Tag Archives: immigration law

Immigration restrictions are a threat to liberty everywhere

In the civil libertarian world today, two issues rule the roost: surveillance and drones. Ordinarily civil rights issues like these find it difficult to gain traction, but increasingly it looks like even the mainstream media can’t ignore these issues. Spying on the behaviour of millions of innocent people, and murdering innocent people (AKA “collateral damage”) from a remote-controlled airplane, are difficult things to readily reconcile with modern ideas of human rights and freedoms. These issues make me think: how long before civil libertarians begin to comprehend the danger of similar totalitarian disregard for liberty in immigration policy?

Drones are primarily a concern for people burdened by the welfare of innocent people in war zones. Innocents in Yemen, Afghanistan, and Pakistan live daily in fear of an errant missile strike, meant for another, but still deadly to all innocents in its path. The policy for deploying drones, and launching their weaponry, until recently has been near-entirely opaque (some would argue it is still entirely opaque). What due process do we have to ensure that drones won’t recklessly murder dozens, hundreds, of guiltless people, in search of taking out one terrorist? What assurances can we give innocents that an overzealous government bureaucrat can’t use his discretion to murder innocent human beings?

The rationale for the US government’s National Security Agency surveillance programmes has always been: we spy on foreigners’ data, not our own. The NSA still maintains it protects US citizens’ data rigorously, though there are many reasonable doubts that this is true. Edward Snowden’s revelations, even if reconciled with the NSA’s claims about protecting US nationals’ data, still ring alarm bells for American civil libertarians: how easy might it be for the NSA to turn the same lens it has trained on foreigners onto us instead? In 1975, US Senator Frank Church warned of such surveillance:

That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know.

Since I blog for Open Borders, you would be wise to surmise that neither drones nor NSA surveillance are issues I think about much. But like millions of others, these are issues that weigh on me nonetheless. It worries me that innocent people are subject to murder by the state without due process. It worries me that innocent people are subject to surveillance by the state, again, without due process. And I know these worries all too well, for as an immigrant and someone who enjoys reading stories of immigration, I have seen just how utterly the modern state throws due process in the garbage the moment an immigrant crosses the threshold.

I’ve written before about how perplexed I am that civil libertarians devote a disproportionate amount of energy to criticising allegedly dehumanising air travel procedures. I’m glad to see that deserving due process issues are taking up more attention than ever before. But civil libertarians need to add another issue to complete their trifecta of due process concerns: drone murder, arbitrary surveillance, and arbitrary restriction of human movement. The simplicity and fairness of open borders is not just a nice-to-have; it is critical for a just and fair legal process.

I and others have written time and time again about how modern immigration procedures recklessly abandon due process. Ask yourself: did the refugees whose files were wheeled past a UK Minister so civil servants could “truthfully” tell Parliament that a Minister had duly reviewed their applications get justice? Did they get due process? How about the Brazilians whose visa applications were rejected because a US consulate decided that black visa applicants must be poor? Did they get due process?

Any US consular officer is entitled to reject most visa applications for any reason they like. This “consular nonreviewability” discretion, by US law, cannot be challenged in court or overruled by senior officials — not even the President. Since 1990, the American Bar Association has persistently asked the US government every year to  “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles” — a request that has consistently fallen on deaf ears. In 2005, the US State Department issued a report recommending further reductions in existing due process and more discretion for consular officials.

It would be one thing if this due process brouhaha focused on police officers arbitrarily writing speeding tickets (as they often seem to be doing in many jurisdictions). But this lack of due process tears families apart. It destroys jobs. Imagine if you lost your job because your employer claimed you were a drug smuggler (based on your name resembling someone else’s, who actually is a drug smuggler) — and you had no right to challenge that claim in court. That actually happened to one unlucky immigrant in the US. A lack of legal due process harms real human beings; it breaks hearts and homes.

It is no consolation that the government is only empowered to take your spouse and children away from you, or fire you from your job, if you’re a foreigner. As Senator Church warned in 1975:

I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return. (emphasis added)

A government powerful enough to arbitrarily evict your neighbour from his home, take him away from his family, and take his livelihood away from him, is powerful enough to do that to you too. One remarkable thing I’ve found about the debate surrounding drones and surveillance is that the people criticising them often also implicitly criticise a focus solely on the well-being of citizens, urging us to account for these policies in the totality of their effects on innocent human beings, regardless of nationality. I do not think this criticism of citizenism has struck that much of a chord with the masses — Glenn Greenwald may worry about the innocent Afghan victims of drones, or innocent British victims of surveillance, but the median news media consumer probably does not.

However, these issues resonate, because people appreciate the risk of giving government too much power — the power to kill and the power to spy without the process of law or supervision. Perhaps people need a similar awakening about the power of government to keep you alive while taking away everything you hold dear — your home, your job, your family. That the victims are mere foreigners should be little consolation. A government powerful enough to do anything without due process is powerful enough to make a victim of you too.

The photograph featured at the top of this post is of striking miners being deported from Bisbee, Arizona in 1917. Scanned by the Arizona Historical Society; original photographer unknown.

US visa policy: a cross between Kafka, Orwell, racism, and aristocracy

It’s always fascinating to see an immigration lawyer’s take on how the immigration process works. In 2009, lawyer Angelo Paparelli responded skeptically to then-US Secretary of State Hillary Clinton when she said she would push for a streamlined visa process. Then, he noted the most important thing she could do here would be to pursue the amendment or repeal of an obscure section of the US Immigration and Naturalization Act, noting that this law, § 214(b), is responsible for 99% of all non-immigrant visa refusals:

The 99% rate of § 214(b) refusals is important because:

  • Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa.
  • INA § 291 requires a visa refusal if the applicant “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa.”
  • Under the doctrine of “consular nonreviewability” (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa. Your burden can only be met if it is “to the satisfaction of the consular officer.” No one but that officer has the power to decide.

Imagine if you had to prove to a government officer in 1 or 2 minutes why you should be allowed to attend university: you have to prove you won’t fail out, you’ll work hard, you won’t drop out (for any reason), and you’ll go far away after you graduate. Or imagine if you wanted to visit a popular tourist destination or travel for work, but had to prove to a government official in 1 or 2 minutes that you would go home afterwards (and wouldn’t abuse your travel approval to, say, move nearby or find a job there). Prove all this, in 1 or 2 minutes. To someone whose decision is final, and can never be overturned.

This particular provision is so noxious that it is cited multiple times in this UC Irvine report on international students in the US. Its repeal or replacement was an explicit recommendation of the report. The American Bar Association has (since 1990, according to Paparelli) recommended that the US government “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles.”

Yet a 2005 State Department report reviewing section 214(b) suggested the only way to improve it would be to expand it to include all classes of visas other than green cards. The State report explicitly considered the possibility of limiting consular officers’ totalitarian discretion, but rejected this out-of-hand on the basis that any publicly-published standards or requirements for visa approval ran the risk of increasing application fraud. The report stressed instead the importance of officers’ discretion and flexibility in feeling out visa applicants’ intent; no need for any explicit policy here. In other words, the US government doesn’t want you to know how you can get in!

The consequence of consular officers’ power to make or destroy lives in the span of a few minutes? Lord Acton: absolute power corrupts absolutely. Angelo Paparelli later followed up with some of the most ready-at-hand and egregious examples of consular abuse. He brought up two New York Times stories:

  1. Septuagenerian German theatre director Peter Stein being denied a visa because he refused to laugh at a consular officer’s joke and instead complained he had to stand for 2 hours waiting for his consular interview
  2. Former US consular officer Robert Olsen suing State for wrongful termination after he refused to implement a visa policy he considered racist and discriminatory against the poor

The second case is especially striking because Olsen presented documentation for his claims; the full judgment is especially worth reading, and I plan to write about it separately. Just note for now that some documented reasons for denial of US visas which Olsen complained about include gems like “Slimy looking[;] wears jacket on shoulders w/ earring” and “Bad Appearance. Talks POOR.” Paparelli concluded:

Regrettably for most refused visa applicants who lack the notoriety and influence of a Peter Stein, arbitrary consular decisions to deny a visa are virtually impossible to overturn… The Immigration and Nationality Act (INA), as interpreted by the courts, has enshrined in law “doctrines” of “consular nonreviewability” and “consular secrecy” (INA § 222(f) [8 U.S.C. § 1202(f)]) that in virtually all instances deprive the public, the courts and stakeholders (foreign visa applicants and their American sponsors) of a means to hold consular officers accountable. The interests of fair process, impartial consideration, respectful treatment, government transparency, the cultivation of a favorable opinion of the U.S. among citizens of other countries, and the application of solely lawful grounds to grant or deny a visa — all of these are thrown under the bus.

People in the US complain about feeling degraded when they have to choose between an X-ray and a pat down by Transportation Security Administration officials. How about placing your life in the hands of a government official who has the power to cut you off from your education (and, if the State Department had its way with H visas, your job) for something like “Bad Appearance. Talks POOR”? And no government official, not even the President himself, can do anything about it. US citizens may be tempted to complain that their treatment at the hands of the TSA makes them feel like they live in a police state. But it really is the over 1 million people who are refused US visas every year that truly know the feeling of a US government boot stamping on the human face forever. US visa policy:

  1. By design has no clear rules or guidelines
  2. Gives consular officers totalitarian power which not even the President can cross, thus empowering them to oppress people who:
    1. Come from the wrong racial or national background
    2. Look poor

Disdain for basic fairness and human dignity: that’s just plain US visa policy. Have a nice day folks.

The photograph featured at the top of this post is the identification photo of Wong Kim Ark, a descendant of Chinese immigrants to the US who successfully sued the US government for US citizenship in 1898.

Changing the US justice system’s views on immigration: Sri Srinivasan a harbinger?

Sri Srinivasan

The US Senate recently approved (97-0) US deputy solicitor general Sri Srinivasan’s nomination to fill an empty seat on the US Court of Appeals for the District of Columbia. While this sounds dry, it’s actually a pretty big deal: Srinivasan is generally regarded as a lock for the US Supreme Court. Srinivasan himself is an immigrant: he was born in Chandigarh, India, and is the first judge in history of South Asian descent to sit on any US federal court of appeal.

In his response to the Senate Judiciary Committee’s questionnaire, Srinivasan provided some examples of his pro bono legal work (question 25). The very first example listed was his work representing the petitioner at the Supreme Court in Carachuri-Rosendo v. Holder. Although we’ve not discussed this particular case by name on the Open Borders blog yet, it has come up before, when I blogged about New York Times columnist Linda Greenhouse’s shocking realisation at the immorality of contemporary US immigration law. Specifically, this was the case where US Supreme Court Justice Ruth Bader-Ginsburg argued with the lawyer representing the federal government (emphasis added):

Here we are talking about two crimes. One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that. If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill — it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute….

Now seems a fitting time to mention the resolution of this case: the Supreme Court unanimously (9-0) rejected the US government’s argument and reversed the Court of Appeal ruling that would have deported Srinivasan’s client, Carachuri-Rosendo. Lengthy imprisonment or death are about the only sentences I can imagine that would be worse than the one Carachuri-Rosendo was facing. The Jewish Talmud says, “whoever saves a life, it is considered as if he saved an entire world.” Srinivasan and his team might not have saved Carachuri-Rosendo’s life, but they sure as heck came close. This was a worthy case to put front and centre in Srinivasan’s pro bono track record.

In concluding her reflections on immigration law, Greenhouse suggested:

[The Congress that takes a hard line with people who smoke a single joint and take  a single unprescribed pill] would be the same Congress that spent months tied up in knots over how conclusively to prohibit insurance coverage for abortion under the new health care legislation, ostensibly out of concern for the unborn. Maybe someday, members of Congress will display the same concern for those who happened to have been born, but on the wrong side of the border. Maybe, just maybe, the Supreme Court will show the way.

Unfortunately to date, the US judicial system has been extremely deferential to government coercion in the area of immigration, demonstrating an incredible refusal to restrict the government’s reach in this area in almost any way. The doctrine of consular nonreviewability, which is literally rooted in racism, is one good example. Even when there are legitimate interests of US citizens that would be protected by judicial review of the government’s claims to power in restricting immigration, the courts have been reticent to take action.

It is unlikely that Srinivasan will be the judge who finally undermines the immoral foundations of US immigration law — though I think given his personal background and his close work with the Carachuri-Rosendo case, it also seems unlikely he is totally unaware of the arbitrary and senseless nature of US immigration laws. But the 9-0 ruling in Carachuri-Rosendo, as feeble as it is, gives one some hope. I am not a Whig in the historical sense (i.e. I do not believe the march of history is one that is ever onward and upward towards a better future), but I see some sense in the notion of the “expanding circle” of the people whom we regard as our moral equals. Some day, I hope, the US courts will see reason and justice and overthrow the arbitrary, tyrannical reach of modern US immigration laws. Perhaps Srinivasan’s appointment, to the federal courts may be just the start of something better.