Tag Archives: immigration law

The Practice of Immigration Law as Manumission

I do not want to equate the evil of chattel slavery with the evil of immigration restrictions. They may or may not be equal in one person’s experience or another’s, but I am not out to make a claim one way or another. I want to avoid at all costs what Elizabeth Martinez terms an “oppression Olympics,”1 referring to the weighing of which group is more or less oppressed than another such that the comparison succeeds in turning oppressed people against each other, which is of course a win for the oppressor. All I want to do here is re-frame the moral context of immigration law practice by way of analogy to the practice of manumission law in centuries past.

I. Manumission Law and Immigration Law

During the centuries that chattel slavery persisted in the Americas, there existed also in many jurisdictions the law of “manumission,” or the emancipation of a person from status as a slave through legal means, such as by purchasing or contracting for their freedom from their owner, or having it granted to them by their owner’s will and testament, making them a “free person.”2 Sometimes this involved slave owners asking a tribunal to manumit the human beings they themselves owned,3 but in other contexts it involved enslaved people directly asking the court to allow themselves to be manumitted,4 sometimes with representation by counsel.5 It is this latter scenario of self-manumission through an advocate that we’re referring to here – where an advocate argued on behalf of an enslaved person for their freedom.

The practice of immigration law6 is the lawful application for enhanced liberty or rights for individuals without U.S. Citizenship, before and against a government agency designed to restrict their liberty and their right to have rights, as Hannah Arendt put it.7 The immigration law practitioner petitions a government officer or judge for their recognition of a human being’s right to move, work and survive. This is to say, the non-citizen, through their immigration lawyer, asks the government officer or judge for permission to be treated as a full human being; put even more simply, a non-citizens asks the government, through counsel, to recognize their humanity.

The same law that affords the non-citizen the ability to petition for this recognition and permission is the same law that endows that officer or judge with the unchallenged power to dismember families, crush freedom and sentence deportees to death. Just as the enslaved person asked for their freedom on the authority of their owner’s will or contract – the same owner with the power to end their family, their freedom or their life. But, without comparing the degree of dehumanization or the frequency of torture and murder visited upon human beings within either of these institutions, what other aspects of them appear comparable?

In both instances the law afforded a narrow route of escape (albeit with limited rights to the escapee) from the institution. In both instances a legal advocate, a lawyer, had to work within the laws of the time and make arguments based on those laws and the assumptions that undergird them – seeking relief from the same power that presumed the authority to destroy their client. In both instances, engaging in this kind of advocacy against the institution did not actually challenge the institution’s authority or legitimacy, but rather reinforced them.8 Certainly it failed/fails to challenge but reinforces the artifice of white supremacy. In both cases the advocacy nonetheless enhanced the liberty of individual people on a case-by-case basis

One author describes manumission this way: “Slaves used the law designed essentially to keep them as slaves to win their freedom, and free people of color used the law to maintain and often to fight vigorously to safeguard their liberty.”9 Replace “slaves” with “undocumented people” and the former part of this explanation could easily describe removal defense and bond hearings while the latter could just as easily describe applications for legal permanent residence or naturalization.

II. Moral Tension

Another way in which the practice of manumission is comparable to the practice of immigration law is that neither was/is devoid of moral ambiguity. In each case well-meaning people were working within an institution they may have fundamentally disagreed with or even hated. In doing so they obeyed the rules of that institution and called upon the authority of the slave owner’s ownership to manumit, and thus arguably kowtowed to its authority, thereby legitimizing and reinforcing it. In this sense they were to some degree complicit in the crimes of the institution itself. When we ask the government today to give a person relief from deportation or detention, we imply that we agree that the government has the authority to destroy that person’s life; inasmuch as we appeal to a power, we also consent to it.

But at the same time, there’s a strong moral argument that an attorney’s practice of manumission law to secure a client’s freedom was necessary for a simple reason: it saved lives. It did require a lawyer to play by the rules of slavery, but practically it also saved the lives of individual human beings, shielding them from torture, murder and rape – just as deportation defense often does today.10 Ultimately manumission won an individual person’s liberty (or at least reduced their level of bondage11), albeit without injuring or truly challenging the evil institution from which they were liberated. The same can be said of the practice of immigration law today – like manumission before it, it may be necessary to save lives.

Historian Jessica Millward, in her article discussing how enslaved women used manumission laws to gain their freedom, describes this moral tension:

Manumissions were granted on an individual basis and never jeopardized the balance of power, which positioned the laws of the slaveholding South as an omnipresent force in the lives of African Americans. After all, manumission laws were slaveholders’ laws, and any space left for a slave to gain freedom through them was a loophole, not an open door. However, the ability to negotiate one’s manumission and that of one’s kin became a very important vehicle of resistance for enslaved women.12

As immigration lawyers, especially in the world of public interest law, we take enormous emotional shelter in the perception that we are on the just side of a war between right and wrong, and with good reason – we are. But we do not enough acknowledge the moral tension Millward describes in the context of manumission, where that tension is more obvious: we are doing the right thing, yes, but in a context that is so wrong that any proximity to it at all puts us closer than we want to be to culpability. As such that proximity deserves our scrutiny and critical thoughtfulness.

So this comparison is not to say that a lawyer’s practice of manumission or immigration law was/is evil in and of themselves; rather manumission practice, like immigration practice, could be a necessary vehicle of resistance (to use Millward’s words) when and inasmuch as it becomes a necessary intervention to save lives and protect people from harm. This comparison prompts us to conclude that their practice does not by itself satisfy the moral responsibility of the practitioner. Such a practice is necessary, but insufficient. It was not enough for a lawyer to advocate for the manumission of individuals during a time when the terrorism of slavery thrived – rather the minimum level of moral responsibility required that they call for the abolition of slavery as an institution.

Thus, like legal manumitters before them, it is not enough for immigration lawyers to practice the law – we must be abolitionists. It is morally insufficient to fall somewhere in the middle or to fail to take that position. And it is in that sense too that these two areas of law are analogous – not in the depth of the cruelty of the institution that they were a part of – no oppression Olympics please – but in their failure of each in and of themselves to be morally adequate conduct on the part of the practitioner in each of their respective contexts.

For both the manumitter advocate and the immigration lawyer, it is a failure of their moral imagination to believe that their responsibility ends with their legal work. Our duty does not end with advocacy on behalf of someone’s life or liberty, but with calling for the abolition of the institution that threatens them in the first place. Our job may begin with filing a Notice of Appearance, but it ends only with speaking out in favor of abolishing the border.13


1 Martinez, Elizabeth. 1993. “Beyond Black/White: The Racisms of our Times.” Social Justice 20 (1/2): 22–34.
2See, e.g., Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001); Andrew Kull, Restitution in Favor of Former Slaves, Symposium: The Jurisprudence of Slavery Reparations, 84 B.U.L. Rev. 1277-78, 1280-81, 1286 (Dec. 2004); Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves nevertheless continued to enter into contracts for self-purchase during the antebellum period”).
3 A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1255 (Dec. 1993); Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001).
4 See Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves in Louisiana had the right to bring suits for their freedom in their individual capacities . . .”); A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1260-61 (Dec. 1993).
5 See Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 42, 133 (2015).
6 I don’t use this phrase here to refer to attorneys who work for Immigration and Customs Enforcement or Citizenship and Immigration Service – although they are practicing immigration law as well, inasmuch as a lawyer representing a slave state in opposition to an enslaved persons request for manumission could be said to have been practicing manumission law.
7 Hannah Arendt, The Origins of Totalitarianism, new edition 296 (1968).
8 This is probably not the case with federal impact litigators who might challenge an immigration law on constitutional grounds, for example, since they may be challenging the institution itself, just as, say, the 13th Amendment did to slavery, or Brown v. Board of Education did to slavery’s later incarnation, Jim Crow.
9 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans at xiii (Jan. 2003).
10 In truth, the lawyer defending the person from deportation does not “save” that person – but merely engages in a partnership in which the non-citizen saves themselves through that partnership, and the same can be said for any attorney who defended an enslaved person against a nineteenth century tribunal.
11 Manumission did not restore a former slave to full human being-status – they could still face violence and discrimination and in some jurisdiction could be re-enslaved to pay off their owners debts. Likewise, a non-citizen may win Legal Permanent Residence before an immigration court, but could still be deported if they commit a crime or engage in any number of other actions.
12 Jessica Millward, The Relics of Slavery: Interracial Sex and Manumission in the American South, Frontiers: A J. of Women Studies, Vol. 31, No. 3 (2010), pp. 22-30, at 26.
13 And when I say abolishing the border I mean abolishing the border.

Executive Action, Not Legislative Reform, Is How U.S. Immigration Policy Gets Made Now

Last Thursday, President Obama announced several measures to liberalize U.S. immigration policy by executive action. First is an expansion of the program initiated in 2012 which gave quasi-legal status to undocumented youth, Deferred Action for Childhood Arrivals (DACA). The age limit for qualification for DACA has been removed, and the date before which an applicant must prove he or she entered the U.S. has been moved from 2007 to 2010. DACA-style benefits will also be extended to undocumented parents of U.S. citizen or permanent resident children who have been in the U.S. since January 1, 2010, and have not been convicted of certain crimes. This new program for parents will be called Deferred Action for Parental Accountability (DAPA). The White House estimates that these two reforms, along with an expansion of waivers for family members of U.S. citizens and permanent residents who are currently ineligible for green cards and reforms to certain employment visas, will protect about five million people from deportation. That’s in addition to the nearly 600,000 who have already benefited from the DACA program.

Vivek Wadhwa believes the changes to employment visa processing will be good for immigrants and tech companies that rely on immigrant labor. Prerna Lal and Dara Lind both posted helpful summaries of the deferred action programs.

Applications for DAPA will not be accepted for another six months. The Department of Homeland Security concurrently made changes to its guidelines on enforcement priorities which will become effective in January. The new guidelines will penalize recent entrants and those convicted of certain crimes, while deprioritizing people who had been deported and reentered the U.S. prior to 2014.

As Dara Lind noted, DACA was an improvement over earlier failed prosecutorial discretion initiatives because the program “has demonstrated that formalized protections work much better than vague promises.” Like DACA and Temporary Protected Status, a type of executive humanitarian relief, once granted, DAPA is unlikely to be taken away. The government emphasizes that deferred action is completely discretionary and can be revoked at any time and for any reason. In practice, it is very unlikely that President Obama would rescind or significantly restrict these discretionary programs once they are implemented. It is harder to take something away than to never grant it in the first place. DACA beneficiaries have been able to come out of the shadows, integrating into communities, making their status known to more people, and becoming more active politically. While excluded from the franchise, the moral power they possess as victims of systemic oppression amplifies their voices. It will be difficult politically for Congress or an antagonistic president to rescind DACA or DAPA in the foreseeable future. Any presidential candidate who runs on a promise to rescind the programs will lose the Latino vote by a large margin, effectively dooming his or her candidacy. These programs are here to stay and will hopefully be expanded further.

The deferred action program has serious flaws.

President Obama’s announcement fell far short of what activists had hoped for. The DAPA program excludes parents of DACA beneficiaries. The program leaves out anyone who has already been deported and prioritizes enforcement against those who try to come back to rejoin their families in the future. The president’s “Felons, not families” messaging is a slap in the face of communities of color targeted by an unjust criminal justice system. Queer immigrants are less likely to have U.S.-born children than hetero immigrants and hence less likely to qualify for the program, and agricultural workers were not included.

The number of DAPA beneficiaries will likely be much lower than projected. A good rule of thumb is to divide by half the projected number of beneficiaries to get the true number. 1.2 million people are purportedly eligible for protection under DACA, but after two and a half years, fewer than 600,000 have actually navigated the process successfully. This is due to the difficulty of documenting presence when one is undocumented, high filing fees, disqualification for minor criminal convictions, lack of reliable legal services, and ingrained distrust of the government.

DACA applicants have advantages in navigating the system that many older immigrants don’t have: most speak English and have been able to access information and resources online. But even many undocumented youth have been unable to apply for DACA or have had applications denied, though they are technically eligible for the program, because they have been unable to prove physical presence in the U.S. I expect this to be an even bigger factor with parents, since they will not have school records, as many DACA applicants did. It can be difficult to document your life when you are undocumented, but that is what the government requires. Many people have been living in a way so as to escape detection. Many have been unable to open a bank account, get a loan, buy a car, get health care, or do any number of things that middle class citizens take for granted that would create a paper trail. Now the government wants ironclad proof that applicants were here since a date certain, and too often begins with the assumption that evidence presented is fraudulent.

Whether it is acknowledged or not, the Department of Homeland Security’s primary mandate is to deport people. U.S. Citizenship and Immigration Services (USCIS) is the agency within DHS tasked with adjudicating DACA and DAPA applications. When reviewing applications, USCIS too often looks for reasons to deny rather than reasons to approve. The pattern with this administration has been to announce a policy reform that is supposed to benefit the undocumented community. By the time the policy is implemented, the cameras have turned away and DHS reverts to norm, denying applications for lack of evidence or using discretion against rather in favor of an applicant.

The DAPA program will exclude a large number of people with criminal convictions regardless of family ties or length of presence in the U.S. Convictions that might result in minor penalties for citizens, like a first-time DUI offense, categorically disqualify potential applicants. A third misdemeanor offense of any kind is a ground of ineligibility, which will screen out some undocumented activists who have participated in multiple civil disobedience actions.

In addition, as Dara Lind points out, for political reasons, the government may send contradictory messages about the program to applicants: “that they should apply now because the program is safe, but that it could be taken away at any time” by Republicans. This may discourage people from applying, especially since this president has deported more noncitizens than any other.

In all, I estimate that only two to three million people will be approved under the DAPA program, far below the five million projected by the White House. This may undercut the political benefits meant to accrue to Democrats as the shortcomings of the system once again come to the fore.

While the new programs are a flawed and partial remedy, and will make things worse for some people, obtaining benefits under the programs will be life-changing for many people. They will be able to work legally and live without fear of immediate deportation. They will become more visible and further integrated into their communities.

So, under these conditions, what can we expect going forward?

Deportations are likely to continue at a historically high rate.

The federal government is likely to continue deporting large numbers of people because DHS’s new enforcement priorities still cover more than enough people to maintain ICE’s existing deportation quota of about 400,000 per year. Unnecessary imprisonment of noncitizens will continue as the so-called bed mandate remains in place, which DHS construes to require it to imprison 34,000 immigrants at any given time for civil immigration violations. Operation Streamline, the federal program to criminally prosecute, jail, and deport immigrants crossing the border, is still in place. Many of those convicted through Operation Streamline were arrested while trying to rejoin families in the U.S., and now face 20-year or, in some cases, lifetime bars on returning to the U.S.

The new enforcement priorities escalate the government’s punitive response to refugees fleeing violence and corruption in Central America. The administration is going ahead with plans to construct the largest immigration prison in the country, primarily to jail refugee women and children until they can be deported. The president’s initiative calls for 20,000 additional border officers, though the mechanism for funding those officers is not yet clear to me.

The DOJ’s Office of Legal Counsel itself estimates that deportations will not significantly slow after the new policies are implemented:

[W]hile the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence.

Mark Noferi of the American Immigration Council notes that deportation numbers may remain high due to an increased use of expedited removal at or near (within 100 miles of) the border and the high-by-historical-standards levels of funding for immigration enforcement.

Given the low percentage of people I expect to successfully complete the process, seven to eight million undocumented people will likely still be in limbo, at varying degrees of risk of deportation. The deportation machine has been built and is running smoothly. It won’t disappear just because the president has placed some people off limits. DHS may now go after those who are not protected more aggressively than before.

Political divisions around immigration will become more entrenched.

The political dynamics that pushed the president to announce the deferred action measures are likely to persist. Legislative reforms are not on the horizon, and additional discretionary measures will be the only viable form of relief for the foreseeable future. The polarization and political salience of immigration policy will only deepen.

After the 2012 general election, I had begun to believe predictions that demographic changes in the electorate would inevitably lead to broad legalization relatively soon. Given the demands of the two-year election cycle, House Republicans might succumb to the temptation to demagogue immigrants. But, the thinking went, more reasonable voices in the GOP would prevail as the party looked ahead to 2016 and the prospect of failing to win the White House and the Senate. I read with interest Tim Dickinson’s analysis of Karl Rove’s political strategy in 2010 of winning state legislatures in order to reshape House districts more favorably for Republicans. Dickinson and others predicted that the strategy of spreading GOP voters among a larger number of districts–turning more districts red, but a lighter shade of red–would eventually backfire as the proportion of Democratic voters grew and turned the districts blue again. However, others rebutted this theory, arguing that the concentration of Democratic voters in urban districts, combined with the increased polarization of the electorate, provides Republicans with a structural advantage in the House that could forestall demographic electoral benefits to Democrats in that chamber for many years.

The Democrats’ demographic weaknesses in midterm elections become strengths in presidential elections. In elections where there is a high percentage of Latino voters and a sharp distinction between candidates on immigration policy, Democrats hold the advantage. This held true for Harry Reid in 2010 and President Obama in 2012. By announcing and implementing the new deferred action programs, the president may have secured the White House for the Democrats again in 2016. Arguably, this was the only way not to lose it.

GOP base voters, who are older and whiter than the electorate as a whole, view the demographic changes brought on by the liberalization of immigration laws in 1965 as an existential threat to the party and the country. They will not willingly compromise on this issue, and will punish Republican candidates who do not take a hard line. The base has now defined amnesty as any liberalization of immigration policy. While the GOP establishment beat Tea Party candidates in most cases this election cycle, the exceptions, such as Eric Cantor’s surprise primary loss to restrictionist-leaning David Brat, pushed even mainstream candidates far to the right on immigration policy. GOP Senate candidates Scott Brown and Tom Cotton ran on the urgent, yet mythical, threat of Ebola and ISIS overrunning the southern border. This in turn pushed Democratic politicians to take ridiculous positions, such as Kentucky Senatorial candidate Alison Lundergan Grimes’s accusation that Mitch McConnell had supported amnesty. Even one-time children’s rights advocate Hillary Clinton urged the government to deport refugee children who had crossed the border.

I believe that the GOP’s populist base will push the party to fight broad legalization until the party is overwhelmed by brute electoral force generated by the demographic tipping point as nonwhites become a majority in the U.S. This tipping point may be the most momentous political event in the U.S. in the coming decades, aside from possibly climate change. I believe immigration policy will track that broader demographic event. Until the political environment acknowledges the changing demographics (which, given California’s experience, should precede the actual demographic tipping point), individual GOP politicians will find political benefit–really, political survival–in opposing the legalization of undocumented immigrants.

But by opposing legalization, Republicans will find it very difficult to win national elections. The Latino electorate is growing each year, while the proportion of white voters shrinks. Immigration policy is a highly-salient issue for many Latino voters. The strategy of some Republicans will be to oppose the deferred action programs while claiming to support legislative legalization. GOP candidates who take this position will likely face primary challenges from the right. Meanwhile, many Latino voters will oppose any candidate who threatens to rescind the programs. This dynamic places the national GOP at a disadvantage, while also creating a hostile environment for comprehensive immigration reform.

If it’s true, as Talking Points Memo proposes, that Democrats won’t be able to win the House back until at least 2022, and the GOP views legalization of undocumented immigrants as an existential threat, then the U.S. may not see broad legislative legalization for another eight years or more.

Further reforms are likely to come from the executive before they come from Congress.

Because there are many shortcomings with the new executive measures and deportations may continue at a high rate, many immigrant rights activists will continue to criticize the president’s deportation record. In fact, some undocumented activists interrupted the president during his speech announcing the program in Las Vegas to ask why he left their parents out. The administration’s response to both pro and anti-migrant critics has been “pass a bill.” However, because of the factors I described above, it is unlikely that Congress will pass a bill in the next several years. This is why the most likely avenue for further expansion of immigrant rights in the U.S. is through further executive action from President Obama or the next president.

I hope to see more immigration civil rights litigation in the courts, which have historically been an important part of civil rights advances. However, the courts move slowly, and Congress and the president have for years strengthened the immigration system’s immunity to attack in the courts.

The legal justification for the deferred action programs rests in the ample discretion of the executive in matters of immigration and foreign policy. The president may have regretted his claim last year that he had no authority to stop deportations beyond the DACA program. The White House took greater care this time to insulate itself from future demands to expand the deferred action programs, but it is already being asked to do just that. The White House took the unusual step of making public the memo from the Office of Legal Counsel setting out the legal arguments for the DAPA program and against expanding the program to parents of DACA beneficiaries. The latter argument rests on dubious legal grounds that would have also precluded the initial DACA program. The OLC memo may cause the president or his successor problems down the road, as organizers pressure them to expand deferred action to parents of undocumented youth.

The increasing convergence and formalization of prosecutorial discretion immigration policies makes them more vulnerable to challenge by opponents. Offloading immigration policy into the realm of discretion is a function of the increased power of the executive vis-a-vis Congress, growing political polarization, and an immigration regime widely seen as morally illegitimate. Prosecutorial discretion works for immigrants when the president feels magnanimous, but not when he is the Deporter In Chief.

Oppressed people draw moral power from the fact of their oppression. Even before the DACA program was announced, “undocumented and undeportable” organizers had carved out a safe space for themselves by coming out publicly, fighting deportation defense campaigns for their peers, and staging civil disobedience actions. Changes in immigration policy reflect and reinforce changes in norms, as the line between documented and undocumented has become more and more blurry. “Illegal means illegal” is no longer a useful or even accurate catch phrase. This incremental, quasi-legal progress may provide a template for immigration liberalization in other assimilationist countries. It’s a type of adverse possession: physical presence eventually leads to legal rights based on moral considerations.

However, as is becoming more clear with respect to DACA beneficiaries, the deferred action programs also represent a step towards formal recognition of an underclass of workers who are legally, indefinitely excluded from full participation in U.S. society. This should remind U.S. citizens of the country’s shameful legacy of state-sanctioned stigmatization and exploitation of disfavored groups.

The promise of legislative legalization has eluded advocates for at least 15 years. Executive relief will likely be the only viable form of formal protection for undocumented immigrants for the next several years. Claims that Obama can’t expand deferred action further will ring hollow, given that he said the same thing about the programs he just announced. Activists and advocates would do well to remember how unreliable both major political parties have been and how fickle a reform strategy that relies solely on electoral politics can be. Comprehensive immigration reform should not be the sole focus of immigrant rights organizing. Now is the time to escalate action beyond elections and Congress and to utilize unconventional strategies to highlight the moral incongruities of the immigration system. Here are some ideas for action (though the DAPA program makes #7 moot).

The immigration system isn’t broken, it is working as intended. But it needs to be broken; we need to break it. The closed-border immigration system is a key element in a regime of global apartheid that mocks the ideals of justice, equality, and liberty. When we mourn those left out of the most recent reforms, let’s not forget those who’ve already been deported or who never had the chance to leave to pursue a better life.

Image credit: Steve Pavey, Portland Occupier

Constitutionally entrenching migration as a fundamental human right: Argentina and open borders

US President Obama just announced a major policy change that will, at least temporarily, allow some immigrants a reprieve from the threat of deportation. Co-blogger Michelangelo’s pointed out that this is still extremely far from the true liberal reforms which the unjust, draconian US immigration system sorely needs. People are falling over themselves to contest the constitutional permissibility of Obama’s actions — for more on that, see our guest blogger and law professor Ilya Somin’s take. Irrespective of that legal issue, Michelangelo is right that we need to dream bigger — so let’s talk about one country in the world which legally enshrines freedom of movement as a universal human right: let’s talk about Argentina.

Now, I don’t have the time or space in this post to cover every single aspect of the Argentinean story: despite the many parallels between Argentina and any number of Western or developed countries you can name,  Argentina is not the canonical open borders country; it does not represent a template that can be copied whole sale. Neither can it be a representative test case illustrating the likely effects of open borders if another country were to adopt them.

The empirical learnings to be had from the Argentine experience are worth a whole set of blog posts, if not books. Today, I want to just talk about the laws and constitution that govern immigration to Argentina — for in of themselves, they prove that what so many restrictionist naysayers call legally and philosophically impossible can in fact be done without the nation-state collapsing into a black hole of philosophical contradictions.

Argentina, like the US and many other countries, has a long history of being shaped by migration. Prior to the abolition of international open borders in the early 20th century, as much as a third of the Argentine population was comprised of immigrants. Over the course of the 20th century, restrictive immigration laws were introduced by various dictatorships, and the immigrant population eventually dwindled to a small fraction of its former size. So far, the Argentine story is much like that of every other country in the world: open borders up until the early 20th century, and restrictionism thereafter.

Up until a decade ago, Argentinean immigration law was like that of any other country’s. It disclaimed and disdained any concept of freedom of movement as a human right. Sizeable populations of undocumented migrants lived in the shadows, legally separated from the course of ordinary human life, and routinely deported when discovered. This legal-philosophical framework, we are supposed to believe, is the natural order of things: it is impossible to have an immigration law that abolishes arbitrary deportation, impossible to have an immigration law that recognizes mobility as a human right.

But in 2004, the Argentine government swept all this away, and adopted a new immigration law, simply labeled Law 25.871. This unremarkable name aside, the law is sweeping in its defence of movement as an inalienable human right. Article 4 states simply:

The right to migrate is essential and inalienable to all persons and the Republic of Argentina shall guarantee it based on principles of equality and universality.

The law does not go as far as to abolish visa or border controls, but it lays out a simple — at least on paper — process to immigrate to Argentina: find an employer or family member who will sponsor you. Once sponsored, you become a temporary resident. After one to two years, you can apply for permanent residency. After a few more years, you become eligible to apply for naturalisation as a citizen. There are no visa caps or quotas to worry about — something which already puts the Argentine system way ahead of every other country in the world in respecting the human right to migrate.

But Argentina goes further: not every individual who enters Argentina might be able to find a sponsor. And although the law prohibits entry without a visa or similar legal documentation, people will find a way in — not least because you could always just overstay a temporary visa. It’s virtually impossible to seal your borders without becoming a military dictatorship. And Argentina recognises this, with Law 25.871 declaring that those who migrate to Argentina without legal residency are simply “irregular migrants”.

Remarkably, Law 25.871 bans discrimination against irregular migrants in the provision of healthcare or education. Deporting an irregular migrant requires a court hearing, and generally may only be executed if the government offers the irregular migrant a chance to regularise their status, and the migrant refuses this offer. Exceptions, of course, are made for criminal convicts and the like, but otherwise, deportation is rarely enforced, and instead large-scale “amnesties” — though the more accurate term would be regularisations — have been the norm. The International Detention Coalition summarises Argentine deportation policy:

Migration decisions are made by immigration authorities but are reviewable by a court, with no detention during this period. Legal aid is available throughout the deportation process for all irregular migrants. Deportation and detention are both decisions that must be ordered by a court, with detention used only as a final resort after all other remedies are exhausted. Detention is limited to 15 days pending removal. In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees.

One American immigrant to Argentina worried about his spouse overstaying their visa and becoming an irregular migrant describes what happened when he asked an immigration official what he should do:

Then we spoke with another, much kinder immigration official who assured us that there is absolutely no deportation law in Argentina. She laughed when I told her that I feared that a white van would come to our house to take my spouse and deport him. She told me that Argentina is not the United States and they don’t treat immigrants this way. The only time that Argentina would ever consider deporting someone who is illegal is if he or she commits a crime.

Imagine that — a country with no deportations! It’s not just easy if you try: it’s actually real! But not all is roses, naturally: the continued existence of large populations of irregular migrants in Argentina points to the failure of the government to live up to the law it passed. Anecdotal evidence suggests that bureaucratic red tape often constitutes a barrier to successful sponsorship — and while this is a mere headache for middle-class immigrants, for semi-literate members of the working class, complying with the requirements of immigration laws can be more than onerous.

Argentina is hardly unique in this regard: when my family immigrated to the US (after first overcoming the ridiculous quotas that kept us waiting for about two decades after our visa petitions were first submitted), we had to provide documentation from the local police in every jurisdiction we’ve lived in showing that we’ve been citizens in good standing with the law. Obtaining this documentation is at worst a nuisance for a middle-class person — and even then, since documentary burdens like these are many and cumbersome when you’re dealing with immigration authorities, a lot of people in our shoes would have outsourced this gumshoe work to an expensive lawyer. For a working class person who might have frequently moved around a lot without keeping many records, and whose educational attainment may not go past elementary school, obtaining this sort of evidence can border on the impossible.

Aside from the burdensome red tape that makes legal residency difficult to attain, Argentina also strangely upholds legal persecution of irregular immigrants: landlords and employers who do business with irregular migrants are singled out for punishment by Law 25.871. Clearly this has not stopped Argentineans from doing business with irregular migrants, but this does seem discordant with the rest of the law: notably Law 25.871 explicitly states that all leases and employment agreements which irregular migrants enter into will be upheld and enforced by the courts, even though entering into these agreements is in of itself an offense.

Argentina does not have truly legal open borders, but it comes remarkably close. If the bureaucratic requirements for obtaining residency were loosened and the fines for employing or renting to irregular migrants were abolished, I think Argentina would basically have open borders — because every person seeking to travel to Argentina for work, study or pleasure would be free to do so. Those seeking to commit crimes would still be punished and subject to exclusion; all others seeking to move and live in peace would be let in peace.

Argentina is a remarkable counterpoint to those who allege that open borders are by definition inconsistent with national sovereignty, or that open borders by definition threaten the social compact governing the welfare state. We on this blog have spoken a lot about how governments are free to limit migrant access to welfare, and other similar policies that we call keyhole solutions.

Argentina is faring just fine despite throwing these out the window: even irregular migrants have full access to both private and public education and healthcare, and are generally allowed access to other social benefits too. In fact, other keyhole solutions we’ve discussed, such as the imposition of tariffs or additional surtaxes on migrants, are unconstitutional.

That’s right: Law 25.871 didn’t pull the concept of the right to migrate out of thin air. Argentina’s history of open immigration dates a long way back, all the way back to 1853 when it adopted its constitution. Article 16 consciously adopts an egalitarian stand on the rights of citizens and foreigners, treating them all as inhabitants entitled to the same freedoms under Argentine law:

All its inhabitants are equal before the law, and admissible to employment without any other requirement than their ability. Equality is the basis of taxation and public burdens.

The rhetoric about equitable taxation is remarkably repeated twice more. Article 20 of the Argentinean constitution elaborates on egalitarian treatment of foreigners:

Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profession; own real property, buy and sell it; navigate the rivers and coasts; practice freely their religion; make wills and marry under the laws. They are not obliged to accept citizenship nor to pay extraordinary compulsory taxes. They may obtain naturalization papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic.

No extraordinary taxes — and foreigners enjoy all the same civil rights as citizens! And Article 25 of the constitution states:

The Federal Government shall foster European immigration; and may not restrict, limit or burden with any tax whatsoever, the entry into the Argentine territory of foreigners who arrive for the purpose of tilling the soil, improving industries, and introducing and teaching arts and sciences.

No tariffs on the entry of immigrants either! We’ve proposed such schemes as potential mechanisms to mitigate possible fiscal burdens of managing migrant inflows, but Argentina has expressly ruled these out — and yet nobody can say that open borders or open immigration are what is ruining Argentina. Argentina has easy naturalisation (you can become a citizen within five or six years of entering the country) and birthright citizenship for anyone born on its territory — all things restrictionists dread — and yet hardly anyone can say this is what’s ruining the country.

If anything, Argentina seems to have been designed as a decisive rejection of all the philosophical ideas immigration restrictionists hold dear. Most arguments for the arbitrary restriction of immigration rest on this moral philosophy sometimes labeled as “citizenism”: the belief that the government of a country is justified in excluding, abusing, and mistreating non-citizens as long as this is for the benefit of its own citizens. Even if these non-citizens come in peace, even if they want to work with you, work for you — the government has no business considering any of this. The government is established for the benefit of current citizens alone, to the exclusion of all others.

Acuerdo_de_San_NicolásAcuerdo de San Nicolás de los Arroyos, a treaty between different governors signed in 1852 to convene a Constitutional Convention that drafted the constitution of 1853, source La Guia 2000, discovered via Wikipedia
Well, the preamble of the Argentine constitution explicitly rejects citizenism — I’ve added emphasis to make this clear:

We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on Argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation.

A constitution that insists on treating immigrants as virtual equals with citizens, and a constitution that enshrines immigrants’ rights to justice, peace, welfare, and liberty: it sounds like an utopian dream, but it is real, and it’s in Argentina.

There are many things not to recommend about Argentina; its overly burdensome red tape, both in immigration and in just about every other arena of public life, famously strangle ordinary economic activity. The long legacy of Peronism has seen Argentina’s economy stagnate, and even today, Argentina’s government chronically mismanages the public fisc. But none of these problems have anything to do with immigration, and everything to do with problems endemic to the culture of Argentinean public life — a culture that has remained remarkably resilient despite Argentina’s long history of open immigration and now its reopened borders.

Argentina is far from perfect, but its constitution and immigration laws show us the way forward in guaranteeing the just and equitable treatment of all human beings subject to our governments’ laws, be they citizen or foreigner. In drafting their constitution, Argentina’s founding fathers drew on the constitution of the United States. Perhaps now those Americans opposed to open borders and freedom of movement would do well to take a page from the Argentine playbook, and remember the wisdom of their own founding fathers.

The American and Argentine tradition of open borders did not emerge from a legal or philosophical vacuum, after all. At the founding of modern Germany in the 1860s, German legislator Wilhelm Liebknecht articulated the legal rationale for egalitarian principles like those upheld in Argentina’s constitution and immigration laws:

A right that does not exist for all is no right… Gentlemen, it is necessary for us to proceed in the same fashion that England, that free country, has already taken, and to extend to foreigners the same right that exists for Englishmen. There is no such thing as police expulsion in England; the government there does not have the right to deny someone their place of residence.

Or, as one of Liebknecht’s colleagues put it,

…it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

I could not have said it any better myself. Argentina is not perfect, but its laws come far closer to the wisdom of our ancestors on freedom of movement than the laws of virtually any other country today. Obama’s action to provide relief from deportation for a few million American immigrants is welcome, but it is not true justice. There cannot be justice until America, and every country in the world, recognises that every human being has the right to not be chased away like a dog. Stop the deportations — not one more!

I am indebted to Barbara Hines’s The Right to Migrate as a Human Right: The Current Argentine Immigration Law and discussions with members of the Open Borders Action Group for their assistance in preparing this article.

Source for featured image: We didn’t keep track of the original source, because there are many similar images available via Google Search. This might have been the original source.

Related reading

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-Chinese poster

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

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

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

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

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

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

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

How far are we from open borders?

I’m planning to write a multi-post series on how far the world as of now is from open borders. There are many different angles from which the question can be approached. In this post, I will provide a brief summary of the four major angles I’m considering. In future posts, I’ll elaborate on the individual angles. The four angles are:

  • Legal
  • How many want to move
  • How desperate people are to move
  • How different the world would look (economically, socially, etc.) under open borders

The idea behind the post is quite similar to the idea behind my earlier post titled open borders is a radical proposal. They differ both in rhetorical approach and in the particular points of emphasis. The earlier post focused on how open borders is, in many ways, historically unprecedented whereas this post focuses on how it significantly differs from the current status quo. Rhetorically, while the earlier post viewed open borders as the thing being judged in relation to the status quo, this post judges the status quo as a deviation from open borders.

Legal: Presumption and reviewability

Before looking at the status quo, it might be worth thinking about how an open borders regime might look like. Such a regime is not inherently incompatible with passports and visas. For instance, people need driver’s licenses to drive vehicles on roads, and the test is not completely trivial, but it is generally open and not too difficult for somebody who’s willing to work for it and take the test enough times. Democracies may require voter identification in order to allow people to vote, but they are still considered to have universal (adult) franchise if such identification is easy to obtain.

How closely a passport and visa regime comes to open borders would therefore depend on how procedurally straightforward it is to get a visa or equivalent permission to enter another country. In cases where this is just a matter of paying a small fee to have an application processed, we’d be close to open borders. In cases, however, where visas can be rejected for a variety of reasons, we’d need to start looking more closely at the list of reasons why a visa might be denied.

Legal theory has a useful concept called presumption of innocence, also known as innocent until proven guilty. The principle is generally applied in the context of criminal trials: the legal burden of proof rests on the state (the prosecuting party) that is trying to show that the accused is guilty, rather than on the accused to prove his or her innocence. Part of the justification for this asymmetry is the coercive and destructive nature of the punishment that people suffer once they have been found guilty. There is a strong presumption against forcibly making an innocent person suffer such punishment. The extent to which such a presumption exists, and should exist, is a matter of considerable debate, but the idea is straightforward.

In an open borders world, the analogous doctrine would be a presumption in favor of free movement, and the equivalent slogan would be “unrestricted until proven dangerous” — for approximately the same reasons: denying a person who expresses the desire to move to a new country the ability to do so is a significant infringement of the person’s freedom, and as such, deserves justification. There would be two components to this:

  • When denying a visa, a consulate would need to provide a specific reason for doing so and cite evidence in support of the reason. The evidence would need to be made available to the applicant.
  • The applicant would be in a position to challenge the consulate’s decision in front of a relatively neutral arbiter, who would hear out both sides and come to a decision.

Of course, just having the above doesn’t equate to open borders — the criteria may be very transparently stated but still very stringent. The same principle applies in criminal law: criminalization of a large number of victimless crimes, even if the law is executed fairly, can still be an indicator of an unjust and tyrannical society.

How far is the status quo from this open borders-like scenario? Very far. The United States is perhaps a somewhat extreme example, but not by a huge margin.

According to official estimates (linking HTML page), about 15-20% of applications across all nonimmigrant visa categories to the US in 2012 were rejected initially, and only about a third of the rejected applicants were able to overcome the refusal and get a visa eventually, resulting in a rejection rate of 10-15%. The primary reason for rejection is Clause 214(b): failure to establish entitlement to nonimmigrant status. In other words, the consular officer rejected the visa application on the grounds that the applicant might transition to long-term permanent resident status. Thus, not only does the US lack a direct route for most long-term migrants, it also coercively restricts people who want to visit the US for the short term (for work, study, or tourism) on the grounds that they might stay too long (with no evidence needed that such a long stay would hurt anybody). The US also has a doctrine of consular nonreviewability (see here and here): decisions by consular officers cannot be challenged by law or overturned by anybody, even the US President. Combine consular nonreviewability with Section 214(b), and the paradigm we basically have is the migration analogue of guilty until proven innocent.

How many want to move

I looked at this question in some detail in my earlier posts here and here. But here’s a quick summary: according to polling data on migration (the most recent available poll is here) about 13% of the world’s adults, or 630 million people, say that they are interested in permanently moving to another country. This is a huge number. In a world with open borders, there would still be people who are unable to move to another country due to personal issues, but it wouldn’t approach 13% of the world population. It’s safe to say that this is far from open borders. (The potential distinction between stated and revealed preferences is implicitly handled in the next point, which deals with how desperate people are to migrate). About 138 million people expressed a desire to permanently relocate to the United States. For contrast, the total annual number of people who migrate annually to the United States (through authorized and unauthorized channels) is a little over a million.

In his post titled Some Unpleasant Immigration Arithmetic, Bryan Caplan proposes an Open Borders Index as follows:

Open Borders Index = C/F

where C equals the total number of immigrants who enter the country every year, and F equals the total number of people who would annually enter the country under open borders. Caplan argues that C/F would be 0 under perfect closed borders and 1 under perfect open borders, and therefore it provides a normalized measure of border openness. He estimates that the C/F ratio for the United States is about 0.05 (i.e., about 20-30 million people would migrate to the US annually under open borders), and that the United States is thereby far from open borders. While the specifics of Caplan’s estimate can be disputed, the general idea suggests that the United States in particular is quite far from open borders.

How desperate people are to move

Desperation can be measured by the amount of resources people invest, relative to their current financial situation, to migrate. On the side of migration via legal authorized channels, this includes the fees that people pay as visa fees and lawyer fees. On the side of migration via unauthorized channels, this includes coyote fees as well as fees for document fraud that people who enter in an authorized fashion may pay in order to overstay their authorized stay. The cost measures need to be viewed in conjunction with the number of people who are willing to pay these costs. All these measures point in the direction of the world being quite far from open borders. Coyote fees from Mexico to the US are in the $3000-4000 range, and there are estimated to be millions of illegal immigrants from Mexico to the US, many of whom were smuggled via coyotes (others overstayed legally obtained visas). Coyote fees from China to the US have been estimated at $75,000, and although there are fewer Chinese who use coyotes to get into the US, the number is nontrivial. Note that coyote fees are an underestimate of the costs of moving, because migrants moving illegally often need to take other precautions in order to avoid being caught, and often need to tolerate inhumane conditions during the course of their movement – all costs that would need to be factored in. Finally, these fees should be considered in relation to their home country income. For the profile of people that migrate illegally from Mexico to the United States, coyote fees are generally equivalent to about 1-2 years’ worth of their current income.

How different the world would look if we had open borders

Finally, let’s consider the impact on economic output. Again, the estimation exercise is tricky because of the significant deviation we’re making from reality. A literature review by Clemens (2011) cites estimates suggesting that removing barriers to global labor mobility would yield world GDP gains anywhere between 67% and 147.3%. To rephrase, Clemens estimates that the status quo is shrinking world GDP to somewhere between 40% and 60% of what it might be under open borders. In the median case, open borders would “double world GDP” or equivalently, closed borders are “halving world GDP.” In contrast, ending all trade barriers is estimated to raise world GDP by about 5%. This isn’t surprising. Labor is a large share of the economy, and a lot of the world’s labor is confined to relatively unproductive segments of the world economy. Freeing people to move to places where their labor can be used better would lead to more production. How much more is debatable, but an estimate of doubling world production isn’t completely out of the realm of possibility when viewed in conjunction with the very large number of people who want to move. These same estimates also suggest that much of the gain in production – and consumption – would be experienced by the world’s currently poorest people, leading to a significant reduction in, and perhaps an elimination of, world poverty. If we take utility to grow logarithmically with income, then this distributional aspect argues even more strongly in favor of the idea that open borders would increase global utility tremendously. Open borders would also significantly reduce global inequality. For instance, a paper by Branko Milanovic estimates that under the status quo, country of origin accounts for 2/3 of global inequality (controlling as best as possible for other attributes). While the country of origin would still play a significant role in global inequality under open borders, there’s strong reason to believe that the fraction of global inequality accounted for by country of origin would be far lower than it currently is.

The cultural, social, and political effects of open borders are harder to quantify, but their existence is undisputed. To a large extent, the pushback to open borders is precisely because of the huge perceived cultural, social, and political changes that might be unleashed through open borders. Whether these effects are a net positive or a net negative is a more difficult question that the site at large is devoted to, and is beyond the scope of this post. What’s important is that the effects are significant, indicating that the world is far from open borders in a meaningful manner.