Tag Archives: law

I don’t care about immigration sob stories. This is about justice, not compassion

To many, even those sympathetic towards it, I imagine liberalising immigration policy is just another pet bleeding heart cause — similar to saving the environment, helping battered women, aiding the homeless, etc. It can seem arrogant of open borders advocates to compare our cause to historical antecedents such as the abolition of slavery or apartheid. And I get these sentiments — in fact, I quite agree with them on a very fundamental level.

In the daily news, it’s rare to not come across a photograph or story of some activists fighting for an immigration-related cause. Sometimes it’s for the cause of allowing immigrants in the US to get in-state university tuition benefits; other times, it’s protesting the detention of asylum-seekers (whether in the US, UK, Australia, or elsewhere); most commonly, it’s a protest, somewhere in the US, demanding the cessation of deportations. Recently, the cause celebre has been, of course, the problem of children migrating to the US. Now, to be fully honest with you, I often look at these pictures and read these stories, and feel that I just don’t care.

Now, of course I do care very much about the issues at stake here: I spend a lot of time writing about open borders, for pete’s sake! So why do I read about immigration in the news and just go “meh”?

To add to the puzzle, this is actually a very personal and emotional issue for me. It’s impossible, actually, for me to understand migration without reference to emotion and personal experience. As a child, I lived for years knowing that my mother could be deported if she and my father were to separate, or even if she were to be widowed, thanks to my country’s immigration laws. As a student in the US, I wondered whether I’d ever be able to get a job here, with visa laws effectively banning me from taking a job outside investment banking or management consulting. And now as a US resident, I’ve seen my friends — and even my girlfriend — be forced to leave this country, thanks to its patently ridiculous laws.

So why then my disconnect from all these stories? My epiphany came when I read a story in the Washington Post about an American woman bidding her Bangladeshi husband farewell before his impending deportation. I’ve felt the same fears and worries they do and lived through similar frustration and farewells thanks to arbitrary immigration controls. I could put myself in their shoes.

Now this actually made me despair further: how can advocates of liberal migration laws win people’s hearts and minds with sob stories like these? Hardly any citizens will ever face the violent force of their own governments’ exclusionary immigration policies. How can citizens begin to care about the effects of their immigration laws, let alone be moved to support changing them? How, when even someone like me — one who deeply cares about immigration and demands open borders — can only be affected by a story that’s personally connected to my own?

Then, I read this comment on the Washington Post article:

Sorry, but she is making a choice here and it is not for her husband. If she is placing all these things before him, then it cannot be helped. If I were in her shoes there would be no way that I would not be on that plane with my spouse. I might miss Kansas, but I would make the necessary arrangements and I would be at his side.

Our actions reveal where are loyalties lie, and this lady appears to be more concerned with living in Kansas and the job she loves and all the rest, than in being with the man whom she married.

My reaction to this was anger. I fumed. To restate the cold logic here: “If the government forces your husband to live in a strange country where there are no jobs for you or him, and you choose to keep your job and the home you’ve both shared for decades, you clearly just love money and comfort more than your husband.” Pretty easy to say this when you’ve never had the government kick your partner out of the country — as has actually happened to me and to many of my friends.

After I calmed down, I asked myself why a commenter might react to the story in this manner. As a general rule, people are not randomly vindictive. So why the harsh reaction aimed at this woman and her husband? The obvious answer is that the commenter did not think to question the justice system’s decision to exclude someone; if the system has decided, the decision must be correct. Justice must be served.

But why is it that we don’t think to question the justice of this system? Why does this story not move us to ponder whether the law here was just? Why do the journalists and activists putting these stories out there not explicitly question the justice of an immigration system which arbitrarily excludes innocent people purely because of their condition of birth?

I’ve come to think that the reason I don’t care when I see pictures of hunger strikers protesting deportations, or picketers demanding immigrant access to certain benefits, and so on, is because these stories have always been framed in terms of compassion — not justice.

This is not to say I consider myself heartless or lacking compassion, although I am not in any place to judge myself. Rather, it is that when I read about stories which don’t directly affect me, it is simply difficult to relate to them on an emotional level. And when these stories try to engage me by asking me to feel compassion for those affected, I only feel a sense of weariness.

There are a million causes in the world, and almost all of them seem to be asking for my compassion when I open the daily papers. Today it’s genocide in Darfur; tomorrow it’s children being kidnapped in Nigeria; next week, it might be people rendered homeless in the wake of a natural disaster (tsunami? hurricane? earthquake?); next month, perhaps another school shooting. I don’t have the time or energy to be emotionally invested in every single one of these issues.

And to the degree that I might choose to invest my emotions, there’s no particularly compelling reason to choose immigration as my humanitarian cause du jour over, say, victims of domestic violence or poaching endangered animals. You can tell me all the reasons why I ought to care more about immigration, but if you have to give me a 21-point list of reasons why I ought to care — if your sob story cannot speak for itself — then you’re not likely to win me over.

It may strike one as galling to so baldly rank and prioritise humanitarian or compassionate causes, but this is exactly what all of us as citizens and individuals do all the time. Virtually every one of these activism stories pulls at the humanitarian, compassionate angle, but none of us has the time to devote to more than a handful of such issues.

Now, the compassionate angle I think actually works especially well for many causes. But I think for migration it seems singularly unlikely to work; if anything, it can easily become counter-productive. Unlike with a cause like animal rights or famine relief — almost everyone’s played with a pet or felt the pangs of hunger before — few of us have experienced the feeling of being persecuted by the state under the aegis of arbitrary immigration laws. You can’t count on your audience to share the emotional experiences you might have as a migrant, activist, or journalist who has personally seen the horror of arbitrary immigration laws.

When you play up the compassionate angle in the story of a victim of deportation, what are you asking for? Unlike with many humanitarian causes, you are not asking for charitable donations. Rather, you are asking people to demand a change or an exception to settled law.

Now, we can certainly demand that laws be changed on compassionate or humanitarian grounds. But how convincing is this? If people believe the justice system has found someone guilty of a crime, are they going to believe the criminal ought to get clemency simply because we ought to have compassion for the criminal? In an ideal world, this could perhaps be true. But in the real world, people believe that if you’re a criminal, you ought to pay the price set by the justice system.

As a result, the constant framing of immigration as a question of compassion perplexes me. This is like asking for a slave to be set free, not because laws permitting slavery are barbaric and need to be repealed, but because poor Uncle Tom really needs to be free, and oh isn’t it such a shame that in this case the law is irrationally separating him from his family?

I mean, yes, the law is inhumane and barbaric and evil — but that’s the whole point! Asking for compassionate special pleading on purely humanitarian grounds, without ever questioning the barbaric law that is in place, simply throws your entire case away. Somehow, this is the modus operandi in how immigration activists campaign for liberal reforms!

Put more bluntly, the case for more liberal migration laws, and yes, open borders, cannot rest on compassionate grounds. Yes, one can make such a compassionate case. But there are a million things needing our compassion. What makes immigrants so special?

The point is not that immigrants are special. No, the point is that immigrants are just like you and me. The point is that our law owes them justice, same as the law owes any and all of us. We cannot use the force of law to exclude people from society in an unjust manner. We cannot allow our government to perpetrate injustice and oppression in our name.

That’s what makes immigration and open borders so compelling to me. I don’t see immigrants as some group in need of special pleading or special compassion from me or the government. I see migrants as ordinary people who, same as anyone else, need to be treated justly. The reason I care so much about this issue is not because I feel immigrants need my special attention — although I think there is a case for more compassion towards those who are strangers in our land. I simply believe that immigrants, like all of us, are entitled to just treatment under the law.

Rohingya being deported from Bangladesh

Immigration reform and open borders are not about making life better for a special, deserving class of people. They are about abolishing systems of injustice which unjustly oppress ordinary people. The woman who loses her deported husband does not need our compassion; she does not need a special exemption from our irrational laws. What she needs, what millions of others like her need, is justice.

British hostility to immigration, and myths that refuse to die

The United Kingdom in the past few years has embarked on an aggressive campaign to cut down immigration. Restrictionist sentiments are alive and well amongst the British. A few months back, I wrote about how perplexing it was that even British left liberals, such as author David Goodhart, readily embrace restrictionist myths and assumptions. Unfortunately, in the UK — just as in most countries — the well-meaning side making the case on anecdotes instead of facts wins. Instead of debating the real issues at hand — such as what keyhole solutions are appropriate — we’re essentially debating whether Jews do in fact poison wells or Mexicans are in fact potheads.

Goodhart recently authored a book, The British Dream, purporting to show the disaster that has been British immigration. This book turned out to have played very loose and fast with the data, as economist Jonathan Portes observed in the London Review of Books. If you enjoy watching a train wreck, Portes published an unabridged version of his debate with Goodhart (since the LRB refused to give them both sufficient space to respond to each other) — Portes shows clearly how Goodhart has ignored the economics of immigration and blatantly insisted on substituting anecdotes for data.

This fact was driven home to me a couple months ago when I attended a Cato Institute panel on what economists think about immigration. The economic consensus: there is no evidence that immigration economically harms natives; any harms are so small that they are virtually indistinguishable from zero. Yet looking at the debate on immigration, you would think that only deportation can save the welfare state or provide jobs. Goodhart himself blames British immigrants for impoverishing British whites and stealing their jobs — and he is on the left of the British immigration debate!

After the Cato panel, one audience member from Ukraine came up to moderator Alex Nowrasteh and panelist Michael Clemens to say: your presentations were great, but what do your opponents say to rebut your claims that immigration doesn’t harm natives? Alex and Clemens essentially said: “nothing!” Even the strongest finding here has been that 20 years of immigration to the US caused a total 3% drop in the wages of low-skilled natives. If you take a simple average of that, it’s a 0.15% drop per year. And that itself is a figure which many economists mistrust, because it makes arguably naive assumptions about the economy — such as assuming capital investments don’t change in response to labour market changes. Why do even people on the left buy into the myths of immigration’s costs? This would be like a leftist saying “Yes, I suppose we can’t let all the Chinese in, since otherwise they might rape too many of our women, but we have to treat those we do let in better!”

The Cato panel focused on the US economy, but economists who’ve studied the issue in other developed countries have had just as hard a time finding harmful impacts to natives. Portes covers the issue well in his full discussion with Goodhart — British data show that youth unemployment fell in communities receiving more immigrants, which is exactly counter to Goodhart’s claims. Yet the myth that immigrants “steal” jobs persists.

The myth that immigration destroys jobs or drives down wages may seem a petty issue in comparison to the myth that Jews drink the blood of babies or that Mexicans are drug mules (this latter myth came up in plenty of informal discussion after the Cato panel, since one American Congressman had only just that week made the physically impossible assertion that virtually all unauthorised Mexican immigrants carried 75 pounds of marijuana with them across the border). But these economic myths are I daresay even more harmful than the petty racist myths that no right-thinking person today believes. These myths give a veneer of respectability to inhumane immigration policies that in fact destroy jobs, tear apart households, and spit upon the concepts of justice and fairness.

The Cato panel on what economists think about migration came to mind again and again as I followed a recent debate in the UK House of Lords about the impact of new immigration laws. The full transcript of that debate is quite interesting reading, and you can also always watch the debate if you prefer (the video opens at the start of the debate in the House of Lords that day, around 11am; skip ahead to 3:41pm for the start of the immigration debate).

The gist of the problem is this: the British government wants to reduce rates of immigration, by hook or by crook. To accomplish this, they have enacted seemingly arbitrary requirements for prospective immigrants to meet. And now, the government is reaping what it has sowed: British citizens are unhappy that their rights to invite and engage with foreigners have been severely curtailed, in the service of a regime that reduces jobs and families down to a single number: zero net non-EU migration. This debate in the House of Lords centred specifically on restrictions of the rights of British citizens and residents to invite their family members to the UK — rights that have been arbitrarily curtailed in worship of a nonsensical goal.

The debate is so interesting that I hope to blog about it in depth separately. Suffice it to say that it is a litany of failures in every imaginable way. When you have a government trying to centrally plan immigration — to issue an edict from upon high that no more than X number of immigrants must be allowed in — you have an economic and human disaster. Doctors who cannot care for their aged parents leave the country. British businesspeople who marry foreigners are told they should go live in Australia. A Syrian refugee trying to join her sons in the UK, with a charity guaranteeing and sponsoring her, is told by the British government that she should stay in the war zone that is Syria. The British government purports to establish a fair and firm regime for immigration — by mandating that only high-income Britons may marry a foreigner. It is estimated that almost half of all Britons do not earn enough to meet the income requirements for sponsoring a spouse’s visa — and even if they can apply, success is not assured, as in the case of one British-Australian couple told their visa was denied because there is no pressing need for their family to leave Australia.

In what must certainly be a frustrating turn of events for economists like Clemens and Portes, most of the Lords in that debate paid lip service to the goal of reducing immigration, taking for granted that it is, as matter of good policy, important and desirable to cut down immigration by what is essentially an arbitrary number pulled out of thin air. Some even forthrightly state that many of the new restrictions are good insofar as they create jobs for British youth. It is like hearing a lawmaker declare that it’s unfortunate that good people would be harmed by exiling all Jews, but at least this mass deportation would reduce the prevalence of poisoned wells in Britain.

Open borders — by which I mean an actual fair visa regime that grants a presumptive freedom of movement to all — is the only regime that can truly avoid the calamities and catastrophes we are witnessing today in the UK, and continue to witness every day across the world. As long as arbitrary laws ban our fellow humans from being with their families and seeking honest wages, we will continue to count the costs of closed borders in wasted tears, sweat, and blood. Any regime that declares “I have the arbitrary right to ban good people from being with their families if I feel like it” — which is exactly what the unjustified, pulled-out-of-thin-air numerical quotas of the sort we see in virtually every country today amount to — is utterly irreconcilable with basic humanity.

Open borders is not costless. One can well imagine that if we moved overnight from the closed borders regime to an open one, most developed countries would face an unmanageable flood of people. But it’s not clear to me why we count this as a cost of the open borders regime, rather than a cost of the closed one. If we had never closed the borders in the first place, we would never have had to worry about the adjustment costs of undoing our grievous mistake. Before we closed the world’s borders, we had no evidence that levels of immigration then reduced wages or employment. This is unsurprising; economists agree that the long-run effect of open borders is nil. It is only the short-run sudden release of migrants, held back artificially by arbitrary laws, that we need to manage carefully.

Only a few days ago, the Bristol Freedom Society hosted a debate on open borders — one that apparently went rather better for the open borders side than the similar Intelligence Squared debate recently hosted on the American side of the pond. Reflecting on the Bristol debate, Ben Southwood of the Adam Smith Institute cogently observed:

Any claim that migration should be kept to a particular level, because of the risk of undermining British institutions, implies an assumption about how much damage the marginal immigrant does or will do (reliably or with some probability). One cannot cop out of the question, you need to have an answer. But no one has yet set out good evidence about exactly how much damage to institutions the marginal immigrant does or will do—typically arguments in this area depend on anecdote or things that people feel they “just know”. This won’t do when the benefits to immigration are so high. We cannot simply assume the cost to our institutions outweighs the other benefits.

As Southwood suggests, the paucity of evidence for the claims frequently made about migration is appalling. Meanwhile, the evidence of the moral horrors of how we treat migrants is plain for all to see. Closing the borders for the sake of an arbitrary number ruins lives. We see that writ on a large scale today in the UK. There is no sense or logic possible under the law the moment justice is enslaved to an arbitrary quota. And it is all the more sad that the profound injustice of a quota on jobs and a quota on families is being perpetuated on the basis of ignorance and falsehoods. In no other area of law or public policy do we let the government so wantonly rip up families and destroy jobs, without due process, relying only on the evidence of myths — to the extent they rely on evidence at all. It’s time we demanded our governments do something different about immigration — something actually informed by the evidence and consistent with the rule of law.

The cartoon featured in the header dates to 1886, and depicts fears of Chinese immigration to Sydney, Australia.

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.

Exposing the fundamentally immoral bedrock of most immigration laws

I recently stumbled across this blog post from 2010 by Linda Greenhouse, a Pulitzer Prize-winning journalist who covered the US Supreme Court for 3 decades, about how morally troubling she found a (then recent) Supreme Court decision. She starts:

The Supreme Court’s ruling recently that lawyers have a duty to warn their noncitizen clients about the potentially disastrous immigration consequences of pleading guilty to a criminal charge seemed so sensible that it left me wondering why a question with such an obvious answer needed to be debated by the Supreme Court in the first place. Surely if the Sixth Amendment’s guarantee of effective assistance of counsel means anything, it means that lawyers must advise their clients that admitting to even a minor offense can earn a noncitizen a quick one-way ticket into what immigration law delicately calls “removal proceedings.”

Yet a bare majority of the court agreed. Instead, two out of the nine justices took the federal government’s opinion: lawyers have no duty to advise their immigrant clients that they might destroy their lives by how they handle their criminal case, but if they choose to give legal advice on this count, it must at least be accurate (in the case in question, the advice was plainly wrong). Another two felt that since immigration law does not always automatically deport people who plead guilty to a crime, there is no obvious legal duty for an attorney to advise their client that doing so might ruin their lives.

Greenhouse found this morally troubling because:

That it took the Supreme Court in 2010 to tell us that non-citizens are entitled to be made aware of the full dimensions of their legal peril should be understood, I think, as a kind of wake-up call. In this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity.

She goes on to cite 3 other immigration stories, each worst than the last:

  1. Mentally-ill people deported without their families or lawyers being notified
  2. People being detained for deportation after they were found guilty of misdemeanours like smoking a joint of marijuana
  3. Haitian refugees, brought to the US by Marines on a military transport, jailed pending deportation

Greenhouse closes by quoting from Justice Ruth Bader Ginsburg in the proceedings of a case then before the Supreme Court:

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 ….

The lawyer representing the US government:

“What controls is Congress’s judgment,” Ms. Saharsky replied, “and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens.”

I suppose one could come up with research showing that deporting occasional marijuana smokers or prescription drug abusers, while unjust in individual cases, on average makes the country better off. But I don’t know why that is supposed to justify such blatant discrimination between citizens and non-citizens. What makes the drug addicted citizen who never chose to be born in your country that much morally superior to someone else who was unlucky enough to be born elsewhere, but consciously chose to join your country?

We are not even talking about authorised versus unauthorised immigrants: most, if not all, the people in Greenhouse’s stories are legal US immigrants. The man facing deportation because he listened to his lawyer’s horrible advice has lived in the US for 40 years, and served in the Vietnam War. Fortunately for him, the Kentucky Court of Appeals recently ordered a retrial of his case because the original conviction that was on the verge of getting him deported was unsound. And fortunately for many others cited by Greenhouse, media attention led to happy endings (though at least one of the incorrectly-deported mental patients was never found again by his family, and seems to be presumed dead). But how many millions of sad stories must there be, not just in the US, but around the world, all because our immigration laws are built on fundamentally immoral presumptions?

Greenhouse rightly questions the moral presumption that immigration laws are primarily about finding ways to keep people out, as opposed to finding ways to let them in. She closes by obliquely hinting:

[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.

She should have been more explicit, and perhaps even a bit more daring in taking on more than just US law. Beyond the fundamental immorality of a regime focused on ways to keep good people out, we need to attack the fundamental immorality of a regime focused on ways to discriminate against good people purely because they were unlucky enough to be born the wrong way. Greenhouse’s stories may illustrate the need for better handling of mental illness or the reform of drug laws, but they all point in the same direction: the fundamental assumption behind most laws is that you can do to non-citizens unconscionable things that you would never dare do to citizens. We need to end this global apartheid: we need to demand legal systems in our countries that properly recognise the worth and dignity of every human being.