual, documented reasons for visa denials:

  • “Slimy looking[;] wears jacket on shoulders w/ earring”
  • “LP!!!!!!”
  • “Look Really Poor”
  • “Bad Appearance. Talks POOR”
  • “Looks + talks poor.”

Of course, if we’re turning down applications because of arbitrary things like someone’s physical appearance, it’s a short hop and a skip to turning them down because of race. The Sao Paulo visa manual further singled out various races and nationalities as especially suspect (ostensibly because of fraud). The manual explicitly states: “Visas are rarely issued to [Koreans and Chinese] unless they have had previous visas and are older.” One would assume that if fraud were the reason, the manual should have laid out ways to corroborate suspicion of fraud, instead of making blanket assumptions about people of a particular nationality or ethnic descent. Instead of providing any such guidance, Olsen’s superiors scolded him for issuing too many visas to people who fit certain unspecified “fraudulent” profiles, and arbitrarily demanded that he double his visa rejection rate from 15% to 30%. Judge Stanley Sporkin eventually found in Olsen’s favour, ruling (emphasis added):

The Consulate’s policies instruct visa officers to view members of these groups as far more suspicious and dishonest than applicants of other races and nationalities. In effect, the manual places a heavy additional burden on applicants of particular nationalities and races that other individuals do not have to face. Based on generalized stereotypes about their behavior, Koreans, Chinese, and Arabs are singled out and stamped with the ignominious badge of “major fraud” before any facts about them are known.

…Although the Court understands the difficulty of the Consulate’s task, greater efficiency is not a sufficient reason to justify the discrimination of people based upon their skin color or national origin. …The Court is aware of the State Department’s difficult responsibilities in adjudicating visa applications under strict time constraints. However, the Court is confident that the State Department can dispatch its duties effectively without using generalizations based on national origin. This nation’s officials once deemed it necessary to make the broad generalization that American citizens of Japanese origin were inherently suspect and likely to commit espionage.

Sporkin noted that Olsen’s superiors did not cite any actual instances of fraud in their evaluation of his performance; they merely demanded he arbitrarily reject more people who they viewed as inherently more susceptible to fraud: “the administrative record reveals numerous instances where Plaintiff’s superiors, in instructing Plaintiff how he should improve his performance, told him to rely more heavily on the profiles.” When Olsen was posted to a different consulate without Sao Paulo’s discriminatory policies, he received an exemplary performance review which noted he “appeared to apply consistency and good judgment to each visa case.”

Sadly, Sporkin’s decision did nothing for the hundreds of people refused visas for being born into the wrong race, or wearing the wrong clothes. Even more sadly, the New York Times noted at the time that “similar policies are in effect at American visa offices around the world.” And this was in a pre-9/11 world; it is a truth universally acknowledged that US visa policy has become even stricter since then. And US consular officers’ discretion has not shrunk: they remain empowered to use virtually any reason they like to deny you a non-immigrant visa, and they strongly oppose the establishment of any rules- or principles-based process, especially one that the public might rely on, citing fraud concerns.

We know that power corrupts, and absolute power corrupts absolutely. As immigration lawyer Angelo Paparelli notes, US consular officers literally have the final say on who gets a visa: it is a decision not even the President can overturn. One immigration lawyer has a heartrending tale of how the absence of any appeals process destroyed her client’s life. Another immigration law blog from Thailand puts it more bluntly: “Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers.” The end result: a US visa policy that denies you a visa simply because you “Look Really Poor.”

The scary thing is, we have no idea how many such cases like these there are. The only reason this matter became public and went before the courts is because of the following chain of events:

  1. The Sao Paulo consulate explicitly documented their racist and arbitrary visa policies
  2. Olsen was stationed in Sao Paulo
  3. Olsen had the moral courage to refuse to apply racist and arbitrary visa policies
  4. State fired Olsen for his courageous stance
  5. Olsen sued State for wrongful termination, and did not accept a private settlement

If any one of those had not happened, we would never have heard about this. Under US law, consular decisions are not subject to judicial review, and there is no appeals process. The racist and arbitrary nature of visa policy only came before the court because it was at issue in Olsen’s allegation of wrongful termination — not because the court was reviewing visa policy or specific visa denials, something the court had absolutely no legal right to do.

There is literally more due process and transparency involved in applying for a US government secret security clearance than there is in applying for a tourist or student visa. Anyone who has their clearance application denied is allowed to appeal, and the findings of these hearings are documented and made public. Until the courts told the US government that they were simply going too far, immigrants were not even allowed to see the evidence that the US government had used in deciding to deny their visa. The US government’s position until 2011 literally was:

  1. Appeals against denied security clearances are public matters, and the evidence behind the government’s decision needs to be public by default
  2. Appeals against denied visas are a threat to national security, and the government should not make public any evidence without undergoing the tortuous Freedom of Information Act process

The people whose visas were denied by the Sao Paulo consulate are in all likelihood the tip of the iceberg. Because there is no appeals process and the US government hides the visa adjudication and decision-making processes behind a veil of “national security” that doesn’t even apply to top secret security clearances, we have no way of knowing how many other US consular outposts might be enforcing similarly arbitrary or racist policies. Considering the opacity and dictatorial discretion here, it would be surprising if Sao Paulo was the only one. Every year, 1 to 2 million people are denied US visas for no real reason — they’ve passed criminal background checks, they’ve passed medical checks — the consular officer reviewing their application just felt like turning them down.

The victims of racist and arbitrary immigration policies here are not just immigrants — people who want to be with their friends and family, people who want to earn an honest living. They are also people who simply wanted to visit or study in the US. They had family they needed to see, places they wanted to visit, business partners they needed to meet, classes they needed to attend. And all because they “Look Really Poor” — not because they posed any sort of threat to the US. US policy is that they have no channel for appeal — even if, as one immigration lawyer puts it, “the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously”.

Yes, we can improve immigration policy by limiting consular discretion, and guaranteeing more due process. Making the evidence used to deny visas public, and allowing visa denials to be appealed would be a good start. But even these improvements are playing at the margins. We need to abolish immigration policies that assume all foreigners are evil or criminal until they prove conclusively otherwise. As long as we continue to make the assumption that billions of people around the world are guilty until proven innocent, we cannot have any true “due process.” Perhaps the benefits of this manifest injustice outweigh the costs. But there is no evidence, no analysis, truly showing that that is the case. Until you can show me why we should throw fundamental due process protections out the window — why the benefits of making visa decisions in secret behind closed doors, based on arbitrary criteria like race or physical appearance, outweigh the costs — I can only conclude that the immigration policy status quo is an affront to the most basic principles of any civilised justice system.

The cartoon featured at the top of this post depicts a Chinese immigrant being refused entry to the United States, and was published in 1882.

Contra Tyler Cowen, closed borders should scare people

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Tyler Cowen of Marginal Revolution recently graced us with a pretty bracing set of criticisms:

In my view the open borders advocates are doing the pro-immigration cause a disservice.  The notion of fully open borders scares people, it should scare people, and it rubs against their risk-averse tendencies the wrong way.  I am glad the United States had open borders when it did, but today there is too much global mobility and the institutions and infrastructure and social welfare policies of the United States are, unlike in 1910, already too geared toward higher per capita incomes than what truly free immigration would bring.  Plunking 500 million or a billion poor individuals in the United States most likely would destroy the goose laying the golden eggs.  (The clever will note that this problem is smaller if all wealthy countries move to free immigration at the same time, but of course that is unlikely.)

Co-blogger Nathan Smith has already taken Tyler to task on the economics, asking Tyler specifically if keyhole solutions like immigration tariffs would address his concerns about the risks of open borders. Tyler issued a laconic response, which referred to Nathan’s suggestions as “surrender”, presumably because any sort of immigration restriction is inconsistent with open borders. Nathan has already  updated his post to address Tyler’s riposte. Since we have covered the economics around Tyler’s thinking fairly comprehensively already, I want to tackle something different: exploring what we mean by open borders, and why an open borders agenda (as opposed to some generic “liberal immigration policy”) matters.

But first off, as reasonable as Tyler’s critique may be, I find it strange in how it implies that restrictionist myths and urban legends deserve more credence than any economist would give them. The tone of Tyler’s criticisms about the risks of open borders strikes me as slightly reminiscent of Paul Krugman’s tone on macroeconomic policy: worded just so, to avoid falling afoul of the economics, without really dissuading people from mistaken beliefs about what the economics says. Paul Krugman hardly ever directly contradicts the mainstream economist consensus that monetary policy can be effective at the zero lower bound. But if you ask any layperson reading Krugman what Krugman believes about the efficacy of monetary policy when interest rates are low, I’d bet you the median layperson thinks Krugman believes monetary policy is totally ineffective, making fiscal policy the only game in town.

Likewise, if you ask him, Tyler is all for liberal immigration policies (as he said himself, right before launching into his critique). He doesn’t buy into the myths that immigrants are fatal drains on the welfare state, or deadly threats to the working class of the developed world. The prevalence of these two myths, in the face of all the economic evidence, is depressingly common; it is as if the lay person believed “all Chinese are opium addicts” or “deporting Jews will reduce the prevalence of poisoned wells”.  Like numerous other economists, Tyler has explicitly declared he repudiates the popular scaremongering myths about immigration’s economic effects. It is all the more surprising then that he declares “people should be scared” of open borders — when, as he’s said time and time again, the main reasons people fear immigration have nothing to do with fact.

To solidify his critique, Tyler says that he is in particular worried about a scenario where:

  • The US is the only country that opens its borders
  • The US opens its borders essentially overnight (i.e., from highly restrictive one day to highly liberal the next)

But other than as thought experiments, I daresay you won’t find any blogger on this site who would say “Yes, that’s a regime I’d be happy with and world that I’d gladly sign up to live in, because the risks are so obviously worth it!” There’s more than one way to skin a cat.  There are plenty of ways to gradually open the world’s borders while mitigating their risks. Here, the three most obvious options off the top of my head, with links to prior Open Borders posts where we’ve explored them (those posts are far from the final word, but they show just how untapped an intellectual well this area of thought is):

  1. Have a steadily increasing immigration quota
  2. Establish free movement unions or areas, similar to customs unions or free trade areas
  3. Abolish deportation as a form of punishment, except in extreme cases

All three options are eminently practical ways of achieving open borders which address the perennial question, “But what on earth would you do with 500 million new American residents tomorrow?” And there are plenty of other practical ways to open the borders; I see no reason to wed ourselves to a particular approach. Maybe some countries will only be able to open their borders via guest worker visa regimes. Maybe others will only be able to open their borders via immigration tariffs or surtaxes of some kind. Still others may be able to get away with true open borders. And I’m confident many countries are capable of mixing and matching. You can imagine a North American free movement union between Canada and the US (or perhaps even, as Barry Goldwater envisioned, such a zone that includes Mexico) which imposes a different regime on immigrants from other countries. The destruction of all conventional immigration policies on some longer timeframe than “within the next 24 hours” is something I’d be happy to see. But even that is only one possible means to the end of open borders.

At this point, you’re probably either scratching your head, or nodding it in agreement with Tyler’s point from earlier about surrender, because what I’ve just outlined may well strike you as utterly inconsistent with the label of “open borders”; after all, what is open borders if not a total rejection of conventional immigration policies? But I don’t define open borders as one particular policy regime or one particular set of immigration laws. I define open borders simply as the principle that, subject to clearly-defined (i.e., not wishy-washy, unclear, or opaque) necessary constraints, people are free to travel, live, and work wherever they want. I am happy to accept any policy regime that satisfies this principle.

Tyler’s critique focuses on an airy-fairy type of open borders which any reasonable person can see is not going to happen, and likely shouldn’t happen at all. So while we’re at it, we might as well criticise a single world government too, since that’s also going to be an absurdly impractical and unreasonable way to open the borders. Where I find Tyler’s critique goes astray is that it focuses on one particular means of opening the borders, instead of the end itself — thereby lending more credence to restrictionist myths about the evils of open borders.

Ultimately, open borders is an end; it is the freedom to author your own life story. It is about being able to sleep safe in your own home, with your family, amongst your community of friends, knowing the government doesn’t have the arbitrary and unchecked power to take you away from all of them tomorrow morning. It is about being safe in the knowledge that the job your employer hired you to do can’t be eliminated by government fiat tomorrow because you made the mistake of being born in the wrong country. All of these are rightful ends for anyone to aspire to. They may well be unattainable on some level, but that is no reason to reject open borders out of hand, any more than the infeasibility of economic “perfect competition” constitutes a reason to reject economic liberalisation. Rejecting open borders because you reject one possible open borders policy is an oddly narrow-minded approach unworthy of an economist or thinker of Tyler’s stature. Even mainstream immigration liberals who remain skeptical of open borders like Matt Yglesias find Tyler’s stance here bemusing.

I can imagine no better label for a world with freedom of movement than a world of open borders. What else captures the sentiment so concisely? If Tyler is so unhappy about calling the goal of free movement “open borders”, he’s free to propose a catchier title. But I really don’t think freedom of movement is something Tyler opposes. He may well have ideas about how to achieve open borders that don’t jive with mine. That’s fine. I’m happy to have a debate about how to achieve open borders. I think Tyler’s on the same page with me here, which is why he kicked off this debate about whether rhetorically, the open borders label is tactically useful.

But while Tyler’s gotten to that point, what concerns me more right now is how far the rest of the world is from reaching that point. Most people don’t give a second thought to the fact that people die every day thanks to the governments we elect and the taxes we pay.  We so blithely accept that the state has total, virtually unlimited power to abuse innocent and unarmed civilians. It’s one thing to disregard a destitute person living in, say, Zambia. None of us is responsible for giving that person a job, or for preventing that person from finding work in Zambia. But it’s a completely different thing to disregard how our tax-funded armed forces treat that person as a life-threatening enemy of the state, simply because he or she tried to find work in our country.

When it’s our money and our political authority being used to prevent that person from finding or holding down a job someone in our country is willing to hire them to do, I have a huge problem with that. The use of armed force against armed force is one thing. The use of armed force against civilian job-seekers or civilians seeking to be with their family is another; it is galling. We would never accept it against those born in our own country. Why do we so easily accept bringing tanks and gunships to bear against those innocents born outside our own country? Once we accept that this is a problem, we might still conclude that there’s no reasonable solution to the immigration problem, and that current policy to risk the lives of unarmed civilians is the best we can hope for. But most people, unlike Tyler, aren’t even willing to accept that this is a problem!

Given Tyler’s libertarian leanings, I imagine he won’t disagree much with me on these points. So it’s all the more puzzling to me then that he slips into the trap of encouraging popular fallacies used to justify the torture and slaughter of innocent immigrants. As Tyler points out, people fear the risks of more liberal immigration. But they will be fearful whether you call it “amnesty”, “comprehensive immigration reform”, or “open borders”. And their fears, in almost every single case, will be far more grounded in speculation and conjecture than any empirical fact. Tiny, statistically insignificant effects on a subsegment of the native working population will be blown up into “They took our jerbs!”-style paranoia. Economists quite bravely stuck their necks out for the cause of free trade, despite knowing the popular fears and risks. What keeps them from preaching the same consensus they’ve reached on immigration?

Putting modern economics aside, reasonable people in the US once feared letting blacks into the labour market (they had this “reasonable” fear that freed blacks would lynch them in retaliation for centuries of slavery — for what it’s worth, a more reasonable fear than the notion that Latin American immigration would turn the US political system into that of Chavez’s Venezuela). Pretty reasonable people once feared the impacts of letting women into the labour market. People fear any kind of change. Citing fears instead of facts is no way to make a reasonable policy argument.

It’s not news to anyone that the notion of open borders is scary. Dramatic policy changes should scare any reasonable person, because that’s only human. But scariness in of itself is not a plausible reason to come down firmly on one side or another. Many historical struggles for justice and human rights were shockingly frightening. Abolishing slavery or allowing women into the labour market constituted far more radical and scary reforms than would be dramatically liberalising immigration quotas, or dramatically halting most deportations. You tell me, what’s more dangerously untried and radical: allowing an illiterate, newly-freed black to buy his own land and farm his own crops in 1870; allowing a woman to build an aeroplane in 1940; or allowing a Pole to work on a UK construction site in 2010?

And on the flip side, it’s impossible to ignore how radically totalitarian is the immigration status quo. None of us can condone an immigration system that bans a woman from attending her daughter’s wedding because it suspects she’ll want to immigrate (never mind that, legally present or not, she won’t be eligible for most state entitlements). None of us can condone a legal system that gives government uncontrolled, unchecked, arbitrary power to destroy jobs, families, and homes in one fell swoop. I can’t see anyone signing up to defend a legal system that arbitrarily decides who you can love or who you can work for based on which emperor technically ruled the piece of dirt your ancestors happened to live on two centuries ago.

As the recent tragedy at Lampedusa, Italy illustrates, our legal systems often as good as murder people — people whose lives are so full of suffering that they willingly risk death to immigrate to our jails. We force people to choose between dying in sweatshops or dying at the hands of our border patrols. As some Syrians trying to flee chemical warfare are learning first-hand today, our ostensibly humane laws declare that it is better to force people to be gassed by a dictator than to let them try to make ends meet in our countries. How is any of this not radical? How is it not frightening that we supposedly have to resort to these measures to make the world safe for “civilisation”?

Are we truly happy and safe today because our border guards force Bangladeshis to die in sweatshops and Syrians to suffocate under clouds of sarin? Yes, inasmuch as today’s policies are inefficient and inhumane, the right solution isn’t tearing down every guard post and every border fence in the world within the next 24 hours. But beginning to think about a good alternative to closed borders consistent with both security and dignity is surely a moral imperative. I don’t think any of us want to live in a world that has to destroy human rights in order to preserve them. The problem with the traditional liberal approach towards immigration reform is that, implicitly or explicitly, it embraces closed borders. It might want to open them a little, but it has no sound reasoning (other than “this feels right, I guess”) for picking a trade off point between open and closed borders.

Open borders matters because it is the only paradigm that rejects the fallacious and unethical presumptions of closed borders, and the only paradigm that provides a sound moral basis for moving towards liberal immigration policies in the first place. Open borders presumes a right to move, one that can be overridden as necessary. Closed borders presumes a total ban on movement, one that can be overridden as necessary — a ban nevertheless so strong, it has to be enforced by punishments that destroy mutual employment, family, and community relationships; punishments that sometimes result in the taking of human life. Tyler may well draw a different line than I, or many others, do about what sorts of immigration restrictions are necessary. But I believe we are all on the same page: that people should be free to move, and that this right should only be denied when clearly necessary.

Defenders of the status quo ban essentially assert that a fascist totalitarian regime which kills unarmed civilians is the only way to preserve civilisation and safeguard people’s lives and property. Maybe they think our policies should kill slightly fewer people per year, but they otherwise are comfortable with the status quo as it is. Baldly saying ,”We need to open the borders”, forces a rethink of how readily we can accept the status quo. We know there’s a problem today, a problem that costs the human race thousands of lives and billions of dollars every year. Have we truly explored every possible alternative to the totalitarian border regime we have today?

Writing off open borders as an unattainable goal without exploring all avenues we have to get there I think amounts to saying “It is just and right that we force people to die under a cloud of poison gas or in a sweatshop’s fiery inferno, because that is an appropriate punishment for daring to be born in the wrong country.” Sure, that’s a strawman, since no reasonable person wants to sign on to that trade-off. But that trade-off is exactly the one our governments make in our name every damn day, and it’s a trade-off they’re making based far more on “scary” prejudices than it is on any evidence or fact. Opening the borders is the only way we can put an end to the unholy, inhumane slaughter of innocents — the slaughter of slightly less fortunate people who, same as you and me, just want a better life for themselves and their family. Before we reject open borders, and say there’s nothing we can do to stop the killing and dying, let’s at least be sure we’ve covered all our bases.