In my last blog post, I interrogated the depth of narrative and the law’s inability to capture the profundity of an individual. For this blog post, I attempted to evaluate the flip side of the coin by opting to work backwards: instead of appraising existing laws, I’d instead set foot along the theoretical frontier of open borders. In a world where no restrictions, quotas, or criteria existed, how would one build a standardized immigration policy from the ground up?
I breached the topic of open borders with the presumption that such a concept would be a logical extreme for any reasonable person. I read a number of articles on the topic, ranging from the more convincing to the not so much. I even dipped a toe in the literary with an essay from the New Inquiry that turns the tables by putting the power structure––not the person––on trial. Armed with enough research to at least hold my own, I readied myself for the qualified, tempered commentary I expected to receive in my conversations with four immigration attorneys on the subject of what does and does not work in immigration.
And frankly, I was surprised. Apparently, open border theory is not relegated to the intellectuals, writers, or radical economists who have little to lose by pressing the accelerator as far as it will go just to see where the world ends up. The concept of open borders is not a liberal pipe dream; the practical, grounded “clerks” have their hands on it, too. One attorney point-blank said to me, “Honesty, I’m for open borders” while another stated, “I don’t understand why there should be any sort of limitations [on immigration], except for keeping people who are unsafe out.”
This kind of heedless honesty puzzled me. I expected the construction of the attorneys’ commentary to somehow mirror the complex, contradictory nature of the space in which they operate: though the meaningful, valuable work of immigration attorneys should not be understated, it is not at all untrue to state that they profit off of the policies they criticize. Immigration law is so convoluted that it is frequently compared to the tax code. Add that to the fact that deportation cases fall under the jurisdiction of civil law, so defendants must rely on private attorneys if they ever want a chance to stay in the United States, with the stakes ramping up if their proceedings take place in cities like Atlanta or Charlotte, NC, where deportation rates are upwards of 90%.
Simply put, I found it odd that one would advocate for no visa quotas when her job involves steering an individual through the violent tides and murky waters of immigration policy in order to clinch an H-1b visa. I found it strange that an attorney would proclaim open borders when her office is bursting at the seams with twice as many calls as she had a year and a half ago. And I found it outright bizarre that an attorney would argue that the government must provide free legal counsel to those facing deportation proceedings when he makes his living as a private, paid attorney representing said individuals. This latter attorney later described the discomfort he felt as a “bougie lawyer” representing refugees who were fleeing violence and could barely afford to pay him. Another described the stark “power dynamic” he sensed between himself and his clients, stating that the latter were placed in “vulnerable situations” that necessarily positioned them “in a state of dependency on a private attorney.”
In my conversations with attorneys, what I was expecting was some sort of reaffirmation of existing immigration policy: Sure, the law will fall through occasionally, and sometimes its failures may be egregious, but at least its underlying spirit retains some semblance of morality. However, I found that this was far from the case. Two attorneys advocated for a “complete overhaul” of current immigration policy, while the other two stated that “major changes” needed to be made. And three of the four attorneys stated that immigration policy “values economic and political purposes more than it does the person”. Even the one attorney who agreed that immigration policy is grounded in moral principles quickly added that he “fundamentally disagreed with some of those principles” and that many a time “the economic and the political come first.”
The attorneys repeatedly cited a number of examples that they believed demonstrate their assertion: the slowness with which a path to citizenship has been formulated for provisional and undocumented workers, who are crucial to agriculture yet are frequently exploited as a result of their liminal status; the deportation of El Salvadorans with TPS although some have been established in this country for nearly 18 years; the president’s backing of merit-based proposals that are simply thinly-veiled excuses for cutting legal immigration across the board (the administration’s merit-based claims are also insincere considering its hypocritical cuts to H1B visa availability and its removal of a policy that allowed H4 spouses to work, despite H1B and H4 recipients being some of the most highly skilled workers that are entering this country); DACA and the ease with which Democrats stopped backing it when its political appeal became null. When asked to assess the moral value of immigration policy, one attorney straightforwardly asserted that refugees and asylum seekers are “basically screwed unless they have good economic resources” and those with “limbo” status like TPS and DACA recipients are “frequently taken advantage of.” The moral premise of “do unto others as you would have them do unto you is completely ignored by the structure of the law,” this attorney stated.
In my last blog post, I spoke of the contrast between narrative and policy and the inherent difficulty of drawing the colossal vibrancy of an individual through the narrow letter of the law. But what I found was that the immigration lawyers I spoke to had no issue with the limited nature of legalistic morality in contrast with the richness of narrative morality; rather, they found that law itself was often not moral at all. Granted, all four of the attorneys I work with specialized in humanitarian law, which has faced the greatest slashes in over a decade and has received significantly less attention than family and employment-based immigration, which together constitute at least 80% of immigration cases. Though the attorneys had varying critiques of family reunification and merit-based system, all had scathing criticisms of the asylum policies, which one attorney labeled “the stingiest possible” and another called “shameful.” This latter attorney described the doubling in migrants coming from the “Northern Triangle” (which consists of El Salvador, Guatemala, and Honduras) between 2011 and 2014 as evidence of a “refugee crisis.” In 2014, Honduras had the world’s highest murder rate, followed by El Salvador at #2 and Guatemala at #9. Northern Triangle states are among the poorest in Latin America, and a 2014 DHS report cited rural poverty and “extreme violence” as forces motivating unaccompanied children to cross the border. Thus, the attorneys’ frustration is understandable: when your clients are in “direct danger” and you consider them to be refugees under every standard other than the law’s, then the law’s inability to formally accommodate such cases seems not only aggravating, but unjust as well. “Unless you fit into a pigeonhole, you can’t stay here,” said one attorney, “So I have to find creative ways to get them status.”
What are the implications when some of the most pragmatic and practical individuals who could speak on the subject of immigration law have such strong emotions regarding it? What does it mean when an attorney––who has everything to lose or gain with changes in policy––advocates for open borders or a complete overhaul of the current system? Is this an indication that the system is broken? That it seriously has no moral credence? I’m not sure about that. But what I do think is that the attorneys’ harsh words on the origin of immigration policy serve as a reminder that we must consider why laws are drafted, and for whom. Politicians want to be reelected, so they want to serve the interests of their voters. But when the policy they’re drafting intimately affects individuals who are not their constituents and only tangentially concerns their actual voters, then what reason do they have to be nuanced, careful, and concerned? Is it this phenomenon reflected in the blundering nature of the law that the attorneys cited time and time again? Perhaps we’ll have to wait until the immigrants––or their children––start voting before immigration law truly starts changing.
I think a lot about questions of obligation, especially as it concerns students’ sense of “purpose,” and one of the elements of obligation that frequently comes up in these conversations is: how equally do we want to be treated? I often have students read Peter Singer’s classic “Famine, Affluence, and Morality” piece, which lays the framework for a lot of his subsequent writing on the moral obligation to help those far from us. In the past, he suggests that we didn’t necessarily know in with any certainty what was happening out of our purview. Communications technology has made the world much “smaller,” and so now I can know with fairly high certainty that an earthquake has occurred in Haiti or that there’s an ongoing crisis of migration to Europe from the Middle East and North and Central Africa. I’ve been to Brownsville, TX to talk with consuls and lawyers and those engaged in humanitarian work. I “know” that issue more intimately. But Singer suggests that I really know about the Mediterranean or Haiti equally well, or well enough that I would act if the issue were physically closer. In a later piece, he suggests that all of us would save a child drowning in shallow water if we were to see it occurring on our way to work. If my shoes get ruined, who cares? Small price to pay for ensuring that an innocent life isn’t wasted. If I know about such peril out of my line of sight, my moral burden is equal. Intellectually this makes perfect sense.
Where it tends to get tricky for students is when the stranger’s peril is balanced not against equal “strange”ness at greater distance but against higher degrees of familiarity. Am I morally obligated to treat a stranger in peril equally to my children in peril? How much should I sacrifice of my income, which I primarily consider for ensuring that my family can survive and thrive, in order to ensure the survival of people far away? I’ve introduced confounding variables and also a healthy bit of irrationality. I’m not primarily rational about my children. I don’t consider them to the exclusion of everything else, but they’re frankly more important to me than other people’s children are. That in and of itself isn’t controversial. If nation-states are paternalistic towards their citizens, if the moral foundations of the nation-state rest at least in part on its denizens being separate and the primary concern of the nation-state, what do we owe people who are outside that purview? Probably depends on a number of factors, but I think a lot hinges on the degree to which you think Singer is right that we should indeed operate as if each life, which in the Enlightenment and under many forms of law should be treated as of equivalent value to any other life, does indeed require equivalent action.
I’ve written about 500 words here, and I’m still WAY oversimplifying, but something to consider, especially as you talk with people about what’s good about borders and border policy and what’s bad about them. Capricious immigration policy is likely immoral. Likewise, since nation-states and their denizens interact consequentially, what happens outside borders matters for everyone. Wild and disproportionate hoarding of resources within a border again seems likely to be immoral, especially given some incredibly ugly and unjust history of action by the US and in the areas of the world that are currently unsafe to live. Distilling it down, though, what should our obligations to help desperate people outside our borders be when we aren’t to blame for their circumstances? Is that formulation reasonably possible?