Tag Archives: moral case

What is the most fundamental human right? A lesson from North Korea

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The title of this post may be a trick question, considering that the name of this website is Open Borders: The Case. I recently finished reading Only Beautiful, Please: A British Diplomat in North Korea (Amazon link), authored by former British ambassador to North Korea John Everard. Everard lived in Pyongyang and built relationships with many North Koreans in the professional class, which is how he came by the information in his book.

The book is interesting for many reasons — how often do we get a look inside the world’s most secluded and arguably most oppressed society? But from an immigration standpoint, one passage on page 82 of the paperback edition caught my eye:

The attraction of the West was its much higher standard of living, not the ability of Western citizens to speak freely or to vote. The only real freedom that I found my contacts did want was the freedom to travel — to be able to visit relatives without the cumbersome bureaucracy of travel permits, and (among some of the less poor ones) the ability to travel abroad. Cheju Island, off South Korea (where South Korean newlyweds used to aspire to spend their honeymoons before honeymoons abroad became fashionable) was a particular draw; it seemed to have caught the imagination of young North Koreans as a place of great beauty, and I was scolded more than once when I had to admit that I had never been there.

One can argue that North Koreans don’t really understand the value of other freedoms, some which they’ve never experienced at all. But North Koreans have experienced the most closed borders regime in modern history; it seems absurd to argue that they have a significantly better grasp of what it means to have freedom of movement than they do with freedom of speech or the ballot. Yet in one paragraph, Everard captures the burning North Korean desire for freedom that burns brightest: open borders.

Closed borders keep people from working in the legal and social regimes which foster economic prosperity. They keep people from living in legal and social regimes which protect and promote the rights and dignity of human beings. They keep people apart from their most loved ones. They keep people away from the beauty of new experiences, new sights, and new sounds.

The complaints most of us have about our lives and our governments pale in comparison with most anything a North Korean has the right to complain about. And yet the one freedom North Koreans seem to want most is the freedom most of us lackadaisically dismiss as one not worth thinking about. Modern passport and visa regimes force people to live under unjust governments or hollow economic systems. They tear people away from their friends and family. They prevent people from learning new things about the world, prevent them from experiencing new wonders of life and nature.

You may argue that allowing people the presumptive right to travel where they wish is too much of an imposition on you. Fair enough. But you need to show reason to believe that this is the case — that we can reasonably believe a sojourner or immigrant to your country will prove an imposition, and that the cost of this imposition is too much for society to bear. You cannot simply say “I just don’t care about you — go on and suffer, because you weren’t lucky enough to be born in my country”, unless you wish to disclaim any pretense of common humanity with those foreign to you.

There is an argument to be made that untrammeled freedom of movement for literally all people would be too much of an imposition to bear. But in some sense, this is a strawman: I think most open borders advocates believe that a single country which immediately opened its borders today would likely face significant costs enough to outweigh the benefits to humanity from its open borders. And I think most open borders advocates are open to revoking the presumptive right to freedom of movement for individuals who constitute proven or likely threats to public order or health. It remains that the focus of our conversation on borders should not be: “Why should we have to let them in?”

After all, most people are not thieves or criminals. Most people don’t carry contagious diseases that threaten public health. We should be asking ourselves: “Why should we have to keep good human beings out?” The burden of proof has to be on those who would deny to any human being, born in North Korea or not, a most fundamental human freedom, a freedom that is perhaps second only to the right to life itself: the freedom of movement. Without movement, we have no agency in our lives; without movement, we lose all that makes life worth living.

True stories from immigration law: US citizens have no right to be with their spouses

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The US legal doctrine of consular nonreviewability leads to over a million people being refused visas every year, with no legal avenue to challenge the consular officer’s decision, no matter how arbitrary, prejudiced, or groundless it may be. But beyond affecting these foreigners’ lives, there are real effects on US citizens too. One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed. Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.

Filipino-Hawaiian lawyer Emmanuel Samonte Tipon last year blogged a useful overview of relevant cases touching on when someone might have legal standing to sue for judicial review of a visa application. Let’s go over them one by one.

  1. Sabataityte v. Powell: Sabataityte was denied a visa because the Warsaw consulate believed she had been previously unlawfully present in the US. She challenged this determination. The courts ruled that regardless of the merits, she had no right to mount such a challenge.
  2. Saavedra Bruno v. Albright: Saavedra was denied a visa, and had another visa revoked, because the US government believed he had previously illicitly trafficked drugs (based on a hit when they searched his name in a database). This was news to Saavedra and his American employer, both of whom sued the government to present the evidence so they could challenge the determination that he was a drug trafficker. The courts ruled that both Saavedra and his American employer had no legal basis to confront the claims against him or challenge the visa refusal.
  3. Hermina Sague v. United States: Sague, a citizen, married Berger, a Frenchman, and applied to permit him to enter the US so they could live together as a family. The government denied Berger a visa, and Sague sued, insisting she had a right as a citizen to live with her husband in the US. The courts ruled that it was impossible to challenge the consular refusal and moreover, based on legal precedent, “there is no constitutional right of a citizen spouse … to have her alien spouse enter the United States.” Perhaps even more perversely, “once an alien has entered our jurisdiction, even illegally, he may only be expelled after proceedings conforming to the traditional standards of fairness encompassed in due process of law. However … ‘an alien on the threshold of initial entry stands on a different footing.'” In other words, if you want due process, you need to enter the US illegally.
  4. Centeno v. Shultz: Centeno, a Filipino citizen, applied for a visa to visit his American family, and was denied. He and Coane, his American brother-in-law, sued to appeal this decision, arguing that the decision was arbitrary and violated Coane’s first amendment rights to engage in discussion with his brother-in-law. (You laugh, but violation of citizens’ first amendment rights is one of the few grounds citizens have to challenge consular officers’ decisions.) The US Court of Appeal essentially laughed Centeno and Coane out of court in a one-page decision.
  5. Patel v. Reno: Patel, a US citizen, applied for visas for his non-citizen wife and children. The government, suspecting Patel had obtained citizenship by fraudulent means, instructed the consulate in Mumbai to place Patel’s application in limbo, where it laid for 8 years. The courts ruled that since no final decision had been made, this visa application was subject to judicial review. Since the application had been in suspended state for 8 years, the courts ordered the consulate to make a final decision on whether to grant the application within 30 days. At the same time, the courts affirmed that not even the Secretary of State had the power to overturn the visa decision once it had been made.
  6. Kleindienst v. Mandel: A seminal case in US immigration law. Mandel was a Belgian Marxist who had travelled to the US many times to speak. In 1969 he applied for a visa and was refused on grounds of his politics. He and the citizens who had invited him to speak sued, citing amongst other factors, the government’s denial of the citizens’ first amendment rights to freedom of speech. The Supreme Court eventually ruled that an infringement of first amendment rights could be grounds for judicial review; broadly, the consular decision on a visa application must have “a facially legitimate and bona fide reason”. Immigration lawyers regard this as a landmark case for immigrant rights, but in reality, the Supreme Court went on to say that allowing Mandel his visa on first amendment grounds risked destroying the doctrine of consular nonreviewability, since by definition virtually all immigration restrictions infringe on citizens’ first amendment rights. The court then held that Mandel was not entitled to judicial review of the consular decision.
  7. Udugampola v. Jacobs: Udugampola, a US citizen, applied for an immigrant visa for her non-citizen father. The government initially approved the petition, but at the consular interview, the officer there denied the visa because he suspected her father of terrorism. Udugampola and her mother (also a legal immigrant to the US) sued the government. The courts ruled that neither Udugampola’s rights as a daughter nor her mother’s rights as a wife were constitutionally-protected in this case, and they had no basis to challenge the consular decision.

A common thread runs through all these: no matter whose interest are at stake, there is virtually no right to question a consular decision, even if it is based on flimsy evidence or is egregiously wrong. Even if it splits up a marriage, the government has absolute totalitarian power. And these are just the cases which get as far as prominent courts in the US. How many thousands of families must there be, lives ruined by immigration law, around the world? How can any self-respecting person in this day and age reconcile the outright disdain immigration law has for our families and communities with modern ideals of liberty and human rights?

The photograph featured at the top of this post is of Mario Chavez embracing his wife Lizeth through the US-Mexico border fence at Playas de Tijuana. The original photograph is copyright David Maung, and was published by Human Rights Watch; a higher-resolution version is available at their website.

 

It Can’t All Be About (the) U.S.

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In February, National Public Radio aired a segment, part of its Planet Money series, in which it asked three immigration experts what sort of immigration system they would have if they “controlled the borders.” To NPR’s credit, one of the experts was the Cato Institute’s Alex Nowrasteh (a contributor to the Open Borders site). He proposed letting all immigrants in, except for suspected terrorists, criminals, and those with serious communicable diseases. He noted that this policy would benefit the economy and would mean that people wouldn’t have to put themselves at risk crossing the border.

Not surprisingly, the other two experts chosen by NPR did not propose open borders. One expert was the economist Giovanni Peri, a professor of economics at the University of California, Davis, who has researched the economic impact of immigration on the U.S. and found it to be mostly positive. His ideal immigration system would be one in which employers would bid for permits allowing them to employ individual foreign workers, including low-skilled workers. The other expert was Dean Baker, co-director of the Center for Economic and Policy Research (we’ve critiqued Baker before). He would admit immigrants with families in the U.S. and would provide visas to highly skilled individuals who, in the words of NPR’s host, “would benefit our economy the most.” Mr. Baker said he “would like to make sure that you had a lot of immigrants at the high end” but is “less concerned about farm workers.”

The proposals from Mr. Peri and Mr. Baker seem designed to maximally benefit the U.S. and apparently make the interests of immigrants who are excluded from their systems irrelevant. Formulating such an immigration policy probably makes sense to many Americans. After all, some may think, the government should look out first and foremost for the interests of its citizens. Joseph Carens of the University of Toronto articulates this view: “The power to admit or exclude aliens is inherent in sovereignty and essential for any political community. Every state has the legal and moral right to exercise that power in pursuit of its own national interest…”

Mr. Carens suggests, however, that this nationalist position doesn’t justify immigration restrictions. He explains that “When the stakes are high (e.g., legal proceedings) we normally create institutional rules to try to prevent people from being able to favor their friends and relatives. In other words, our notion of justice constrain the extent and ways in which we think it is acceptable for us to favor family members… even if we are morally entitled to favor compatriots in some ways, it is not self evident that we are entitled to favor them by excluding potential immigrants. Perhaps that form of preferential treatment goes too far.” Restricting immigration in effect would be nepotism writ large, an attempt to favor those identified as being more closely connected to us by giving them access to the U.S. labor market and denying access to those deemed less connected.

Bryan Caplan of George Mason University (who has also guest blogged for Open Borders) echoes Mr. Carens in his critique of the analogy between the nation and a family: “…almost everyone recognizes moral strictures against familial favoritism.  Almost everyone knows that ‘It would help my son’ is not a good reason to commit murder, break someone’s arm, or steal.  Indeed, almost everyone knows that ‘It would help my son’ is not a good reason for even petty offenses – like judging a Tae Kwon Do tournament unfairly because your son’s a contestant.” Despite this, Mr. Caplan points out that at the national level citizens tend to lose this sense of morality and use nationalism “as an acceptable excuse for horrific crimes against outgroups.” Nationalism leads to immoral treatment, such as interfering with the right to immigrate.  The logic of Mr. Carens and Mr. Caplan discredits nationalist arguments around the world supporting immigration restrictions, not just those in the American context.

Given Planet Money’s focus on economics, the underlying question posed to the three experts about their preferred immigration regime may really have been: “From a purely economic standpoint, which immigration policy do you believe would most benefit current American citizens?” (Even within these parameters, the proposals of Mr. Peri and Mr. Baker are questionable; open borders, as Mr. Nowrasteh suggests, may have the most beneficial economic impact on the U.S.) Actual policymaking, however, should not exclude moral concerns. NPR should air another segment asking guests, “What would be a moral immigration policy?” That would help Americans think more profoundly about immigration policy.

Exposing the fundamentally immoral bedrock of most immigration laws

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

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

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

Greenhouse found this morally troubling because:

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

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

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

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

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

The lawyer representing the US government:

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

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

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

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

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

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

Open borders: the right political and ethical choice for Republicans

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Following up on my earlier discussion of why I think the US Republican Party would be wise to consider a more liberal approach to immigration, I note that the Republican Party of Nevada recently became the first state Republican party to endorse “amnesty” for unauthorised immigrants. Remarkably, their statement places a pathway to US citizenship on equal footing with “free enterprise” and “state responsibilities and local control” as priorities for the party. The relevant portion (emphasis in original):

The GOP has increasingly found itself in positions that do not meet the demographic realities of the State’s electorate. These positions also conflict with our party’s historic commitment to civil rights. To that end, Republicans must become more inclusive, reflecting our desire to secure a better life for all Americans, and equally important, for our children.

The United States should secure its borders, enforce the laws that exist, and recognize the many groups that have worked hard to support their families and build a community. These groups include Hispanics and other immigrant minorities, young and old, black and white. We support a pathway to citizenship for undocumented immigrants that would require registering with the government; and, include the ability to communicate in English, performing military or other community service, and proof of financial responsibility as required by the USCIS. One hundred and fifty years ago, our country fought a bloody Civil War. That war affirmed we have only one class of citizens— American.

It’s remarkably aggressive to compare the struggle for immigrant rights to the struggle against slavery in the US, and for this I say good on the Nevada GOP. But let’s put aside the moral dimension for now: even from a purely cold-blooded standpoint, it’s not at all unreasonable to believe that a more open stance towards immigration would be beneficial to the GOP.

Let’s take the preferences of different ethnic communities, which I previously discussed. Asians look to be a probable swing group, with some subgroups that historically have leaned Republican (e.g. non-African Muslims). Hispanics definitely lean Democratic, but with some fairly large gyrations in degree (George W. Bush narrowed historically very sizeable gaps in Hispanic support to about 20 percentage points).

Now if more Hispanics were to enter the US electorate today, that would be a huge concern for Republican strategists. It would be difficult for them to endorse outright citizenship for a very broad, undifferentiated swathe of unauthorised immigrants today. But that isn’t the only option they have. Republicans could just as well do what the Nevada GOP is doing and say: Sure, these people who live and work alongside Americans have just as much a right to aspire to citizenship as anyone else. But first, they should make reasonable amends for their past; if they do not, they must wait a substantial amount of time before becoming eligible to apply for citizenship.

Applying a filter of this sort would minimise the immediate hit to Republicans’ “bottom line”, so to speak. Moreover, if they position themselves correctly, and can claim the mantle of being the ones who saved immigration reform, doing this is liable to swing some portion of the current Hispanic electorate — not to mention other immigrant communities and other Americans who support reform. If we are doing a simple cost-benefit analysis, there is some potential long-run cost to this “amnesty”, but there is also a decent upfront benefit, one that might make this trade-off worth taking. It’s basic business practice to discount long-run costs/benefits and focus more on the upfront numbers, but I have not seen anyone actually try to run this basic cost-benefit analysis.

And we’re not even done yet. The preferences of communities can swing substantially based on the turn of events. Some surveys suggest the Muslim electorate swung from 70% for George W. Bush in his first term to 4% for Mitt Romney in 2012. Muslims were solidly Republican — right until they weren’t. If the Republicans can stake an even more aggressive position on immigration reform than Democrats and steal their thunder, there’s clearly a non-zero chance this will redound in a Hispanic swing substantial enough to turn their community from solidly Democratic to swing-voting or even leaning-Republican.

Moreover, Republicans need not and should not stop at a path to citizenship for unauthorised immigrants. They have a chance to shore up their brand as the party of “free enterprise” and “state responsibilities and local control”: immigration lawyer Angelo Paparelli has laid out over a dozen piecemeal immigration reforms that are consistent with core Republican principles and also build their brand as a forward-thinking party on immigration and social issues.

And there’s one other piece that Paparelli doesn’t have: Republicans should fight to open the borders, not just to more Hispanic immigrants, but to immigrants of all creeds and colours. The Latin American is but one of many who would like to call the US home. Again, Republicans can beat the Democrats at their own game: it’s not fair to the millions of poor in the world who work hard and have the same dreams as Americans to keep them out. Opening the gates to primarily more Hispanic immigrants is wonderful, but it perpetuates discrimination against someone born in Londonderry, Lahore, or Lagos.

If they pull this reorientation off, Republicans will have been responsible for one of the greatest expansions of liberty in the history of the world. Arbitrary immigration controls keep people in chains, prevent them from authoring their own life stories. The millions of new Americans and their descendants who get the vote (if the Republican-backed reforms will permit it) will forever owe a debt of gratitude to the farsighted Republican leaders who cynically chose to open the borders, knowing this would one day redound to them at the polls. (I jest, but only slightly — a hardheaded cost-benefit analysis was the starting point for this post after all.)

This whole scenario I’ve laid out seems incredible, if not impossible. I doubt it will happen. But the odds of it happening are definitely greater now than they were on the 5th of November 2012. Yes, the rudimentary beginnings of a cost-benefit analysis which I’ve laid out do not present a slam dunk for immigration reform. But neither is it a slam-dunk that immigration reform would be politically costly to the Republican Party, today or even tomorrow, despite this being restrictionist conventional wisdom.

And beyond the cost-benefit analysis, there is always a moral dimension. We cannot ignore forever the damage that morally-compromised laws do to immigrants, whether they live in our midst, or live faraway yearning to come. The Republican Party recognised this in 1864, when it proclaimed in its election manifesto:

Resolved, That foreign immigration, which in the past has added so much to the wealth, development of resources and increase of power to the nation, the asylum of the oppressed of all nations, should be fostered and encouraged by a liberal and just policy.

The Nevada GOP harked back to this when it recalled the waging of the US Civil War to prove “we have only one class of citizens”. But they would do well too to remember the words of Abraham Lincoln on the eve of that war:

As a nation, we began by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and catholics.” When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be take pure, and without the base alloy of hypocracy [sic].

Abraham Lincoln dedicated his life to the proposition that all men are created equal — black or white, foreigner or native. Lincoln himself told us: he would rather emigrate to Russia than put up with a modern Republicanism declaring that foreigners deserve unequal and unjust treatment. The defeat Republicans suffered at the polls in 2012 offers them a chance to redeem themselves, to stand proud once more as the party of Lincoln. The question is, will they take it?