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.
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Footnotes
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
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.
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).
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).
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).
50 (a phrase that is legally more complicated than I can possibly relate here).
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).
