Tag Archives: immigration enforcement

The Simplicity and Fairness of Open Borders

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

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

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

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

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

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

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

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

Why Are There So Few Unlawful Immigrants?

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This post was originally published on the Cato-at-Liberty blog here and is republished with the permission of the author.

Open Borders Note: See also Vipul’s post and our posts tagged economic determinism.

Labor markets are heavily distorted by immigration restrictions, producing wide and persistent wage differences for observably identical workers in developed and developing nations. Income for low skilled American workers is 16 times as high as Haitians in Haiti, about 7 times as high as Indians in India, and about 4 times as high as Mexicans in Mexico—all adjusted for purchasing power parity. Just by moving here immigrants can largely close that wage gap.

There are very limited avenues for low skilled immigrants to immigrate legally, which raises an important question: if the economic benefits of immigrating are so high, why are there only 11 to 12 million unlawful immigrants here?

Below are the two broad reasons:

First, the benefits of immigrating are not as high as they seem. The probability of being employed in the destination country is a vital variable because unemployment does not confer any benefits on the immigrant. The skill level of prospective unlawful immigrants restricts job opportunities to certain occupations. If the sectors where low skilled immigrants work have high unemployment rates, as many do now, the chances of earning higher wages here is lower so the economic benefits of immigration are lower. Downward wage bargaining by immigrants is limited but unlawful immigrants do take a wage cut, all else being equal, of about 20 percent to compensate their employers for the legal risk of hiring them and other reasons. Growing economies in places like Mexico, China, and elsewhere might partially offset the benefits of immigrating by promising higher incomes in the near future.

Second, the cost of unlawfully immigrating is very high. Opportunity costs, search costs(including language barriers), transportation costs, legal costs, the probability of dying en route, the probability of being sold into slavery, and the probability of not making it to the United States despite paying the smuggling fee are all high and increase risk. Immigration enforcement is very effective at deterring most would-be unlawful immigrants. Highsmuggling fees are a high up front cost.

Immigration can be understood as an investment over a period of years.  The length of time the immigrant spends here employed at higher wages increases the economic benefits of immigrating. The costs of immigrating, like paying for a smuggler, are fixed while there seems to be a low marginal cost for staying here to avoid immigration enforcement. The psychic costs could shift with time.

Here is an example:

Assume a Mexican immigrant wants to illegally move to the United States and work in construction. A marginal worker in the construction sector would have about an 86.2 percent chance of being employed at $40,000 with an effective tax rate of about 18 percent (including income and FICA taxes) and a 2.6 percent annual average wage increase.

The cost of being smuggled in ($9,000 by boat, $4000 by land), buying documents to decrease the chances of detection, and opportunity cost from being out of the labor force is $11,000 assuming no psychic costs. After the first year, I assume that the out of pocket cost of living illegally was $1,000.

Assuming a two percent discount rate, the net present value of moving to the United States for five years is $126,000.  The net present value (NPV) of working in Mexico assuming a starting wage of $10,000 a year, 95 percent chance of being employed, a one percent wage growth, and a two percent discount rate is about $48,000. The wages are about 2.6 times as high assuming the immigrants successfully enters on his first attempt and immediately finds a job.

The uncertainty of working illegally in the United States, a higher smuggling price, and separation from one’s home dramatically increase costs. A relatively low annual cost of $11,000 a year in addition to smuggling fees of $9000 in the first year lowers the NPV to $77,340, just 61 percent greater than staying in Mexico. Psychic costs are higher for immigrants from countries that do not send many in the first place—like Yemen or the Central African Republic—because there is not a diaspora to fit in to. Unlawful immigrantsare typically young, male, single, and without families—groups with the lowest psychic costs of immigrating. The opportunity cost of using capital to pay smugglers is also high, especially in poor countries.

Immigration enforcement has a gargantuan deterrence effect—larger than any other factor. The vast majority of would-be unlawful immigrants are deterred by breaking immigration laws and the punishments—even if there is a small chance of being caught. A 10 percent increase in immigration enforcement hours along the border produced a 2.5 percent increase in smuggling prices—raising the cost of unlawfully immigrating. The size and scope of Border Patrol has increased substantially since 1980—virtually doubling in size since 2004.

Here are the first year wage gains including the cost of smuggling from different countries of origin:

Source Country

Smuggling Cost

Median Ind. Earnings, US Full Time

Income in Home Country

Wage Gain

Wage Gain/Smuggling
Brazil

$16,000

$31,905

$12,594

$19,311

1.21
China

$50,000

$31,863

$5,445

$26,418

0.53
Cuba

$10,000

$24,103

$5,400

$18,703

1.87
Haiti

$1,500

$35,103

$726

$34,377

22.92
India

$60,000

$50,443

$1,509

$48,934

0.82
Mexico

$9,000

$13,520

$10,047

$3,473

0.39

Source: 2011 American Community Survey, DHS, Havocscope. 

The smaller the wage gain to smuggling ratio is, the smaller the pure economic benefits of coming here are, assuming successful entry. If the Coast Guard was less effective or if Haitians could find a cheaper way to enter the United States unlawfully, many more would come. The pressure from Mexico is not nearly as great as many imagine. These numbers are only averages and probably understate the desirability of coming here but they explain why Indians and Chinese send so few unlawful immigrants despite the massive wage gains: immigration enforcement is very effective so it raises the price of smuggling.

The costs of moving to the United States are very high and the benefits are lower than international wage differences make them seem. The benefits from moving to the United States for millions of people would be enormous for most Americans, the immigrants themselves, and those who stayed behind. Given those large wage differences, it is truly remarkable that there are so few unlawful immigrants in the United States.

US to foreigners: we’re a nation of immigrants! (If you’re a lottery winner, or Methuselah)

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I recently stumbled across this interesting blog post by immigration lawyer Angelo Paparelli, where he talks about US visa refusals. The post is from 2009, responding to then-Secretary of State Hillary Clinton’s public statement that she was committed to streamlining the US visa process. Angelo mentions a staggering figure from the State Department’s fiscal year 2008 annual report:

In FY 2008, the State Department’s consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification). While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States. [Note: These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

I checked the 2012 fiscal year figures and they are similar in every meaningful respect. To calculate the approval rate we need to bring in data on visas issued: with 8.9 million non-immigrant visas issued and 1.4 million non-immigrant visa applications rejected (virtually all because of 214(b)), we get an overall rejection rate of about 14%. I don’t know if that is too high or too low. But look at the data for yourself: these aren’t people with communicable diseases or criminal records. Over 1 million people have been refused student or visitor visas for the amorphous reason of “Failure to establish entitlement to nonimmigrant status.”

Presumably the intent is to deter fraud: there is a valid concern that non-immigrant visas can be used to get into the country and via overstaying, unlawfully “convert” the visa-holder to a de facto immigrant. But the main reason that is a problem is because the immigrant visa process itself deters bona fide immigrants! If you don’t believe this, one of Angelo’s colleagues recently crunched the numbers on current expected waits for some classes of lawful immigrants:

The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born “Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents”].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of “advance,” the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born “Unmarried Sons and Daughters of U.S. Citizens”] was “only” about 80-85 years.

In the US, gun rights activists love to say that if you make guns outlawed, only outlaws will have guns. By outlawing immigration, the US has ensured only outlaws will immigrate. Abortion rights activists love to warn that if abortions are banned, the only thing that will change is that more women will get hurt or die from unlicensed backdoor abortion providers: if immigration is banned, unsurprisingly millions will risk life and limb to immigrate.

If wait times longer than the human lifespan are not a de facto ban, I don’t know what is. You might as well tell someone he can own a gun when he lives to be as old as Methuselah (a man from the Old Testament who lived for over 8 centuries), or tell her she can have an abortion when she wins the Powerball (an American lottery). You may scoff. But that is exactly what the US government tells the person looking to join their family or earn a honest living. “Sure, we’re a nation of immigrants! If you’re a lottery-winning Methuselah, come on in.” And it is worse for those 1 million+ people denied the chance to visit or study in the US: because the US government has essentially outlawed immigrants, it has similarly had no choice but to do the same for visitors too. Through no fault of their own, millions of foreigners have been punished for the US government’s failure to fix its own laws.

Germany is thinking about abolishing visas

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Open borders advocates may have some allies over in Germany. In January this year, Deutsche Welle published this story with the unassuming title German companies want fewer visa restrictions (emphasis added):

Visa applications take too long, representatives from German industry say. They argue that companies lose money when a foreign business partner cannot travel. And they have concrete proposals to reform the system.

A deal worth millions was almost closed at a German agricultural fair, but urgently needed visas could not be issued to the foreign business partner. The telephone number in the documents was wrong, so embassy officials couldn’t reach anyone.

This is not a unique case, according to Andreas Metz, a spokesman for the German business community’s Committee on Eastern European Economic Relations. He cannot understand why old rules are followed to the word.

“The visa system is actually a relic of the 19th century,” Metz told DW. “Today, there is a completely different method to ensure security, namely through a biometric passport and computerized information, which impede travel less significantly.” He hopes that visa requirements will be done away with eventually.

The discussion about unrestricted travel is also being discussed at the government level. German Economics Minister Philipp Rösler is pushing for more freedom. He recently called for Interior Minister Hans-Peter Friedrich to give up his opposition to a more liberal issuing of visas.

The Interior Ministry’s main argument is security. The ministry is in favor of simplifying the visa application procedure, but it is against getting rid of visas. It has to ensure that aspects related to security and migration policy are preserved, the ministry said.

It seems difficult to believe that the German government is considering open borders via the abolition of visas. I’m not sure what exactly is being meant here by abolishing visas, since I can’t imagine the German government is eager to invite the entire world to live in its borders. (The article goes on to cite concerns about Turks and Russians unlawfully settling in Germany if visas are abolished.) Probably what’s being envisioned is that visitors would not require visas, so anyone can enter — but settling would still require a residency permit.

(By the way, talking of political externalities — Philipp Rösler is an immigrant from Vietnam who was adopted by a German family, so one can argue he has something of a vested interest in loosening border controls.)

This isn’t true open borders, but it’s one way to start down the road there. As the German lobbyist indicates, the modern visa system is only going to become even more out of place with the advancement of technology. I can still envision scenarios where a reasonable government would require visas: I can see the case for requiring visas from countries which are hotbeds for terrorism or organised crime. But modern technology makes the case for abolishing visas only more compelling.

Michele Wucker was making the case for open borders 7 years ago

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I recently finished Michele Wucker’s Lockout, a 2006 book advocating a liberal US immigration policy. Superficially, it’s overly similar to Jason Riley’s Let Them In; both co-blogger Vipul and I find that mainstream pro-immigration US literature suffers from the pitfall of focusing too much on the US (well, this is a pitfall from an open borders standpoint), and being anchored too much to the status quo. However, compared to Riley, Wucker is much more solutions-focused — and from the solutions she proposes, I would actually suggest she was grappling with the early embryos of all those ideas which eventually led to the formation of this Open Borders blog.

Riley says he wrote his book to rebut mainstream anti-immigration arguments in the US, but Wucker goes one step further to propose a number of changes to US immigration policy. The first 10 chapters of Wucker are incredibly similar to Riley, but the 11th chapter is breath of fresh air. Some of Wucker’s proposals:

  1. Legal residency for current unauthorised immigrants in the US
  2. A guest worker programme or other visa system allowing more people to work legally in the US
  3. Stricter immigration enforcement against those working without permission from the authorities
  4. Penalties for employers of unauthorised immigrants
  5. Immigration processing fees (taxes?) levied on immigrants to support cultural integration programmes and jobs for natives
  6. Devolve substantial portions of immigration rule-making from Congress to government agencies, and have those agencies streamline the existing process further
  7. Establish a special cabinet-level Immigration department, to ensure a single person and agency are solely accountable for US immigration policy
  8. Consciously promote global development, both through conventional development policies and through liberal immigration policy, to reduce wage gaps between poor and rich countries, and thus reduce the impetus for immigration
  9. Reduce the quota for visas granted to adult siblings of US citizens

Most of these are what we at Open Borders: The Case call keyhole solutions — policies that mitigate the risks of migration. They might do this by ensuring that some of the gains from migration go to natives, such as through the immigration levies which Wucker proposes. Or they might do this by managing the inflow of immigrants using some transparent rules to ensure that a country’s institutions are not overwhelmed by sudden, unexpected influxes (which, at least on paper, is what a streamlined bureaucracy would be able to do).

At the same time, there are some things which open borders advocates would probably part ways with Wucker on. Wucker’s strong belief that employers should be punished for hiring unauthorised immigrants seems sincere, and not just a sop to the restrictionist crowd. I think she finds it incredibly unjust that employers can illegally discriminate against these immigrants because of their unauthorised status. She seems to hint that she would prefer the reverse of the current US system (presently the immigrant bears all of the risk in taking up employment, and the employer takes none) — which I suppose is more compatible with an open borders viewpoint. It sounds like she might not be opposed to programmatic, ongoing “amnesties” which some countries have done, allowing unauthorised immigrants to regularise their status even after entering/overstaying without following the standard immigration rules.

Wucker seems incredibly cognisant (at least relative to most participants in mainstream immigration debates) of the terrible suffering that closed borders inflict on immigrants and prospective immigrants. Because of this, I don’t doubt her sincerity in advocating a guest worker programme or something similar to ensure those who seek honest work in the US can come. Putting this in context, when she wrote, most mainstream pro-immigration activists in the US were rejecting any guest worker programme as a form of legalised slavery. Instead, Wucker explored some bold proposals for immigration reform that dovetail incredibly well with open borders and open borders-like keyhole solutions:

The solution to [the dilemmas of immigration policy] is not to dictate what immigrant workers should do but to tailor a menu of options that lets each worker’s individual circumstances guide his or her decision…we could require [high-skilled] immigrants who decide to stay in America longer than ten years to pay a premium; some of that money could be redirected to the immigrant’s homeland and/or to to job training for U.S. workers.

Similarly…lower-skilled immigrants could pay a fee if they decide to stay after their guest worker status ran out….Another possibility could be to ask guest workers or their employers to pay a deposit to be held in an escrow account; if the worker decided to stay in America, the money would be forfeited to a development bank for use in the home country.

Wucker explicitly says that immigration policy should form part of a development strategy that will close the income gap between rich and poor worlds:

Paradoxically, in the long run, the best way to slow desperate immigration is to let people come here, build their skills, and then take those skills back to their homelands. Also paradoxically, the best way for people to help their homelands is to adapt as fully as possible to American society, for this is the key to succeeding here. By encouraging people to study here and go back and forth freely, we can encourage brain circulation and the creation of industries that will provide jobs in migrant-sending countries and markets for U.S. goods.

This development focus I find incredibly unusual for a mainstream immigration policy book. Wucker wrote in 2006, before economists Lant Pritchett and Michael Clemens fully fleshed out the concept of the place premium, showing how closed borders artificially create wage gaps that result in some people earning 6 cents (adjusted for purchasing power) doing work in their home countries, for which the equivalent wage in the US would be 1 dollar. Clemens and Pritchett would go on to argue that such wage gaps, as high as 94%, have never existed between any jurisdictions that permit freedom of movement. Following from this, the labour market convergence of open borders would end the worst poverty in the world and double world GDP. It amazes me that Wucker would take this angle in 2006, before development economists had even gotten around to begin digging into quantifying how badly closed borders is holding back the world economy, and the economies of our poorest countries.

Finally, one last remarkable thing is how antsy Wucker is about conceding much ground to restrictionists. She makes the usual sops to restrictionism, such as stricter internal labour market enforcement, and reducing the number of visas for citizens’ siblings, and…that’s it. Unlike other mainstream liberalisation advocates, she doesn’t plump for a border fence, or neglect the all-important need to reform the US’s broken visa system. It’s quite clear she wants more immigrants, because morality and good economics demand this, and she’s not afraid to say it. She says she rejects open borders, but literally in the same breath insists her only concession to restrictionists will be reducing the visa quota for citizens’ siblings.

From an open borders standpoint, Wucker’s book is not particularly useful or illuminating. In a sense, because of the work of Clemens and Pritchett, Wucker’s Lockout is now substantially outdated. But it is for that reason that I find Wucker so interesting: she was advocating open borders-style keyhole solutions, using the same stylised arguments as open borders advocates, years ahead of us.