Tag Archives: United States

US immigration law creates hundreds of mini-dictators, empowered to enforce racist policy without question

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Donald Dobkin is a Canadian-American immigration lawyer who, a few years back, authored a Georgetown Immigration Law Journal article titled Challenging the Doctrine of Consular Nonreviewability in Immigration Cases. The whole article is worth reading, but the short story is:

  • US consular officers are entitled to deny you a non-immigrant visa if you cannot prove to them you won’t immigrate to the US
  • Because this is considered a question of fact, under US law, this decision cannot be questioned or overturned, not even by the Secretary of State or the President
  • Courts have held that under very limited circumstances, they can review non-factual issues that affected the visa application outcome
  • However, the end result is that for the vast majority of people refused a non-immigrant visa to the US, there is no appeal mechanism and no check on US consular officers’ power to disrupt or destroy foreigners’ lives

One interesting thing I learned is that the doctrine of consular nonreviewability (sometimes mockingly called consular absolutism; John Lennon supposedly once referred to US consular officers as “absolute monarchs”) has its roots in the 1889 case Chac Chan Ping v. United States (often simply called the Chinese Exclusion Case). This is the case which first held that the government has the right to do whatever it likes to foreigners trying to enter the US, for whatever reason. Consequent immigration law doctrine in the US has built on the foundation of the Chinese Exclusion Case, especially in the area of consular nonreviewability. As Dobkin quotes one scholar saying:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

(For non-Americans, Dred Scott and Plessy v. Ferguson are two famous US Supreme Court cases which respectively held that black people have no rights and that racial segregation is constitutional.)

Immigration law’s roots in racism go deep. Beyond the US, virtually every modern Western country rooted in the common law tradition originally adopted immigration controls in order to exclude foreigners from the wrong racial backgrounds. See for instance the UK closing its borders to Commonwealth citizens because they received too many black and Asian immigrants, Australia adopting a “White Australia” legal regime to keep out Asian immigrants, or Canada pursuing immigration controls in the 19th century to restrict Chinese immigration.

And the best traditions of immigration law continue today. In Olsen v. Albright, former US consular officer Robert Olsen sued the State Department for wrongful dismissal after he refused to enforce a visa policy that discriminated against people who “look poor” or were born into the wrong race.  Given how well-documented the racist nature of State’s visa policy was, the judge had no choice but to agree with Olsen — but given the doctrine of consular nonreviewability, he had no power to overturn the denial of visas to anyone who, as one visa refusal documented, “Looks + talks poor.”

Dobkin notes that in many European countries, including Germany, judicial review of visa decisions is enshrined in law. The catastrophic effects which US judges and consular officers fear from permitting judicial review have not materialised. Dobkin suggests that this is because:

  1. Pursuing judicial review is costly, so applicants will only pursue it if they strongly believe the consular officer was wrong
  2. More importantly, the risk of facing judicial review forces consular officers to get visa decisions right

One interesting point Dobkin highlights is that unfortunately for foreigners, immigration law cases tend to be decided precisely when anti-immigrant sentiment runs high: you get a lot more immigration lawsuits when immigration law enforcement is at its peak. This bias means that immigration legal precedents favourable to immigrants are relatively rare, and likely accounts for the long survival of the Chinese Exclusion Case.

There are of course rare instances where the courts do decide to review a consular officer’s decision, and Dobkin cites quite a few. These are worth a separate post, which I will publish in due time. But they do not materially change the picture: US immigration policy enthrones consular officers as dictators, capable of punishing people for reasons as trivial as wearing the wrong coat or being from the wrong ethnic origin. Not even the President or Supreme Court can overturn their decision. And there is no real reason for this, except for the US immigration legal system’s peculiar attachment to consular nonreviewability, a doctrine rooted in racism, and one that plenty of other developed countries are fine doing without.

The painting featured at the top of this post depicts the deportation of Acadians from Canada in 1755.

Stan Tsirulnikov on progressive immigration restrictionism

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Writing at The Umlaut, Stan Tsirulnikov offers an interesting take on progressive immigration restrictionism. Tsirulnikov dubs it “immigration protectionism” and critiques it as being against the spirit of the bold changes that progressivism should be about. The targets for Tsirulnikov’s criticism include Dean Baker, head of the progressive Center for Economic and Policy Research, for espousing strict limits on high-skilled immigration and apparently zero (?) low-skilled immigration. Another target is a piece by Josh Harkinson in Mother Jones titled How H-1B Visas Are Screwing Tech Workers. Tsirulnikov concludes:

Harkinson isn’t wrong to be concerned about the plight of struggling Americans. But as Bryan Caplan has pointed out in the past, it is morally questionable to put more emphasis on the “American” rather than the “struggling” part. Nevertheless, many progressives want to use immigration restrictions as a round-about way of helping vulnerable American workers. They know that the American public will not support direct subsidies to individual workers harmed by immigration, so they use restrictions as a cynical half-measure to prevent the supposed harm from happening at all. Baker’s proposal has the restrictions fall disproportionally on unskilled and poor foreigners, while Harkinson wants to make hiring high-skilled foreigners more difficult. But both view immigration as a potentially hostile force that needs to be managed for the exclusive benefit of Americans.

Overall, I tend to agree with Tsirulnikov. I considered progressive immigration restrictionism and its territorialist underpinnings in a blog post a little over two months ago (see also a ollow-up by Arnold Kling). I’ve also tried to address specific concerns raised by employees of the Economic Policy Institute (referenced by Harkinson’s Mother Jones piece) in the following blog posts: guest worker programs and worker abuses and Eisenbrey argues against increasing US visas for high-skilled work. Alex Nowrasteh offered a more detailed and forceful critique of Eisenbrey here.

Open borders: the right political and ethical choice for Republicans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

US Republicans should not give up on immigrants

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Bryan Caplan at EconLog recently pondered why it is that Asians in the US lean Democratic. I suggested in the comments of Bryan’s post that his view — that Asians don’t feel Republicans respect them — seems right, at least to me. I met Bryan for lunch recently, where the topic came up again, and co-blogger Vipul has urged me to elaborate on the subject here.

The important question here, from an open borders standpoint, is how far do immigrants holding undesirable political opinions justify restrictions on their liberty. Secondarily, whether or not undesirable opinions justify immigration restrictions, how much of an actual concern is this for natives, such as political activists hoping to win the votes of immigrants? Specifically, in the US context, is it worthwhile for Republicans to become more “immigrant-friendly”?

We’ve addressed the first question — do undesirable opinions justify immigration restrictions — a fair bit on this site, and we’ll return to it in the future. But for the second, with regard to the US context, my answer is: if Republicans toned down their rhetoric on immigration, and more generally, embraced a less fundamentally white vision of America, they would be much more competitive than they are now.

Bryan’s question about Asian-Americans particularly is interesting because the Republicans quite concretely favour more Asian (high-skilled) immigration, and back policies, such as extension of the H1-B visa, that promote Asian immigration. One hypothesis is that Asian immigrants, who are very well-educated on average, disdain the Republican party’s seeming anti-intellectual/anti-science bent. This seem plausible to me, but I think it’s overlooking the even simpler explanation that Asians feel Republicans don’t fundamentally see them as part of America.

At this point Republicans are up in arms, protesting that they’re not racist. I agree, most Republicans aren’t. I think even Republicans who say insensitive things probably don’t actually harbour much, if any, meaningful prejudice towards the people they’ve insulted (unintentionally in some cases). But the difference between Republicans and Democrats, I think, is not that one group is necessarily less prejudiced than the other. You can be perfectly unprejudiced towards somebody and still see that person as outside your fundamental community or constituency. That, I daresay, is the Republicans’ problem.

It’s difficult to vote for someone whom you believe doesn’t see you as part of their constituency or community. Even if you understand they don’t dislike you on a personal level, that’s a far cry from embracing you and your community as someone to serve, as someone whose interests they care about. In the comments on Bryan’s post, I referred others to this fantastic piece by Muslim baseball blogger Rany Jazyerli, one that starts:

Almost before I knew that I was an American, and almost before I knew that I was a Muslim, I knew that I was a Republican.

It ends:

I look forward to the day, hopefully in the near future, when I once again vote for a Republican candidate… But first, the Republicans have to stop insinuating that I’m alien to this nation. They have to stop implying that I support terrorists. They have to stop accusing me of being anti-American. And they need to denounce anyone in their ranks who does those things. That, I’m afraid, is not negotiable.

Read the whole thing. Rany’s story may be specific to the Muslim community, but to me personally, I think it’s also the story of why Asian and Latino support for the GOP is at pretty much an all-time low. The Asian vote flipped from 48% for Bob Dole in 1996 (versus 43% for Bill Clinton) to 73% for Barack Obama in 2012. Rany cites research by CAIR (a Muslim activist group) which found that Muslim support flipped from 70% for George W. Bush in 2000 to 4% for Mitt Romney in 2012.

Over lunch, Bryan Caplan mentioned that his father’s vision of America includes people like me — people who, as Bryan put it, “dress normally, don’t wear ethnic dress, work at a bank, fit into white society”. The senior Caplan’s vision strikes me as the vision of the Republican party as well. If that’s how you see the US, then of course it’s fine to be suspicious of Muslims’ and other minorities’ loyalties to the US. Of course it’s fine to suspect the sincerity of Barack Obama’s or Nikki Haley’s religious beliefs, and of course it’s fine to joke about them being “ragheads”. Of course it’s fine to make fun of the names these weird people give their children, just as former Virginia governor George “Macaca, or whatever his name is” Allen did.

Republicans at this point rightly retort that Hillary Clinton and Joe Biden make their fair share of racial gaffes too. But I have a hard time believing that a poorly-timed joke about Gandhi segueing directly into lofty praise for the man is at all comparable to calling someone a raghead, or making fun of someone’s culture or name. If the best defence Republicans can muster is that “Democrats are racist too,” that hardly debunks the case that Republicans should be doing more to reach out to immigrant ethnic groups. If anything, it means Republicans could easily stop making insensitive comments and clearly differentiate themselves from Democrats in this regard.

Just compare and contrast the entrenched “give no ground; show no quarter” approach to dealing with Latino-Americans and other immigrants that a current strand of Republican thinking espouses with the approach George W. Bush promoted when he ran for governor of Texas:

Bush has pointedly refused to sign on to his party’s immigrant-bashing agenda. He opposed Wilson over Proposition 187, which withdrew health and public education benefits from illegal immigrants and their children in California.

He’s a strong supporter of Mexico, and he says his warm relations with that country’s leaders have helped him with Hispanic voters. “I’ve talked to a lot of friends who’ll go down to Mexico and they’ll come back and say, ‘God, Bush, you’re really popular in Mexico City,’ ” he says.

Bush gives qualified support to bilingual education, which Wilson and Republican conservatives in Congress have attempted to outlaw. Bilingual education is fine, Bush says, as long as students can pass the state tests he is promoting.

Bush is a vocal opponent of conservative Republican efforts to make English the official language, calling that “a powerful negative message” that repels Hispanic voters.

The natural retort is “And fat lot of good that did George W.” But according to the Pew Research Center, Bush in 2000 cut the Democratic advantage with Latinos from 51 percentage points in 1996 to 27%. In 2004, he reduced it further to 18%. Simply by aggressively building a friendly image with Latinos, George W. Bush reduced the Republican vote deficit among Latinos by 2/3rds. For various reasons, Hispanics may never be a natural stronghold for Republicans, but that doesn’t mean Barack Obama’s mind-blowing 71% of the Hispanic vote in 2012 is the historical norm.

I am not sure if Republicans should hope to return to the halcyon days when they were winning 70% of the Asian or Muslim vote. Certainly I don’t dare claim they can be extremely competitive in the race for the Hispanic vote. There are far too many other confounding issues, such as fundamental policy preferences. But at the same time, it’s difficult to say how competitive the Republicans can be with these ethnic groups when, honestly, George W. Bush aside, they haven’t even been trying.

Secure the US-Mexico border: open it

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The Associated Press has a great story out on what a “secure” US-Mexico border would look like. It covers perspectives from various stakeholders on border security, with opinions running the gamut from “The border is as secure as it can ever be” to “It’s obviously incredibly unsafe.” I am not sure if the AP is fairly representing opinions on the border issue, but the reporting of how life on the border has evolved over time is fascinating.

One thing that strikes me in this reporting is how casually drug smugglers/slave traffickers and good-faith immigrants are easily-conflated. Is a secure border one where people who want to move contraband goods or human slaves illegally cannot easily enter? Or is it one where well-meaning people can be indefinitely kept at bay for an arbitrary accident of birth? This passage juxtaposes the two quite different situations:

And nearly all of more than 70 drug smuggling tunnels found along the border since October 2008 have been discovered in the clay-like soil of San Diego and Tijuana, some complete with hydraulic lifts and rail cars. They’ve produced some of the largest marijuana seizures in U.S. history.

Still, few attempt to cross what was once the nation’s busiest corridor for illegal immigration. As he waited for breakfast at a Tijuana migrant shelter, Jose de Jesus Scott nodded toward a roommate who did. He was caught within seconds and badly injured his legs jumping the fence.

Scott, who crossed the border with relative ease until 2006, said he and a cousin tried a three-day mountain trek to San Diego in January and were caught twice. Scott, 31, was tempted to return to his wife and two young daughters near Guadalajara. But, with deep roots in suburban Los Angeles and cooking jobs that pay up to $1,200 a week, he will likely try the same route a third time.

The main thing that strikes me about the previously “unsecure” border near San Diego is that border patrol agents were overwhelmed by a mass of people until more staff and walls were brought to bear. But these masses of people almost certainly were comprised in large part, if not near-entirely, of good-faith immigrants. Smugglers and traffickers merely take advantage of the confusion to sneak in with the immigrants. If the immigrants had a legal path to entry, if they did not have to cross the border unlawfully, the traffickers would be naked without human crowds to hide in. If border security advocates just want to reduce illegal trafficking, demanding “border security” before loosening immigration controls may well be putting the cart before the horse.

Even so, as I’ve said before, the physical reality of a long border means that human movement across it can never be fully controlled. Demanding totalitarian control as “true border security” is about as unrealistic as, if not even more so than an open borders advocate demanding the abolition of the nation-state.

The AP covers some damning stories of peaceful Americans murdered by drug traffickers in the same breath as it covers someone trying to get to a job in suburban LA. Even if one insists that murdering smugglers and restaurant cooks should be treated identically on account of being born Mexican, it is difficult to see how one can demand that the US border patrol prioritise detaining them both equally. Yet as long as US visa policy makes it near-impossible for most good-faith Mexicans who can find work in the US to do so, the reality of the border means that thousands of Mexicans just looking to work will risk their lives crossing the border, alongside smugglers and murderers.

The more reasonable policy has to be one that will allow US border patrol to focus on catching the most egregious criminals. That means giving the good-faith immigrants a legal channel to enter the US on a reasonable timeframe, reducing the flow of unlawful border crossings. This is not just my opinion, but that of even a former (Republican) US Ambassador to Mexico (emphasis added):

Tony Garza remembers watching the flow of pedestrian traffic between Brownsville and Matamoros from his father’s filling station just steps from the international bridge. He recalls migrant workers crossing the fairway on the 11th hole of a golf course – northbound in the morning, southbound in the afternoon. And during an annual celebration between the sister cities, no one was asked for their papers at the bridge. People were just expected to go home.

Garza, a Republican who served as the U.S. ambassador to Mexico from 2002 to 2009, said it’s easy to become nostalgic for those times, but he reminds himself that he grew up in a border town of fewer than 50,000 people that has grown into a city of more than 200,000.

The border here is more secure for the massive investment in recent years but feels less safe because the crime has changed, he said. Some of that has to do with transnational criminal organizations in Mexico and some of it is just the crime of a larger city.

Reform, he said, “would allow you to focus your resources on those activities that truly make the border less safe today.”

It’s the view of those sheriffs who places themselves in harm’s way to fight those murderers and smugglers (emphasis added):

Hidalgo County Sheriff Lupe Trevino points out that drug, gun and human smuggling is nothing new to the border. The difference is the attention that the drug-related violence in Mexico has drawn to the region in recent years.

He insists his county, which includes McAllen, is safe. The crime rate is falling, and illegal immigrants account for small numbers in his jail. But asked if the border is “secure,” Trevino doesn’t hesitate. “Absolutely not.”

“When you’re busting human trafficking stash houses with 60 to 100 people that are stashed in a two, three-bedroom home for weeks at a time, how can you say you’ve secured the border?” he said.

Trevino’s view, however, is that those people might not be there if they had a legal path to work in the U.S.

“Immigration reform is the first thing we have to accomplish before we can say that we have secured the border,” he said.

…

In Nogales, Sheriff Tony Estrada has a unique perspective on both border security and more comprehensive immigration reform. Born in Nogales, Mexico, Estrada grew up in Nogales, Ariz., after migrating to the U.S. with his parents. He has served as a lawman in the community since 1966.

He blames border security issues not only on the cartels but on the American demand for drugs. Until that wanes, he said, nothing will change. And securing the border, he added, must be a constant, ever-changing effort that blends security and political support – because the effort will never end.

“The drugs are going to keep coming. The people are going to keep coming. The only thing you can do is contain it as much as possible.

“I say the border is as safe and secure as it can be, but I think people are asking for us to seal the border, and that’s unrealistic,” he said.

Asked why, he said simply: “That’s the nature of the border.”

Simply put, if you want a secure US-Mexico border, one where law enforcement can focus on rooting out murderers and smugglers, you need open borders. You need a visa regime that lets those looking to feed their families and looking for a better life to enter legally, with a minimum of muss and fuss. When only those who cross the border unlawfully are those who have no good business being in the US, then you can have a secure border.

The image featured in the header of this post depicts the Puente Viejo bridge connecting Brownsville, Texas and Matamoros, Tamaulipas. Via the University of Texas at Brownsville.