Tag Archives: immigration enforcement

A DREAM Act for Singapore? Or, the arbitrariness of nationality-based residence laws

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There is a 19-year-old Filipino citizen who has literally lived her entire life in Singapore who, as of this writing, risks being kicked out of the only country she has ever called home:

Nadirah was born out of wedlock in Singapore and given a Filipino citizenship, as her mother was a Filipino. Along with her five siblings, two other siblings are also non-citizens while the other three siblings were given citizenship as her parents got officially married in Philippine before they were born.

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As Nadirah graduates from ITE, she will soon be asked to return to Philippine once her student visa expires in a month’s time. To be relying on relatives whom she never spoken to for years and a country where she has no memory of, the situation looks utmost depressing for this young lady with a uncertain future.

Nadirah’s situation reminds me all too much of the “DREAMers” of the US –young people who are present in the US without lawful immigration status who have spent most, if not all, of their lives as law-abiding members of US society. The immigration laws of Singapore ought to give people like her relief: there’s an argument to be made that even if she doesn’t deserve citizenship, she certainly ought to be able to reside in the only country she’s ever called home.

But we ought to look beyond the specific issue of young people whose paper nationality does not match the nationality written on their hearts. There are plenty of older people who, whether or not they feel a sense of national belonging to another country, are productive and harmonious members of that country’s society.

My mother may provide a useful illustration: she is a Filipino citizen who resided in Malaysia with our family for several years on a renewable 1-year “social visit pass”: the Malaysian immigration authorities maintained this legal fiction that she was making a “social visit” to my father for an extended period of time. While this is certainly more favourable than how other immigration legal regimes treat families, it also meant my mother had no legal standing to work in the country (despite possessing a post-graduate degree in a STEM field) and risked deportation or being barred entry for fairly arbitrary reasons.

A real risk my family faced was that if my father died, there would be no legal fiction for her to remain on a “social visit” and force her to return to the Philippines (where she has not lived for decades). Moreover, the restrictions of the pass forced my parents to spend multiple working days every year processing the necessary red tape to renew my mother’s visa (a luxury which many less-educated, working-class families probably can’t afford), and deterred my mother from leaving the country (on one occasion, a bureaucratic error in her visa meant that she risked being unable to re-enter the country if she left, even for a brief visit — so she simply did not visit any friends or family in neighbouring Southeast Asian countries until the next year, when her visa was renewed and the error corrected).

In principle, my family could have obtained permanent residency for my mother. In practice, the immigration bureaucracy seemed content not to bother itself with her application. It’s going on 15 years since her application was first filed, and every single time we’ve checked on its status, we’ve been told: “Wait for a letter from us.” The last time my father visited a Malaysian immigration office to discuss this, he saw a white woman berating a civil servant. She had apparently married a Malaysian who had since died, which is probably why she was there at the office that day. She was shouting at the government clerk in fluent, well-accented Malay: “I have been living in this country for longer than you have been alive!”

(Of course, there’s always a story that can top any story you think of. If we are speaking of immigrants’ pulling rank based on seniority, I can only imagine what a Mr. Padilla, who had lived in the US for over 4 decades and fought for it in the Vietnam War, had to say when he received his deportation order.)

The way we think about immigration law assumes citizens must, more or less, live in the country of their nationality. If they live or develop ties elsewhere, they need to prioritise their loyalties and naturalise as necessary. The permanent residency systems of most countries assume that those holding permanent residency will eventually naturalise: I have heard of one Malaysian holding permanent residency in the UK who calls both the UK and Malaysia home being frustrated at the UK border when its immigration officers demand to know why she wants to come in (“because it’s my home!”).

Yet there is no reason to bind citizenship and residency together: even in the status quo we can simply define citizenship as membership in a polity, and residency as the right to reside there and submit to that polity’s laws. Perhaps Nadirah wouldn’t be satisfied without citizenship — she might have grounds for this, since it sounds like she has always thought of herself as a Singaporean. But she and her Singaporean friends and family would still find this arrangement a whole lot more palatable than the alternative, which is to expel her as a non-resident to a country that is just as foreign to her as it is to Lee Kuan Yew.

The very fact that some of Nadirah’s siblings are Singaporean citizens and some are not speaks volumes about the arbitrariness and ridiculousness of how immigration law treats human beings: the entire lives of people, and the communities they are embedded in, hinge on some pieces of paper. Whether it’s a birth certificate (God bless those lucky people whose foreign parents were rich enough to give birth to them in the US and entitle them to American citizenship) or a marriage certificate (which gave some of Nadirah’s siblings the legal imprimatur that she lacks), it serves as an entirely arbitrary division between people who, for all other intents and purposes, are identical.

If immigration policy prevents people who call a place their home — a home that their community recognises as theirs — from actually living in that home, then as a moral matter, immigration policy is wrong. Plain and simple. We recognise the moral truth of platitudes like “Home is where the heart is.” We may sing paeans to the importance of community and how that defines the space we call home. But when home is on the line for members of our communities who, by an accident of birth, don’t have the legal right to live in their own home, do we have the moral courage to change the laws which make a mockery of the concepts of home, family, and community?

Do Images of Immigrant Suffering Along the Border Help the Open Borders Cause?

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Television footage showing the mistreatment of nonviolent civil rights activists during the 1960s may have greatly benefitted the civil rights movement.  William G. Thomas III of the University of Virginia observes that “Historians, commentators, and participants have suggested connections between the media, especially television news, and the course of the civil rights movement. Generally those who consider television news as a powerful force for change refer to the nationally broadcast images of police dogs and fire hoses turned on the demonstrators in Birmingham. They see this moment and other similar ones that followed, such as the violence at the Pettus Bridge in Selma, as key turning points when Americans witnessed violence, repression, and hatred directed at African Americans and began to change their minds about the U. S. South and segregation.” According to one activist, shortly after the attack on civil rights marchers in Selma, Alabama by troopers, people arrived from New Jersey and told activists “‘We are here to share with the people of Selma in this struggle for the right to vote.  We have seen on the television screen the violence that took place today, and we’re here to share it with you.’”  Two days after the attack, “… Washington was saturated with telegrams and newspaper editorials condemning the Selma attack and demanding the passage of voting rights legislation… By afternoon the president had issued a statement deploring the brutality, guaranteeing protection for Alabama marchers, and promising expedited legislation.” (from The Civil Rights Movement: A Photographic History, 1954-1968 by Steven Kasher, New York: Abbeville Press, 1996, p. 168)

So how do Americans react when they see government authorities physically stop immigrants who are seeking a better life in the U.S. or when they see other images of immigrant suffering caused by immigration enforcement along the border?  Sympathy for these immigrants could lead to support for open borders, just as media images created support for the civil rights movement.  Unfortunately, open borders advocates shouldn’t rely on images of border apprehensions and other consequences of immigration enforcement to shift public opinion towards favoring open borders.

Denver Post photo on dead bodies in bags

Dead bodies in bags: part of the Denver Post’s photo collection on border deaths

In late March, a group of U.S. senators toured part of the U.S.-Mexico border.  They witnessed “border agents apprehend a woman who had climbed an 18-foot-tall bollard fence” and crossed into the U.S. from Mexico. One might think that being directly exposed to the apprehension, in which an immigrant presumably desperate to enter the U.S. is intercepted by agents, might arouse sympathy for her and discomfort with the apprehension.  Apparently not.  Charles Schumer, one of the senators, had this reaction:  “‘Well, I’d have to know all the details there to give you a judgment,'” Schumer said. “’One of the things we learned is that a lot of people cross the border are doing it for drug purposes, too. But I don’t know what happened in this situation.'” (What he “learned” is contradicted by the remark below by Senator John McCain.) Senator Michael Bennet benignly stated that what he saw was “surprising” and “I just have never seen it before.” Senator John McCain tweeted: “Just witnessed a woman successfully climb an 18-ft bollard fence a few yards from us in Nogales. And Border Patrol successfully apprehended her, but incident is another reminder that threats to our border security are real.”  To Mr. McCain’s credit, he later stated that “One of the sad things about all of this is that most of those people who jump over the fence are doing that because they want a better life… And I understand that. So we separate the drug cartels from individuals or somebody trying to cross over so they improve their lives.”

Like the senators, the American public generally doesn’t seem to be affected by television footage or photographs of immigrant apprehensions or immigrants being sent back to Mexico.  Americans can see footage of apprehensions on television news (this footage was located on news sites and was presumably previously aired on television) and on National Geographic Channel’s “Border Wars” reality series and website.   There are also photos of apprehensions on the sites of major newspapers such as The New York Times and The Los Angeles Times. I could not locate evidence of protests against or public discomfort with these apprehensions.

People have reacted more to instances of mistreatment of immigrants by authorities along the border.  At least one instance of such abuse was caught on tape, which led to a small protest. There are groups that monitor the mistreatment of immigrants along the border, but again there is no widespread public outrage over these incidents. (Mistreatment of immigrants by smugglers is also in part a side effect of immigration enforcement.)

Thousands of immigrants have died over the last two decades from the harsh desert elements while trying to avoid immigration agents. There are some images of the bodies of immigrants who died trying to cross the border illegally. An organization that provides aid to those crossing deserts has been working to highlight this issue, but once more public reaction is muted.

On the other hand, there is some public disapproval of immigration enforcement away from the border.  There have been small protests against the apprehension and deportation of immigrants around the country. In addition, polls show widespread support for legalizing the millions of undocumented already in the U.S., especially for those who entered the U.S. as children. This resistance to internal immigration enforcement seems to reflect in part the personal attachments that Americans and legal residents make with immigrants in their communities, as well as a widespread perception that immigrants are good for America.

What explains America’s general apathy toward immigration enforcement at the border?  Perhaps since apprehensions are not usually violent like the aforementioned civil rights television footage (and violent ones usually go unnoticed) and since cases where immigrants suffer or die from exposure to the elements are usually not captured in videos or photos, they do not viscerally affect audiences. Another explanation may be that, unlike undocumented immigrants who have settled in the U.S., many Americans may perceive immigrants crossing the border illegally as being disconnected from American society.

Even if the public were exposed to more images of immigrants dying or suffering along the border, Fabio Rojas of Indiana University suggests that so long as Americans are convinced that immigration restrictions are acceptable, suffering caused by immigration enforcement will not change Americans’ views about immigration policy. He argues that what is needed to change public opinion on immigration restrictions is “a simple and concise idea that undermines the belief that people from other countries must be forcibly separated from each other. This idea must subtly, but powerfully, undermine the distinctions that make people believe that only citizens have the right to travel and work without impair.”

So for now, images in the media and on the Internet of border apprehensions, violence, and deaths won’t be the ally of open borders advocates that it was for the civil rights movement.  Perhaps public reaction to images of immigration enforcement and its consequences is a barometer of public support for open borders; the more advocates can convince the public of its merits, the more outrage there will be to images of the suffering caused by border enforcement.

Open Borders note: See also John Lee’s post I don’t care about immigration sob stories. This is about justice, not compassion.

True stories from immigration law: US citizens have no right to be with their spouses

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The US legal doctrine of consular nonreviewability leads to over a million people being refused visas every year, with no legal avenue to challenge the consular officer’s decision, no matter how arbitrary, prejudiced, or groundless it may be. But beyond affecting these foreigners’ lives, there are real effects on US citizens too. One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed. Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.

Filipino-Hawaiian lawyer Emmanuel Samonte Tipon last year blogged a useful overview of relevant cases touching on when someone might have legal standing to sue for judicial review of a visa application. Let’s go over them one by one.

  1. Sabataityte v. Powell: Sabataityte was denied a visa because the Warsaw consulate believed she had been previously unlawfully present in the US. She challenged this determination. The courts ruled that regardless of the merits, she had no right to mount such a challenge.
  2. Saavedra Bruno v. Albright: Saavedra was denied a visa, and had another visa revoked, because the US government believed he had previously illicitly trafficked drugs (based on a hit when they searched his name in a database). This was news to Saavedra and his American employer, both of whom sued the government to present the evidence so they could challenge the determination that he was a drug trafficker. The courts ruled that both Saavedra and his American employer had no legal basis to confront the claims against him or challenge the visa refusal.
  3. Hermina Sague v. United States: Sague, a citizen, married Berger, a Frenchman, and applied to permit him to enter the US so they could live together as a family. The government denied Berger a visa, and Sague sued, insisting she had a right as a citizen to live with her husband in the US. The courts ruled that it was impossible to challenge the consular refusal and moreover, based on legal precedent, “there is no constitutional right of a citizen spouse … to have her alien spouse enter the United States.” Perhaps even more perversely, “once an alien has entered our jurisdiction, even illegally, he may only be expelled after proceedings conforming to the traditional standards of fairness encompassed in due process of law. However … ‘an alien on the threshold of initial entry stands on a different footing.'” In other words, if you want due process, you need to enter the US illegally.
  4. Centeno v. Shultz: Centeno, a Filipino citizen, applied for a visa to visit his American family, and was denied. He and Coane, his American brother-in-law, sued to appeal this decision, arguing that the decision was arbitrary and violated Coane’s first amendment rights to engage in discussion with his brother-in-law. (You laugh, but violation of citizens’ first amendment rights is one of the few grounds citizens have to challenge consular officers’ decisions.) The US Court of Appeal essentially laughed Centeno and Coane out of court in a one-page decision.
  5. Patel v. Reno: Patel, a US citizen, applied for visas for his non-citizen wife and children. The government, suspecting Patel had obtained citizenship by fraudulent means, instructed the consulate in Mumbai to place Patel’s application in limbo, where it laid for 8 years. The courts ruled that since no final decision had been made, this visa application was subject to judicial review. Since the application had been in suspended state for 8 years, the courts ordered the consulate to make a final decision on whether to grant the application within 30 days. At the same time, the courts affirmed that not even the Secretary of State had the power to overturn the visa decision once it had been made.
  6. Kleindienst v. Mandel: A seminal case in US immigration law. Mandel was a Belgian Marxist who had travelled to the US many times to speak. In 1969 he applied for a visa and was refused on grounds of his politics. He and the citizens who had invited him to speak sued, citing amongst other factors, the government’s denial of the citizens’ first amendment rights to freedom of speech. The Supreme Court eventually ruled that an infringement of first amendment rights could be grounds for judicial review; broadly, the consular decision on a visa application must have “a facially legitimate and bona fide reason”. Immigration lawyers regard this as a landmark case for immigrant rights, but in reality, the Supreme Court went on to say that allowing Mandel his visa on first amendment grounds risked destroying the doctrine of consular nonreviewability, since by definition virtually all immigration restrictions infringe on citizens’ first amendment rights. The court then held that Mandel was not entitled to judicial review of the consular decision.
  7. Udugampola v. Jacobs: Udugampola, a US citizen, applied for an immigrant visa for her non-citizen father. The government initially approved the petition, but at the consular interview, the officer there denied the visa because he suspected her father of terrorism. Udugampola and her mother (also a legal immigrant to the US) sued the government. The courts ruled that neither Udugampola’s rights as a daughter nor her mother’s rights as a wife were constitutionally-protected in this case, and they had no basis to challenge the consular decision.

A common thread runs through all these: no matter whose interest are at stake, there is virtually no right to question a consular decision, even if it is based on flimsy evidence or is egregiously wrong. Even if it splits up a marriage, the government has absolute totalitarian power. And these are just the cases which get as far as prominent courts in the US. How many thousands of families must there be, lives ruined by immigration law, around the world? How can any self-respecting person in this day and age reconcile the outright disdain immigration law has for our families and communities with modern ideals of liberty and human rights?

The photograph featured at the top of this post is of Mario Chavez embracing his wife Lizeth through the US-Mexico border fence at Playas de Tijuana. The original photograph is copyright David Maung, and was published by Human Rights Watch; a higher-resolution version is available at their website.

 

Immigration restrictions and casual moral assumptions

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

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

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

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

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

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

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

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

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

What is to be done?

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

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

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

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

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

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

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

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

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

I-94W

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

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

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

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

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

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