A Resident’s Bill of Rights: Fixing Immigration While Protecting Communities

My fundamental convictions have not changed: I support open borders. And yet one can’t tilt at windmills too long without feeling a sense of futility and even foolishness. We may have had an impact. We have been noticed in high places, a little. But of course there is no prospect of open borders being adopted as official policy in any of the world’s developed countries anytime soon. Meanwhile, there is room for reasonable hope that immigration policy will move quite a ways in the right direction, and for reasonable fear that it will move far in the wrong direction, in the coming years, and it’s far from clear that advocating open borders is the best way to help accomplish the former, or avoid the latter. To advocate open borders, assuming, as seems likely, that that aim cannot be achieved for decades at least, can only help indirectly, e.g., by expanding the “Overton window,” and might plausibly hurt, by provoking a restrictionist reaction against an open-borders bogeyman. For those idealists who really want to know what justice demands, we’ve explained that. I’d be happy to explain it again, debate it, whatever. But the value of refining the case for open borders still further seems doubtful until there’s evidence that people exist who really want to do the right thing, have read what has been argued so far, and are still unconvinced. My impression is that among people with a thorough exposure to the public case for open borders, as it has been made here and elsewhere, the insufficiency of the arguments offered is not a very important factor in any failure to persuade. Some of the unconvinced just aren’t very smart, while more aren’t good enough to do the right thing when they start to see it, so they bluster and stonewall and scoff.

So in this post, I’m going to attempt something a bit different, involving an unaccustomed degree of compromise. I’m going to lay out a policy platform that, while falling well short of open borders, lies, I think, at the radical end of what might actually find a coalition to carry it through to success in the United States in the near future. It doesn’t institute open borders. If passed, deportations would still occur, and billions who would benefit from immigrating would be excluded from the territory of the United States permanently from birth. Indeed, the centerpiece of this proposed policy, the Residents’ Bill of Rights, wouldn’t increase at all the number of people enjoying a definite legal right of residence, much less a path to citizenship. But it would ensure that all those residing in the United States would be treated a little more justly. It would make it harder to backslide into a harsh enforcement regime or a reduction of immigrant numbers. It would give the foreign born, however they got there, a certain dignity and a certain security. It would cause many acts of wickedness, many violations of fundamental human rights, to cease. It would give conscientious Americans the right to be substantially less ashamed of the way their government treats immigrants. At the same time, by empowering immigration skeptics to act locally instead of nationally, it would appease some of their more legitimate fears. It would not institute open borders, but I believe it would help to prepare the way.

The coalition I’m envisioning, to whom I think this might appeal and who might carry it through, would include most liberal Democrats, especially those of a commercial and globalist stripe, and many Christian and/or libertarian NeverTrumpers like myself, who in some sense identify, even rather strongly, with conservatives and the GOP, though the Trump era has left us politically homeless. My starting point in designing it is the extreme popularity of the never-passed DREAM Act. The Dreamers, born abroad but raised in America and having no other home, and clearly enjoying a right to stay in America if right and wrong mean anything at all, have become the archetypal immigrants threatened with deportation. But of course, the DREAM Act is a one-time fix. A decade after its passage, unless perfect enforcement magically appears, there would be more similarly situated individuals, born abroad but raised in America and knowing no other home, the deportation of whom should be intolerable to anyone who has a ghost of a conscience. So suppose the Democrats win a surprise supermajority in November 2018 on a pro-DREAM Act platform, and want to use their mandate, not just for a one-time fix, but for a permanent correction of the bad laws that have created the sad plight of the Dreamers, while meanwhile boosting the economy. What might they do?

I would propose the following. It might be called “the Human Rights and Growth Act.”

First, remove the cap on H1-Bs. So far, so obvious. Skilled workers contribute to the competitiveness of US-based companies, don’t compete for jobs with the most struggling Americans, and aren’t a fiscal drain. An arbitrary cap makes no sense. This doesn’t particularly help now or future Dreamers, but it’s a good way to signal an end to Trumpism and the scapegoating of immigrants even at the cost of sabotaging the economy. All immigrants could sleep a little better feeling that we’re making some attempt to make immigration policy rational.

Second, a pathway to citizenship for the Dreamers, because that’s what the Dreamers have been led to expect, and what the public wants, and it’s the surest way to protect them from deportation, which some unworthy Americans still darkly desire for them. Yet it raises as many problems as it solves. Dreamers are a minority of the undocumented immigrant population. The Dreamer population must be defined somehow. There must be lines drawn, rather arbitrarily, defining who’s in and who’s out. Good Dreamers, turned citizens, will seek to protect their parents from deportation, as they should. And the more politicians defend the fundamental justice of turning the Dreamers into citizens, the more they’ll fuel the case for the next generation of Dreamers to get their citizenship, too. Anticipating this, more undocumented immigrants will come, slipping through the Rio Grande or the Gulf of Mexico, or coming from China in shipping containers, and that’s great, but what happens next? Within a few years of the great moral triumph of the DREAM Act, US officials will again find themselves tasked with executing orders to deport people raised in the U.S. from childhood, which everyone now knows, thanks to the DREAM Act debate, is morally wrong. Who’ll be the last to get deported for a mistake?

So this brings me to the third plank of my proposal, the most original and doubtless the heaviest political lift. Call it a Residents’ Bill of Rights. This gets to the heart of the ethical and constitutional crisis that the Dreamers have brought to a head. I’ll first try to frame it in quasi-legislative language, then explain my rationale somewhat, and how I would expect its implementation in law and society to play out.

Residents’ Bill of Rights

  1. No resident of the United States, defined as anyone living and making their home on US territory, regardless of their legal status, being over 25 years of age, not having been convicted of a violent or property crime and not constituting a demonstrable threat to the public safety, shall be deported to a country where they lack a substantial history of residence. A substantial history of residence shall be defined as three or more years living in a country at an age of 16 years or more, within the twenty years previous to the date of the proposed deportation. Citizenship of a foreign country shall be presumptive evidence of a substantial history of residence there, but if a potential deportee denies that they have a substantial history of residence in their country of citizenship, they shall be given due opportunity to prove otherwise.
  2. No resident of the United States living in close proximity, defined as 50 miles or less, to a close relative, defined as a spouse, parent, child, or sibling, not having been convicted of a violent or property crime and not constituting a demonstrable threat to the public safety, shall be forcibly separated from this family member through deportation without this family member’s consent, regardless of whether the family member is a citizen or legal resident of the United States.
  3. No person shall be deported, or otherwise required by the laws of the United States to go, to a country where they face a serious threat of violence on account of their religion due to the policies of the government of that country.
  4. States and municipal communities shall enjoy a right to offer sanctuary to residents of the United States otherwise legally vulnerable to deportation. No person, therefore, shall be deported without the explicit consent of all state and local governments enjoying jurisdiction at the point where the person was apprehended for deportation.
  5. No citizen of the United States shall be deprived of his or her livelihood through the deportation of a foreigner without his or her consent, unless at least two years of advance notice are provided. If a deportation process is initiated, citizens of the United States whose livelihoods are adversely impacted by the deportation shall have four months in which to object, and having done so, four further months in which to prove that their power to earn a livelihood is grievously injured by the proposed deportation. If they prove this successfully, the deportation order shall be suspended for two years subsequent to that determination.
  6. No city, town, village, or other legally constituted municipal community, enjoying a coherent democratic government and continuously settled geography, as defined under state law, shall be required to permit the new entry of residents who are not US citizens. Municipal communities shall be empowered to regulate residency so as to confirm proof of citizenship, so as to exclude non-citizens in general or in particular, before authorizing the purchase or lease of real estate. This right shall not be construed to include the right to expel non-citizens who have already established residency by means that were legal at the time, or to exclude the close family members, defined as spouses, siblings, parents, and children, of legal residents, provided they live in the same dwelling as those residents.
  7. National origin shall be a permissible basis for citizens, companies, religious and educational institutions, private voluntary organizations of all sorts, and state, local, and federal governmental entities to decide whom to hire and at what wages, whom to fire or lay off and for what causes, whom to lease or sell real estate and movable goods to and at what prices and rents, and whom to provide services to and at what price, provided that such discrimination is not applied to the direct disadvantage of citizens of the United States.
  8. National origin shall be a permissible basis for state and local governments to decide how much tax is owed by a person, provided that no citizen of the United States is required to pay more tax than a similarly situated non-citizen would be.
  9. No state or municipal community shall be required to finance or administer welfare or public assistance to residents who lack US citizenship. Instead, they may, if they choose, require beneficiaries to provide proof of citizenship before assistance is provided. They may also provide welfare and public assistance to some non-citizens, on the basis of nationality, education, profession, language, length of residency, or any other criterion they shall see fit to apply, and not to others.
  10. All residents of the United States shall enjoy the right to work for a single willing employer for up to $600 of earnings in a calendar year without providing documentation, and for up to $30,000 if the employer pays a tax equal to one-third of the worker’s wages to the federal government, plus any state and local taxes that may be levied on this anonymous income. Citizens of the United States shall be exempt from reporting anonymously earned income for purposes of taxation or benefit eligibility determination, but non-citizens shall be required to report such income and pay taxes as required by any applicable federal, state, and local income tax codes.

Obviously, the “bill of rights” language echoes, and the hope is that the Residents’ Bill of Rights could borrow the popularity of, the original Bill of Rights in the US Constitution.

The first five provisions curtail the right of deportation, and would introduce an element of human rights and due process into the immigration enforcement regime which is desperately deficient today. They would recognize that there are large classes of persons resident on US territory whom the government cannot justly remove, and give these persons legal protection. Notably, they don’t quite actually, positively, grant anyone a right to reside in the United States, much less a path to citizenship. But by greatly reducing the fear of deportation in which undocumented immigrants live, they could be expected to grow the stock of immigrants in the United States. More would overstay visas or slip through the border if immigration enforcement were less scary, and new undocumented immigration would be offset by fewer deportations. Provision (10) would also be an important incentive to immigrate, for people to whom $30,000 per year in legal, anonymous income might be very appealing.

Provisions (6)-(9) would, I expect, feel like “concessions” to many supporters of immigration. But they do something important, namely, empower individuals, companies, and communities to protect themselves against the consequences of mass immigration, which I think will continue to be mainly good, but which it’s certainly not crazy to fear may be bad in some respects. For those who fear “forced integration” with immigrants due to the operation of anti-discrimination laws, provision (7) ensures that they can “hire American” if they want to. For those who fear that immigrants will be a fiscal drain, provisions (8) and (9) serve as strong protections at least at the state and local levels. Provision (6) is the most offensive to libertarian sensibilities. Yet it’s plausible that subtle externalities operate at the neighborhood level, and certainly, until the education system is comprehensively voucherized, most people will have good reason to worry about certain kinds of immigrant children lowering the quality of the schools. I argued in Principles of a Free Society that gated communities are just, provided that the community’s use of its streets involves activities that contribute  substantially to the flourishing of its members in ways that depend on the peculiar character of the community and its membership. In effect, provision (6) lets towns convert themselves into gated communities. I suspect most of them don’t really have a sufficiently rich and shared communal street life that it would really be just for them to exclude immigrants so as to protect it, but it would be far less, if at all, unjust for towns to practice such exclusion, than for the entire country to so so.

The Human Rights and Growth Act wouldn’t be easy to pass, of course. It gores sacred cows on both right and left. The right could see it, with good reason, as an assault on national sovereignty and “border security” (in the peculiar sense of that phrase, divorced from its legitimate meaning of securing the border against armed invasion, in which the nativist right likes to use it; note that in this sense the 19th-century United States never enjoyed or aspired to such “border security”). The left could see it as an insidiously undermining equal rights and the social safety net, and introducing into American society a deliberate element of apartheid and class stratification. Yet each side would also get something beyond its wildest dreams. Right-wing communitarians worried about immigrants’ impact on the culture could create homogeneous citizenist enclaves where immigrants are excluded, and see how they work. High-minded leftists could celebrate a drastic curtailment of deportation, and exercise their right to create sanctuaries through their local governments.

It’s a highly federalist proposal, which empowers state and local governments to make their own immigration policies, shifting in either direction. They could deny immigrants welfare or even exclude then from residing in certain cities and towns (a “right-wing” policy), or grant sanctuary and full welfare benefits (a “left-wing” policy), or they could protect them from deportation while denying them welfare (a “libertarian” policy). Finally, they could, and I think many soon would, maximize locals’ prosperity, by banning deportation and immigrant welfare and charging immigrants extra taxes to finance state and local government. House and apartment hunting for immigrants would become a bit more complex, since they’d need to look up residency restrictions in any community they considered moving to. For some, long commutes would be the price of living in America and working in a restrictionist town. But for most, this would be a small price to pay in order to enjoy a lot of new options for avoiding deportation.

Even if it didn’t pass now, the strange staying power of the DREAM Act in public discourse shows how even a failed law can become a legitimizing force and a standard of justice. I can imagine a generation waiting in growing indignation until the Human Rights and Growth Act finally gets passed. So, is it a good idea? Who’s with me?

Open Borders for the Rohingya

Open borders means admitting immigrants who are rich and poor, persecuted and privileged, educated and uneducated, skilled and unskilled, from all countries. It means the opportunity for all people (with very few exceptions) to live in the country of their choice.

Nevertheless, I often write about how open borders would help groups that are extraordinarily impoverished, oppressed, and/or endangered, such as the people of Haiti, Syrian refugees, Central American migrants, and women from many countries. I do this both to emphasize the enormous benefits these groups would gain from open borders and to illustrate the negative consequences of the status quo.

However, co-blogger John Lee, in a post partially titled “I don’t care about immigration sob stories,” suggests that highlighting cases where the status quo adversely affects certain groups does not provide a foundation for open borders. Instead, he writes, open borders rests on having laws that are fundamentally just.

I agree that open borders is based on a number of ideas that demonstrate that open borders is the only just approach to immigration, but hopefully noting the tangible ways that such a policy would relieve the suffering of certain groups will help galvanize more support for our cause.

The hundreds of thousands of U.S. DACA recipients certainly constitute a sympathetic group that would benefit from open borders. Protecting them from deportation recently has been a primary focus of those concerned about the welfare of immigrants. I have argued that deporting DACA recipients, as well as other immigrants with deep roots in the U.S., would constitute “cruel and unusual punishment.”

At the same time, there is an even more vulnerable group, about the same size as the DACA population, which could benefit from moral immigration policies: the Rohingya refugees in Bangladesh. Many Rohingya have fled Myanmar over the past six months.  Despite having resided in Myanmar for generations, for years they have been denied citizenship, deprived of medical services, and confined to certain areas of the country. More recently, they have been subjected to horrifying attacks by the Myanmar military and others. Civilians have been murdered and raped, and Rohingya villages have been destroyed. (See here, here, and here.)

While fleeing to Bangladesh has put the Rohingya out of the reach of the Myanmar military, their existence in that impoverished nation is extremely precarious. They are not allowed to work in Bangladesh, and they are concentrated on land that will be ravaged by monsoons next month. As reported by National Public Radio:

Hundreds of thousands of Rohingya refugees have built makeshift shelters on steep, sandy hills in Bangladesh… The monsoon season is expected to start in April. When the monsoon comes, bringing 20 to 30 inches of rain a month at their heaviest, aid officials worry that many of the hillsides where the Rohingya are living could collapse. There’s also concern that hastily-constructed latrines could be flooded, contaminating the refugees’ drinking water and sparking a major disease outbreak.

Already, many refugees are suffering from illness and malnutrition. The heavy rains will exacerbate the misery. Returning to Myanmar is not a safe option; returnees face more violence or imprisonment in concentration camps. (See here.)

With Bangladesh unwilling and probably unable to permanently accept the Rohingya, other countries must step forward and offer a permanent home for this persecuted group. One option could be for the wealthy Persian Gulf countries to admit the Rohingya. Saudi Arabia, Kuwait, Qatar, Bahrain, and the United Arab Emirates have the resources to help the Rohingya resettle, they share the Muslim faith with the Rohingya, and they are accustomed to hosting huge numbers of migrants.

Unfortunately, this scenario is unlikely. The Gulf countries have been unwilling even to accept fellow Arabs who have fled war ravaged Syria.  They also are attempting to create more employment for their native populations at the expense of resident migrants.

Therefore, Western countries should offer refuge for the Rohingya. They should do so because it is morally warranted, they have the resources to absorb the relatively small Rohingya population, and, as I noted when arguing for the U.S. and Canada to accept the millions of Syrian refugees stranded in various countries, resettling refugees helps prevent the rise of extremism.

Of course, the political winds are blowing strongly against immigrants, especially those who are Muslims, throughout most of the West. It is impossible to imagine the Trump administration even considering allowing the Rohingya to immigrate into the U.S. Australia is very resistant to accepting refugees, and many Europeans are anxious about having admitted many migrants in recent years.

Apparently Canada seems like the most viable location to which the Rohingya could migrate. It is a wealthy, multicultural country which has already been relatively welcoming to refugees from Syria and whose government is controlled by a non-nativist party. Reportedly it was the first country to resettle Rohingya refugees over a decade ago, and Canada’s immigration minister has indicated the country is open to accepting more Rohingya in the future. The minister also has stated that Bangladesh won’t permit Rohingya refugees to leave the country, but it seems that with financial incentives the Bangladeshis would be happy to have the Rohingya resettled elsewhere.

Absent the Canadian option, there is another possibility, albeit much less desirable and much more complicated.  Co-blogger Nathan Smith has suggested, if necessary, “creating an archipelago of passport-free charter cities around the globe, supported by enough aid to make sure they’re economically viable,” where the Rohingya could find refuge.  A historical example of this would be Shanghai in the 1930s, which did not require entrance visas until 1939 and to which thousands of German and Austrian Jews fled from the Nazis.

Robert Rotberg of Harvard, in an opinion piece titled “Nothing is more urgent than saving the Rohingya,” has urged Canada and other countries to intervene militarily in Myanmar to protect the Rohingya. However, there is an easier solution than military intervention or creating charter cities. Canada should shame the Gulf countries, the Americans, the Europeans, and the Australians by being the sole country to offer the Rohingya a chance to start over.


Immigration Restrictions Hurt Americans Too

American immigration restrictions inflict immense suffering on immigrants and would-be immigrants. Thousands have died attempting to enter the U.S. through the desert, and others have perished attempting to make sea journeys. Tens of thousands languish each year in detention centers. Others are abused by government agents or criminals. Many are deported from the U.S. after having lived many years here. Millions of undocumented immigrants live anxious lives, not knowing if or when they will be arrested and deported.

Another group is also harmed by the restrictions: American citizens. Like immigrants, they suffer in myriad ways.

To begin with, Latino citizens sometimes must endure profiling by authorities seeking undocumented immigrants. NBC News notes that “Latino and immigrant groups say that due to increased enforcement, being Latino in some places is enough to be pulled over under the guise of a minor traffic stop and be asked to prove American citizenship.” Several years ago Sheriff Joe Arpaio in Arizona (who is no longer sheriff) was ordered by a judge to cease stopping people to check their immigration status because the stops amounted to racial profiling. And “the ACLU, border-town residents, members of Congress and even some border patrol agents argue that the rapid and vast expansion of immigration enforcement in the years since the Department of Homeland Security was created, without expanded oversight to match it, has turned the southern border of the U.S. into an occupied police state, where abuses of power and harassment by agents are an everyday occurrence.”

Some American citizens actually have been detained and perhaps deported by immigration authorities. Over the last decade hundreds of U.S.. citizens have been detained, either at local jails at the request of immigration officials or at immigration detention centers, even though immigration agents do not have the authority to detain citizens. One citizen was imprisoned for over three years because he was mistakenly considered to be a non-citizen. Another spent almost two years in detention. One researcher suggests that some citizens have actually been deported in recent years. Looking further back in history, probably hundreds of thousands of citizens of Mexican descent were deported to Mexico in the 1920s and 1930s.

In addition, deportations and detentions of non-citizens often negatively impact U.S. citizens. This is because, in the words of a report by the Center for American Progress, “undocumented immigrants do not live separate and walled-off lives from the documented, but instead live side by side in the same communities and in the same families.” It is estimated that about 4 million children who are citizens have one or more undocumented parents, and The Washington Post reports that more than 100,000 citizens lose a spouse or parent to deportation each year. (See here and here.)

Deportations separate citizen children from parents and, for families who have not yet experienced deportation, create fear among children that they could be separated from their parents in the future. Detentions also are traumatizing for children. For example, after a father of two U.S. citizens had been in detention for six months, his wife reported that “her 2-year-old son wakes up crying for his father every night, while her 3-year-old daughter has refused to learn to count or tie her shoes until he comes home.” (See also here.) Citizen children also experience raids on homes by immigration agents.

Adult U.S. citizens, like citizen children, suffer when immigration enforcement targets family members. In one case, an American wife of a man facing deportation was diagnosed with situational depression after he was detained. Another American wife accompanied her husband when he was deported but wanted to be able to return to the U.S. with him and their child, stating “’We do not have any family or friends here (London). We are all on our own… We desperately want to come home.’”

Immigration enforcement also hurts many U.S. businesses. Farmers sometimes can’t find enough workers to harvest their crops because of immigration restrictions. (See here and here.) Different kinds of firms suffer if their workers are deported. (See here.) Businesses can be punished for hiring undocumented workers.

At the same time, citizen workers in some cases may endure poor working conditions because employers, using the threat of reporting undocumented coworkers to immigration authorities, can stifle efforts to unionize or report labor violations. As one article noted, “immigrants’ inability to invoke their rights results in weakened employment protections for all American workers—and in some instances, means that American workers are subject to violations of minimum-wage and overtime protections, wage theft, and other forms of employment violations, such as unsafe working conditions.”  In 2009 the AFL-CIO and other organizations reported that

One of the most devastating illegal employer tactics is the threat to call immigration authorities on workers. The chilling impact of employers’ unlawful threats is felt not only by undocumented workers, but by their co-workers. Documented workers and U.S. citizens may be reluctant to organize their workplaces because properly timed threats to turn workers over to immigration authorities can undermine the union election process. And if workers should win a union election, deportation of their undocumented co-workers will dilute the power of the bargaining unit. No industry relies solely on an immigrant workforce. The Census Bureau’s 2007 American Community Survey found that of more than 330 occupations, only two have immigrant majorities. This means that threats to call immigration authorities deprive workers in nearly every industry of their right to a voice at work.

Open borders would end all of this suffering endured by so many American citizens. Citizen spouses and children wouldn’t have to worry about or experience the arrest, detention, and deportation of a loved family member. Citizens themselves wouldn’t be detained or deported. Workers’ efforts to report labor violations or organize wouldn’t be undermined by immigration enforcement, and businesses could depend on a free flow of needed labor. Open borders would benefit immigrants and citizens alike.

The Cognitive Dissonance of Immigration Law

Jawziya Zaman, a former immigration attorney, wrote a piece in Dissent Magazine last month about why she left the practice of immigration law. She wrote about the internal conflict attorneys face in advocating for their clients’ material interests by collaborating with the government to suppress clients’ inherent human dignity. Zaman practiced immigration law in San Francisco for four years, leaving her job shortly before Trump was elected. She relayed some positive aspects of her work: working with supportive and dedicated colleagues and achieving life-changing outcomes for her clients. Yet, the frustrations of the work eventually drove her from the profession, even before Trump’s candidacy and election unleashed a whirlwind of chaos and hostility upon immigrants in the U.S.

Zaman writes:

My frustration with the job, I learned, had to do with how I felt implicated in the flawed premises of immigration law, including its reductionist narratives about other countries and its dehumanization of foreigners. In virtually every case involving defense against deportation, the law insisted that I reinforce tired stereotypes about the global South and force clients to undergo a ritual flagellation before they could be granted the privilege of remaining in the country.

As an attorney gradually extracting myself from the daily practice of immigration law after nearly 11 years, Zaman’s analysis resonated powerfully with me. The contradictions and hypocrisy of the immigration system, which reflects the U.S.’s problematic position in the world and the injustice of the current global order, became too much for me to bear.

Zaman highlights the dissonance of protesting detention of Muslims at airports while ignoring civilian victims of U.S. bombing in Yemen and other predominantly Muslim countries. She asks, “Is it only by virtue of seeking entry into this country that foreigners become human beings worthy of our regard?” She notes the irony of a legal system that rejects and punishes migrants fleeing from problems caused by U.S. foreign policy. She writes about the wrongs the U.S. has committed in the guise of national defense, foreign policy, development, and trade. Many of these policies have contributed to violence, poverty, and instability that have made migration the least bad choice for many people. For the U.S. to not only reject but morally condemn those same migrants constitutes rank hypocrisy.

Zaman highlights several grating elements of the immigration legal system:

[T]o add insult to injury, the law demands that immigrants renounce the place of their birth and take a kind of medieval oath of fealty to the United States.
. . .

The bedrock upon which the defense and the prosecution build their arguments in virtually every case is the same: America is the superior option—it’s better than wherever you came from.
. . .

Different circumstances call for different forms of legal relief, but a central feature in many of our cases is that our client did wrong and now he’s terribly sorry. Confession and penance are akin to sacraments in immigration law, and the process of asking the government to pardon your client’s digressions is a disconcerting combination of formulaic and theatrical.

These assertions are consistent with my experience. Arbitrary outcomes and nonsensical legal concepts like “crimes involving moral turpitude” support the argument that immigration adjudication is more a moral or social judgment than a legal one. Immigration law often departs from formal principles of the rule of law such as predictability, transparency, and impartiality. Immigration law is complex and opaque, with laws, regulations, case decisions, policies, and guidelines scattered across dozens of court and agency websites. Few sources of law are available in any language other than English, which of course many immigrants do not speak or read. Some immigration laws have been retroactively applied. Due to gridlock in Congress, much of immigration law has shifted from clear statutory rules to discretionary or temporary guidelines, which further decreases predictability of outcomes.

In the wake of the influx of Central American child refugees in 2014, the president of the National Association of Immigration Judges described immigration cases as “death penalty cases heard in traffic court settings.” Immigration Courts are administrative courts that are part of the executive branch, not the independent judiciary. As a part of the Department of Justice, they retain an implied prosecutorial mandate. Asylum denial rates among judges vary from 3% to 99%, a disparity that demonstrates the incredible discretion vested in judges. Due process is more limited in the immigration context than in the criminal system. The federal rules of evidence do not formally apply and are often waived or ignored by immigration judges. Many immigrants in deportation proceedings do not have a lawyer, since court-appointed counsel is not required to be provided even for indigent non-citizens. Perhaps unsurprisingly, these systemic factors make deportation defense so difficult that hundreds–perhaps thousands–of U.S. citizens are likely deported every year.  

If the immigration legal system is disconnected from the principles of rule of law, something else must be driving immigration adjudication. Following up on Zaman’s piece and based on my own experience, the unwritten principles of immigration law can be distilled as follows:

  1. You have no right to be here. Your presence depends on the government’s forbearance and your willingness to participate in your own ritual humiliation. This country and the people who truly belong here owe you nothing, which is why judges, bureaucrats, prosecutors, and even your own defense counsel can transgress social norms and ethical rules with impunity. By being here, you have violated a critical norm. This is true even if your presence in the U.S. is technically legal, for instance, if one of the federal immigration agencies made a legally erroneous determination that landed you in court or if you applied for asylum, which is legal under domestic and international law.
  2. Your country of origin is inferior to the U.S. in some essential way. Your government abuses or neglects its people; your compatriots subscribe to racist, homophobic, or misogynist ideas; your legal and economic systems are irredeemably corrupt and ineffective; or your culture fails to produce in its people whatever characteristic makes Americans successful and prosperous. The U.S. has avoided these pitfalls through the perseverance and foresight of its people. At home and abroad, the U.S. government respects human rights and the rule of law, fosters prosperity, and is, in the words of Ronald Reagan, “a beacon of freedom and opportunity.” Americans are always and everywhere the good guys; you and your culture, however, are guilty until proven innocent.
  3. You are nothing–less than nothing–but if you prove yourself worthy, you too can receive the bounty that awaits the chosen few. In its benevolence, the U.S. has opened its arms to you, one among the huddled masses yearning to breathe free. But only if you don’t screw up the paperwork. Your diligence in that regard will signify your worthiness.

Of course, these “principles” have little to do with justice, rule of law, security, or any defensible moral code. Instead, they are predicated on the racist underpinnings of the immigration system and fundamental ingroup/outgroup dynamics.

In her piece, Zaman captures the indignity of the performative humiliation that is often required of clients in order to avoid deportation. Defense counsel is typically expected to join in the ritual shaming. Not doing so can imperil the defense in individual cases and even damage the advocate’s ability to effectively represent other clients. Maintaining cordial relationships with counsel for the government can pay clear dividends, as the ICE and DOJ attorneys have remarkable influence to impact the ultimate decision under the legal principle of “prosecutorial discretion.” To conserve law enforcement resources, prosecutors have ample discretion regarding the filing of charges, availability of defenses, and ultimate outcome. During the Obama administration, prosecutorial discretion became even more central to the immigration regime. Prosecutorial discretion provided the legal justification for the Deferred Action for Childhood Arrivals (DACA) program, the proposed extension of deferred action to a larger subset of immigrants, and the enforcement priorities guidelines that allowed tens and possibly hundreds of thousands of people to stave off deportation. While hostile judges can find a justification under the law to deny almost any case that comes before them, sympathetic judges and prosecutors can utilize discretion to grant relief in cases that would not warrant relief under a strict reading of the law. The robust discretion granted to prosecutors and judges creates an incentive for counsel to try to stay in their good graces.

As Zaman notes, immigration cases typically begin with a concession of the defendant’s deportability. Early in the Obama administration, a colleague and I challenged that presumption at the outset of several cases at the legal services nonprofit we worked at, filing “motions to suppress” evidence of nationality in an effort to stop deportation cases before they could really begin. We argued that the government did not have sufficient evidence to prove legal deportability, having obtained the evidence in violation of the Constitution’s prohibition on unlawful search and seizure through home raids or pretextual police stops. While this legal strategy had been pioneered in other courts by attorneys like Rex Chen, it was new to the Philadelphia Immigration Court. The ICE prosecutors’ response to our approach was one of disbelief and indignation. The judges were initially baffled. We weren’t playing along like we were supposed to: first yield, then plead for mercy. Eventually, the judges and ICE attorneys got used to suppression cases, and they became another tool in the litigator’s toolbox.

Zaman described a particular case where a client of hers, an older Korean man, was initially unwilling to perform penance to win his case. He wasn’t willing to relinquish his inherent dignity so easily. But when confronted with the immense situational pressure of an immigration hearing, and fearing the stark consequences of failure, he submitted. Reading that description, I recalled a former client of mine who had committed some minor infraction, the details of which now escape me, and was applying for his green card. He had a forthright and unapologetic demeanor. I suggested, with the infraction in mind, that he adopt a more humble attitude during his green card interview. As soon as he figured out what I was trying to say, he said he would do nothing of the kind. His case was approved anyway, and I regretted my advice.   

I fear that many of my undocumented clients have internalized U.S. society’s expectations of them: to be humble, law abiding, hard-working, and family oriented. They are defined by their economic contributions and family connections to U.S. citizens. They ask for nothing more than the opportunity to work to support their families. This narrative is demeaning and ratifies the de facto caste system our immigration system produces. It elides the exploitative nature of the U.S. economic system. I am encouraged when immigrant activists and organizers refuse to adopt the deferential attitude they are expected to have.  

Undocumented immigrants have suffered systemic oppression for decades, without regard to the party in power. The scenarios that clients of mine or of my colleagues have endured are too numerous to recount here. They include:

  • A man knocked unconscious by police in pursuit of another suspect was charged with assaulting the police and put into deportation proceedings.
  • An asylum applicant who panicked and tried to flee to Canada to apply for asylum there was stopped by U.S. border patrol on his way across the border, imprisoned, and deported back to his birthplace. (He would not have been subject to the Safe Third Country Agreement, had he been able to enter Canada.)
  • An infant 10 days old was imprisoned with her asylum-seeking mother. U.S. officials claimed the baby was on her way to the U.S. to work.
  • After a 19-year-old mother imprisoned with her daughter at one of President Obama’s infamous “baby jails” was the victim of institutional rape by a guard, the prison forbade the inmates from wearing “tight-fitting” clothing. The prison added several paragraphs to the Spanish version of the inmate handbook instructing women how to modify their behavior to avoid being assaulted at the prison, instructions that were missing from the English version.
  • A woman who had been trafficked into sex work by a transnational criminal syndicate was “freed” by ICE in a raid of the house where the women were being held. ICE referred her to a local nonprofit and washed their hands of the matter. She declined to fight her deportation, since the traffickers had threatened her children who had remained in her country. She most likely either remained in the U.S. or left and was re-trafficked, either way returning into the arms of her traffickers.
  • A woman presented herself at a port of entry at the U.S.-Mexico border as part of a group seeking asylum. To pressure her to relinquish her claim, U.S. officials took her U.S.-citizen children into custody and turned them over to local child welfare officials to be placed into the foster system.

Each of these examples occurred under the Obama administration. It didn’t matter to these people whether or not George W. Bush and Donald Trump were “worse” on immigration policy than Obama. The system designed to crush immigrant lives has long been a bipartisan endeavor.

In evaluating a client’s mental state in order to provide evidence of trauma to support an application for relief in immigration court, mental health practitioners unfamiliar with the immigration system at first point to causative factors stemming from the deportation process itself. These factors can include detention or the threat of detention, the threat of long-term separation from family members, and the paralyzing uncertainty produced by an open-ended and inscrutable legal process. Experienced mental health evaluators know that most judges and prosecutors are blind to harm caused by the deportation process. Even judges who might empathize with a client typically discount such factors, following conventional interpretation of case law. Immigration attorneys soon find that one of their jobs is to persuade clients to jettison their existing ideas about what U.S. society claims to value, since traversing the treacherous path to safety may require it.

I’ve started to tally asylum cases where the harm visited on my clients by the U.S. government or actors the government is unable or unwilling to control would satisfy the legal standard for asylum, were that harm to occur in another country. It happens more often that we might like to admit.

As Zaman notes, the practice of compelling people to denounce their home countries and cultures is troubling. Migrants’ relationships to their birthplaces can generate a complex mix of powerful, sometimes contradictory emotions. Governments in countries of origin are often corrupt and hypocritical. Bigotry in its various forms is deeply embedded in many places. But leaving one’s home, family, and culture is rarely easy. And the U.S. has little standing to criticize other governments, given its own failings. Yet the U.S. immigration system tends to expect a reductive and derogatory accounting of immigrants’ experiences in their countries of origin.

Over time, practitioners get worn down. It’s easier not to fight each routine indignity. I’m inspired by my colleagues in the immigration bar who don’t reflexively concede, the troublemakers and reprobates, the pugilists and iconoclasts. (You know who you are.) And the immigrant fighters who stand up to a system meant to destroy them are simply heroes.

In the course of learning about immigration law and its problematic norms, I became more and more aggravated. Blogging and providing support to immigrant rights organizers helped temper my frustration. Later, I encountered the Open Borders website and a nascent online community of proponents of radically freer immigration policies that the site fostered. My gradual acculturation to the immigration system, and my resignation to the reality that zealous advocacy on behalf of any individual client usually meant participating in their degradation, signaled that it was time to leave the daily practice of immigration law. Last year, I incorporated a nonprofit organization to advocate for open borders. I stopped taking on new clients. I felt as though a burden had been lifted. While my obligations to existing clients mean that I’ll be working on immigration cases for years to come, I am able to think about my work with optimism again.

Zaman writes:

Before I left the United States, I spent much time wondering why our legal system is so intent on shaming immigrants before granting them any rights. For undocumented immigrants, especially, the unspoken assumption seems to be that they demand what isn’t owed.

Zaman astutely identifies the core assumption underlying the immigration regime: that immigrants are owed nothing since the right of the sovereign state to restrict immigration outweighs the immigrant’s right to migrate in almost all cases. But that assumption is wrong. Immigrants are owed their basic human rights, including the right to enter, the right to remain, and the right to full economic, social, and political inclusion. Those who do demand those things should be supported, not shamed or silenced.

A small but growing number of activists, attorneys, and organizers argue that immigration restrictions should be abolished altogether. Scholars like Joseph Carens and Bryan Caplan have set out a compelling conceptual framework justifying open borders. Attorney Steven Sacco has argued that immigration lawyers can assist their clients to resist the oppressive immigration system, but that does not alone satisfy their moral obligation to be abolitionists. In her piece, Zaman aptly articulates the cognitive dissonance that results from working to promote human rights within a system that is incompatible with human rights. But there is a way forward, and it begins with dismantling the immigration regime.

The Most Privileged Target the Most Disadvantaged

Opportunity means having the option to work towards a life with sufficient or even prodigious resources. Unfortunately, equal opportunity does not exist either within or between countries. Differences in opportunity are, however, especially pronounced between countries. This is a major reason why open borders is so attractive; open borders would reduce the opportunity gap by allowing those who live in countries with very little opportunity to improve their circumstances by moving to a country with more opportunity. It is also why efforts by the most privileged individuals in developed countries to deny open borders to the disadvantaged of less developed countries are so egregious.

The hierarchy of opportunity in the world looks roughly like this. The most privileged are those born into wealth in both developed and less developed countries. Next on the rung would be those born into the middle class of the developed countries. (It is unclear where the middle classes of the less developed countries would appear on the hierarchy; it probably depends on the individual country.) The working classes in the developed countries would follow, with those in countries with stronger safety nets above the U.S. working class. The poor in developed countries would follow, with the poor in less developed countries occupying the bottom. This group itself could be ordered according to the level of poverty and political dysfunction they experience. At the very bottom would be residents of Syria, Yemen, Somalia, and South Sudan, where people must survive apocalyptic conditions.

The wealthy U.S. President Donald Trump has always occupied the top level of this hierarchy. He was born into wealth in a stable liberal democracy (which some would argue he is working to undermine). Chuck Collins, author of Born on Third Base, notes that Trump “was set-up for success.”

Rather than adopt a perspective of noblesse oblige, Trump is targeting those at the bottom levels of the privilege hierarchy: undocumented immigrants in the U.S. and would-be immigrants from poor and/or violent countries. (The majority of undocumented immigrants come from Mexico and other less developed countries.) The Trump administration has moved to make it easier to deport people. It is also attempting to ensure the detention of asylum seekers from Central America while their cases are pending and to punish Central American parents for trying to get their children into the U.S. His homeland security secretary even raised the idea of separating children and parents who arrive in the U.S. from Central America to deter others from coming, and Attorney General Jeff Sessions has directed federal prosecutors to make cases against those who cross the border illegally a higher priority. Trump also has promised to build a wall along the U.S.-Mexico border and has tried to stop the entrance of Syrian refugees into the U.S. altogether.

Trump is not the only very privileged American to target disadvantaged immigrants and refugees. Representative James Sensenbrenner of Wisconsin is the chairman of the House immigration subcommittee. He supported a 2005 bill that would have made being in the U.S. without authorization a criminal offense. According to The New York Times, he “has no tolerance for illegal immigrants, either in his political life or personal life.” At the same time, he is also among the wealthiest members of Congress, with a net worth of almost $25 million in 2014. The New York Times reports that he received “a fortune” from a great-grandfather, and ABC News lists him among the “top five political heirs.”

While apparently not born into wealth, Jeff Sessions, Trump’s aforementioned attorney general, was listed among the wealthiest members of Congress, with a net worth of over $7 million in 2014. The Washington Post has noted that in his previous job as senator “Sessions has opposed nearly every immigration bill that has come before the Senate the past two decades that has included a path to citizenship for immigrants in the country illegally.”

At the same time, apparently more privileged Americans, as represented by a higher level of education, are generally more receptive to immigration than their less privileged peers. In fact, a National Academy of Sciences report suggests that well off Americans benefit from immigration. Thomas Edsall quotes from the report: “In summary, the immigration surplus stems from the increase in the return to capital that results from the increased supply of labor and the subsequent fall in wages. Natives who own more capital will receive more income from the immigration surplus than natives who own less capital, who can consequently be adversely affected.” (Note that some economists assert that immigrants have little or no effect on workers with relatively little education.)

So it is surprising when privileged Americans voice opposition to immigration, since they apparently gain financially from it. Of course, such individuals may be concerned about the cultural impact associated with immigration, or they may be concerned about its impact on their disadvantaged compatriots. Or, if running for public office, they may be cynically appealing to voters’ fears about immigrants.

Whatever their motivation, from a moral perspective it is appalling when privileged Americans, among the most privileged people in the world, oppose the immigration of individuals who are among the most disadvantaged. It is especially disconcerting when they have the political power to realize this opposition, as in the cases of Donald Trump, Jeff Sessions, and James Sensenbrenner.

Creative Commons License A Resident’s Bill of Rights: Fixing Immigration While Protecting Communities is licensed by Nathan Smith under a Creative Commons Attribution 3.0 Unported License.