Tag Archives: legal versus illegal

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?

Schindler or Eichmann?

More than a few times I’ve heard sentiments like this expressed: “I would support the legalization of immigration, but as long as it remains illegal, those that break the law shouldn’t be allowed to stay.” This appeal to authority can seem reasonable at first-glance: It denotes a respect for law, while also giving lip-service to support for immigration. There’s something to be said for respecting the rule of law in general, even if you disagree with specific laws. After all, some might claim, if we simply disobeyed every law we thought was unjust without respect for the avenues by which we might legally change those laws, then what is the point of legislation at all?

However, nearly all people have a point at which they would disobey a law – the point at which it conflicts sufficiently with their own ideas of true morality. That point may be different for every person, but almost all people have such a point. If a law was passed tomorrow legally mandating that parents abandon their children in the woods, it’s unlikely that many would obey such a law. So does this mean that people only obey laws that they morally agree with – or at least, don’t morally disagree with strongly? Not necessarily.

Numerous examples in history and psychology have demonstrated that a person’s moral limit on obedience is not an immovable line, but rather is quite malleable depending on circumstance – and technique. The Milgram experiments done in response to the trial of Adolf Eichmann, the Stanford Prison Experiments, and the Mount Washington McDonald’s incident all provide examples of how people can be pushed beyond their stated moral limits. If you know about those (and other) examples of the malleability of human morals, then it suddenly doesn’t become so far-fetched to imagine that people could be convinced to obey a number of laws they’d find immoral if asked directly.

So is that what’s happened? Have the citizens of the developed world been slowly conditioned to accept immigration restrictions as moral, when philosophical reasoning so easily reveals them to be the opposite? It’s certainly possible. It’s in the nature of authority to condition those under it to respect that authority for authority’s sake – to accept that authority itself is morality. Even though the residents of a nation usually benefit from migration, individual political leaders often oppose it, and the gradual effect is cyclical: politicians oppose immigration, which helps to condition people to oppose it. People conditioned to oppose it demand politicians that oppose it. Those politicians oppose it, and the cycle continues.

The effect is not absolute, however. The Milgram Experiments demonstrated that while people may have a tendency to allow their morals to be eroded by the proper conditions, there were always those who bucked the trend and opposed the commands. When slavery was the law, there were still those who, as a part of the Underground Railroad, helped to break that law because it was morally right to do so. Those people were lawbreakers, but history regards them positively. Despite the fact that they broke the laws, history sees people like Harriet Tubman and Oskar Schindler (and many others) as heroes. Those we see as heroic in history were often those who bucked the trend of allowing authority to dictate morality, despite the pressures.

One hundred years from now, will the cause of Open Borders have a Tubman or a Schindler to admire?

Open Borders editorial note: The following posts suggest some possibilities: Why Jose Antonio Vargas Matters: Making Human Rights Real by Nathan Smith, and How Undocumented Organizers Can Lead the Way to Open Borders by David Bennion. Nathan Smith’s post Illegal immigrants and runaway slaves is also related to the point Roccia makes about the Underground Railroad.

Orson Scott Card on Immigration

Orson Scott Card is a bestselling author and columnist.  His novel “Ender’s Game” has recently been adapted into a movie.  He occasionally writes columns on political matters, including immigration.  He has had some very cogent things to say about the topic, some of which I have excerpted here:

From his article “What is This ‘Crime,’ Really?”:

So what is this vile crime of “illegal immigration” that requires us to throw out hard-working people who do jobs that no American was willing to do (not at those wages, anyway, not while living in that housing)?

It consists of crossing over an arbitrary line that somebody drew in the dirt a century and a half ago. On one side of the line, poverty, hopelessness, a social system that keeps you living as a peasant, keeps your children uneducated and doomed to the same miserable life you have — or worse.

Wouldn’t you take any risk to get across that line?


We Americans, what exactly did we do to earn our prosperity, our freedom? Well, for most of us, what we did was: be born.

Yeah, we work for our living and pay our taxes and all that, but you know what? I haven’t seen many native-born American citizens who work as hard as the Mexican-born people I see working in minimum-wage jobs in laundries and yard services and intermittent subcontracting projects and other semi-skilled and unskilled positions.

I have no idea which (if any) of the people I see doing this work are legals and which are illegals — but that’s my point. Latin American immigrants, as a group, are hard-working, family-centered, God-fearing people who contribute mightily to our economy


And if all you can say to that is, “It doesn’t matter, send them all home, give them no hope of citizenship because we don’t want to reward people for breaking the law to enter our country,” then here’s my answer to you:

Let’s apply that standard across the board. No mercy. No extenuating circumstances. No sense of punishment that is proportionate to the crime. Let’s handle traffic court that way.

The penalty for breaking any traffic law, from now on, is: revocation of your license and confiscation of your car. Period. DWI? Well, we already do that (though usually for something like the nineteenth offense). But now let’s punish speeders the same way. Driving 50 in a school zone — lose your license and your car! Driving 70 in a 65 zone on the freeway? No license, no car. Not coming to a full stop at an intersection? No license, no car.

No mercy, no exceptions, no consideration for the differences between traffic offenders.

Oh, you don’t want to live under those rules? Well, you can’t deny that people would take the driving laws much more seriously, right?

“But it wouldn’t be fair!” you reply.

That’s right. It wouldn’t be fair. Yet that’s exactly the same level of fairness that I hear an awful lot of Americans demanding in order to curtail the problem of illegal immigration.

The only thing that makes illegal immigration a problem is that it’s illegal. If we simply opened our southern border the way all our borders were open in the 1800s, then would there be any continuing burden?

In this country, we have a long tradition of punishing only the individual who does wrong, not his entire ethnic group. (Though, come to think of it, there are a lot of people who would like to change that — but that’s another argument.)

The voice of bigotry speaks: “But they’re dirty, they don’t speak the language, they live in such awful conditions.”

Hey, buddy! They’re dirty because they’re poor and exhausted and they work with their hands and they sweat from their labor! They don’t speak the language because they weren’t born here and in case you’ve never tried it yourself, learning another language is hard. And they live in awful conditions because they’re doing lousy, low-paying jobs and sending the money home.

Of course, these complaints are often disguised ways of saying, “We don’t want them here because they’re brown and most of them look like Indians.” Only we know better than to admit that’s our motive, even to ourselves. So we find other words to cover the same territory.

Efforts to “protect English” are the exact equivalent of those signs saying “No Irish Need Apply” or the rules limiting the number of Jews who could be admitted to prestigious universities or the laws telling black people where they could and could not sit in buses and trains. English doesn’t need protection. People need protection from those who would hurt them because they weren’t born to English-speaking parents.

From “Ethnic Cleansing or ‘Amnesty’” (This article describes a hypothetical scenario where all illegal immigrants are rounded up and deported.  When Card refers to a character as a “fuzzy headed liberal” he is being sarcastic):

When Serbians ask why we bombed them for trying to expel native Albanians from Kosovo, when we’re doing the exact same thing, we don’t bother answering. We don’t have to answer. We’re the world’s only superpower, and therefore everything we do is right.

It’s not ethnic cleansing, we carefully reply. It’s not because they’re Spanish-speaking brown-skinned people that we think they posed a danger to America. It’s because they didn’t have green cards.

The Republican spokesman nods wisely. “They broke the law even coming into this country.”

“What if it was a stupid law?” asks the liberal.

“It was the law, and they broke it.”

“Look,” says the fuzzy-headed liberal, “we made up these laws. It’s not like murder or theft or rape, where one person is infringing the rights of another. We just decided, arbitrarily, which people could come into our country and which could not. Our rules favored the rich; the poor in other countries weren’t welcome.

“But there they were, starving in their own country,” the bleeding-heart liberal goes on. “And the only thing holding them back from feeding their children was a border and a set of completely arbitrary rules. Stupid, needless rules that kept the workers in one country from getting the jobs that were waiting for them in another.”

“That’s treasonous!”

“No, sir, you are the traitor. You’re the one who declared that America was no longer a nation built around an idea, which accepted all who embraced that idea. Now it’s just like any other nation on Earth. It stands for nothing except for holding on to what we’ve got and making sure there’s no room for the people most desperate to come and join us.”

“They didn’t want to live under our laws!”

“Yes they did. All we had to do was change a law that made far less sense than the traffic laws Americans break or bend all the time! If you make breathing a crime, then yes, all the breathers are criminals, but the people who made the laws are the stupid ones.”

“How dare you! We’re the ones who wanted to keep America American!”

“America is a nation that thrived because of a constant infusion of eager new citizens. You have closed the door against the best and bravest of them. You have cut off the lifeblood.”

“At least we’re still speaking English!”

“That’s right,” says the fuzzy-headed liberal. “It takes a lot of brains and determination to learn to speak two languages fluently. We kicked out six million people who were willing to try to do that. And what we have left is … you.”

From “Homework and Perry’s ‘Mistake’“:

But what I kept hearing was that the main reason Perry stumbled was because he actually defended Texas’s policy of charging in-state college tuition rates to the children of illegal immigrants. What cost him, people are saying, is that he said to anyone who opposed that policy, “I don’t think you have a heart.”

Never mind that these are children who did not choose where they would live, or whether to come illegally into our country. Never mind that, legal or not, these children are still residents of our country and we all prosper if they get an education so they can get well-paying jobs instead of remaining desperately poor — a breeding ground for crime and welfare.

I mean, isn’t the anti-immigrant hysteria all about how these dark-skinned Spanish-speaking people don’t learn our language, go on welfare, and commit crimes? Wouldn’t getting an education for their children go a long way toward making sure they learn our language, don’t go on welfare, and don’t choose a life of crime?

But let’s just forget the rational arguments and think a little bit about who we are and what America means. Is it really the belief of significant numbers of Republicans that America will be a better place if we, as a society, punish children for their parents’ misdemeanors?

Now, there’s a thought. Maybe it would work! Suppose that instead of losing your license when you’re convicted of driving drunk, your children were taken out of school for a year!

Or if you get too many points on your driver’s license, your children’s grades for that year would be dropped a full letter grade in every class, with no possibility of appeal or explanation.

Oh, isn’t that fair? You think it’s wrong to punish children and interfere with their future just because of their parents’ law-breaking?

Then you must be a Republican In Name Only … because apparently true-blue dyed-in-the-wool Republicans refuse to support a presidential candidate who thinks that the children of illegal immigrants should get the state-resident tuition rates for the schools in the state they reside in.

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.

How Undocumented Organizers Can Lead the Way to Open Borders

My perspective on open borders has been profoundly shaped by my work with undocumented organizers in the U.S. In this post, I make the argument that the people most directly affected by closed borders are best able to create the political conditions necessary for open borders because:

1. They have the most to lose and therefore work the hardest for change,

2. They can better analyze the issues and frame the arguments in support of open borders because they directly experience the consequences of closed borders, and

3. Because of 1 and 2, affected individuals are more persuasive messengers to the voting public than intermediaries.

Martin Luther King, Jr. argued that meaningful social change comes through the creation of tension in an untenable system. In a recent OB post, Paul Crider cited King:

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. . . . I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. . . . The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation.

King’s key insight found expression in the movement for Indian independence, the U.S. civil rights movement, the end of apartheid in South Africa, and the Arab Spring.

Undocumented youth in the U.S. have created tension by engaging in direct action to force the fact of their oppression into the public consciousness. The two most significant political events relating to immigration in the U.S. in the past few years were the DREAM Act vote in December 2010 and the Deferred Action for Childhood Arrivals initiative announced by President Obama in June 2012. Both resulted in large part from direct action by undocumented activists.

Undocumented Youth Push the DREAM Act to a Vote

Before 2010, immigrant rights barely registered with progressives, liberals, and libertarians who weren’t directly affected by the issue. In the 2009-2010 legislative session, with solid majorities in both houses of Congress and in possession of the White House, the Democrats didn’t even introduce a bona fide comprehensive immigration reform bill in either house of Congress until after it was clear it wouldn’t be voted on. Most Democrats preferred not to talk about immigration, much less push bills through Congress.

In early 2010, the debate around Arizona’s anti-immigrant law, SB 1070, started to change the conversation on the left. The vote on the DREAM Act in December 2010 further engaged mainstream progressives, who began to learn about immigration and started to pick a side. Even though the bill failed, undocumented youth emerged from the vote as the most visible and empowered segment of the immigrant rights movement.

It wasn’t preordained that the DREAM Act would be voted on at all. In early 2010, the national immigrant rights advocacy groups, then almost exclusively citizen-led, opposed bringing the DREAM Act up for a vote as a standalone bill. Their reasoning was that, having garnered solid bipartisan majorities in the past, the DREAM Act had to be bundled with comprehensive legislation as a sweetener so the larger bill could pass. They also believed that a failure on DREAM would doom any other immigration legislation for the foreseeable future. The advocacy groups told the Congressional Hispanic Caucus to hold the DREAM Act in committee, and the CHC communicated the message to Democratic leadership in Congress. The White House was almost entirely disengaged from immigration reform efforts at this time.

By early 2010, some undocumented youth activists were fed up with the hesitance and dissimulation coming from those purporting to speak for them. Through a series of direct actions, including a sit-in in Senate Majority Leader Harry Reid’s office, Reid changed course and agreed to bring the DREAM Act up as a standalone bill. This account of Reid’s conversion from restrictionist to immigrant advocate appeared in the New York Times recently.

But this is what really happened during the run-up to the 2010 mid-term elections.

Even though Reid had been mobilized through electoral politics, most Democrats in Congress were still stuck in a reactive mode. Reid couldn’t bring the Democratic caucus into line on the DREAM Act vote, losing five Democratic votes, which killed the bill given overwhelming Republican opposition.

Rubio Challenges Obama on Immigration and Fails

June 2012 marked another turning point. The GOP presidential primaries were in full swing, with each candidate trying to outdo the next in declaiming immigrants. Obama had little to fear from the Republican candidates themselves. Latinos were not likely to vote for the GOP given the party’s hard turn against immigrants over the previous decade. The question was whether Latino voters would turn out for Obama in sufficient numbers to push him over the top in swing states like Nevada, Colorado, and Florida. Obama’s mass deportation campaign, then in its fourth year, was hurting him with Latino voters.

In the spring of 2012, Senator Marco Rubio floated a proposal for a Republican DREAM Act. Observers speculated that Romney might try to undo the damage he’d caused with Latino voters in the primary by selecting Rubio as his running mate, and Rubio seemed to be working towards that outcome with his DREAM Act proposal. Rubio consulted directly with undocumented youth activists about the bill, acknowledging that their support would be crucial to his effort.

The National Immigrant Youth Alliance (NIYA), an undocumented youth group formed by the activists who led the first undocumented civil disobedience actions in 2010, came out early in favor of the Rubio proposal. United We Dream, the other, larger national undocumented youth organization, followed suit. Rubio had presented a way for the GOP to get out of the corner it had painted itself in with the Latino electorate. Obama was feeling pressure.

Then in early June, undocumented youth began staging sit-ins at Organizing for America offices in Oakland and Denver. Days later, President Obama announced the most significant immigration policy reform in over a decade: Deferred Action for Childhood Arrivals (DACA). The policy tracked the requirements of the DREAM Act, and offered formal protection from deportation to certain undocumented immigrants who came to the U.S. as children. With DACA, Obama neutralized whatever momentum for the GOP the Rubio proposal had sparked. The predictable backlash against DACA from Republicans, along with the ongoing public theater around Arizona SB 1070 and other anti-immigrant state bills, sealed a lopsided majority of the Latino vote for Obama in the 2012 presidential election.

Without the last several years of youth activism, there would have been no comprehensive immigration bill, as flawed as it is, passing last month in the Senate with a unified Democratic caucus and 17 Republican votes. There would be no generally-acknowledged connection between the future of the Republican Party and its position on immigration policy. Democrats would still be running from the issue or trying to out-enforce the Republicans. Obama likely wouldn’t have beaten Romney in the Latino and Asian-American vote by the margins that he did. Even had Obama won, the election results wouldn’t have been connected to a major immigration policy closely identified with the President–DACA–because the policy wouldn’t have existed without the organizing efforts that forced the President’s hand.

Documented and Afraid

Driving much of the change over the past few years has been a strategy developed by undocumented youth of publicly identifying themselves as undocumented and encouraging others to do so. The concept of “coming out” as undocumented and unafraid was adapted from the LGBT rights movement by LGBT undocumented activists. “Coming out” is an enormously effective strategy, but early adopters risk harsh penalties for challenging the dominant paradigm. As undocumented activists came out, they presented a different immigration narrative than the public had seen. Citizens came to realize that undocumented youth were not much different than their children or peers. Other undocumented youth saw those who had come out and were empowered to come out themselves. This had a ripple effect that rapidly changed the narrative about undocumented youth. The feared repercussions–deportation of those who exposed themselves as undocumented–never materialized.

Initially, most citizen advocates discouraged activists from being public about their undocumented status. “Know your rights” training sessions held by community organizations teach undocumented people never to disclose their immigration status to the police. Lawyers, advocates, and legislators have gone to great lengths to discourage undocumented activists from participating in civil disobedience actions, usually out of a misguided desire to protect the activists from themselves. Undocumented journalist Jose Antonio Vargas has talked about how most of the people he consulted before writing his seminal “coming out” piece in the New York Times in 2011 discouraged him from publishing it.

Not only did documented advocates fail to formulate effective organizing strategies, many actively tried to prevent undocumented activists from carrying out their own plans. While often based in good intentions, these efforts to suppress the political expression of oppressed people are patronizing and disempowering. This problem is caused by diverging incentives. Citizen advocates are not themselves at risk of harm, though some have loved ones who are at risk. Immigration lawyers like me–including those at legal services nonprofits–get paid whether we are fighting deportations or helping people apply for status; that is, whether immigration reform passes or not. Advocacy organizations can get funding for immigration work, whether to promote immigration reform or to implement it.

Undocumented activists were driven to riskier tactics out of desperation. Not long ago, ICE was routinely deporting all undocumented youth regardless of the balance of equities in individual cases. The risks the activists took in exposing themselves were real and extended to their families.

Citizen advocates are not only not the best immigrant rights analysts or strategists, but also not the best messengers. Over the past several years, I have appeared in my role as lawyer on panels or at interviews along with undocumented activists. Invariably, the interviewer’s or audience’s interest is drawn to the person who is herself affected, who herself risks imprisonment just by being there. For years, organizations and legislators have told the stories of clients or constituents to generate public support for immigration reform. On this, there is a fine line between empowerment and tokenism. Too often, advocates fail this test.

Leading the Way

Moving forward, affected people must continue to create the political conditions that will make better legislation possible. Momentum is on the side of the reformers. U.S. immigration laws are selectively and arbitrarily enforced. Counterintuitively, those who defy the immigration regime most publicly are the safest from deportation. This tells us that the legal system has become disconnected from the moral and political spheres. Citizen advocates and allies can play an important supporting role in reform efforts, but should not take the lead. If they do, they risk forestalling change yet again.

If Congress approves anything like the comprehensive bill passed by the Senate last month, opportunities for citizen civil disobedience will proliferate. For instance, citizens could unlawfully help deported immigrants re-enter the country or knowingly and publicly employ unauthorized workers. The more that citizen allies risk, the more moral authority they will wield. But few will have the incentive or resolve to risk long-term imprisonment–I know I don’t.

Most Americans are taught early on that U.S. democracy is principled, ordered, and fair. Opposing views on a topic are aired and consensus develops. Policymakers respond to and are held accountable by voters. While there were some hiccups in the past (slavery, Native American genocide) we’ve moved beyond those now.

The reality is that millions of noncitizens in the U.S. are exploited, targeted, and reviled with the sanction of the government and approval of the voting public. The U.S. political system not only produced and produces this result but is incapable of rectifying it. These problems are not unique to this time and place. Institutional systems of oppression are rarely overturned through sanctioned channels. Instead, oppressed people must themselves, through nonviolent direct action, create the political conditions necessary to reform the system.

The undocumented population in the U.S. and around the world is a small fraction of the total number of people profoundly harmed by closed borders. But undocumented organizers may present the best hope for reforming the global immigration and citizenship regime.

Undocumented youth in the U.S. are uniquely positioned to mobilize for legislative change because they are able to navigate U.S. culture while credibly speaking for the larger undocumented community. More than the citizens of most other countries, Americans claim to be willing to accept immigrants who make efforts to assimilate. This gives undocumented youth, who often pass as citizens, moral leverage they would not possess in most other countries.

As children, undocumented youth were promised the opportunities afforded to their citizen peers, finding those promises to be hollow only upon reaching adulthood. Straddling the line between global haves and have nots, undocumented youth in the U.S. personify the contradictions between the stated values of the political-economic order and the actual inequality and injustice that the order perpetuates. They blur that line and hint at the possibility of erasing it. If they are able to connect with victims of closed borders in other countries to organize transnationally, undocumented youth in the U.S. could point the way to achieving open borders on a much larger scale.