Tag Archives: moral case

Humiliating and dehumanising: border controls

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I’ve often found it a bit odd how civil libertarians get so upset about the introduction of strict travel regulations post-9/11. The TSA is a favourite whipping boy of civil libertarians, across the political spectrum. Whether you lean Democratic, Republican, Green, or Libertarian, you have little love lost on the TSA. A number of potential explanations come to mind:

  1. Most post-9/11 intrusions on civil liberty are abstract, but everyone who flies gets exposed to this
  2. People get upset that an act as mundane as human movement is presumed to be a danger until proven otherwise
  3. The opacity and arbitrariness of transport regulations terrify and upset people

The true answer is likely to be some combination of these (plus other factors I’ve probably not even thought of). When reading security blogger Bruce Schneier’s summary of the harms of post-9/11 security, factor #3 especially stood out to me. This paragraph in particular stuck a chord:

…if you’re on a certain secret list, you cannot fly, and you enter a Kafkaesque world where you cannot face your accuser, protest your innocence, clear your name, or even get confirmation from the government that someone, somewhere, has judged you guilty. These police powers would be illegal anywhere but in an airport, and we are all harmed—individually and collectively—by their existence.

Schneier is wrong on that last point — these police powers apply to almost any non-citizen at almost any border control in the world. And we sit down and take for granted that this is right. Even if you have a visa, you are never guaranteed entry. In many countries, the US included, your entry is entirely at the discretion of the enforcement officer at the checkpoint, who can decide that, for whatever reason, you shouldn’t be allowed in.

It’s difficult I find to really explain what this feels like to someone who has never experienced it personally. My aunt, who has been a US citizen for two decades, still recounts vividly how happy she was to gain citizenship because she would no longer live in fear of her green card being taken away, or of being denied entry every time she re-entered the US after visiting family and friends abroad. At my company, stories abound of people who flew home to visit relatives and wound up being stuck there for months after they were denied re-entry to the US for various bureaucratic reasons. And figuring out this Kafkaesque maze of bureaucracy is more opaque than you might think: the official position of the US government is that the only way one can see one’s own immigration records on file with the government is to file a Freedom of Information Act request — even if one needs these files to fight a deportation proceeding.

Governments take liberties with foreigners’ rights in ways that they would never dream of doing to their own citizens. The concept of due process is at best tenuously applied to dealing with foreigners. One UK Minister recounts seeing whole carts of files being wheeled past him so that officials could truthfully tell Parliament he had “reviewed the files” of those requesting asylum. The way the governments of the world treat people who simply want to cross an arbitrary line drawn on the map is morally wrong.

None of this is to say we ought to abolish borders: open borders and no borders are not the same thing (that’s a debate we can have another time). Those opposed to the “security theatre” that has sprung up since 9/11 don’t demand that law enforcement vanish from the world’s airports. Essentially all of them support the maintenance of airport security checkpoints. Likewise, open borders is not about abolition of border controls: it is about properly according every person the dignity and respect which every human being deserves.

Humane immigration policies would provide prospective visitors and immigrants a clear process for obtaining visas, and grant visas as of right except in unusual cases (such as those with evidence of criminal history or the contagiously ill). All those with visas would be guaranteed entry, again, except in extraordinary cases. Those facing immigration proceedings would be assured access to their files, and would be assured that their case gets the attentive review demanded by due process. These things might sound elementary, but they are near-wholly missing from the immigration process today.

If civil libertarians protest restrictions on domestic transportation, one wonders why so many are silent about the evils of deportation or the arbitrariness of visa policy. The same problems that compel these activists to decry opaque and arbitrary government coercion apply even more in spades to foreigners crossing the border. Here, I think the first reason I suggested for civil libertarians’ concern is the predominant one: the problems of immigrants and other foreigners are simply too abstract for most civil libertarians to bother. That’s literally a crying shame — if libertarians think it’s an unimaginable humiliation to deal with the TSA for a few hours every so often in order to travel, they ought imagine having to deal with an even worse bureaucracy every so often in order to hold down your job and live in your home.

The photograph featured at the top of this post is of a Customs and Border Patrol agent conducting a patdown of a Mexican girl being detained. Courtesy of the US government.

Martin Luther King Jr and Open Borders

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Since I believe one of the best strategies for the opening of the world’s borders is to cast it as a civil rights issue, I thought it would be a good idea to go back to some of the classical rhetorical pieces of the American Civil Rights Movement and read them in the light of free migration. There is one readily apparent similarity between racial segregation and immigration restrictions. Racial segregation limits the mobility of certain persons on the morally arbitrary basis of the color of their skin, and this is done regardless of whether people on the “other side” of the segregation are willing to interact peacefully. A closed border restricts mobility and voluntary, peaceful interaction on the morally arbitrary basis of which side of the border a person happened to be born on.

The work and rhetoric of Martin Luther King Jr seems like the obvious place to begin. In April 1963, King organized marches and sit-ins of public spaces in Birmingham, Alabama, intentionally violating the segregation laws of the time that proscribed blacks from sharing certain public and private spaces with whites. King was arrested and jailed, and from his cell he wrote what became known as his Letter from a Birmingham Jail. In the letter King responds to critics who have urged him to pursue his goals of racial equality with patience and through legal channels, rather than violating the laws of the land. There is already a parallel here to the demands of immigration restrictionists that aspiring migrants “wait in line” despite the fact that there is no real “line” for many migrants.

King begins his letter defending himself against charges of being an “outside agitator” stirring up trouble in a place where he isn’t welcome. The following doesn’t really relate to open borders in an obvious way, but it’s a beautiful statement of the kind of cosmopolitanism that underpins the call to open borders.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

He moves on to defend the timing of his nonviolent activism and his decision to act directly rather than wait for political negotiations to bear fruit.

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

The connection I’d like to draw here is that aspiring migrants who are scared or otherwise hesitant to migrate through unofficial channels have no political voice with which to negotiate for their rights to enter the land of their choosing. Migrants who are willing to brave the move without legal authorization of the host country gain no political voice by doing so, but by acting directly, seizing their rights in spite of the law, they raise the probability of reform just by virtue of their presence. Without the legal tension created by the presence of illegal immigrants, there would likely never be any movement toward opening borders, regardless of how powerful the arguments for open borders might be. Such arguments would be hopelessly academic.

My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

For years now we have heard the words “Wait in line!” It rings in the ear of every migrant with piercing familiarity. This “Wait in line” has almost always meant “Never.”

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

One of the most powerful paragraphs in the letter. When I read this I thought of the environment of uncertainty in which immigrants in the US live, especially in places like Joe Arpaio’s Arizona, where immigrants and suspected immigrants have suffered popularly lauded degradations like forced marches in pink underwear, meals of moldy bread and rotten fruit, and childbirth given in shackles. While in the rest of America, undocumented immigrants live constantly at tiptoe stance, lest some traffic violation result in their deportation following indefinite detention in a jail cell. And this is all for the equivalent of a cup of coffee at the lunch counter: the right to live and work peacefully among those born within the border.

Meanwhile millions of our brothers and sisters in the undeveloped world smother in an airtight cage of poverty in the midst of the affluent societies of the developed world, their tongues twisted and speech stammering, explaining to their children why they can’t move to the places where work is plentiful, water is clean, and wages are high.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.

The last line speaks to one of the less savory arguments against open borders: that the global poor suffer their lots because they are less intelligent or lack the work ethic of the citizens of the rich world or some other failing. After more discussion of the differences between just and unjust laws, King sets up one of his chief foils: the white moderate.

[I] must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

It isn’t the racists or the committed nativists and nationalists who are the biggest roadblocks in the way of open borders. We will never win them over and it’s barely worth the effort of trying beyond countering their arguments for the benefit of observers. The great roadblock consists of basically sympathetic people who are nonetheless wary of the apparent radicalism of open borders; or people who simply do not realize the scale of humanitarian benefits on the table; or those who have no problem with immigrants personally, but assume that immigration must be zero-sum, with jobs gained by foreigners equaling jobs lost to natives.

The point of this post is not to twist Dr King’s eloquence to favor open borders. I have no idea if he believed in open borders or if he gave the matter much thought either way. The point is to take the words of this celebrated moral leader and use them to show how the civil rights for which he struggled parallel the rights of international immigration. At root, these rights are expressions of the universal moral equality of human beings. King’s sphere of concern certainly extended beyond African-Americans and far beyond America’s national borders. In a speech against US involvement in the Vietnam War, he made this call to cosmopolitan compassion:

This I believe to be the privilege and the burden of all of us who deem ourselves bound by allegiances and loyalties which are broader and deeper than nationalism and which go beyond our nation’s self-defined goals and positions. We are called to speak for the weak, for the voiceless, for the victims of our nation and for those it calls “enemy,” for no document from human hands can make these humans any less our brothers.

 

A Biblical Frame for Immigration Liberalization

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This is a repost from Paul’s blog Quitting Providence. The original post is here.

I was reading this Atlantic write-up of the excellent website Open Borders: The Case and I was surprised when the article concluded that what was really needed was Mark Zuckerberg to ride in to the rescue. Zuckerberg has started deploying resources to make it easier for skilled workers to immigrate to America, but this is small potatoes compared to what he could be doing:

Lobbying his unparalleled audience, the largest online community the world has ever known, to create an army of open borders supporters–that is the kind of connect-the-world change that Zuckerberg has already created with Facebook. Perhaps not this year, or even five years down the line, but Zuckerberg might eventually use his clout to start a global debate about the borders that keep Marvin from the marketplace. The lure of trillions of dollars for all, the potential elimination of world poverty, and a solid moral footing preached by Naik and Clemens probably won’t convince a majority without backing from major business leaders.

Don’t get me wrong. I am in favor of fabulously rich individuals devoting their wealth to advance worthy causes, but my awake-at-4AM mind jumped to “Why doesn’t the Catholic Church devote (a lot) more energy to pushing for liberal migration policies around the world?”
The Catholic Church, as a large, well-funded, and international institution with a vested interest in removing barriers to movement seems particularly well placed to press for open borders in an effective way. Unlike most things I would like the Catholic Church to do (like accept women’s reproductive rights, contraception, and some facts of human sexual diversity), this would not require the Church to radically rethink any theology or rewrite any catechisms. The Church already acknowledges the human right of migration and has some powerful rhetoric it can deploy in its favor. The following was taken from the website of the US Conference of Catholic Bishops (it was one of the first pages to come up when I asked the Internet what Catholics think of immigration):

Both the Old and New Testaments tell compelling stories of refugees forced to flee because of oppression. Exodus tells the story of the Chosen People, Israel, who were victims of bitter slavery in Egypt. They were utterly helpless by themselves, but with God’s powerful intervention they were able to escape and take refuge in the desert. For forty years they lived as wanderers with no homeland of their own. Finally, God fulfilled his ancient promise and settled them on the land that they could finally call home.

The Israelites’ experience of living as homeless aliens was so painful and frightening that God ordered his people for all time to have special care for the alien: “You shall treat the alien who resides with you no differently than the natives born among you; have the same love for him as for yourself; for you too were once aliens in the land of Egypt” (Lv 19:33-34).

The New Testament begins with Matthew’s story of Joseph and Mary’s escape to Egypt with their newborn son, Jesus, because the paranoid and jealous King Herod wanted to kill the infant. Our Savior himself lived as a refugee because his own land was not safe.

Jesus reiterates the Old Testament command to love and care for the stranger, a criterion by which we shall be judged: “For I was hungry and you gave me food, I was thirsty and you gave me drink, a stranger and you welcomed me” (Mt 25:35).

The Apostle Paul asserts the absolute equality of all people before God: “There is neither Jew nor Greek . . . for you are all one in Christ Jesus” (Gal 3:28). In Christ, the human race is one before God, equal in dignity and rights.

This is powerful stuff, and it made me think how different this language is from the usual rhetorical framework for the immigration debate. In the US at least, the focus is always on economics, with the burden of proof lying on the immigration advocates to show that there are huge economic gains to be had and high school drop-outs won’t be hurt too badly, and of course that migrants aren’t terrorists by nature. These are all silly arguments, and Catholic thinkers somehow manage to cut to the moral heart of the matter, powerfully asserting what most of us seem too embarrassed to declare outright: All human beings are morally equal. We are all worthy of the same ethical consideration. And if we can do something to help a fellow human being in need, that is, all else equal, a fine thing. We shouldwant to help even if we decide for some practical reasons that we can’t. Wanting to help is the starting point.Getting bogged down in technical debates about whether and exactly how much immigration benefits natives risks an ethical blunder, ceding the terms of the debate to restrictionists who will focus on economic minutiae that would be absurd in other contexts. (If a new invention were predicted to perhaps cause a 1% decrease in the wages of 6% of the population while everyone else benefited from the productivity gains, no one would blink). Of course we all want pareto-optimal policy changes, where absolutely everyone benefits by the departure from the status quo. Yet this happy congruence is clearly not always either possible or even relevant.The granddaddy example of this is slavery. In the early nineteenth century, the debate over abolition was colored by the fact that entire economies were built on the peculiar institution. If slaves were freed, a lot of plantation owners would suffer severe economic setbacks. Abolition of slavery, possibly the greatest moral victory the world has ever seen, did not happen because slave owners were persuaded they would be made better off by the deal. Abolition was achieved because the abolitionists persuaded enough free people of the moral truth that slaves are human beings and are therefore should be accorded basic human rights.

The civil rights victories over the Jim Crow regime were likewise not achieved by sophisticated economic arguments about how integration and human capital development among blacks would ultimately benefit even white supremacists. No, it was Martin Luther King Jr and other Civil Rights leaders appealing to the sense of fairness among the empowered.

Women did not win their suffrage and the rights to work and own property by convincing the contemporary enfranchized that men would stand to gain materially from women’s empowerment. No, feminists persuaded enough men in power that the radical notion that women are people was simply true. The injustice of enforcing power structures based on amoral accidents of birth was laid bare.

Expanding empathy played a role in each case above, getting the privileged parts of society to see that, but for a roll of the dice, they could have been born with a different color of skin, or a different gender, or in chains, or on the wrong side of a border. Even a morally perfect being or a divinely chosen people could find themselves with the short ends of these sorts of sticks.

At its most basic articulation, the policy of open borders asserts the individual’s presumptive human right to move freely about the world, and live where she wishes to live. The status quo global policy of constraining an individual to live where she was born, for the morally arbitrary fact that she just happened to be born there, is a transparently unjust institution. The only relevant economics is that this injustice is magnified by the poverty it inflicts on hundreds of millions of people.

Rolf Dobelli on Citizenism

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I am currently reading The Art of Thinking Clearly by Rolf Dobelli, which gives a summary of the many cognitive errors that human beings are prone to make, errors that inhibit our ability to think clearly and logically. The book also gives advice on how best to overcome some of these biases. One chapter in the book struck me as being relevant to the debate on the moral relevance of countries and the ideas around citizenism, a debate to which my co-bloggers Sebastian Nickel and Nathan Smith have recently made contributions (see here and here). The chapter is called “Why You Identify With Your Football Team: In-Group Out-Group Bias” and it appears as Chapter 79 in the book. Below I reproduce, with the author’s permission, the entire chapter (I have added hyperlinks):

When I was a child, a typical wintry Sunday looked like this: my family sat in front of the TV watching a ski race. My parents cheered for the Swiss skiers and wanted me to do the same. I didn’t understand the fuss. First, why zoom down a mountain on two planks? It makes as little sense as hopping up the mountain on one leg, while juggling three balls and stopping every 100 feet to hurl a log as far as possible. Second, how can one-hundredth of a second count as a difference? Common sense would say that if people are that close together, they are equally good skiers. Third, why should I identify with the Swiss skiers? Was I related to any one of them? I didn’t think so. I didn’t even know what they thought or read, and if I lived a few feet over the Swiss border, I would probably (have to) cheer for another team altogether.

This brings us to the question: does identifying with a group — a sports team, an ethnicity, a company, a state — represent flawed thinking?

Over thousands of years, evolution has shaped every behavioural pattern, including attraction to certain groups. In times past, group membership was vital. Fending for yourself was close to impossible. As people began to form alliances, all had to follow suit. Individuals stood no chance against collectives. Whoever rejected membership or got expelled forfeited their place not only in the group, but also in the gene pool.  No wonder we are such social animals — our ancestors were, too.

Psychologists have investigated different group effects. These can be neatly categorised under the term in-group-out-group bias. First, groups often form based on minor, even trivial, criteria. With sports affiliations, a random birthplace suffices, and in business it is where you work. To test this, the British psychologist Henri Tajfel* split strangers into groups, tossing a coin to choose who went to which group. He told the members of one group it was because they all liked a particular type of art. The results were impressive: although A) they were strangers, B) they were allocated to a group at random and C) they were far from art connoisseurs, the group members found each other more agreeable than members of other groups. Second, you perceive people outside your own group to be more similar than they actually are. This is called the out-group homogeneity bias. Stereotypes and prejudices stem from it. Have you ever noticed that, in science-fiction movies, only the humans have different cultures and the aliens do not? Third, since groups often form on the basis of common values, group members receive a disproportionate amount of support for their own views. This distortion is dangerous, especially in business: it leads to the infamous organisational blindness.

Family members helping one another out is understandable. If you share half your genes with your siblings, you are naturally interested in their well-being. But there is such a thing as ‘pseudokinship‘, which evokes the same emotions without blood relationship. Such feelings can lead to the most senseless cognitive error of all: laying down your life for a random group — also known as going to war. It is no coincidence that ‘motherland’ suggests kinship. And it’s not by chance that the goal of any military training is to forge soldiers together as ‘brothers’.

In conclusion: prejudice and aversion are biological responses to anything foreign. Identifying with a group has been a survival strategy for hundreds of thousands of years. Not any longer; identifying with a group distorts your view of the facts. Should you ever be sent to war, and don’t agree with its goals, desert.

*Henri Tajfel’s classic paper on the behaviour of groups is Experiments in Intergroup Discrimination.

The Simplicity and Fairness of Open Borders

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“It is not up to the British state to decide where people should or should not live, or anyone else but migrants and refugees themselves. We support the unfettered right of entry of the feckless, the unemployable and the uncultured.” This quote comes from the 2003 Manifesto of the No One Is Illegal (United Kingdom) organization and is a favorite of mine in the literature supporting open borders.  These sentences appear in a paragraph opposing having to justify the immigration of people based on their contributions to the receiving country, but their appeal is that they communicate that borders should be open to everybody, with rare exceptions such as when an individual immigrant is determined to be likely to commit terrorism in the receiving country.  A policy which allows everybody to enter, stay, and work in a second country regardless of their occupational skills, their family or employment connections in the receiving country, their country of origin, or other factors, is both simple and fair.

The opposite exists under the current restrictionist immigration policy of the U.S., which is anything but simple or fair.  Kevin Johnson of the University of California, Davis notes its complexity: “By many accounts, only the much-maligned Internal Revenue Code rivals the intricate, lengthy, and frequently obtuse Immigration & Nationality Act of 1952, which is the centerpiece of modern American immigration law…  The areas of complexity of the U.S. immigration laws are too numerous to review here in detail. The labor certification process for certain employment visas is one of those areas. The myriad of exclusions, criminal removal provisions (and removal grounds generally), judicial review provisions, and many other rules also are incredibly complex, cumbersome, ambiguous, and obtuse. As a result of their complexity and ambiguity, the U.S immigration laws create much work for immigration attorneys…” (The complex laws also keep government lawyers, officials, and judges busy.  There are over two hundred immigration judges, who are employed by the Department of Justice and not part of the judiciary, applying the law to cases.  Federal judges all the way up to the Supreme Court also rule on matters of immigration law.)

Consider the intricacies of the immigration laws concerning marriage, a flashpoint in the current debate over the immigration bill proposed in the Senate.  U.S. citizens and permanent residents can sponsor foreign born spouses to become permanent residents.  But what about same sex couples?  Current law does not allow this, and efforts to change the law to include the sponsorship of immigrants who have a same sex citizen or permanent resident partner face significant opposition in the Senate.  It is also not necessarily a simple legal path for heterosexual spouses, especially if there have been prior violations of immigration laws. Even without prior violations, what about situations in which married couples are separated? (Answer: it depends on the type of separation.)  Another aspect is that the government tries to determine whether a marriage is based on love or is really only a means of gaining legal status for one of the spouses.  In New York, a unit of 22 immigration officers is devoted to examining marriages, based on which immigration applications are filed, for fraud.

Consider the complexity of laws concerning asylum.  To obtain asylum, “an individual must prove that he is unable or unwilling to go back to his home country ‘because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion.’” Legal decisions distinguish between prosecution, when the individual is subjected to “fairly administered laws” that are applied to all citizens of that country, and persecution.  In one case an Iranian national sought political asylum for, among other things, distributing movies and concert videos made in the Western Hemisphere. His request for asylum was denied, even though he faced a two-year prison sentence and 19 lashes under Islamic law if he returned to Iran. A federal court of appeals held that, standing alone, asylum seeker’s prosecution for distributing movies and videos was not persecution, but prosecution “for an act deemed criminal in Iranian society, which is made applicable to all people in that country.”  Also, how persecution is defined determines case outcomes.  “Generally, harassment and discrimination will not constitute persecution. Persecution is regarded as an extreme concept that differs from general discrimination against minority groups.” In a 2011 opinion by the a federal court of appeals, Richard Posner, one of the judges, identified “three forms of oppressive behavior toward a group despised by the government or by powerful groups that the government can’t or won’t control. The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.  Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had Lions furious at Naumov’s being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment… Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity…” Additionally, sometimes how the five grounds on which persecution can be based (race, religion, etc.) are applied to asylum cases determines how they are decided.

The issue of fairness arises for almost every aspect of the American restrictionist system.  For asylum cases, problems of fairness have abounded, and historically politics appears to have intruded on decisions.  During the Cold War, asylum seekers from the Soviet Union were favored over those from non-Communist countries like  El Salvador, Haiti, and Guatemala, according to Bill Frelick and Court Robinson (International Journal of Refugee Law, Vol. 2, 1990). The U.S. has had a much more restrictive policy towards Haitians seeking asylum compared to Cubans.  Furthermore, Stephen Legomsky notes that research “has brought home the extraordinary extent to which the outcome of an asylum claim hinges on the particular adjudicators who are assigned the case.”

Beyond asylum cases, here are a few examples.  There is the unfairness of the administration’s Deferred Action for Childhood Arrivals (DACA). There is the fact that lower skilled workers are allotted very few permanent residence visas compared to more highly skilled individuals.  Same sex spouses are excluded from sponsoring a spouse for permanent residence.

At the same time, complete fairness would not be achieved even if same sex couples were allowed to sponsor a spouse, if there were equal numbers of visas for unskilled workers as for skilled  workers, if the deferred action program protected more people from deportation, or if other modifications were made to the restrictionist system.  Some people would still be barred from immigrating.  As the No One Is Illegal Manifesto observes:  “…what about the single gay person, the celibate, the lonely, those of no sexual orientation or the promiscuous of any sexual orientation? Including gay couples within immigration law and its spurious ‘rights’ means that all these other people are by definition excluded… The way forward is to fight for the rights of all gay women and men along with everyone else to be able to come and remain irrespective of personal circumstances or relationships. The only equal opportunities immigration controls are no immigration controls.”

So aside from improving the lives of massive numbers of people and being morally preferable to having immigration restrictions, an open borders policy offers the advantages of simplicity and fairness.  Resources currently devoted to navigating complex immigration laws or attempting to make the laws fairer could be devoted to more productive uses under an open borders policy.