Tag Archives: moral case

Damn Our Euphemisms: Who is the Accomplice to Murder in Dilley, Texas?

[CONTENT/TOPIC WARNING: Descriptions of violence, conflict, confinement. Strong moral exhortations and confrontational questions. Please be prepared when reading.]

I have said before, and I will keep saying: forcing people to return to violence they have escaped is an open endorsement of that violence, a collusion with their persecutor back home and a joining of the open threat on their lives.

Every year the U.S. mass-exile system forces thousands of people to return to war zones and other dangerous places where they may be and sometimes are murdered with impunity.1 Some of those deported are children. Nowhere is this more true than in Central American states like Honduras, El Salvador and Guatemala, where a toxic brew of corruption, organized crime and neo-colonial fallout have generated ubiquitous violence and the highest murder rates in the world.2 Immigration and Customs Enforcement (ICE) returns many immigrants from Central America to these same states where they are being hunted. You could say they are delivered into the hands of their killers – that their murder is enabled, even assisted, by their deportation, by their deporters.

One study found that between January 2014 and September 2015 eighty-three deportees who were sent back to Honduras, Guatemala, and El Salvador were murdered after their return.3 They were people fleeing the killers who eventually took their lives. People like José Marvin Martínez, who fled violence in Honduras and made it to the U.S. when he was 16, but was deported and four months after his forcible return was shot to death.4 Or Juan Francisco Diaz, also deported back to Honduras, where he too was murdered a few months later.5 Or Giovanni Miranda, who, after spending most of his life in the U.S., was deported to El Salvador to be murdered in front of his wife and son in June 2015.6 Or Edgar Chocoy, 16, who ran away from a gang to the U.S. only to be murdered by that same gang seventeen days after he was deported back to Guatemala in 2004.7 Or an unnamed teenager who was shot to death hours after being deported back to San Pedro Sula, Honduras.8 Moises, 19, was murdered after he was deported to El Salvador.9 And there are too many more names we’ll never know.

What’s more, the number of deportees delivered directly to their killers does not include those who survive attempted murder or other violence because of their deportation – a number no one knows. Isais Sosa, who was 19 when the Los Angeles Times covered his story in 2014, survived being shot by a gang days after his deportation.10 The 19 year old daughter of Dora Lina Meza fled to the U.S. from the same gang that, after she was deported back home, raped her at gun point.11 After Juan Ines Alanis was deported he was kidnapped and held for ransom while his fingers were smashed with a hammer.12

The use of euphemism is a common tactic for masking brutality. Many have discussed the use of “bureaucratic euphemisms” to direct attention away from acts of violence in the context of slavery,13 genocide14 and torture,15 for example. From “special resettlement” to describe the forced relocation and mass murder of millions under Stalin,16 to “sleep adjustment,” and “enhanced interrogation techniques” to describe torture in the Abu Graib prison.17 “Euphemism” comes from the Greek word euphemismos, meaning to use favorable words in place of inauspicious ones,18 literally “eu” and “pheme” together mean “good talk.”19 The only reason to use favorable words to describe human suffering is to hide that suffering from yourself and others. But human beings deserve to have their “inauspicious” suffering described as accurately and directly as possible.

The process of deporting people to their death or maiming is facilitated and hidden from us through the use of euphemism. When we strip away the “auspicious” language, we’re forced to confront honestly the suffering of exiled people and our role in their fate. ICE “detains” (kidnaps20) human beings for the purpose of “deporting” (condemning) them to their “home countries” (war zones) where ICE knows that they could be “persecuted” (raped or murdered in cold blood). But while the euphemism is used to hide culpability, the fact of culpability remains. Where A knows that C will murder B if C finds B; and A kidnaps B and delivers B to C – isn’t A guilty of something? When we acknowledge that ICE knowingly facilitates the death of human beings, it makes it difficult not to assign that institution some amount of moral responsibility and culpability for their actions. The evil of euphemisms used to describe evil should be obvious: talk about violence should be direct and honest because we collude with that which we hide and keep secret. We hide and collude with the suffering of people in the mass exile system when we resort to euphemism and doublespeak.

Translating ICE’s auspicious words into their inauspicious meaning forces us to confront the reality of their injustice. In criminal law, when a person does not themselves murder someone but contributes sufficiently to someone else’s act of murder, we deem this person an accomplice or an accessory to murder. If federal agents delivered U.S. citizens directly into the hands of those who sought to harm them, this would probably be considered both criminal and unconstitutional. But as the Supreme Court admits “in the exercise of its broad power of immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”21 The only reason we don’t recognize mass exile as the moral equivalent of an accomplice crime is because the law has decided that noncitizens are inferior to citizens and may, therefore, be treated as less than human. We protect our own conscience and accommodate this law by covering up human suffering with legal jargon that comports with the denial of human pain. This accommodation makes compliance with the law easier (e.g., “removal to your home country” instead of “deliver you to your killer”).

Let’s discuss a salient example of accomplice crime: a prison for mothers and their children in Dilley, Texas; a place where A kidnaps B and delivers B to C. Let’s talk about how criminal law would evaluate what happens at Dilley if we decided that it actually was not ok to make rules for migrants “that would be unacceptable if applied to citizens.”

The Scene of the Crime

During the week of July 5th to the 11th of 2015, I was one of many volunteer attorneys who spent a week working in the Dilley, Texas internment camp for mothers and their children,22 assisting some of the people imprisoned there with their claims for asylum and “bond” (the immigration equivalent of bail, that is, release from detention while your case is pending).

Just outside the small town of Dilley, just past a federal prison, a forest of industrial flood lights hang over the roof tops of a sprawling internment camp that someone in government has the Orwellian temerity to call the “Dilley Family Residential Center.” That name, which sounds like it might describe a nursing home or gated community, tells you that this is a place of denial and euphemism. Volunteers have compared it to the internment of Japanese Americans during World War II, or refer to it simply as “baby jail.” Both are accurate. It is an ICE operated, Corrections Corporation of America (CCA) administered prison for 2,400 women and children – 1,046 children, in fact, 96 of whom are younger than two.23 It is a series of interconnected trailers and dormitories surrounded by twelve foot high wire fences. It is equipped with a “playground,” and “court rooms,” spartan chambers where immigration judges preside over claims via video monitor from Miami, while the woman on the other end often sits alone with a prison guard at her side, often without an attorney. No one imprisoned in Dilley has been charged with any crime. This is where people are held after their capture near the border before they are either released into the U.S. (if they’re lucky) or deported back to their home country (where, it bears repeating, they may be murdered). Future generations will scarcely believe we were so timid in our opposition to such a place that we allowed it to flourish here. This is where the accomplices hide behind lies.

Much has been written about the madness of places like Dilley, by people with far more knowledge and experience with them than I have, and you should consult these sources first for thorough descriptions of the enormous human suffering Dilley contains.24 I will relate here only two memories from Dilley because they capture the ways in which its brutality is hidden with euphemism and denial.
First, the camp’s entrance: Visitors enter this prison for toddlers and their mothers through a long, white corrugated trailer with a bland gray door. Through the door you pass through antiseptic air and metal detectors flanked by armed guards. You may not enter the facility until you are stripped of any metal or glass on your person. Cell phones are forbidden. Cameras are forbidden. Money is forbidden (although you may take in a maximum of twenty $1 bills). More revealing of Dilley’s true nature, though, are the series of paintings on the wall opposite the metal detectors. They are watercolor-like, saccharine portrayals of life behind the iron fence; people dining carelessly in a prison cafeteria, happy children sitting in a classroom that’s behind bars. Think Norman Rockwell goes to hell. I mention them because they are a visual euphemism – an obnoxious and clumsy effort to convince us that this is a place suitable for human beings; an incredulous invitation to believe there can be happiness without liberty. This awkwardly placed art seems to be a disingenuous answer to a question DHS and CCA wish we would stop asking – how can it possibly be humane (or legal) to imprison whole families? It also smacks of what Vladamir Nabakov and Azar Nafisi called “poshlust,” or the banality and garishness often indicative of brutality, “the falsely important, the falsely beautiful, the falsely clever, the falsely attractive,”25 such as plastic flowers in a prison (or in this case, cheap paintings). The paintings reflect the mundane, humdrum mood with which Dilley personnel regard this place, a mood that evokes what Hannah Arendt called the “banality of evil.” These paintings attempt to warm the world to the idea of putting babies in prison and in so doing reveal the brutality inside.

Second, a very angry parent: At this point in history it is axiomatic to say that immigration detention camps often lack adequate healthcare for their prisoners – and the Dilley camp is no different.26 There are many stories of the people trapped there, adults and children alike, receiving inadequate medical care, or no care at all.27 In one incident, the Dilley facility endangered childrens’ health by giving them dangerously high doses of a Hepatitis A vaccine.28 Add this to humiliating living conditions (I’m told families are packed into bunk beds, in rooms less spacious than a college dormitory, with only a drawn curtain around the bed to simulate privacy, and someone has the gall to call these “suites”); add this to the persistent threats (any time ICE officials and judges remind internees about their imminent deportation they are effectively reminding them of their power to make internees suffer – in any other context we would call that a threat); also consider that many are hostages who cannot pay their ransom (ransom is a much more accurate way to describe the “bond,” $1,500 or more that when paid can ensure their release from this prison until the courts decide their fate, although not all are even eligible for bond); and you can imagine how angry a parent would be if the same people holding their son or daughter prisoner in this place also prevents them from seeing a doctor when they’re sick. Some people don’t need to imagine it. During my time at Dilley, one woman approached some of the volunteers to explain that her son had been feverish for days, that his conditioning was worsening, but that ICE or CCA or both would not release the child to a hospital. This would not be the first time volunteers called 911 for a sick detainee who was not receiving proper care. I cannot forget the rage on that parent’s face. Eyes wide, face red, her lips pursed and her bottom teeth exposed – she was as livid as I have ever seen anyone. If I was outraged, what words exist that could possibly describe how she felt? I feel compelled to talk about that person’s face because it seemed a rare moment of emotional honesty in a place where poshlust and cruel grandiloquence (“Family Residential Center,” “suites”) dominate. She described the injustice of Dilley with her face better than anyone writing about it can with words – her expression stripped away the euphemisms and lies.

So – looking behind the fantasy that those paintings want us to believe – when the people trapped in this government funded hell hole are forced to return to the places where we know they will be harmed or murdered – who is the accomplice to that harm or murder? Is it the ICE officer who physically pushes people into the airplane and forces them to board the flight back into the hands of their killer? Is it the Judge that orders the same? What about the Congress that made this cruelty law and the president who enforces it? Is it the CCA employee who conspires with them to hold that person captive for the purpose of having them forcibly sent away? Is it the guard who ensures this captivity at Dilley? Or the army of technicians, custodians and support personnel who ensure the prison functions and enables the guard? Is it the Customs and Border Protection officer who drags the parent and her child here in the first place to allow this process to begin at all? And what about the denizens of Dilley who support the facility indirectly, by delivering mail or scrubbing floors? What about the lawyers like me who, despite defending the prisoners from exile, must collaborate with this system in the process to do so? What about the taxpayers who funded this place?

Is it hyperbole to call any of these people accomplices to murder? It surely makes us uncomfortable to do so, and that discomfort is precisely what Dilley’s euphemisms are trying to make us forget or ignore. But dismissing this discomfort is dangerous because it deceives us into believing what is not true – that Dilley is anything more than a means to threaten and endanger peoples’ lives. The law of accomplice crime is an important tool for labeling accurately the cause and effect of what goes on at Dilley, even if it seems hyperbolic and especially if it makes us uncomfortable.

Accomplice Crime in Texas

Under Texas criminal law, a person “must” be found an accomplice to a murder when they “engage[] in an affirmative act that promotes the commission of the offense that the accused committed,”29 and do so “before, during, or after the offense,”30 while “intending or knowing” that their actions would “assist in causing the death” of the victim.31 To clarify, simply knowing that the murder will take place, but failing to stop it – or merely being present at the scene of the crime – are not enough to make one an accomplice.32 Rather, the person must engage in some affirmative act intending or knowing that this act will promote the victim’s death. For example, the Texas courts have said that simply disposing of a murder weapon33 or even disposing of the body after the murder,34 does not make one an accomplice to the act itself. It must be an act or omission that promotes the victim’s death.35 The standard for accomplice crime is the same, whether we’re talking about murder or robbery or any other intentional violent crime.36

Now, in criminal cases juries decide facts in the court room, and to do so properly they are given instructions by judges. Depending on the evidence, a Texas judge must instruct a jury to find that a person was an accomplice “as a matter of law,” or “as a matter of fact.”37 A jury will be instructed to find someone an accomplice as a matter of law when the evidence “clearly show[s] that the witness is an accomplice.”38 However, if it is not clear whether the individual is an accomplice, the jury must be asked to determine whether the witness is an accomplice as a matter of fact.39 For example, in one case, Mize v. State, a Texas court concluded that there was “at least” a jury question of accomplice “as a matter of fact” to the crime of robbery where the alleged accomplice drove the getaway car for the robbers and saw the robbers pointing guns at their victims.40 Here the driver’s affirmative act was driving the getaway car, it occurred immediately after the offense of robbery and the driver knew it was a robbery because he saw the guns pointed at the victims – thus, the jury and later the court found that the driver was an accomplice to the crime.41

Driving a getaway car is an apt analogy to the accomplice crime in Dilley. In Mize the driver was actively helping the robber complete their crime because without the driver’s help the robber would not be able to complete the crime. The analogy between driving the robber from the robbed and flying the murdered to the murderer – should be obvious. In a very real sense, ICE is driving the getaway car in reverse when they deliver people to their killers. Without ICE’s help, no killer hunting the deportee would be able to complete their crime. ICE facilitates the crime just like the driver in Mize. And just as the accomplice to the crime in Mize knew that he was chauffeuring around robbers because he saw the guns – ICE knows very well they’re chauffeuring Dilley captives to their death because they know the conditions in Central America, the captive has told them they fear death, and this pattern of deport-murder-repeat is not a secret to anyone. Those involved with physically holding and banishing people back to Central America, therefore, were they on trial in Texas, would at least have earned an instruction to the jury to determine whether or not they are accomplices to murder as a matter of fact.

Additionally, Texas courts have said that a person’s “consciousness of guilt” as to their facilitation of a crime, such as by fleeing the police or hiding their participation, “is perhaps one of the strongest kinds of evidence of guilt,” inasmuch as it would prompt a judge to instruct a jury to determine whether someone was an accomplice as a matter of fact.42 Do we have evidence that ICE wants to hide its participation in the kidnaping and murder of people? Yes. The euphemisms and poshlust are evidence. Why would the authorities who ordered, designed and set Dilley into motion call it a “family residential center” if they weren’t trying to hide the reality that it’s a prison? Why call it “removal” unless you’re trying to hide that it’s exile? Why decorate your prison with fake photos of happy prisoners when their real emotions are terror and rage? Why call them “suites” unless you don’t want people to know they’re cells? Do the higher ups of ICE and CCA believe that employees would find it harder to come to work if they were honest about the facility’s purpose? Does ICE assume the public would be more outraged if they used accurate words? Why hide behind a litany of misnomers if you weren’t trying to hide your own culpability? Those who bolster and entertain the use of these euphemisms let their guilt show. The circumambulation and the poshlust are efforts to hide their participation in violence, and this is evidence of their guilt as accomplices to the crimes committed again deportees. Look past the plastic flowers and you can see what Dilley really is: a crime scene.

No one who keeps Dilley running should be free from the creeping sense of shame or self-doubt. Every person who has ever been inside a place of such morally despicable character, who is not themselves its prisoner, even people like me, should be burdened with the responsibility to ask themselves, just like any Texas jury would have to ask themselves, how their actions have led to the death of other human beings and what role have they played in facilitating those deaths. These questions are the burden and the responsibility of anyone so involved. And if you’ve ever been through Dilley, close enough to it to be implicated in its crimes, then these questions are now yours– you own them. We cannot allow ourselves to assuage our consciences with words that hide the truth. Who is an accomplice to murder in Dilley, Texas? There, that question is yours now. Go live with it.

Related reading


1 See, e.g., Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016, (“Just last year 75,000 migrants were deported back to the Northern Triangle [Guatemala, Honduras and El Salvador]”).
2 James J. Phillips, Honduras in Dangerous Times: Resistance and Resilience, at 227 (2015); Guy Taylor & Stephen Dinon, Violence Surges in Central America, Threatening New Refugee Flood, The Washington Times, Jan. 10, 2016
3 Attorney General Kamala D. Harris Joins Washington State in Filing Amicus Brief to Ensure Unaccompanied Minors are Guaranteed the Right to Counsel State of California Department of Justice Press Release, March 11, 2016; Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015; Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016
4 Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015
5 Id.
6 Roberto Lovato, Deported to Death: The tragic journey of an El Salvadoran immigrant, AL Jazeera America, July 11, 2015
8 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
9 Pastor Mark Knutson, Francisco’s Son has been murdered in El Salvador, Feb. 20, 2016
10 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
11 Bob Ortega, Revisiting the immigration pipeline: Deported into Danger, Nov. 13, 2014, The Arizona Republic
12 Aaron Nelson and Jeremy Roebuck, Immigrants are being deported into danger, The San Antonio Express-News, Oct. 5, 2013
13 Winthrop Jordan, Tumult and Silence at Second Creek: An Inquiry into a Civil War Slave Conspiracy, revised edition, at 94 (1995)(describing the word “examine” as a euphemism for whipping as punishment and to extract information).
14 Timothy Ryback, Evidence of Evil, The New Yorker, Nov. 13, 1993 (noting the “extensive” use of euphemisms in official documents that record the genocide at Auschwitz)
15 David Brooks, Shields and Brooks on the CIA interrogation report, spending bill sticking point, PBS Newshour, December 12, 2014 (describing the CIA’s use of the term “enhanced interrogation technique” as a euphemism designed to “dull the moral sensibility.”).
16 Roger Griffin, “’Lingua Quarti Imperii’: The Euphemistic tradition of the extreme right,” at 55, Mathew Feldman & Paul Jackson (Eds), “Doublespeak: The Rhetoric of the Far Right since 1945”(2014)
20 Kidnapping, by the way, is an accurate description of what ICE does when they “apprehend” a person and lock them away against their will, a process you’ll notice is described pretty accurately by the legal definition of kidnapping: To “intentionally or knowingly abduct” another person; “Abduct” is defined as restraining someone “with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” TEX. PEN. CODE. ANN. §§ 20.03(a); 20.01(2).
21 Reno v. Flores, 507 U.S. 292, 305-06 (1993)
22 Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
24 National Immigrant Justice Center, Stop Detaining Families, [last accessed May 5, 2016]; Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
25 Azar Nafisi, Reading Lolita in Tehran: A Memoir in Books 23 (2003).
28 Jason Bunch, Children at Dilley Detention Center got Adult dose of Vaccine, My San Antonio, July 4, 2015
29 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
20 Id.
31 TEX. PENAL CODE ANN. § 19.02(b)(1); Sturdivant v. State, 445 S.W.3d 338, 355 (1st Dist. 2013), rev’d on other grounds by Sturdivant v. State, 411 S.W.3d 487 (Tex. Crim. App. 2013).
32 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
33 Paredes v. State, 129 S.W.3d 530, 537 (Tex. Crim. App. 2004). 
34 Caraway v. State, 550 S.W.2d 699, 702-3 (Tex. Crim. App. 1977).
35 McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996).
36 See, e.g., Mize v. State, 915 S.W.2d 891, 895 (Tex. Crim. App. 1995).
37 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
38 Id. e.g. the individual must be chargeable with the same crime committed by the defendant (the murderer). See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
39 Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).
40 Mize v. State, 915 S.W.2d 891, 896 (Tex. Crim. App. 1995).
41 Id.
42 Hyde v. State, 846 S.W.2d 503, 505 (Tex. App. Corpus Christi 1993, pet. ref’d) (quoting Torres v. State, 794 S.Wd 596, 598-600 (Tex. App. Austin 1990, no pet.)).

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

Do I have a right to be here?

Every human being has an inalienable right to migrate across their planet without restriction or fear.1It is impossible to place a restriction upon this right that is not animated by racism and classism.2 An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate3 someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.4 She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.5 It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,6 many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.7

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”8

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.9 What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers10 – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”11

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”12 I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”13 Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.14 Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.15 As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”16

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents17) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”18 Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”19 And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”20 in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.21 This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”22 This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.23

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book24 introduced the idea into the minds of people looking to justify their contempt for immigrants.25 The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.26 That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,27 nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people28 whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.29 I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.30 One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,31 cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.32 Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.33

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person34 would need to get “cancellation of removal.” The law says ten, and it means ten.35 So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.36 Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.37 Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.38 Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.39 It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.40 Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,41 this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),42 or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),43 or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,44 acquiring a green card through a close family member is just about45 the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,46 you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),47 because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”48 This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”49 Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”50– persecution for any other reasons, or danger from any other source, won’t get you asylum.51 But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.52 If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.53 That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.54

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac56), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?57 Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”58 Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”59 A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

Related reading

If you liked this post, you might enjoy our blog posts tagged arbitrariness.

Also of interest:


1 More on this right to come in future posts.
2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).
3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.
4 See ship manifest on file with author.
5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.
6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).
7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).
8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).
9 See 8 U.S.C. 1182(a)(4).
10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.
11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161
12 Hayter, at 161.
13 Hayter, at xxV.
14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.
15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.
16 Aviva Chomsky at 20.
17 See 8 U.S.C. § 1401.
18 Motomora at 98.
19 Chomsky at 36.
20 HAYTER, at 152.
21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).
22 Chomsky at 19.
24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).
26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).
29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.
30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.
31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).
32 See 9 USC § 1259.
33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011
34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.
35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)
36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).
37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).
38 See literally any post on this website.
39 See ship manifest on file with author.
40 See 8 USC 1229b(b)(1).
41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.
42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.
43 See 8 U.S.C. § 1153(c).
44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.
45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.
46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.
47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).
48 Hayter, at vii.
49 Hayter, at xxv.
50 (a phrase that is legally more complicated than I can possibly relate here).
51 See 8.S.C. § 1158(a).
52 See 8 U.S.C. § 1158(b).
53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.
54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).
55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).
56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.
57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).
58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).
59 Gündoğduat 113.

My Favorite Three Arguments for Open Borders

There are a prodigious number of moral arguments for open borders. Openborders.info lists libertarian, utilitarian, egalitarian, and other types of cases for open borders, with a number of arguments within each category.  What are my favorite arguments for open borders?

Before answering this question, it is important to consider what constitutes a strong argument for open borders. First, it should be logical. Second, it should not be overly complicated, requiring layers of explanation. Finally, it should, in the words of Fabio Rojas, appeal to “basic moral intuition;” it should resonate emotionally. While each of the following arguments may not contain all of these elements, they have at least some of them.

In descending order of strength, here are the three best arguments, in my opinion:

1. Open borders allow people, not their place of birth, to control their lives.

This argument is based on the unfairness that some people are born into poverty in countries that offer little opportunity for them to improve their situations (not to mention that in some of these countries human rights abuses and violent conflict are endemic), while in other countries people are born into relative wealth and have ample opportunities to improve their situations. (For example, the poorest 5% of Americans earn more than 60% of the world’s population. (p. 21) ) Hopefully currently disadvantaged countries will catch up with the advantaged ones, but in the meantime it is unjust to block citizens of disadvantaged countries, through immigration restrictions, from accessing the opportunities available to those born in advanced countries by moving to those advanced countries. Among other negative consequences, restrictions prevent would-be immigrants from benefiting from the place premium, which allows a person from a disadvantaged country to earn much more in an advanced country, even without an increase in the person’s skills. (See also here and here.) An open borders policy addresses the unfairness associated with place of birth, while immigration restrictions maintain it. (Openborders.info communicates the argument thusly: “open borders rectifies a glaring and morally problematic inequality of opportunity based on birthplace.”)

One measure of the argument’s potency is its use by many open borders advocates. Joseph Carens, who made the idea of open borders “intellectually respectable,” states that

In a world of relatively closed borders like ours, citizenship is an inherited status and a source of privilege. Being born a citizen of a rich country in North America or Europe is a lot like being born into the nobility in the Middle Ages. It greatly enhances one’s life prospects (even if there are lesser and greater nobles). And being born a citizen of a poor country in Asia or Africa is a lot like being born into the peasantry in the Middle Ages. It greatly limits one’s life chances (even if there are some rich peasants and a few gain access to the nobility)… Is there some story that they [people in rich countries] can tell to the human beings on the other side of this rich-poor divide as to why these existing arrangements are fair? Would they think the arrangements were just if they were in the position of the excluded? I don’t think so.

Using the terms “geographical roulette,” Stephan Faris, author of Homelands: The Case for Open Immigration, likewise notes that “our system of passport controls, immigration restrictions, and closed borders has created a world in which few factors shape a child’s life as much as one she can do nothing about: the flag under which she was born.”  Bryan Caplan of George Mason University states that “when most people are on earth are dealt such a bad hand, to try to stop them from bettering their condition seems a very cruel thing to do to someone.” And R. George Wright of Indiana University has written, in “Federal Immigration Law and the Case for Open Entry,” how those with the “undeserved good fortune to have been born in the United States resist… accommodation of the undeservedly less fortunate.”

I suggested that this argument is a powerful one in a previous post.  It is logical and simple. It also could appeal to the moral intuition of many, especially Americans, who oppose discrimination against others based on factors they cannot control. The American Civil Rights Act of 1964, for example, forbids discriminating against someone based on their skin color or gender, traits that people are born with. As Mr. Caplan asks, “What would you think about a law that said that blacks couldn’t get a job without government’s permission, or women couldn’t get a job without the government’s permission, or gays or Christians or anyone else? So why, exactly, is it that people who are born on the wrong side of the border have to get government permission just to get a job?”

2. If before you were born you didn’t know where you would be born (and who your parents would be) but could choose what the laws would be, you would choose laws allowing open borders because they could be key to your well-being.

This argument was developed by Mr. Carens. In “Aliens and Citizens: The Case for Open Borders,” he uses John Rawls’ question about “what principles people would choose to govern society if they had to choose from behind a ‘veil of ignorance,’ knowing nothing about their own personal situations,” such as their class, race, sex, or natural talents, to address immigration policy. (p. 255) Since people would be prevented “from knowing their place of birth or whether they were members of one particular society rather than another,” (p. 257) he concludes that they would choose an open borders regime: “In considering possible restrictions on freedom, one adopts the perspective of the one who would be most disadvantaged by the restrictions, in this case the perspective of the alien who wants to immigrate. In the original position, then, one would insist that the right to migrate be included in the system of basic liberties for the same reasons that one would insist that the right to religious freedom be included: it might prove essential to one’s plan of life… So, the basic agreement among those in the original position would be to permit no restrictions on migration (whether emigration or immigration).” (p. 258)  (The original position means when people operate behind the “veil of ignorance” about their personal situation when choosing society’s laws.)

This argument is very logical and probably appeals to the moral intuition (or at least the self-interest) of many people by helping them achieve a global perspective. I have not seen the argument used frequently, however, probably because its logic is somewhat intricate. It was used by John Tierney almost a decade ago in an op-ed calling for expanding immigration to the U.S. Despite its infrequent use, it is a potent case for open borders.

3. Immigrants, like everybody else, have a right to not to be harmfully coerced, and implementation of immigration restrictions constitutes harmful coercion. (Or, in the words of Mr. Caplan, leave people alone so they can go and make something out of their lives.)

This argument was formulated by Michael Huemer of the University of Colorado. In “Is There a Right to Immigrate?”  he argues that unless special circumstances can be identified, physically barring immigrants from entering a country and expelling those already inside a country are violations of immigrants’ rights not to be harmfully coerced. (p. 434) Mr. Huemer addresses a variety of justifications for this coercion against immigrants, including claims that immigration hurts native workers, that immigrants fiscally burden natives, that the government should prioritize the interests of disadvantaged natives, and that immigration threatens natives’ distinctive cultures. Mr. Huemer effectively shows that these justifications do not override immigrants’ right not to be harmfully coerced through immigration restrictions.

This argument is logical and straightforward. It is not necessarily morally intuitive, since some people see  government as being in the business of harmful coercion through taxation, regulation, and law enforcement, in order to serve the greater good. The hypothetical of “Starving Marvin” contained in Mr. Huemer’s paper humanizes the argument, however. In the hypothetical, Marvin, a potential immigrant in danger of starvation, seeks food by going to a seller in the U.S. The U.S. government, embodied in a person named Sam, forcibly prevents Marvin from reaching the U.S. Marvin then returns home and dies of starvation.

As I have mentioned elsewhere, Mr. Carens and Mr. Huemer include caveats to their arguments indicating that extremely harmful swamping under open borders could override them. (Swamping refers to an immense migration flow in a short period of time.) Unfortunately, dispelling concerns about swamping is not as straightforward as presenting one of the three strong prima facie arguments enumerated in this post, since no one knows with certainty what migration flows might look like under open borders or what the effects of swamping would be, should it occur. Vipul has written posts which dispel concerns about swamping and suggest factors that would limit migration initially after implementing open borders, such as the availability of jobs, wage levels, connections in host countries, and moving arrangements. Declining birth rates in some countries, including Mexico, could be another limiting factor, as could strong ties to one’s home country, as Kevin Johnson suggests. (Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws, p. 27)

One can also look at situations where borders are currently open for clues about migration flows under worldwide open borders. Philippe Legrain, in Immigrants: Your Country Needs Them, observes that Britain hasn’t been deluged with East Europeans despite the ability of citizens from relatively poor East European countries to come and work there. (p. 328) Mr. Johnson has written that despite the fact that the mainland U.S. has a per capita GDP twice that of Puerto Rico, most Puerto Ricans do not leave (p. 29), although many nations are much poorer relative to the U.S. and about a third of the people born in Puerto Rico have moved to the mainland U.S., which is a significant proportion.

On the other hand, co-blogger Nathan Smith, in his recently published paper “The Global Economic Impact of Open Borders,” writes that “Gallup polls have found that hundreds of millions of people worldwide would like to emigrate permanently. But economic models of open borders tend to predict that billions would actually emigrate.” Nathan suggests that these predictions, while uncertain, “deserve at least to be preferred to whatever casual assumptions may be harbored by untrained minds concerning the question.”

Assuming that billions migrate, Nathan’s research suggests, as does that of others, that world GDP would nearly double and that the living standards of unskilled workers worldwide would rise. The impact on Western countries that receive the bulk of the migration would be mixed, but generally positive: “… unskilled workers would see their wages driven down by competition from immigrants. There would be an enormous boom in investment, and elevated returns on capital for decades, as the world adapted to an enormously expanded effective labor supply.”  Nathan’s predictions about the impact on the U.S. political landscape in a forthcoming post similarly suggest significant changes, but not ones that should cause an open borders policy to be overriden.  Keyhole solutions would also be available to ameliorate the impact on receiving countries.

Uncertainty is always associated with radical policy changes, whether they be the abolition of slavery or the enfranchisement of women. This uncertainty should not prevent doing the right thing, however. The three arguments in this post powerfully show that, in the context of immigration policy, implementing open borders is the right thing to do.

Related reading

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

The photograph featured at the top of this post is of West and East German border police confronting each other, moments after a woman successfully crossed the interior German border in Berlin, 1955. Photo by Three Lions/Hulton Archive/Getty Images, via the Google Cultural Institute.

Can deportation be a key crime-fighting strategy?

This post expands on some points I made in a post to the Open Borders Action Group on Facebook. There, I expressed puzzlement at the emphasis people pay to using deportation of criminal non-citizens (and in particular those in violation of authorized immigration status) as a crime-fighting tool. That Facebook post, and this blog post, will focus on the United States, though many of the points made are general.

To many people, the idea that there exist foreign-born non-citizens, particularly illegal immigrants, who have criminal records and still roam the streets safely is an indicator that United States immigration enforcement is dysfunctional and broken. Thus, Donald Trump’s remarks about illegal immigrants and crime struck a chord with a lot of his audience. And the killing of Kate Steinle by illegal immigrant and repeat felon Juan Francisco Lopez-Sanchez (who has admitted to firing the killing shots but claims they were accidental) was viewed as evidence of a breakdown of law enforcement. The killing has led to a proposal for a new law called “Kate’s Law” that has led to a lot of discussion, see for instance here and here.

This post has two main goals:

  1. Critiquing the high-level view that deportation can be a key strategy for reducing crime, particularly in the United States. I don’t claim that deportation can never reduce crime, just that it’s not a proven strategy to do so and most of the data suggest its effect is negligible in magnitude, ambiguous in sign, and swamped by the other side-effects.
  2. Emphasizing the importance on the open borders side of not carelessly conceding too much to restrictionists regarding how to deal with criminals, due to concerns about slippery slopes, ratchet effects, and logical inconsistency. I don’t claim that it’s inappropriate to make any exceptions for criminals, just that some exceptions should be made after careful consideration of all the angles rather than as a generous carte blanche of “do what you want with the criminals.”

A couple of notes here. Since this post is largely conceptual, I’m going to conflate a few fairly different notions. There is a notion of birthplace (native-born versus foreign-born), a notion of citizenship (citizen versus non-citizen), and a notion of authorization for status (legal versus illegal immigrant). Also, in the United States, many non-citizens are on non-immigrant visas, i.e., their visa does not specify immigrant intent, although many of them later transition to a long-term immigrant status. A detailed analysis of the empirics of crime patterns would need to avoid conflating these issues, but since the purpose of this post is rather different I’ll be a little careless.

Table of contents

1.1. How does the law treat people convicted of crimes based on immigration status?

The short answer here is that, as far as the law goes, non-citizens convicted of crimes are no more a hazard to public safety than citizens convicted of the same crimes. First off, anybody who is not a US citizen, lawful permanent resident, or conditional permanent resident, and who has been convicted of an aggravated felony, a category of crime that includes both violent and non-violent crimes (some of the latter being victimless crimes) can be subject to a speedy removal process called administrative removal for aggravated felons, which means that the person can be removed simply through some paperwork and without getting a hearing before an immigration judge (more here).

Even so, as immigration.procon.org notes, in the United States, those convicted of violent crimes need to first finish their prison terms, and after that they may be deported to their home country. And the way administrative removal works, they are deported straight out of prison, so they don’t spend a single day free in the streets of the United States: it’s prison in the US and then back to freedom in their home country.

In contrast, citizens are required to finish their sentence in prison, and after that they are free — to roam around in the United States. Even if the deportation of criminal non-citizens is a flawed process with many people failing to get deported, or returning to the United States, it’s at worst as bad (from the public safety perspective within the United States) as the treatment of criminal citizens.

For those convicted of non-violent crimes, the person may be deported before the completion of his or her sentence. Since re-entering the United States seems a task of comparable or greater hardness to having one’s prison term shortened or getting out on parole as a U.S. citizen, it’s again unclear that non-citizens pose a greater risk to public safety than citizens. Of course, there’s a big question mark regarding whether people convicted of non-violent crimes are threats to public safety to begin with.

The United States is also a participant in the International Prisoner Transfer Program. A prisoner who is a citizen of another participating country may transfer from a United States prison to a prison in the home country, subject to approval by both countries. However, such transfer must be initiated through a request by the prisoner, and therefore does not concern us here.

A bit more about re-entering after having been deported for crimes. The United States has a summary removal procedure called reinstatement of removal. What this says is that somebody who re-enters the United States without authorization after having previously been deported, removed, or excluded can be removed again without any kind of hearing or process, simply by “reinstating” the previous order. This in particular applies to those who were subject to administrative removal for aggravated felonies, or otherwise deported or excluded based on criminal history. Of course, after the person gets re-deported, the person may re-enter yet again, and get deported yet again, and so on. But two things to note: first, insofar as this isn’t enough to keep the streets of the United States safe, the problem can’t really be solved by more deportations, but by more imprisonment (which is sort of what Kate’s Law was pointing to). Second, the same public safety challenge applies to citizens as well, except that in the case of citizens, there isn’t even an option to deport people, however temporarily.

The upshot of all this is that, for a citizen and a non-citizen who commit the same crime, the law enforcement response in the case of the non-citizen is equally or more protective of public safety (in the US) compared to the response in the case of the citizen. If the law enforcement apparatus of the United States is lenient enough that criminal non-citizens can roam the streets freely and with impunity, then the same is even more true of criminal citizens.

An old post by Nathan, titled Answer to Vipul’s question about enforcement, has some interesting thoughts on deportation that are relevant to this discussion. Basically, Nathan argues that deportation is rarely the appropriate response, even if there are cases where it is not an unjust response:

I’m not absolutely wedded to the idea that deportation is never permissible. However, I can’t think of any situations where it would be appropriate. There are certainly crimes for which deportation would not be an excessive punishment; but for those crimes it’s usually either inapt or insufficient. A man guilty of rape or murder shouldn’t be deported, but imprisoned. Maybe there are scenarios where deportation would be the right thing to do, but I can’t think of them. I have some sympathy for the Nicene council which banished Arius the heresiarch for his views when they temporarily had the emperor on their side– they had suffered much at the hands of the pagans, and would yet suffer much at the hands of the Arians, and mere banishment is impressively moderate under the circumstances– but it’s not a precedent to imitate today, when the principle of free thought has been firmly established.

1.2. Immigrant crime rates appear lower than, and definitely aren’t significantly higher than, native crime rates

In the United States, one of the main concerns surrounding crime is that of crime by Hispanic illegal immigrants. We have a page on the subject that links to many literature reviews, and you should also read Alex Nowrasteh’s recent summary of the research and my co-blogger Joel’s take on immigrants and crime.

The broad consensus of these reviews appears to be that the foreign-born are considerably less likely to engage in crime than the native-born, and that this effect holds in aggregate, within each ethnicity, and for every combination of ethnicity and high school graduation status. Admittedly, the threat of deportation for crime is believed to be one contributing factor to the lower crime rate, but scholars who have studied the issue believe it to only be a partial explanation. The a priori selection for greater future orientation is believed to be another driving factor in the lower crime rates, and this applies to both legal and illegal immigration, and to both the status quo and substantially more liberal migration policy.

On the other hand, Hispanics have crime rates somewhere between non-Hispanic whites and blacks, which is a contributing factor to the perception of high Hispanic crime. But a lot of this higher Hispanic crime doesn’t come from foreign-born Hispanics.

In addition to comparing overall crime rates, we can also look at specific research on the effect of deportation on crime rates. Alex’s recent summary of the research includes a discussion of two relevant pieces of research:

The phased rollout of the Secure Communities (S-COMM) immigration enforcement program provided a natural experiment. A recent paper by Thomas J. Miles and Adam B. Cox used the phased rollout to see how S-COMM affected crime rates per county. If immigrants were disproportionately criminal, then S-COMM would decrease the crime rates. They found that S-COMM “led to no meaningful reduction in the FBI index crime rate” including violent crimes. Relying on similar data with different specifications, Treyger et al. found that S-COMM did not decrease crime rates nor did it lead to an increase in discriminatory policing that some critics were worried about. According to both reports, the population of immigrants is either not correlated, or negatively correlated, with crime rates.

As far as long-run immigration policy is concerned, one could plausibly argue that, even if the foreign-born have lower crime rates than the native-born, allowing more immigration can still raise crime if the children of these foreign-born have higher criminal propensity. This line of reasoning is partly supported by evidence, both with respect to Hispanics in the United States, and with respect to other immigrant groups historically; this phenomenon has been discussed under the name of second-generation crime.

For the purposes of deportation policy, however, this doesn’t apply, because we are specifically talking about deporting non-citizens for crimes they have committed, rather than crimes we expect their children might commit. And native-born people in the United States are United States citizens (by birthright citizenship) so there are no official grounds for deporting them.

1.3. In absolute terms, crime by immigrants is a small fraction of overall crime

In the United States, the foreign-born constitute about 13% of the population. Given that their crime rates are somewhat lower than those of the native-born, they account for less than 13% of the overall crime in the United States. Targeting crime by immigrants therefore won’t make a huge dent in the overall crime problem.

Concretely, what this means is that if you believe the criminal justice system is too lenient against the foreign-born, and that this creates a significant crime risk for natives, then you should be far more concerned about the criminal justice system being too lenient overall. For every case of a criminal foreign-born non-citizen individual who was either acquitted or released after serving a prison term and then committed more crimes, you’ll probably find many more native-born citizens who do the same thing. Perhaps the relevant remedy here is to make prison terms longer for particular types of offenses, or to better identify those who may be repeat offenders. What the optimal remedy is, and how to balance the rights of former criminals with public safety needs, is not the topic of this post. But it behooves those concerned about crime levels to consider the problem in generality rather than find solutions for a subset of the population that contributes little to the overall problem.

Note that this definitely won’t hold under open borders: under open borders, the foreign-born will be a much larger share of the population, and are likely to contribute a significant share of overall crime. The question of what crime rates would be under open borders is open. It is plausible that the currently observed phenomenon of lower immigrant crime rates than native crime rates will break down under open borders, though I still don’t expect a massive overall increase in crime rate. I considered these questions in an earlier post, and we’ll hopefully have more coverage of the issue.

1.4. Are there unique challenges associated with domestic criminal law enforcement when applied to non-citizens?

One plausible argument for choosing deportation as a crime-fighting strategy for non-citizens is that domestic criminal law enforcement becomes particularly hard for these people. Is that true?

Ironically, it is, but largely because of immigration enforcement. Law enforcement officers have difficulty carrying out their job in immigrant communities partly because of the distrust in these communities of law enforcement, given their fear of deportation and harassment. This leads to a dynamic where police officers tend to avoid the area, leaving the policing of these areas to those prone to corruption and bullying, further worsening the interaction between police and residents. A similar phenomenon been observed for many black communities in the United States, where the relevant form of enforcement is not immigration enforcement but other laws such as drug enforcement and Broken Windows policing.

It is partly for this reason that many “sanctuary cities” have adopted explicit policies surrounding non-enforcement of federal immigration laws. In other words, police are instructed to focus on the goal of fighting crime, leaving the enforcement of federal immigration law to federal authorities. In other words, to the extent that unique challenges apply to domestic law enforcement for non-citizens, they point in the direction of separating law enforcement from immigration enforcement.

A small note here about crime in border towns specifically as a result of illicit border activity. Organized crime plays an important role in facilitating drug smuggling and migrant smuggling, and the clashes between different organized crime groups, and between them and law enforcement agencies, can be responsible for higher-than-usual violence levels in border towns. That being said, as an empirical matter, it appears that overall crime rates are lower in border towns than in comparably sized interior towns. One of the lowest-crime areas, El Paso, is a border town in Texas whose low crime rate has even been called a miracle. The oft-noted point that border towns account for a disproportionate rate of federal crimes (which include crimes related to smuggling) does not impugn their overall safety record.

2.0. Is this worth making an issue of? Can’t the treatment of violent criminals be a small concession that makes the open borders position much more widely palatable?

Criminals are one of the few categories for which many open borders advocates are willing to make exceptions to their general view that borders should be open to all. Thus, for instance, Bryan Caplan writes:

Hey Mr. Caplan,Do you think Israel should open their borders?

Thanks, Jack

Yes. But I wouldn’t strongly object if they excluded people with violent criminal records or denied new-comers the vote. (Same goes for countries other than Israel, too).

It’s not clear to me if making a clear exclusion for criminals is philosophically consistent, but the argument for public safety being a valid concern in immigration law does carry some weight. In an earlier post in December 2012, I considered in detail the question of whether blanket denial of the right to migrate based on a criminal record is just (and also linked to many other people who had conceded an exception to open borders for violent criminals).

My purpose when I wrote that post, way back in 2012, was to simply explore the space of possibilities regarding how to trade off the right to migrate with public safety concerns in receiving countries. However, as I’ve thought more about this and looked more at the types of disputes and debates that arise in practice, a few other concerns have emerged in my mind.

2.1. Scope creep with criminality and immigration

The idea of keeping criminals out, and deporting those who commit crimes, is subject to significant scope creep. Once we start seeing immigration policy as a way to select and shape a better society, why stop at merely excluding violent criminals? Why not also aim to exclude people who have a 50%+ probability of being net fiscal drains, or who are more likely than not to vote the wrong way? And even within the realm of crime, why stop merely at those crimes that actually merit prison terms? Why not expand the scope to everything ranging from playing loud music to running a gambling house to downloading music in violation of copyright law?

In fact, this particular slippery slope is not merely hypothetical. It’s already happened. As already mentioned, United States immigration law can exclude and deport people for aggravated felonies, many of which are neither aggravated nor felonies. The Immigration Policy Center, an immigrant rights and legal advocacy group, has a good overview. Here’s how the IPC’s overview puts it:

As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old.

While aggravated felonies are considered serious enough to allow for administrative removal for those who are not US citizens or permanent residents, there are also other, lesser, “crimes” that can be used to both exclude and deport people, albeit with more of a semblance of due process (i.e., they cannot be used as a basis for administrative removal, but they can still be used as evidence against the alien in a hearing before an immigration judge). Crimes that can be used to exclude and deport people are called crimes involving moral turpitude (aka crimes of moral turpitude, and abbreviated as CMT). This category includes aggravated felonies but also includes other crimes. NOLO has a good review.

The United States has also historically passed many laws restricting immigration based on one’s speech and political views, including the Immigration Act of 1903 (also known as the Anarchist Exclusion Act) and the Alien and Sedition Acts of 1798. This, despite the fact that freedom of speech is protected by the First Amendment to the United States Constitution. Once we grant that the public safety interest justifies special punishments for non-citizens (over and above the usual fines and prison terms), keeping the domain of application restricted to crime would be hard.

My co-blogger John Lee has done a great post linking to Pulitzer Prize-winning journalist Linda Greenhouse’s discussion of how migrants could be deported for minor offenses (also read John’s follow-up post discussing the resolution of one of the discussed cases).

2.2. Who has responsibility for shaping a criminal?

Personally, I reject the notion that state or national governments are morally responsible for the criminal actions of particular individuals who were born there or raised there. There could be exceptions where state propaganda or state action facilitates criminal activity, but state complicity in private crime needs to be positively established — not merely assumed. Therefore, I don’t believe, for instance, that just because a Chinese citizen came to the United States and committed crimes, the Chinese government, the Chinese nation, or the Chinese people as a whole are “responsible” for that crime and “deserve” to have the person back (this argument is a variant of the state responsibility thesis that has been cited by some philosophers as an argument against open borders).

Even if you believed in high-level national responsibility for the criminal actions of individuals, it’s not clear what nation gets the blame for immigrant crime. Is it the nation the person holds official citizenship of? Is it the nation the person grew up in? Is it the nation where the person first started on the path to crime? In the United States, DREAMers are likely to have had many of their formative experiences in the United States. Thus, we could reasonably argue in the case of DREAMers who commit crimes, any national responsibility for the crimes falls on the United States, rather than their birthplace. Even for those who migrate as adults and then commit crimes, their path of crime may well have begun in the United States. At best, the logic of responsibility can be used to deport criminals who committed their first deportation-worthy crime in their country of origin, in the same way as it could be used to deny initial entry.

2.3. Criminals can commit crimes elsewhere too

From a universalist perspective, deporting those with criminal proclivities, whom we believe could be repeat offenders, doesn’t really solve the problem: the person could commit crimes elsewhere too. There could be some cases where deportation might reduce criminality, for instance, deporting members of a gang could break up the criminal activity of the gang, and individual deported gang members may be unlikely to continue to engage in the relevant crimes (on the other hand, they may start new gangs). It’s unclear that the countries the criminals are being deported to would be more capable of dealing with the criminal activity — they may well be less able to handle it. Perhaps a cost-benefit analysis would still show that deportation reduces overall expected global crime, but such a claim needs careful argumentation.

Of course, citizenists and territorialists in any country would consider the reduction of crime within the country (and/or directed at citizens of the country) to be more important than reducing global crime. So it’s understandable that they accept deportation as a possible crime reduction strategy. But those of a more universalist bent should push back against this reasoning.

Co-blogger Joel pointed me to an article in The Atlantic that made the interesting claim that deporting gang members from the U.S. had actually increased organized criminal actiity both in the U.S. and in the countries the people were deported to. Here’s a key excerpt from the article:

MS-13 formed in the Rampart area of Los Angeles in 1988 or 1989. A civil war in El Salvador had displaced a fifth of that country’s population, and a small number of the roughly 300,000 Salvadorans living in L.A. banded together to form the gang. But MS-13 didn’t really take off until several years later, in El Salvador, after the U.S. adopted a get-tough policy on crime and immigration and began deporting first thousands, and then tens of thousands, of Central Americans each year, including many gang members.

Introduced into war-ravaged El Salvador, the gang spread quickly among demobilized soldiers and a younger generation accustomed to violence. Many deportees who had been only loosely affiliated with MS-13 in the U.S. became hard-core members after being stranded in a country they did not know, with only other gang members to rely on. As the gang proliferated and El Salvador tried to crack down on it, some deportees began finding their way back into the U.S.—in many cases bringing other, newly recruited gangsters with them. Deportation, incubation, and return: it’s a cycle we’ve been caught in ever since.

Today, MS-13 has perhaps 6,000 to 10,000 members in the United States. It has grown moderately in recent years and now has a presence in 43 states (up from 32 in 2003 and 15 in 1996). Most members of the gang are foreign-born. Since 2005, ICE has arrested about 2,000 of them; 13 percent have been deported before.

Salvadoran police report that 90 percent of deported gang members return to the U.S. After several spins through the deportation-and-return cycle, MS-13 members now control many of the “coyote” services that bring aliens up from Central America. Deportation—a free trip south—can be quite profitable for those gang members who bring others back with them upon their return.

While I don’t know enoughabout the specifics to endorse the claim of the article, this is the sort of ripple effect that people concerned about the long-run effects on global crime would have to account for. These kinds of effects are hard to predict, but a reasonable rule of thumb is that they’re likely to be less positive overall than the naive view of deportation as “taking criminals off the streets” suggests.

3. Conclusion

Much of the current discussion on immigration and crime comes from two angles: the use of anecdotes to justify strong immigration restriction and deportation policies against non-citizens accused of crimes, and the use of empirical data to study the relationship between migration status and crime. In addition, the defense of the civil and procedural rights of non-citizens accused of crimes is also a perspective that gets some airing. My post looks at the issue from a few slightly different angles. It focuses on whether deportation can or should be an important part of a crime-fighting strategy, and highlights some other relevant considerations about moral responsibility and effects that often get sidelined by the tug-of-war between the citizenist and due process-defending perspectives.

In addition to the many inline links in the post, the following might be of interest to readers:

The photograph featured at the top of this post depicts police personnel at a 2006 march for immigrant rights in Los Angeles, California. Photograph by Jonathan McIntosh and licensed under the Creative Commons Attribution licence.

Angela Merkel and the crying refugee, and the search for a human face of the costs of migration restrictions

A video showing German Chancellor Angela Merkel responding to a young Palestinian refugee has received a lot of attention in the press and in the social media last week. Reem Sahwil, a teenage girl whose family still faces the threat of deportation after four years in Germany, described her situation in some detail and eventually started crying on the air, prompting Ms Merkel to try to comfort her, all the while staying firm in her defense of the policies that have been causing Reem so much grief.

Most of the responses I’ve seen were critical of Angela Merkel, often describing her as cold hearted and her response as clumsy and insulting.

This sort of incident may be a strategic godsend for the cause of free(r) migration.  In the Open Borders Action Group on Facebook, Sam Dumitriu suggests that “More situations like this should be engineered to make the costs of closed borders salient.”

The largely critical response also seems encouraging. As Andy Hallman pointed out in another Facebook thread, it’s not far fetched to imagine how commenters could have instead been “flippant about the little girl’s suffering”.

The great news is that a much more commonly expressed response has been anger at the unjust treatment of this young girl. The not so great news is that a lot, if not most, of the criticism focuses not on the policies, but on morally trivial aspects of Ms Merkel’s interaction with Reem.

What happened

An 88 minute long program was filmed on the 15th of July, which shows Chancellor Merkel talking politics with 29 teenage students of a school in Rostock. At one point the moderator passed the microphone to Reem Sawhil, asking her to tell her story. Reem explained that she is a Palestinian who had moved to Germany from Lebanon four years ago. She has found it easy to assimilate as people have been nice to her at her school and she likes her new home, but she has recently become aware that other young refugees have a much harder time.

Ms Merkel complimented her for her flawless German, and Reem explained that she loves languages and has also greatly enjoyed learning English as well as some Swedish, and that she will take up French next year.

Reem then explained that her family still had not received a residence permit, and that her father remains banned from working in Germany. Probably in anticipation of Reem’s participation in the TV program, her family members had started asking why it is that foreigners aren’t allowed to work as easily as Germans, and Reem had tried and failed to find any answers.

She then explained that her family had recently gone through a rough time, as they had been on the verge of being deported. Reem said she had been feeling very bad and that her teachers and friends had all noticed. Ms Merkel asked what the current situation was, and Reem explained that they had received permission to stay for the time being after some bureaucratic hoop jumping, but were still waiting to hear back from the immigration authorities. She then said how much she misses her family members whom she has not been able to see in four years.

Ms Merkel explained that the policies in place require that the authorities examine whether refugees have a legitimate reason to want political asylum. She said that policy makers have recently been discussing the issue of refugees being found to have an insufficient claim to asylum only after having spent several years in Germany while waiting for the authorities to make a decision. Here she asked Reem whether she had come to Lebanon from Syria, which Reem said was not the case. She then explained that, while Palestinians in Lebanese refugee camps were clearly not well off, many other people live in political circumstances that are even worse, especially people in war zones. She repeated that it is a serious problem that refugees in Germany often have to wait for a decision for such a long time, and stated that measures to make this procedure faster are now under way. She added that they would not let all refugees from Lebanon in since they have to prioritise for people who come directly from war zones.

Reem then said she has a great desire to study in university, and she finds it tough watching her friends enjoy their lives and prospects while the uncertainty about her future deprives her of such enjoyment.

Ms Merkel said she understands this, but that she cannot simply grant her wishes. Politics can be tough, she said. And while she happened to be face to face with Reem at that time, and Reem happens to be an extremely likable person, there were thousands upon thousands of other people in Lebanon and elsewhere, and that if “we” told those people they can all come, “we wouldn’t be able to handle it”. The only answer they can offer, she said, is to make sure the procedure does not take so long.  But, she repeated, many would have to go back, too.

The moderator then suggested to Ms Merkel that she remember Reem’s face and hold it in memory when making policy decisions on these issues. He asked her how quickly the authorities’ decision would be reached in the future, and Ms Merkel started telling him that she thinks the vast majority of cases that have been pending for more than two years would be processed within one year from now. I know this is what she went for saying because she stated it later in the program, but here she stopped mid sentence as she noticed Reem was crying.

She then walked up to her and stroked her back, telling her she had done great – suggesting, perhaps, that she took her crying to be from nervousness after having opened up on television. The moderator said he didn’t think it was about how well she’d done but about the toughness of her situation. Ms Merkel said she knew it was a tough situation, and that she nonetheless wanted to stroke her because “we” do not want to force people like Reem into such situations, and because Reem has it hard, but also because Reem had described so well, for very many other people, the sort of situation one can end up in.

What else happened

On the 10th of July (five days prior), a set of new laws had been passed, pursuant to which Reem will very likely be able to stay in Germany. These laws may not protect her parents from deportation, however, and also aim at deporting more refugees more quickly in the future. They also state that refugees can be incarcerated for up to four days prior to deportation.

As outraged responses started pouring through the web, a few articles stating that Reem was speaking up in defense of Ms Merkel appeared. They linked to a brief video in which Reem stated: “She listened to me, and she stated her opinion, and I think that’s fine.”

My comments

I think Ms Merkel has been unfairly accused, by very many commenters, of having been very harsh toward Reem in this encounter. And, in solidarity let’s say, I will begin my comments with some harshness of my own.

Obviously Reem is in a difficult situation, and I think the policies that put her in this situation are severely immoral. She has the right to live in any housing that a landowner agrees to rent or sell to her or her family, and her father has the right to work any job an employer or customer agrees to pay him to do (as does Reem, for that matter). Violating these rights without sufficient justification is wrong.

Yet, if we’re looking for a representative human face for the receiving side of the cruelty of migration restrictions, that face is not Reem’s. Reem is far too well off.

If you think to say this is to belittle the toughness of Reem’s situation, ask yourself whether you may be belittling the hardship of the many millions of people who have it far worse than her.

Hans Koss defended Ms Merkel against many of her recent critics in a similar vein:

The policies might be wrong in different ways, but I think that the idea to completely abolish any prioritization (currently Syria > L[e]banon > Albania) is more wrong; I believe that the capacities should be increased, but as long as the capacities are not unlimited (and that simply won’t happen – and if so, soon after that a party would be elected which drastically reduces it), prioritization is better than no prioritization. I believe that the debate is overemotionalized, which is bad for the refugees; I think it is remarkable how Merkel addresses the topic of prioritization in an honest way after having [made sure] that the girl is currently not in a desperate situation.

Many of the widely circulated criticisms of how Ms Merkel conducted herself strike me as blatantly unfair. E.g. the Daily Mail reports that

Jan Schnorrenberg, manager of the opposition Green party’s youth wing, wrote: ‘Explaining to a young girl on live camera that her fate doesn’t matter to you – just shameful.’

Ms Merkel did no such thing.

The guardian reports that

But she was forced to stop mid-sentence, and muttered “oh Gott”, on seeing that Reem was crying.

Did the author mishear? She did not mutter “oh Gott”.

But a much more important point about many such criticisms is that, even if they were fair, they would be unimportant. Had Ms Merkel actually lost her composure, or been particularly clumsy, or had she actually been cold or condescending toward Reem, even, those things would not be worth a fraction of the outrage so many have invested in these accusations.

Has Ms Merkel done anything wrong? Yes. She defended immoral policies. But note that these policies have been around for many decades. There’s no news here. Note, also, that these policies are overwhelmingly supported among the electorate.  They’re not exactly her doing. And when she says that “we wouldn’t be able to handle” a massive inflow of immigrants, that statement can be quite reasonably defended on the basis that so many natives might respond to this inflow in seriously disruptive ways. (E.g. see reports of arson attacks and shootings here and here.) Spare some blame for those less prestigious agents of representative democracy, too.

When billions of foreigners have been victimised by the restrictionist policies of (far) more tolerable countries for such a long time, why make such a big deal out of Reem? In many cases, the reasons may well involve territorialism: Foreigners enjoy a lot more sympathy with respect to their desire to immigrate once they’ve already settled in the receiving country, even if they did so illegally. That Reem has been living in Germany for four years is sure to win her a lot of support, even though it also makes her such a “lesser victim” of the policies. The fact that she’s clearly bright and academically ambitious should win her further support from the many people whose pro-immigrant sentiments extend only to highly skilled individuals.

John Lee wrote some great comments in an email replying to my request for thoughts for the present post:

One tension I observe in immigration policy is that a lot of people support harsh policies in principle, but when confronted with the human impacts of their actions, they waver and demand an exception for that specific instance of harshness they’ve encountered. This is especially common on the left — in the US, the left’s reaction to the child asylum-seeker influx was basically spineless, since they refused to meaningfully alter US immigration policy, but demanded lots of exceptions for the children. A somewhat similar response materialised from the compassionate right as well (where they didn’t demand policy changes but offered charitable aid for the children).

The upshot of it is that the most “effective” immigration policies are those which hide away the suffering and harshness. Some of the comments I saw about the Merkel video were to the effect of “Well yes obviously now that she’s integrated into German society they have to let her stay. But that’s why the compassionate thing would have been to prevent refugees like her from ever coming to Germany in the first place.”

He attached this cartoon from The Economist:

For all the problems with the many reactions to the video, I think it’s fabulous that many people at least recognise the cruelty of deportation, at least when it’s given a likable human face, at least when that face belongs to someone who’s already put down roots in the receiving country. I hope the video makes a lasting effect in this regard.

Related reading

Note: The featured image of Angela Merkel is from author Kuebi = Armin Kübelbeck on WikiMedia Commons and is licensed dually under Creative Commons (CC-BY-SA) and GFDL. You can get more details here.