Tag Archives: United States

The Practice of Immigration Law as Manumission

I do not want to equate the evil of chattel slavery with the evil of immigration restrictions. They may or may not be equal in one person’s experience or another’s, but I am not out to make a claim one way or another. I want to avoid at all costs what Elizabeth Martinez terms an “oppression Olympics,”1 referring to the weighing of which group is more or less oppressed than another such that the comparison succeeds in turning oppressed people against each other, which is of course a win for the oppressor. All I want to do here is re-frame the moral context of immigration law practice by way of analogy to the practice of manumission law in centuries past.

I. Manumission Law and Immigration Law

During the centuries that chattel slavery persisted in the Americas, there existed also in many jurisdictions the law of “manumission,” or the emancipation of a person from status as a slave through legal means, such as by purchasing or contracting for their freedom from their owner, or having it granted to them by their owner’s will and testament, making them a “free person.”2 Sometimes this involved slave owners asking a tribunal to manumit the human beings they themselves owned,3 but in other contexts it involved enslaved people directly asking the court to allow themselves to be manumitted,4 sometimes with representation by counsel.5 It is this latter scenario of self-manumission through an advocate that we’re referring to here – where an advocate argued on behalf of an enslaved person for their freedom.

The practice of immigration law6 is the lawful application for enhanced liberty or rights for individuals without U.S. Citizenship, before and against a government agency designed to restrict their liberty and their right to have rights, as Hannah Arendt put it.7 The immigration law practitioner petitions a government officer or judge for their recognition of a human being’s right to move, work and survive. This is to say, the non-citizen, through their immigration lawyer, asks the government officer or judge for permission to be treated as a full human being; put even more simply, a non-citizens asks the government, through counsel, to recognize their humanity.

The same law that affords the non-citizen the ability to petition for this recognition and permission is the same law that endows that officer or judge with the unchallenged power to dismember families, crush freedom and sentence deportees to death. Just as the enslaved person asked for their freedom on the authority of their owner’s will or contract – the same owner with the power to end their family, their freedom or their life. But, without comparing the degree of dehumanization or the frequency of torture and murder visited upon human beings within either of these institutions, what other aspects of them appear comparable?

In both instances the law afforded a narrow route of escape (albeit with limited rights to the escapee) from the institution. In both instances a legal advocate, a lawyer, had to work within the laws of the time and make arguments based on those laws and the assumptions that undergird them – seeking relief from the same power that presumed the authority to destroy their client. In both instances, engaging in this kind of advocacy against the institution did not actually challenge the institution’s authority or legitimacy, but rather reinforced them.8 Certainly it failed/fails to challenge but reinforces the artifice of white supremacy. In both cases the advocacy nonetheless enhanced the liberty of individual people on a case-by-case basis

One author describes manumission this way: “Slaves used the law designed essentially to keep them as slaves to win their freedom, and free people of color used the law to maintain and often to fight vigorously to safeguard their liberty.”9 Replace “slaves” with “undocumented people” and the former part of this explanation could easily describe removal defense and bond hearings while the latter could just as easily describe applications for legal permanent residence or naturalization.

II. Moral Tension

Another way in which the practice of manumission is comparable to the practice of immigration law is that neither was/is devoid of moral ambiguity. In each case well-meaning people were working within an institution they may have fundamentally disagreed with or even hated. In doing so they obeyed the rules of that institution and called upon the authority of the slave owner’s ownership to manumit, and thus arguably kowtowed to its authority, thereby legitimizing and reinforcing it. In this sense they were to some degree complicit in the crimes of the institution itself. When we ask the government today to give a person relief from deportation or detention, we imply that we agree that the government has the authority to destroy that person’s life; inasmuch as we appeal to a power, we also consent to it.

But at the same time, there’s a strong moral argument that an attorney’s practice of manumission law to secure a client’s freedom was necessary for a simple reason: it saved lives. It did require a lawyer to play by the rules of slavery, but practically it also saved the lives of individual human beings, shielding them from torture, murder and rape – just as deportation defense often does today.10 Ultimately manumission won an individual person’s liberty (or at least reduced their level of bondage11), albeit without injuring or truly challenging the evil institution from which they were liberated. The same can be said of the practice of immigration law today – like manumission before it, it may be necessary to save lives.

Historian Jessica Millward, in her article discussing how enslaved women used manumission laws to gain their freedom, describes this moral tension:

Manumissions were granted on an individual basis and never jeopardized the balance of power, which positioned the laws of the slaveholding South as an omnipresent force in the lives of African Americans. After all, manumission laws were slaveholders’ laws, and any space left for a slave to gain freedom through them was a loophole, not an open door. However, the ability to negotiate one’s manumission and that of one’s kin became a very important vehicle of resistance for enslaved women.12

As immigration lawyers, especially in the world of public interest law, we take enormous emotional shelter in the perception that we are on the just side of a war between right and wrong, and with good reason – we are. But we do not enough acknowledge the moral tension Millward describes in the context of manumission, where that tension is more obvious: we are doing the right thing, yes, but in a context that is so wrong that any proximity to it at all puts us closer than we want to be to culpability. As such that proximity deserves our scrutiny and critical thoughtfulness.

So this comparison is not to say that a lawyer’s practice of manumission or immigration law was/is evil in and of themselves; rather manumission practice, like immigration practice, could be a necessary vehicle of resistance (to use Millward’s words) when and inasmuch as it becomes a necessary intervention to save lives and protect people from harm. This comparison prompts us to conclude that their practice does not by itself satisfy the moral responsibility of the practitioner. Such a practice is necessary, but insufficient. It was not enough for a lawyer to advocate for the manumission of individuals during a time when the terrorism of slavery thrived – rather the minimum level of moral responsibility required that they call for the abolition of slavery as an institution.

Thus, like legal manumitters before them, it is not enough for immigration lawyers to practice the law – we must be abolitionists. It is morally insufficient to fall somewhere in the middle or to fail to take that position. And it is in that sense too that these two areas of law are analogous – not in the depth of the cruelty of the institution that they were a part of – no oppression Olympics please – but in their failure of each in and of themselves to be morally adequate conduct on the part of the practitioner in each of their respective contexts.

For both the manumitter advocate and the immigration lawyer, it is a failure of their moral imagination to believe that their responsibility ends with their legal work. Our duty does not end with advocacy on behalf of someone’s life or liberty, but with calling for the abolition of the institution that threatens them in the first place. Our job may begin with filing a Notice of Appearance, but it ends only with speaking out in favor of abolishing the border.13

Footnotes

1 Martinez, Elizabeth. 1993. “Beyond Black/White: The Racisms of our Times.” Social Justice 20 (1/2): 22–34.
2See, e.g., Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001); Andrew Kull, Restitution in Favor of Former Slaves, Symposium: The Jurisprudence of Slavery Reparations, 84 B.U.L. Rev. 1277-78, 1280-81, 1286 (Dec. 2004); Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves nevertheless continued to enter into contracts for self-purchase during the antebellum period”).
3 A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1255 (Dec. 1993); Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001).
4 See Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves in Louisiana had the right to bring suits for their freedom in their individual capacities . . .”); A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1260-61 (Dec. 1993).
5 See Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 42, 133 (2015).
6 I don’t use this phrase here to refer to attorneys who work for Immigration and Customs Enforcement or Citizenship and Immigration Service – although they are practicing immigration law as well, inasmuch as a lawyer representing a slave state in opposition to an enslaved persons request for manumission could be said to have been practicing manumission law.
7 Hannah Arendt, The Origins of Totalitarianism, new edition 296 (1968).
8 This is probably not the case with federal impact litigators who might challenge an immigration law on constitutional grounds, for example, since they may be challenging the institution itself, just as, say, the 13th Amendment did to slavery, or Brown v. Board of Education did to slavery’s later incarnation, Jim Crow.
9 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans at xiii (Jan. 2003).
10 In truth, the lawyer defending the person from deportation does not “save” that person – but merely engages in a partnership in which the non-citizen saves themselves through that partnership, and the same can be said for any attorney who defended an enslaved person against a nineteenth century tribunal.
11 Manumission did not restore a former slave to full human being-status – they could still face violence and discrimination and in some jurisdiction could be re-enslaved to pay off their owners debts. Likewise, a non-citizen may win Legal Permanent Residence before an immigration court, but could still be deported if they commit a crime or engage in any number of other actions.
12 Jessica Millward, The Relics of Slavery: Interracial Sex and Manumission in the American South, Frontiers: A J. of Women Studies, Vol. 31, No. 3 (2010), pp. 22-30, at 26.
13 And when I say abolishing the border I mean abolishing the border.

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

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

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

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

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

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

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

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

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

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

The Scene of the Crime

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

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

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

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

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

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

Accomplice Crime in Texas

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

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

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

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

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

Related reading

Footnotes

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

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

High-skilled hacks: a (very) brief overview of H-1Bs (more to follow)

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

My primary purpose here is to provide information rather than push a viewpoint. Nonetheless, I do not claim to hide my perspective. Rather, the purpose here is to present information as seen from a particular viewpoint (something akin to historical revisionism). Later posts in this series may include more focused discussion of my viewpoint, as I delve deeper into the regulations.

In this respect, my writing here differs from the many Wikipedia pages related to the H-1B that I have created, where I strive to stick to facts and avoid revealing viewpoints. These pages include: Labor Condition Application, Form I-129, Premium Processing Service, H-1B-dependent employer, public access file, American Competitiveness and Workforce Improvement Act (ACWIA), American Competitiveness in the 21st Century Act, H-1B Visa Reform Act of 2004, and Employ American Workers Act. For full disclosure, I also paid for the creation of the pages on H-1A visa and H-1C visa.

The following topics related to the H-1B visa are covered in this post.

  • Steps to getting started in H-1B status. (more)
  • Relationship, similarity and differences between the H-1B and permanent immigration. (more)
  • Key stages in the legislative history of the H-1B. (more)
  • The H-1B annual cycle and cap. This is a very brief overview of the mechanics of the status. Workarounds, such as the use of Optional Practical Training and the use of other work visas as a temporary measure, are discussed. (more)
  • Comparing the stated purpose and real use of the H-1B program. Once again, this is a brief summary that will be elaborated on in future posts. (more)
  • How the H-1B compares with other options: L-1, TN-1, O-1, and H-2B (to name the most salient alternatives). (more)

The following are not covered in this post and will be the subject of future posts.

  • The role of H-1B1 and E-3, and their effects on the market of technology workers from Singapore, Chile, and Australia in the United States.
  • A deeper look at the different occupations, intended employment areas, and countries of origin for users of the H-1B program.
  • A full analysis of the educational credentialism in the H-1B system, contrasted with other temporary and permanent immigration categories. I discussed some of these points in an Open Borders Action Group post, that Bryan Capan reblogged on EconLog. But I intend to cover it in more depth.
  • A better overview of exactly how the H-1B lottery works. Basically, understanding what your chances are based on whether you have or don’t have a master’s degree.
  • The role of the H-4, the status for dependents of H-1B holders, and how the two H statuses interact.
  • Comparison with analogous statuses in other countries, i.e., with other generic temporary skilled work visa categories.
  • What the whole H-1B application process means for people who aspire to having a job (temporarily or permanently) in the United States, particularly people who are not from any of the treaty countries (Canada, Mexico, Australia, Singapore, and Chile). Note that the current post touches only briefly on the issue from the perspective of a job-seeker.
  • A detailed discussion of the Labor Condition Application and U.S. Department of Labor investigative authority. This will included discussion of H-1B-dependence, its current and past prevalence, and its implications for the mid-level tech workers who account for about 50% of H-1B use.
  • A full discussion of various criticisms leveled at the H-1B program, by people such as Norm Matloff, Michelle Malkin and John Miano in their book Sold Out, and labor unions and labor-advocacy think tanks such as the Economic Policy Institute (see for instance here). Either in the same post or in a different one, I will also look at the pro-H-1B rhetoric used by different groups ranging from immigration lawyers to liberal think tanks and advocacy centers to libertarian think tanks.

The list of things I don’t cover here also includes other stuff I haven’t yet even realized is important enough to be discussed! But the above list is already pretty daunting.

The H-1B: the most important work visa

One of the most important sources of high-skilled migration to the United States is the H-1B visa. The H-1B is significant in at least a few ways:

  • For many high-skilled workers who enter the United States for work, the H-1B is how they are able to first enter.
  • Even those who enter for work in other ways (such as the TN-visa, L-visa, or OPT on F student status) often transition to the H-1B when they get the opportunity.
  • While many who come to the US on H-1B status eventually leave, many others settle permanently in the United States. Some do so by applying for permanent residency through one of the EB visas (which has a long wait time, and the H-1B allows them to work as they wait for it to come through). Others find true love among US citizens and permanent residents, marry them, and transition to lawful permanent residency through the Immediate Relative or Family based quotas.
  • Those on the H-1B who do go back to their home countries often play a key role in facilitating technology transfer and outsourcing and the international spread of technology.

Later, we’ll talk more about why so many people want or need to switch from other temporary work statuses to the H-1B.

There are two other close cousins of the H-1B: the H-1B1 (for Singapore and Chile) and the E-3 (for Australia). We will not discuss these variants in the current post, but will review them later.

Steps to getting into H-1B status

The following is the sequence of steps for getting H-1B status.

  • First, the employer files a Labor Condition Application with the U. S. Department of Labor, showing that the worker to be hired will be paid the same wage (or a higher wage) compared to U.S. workers within the company doing the same job, as well as others in the geographic area. The LCA has other stipulations regarding working conditions, strikes and lockouts (most of which are irrelevant for most employers). Note that (with the exception of the case of H-1B-dependent employers or employers who have been found to be willful violators) the LCA does not need to assert that no qualified United States worker is available! UPDATE: David Bier has a blog post on the Congressional discussions around whether to impose the requirement, and the ultimate decision not to do so.
  • With an approved LCA and other supporting documentation, the employer files Form I-129 with the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Approval of this form gives the employee permission to start employment under the employer at or after the start date of employment, and until the end date of employment. The employee must be with the employer for the entire duration of H-1B: even a day of unemployment nullifies H-1B status. The Form I-129 can be filed at most six months in advance. For cap-subject applications, prior to considering a H-1B application, USCIS makes sure that it has space in its annual quota. Since the quotas start every fiscal year (October 1), most H-1B applications occur in the beginning of April and set a start date of October 1.
  • With an approved Form I-129, the employee can start work with the employer if present in the United States already (in other words, Form I-129 also allows for change of non-immigrant status; there is no need to file a separate Form I-539). However, if not present in the United States, the employee needs to obtain a H-1B visa from a consular officer at a United States consulate. Consulates are under the U.S. Department of State. After obtaining a visa, the person may enter the United States at most 10 days in advance of the start date of the job. At the port of entry (the airport for people flying in), the person receives a Form I-94 from the U.S. Customs and Border Protection Office of Field Operations officer (CBP is under the Department of Homeland Security).

H-1B and “permanent” immigration

There is a lot of confusion about the role played by the H-1B and its relation to Lawful Permanent Resident status (getting a Green Card). H-1B status is a dual-intent non-immigrant status. Let’s unpack that. Here, “non-immigrant” means that the status is a temporary status to be in the United States (in this case, for work) and does not provide any automatic path to permanent residency. The “dual-intent” part says that it is okay for a person on H-1B to also be trying to transition to a Lawful Permanent Resident (LPR) status.

There are two main routes to LPR status (aka “immigrant” status): Employment-based (EB) and family-based (this includes Immediate Relative (IR) and Family (F) statuses). The initial USCIS form for EB(-1,2,3) statuses (the analogue of Form I-129) is Form I-140 and that for F and IR statuses is Form I-130. (These are not the only routes; there are Diversity Immigrant Visas, refugees and various special immigrant categories, and the EB-5 category for investors and entrepreneurs; but let’s set all those aside since most of them aren’t very relevant to the sort of person who’s doing or considering a H-1B).

One key difference between LPR status and temporary statuses like H-1B is that, once LPR status is obtained, it is no longer necessary to maintain the connection (whether employment-based or family-based) that was the basis of getting the status.

In other words, once you have a green card, you can quit the job or divorce the spouse that helped you get the green card. LPR status can be revoked for various reasons (such as committing crimes or aggravated felonies, or being outside the United States for too long), but maintaining the original reason for acquiring the status is not required. LPR statuses also offer a path to citizenship: somebody who has been a LPR for five or more years can file Form N-400 for naturalization.

Another key difference between LPR status and temporary statuses is the complexity and time taken for the application process. There are actually two aspects to the time taken for this status, that operate in parallel (so the longer of these is the constraining factor). These are:

  • The processing time for applications: Processing times for Form I-140 applications can be quite long, varying from 5 months to a year. In addition, some EB categories require a separate process called PERM labor certification prior to filing Form I-140. PERM labor certification is similar to the LCA, but with much more onerous requirements, and can take several months to obtain. Essentially, the goal of PERM labor certification is to establish that the worker has truly unique skills and the company is unable to hire a qualified United States worker with those skills.
  • Independent of this processing time is the time taken for a visa number to be available. Permanent immigration is controlled by a complicated system of quotas introduced by the Immigration and Nationality Act of 1965, that controls the number of permanent immigration slots that are released every year by the preference category as well as the country of chargeability. The queues for these are managed by the Visa Reporting and Control Division and published in the Visa Bulletin. Particularly for large countries like India, China, and Mexico, these categories can be backlogged by over a decade. Note that the potentially indefinite backlogs for “permanent” migration are consistent with its meaning: whereas with temporary worker needs, it does not make sense to have the application queued for several years, this might make sense for a permanent worker or a family member.

The reason the total time taken is the maximum rather than the sum of these two wait times is that the priority date (that determines an application’s position in queue) is taken as the date the Form I-140 was received (and for applications with labor certification, the date the labor certification petition was received). (Note that the way the caps operate for EB status is different from the way they operate for H-1B: the H-1B quota is reset annually, and applied at the time Form I-129 is adjudicated, whereas the quota for EB status can extend indefinitely and therefore there is no upper limit on how far the backlog can grow).

In addition to the max of these two, there could be some processing time for the Form I-485 (Adjustment of Status application) if the employee is already in the United States in H-1B or another status, or to get an immigrant visa, if the employee is outside the United States. Generally, the processing for the Form I-485 or immigrant visa begins a little before the applicant’s priority date becomes current, so that the two finish in parallel.

The upshot of this is that getting an employee on an immigrant status is a process that can take somewhere between several months (if the employee happens to be from a country that doesn’t have huge backlogs) to decades (if the employee is from a country with huge backlogs). Regardless of how brilliant the employee is, therefore, this is not a very effective solution for most employers, who are operating at much shorter timescales with respect to their hiring needs. For this reason, even employers who are interested in sponsoring employees for a green card may initially hire them on a H-1B so that the employee can start working for them while the steps to transition to immigrant status are ongoing. This relationship has been implicitly acknowledged with the American Competitiveness in the 21st Century Act (AC21), where people with long-pending Form I-140 or Form I-485 applications can extend their H-1B while waiting for it to go through.

When the EB category and the current incarnation of H-1B were first introduced in 1990, the EB category started off without backlogs. Hence, those employers who sought workers on a more permanent basis went the EB route, and those who wanted temporary work went the H-1B route. As the EB category started developing backlogs, and demand for high-tech workers increased overall, the pressure on the H-1B status increased. Since it is extremely difficult to adjust the overall rate of permanent immigration (since that involves fundamental changes to the Immigration and Nationality Act), the EB category will likely continue to be severely limited, and the H-1B will continue to be the first step for many workers, including those who qualify for EB status.

Key pieces of legislation that have shaped the H-1B

H visas were originally introduced with the Immigration and Nationality Act of 1952, with a H-1 for skilled workers and a H-2 for unskilled workers. The Immigration Nursing Relief Act of 1989 (text) created a separate H-1A visa for nurses, and renamed the existing H-1 program to the H-1B program; however, the substantive structural changes to H-1B would occur with the Immigration Act of 1990 (described below). The H-1A would later be replaced by a H-1C visa, a status that was retired in 2009 and is no longer granted.

For more on the early history of the H-1 visa, prior to its splitting into the H-1A and H-1B, see the post A Legislative History of H-1B and Other Immigrant Work Visas by a blogger critical of the H-1B program.

Below are the key legislations affecting the H-1B:

  • Immigration Act of 1990 (IMMACT), passed by the 101st United States Congress and signed into law by President George H. W. Bush, introduced the basic rules of the H-1B: a three-year visa that could be extended another three years, an annual cap of 65,000, a Labor Condition Application with rules regarding prevailing wages, and a concept of Specialty Occupation. Surprisingly, every phrase of the preceding sentence continues to describe the H-1B regime today, even though, in practice, a number of hacks have led to far more H-1Bs effectively being available. But more on that later. Note that since this Act made it through the first stages of its legislative process in 1989, it is sometimes said that the H-1B was introduced in 1989, but its actual implementation (“going live”) happened only in 1990.
  • American Competitiveness and Workforce Improvement Act (ACWIA), passed by the 105th United States Congress and signed into law by President Bill Clinton on October 21, 1998, offered temporary reprieves from the caps, but otherwise was a victory for restrictionists and advocates of labor. Specifically, it introduced the concept of H-1B-dependence and imposed additional LCA attestation requirements (around displacement, secondary displacement, and recruitment and hiring) for H-1B-dependent employers and willful violators. With that said, there were discussions of imposing the requirement on all employers, but these were successfully defeated. For more, see Alex Nowrasteh’s post.
  • American Competitiveness in the 21st Century Act (AC21), passed by the 106th United States Congress and signed into law by President Bill Clinton on October 17, 2000, extended some temporary reprieves and introduced a number of hacks that effectively expanded H-1B availability, while offering some minor sops to the other side. These hacks will be discussed later in the piece.
  • H-1B Visa Reform Act of 2004, part of the Consolidated Appropriations Act, 2005. The main relevant provision here was to add 20,000 slots for people with graduate degrees every year. There were also some changes (in the direction of tightening, but also toward more standardization) to the process for the LCA.
  • The H-1B1 (for Singapore and Chile) and E-3 (for Australia) were created as a result of free trade agreements that happened between 2003 and 2005: Singapore–United States Free Trade Agreement (ratified 2003, effective January 1, 2004), Chile-United States Free Trade Agreement (ratified 2003, effective January 1, 2004), and Australia–United States Free Trade Agreement (ratified 2004, effective Janaury 1, 2005).

Since 2004, there does not appear to have been any new legislation regarding H-1Bs, with a few minor exceptions related to additional fees and attestations:

  • Employ American Workers Act (signed into law in February 2009 with a two-year sunset provision, not renewed): This basically treated any company that was a recipient of TARP and Federal Reserve Act Section 13 funds as a H-1B-dependent employer for the purposes of the LCA. These employers needed to make the additional attestations required. Once a company had paid back all the funds they were no longer subject to these requirements.
  • Public Law 111-230, that imposed an additional fee of $2,000 for H-1B petitions (Form I-129) between August 14, 2010 and September 30, 2014 (extended by Public Law 111-347 to September 30, 2015), in cases where employers had more than 50 H-1B workers and more than 50% of their workforce was H-1B workers. These filters were stricter than those for classifying an employer as H-1B-dependent. The fee has expired.
  • Public Law 114-113, that imposes an additional fee of $4,000 for H-1B petitions (Form I-129) filed between December 18, 2015 and September 30, 2025. This effectively doubled the Public Law 111-230 fees.

Loosely speaking, of the 1990-2015 H-1B regime, the latter half has been legislation-free. Changes have happened, but mostly at an administrative and executive level, with the United States Citizenship and Immigration Services (USCIS) issuing additional guidance on changing interpretations of existing provisions. This extreme stability is not indicative of anybody being satisfied with the status quo — there is general consensus within the Beltway that some liberalization in H-1Bs would be desirable. Rather, as I discussed in my introductory post, it’s a phenomenon of gridlock: high-skilled immigration is treated as a deal-sweetener that different sides want to tack on to their preferred bills to make them more palatable, but isn’t important enough or urgent enough for anybody to pass immediately.

The history of temporary migration of skilled workers prior to the H-1B is important to understand, and we’ll probably cover it in our origins of immigration restrictions series. However, for reasons of space and focus, we’ll restrict discussion here to the H-1B as it started in 1990.

The H-1B annual cycle, lottery, and workarounds

My overview here is not really intended as either a definitive description of law or an action guide. For a more definitive and legally accurate description, see the USCIS page about the H-1B cap season for Fiscal Year 2017. For something geared more to potential applicants, see the RedBus2US “All about H1B Visa Cap” guide.

There are two aspects of the H-1B that make it a fickle tool for employers, over and above the legal fees and administrative overhead involved.

First, the annual cycle. The H-1B cap is applied separately for each fiscal year. The cap applies only for the worker’s first H-1B at an institution that is not a nonprofit research institution (in other words, it doesn’t affect H-1Bs issued to professors and postdocs in academia). It also does not apply to workers transferring jobs, or extending beyond the first three years to another three years (or possibly more if the worker has a pending I-140 or I-485). It does apply for workers who leave after a H-1B is over and then return for a new H-1B.

The annual cap is set to 65,000 (of which 6,800 are set aside for the H-1B1, but unused H-1B1s are returned to the general pool the next year, so effectively the annual number of slots is pretty close). There are an additional 20,000 slots for people holding master’s degrees from accredited United States universities. That’s a total of 85,000. There are approximately 50,000 successful applications from nonprofit research institutions. A total of about 135,000 new H-1B Form I-129s are approved annually, 85,000 of them cap-subject.

The year for which the H-1B caps apply annually is the Fiscal Year (FY) and it starts October 1 of the preceding calendar year (for instance, FY 2017 starts October 1, 2016). Form I-129 petitions can be submitted at most six months in advance of the start date of employment. Thus, all cap-subject applications need to be made around April 1, with a start date of around October 1. The USCIS generally stops accepting applications after the first week of April. Note: While rereading, I realized that there have been many years, particularly those in the aftermath of the 2007–08 recession, when the quota has taken much longer than one week to be filled. However, it now appears to fairly consistently get exhausted in the first week. My guess is that the only thing that would make the quota extend out much further would be either a significant U.S. recession or other significant changes to the world economy. If you’re interested in data on what the cap was in different years and when it was reached, check out these two links on RedBus2US: H1B Visa Total Cap Stats from 1990 to 2017, Trend Plot until 2017 (information on the size of the cap and how it has varied) and H1B Visa Cap Reach Dates History 2000 to 2017 – Graph – USCIS Data (information on the date the cap was reached). The information in the links is all based on data available on the USCIS website but presented in an easier-to-digest format.

Of the 200,000 or so applications received, it runs two lotteries: one lottery picks 20,000 of the master’s degree applicants, and the second picks 65,000 from everybody in the pool who failed to make it to the first 20,000 (so master’s degree holders get effectively two shots, others get only one). [Slight note: USCIS conducts the lottery before adjudicating the petitions. So it actually gets slightly more petitions through the lottery than the annual cap. Essentially, it budgets how many to select in the lottery based on its estimated rejection rate. If it undershoots, it will announce that there are slots remaining, and accept more applications.]

There are some obvious problems with practical usability of this sort of system. An employer who realizes in December the need to hire a worker needs to wait until April to apply, and wait until October for the worker to start. Even worse, an employer who finds a worker to hire in June needs to wait till October of next year to have the worker actually start. And that’s ignoring the issue of the low chances in the lottery. For workers without master’s degrees from the United States, the lottery chances are less than 50% (more precise number-crunching in a later post, though naive estimates, such as those used in this San Francisco Chronicle piece, place the number at 25%). So in expectation the employer may have to wait till October of the year after next.

Admittedly, this isn’t as bad as the long wait times (both processing times and the queue wait times on account of visa number availability) for the EB category. However, it’s still not a very practical time horizon except for large companies that can afford to wait, or multinationals that have carefully built a business model to cope with the regulations. Multinationals (whether it’s high-tech companies like Google or mid-level companies like Infosys) that are already employing the person in another country and want to move the person to the US office can afford to wait: the person stays employed in the office abroad, and at the appropriate time, moves to the US. Note that multinationals that do this may also be able to use L visas in some cases, thereby avoiding the H-1B’s annual cycle. Small companies that are based only in the US, on the other hand, often find it harder to afford these time horizons.

One workaround is the use of other more temporary statuses to start employment and then transition to H-1B when one makes it through the lottery. One example I previously discussed was the use of Optional Practical Training. A just-graduated student can start working for an employer on OPT, and then transition to the H-1B status next year. The OPT is 12 months long, which is sometimes not enough to meet the H-1B’s annual cycle (for instance, for somebody who starts work in July) so the OPT has a cap gap extension for people with pending Form I-129 applications in cap-subject categories. There is also a 24-month STEM extension that can be used by a person with a STEM degree. With this STEM extension, plus the H-1B cap gap extension, it is possible to get three shots at the H-1B lottery while working using the OPT. For those with master’s or Ph.D. STEM degrees from United States universities, therefore, the combination of the STEM extension and the H-1B masters quota makes it quite likely that the person will be able to eventually secure the H-1B if the person gets an employer willing to sponsor him or her.

Other temporary and more restrictive visas people might use include the TN-1 (Canada), TN-2 (Mexico), and O-1 (all countries). These are discussed as full-fledged alternatives to the H-1B in a later section, but they are also useful as complements. The TN-1, in particular, is useful because it can be extended indefinitely in three-year increments, allowing a person to keep trying his or her chances at the H-1B lottery while continuing to work. An initial O-1 visa is granted for up to three years, also giving enough time to get a few shots at the H-1B lottery while working.

Note that the role OPT plays with relation to H-1B is similar to the role H-1B plays with respect to EB: as a potential temporary stop-gap while the other, slower status is still in process.

Interestingly, one of the ways that smaller companies end up hiring H-1B workers (in addition to the OPT route) is people who change jobs from big companies. Essentially, you start your H-1B at a big company, then subsequently move to a startup. The American Competitiveness in the 21st Century Act (AC21) exempts such cases from the H-1B cap, therefore avoiding both the lottery and waiting for the annual cycle (note, however, that the person does not get the full six years for the new H-1B but only whatever is still remaining of it). As it is, many people start out at a big company to make some money and get some experience before moving to a smaller company. For foreign workers, H-1B regulations offer yet another reason for this kind of trajectory.

The stated purpose, and real uses, of the H-1B

The stated goal of the H-1B is to temporarily employ foreigners when the supply of skilled workers in the United States falls short of employer needs. In other words, the H-1B is intended as a stop-gap measure to address temporary labor shortages for skilled workers. It is not intended to be a path to permanent migration (for that, there is the EB category, discussed earlier). It is also not meant to be restricted to cases of truly outstanding people (for whom, in addition to the EB-1 category, there is the O-1 category for temporary workers). It is also not intended as a means for technology transfer, i.e., the goal of the H-1B is not to train people for a few years in the United States so that they can return to their home country with increased productivity and better practices. Rather, it is meant to address cases where employers have a temporary need for additional workers and can’t find people in the United States fast enough, so they hire people from abroad briefly, and then once the supply of workers in the U.S. catches up, they replace the foreign workers with the now-appropriately-qualified U.S. workers. This stated goal of the H-1B is the justification for a fee on H-1B applications (of $750 or $1500 depending on the employer’s size) whose funds are used for improving science education and workforce training in the United States.

In the real world, employers don’t use the H-1B in that way. They do not “diligently search for a US worker and only reluctantly hire a foreigner.” Rather, the significant legal fees and loopholes around the H-1B lead to two broad kinds of use cases: multinationals that have built a business around arbitraging different strength profiles, income differences, and skillset differences between countries, as well as companies with enough deep need for specific skilled workers that they are willing to incur additional legal fees and the tyranny of the H-1B’s annual cycle to get a particular worker that they want.

Let’s examine these two use cases in a little more detail:

  • The most quantitatively significant (accounting for about half of H-1B use) is mid-level technology employees by large multinational technology/software firms to which other firms outsource their work. The Economic Policy Institute (a think tank that advocates the interests of labor, stereotypically construed) notes that the top ten users of the H-1B program, that account for half of H-1B use in the United States, all fit in this framework: Cognizant, Tata, Infosys, Wipro, Accenture, HCL America, Tech Mahindra SATYAM, IBM & IBM India, Larsen & Toubro, and Deloitte. Many of these have either their roots or significant operations in India, and that is a big part of how half of new H-1Bs are granted to people from India. Most of these workers don’t go on to transition to LPR status. Partly, this is because they don’t qualify for the higher bar set for EB status. Their short-term employment in the US office allows them to take back relevant technology and skills to their home countries, and, of course, to save money for their personal use. (For more information on the distribution of H-1B visas and approvals by country, industry, and employer, see the Wikipedia page section).
  • The other use case is high-skilled technology firms in sectors (programming, banking, quantitative finance) that need to hire workers. There are two main ways that these companies connect with the H-1B workers to fill these positions: some of the workers completed higher education in the United States and get on the job market at the end of their higher education. Others may be hired by the company at an office in another country and then transferred to the United States office (for instance, Google or Microsoft might hire a worker in Bangalore or Hyderabad, and when the worker later gets promoted or moved to a division in the company that is only at the company’s main headquarters in Mountain View or Redmond, sponsors a H-1B for the worker). The business model of the hiring companies is not built around the workers returning to their home countries; in fact, the hope is that the workers will be able to stay in the United States for as long as necessary. Many of these employees may later be sponsored for EB status if they are considered sufficiently valuable to the company. A good summary of this use case, in contrast with the preceding one, can be found on LinkedIn.

While the first use case has been decried (by the EPI as linked above, and by others) for the way technology transfer contributes to more offshoring of jobs, the second use case has been decried for creating more permanent competition in the market for skilled labor, leading to lower wages and reduced incentives for Americans to enter these sectors. With that said, not all critics of H-1B programs are critical of both kinds of use cases. Some people, like current U.S. Republican Presidential primary leader Donald Trump as well as Y Combinator co-founder Paul Graham, are critical of the first use case of the H-1B but supportive of the second. UPDATE: At the time I wrote this post, Trump hadn’t put out a formal set of immigration policies, so I was mostly going by remarks he had made. The most recent policies he has put out seem to suggest that he is opposed to both types of uses of the H-1B. For more, see David Bier’s post on the subject.

How does the H-1B compare with other options?

There are a number of alternatives to the H-1B, but none of them are good enough to render the H-1B unimportant. What the alternatives do help with is, in many cases, reducing the “pressure” on H-1B somewhat. So if you’re a H-1B applicant, you might want to thank the many other alternative visas for taking some of the competition out. A good place to check out the set of available work visas that make sense for each occupation is US Work Visas: Which One Shoud I Apply For? on VisaPro.

  • The L visas are visas available to multinationals that allow them to transfer people working for the same company but in another country.

    Advantages: Fewer restrictions on the type of occupation and educational qualifications, longer period (7 for the L-1A and 5 for the L-1B, as opposed to 3 + 3 for the H-1B.

    Disadvantages: Only available to multinational companies, which excludes many technology companies, particularly the smaller ones.

    Microsoft has been known to use L visas creatively: it first gets people to Canada on a work visa, whereby they can visit the Redmond office (in the United States, close to Seattle, Washington close to the Canadian border) with relative ease, and eventually transfers them over to the Redmond office.

    You can see more detailed comparisons here and here.

  • The TN-1 status for Canadians, and a similar but somewhat more restrictive TN-2 status for Mexicans, allows people from these countries to work in the US in renewable 3-year increments.

    Advantages: The TN-1 for Canadians is uncapped, and can in principle be renewed many many times.

    Disadvantages: The set of occupations that are eligible for TN-1 is narrower than for H-1B. For instance, Computer Systems Analysts are TN-eligible, but mere computer programmers aren’t. The application and renewal process for TN-1 is also less standardized, and even though multiple renewals are possible in principle, renewals are often rejected for unclear reasons.

    You can see more detailed comparisons here and here.

  • O (“Outstanding”) visas are available to “aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics.”

    Advantages: No caps, unlike the annual 65,000 visa cap for H-1B. Also, students and exchange visitors who came to the United States on J status can get an O-1 visa but cannot apply for the H or L visa without completing the 2-year foreign residence requirement.

    Disadvantages: More documentation and proof needed of extraordinary ability, with a particular focus on credentialism and formal academic accomplishment. This makes many people ineligible. Many star programmers, who might command several hundred thousand dollars in salary, may not be able to qualify for this visa.

    You can see more detailed comparisons here and here.

  • H-2B visas: The H-2B is a temporary visa for low-skilled work. As best as I can understand the law, there is no restriction on using the H-2B for high-skilled work. However, also as best as I can make out, it is quite rare to use the H-2B for any job where the H-1B could be used. An example of a case where there may be genuine ambiguity regarding whether the H-1B or H-2B is most appropriate is the case of a chef or cook. Specialty chefs may be able to get H-1Bs, but “food preparation worker” is a typical H-2B occupation.

    Advantages: No need to file a Labor Condition Application. Suitable in cases where wages are lower. No need to demonstrate educational qualifications. Lower filing fees, and savings can be significant if hiring large numbers of workers together. Also, instead of an annual cap, there is a twice-a-year cap.

    Disadvantages: Additional work is needed to obtain a H-2B Temporary Labor Certification, which in turn requires posting a job order publicly with a State Workforce Agency. The application process can be initiated at most 75 days in advance, making it harder to plan ahead. Premium Processing is currently disabled. The H-2B is made initially available for at most one year, and can be extended in increments of at most a year, to a maximum duration of three years. This is less than the 3 + 3 for the H-1B. Also, whereas the H-1B can be extended while employment-based applications for lawful permanent resident (either the Form I-140 or the Adjustment of Status) are pending, there is no such provision for H-2B.

For better or worse, the majority of high-skilled immigrant workers and companies sponsoring them use the H-1B despite the uncertainty of the application process, largely because it has a relatively large quota, relatively low burdens of proof, and accessibility to people who don’t have a lot of bureaucratically determined academic credentials as well as to companies that aren’t multinationals with deep pockets.

PS: After drafting an initial version of this post, I Googled around for lists of common misconceptions related to the H-1B, and came across this article. I was pleased to see that the draft I had covered about half the myths directly, and alluded to the relevant material that addresses the remaining half. I also made some edits to add in more explicit mention of the material related to the myths I didn’t explicitly cover.

Full disclosure

  • I am currently working in H-1B status in the United States. I started work on this post while I was still in student status.
  • See the note at the beginning of the article on Wikipedia pages I created while researching for this post.

How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Table of contents

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »

Do I have a right to be here?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related reading

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