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.

Resistance to U.S. Immigration Restriction: Echoes of the Opposition to the Fugitive Slave Laws

In the 18th and 19th centuries, the United States enacted laws to facilitate the recapture of escaped slaves. The Fugitive Slave Act of 1850 required citizens to help recapture slaves and delegated power to federal commissioners to decide whether those arrested would be freed or sent back to slavery. Both this law and its predecessor, the Fugitive Slave Act of 1793, imposed fines on those who interfered with the recapture process.

There was resistance to the laws in the free states. As history.com notes, “… most Northern states intentionally neglected to enforce” the 1793 law, with some establishing laws making it more difficult for slaveowners to recapture their slaves. There was also resistance to the 1850 law: “States like Vermont and Wisconsin passed new measures intended to bypass and even nullify the law…” At the same time, individuals assisted runaway slaves, including helping slaves migrate to Canada. Groups of activists in the North even physically liberated escaped slaves from federal control.

The current tension between a U.S. government intent on apprehending and deporting large numbers of undocumented immigrants and states, localities, and individuals working to shield these individuals from immigration enforcement is reminiscent of this history.

One parallel is the wide resistance from non-federal governments to both the fugitive slave laws and immigration enforcement. An article in The New York Times reports that five states “limit how much the local police can cooperate with federal immigration agents” and that over six hundred counties across the U.S. “limit how much the local police cooperate with requests from federal authorities to hold immigrants in detention.” Similarly, many big cities “have reaffirmed plans to defy the administration and act as a kind of bulwark against mass deportations.” In an unpublished paper, Allan Colbern cites a scholar who notes that the city of Chicago refused to enforce fugitive slave law in the 1850s and that today it similarly balks at enforcing immigration law. (At the same time, some localities currently resisting immigration enforcement are located in former slave states.)

Another parallel is the financial threat for interfering with federal law. As with the ability to fine those protecting fugitive slaves, the federal government apparently can withhold federal money from localities that restrict local law enforcement from passing along information to immigration authorities about the immigration status of prisoners. The Trump administration has threatened to punish localities in this way for not cooperating with immigration authorities.

A third parallel is the involvement of individuals in protecting those being pursued, whether slaves or immigrants. The New York Times reports that “members of churches and synagogues are again offering their houses of worship as sanctuaries for undocumented people fearing deportation…” Hundreds of houses of worship are either providing refuge for undocumented immigrants in their buildings or are providing resources such as legal aid. Families in various states also are making their homes available as safe havens for undocumented immigrants. Moreover, a “modern-day underground railroad” may be created to help undocumented individuals move “house-to-house or into Canada.” (Similarly, a farmer in southern France has helped smuggle migrants through France without compensation and has criticized the government for blocking the entrance of African migrants from Italy. (See here and here.))

Furthermore, resisting immoral institutions is a likely motivation behind the efforts to assist both runaway slaves and undocumented immigrants, whether the institution is slavery or immigration restrictions (or at least deportation). People generally won’t help murder suspects or convicts on the run, but they might help individuals who are oppressed for reasons beyond their control, such as the color of their skin or their place of birth. (In the case of local governments limiting their cooperation with immigration authorities, the motivation often may be concerns that collaboration with those authorities would interfere with law enforcement because residents fearful of immigration enforcement might be unwilling to report crimes to the local police.)

The Fugitive Slave Laws were eventually repealed during the Civil War, and slavery itself was abolished shortly after the war. Hopefully, immigration restrictions will disappear as well in the not too distant future.

The Muslim Takeover of Europe (According to Christopher Caldwell)

In this post, I would like to dissect another claim in Christopher Caldwell’s book „Reflections on the Revolution In Europe: Immigration, Islam, and the West“ which was published in 2009. As I have already explained elsewhere („Enoch Powell’s Secret Formula“), Caldwell’s main technique is to frame the issue early on with some strong images. In this case, it is the Muslim takeover of Europe. If you buy into this scenario, you don’t need proof, all you need is some anecdotal evidence that is not totally at odds with the main storyline. Here is a paragraph where Caldwell explains how the Muslim takeover of Europe is already under way:

„Muslims now either dominate or vie for domination of certain important European cities. A partial list of them would include Amsterdam and Rotterdam in Holland; Strasbourg and Marseille (and many of the Paris suburbs) in France; Duisburg, Cologne, and the Berlin neighborhoods of Kreuzberg and Neukölln in Germany; and Blackburn, Bradford, Dewsbury, Leicester, East London, and the periphery of Manchester in England. Such places may, as immigration continues and the voting power and political savvy of the Muslims already there increases, take on an increasingly Muslim character.“

Those are long sentences. So let me boil the paragraph down to what a casual reader might understand:

Muslims now … dominate … important European cities. A partial list of them would include Amsterdam … in Holland; … Paris … in France; … Berlin … in Germany; and … London … in England. Such places … take on an increasingly Muslim character.“

Of course, Caldwell also knows of many important European cities that you have never heard of: e.g. the metropolis of Blackburn is teeming with 105,085 inhabitants, and the metropolis of Dewsbury boasts 62,945 residents. 153,887 and 167,248 people call the Berlin neighborhoods of Kreuzberg and Neukölln their home. Strasbourg has 276,170, Leicester 337,653 inhabitants. Towns that might qualify as major cities are Rotterdam at 633,471, Duisburg at 491,231, and Bradford at 528,155. Cologne is the only town with slightly more than a million residents, Amsterdam at 838,338 and Marseille at 855,393 at least come close. As for the really big cities, Caldwell carefully speaks of „many of the Paris suburbs“, „East London“, „the periphery of Manchester“, and „Berlin neighborhoods.“

Let me put this in perspective. The impressive list of „important European cities“ would be on a par with the tenth-largest city in the US, San Jose (Cologne), the 14th largest city, Indianapolis (Marseille), the 16th largest city, Fort Worth (Amsterdam), the 29th largest city, Baltimore (Rotterdam), the 33th largest city, Tucson (Bradford), the 35th largest city, Sacramento (Duisburg), the 57th largest city, Santa Ana (Leicester), and the 66th largest city, Cincinnati (Strasbourg). Blackburn and Dewsbury would not even make it into the top 200. And for the really big cities: the metropolitan areas of London and Paris are in the same ballpark as New York, Berlin as Los Angeles, and Manchester as Chicago. But there we are only talking about some suburbs, neighborhoods, or the periphery.

How impressed would you be if I posed as an expert on what is going on in the US and came up with this list of American cities as typical for the US? And remember that Europe has about half a billion inhabitants, the US only somewhat more than 320 million. If I add up only the cities (not the neighborhoods), then all Caldwell is talking about is a population of 5.5 million people, or slightly more than 1 percent of the total population of Europe. As for the neighborhoods in the big cities, I would have to add perhaps a few million, and that might bring it up to 2%. That’s all it takes to conquer Europe. Like after the Normandy landings, the Allied troops stayed on the beach and said to themselves: „That’s good enough, let’s call it V-Day.“

Now, you may object that I am being very unfair with Christopher Caldwell here. He wrote that this is just a „partial list“ and he surely could name lots of other cities with ease. Well, no, I’m not being unfair, I am actually pretty lenient with him. It is is indeed a „partial list“, but only in the sense that “partial” is the opposite of “impartial.” Christopher Caldwell does not give you a random selection from a longer list. For each country, he took the cities that have the highest share of Muslims. Any further examples would either have to be rather small cities, or have a lower share of Muslims, or both. He already had to resort to Dewsbury for this list. No offense to people from Dewsbury who read this, but I had never heard of your metropolis before I read Caldwell’s book.

But then at least those are dominated by Muslims?

Well, how can I say this, I am so sorry. It’s not going well with the Islamization of Europe. Hope you haven’t bet on it yet. I won’t go through all the examples in detail, but will concentrate on the claim for Germany. To this end, I downloaded data from the Federal Statistics Office for 2014.

There are 424 districts in Germany with roughly 200,000 inhabitants on average (technically: “Regierungsbezirke”, “Kreise”, and for small states the whole state) . Most Muslims come from Turkey. The district with the highest share of Turkish citizens was Duisburg with 6.5% of the population. Cologne was the next major city with 4.9%. As I said, Caldwell’s selection is anything but representative.

The percentages are for Turkish citizens only, but there are also German citizens of Turkish descent. On the whole, about half of all those of Turkish descent have German citizenship (roughly a third of the latter have also Turkish citizenship). I don’t know whether those with dual citizenship were also counted as Turkish citizens, but I am on the safe side if I assume they were not. So you would have to double the share of Turkish citizens to get a rough estimate for all those of Turkish descent.

In other words: Even for the two cities with the highest share of Turkish citizens, the share of all those of Turkish descent only amounts to something like 13% and 10%, respectively, a far cry from a majority. You may add a few percent for those who are Muslims, but are from other countries. Strictly speaking, though, you would also have to subtract those who do not consider themselves Muslims although they are of from a Muslim country. No matter how you slice it: There is not a single district in Germany out of 424 where Muslims come even close to a majority.

The list I am working with does not include the neighborhoods of Kreuzberg and Neukölln (only Berlin as whole). However, for both the share of all immigrants and their children (not only from Muslim countries) is well below 50%. No part of Germany of any remarkable size has a Muslim majority, not by a far stretch. None.

As I said, I concentrate on Germany here. But I have also checked the numbers for other cities on Caldwell’s list. Here are the shares for Muslims that I have found: Amsterdam 14%, Rotterdam 13.3%, Strasbourg 19%, Marseilles 23.5%, Blackburn 25.7%, Bradford 24.7%, Leicester 18.6%. I could not find data for Dewsbury which is perhaps not surprising for such a small town. As for East London, Tower Hamlets has a share of 34.5% and Newham of 32% Muslims. The suburb of Paris with the most immigrants is Seine-Saint Denis which has a share of 17.3% immigrants born in non-EU countries (not all of whom are Muslims). Even if you double this percentage to include their descendants, it does not look like you could find a Muslim majority even there.

Literally in no city on Caldwell’s list is there a Muslim majority. Surely, you will find some part of a neighborhood with a Muslim majority if you drill down even further. But that means you are now looking at a fraction of 1% or 2% of the total population of Europe.

But doesn’t Christopher Caldwell only say that: „Such places may, as immigration continues and the voting power and political savvy of the Muslims already there increases, take on an increasingly Muslim character.“ Of course, he does. After selecting the most extreme 1% or 2%, if you can also introduce additional qualifications like “more immigration in the future that only ends up in these locations,” and “increasing political savvy of those already there,” then you are able to construct a case where a tiny sliver of Europe „may take on an increasingly Muslim character.“ Note how carefully worded that is.

It all only works because of framing: You first have to subscribe to Caldwell’s overarching story how this is only a start in an ongoing takeover, and then you can extrapolate to this totally unimpressive result. And on top of this, he tones even this claim down with a further qualification: “Muslims now either dominate or vie for domination of certain important European cities.”

Last defense line: But Europe is dying out, and Muslims have extremely high fertility rates.

Sorry, that doesn’t work either. Fertility for Turkish immigrants in Germany went down to about 2.5 already in the 1980s. For the second generation, it looks like it is already below replacement level. (Cf. footnote [1] below.) And then fertility data for Germany are heavily distorted downwards. With rising age at birth, total fertility rates undercount actual fertility. If you correct for this so-called “tempo effect,” you already had fertility of about 1.65 for Germany a decade ago. (Cf. footnote [2] below.)

And it has gone up a little since then, so the current number should be more like 1.7 or above. But that is not all. Since mean age at birth is about 31 years in Germany, you would have to make this figure comparable with shorter generation lengths for other groups. If you do this for a mean age at birth of 25 years, you can add another 0.05 or so, and you are safely in a range from 1.7 to 1.8 which is actually only marginally lower than for countries like the US, and also for those of Turkish descent in Germany. Just do the math how long it would take to turn a minority of about 6% into a majority with such marginal differences.

Here is the takeaway of my post:

  • Christopher Caldwell selects a list of cities that is presented as if it were a representative sample, but which consists only of extreme cases for what he wants to show. Talk about selection bias.
  • Even in those extreme cases, which make up only 1% or 2% of the total population of Europe, Muslims are not a majority, mostly not even close. For Germany, the assertion is resoundingly false everywhere.
  • Caldwell must know this. That’s why he equivocates between “dominating” and “vying for domination,” and that’s also why he introduces further assumptions like more immigration in the future and increasing political savvy to end up with a lame conclusion that some cities „may take on an increasingly Muslim character.“
  • The fiction of a dying Europe doesn’t save his argument either.
  • All it amounts to is good framing, so you accept on faith that a Muslim takeover is already under way. And then Caldwell throws carefully selected data at you and leaves out relevant information, so a casual reader, especially with little knowledge about Europe, can feel vindicated.
  • There is no ongoing Muslim takeover of Europe.


Notes

[1] Katharina Wolf: „Fertility of Turkish migrants in Germany: Duration of stay matters“, MPIDR Working Paper WP 2014-001, 2014, table on page 17. — Werner Haug, Paul Compton, Youssef Courbage: The demographic characteristics of immigrant populations, table on page 227. — Susanne Schmid & Martin Kohls: „Generatives Verhalten und Migration“, 2011, table on page 189, where the fertility for women of Turkish descent around 2007 is estimated as 1.80 or 1.85 depending on the data sets used.

[2] Marc Luy & Olga Pötzsch: „Schätzung der tempobereinigten Geburtenziffer für West- und Ostdeutschland, 1955-2008“, Comparative Population Studies – Zeitschrift für Bevölkerungswissenschaft, Jahrgang 35, 3/2010, p. 569–604, cf. page 585.

The U.S. and Canada Should Open Their Borders to Syrian Refugees

I had hoped that the Syrian civil war would produce, against the odds, a democracy which protected the diverse ethnic groups who live in the country. Either non-jihadist democratic Syrian rebels would prevail and be charitable towards those who have supported the Assad government, or an agreement between the rebels and the Syrian regime would transition the country toward democracy.

None of this has materialized, Syria is devastated, and with the oppressive Assad regime firmly in control of the western portions of the country, political progress appears impossible. According to David Lesch, writing in The New York Times, most Syrians now live in extreme poverty, the unemployment rate is over 50%, half of Syrian children are not enrolled in school, typhoid, tuberculosis, and other diseases are endemic, hundreds of thousands are dead, and millions are injured. Different forces, including the Islamic State, control different parts of the country, and fighting likely will continue between these groups. Hundreds of billions of dollars would be needed to rebuild the country, and Mr. Lesch believes that other countries will not step up to provide reconstruction money.

Not surprisingly, almost five million Syrians have fled their country, not including millions of others who have been displaced within Syria. Almost a million have migrated to Europe. About 18,000 Syrians have been resettled in the U.S., and about 40,000 Syrians have gone to Canada. Most of the refugees are stranded in Turkey (about 2.5 million), Lebanon (about 1 million), and Jordan (about a half million), with limited opportunities to resettle elsewhere.

It is past time for the U.S. and Canada to allow the millions of Syrian refugees living in Turkey, Lebanon, and Jordan to immigrate to their countries. In addition to the fundamental moral reasons that oblige countries to open their borders to almost all immigrants, there are several compelling reasons why there should be swift acceptance of these refugees.

First, while multiple nations and groups have been involved in the Syrian war, the U.S. bears some responsibility for the catastrophe. Since the U.S. has the world’s mightiest military, it always has the option to intervene and have an impact on a conflict. In Syria, the U.S. intervened by providing some support to rebels fighting the Assad regime, but the intervention never was forceful enough to quickly resolve the conflict. According to Philip Gordon, who worked on Middle Eastern affairs at the U.S. National Security Council from 2013 to 2015, the U.S. has only prolonged the Syrian war: “… our policy was to support the opposition to the point that it was strong enough to lead the regime and its backers to come to the table and negotiate away the regime. And that was an unrealistic objective…I think it is fair to say that we ended up doing enough to perpetuate a conflict, but not enough to bring it to a resolution.” The U.S. could have disabled the regime’s air force, as Senator McCain has recently advocated, especially before the Russian military became directly involved in the conflict. That might have saved the lives of many civilians targeted by Syrian aircraft and perhaps led to a settlement between the rebels and the government. (I recognize that direct military action doesn’t always lead to positive outcomes, considering the results in Iraq and Libya.) In addition, other actions short of direct attacks on the Syrian military could have been undertaken to protect civilians, as Nicholas Kristof has noted. These include creating safe zones in Syria protected by the U.S. military and destroying military runways so Syrian warplanes couldn’t be employed. Accepting Syrian refugees would be some compensation for the U.S. failure in Syria to resolve the conflict and protect civilians.

Second, Syrians in Turkey, Lebanon, and Jordan are struggling. (Some refugees are also struggling in Greece.) Many children are not able to go to school, it is difficult for adults to get work, and the refugees are becoming impoverished. (See here and here.) Some Mercy Corps teams “have seen families living in rooms with no heat or running water, in abandoned chicken coops and in storage sheds.” The desperation of the refugees is reflected in the attempt by many of them to reach Europe by making risky sea crossings, during which some have perished.

The host countries are apparently unwilling and/or unable to incorporate the newcomers into their societies. According to Mercy Corps, in Jordan and Lebanon, “weak infrastructure and limited resources are nearing a breaking point under the strain.” As to Turkey, one observer stated: “It remains unclear how the embattled country – which is also dealing with declining GDP, multiple attacks, and a war against Kurdish fighters in the southeast – will be able to accommodate nearly three million refugees, the vast majority of whom are young adults and children seeking jobs and education.”  The U.S. and Canada, with wealthier economies, more political stability, and a tradition of incorporating immigrants, would provide a better refuge for the Syrians than the Middle Eastern countries.

Third, the rapid migration of Syrian refugees to Canada and the U.S. could diminish the threat of terrorism. It is risky to continue the Obama policy of allowing very few Syrian refugees to enter or maintain the Trump policy, which indefinitely bars Syrian refugees from the country. The longer Syrian refugees are stuck in their host Middle Eastern countries, the greater the risk that they will become radicalized. According to a Brookings Institution article, “the risk of radicalization is especially heightened where IDPs and refugees find themselves in protracted situations: marginalized, disenfranchised, and excluded. Finding solutions for displaced populations should be an urgent priority for humanitarian reasons but also as a security issue.” (See also here. )

While ideally the Obama administration’s thorough vetting of refugees for admission into the U.S. would continue, its sluggish nature makes it imprudent to maintain. A faster screening process must be implemented in order to bring the refugees into economically advanced, mostly tolerant North America, where they could thrive and become more immune to radicalization.

In addition to rescuing the refugees from potentially radicalizing conditions in the Middle East, there is another mechanism by which admitting them might prevent terrorism. In a previous post, I suggested how open borders could help protect receiving countries from terrorism, including by freeing up resources for screening immigrants for terrorist threats, by improving government relations with Muslim immigrant communities which could assist with stopping terrorism, and by providing more Muslim immigrants who could join Western intelligence agencies. Similarly, admitting Syrian refugees from the Middle East could generate goodwill among the American and Canadian Muslim communities, perhaps resulting in an increase in the number of Muslims willing to assist in preventing terrorism.

Evidence of this may be found in the German government’s recent admittance of over a million immigrants, many of whom are Syrian refugees. This may have earned Germany more support from its Muslim community in efforts to prevent terrorism, according to Robert Verkaik, writing on CNN‘s website. He notes that

In October last year, two Syrians managed to capture a terror suspect in Leipzig who was planning a bomb attack on German airports… And in November last year, a German Muslim man who had returned from fighting ISIS in Syria provided information to German security services that led to the arrest of a major extremist cell. These examples show that the German security services, in common with agencies across Europe, critically rely on intelligence passed on by members of its Muslim communities.

He also seems to suggest that a Muslim informant warned the security services about the suspect before the attack on the Berlin Christmas market last year.

Many people are concerned that Syrian refugees could commit acts of terrorism in the U.S. However, they should consider that about half of the refugees are children, who “don’t fit the typical profile for terrorists.”  And, as noted elsewhere, most Muslims are peaceful. (Some Syrian refugees are not even Muslim.) Furthermore, Alex Nowrasteh of the Cato Institute has determined, based on historical data, the statistical chance of being killed by a foreigner committing a terrorist act in the U.S.: 1 in 3.6 million per year. For the risk of being killed by such an act by a refugee, the risk is 1 in 3.64 billion per year. If the 9/11 attacks are excluded, “21 foreign-born terrorists succeeded in murdering 41 people from 1975 through 2015.” Nowrasteh’s conclusion is that “foreign-born terrorism on U.S. soil is a low-probability event.” Its risks are minuscule when compared to other causes of death.

It is also notable that, as co-blogger Hansjörg points out, the German experience with the recent influx of Muslim refugees belies the predictions by restrictionists that their admittance would result in lots of terrorist acts there. Hansjörg notes that the number of lethal Islamist terrorist attacks in Germany (ever) is in the low single digits. There is minimal risk involved for Canada and the U.S. to accept millions of Syrian refugees, even without consideration for the aforementioned ways their admittance could actually help prevent terrorism.

Furthermore, it might be better for the Syrian refugees to go to North America than to some European countries. Many argue that the U.S. does a better job than European countries at integrating immigrants. One writer notes that “the conditions of Muslims in some European countries can create fertile breeding grounds for extremism, whereas societies with more-integrated Muslim populations like the United States are less susceptible.” (See also herehere, and here.) David Frum, writing in The Atlantic, states: “Europe is coping poorly with its large population of alienated, under-employed, and in some cases radicalized Muslim immigrants and their children. It seems then the zenith of recklessness to make that population larger still.” Another writer even suggests that radical Muslims in Europe will infect Syrian refugees with their ideology, although he proposes vigorous integration efforts rather than exclusion from Europe.

At the same time, some are sanguine about European integration of its Muslim residents.  Shada Islam of Friends of Europe asserts: “Make no mistake; while extremists of all ilk may decry multi-cultural Europe, the process of adaptation, accommodation, integration, of Europe and Islam is already well underway… Europe’s once solely security-focused approach to dealing with Muslims has been replaced with a more balanced view that includes an integration agenda and migrant outreach programmes.” Similarly, co-blogger Hansjörg, who lives in Germany, states that “on the whole, my personal impression is that integration works quite well also in Europe. There is a tendency, especially in the US (but also in Europe from those who are critical), to present this as a story of severe problems, divides that cannot be bridged, etc. I don’t think that is true (not to say there are not some problems).”

Finally, admitting millions of Syrian refugees into the U.S. and Canada may not be very disruptive in other respects. A study for the Centre for European Economic Research on the recent migrant influx into Germany has found that there are “no signs of quick and clear deleterious effects in Germany post ‘migrant crisis’ involving, as the authors conclude, ‘more than a million’ migrants entering Germany in 2014-15 on native employment, crime, or anti-immigrant politics specifically linked to the presence of migrants on the county level.” In the U.S. it is notable that “eleven percent of Syrian immigrants to the U.S. own businesses, according to a new report from the Fiscal Policy Institute and the Center for American Progress. That compares to four percent of immigrants overall and three percent of people born in the United States.” According to one Syrian immigrant, self reliance is emphasized in Syrian culture, a trait that is compatible with American culture. Moreover, a research director at the Fiscal Policy Institute states that Syrian immigrants in the U.S. have generally been successful and could help the refugees adapt to life here.

The economic impact on the U.S. actually could be positive. People throughout the U.S. welcome refugees because they know from experience the beneficial effect that refugees have on communities, according to David Miliband, president of the International Rescue Committee. He writes that “to take one example, over the course of a decade, refugees created at least 38 new businesses in the Cleveland area alone. In turn, these businesses created an additional 175 jobs, and in 2012 provided a $12 million stimulus to the local economy.” In Rutland, Vermont, the mayor has advocated resettling refugees from Syria and Iraq in his city to help address a declining and aging city population. Population loss there could lead employers like General Electric to leave the city. (A 2013 post looks at efforts by various American cities to attract immigrants in order to help their economies.)

In summary, allowing millions of Syrian refugees to enter the U.S. and Canada not only would be morally warranted, it could minimize the risk of future terrorism, relieve the suffering of many, and enrich both countries. Unfortunately, the Trump administration is moving in the opposite direction, with Trump ordering an indefinite stop to the entry of Syrian refugees into the U.S. The longer he blocks their entry, the greater the perils for both the refugees and the West.

Deportation Constitutes Cruel and Unusual Punishment

“As Justice Brandeis recognized long ago, deportation is akin to the loss of property or life, or ‘all that makes life worth living.’” (Bender’s Immigration Bulletin, 1997, 2(18), p. 737)

Donald Trump recently suggested that U.S. citizens who burn the American flag should be punished, perhaps by being stripped of their citizenship. This elicited a reminder that the U.S. Supreme Court has ruled that revoking someone’s citizenship in order to punish that person for a crime is unconstitutional, violating the Eighth Amendment’s prohibition of “cruel and unusual punishments.” In that ruling, the court stated that revocation of citizenship

“… subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people.”

For undocumented immigrants and other immigrants vulnerable to deportation from the U.S., the court’s language describes their predicament, especially for those with deep roots in the U.S. They fear losing their work permits (those who have them), apprehension, and deportation, and if expulsion comes, it is devastating. (It is undoubtedly also devastating for those who have spent less time in the U.S., especially if they are sent back to a country where they are endangered, but here I am limiting my focus to those immigrants whose experience is very similar to that of a denationalized citizen.) The ruling thus suggests that the suffering caused by the U.S. deportation regime, which includes both deportation itself and the threat of it, constitutes “cruel and unusual punishment,” let alone being immoral from an open borders perspective. (The term “punishment” is used here because it connects to the Constitution. Punishment of any kind based on immigration status is, in my opinion, immoral.)

Joseph Carens would likely agree that expelling immigrants who have long resided in the U.S. constitutes “cruel and unusual punishment.” In addition to arguing for open borders generally, Carens has emphasized the injustice of deporting immigrants who have established roots in a society:

“Living and working in a society makes immigrants members of that society over time, even if they arrived and settled without permission. This is clearest for those who arrived as young children. Everyone has heard stories about the Dreamers, young people who were raised in the United States and who are now stuck in limbo because they do not have legal status. They are Americans in every respect that should count, and they can’t be blamed for coming here because they were only children when they arrived. So it would be morally wrong to kick them out… when people have been here for a long time, living peacefully and contributing to the community in ordinary ways, the morally right thing to do is to let them stay, regardless of how they arrived.”

The election of Donald Trump has exacerbated immigrant suffering, heightening their anxiety and threatening greater numbers of deportations, although it is unclear what his policy will actually be. At times, he has pledged to deport all undocumented immigrants.  More recently, he has suggested he would focus on immigrants with criminal records. It is also unclear whether he will overturn President Obama’s Deferred Action for Childhood Arrivals (DACA), which has protected hundreds of thousands of undocumented immigrants who arrived in the U.S. as children from deportation and provided them work permits. (It should be remembered that, despite DACA, the deportation regime thrived under Obama.)

Immigrants who are protected under DACA are certainly distressed by the possibility that their protection will disappear under Trump. The New York Times, which has reported on some of these young immigrants, notes that if Trump terminated the program, at first they would lose their work permits, depriving them of sometimes middle class salaries: “…the Dreamers could see the accouterments of middle-class life — a studio apartment in Brooklyn, a driver’s license, a biweekly paycheck with deductions for retirement, a coveted desk in a financial firm — disappear.” A teacher at a middle school said of possibly losing her work permit, “‘I wouldn’t lie to say it won’t devastate me.’”  Moreover, there is the fear of being deported: “Advocacy groups have been inundated with calls from people afraid or despondent,” reports The New York Times. A 27 year old financial consultant stated: “‘The first thought I had is that I have done everything right and it is all going to be taken away from me… It feels a little bit like a betrayal. I’ve been here since I was 4 years old. I’m an American.’” A legal assistant who has been in the U.S. for almost thirty years, said “‘It feels like a step backward, to be back in this insecure place where you don’t know what the next step might be,’ she said, her voice breaking with tears. She has tried not to cry in front of her children and to assure them that she is safe.”

Non-DACA undocumented immigrants who spent many years in the U.S. but who have been deported have suffered immensely, as The New York Times also has shown. Juventino Martin Gonzalez was deported to Mexico after working in the U.S. for 20 years and having three children here. A month after being deported, he came to the border fence separating California from Mexico “for a glimpse of the American side he still considers home. He said, ’I belong over there, not here… this is the closest I can get…’” Miguel Romero was also deported to Mexico:

“For 16 years, he had worked as a glazier in Brooklyn. He married and was raising five children. But earlier this year, immigration officials arrested him while he was installing glass in a storefront in lower Manhattan, Mr. Romero said… His wife, also in the United States illegally, decided not to join him, and he says he does not blame her, since wages here average about $10 a day… He does not dare cross the border illegally again, for fear of getting caught and serving time in jail. ‘My whole life I spent up there, and it’s hard for me to come back,’ he said in perfect English. ‘We have been up there so many years, and most of us don’t commit crimes. People that do nothing but work should get a break.’”

Many additional immigrants who lived in the U.S. for many years have been deported, not because they were undocumented but on account of a criminal record. My opinion is that immigrants (who have not become citizens, in which case they generally are immune from deportation based on their criminal records) who have been convicted of a crime in the U.S. should be punished through the justice system, as would a U.S. citizen, but that they should not face deportation because of the crime, regardless of the offense. Regardless of one’s position on this issue, it is clear that those deported (often for very minor offenses) after living rooted lives in America suffer. The Leitner Center for International Law and Justice at Fordham Law School has noted that many Cambodian immigrants to the U.S. have been deported after committing crimes. The center observes that “The U.S. separated them from their homes and families and sent them to a country with which they had little or no connection.” While some individuals eventually accept their life in Cambodia, many struggle to adjust, with some committing suicide. Especially devastating is the separation from loved ones in America: “Deportation destroys these relationships. It forces non-citizens to leave their friends, parents, siblings, and spouses. Furthermore, many must abandon their U.S. citizen children. Of the forty-eight returnees interviewed for this report, twenty-five left behind sons or daughters in the United States. As U.S. law makes it all but impossible for returnees to obtain a tourist visa, most will never see their children again.” One man was deported after forging a $900 check to pay his bills and has never seen his baby girl, who was born while he was in immigration detention before being sent to Cambodia.

Those under the threat of deportation because of their criminal record also are distressed. Lundy Khoy was born in refugee camp in Thailand, arrived in the U.S. thirty five years ago when he was a one year old, and has legal permanent resident status. He is not an American citizen but states “there is no way I am not an American.” In 2000 he pleaded guilty for possessing seven tablets of Ecstasy with intent to sell. His conviction made him deportable, even though he later received a pardon from the governor of Virginia. He has not been deported but has spent almost nine months in immigration detention (he is now released) and is fearful: “If I was deported, I would be sent to Cambodia. But I had never been to Cambodia!”

Another immigrant who faced a similar situation is Qing Hong Wu, who immigrated legally from China when he was five years old. When he was fifteen he pleaded guilty to muggings he had committed. After serving three years at a reformatory for his crimes, Wu worked to become a vice president for Internet technology with a national company. However, almost twenty five years after coming to the U.S., Wu was detained by immigration agents and subject to deportation because of his criminal record. In a telephone interview from detention with The New York Times he said, “’Being permanently banned from the U.S., that’s the biggest stress I’m under… That’s the harshest penalty any person can ever receive.’” Fortunately, after Wu spent four months in detention, the governor of New York pardoned him, which erased the grounds for deportation, unlike in Khoy’s case.

I believe that deportations are immoral, except in extradition cases in which individuals face criminal trials in other countries. However, I am not a lawyer and am not arguing here that the deportation of immigrants with strong roots in the U.S. could be found unconstitutional by a court. Apparently, a legal claim that deportation violates the Eighth Amendment probably would be unsuccessful, since deportation is not legally considered a punishment. The New York Times notes that “under the 19th-century legal doctrine still at the heart of much of modern immigration law, however, neither detention nor deportation counts as punishment, just as administrative remedies for the failure to exclude an undesirable foreigner in the first place, experts say.” It is evident, though, that deportation and the threat of it cause immigrants to suffer the equivalent of what the Supreme Court has deemed to be  cruel and unusual punishment, which is a damning indictment of both the status quo and a possibly even crueler future under Trump.

Creative Commons License Deportation Constitutes Cruel and Unusual Punishment is licensed by Joel Newman under a Creative Commons Attribution 3.0 Unported License.