Tag Archives: immigration enforcement

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

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

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

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

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

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

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

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

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

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

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

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

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

Secure the US-Mexico border: open it

The Associated Press has a great story out on what a “secure” US-Mexico border would look like. It covers perspectives from various stakeholders on border security, with opinions running the gamut from “The border is as secure as it can ever be” to “It’s obviously incredibly unsafe.” I am not sure if the AP is fairly representing opinions on the border issue, but the reporting of how life on the border has evolved over time is fascinating.

One thing that strikes me in this reporting is how casually drug smugglers/slave traffickers and good-faith immigrants are easily-conflated. Is a secure border one where people who want to move contraband goods or human slaves illegally cannot easily enter? Or is it one where well-meaning people can be indefinitely kept at bay for an arbitrary accident of birth? This passage juxtaposes the two quite different situations:

And nearly all of more than 70 drug smuggling tunnels found along the border since October 2008 have been discovered in the clay-like soil of San Diego and Tijuana, some complete with hydraulic lifts and rail cars. They’ve produced some of the largest marijuana seizures in U.S. history.

Still, few attempt to cross what was once the nation’s busiest corridor for illegal immigration. As he waited for breakfast at a Tijuana migrant shelter, Jose de Jesus Scott nodded toward a roommate who did. He was caught within seconds and badly injured his legs jumping the fence.

Scott, who crossed the border with relative ease until 2006, said he and a cousin tried a three-day mountain trek to San Diego in January and were caught twice. Scott, 31, was tempted to return to his wife and two young daughters near Guadalajara. But, with deep roots in suburban Los Angeles and cooking jobs that pay up to $1,200 a week, he will likely try the same route a third time.

The main thing that strikes me about the previously “unsecure” border near San Diego is that border patrol agents were overwhelmed by a mass of people until more staff and walls were brought to bear. But these masses of people almost certainly were comprised in large part, if not near-entirely, of good-faith immigrants. Smugglers and traffickers merely take advantage of the confusion to sneak in with the immigrants. If the immigrants had a legal path to entry, if they did not have to cross the border unlawfully, the traffickers would be naked without human crowds to hide in. If border security advocates just want to reduce illegal trafficking, demanding “border security” before loosening immigration controls may well be putting the cart before the horse.

Even so, as I’ve said before, the physical reality of a long border means that human movement across it can never be fully controlled. Demanding totalitarian control as “true border security” is about as unrealistic as, if not even more so than an open borders advocate demanding the abolition of the nation-state.

The AP covers some damning stories of peaceful Americans murdered by drug traffickers in the same breath as it covers someone trying to get to a job in suburban LA. Even if one insists that murdering smugglers and restaurant cooks should be treated identically on account of being born Mexican, it is difficult to see how one can demand that the US border patrol prioritise detaining them both equally. Yet as long as US visa policy makes it near-impossible for most good-faith Mexicans who can find work in the US to do so, the reality of the border means that thousands of Mexicans just looking to work will risk their lives crossing the border, alongside smugglers and murderers.

The more reasonable policy has to be one that will allow US border patrol to focus on catching the most egregious criminals. That means giving the good-faith immigrants a legal channel to enter the US on a reasonable timeframe, reducing the flow of unlawful border crossings. This is not just my opinion, but that of even a former (Republican) US Ambassador to Mexico (emphasis added):

Tony Garza remembers watching the flow of pedestrian traffic between Brownsville and Matamoros from his father’s filling station just steps from the international bridge. He recalls migrant workers crossing the fairway on the 11th hole of a golf course – northbound in the morning, southbound in the afternoon. And during an annual celebration between the sister cities, no one was asked for their papers at the bridge. People were just expected to go home.

Garza, a Republican who served as the U.S. ambassador to Mexico from 2002 to 2009, said it’s easy to become nostalgic for those times, but he reminds himself that he grew up in a border town of fewer than 50,000 people that has grown into a city of more than 200,000.

The border here is more secure for the massive investment in recent years but feels less safe because the crime has changed, he said. Some of that has to do with transnational criminal organizations in Mexico and some of it is just the crime of a larger city.

Reform, he said, “would allow you to focus your resources on those activities that truly make the border less safe today.”

It’s the view of those sheriffs who places themselves in harm’s way to fight those murderers and smugglers (emphasis added):

Hidalgo County Sheriff Lupe Trevino points out that drug, gun and human smuggling is nothing new to the border. The difference is the attention that the drug-related violence in Mexico has drawn to the region in recent years.

He insists his county, which includes McAllen, is safe. The crime rate is falling, and illegal immigrants account for small numbers in his jail. But asked if the border is “secure,” Trevino doesn’t hesitate. “Absolutely not.”

“When you’re busting human trafficking stash houses with 60 to 100 people that are stashed in a two, three-bedroom home for weeks at a time, how can you say you’ve secured the border?” he said.

Trevino’s view, however, is that those people might not be there if they had a legal path to work in the U.S.

Immigration reform is the first thing we have to accomplish before we can say that we have secured the border,” he said.

In Nogales, Sheriff Tony Estrada has a unique perspective on both border security and more comprehensive immigration reform. Born in Nogales, Mexico, Estrada grew up in Nogales, Ariz., after migrating to the U.S. with his parents. He has served as a lawman in the community since 1966.

He blames border security issues not only on the cartels but on the American demand for drugs. Until that wanes, he said, nothing will change. And securing the border, he added, must be a constant, ever-changing effort that blends security and political support – because the effort will never end.

“The drugs are going to keep coming. The people are going to keep coming. The only thing you can do is contain it as much as possible.

I say the border is as safe and secure as it can be, but I think people are asking for us to seal the border, and that’s unrealistic,” he said.

Asked why, he said simply: “That’s the nature of the border.”

Simply put, if you want a secure US-Mexico border, one where law enforcement can focus on rooting out murderers and smugglers, you need open borders. You need a visa regime that lets those looking to feed their families and looking for a better life to enter legally, with a minimum of muss and fuss. When only those who cross the border unlawfully are those who have no good business being in the US, then you can have a secure border.

The image featured in the header of this post depicts the Puente Viejo bridge connecting Brownsville, Texas and Matamoros, Tamaulipas. Via the University of Texas at Brownsville.

Barry Goldwater’s vision of open borders

Goldwater is a name synonymous with the rebirth of American conservative, right-wing politics. But it is also a name that should be synonymous with open borders. In 1962, Barry Goldwater jotted down some thoughts on where his beloved Arizona would be in 50 years. On immigration and Mexico, he said:

Our ties with Mexico will be much more firmly established in 2012 because, sometime within the next 50 years, the Mexican border will become as the Canadian border, a free one, with the formalities and red tape of ingress and egress cut to a minimum so that the residents of both countries can travel back and forth across the line as if it were not there.

To a certain degree, his vision came true ahead of time. Stories of lively cross-border interactions pre-9/11 abound. After the post-9/11 crackdown on border movement, it became much harder to cross the Mexican border with the US without enduring much lengthier delays than existed before. Goldwater’s vision plainly does not exist today.

Of course, to some degree, one can argue that Goldwater wasn’t really arguing for true open borders (though I find it interesting that Goldwater pointedly refers to the “residents of both countries,” as opposed to just citizens). Canadians themselves face a fair number of immigration restrictions in the US. The popular television show How I Met Your Mother has made fun of this by depicting a Canadian character’s issues with her work visa forcing her to consider a sham marriage with a friend. This theme is fairly popular in the media, actually; Ryan Reynolds and Sandra Bullock starred in The Proposal, a film based on a very similar storyline, also about a Canadian woman forced into a sham marriage to hold down her job in the US.

These pop media depictions have a basis in reality. My current employer used to hire non-US residents frequently. It stopped doing this a few years ago not just because of the cost, but because of the immense uncertainty about whether a work visa would actually come through. It’s no use hiring someone only to have to bid goodbye to your tens of thousands of investment in that person’s training thanks to immigration enforcement. Canadians at my firm were no exception to this; I met someone who transferred to my office from our Toronto office very shortly before we stopped sponsoring work visas; he told me he actually decided to work for us in Toronto because he wanted to work in the US in the first place.

So no open borders for Canadians. But looking at Goldwater’s statement, I don’t think he would have expected the kinds of restrictions my Canadian colleagues put up with. One can hardly describe a convoluted work visa process as an immigration law that cuts the formalities of ingress and egress to a minimum. One can hardly say that Canadians can cross the US border as if it were not there! Maybe Goldwater was only imagining open borders for tourists, but that doesn’t sound like the sort of thing someone dreaming about the next 50 years of progress would be focused on.

Modern US conservatives would do well to hark back to Goldwater (and Ronald Reagan, for that matter, considering his willingness to embrace “amnesty”). The nature of North American trade and physical borders means closed North American borders are legislating against economic and geographic reality. Instead of trying to build an expensive and unrealistic wall, the sensible thing to do is to allow those acting in good faith to come and go — and monitor these legal movements carefully to filter out those with ill intent. In fact, this is a lesson from another famous US conservative’s Operation Wetback. Reflecting on Dwight Eisenhower’s policy, Alex Nowrasteh writes:

By the early 1950s many unauthorized migrants were entering alongside Braceros to work, mainly in Texas. The government responded with the now infamous Operation Wetback that removed almost 2 million unauthorized Mexicans in 1953 and 1954. Unlike today’s removals and deportations, the migrants were only required to step over the border into Mexico and could then step back in and lawfully sign up for the Bracero program. As a result, the number of removals in 1955 was barely 3 percent of the previous year’s numbers and those who previously would have entered unlawfully instead signed up to become Braceros, which was the intended purpose of Operate Wetback. The government did not tolerate unlawful entry but made it very easy for migrants to get a guest worker visa and used Border Patrol to funnel unauthorized migrants and potential unauthorized migrants into the legal system.

US immigration policy consciously makes it difficult for Canadian white-collar professionals to work in the US, and essentially impossible for Mexican blue-collar professionals to work. Is it any surprise that the white-collar professionals of the world would rather go elsewhere, while the blue-collar professionals sneak in to work?

Restrictionists and those critical of open borders contend that Operation Wetback “succeeded” in the sense that it deported millions of people, and most of them did not come back. Calls for Operation Wetback II or variants of it are not uncommon; they appear on FOX News and on stage at presidential debates. But US law then, unlike now, was not prejudiced against previous deportation victims. You could still re-enter as a Bracero legally right after you were deported; the whole point of deportation was to encourage you to re-enter legally, not to erect further barriers to your entry. After all, if you were able to get in unlawfully before, you could certainly try again!

Conservatives need to recognise physical and economic realities, and use the legal system to work within them, instead of trying to pretend there’s some perfect form of “border security” that doesn’t involve doing battle with the fundamental realities of the North American map. Modern border enforcement proposals take for granted that it’s possible to control in totalitarian fashion large swathes of border territory. That may be so, but only if the state assumes a totalitarian form itself. As the American Civil Liberties Union would put it, to enforce the border, you’d need to erect a Constitution-free zone.

The photograph featured in the header of this post is of Americans and Mexicans playing volleyball over the border, circa 1979. Via RealClear.

Incentives to be accurate about what forms of enforcement work

Does “self-deportation” (also known as attrition through enforcement) work, if the goal is to cut down on (unauthorized) immigration? For those who want to cut such immigration down, this is a key question to answer. Restrictionist groups such as NumbersUSA, CIS and VDARE have generally taken the stance that attrition through enforcement is a workable strategy (see here, here, and here). The Immigration Policy Center, on the other hand, has argued otherwise.

I laid out hints of my own position on the matter here and here. Briefly put, yes, attrition through enforcement does work, but it also imposes costs and collateral damage on citizens/residents. After some reflection, though, it occurred to me that even without knowing much about the details, one would be led to suspect this.

I begin with the assumption that restrictionists actually want to achieve what they say they want to achieve — that there should be less future immigration (legal and illegal) and that most current illegal immigrants should leave the country. It is, of course, possible that people like Mark Krikorian don’t really want their stated agenda to be implemented, because it would make their jobs as restrictionist advocates superfluous. I find this unlikely, because it seems to me that restrictionists are generally extremely talented people who can find employment in a number of areas that involve the skillful and convincing presentation of a weak case — as lawyers, political aides, or lobbyists — and that their sticking to the relatively less lucrative area of immigration restrictionism is at least partly explained by genuine conviction.

If restrictionists sincerely want what they say they want, this means that their incentives are very much aligned towards determining how to achieve it. Thus, when they evaluate policies like attrition through enforcement and border security, they’re probably the best judges of the effectiveness of these policies.

On the other hand, open borders advocates and immigrant rights groups don’t want immigration enforcement (for the most part) to succeed — or at any rate, not without corresponding liberalizations of immigration policy. Their incentives, therefore, are not well-aligned towards an unbiased evaluation of the success or failure of these policies. To an extent, they face conflicting incentives. If they see a particular enforcement measure that is cheaper and more “effective” at achieving restrictionist ends, do they acknowledge this — and end up providing free service to the restrictionist cause — or disingenuously deny it, coming up with reasons against? I suspect that this is a very real dilemma, and many immigrant rights groups resolve it by fooling themselves into thinking that the effective methods of enforcement are ineffective. It’s similar to how drug use legalization people might feel at being asked to evaluate the effectiveness of drug raids at imprisoning drug users.

For these reasons, you’d see why one might have a strong prior that restrictionists would be more likely to have figured out the best methods of achieving their goals than open borders advocates and immigrant rights groups.

Nonetheless, there is another side to the picture: cost and collateral damage. Here, the incentives for restrictionists are bad. Without knowing the details, one would be led to suspect that restrictionists would systematically underestimate the cost and collateral damage of their proposed methods to citizens and natives. The reason is that hardcore restrictionists have a much higher preference for getting rid of illegal immigrants than the general public, so in order to sell their message to a relatively less (but still highly) restrictionist public, they’d need to underplay the collateral costs of their policies. On the other hand, immigrant rights and open borders advocacy groups would be quick to point out the collateral damage to citizens, and run sympathetic stories of citizens, authorized immigrants, and tourists on valid visas getting detained and harmed by over-enthusiastic enforcement.

My own take on this matter is that the best response for a hardcore open borders advocate to discussions of what forms of enforcement work is to first acknowledge that his/her own complete disagreement with the end goal makes him/her an extremely bad person to consult regarding the means to be used towards that end. One can think of this almost in the sense of a “conscientious objector” who refuses to participate in a system that his/her conscience goes against, or a person who refuses to testify against himself/herself in court. If it is necessary to offer an opinion, there are two alternatives. The first is to be genuinely honest about what forms of enforcement work, but argue that something “working” does not mean that you endorse it. The other alternative is to deliberately dissemble about what forms of enforcement work. While the former is more intellectually honest, I suspect that one can make a case for the latter from a consequentialist point of view, at least in the rare cases that one’s opinion could actually influence or shape immigration enforcement. At any rate, however, the trade-off between intellectual integrity and a conscience that forbids lending support to a policy one perceives as evil should be undertaken consciously rather than out of a reflexive desire to disagree with restrictionists.

UPDATE (March 31, 2014): When I wrote this post, I was broadly of the view that interior enforcement is more effective than border enforcement. However, this blog post by Alex Nowrasteh cites a literature sumary by the Council of Foreign Relations that suggests the opposite. Assuming this summary is correct, restrictionists’ focus on interior enforcement seems puzzling, and the broad claim of this post might well be misguided or false.

Immigration crackdowns: federal versus state

Note: This blog post is a little blase about the stock versus flow distinction, namely, the distinction between immigrant numbers (the stock) and net immigration levels (the flow). I didn’t belabor the distinction because I don’t think the distinction was particularly relevant to any of the points I was making, but others might disagree.

Here’s a plausible theory that has emerged from recent blog posts and comments on this site, as well as other material I’ve read, regarding the effect of immigration crackdowns on illegal immigration at the federal and state levels:

  • Ceteris paribus, if a single US state cracks down on illegal immigration in that state, illegal immigrant numbers and proportions would tend to fall in that state. Most of this, however, would be to the detriment (from a restrictionist perspective; open borders advocates might call it “benefit” instead) of other US states: immigrants would move to the other states, and potential immigrants would find other states more attractive to settle in.
  • If, however, all states were to crack down on illegal immigration simultaneously, or if a federally coordinated crackdown were initiated, then the net downward effect on illegal immigrant numbers would be much lower than the effect for any single state, because the immigrants are less likely to leave the country than they are to move to neighboring states. In other words, estimates of the success at a national level of strong immigration enforcement based on their “success” in individual states are likely to lead to overly optimistic (from a restrictionist viewpoint) estimates of the decline in immigration levels and/or total immigrant numbers.

My main criticism of economic determinism (which says that immigration numbers are determined by economic trends rather than immigration policies), at least in the US context, has been that states that embraced immigration crackdowns saw their illegal immigrant numbers decline. At the same time, the numbers regarding overall cross-border migration flows seem to suggest that state-level immigration crackdowns were relatively insignificant in their effects on these flows. The above offers a possible reconciliation.

My co-blogger Nathan Smith, in his book Principles of a Free Society, says something similar in the context of a border fence to what I’ve just said about crackdowns (you can download the PDF or DOC of the immigration chapter from which I quote):

Experts like Douglas S. Massey insist that all the increases in immigration enforcement since the 1980s have failed not only to stop, but even to slow illegal immigration, and even that they have increased permanent illegal migration by making the alternative of seasonal migration more difficult. I find it hard to believe that enforcement has been that ineffective; yet there is an easy way to make sense of the claim. Border enforcement increases the cost, in money and hardship, of migrating, but that cost is still small compared to the value of migrating.

If U.S. GDP per capita is $46,400, while Mexico’s is $13,500, and if we assume the economic growth rate in both countries is about the same and the discount rate is 1% more than economic growth, the benefit of living in the U.S. rather than Mexico for a typical migrant might be on the order of $1.3 million. The rewards, then, may just be too large for the border enforcement measures applied so far to make much of a difference in the incentives for migration. […]

Economically, the United States is rather homogeneous: GDP per capita differs from state to state by a factor of two or less. For a prospective illegal immigrant, one way into the country may be about as good as another; but there is a strong incentive to get in somehow. If there is a fence at one point on the border, a rational migrant will go to another part of it. If there were a fence along the whole border, it would be time to go over or under or around. A person can get over a fence with ladders, or tunnel under it, go around it by boat through the Gulf of Mexico or up the Pacific Coast, or fly over it in a small plane, or perhaps even as a human cannonball with a parachute.

Although the thesis outlined above sounds prima facie plausible, I’m ambivalent about its truth. On the one hand, the substitution effect between states is closer than the substitution effect between countries, so that does point to a plausible reason why the “success” of enforcement measures in individual states would overstate their success if adopted simultaneously by all states, or if adopted through a federally coordinated initiative in which all states participated actively. On the other hand, if the measures were adopted in all states simultaneously, this might deter potential migrants to each individual state more because they know they have fewer fallback options. If Arizona alone had strong enforcement, a person might still migrate to Arizona, knowing that he/she could always escape to California if things got tough. If, however, Arizona and California both have strong enforcement, this makes Arizona even less attractive.

These conflicting effects mean that looking at state immigration crackdowns to predict the effects of an “all-state” or federal immigration crackdown is fraught with uncertainty both ways.

PS: Just to be clear, I think that measures being “successful” in the sense of reducing illegal immigrant numbers does not make them worth enacting (obviously, or I wouldn’t be posting this on an open borders blog). In fact, the very “success” of these measures might cause an adverse economic impact. Also, I think that the morality of many strong enforcement measures is questionable, though this is not the place to voice those concerns. The questions above are more about empirical predictions, not about prescribing a particular course of action.