ImmigrationProf Blog

Immigration Articleof the Day: Foot Voting and the Future of Liberty by Ilya Somin

Foot Voting and the Future of Liberty by Ilya Somin in Todd Henderson, editor, The Cambridge Handbook of Classical Liberal Thought (Cambridge University Press, 2018)

Abstract

One of the major goals of libertarianism – and liberalism generally – is expanding political freedom: the opportunity to exercise meaningful choice over the government policies we live under. The main opportunity for political choice in modern liberal democracies is ballot box voting. Despite some genuine virtues, it has serious flaws as a mechanism for enhancing political freedom. The average citizen has almost no chance of affecting the outcome of an electoral process. In part as a result, he or she also has strong incentives to make ill-informed and illogical decisions. We can do better on both fronts when we “vote with our feet.”

Part I of this chapter briefly outlines three types of foot voting: voting with your feet between jurisdictions in a federal system, foot voting in the private sector, and international migration. All three involve meaningful exercises of political choice. In Part II, I explain how foot voting is superior to ballot box voting as a mechanism of political freedom. It allows for more meaningful and better-informed choice. It is also superior from the standpoint of several leading accounts of political freedom: Consent, negative liberty, positive liberty, and nondomination.

Part III considers objections to foot voting based on theories of self-determination, under which current residents of a given territory have a right to exclude newcomers in order to protect the political freedom of the former. Such theories come in both group-oriented and individualistic variants. Group theories posit that certain groups have a right to exclude newcomers based on their ethnic, racial, or religious characteristics. Individualistic theories claim that current residents can exclude newcomers for much the same reasons that private property owners or members of a private club have a right to exclude. I argue that both types of claims have severe flaws. Part IV discusses some institutional reforms that can help expand foot voting opportunities, while mitigating potential downsides. Finally, the Conclusion briefly suggests some ways in which expanded foot voting can help brighten future prospects for promoting libertarian values.

US Undocumented Population Continued to Fall from 2016 to 2017, and Visa Overstays Significantly Exceeded Illegal Crossings for the Seventh Consecutive Year

New York, NY – The Center for Migration Studies of New York (CMS) today released a new report finding that the number of persons overstaying their visas exceeded entries without inspection (EWIs) (e.g., illegal border crossings) for the seventh straight year. From 2016-2017, visa overstayers accounted for 62 percent of the newly undocumented, while 38 percent had crossed a border illegally.   The new report - authored by CMS senior fellow Robert Warren - comes at a time in which the federal government has been shutdown for a record 25 days in an effort by the Trump administration to obtain federal funding for a border wall on the US-Mexico border.   “It is clear from our research that persons who overstay their visas add to the US undocumented population at a higher rate than border crossers. This is not a blip, but a trend which has become the norm, “said Donald Kerwin, CMS’s executive director.  “As these numbers indicate, construction of hundreds of more miles of border wall would not address the challenge of irregular migration into our country, far from it.”   The report also found that the undocumented population from Mexico fell by almost 400,000 in 2017 and that, for the first time, the Mexican population constituted less than one-half of the total undocumented population. The undocumented population has dropped by one million since 2010, to under 10.7 million.   “Not only is a wall expensive, it fails to address the issue at hand,” Kerwin concluded.  “Our elected leaders in Washington need to reopen the government and begin reforming our broken system in a humane, effective, and balanced manner, including through legalization of DACA recipients and long-term beneficiaries of Temporary Protected Status.”

Entering Finland - An Experience in Immigration Entry Contrasts

University of Louisville Brandeis School of Law professor JoAnne Sweeny is spending some time in Finland on a Fulbright. Congratulations, JoAnne! She recently entered Finland for the first time, and her experience with Finnish immigration control differs vastly from what one would experience entering the United States. I'll let her tell you about it:

Let me explain immigration in Finland. So, I have a weird situation because my husband is an EU citizen and, therefore, I am considered an EU dependent. Therefore, to enter Finland for my Fulbright, I didn't have to apply early for a visa.

Instead, my husband applied for a residence permit for us through his EU citizenship. This was all done online through an online application and the submission of pdf scans of various official forms such as our marriage certificate and our son's birth certificate. We also had to get an apostille for those documents. More on that later.

Anyway, he submitted everything and we were given an appointment time and day at the immigration center in Helsinki. But we were given nothing official other than that.

So, we were going to enter Finland with the intent to stay more than 90 days (so no tourist visa) with zero documentation that we were allowed to do so. The lack of documentation terrified me, to be honest. And my husband had done all the paperwork so I never saw the process and my inner control freak was... well, freaking out.

So, we get to passport control in Helsinki and they told us we were allowed to go into the EU citizen line - not all countries allow that, so that was a good sign. However, the international line was shorter, so we did that one instead. I walked up first to the immigration official - a youngish woman with red hair shaved closer on the sides with a small topknot (it looked badass) and handed her the passports for me and my son. My husband stood behind us and held on to his passport, possibly to be able to flee and disavow us later if something bad went down.

I need to add here that I expected emotionless efficiency at the border. Finns are not known for their gregariousness and if you add border control to that mix, well, it can't help but make someone bring out their poker face a-game.

So, anyway, she takes the passports and asks how long we intend to stay. Ok, here we go. The short truth is about three weeks - we already have plans to go to Italy at the end of January because hell yeah. So, technically, we're only here for a few weeks. But that's not the whole truth because we'll be back again for a few weeks and then off to Ireland for my son's birthday and then back and then off again a few weeks later for... wait, I don't want to spoil the surprise. Let's just say that I'm living in Europe for, in total, about six months and I am going to squeeze in as much as possible. So there's gonna be some country hopping. There just is.

But all that hopping is bound to be noticed by the Finnish government at some point so, I figure, honesty is my best policy.

How long will be I be in Finland? "Until May" I tell her.

This answer makes her pause thoughtfully for a second. So, being an American who can't shut up, I explain myself before she even asks.

"I have a Fulbright Award and I'll be teaching at the University of Turku."

This does not seem to impress her. Not that I think it should but any kind of positive response would be encouraging. But, no, my badass topknot immigration viking goddess appears unmoved. Or maybe I can't read Finnish faces yet.

Her next question: "Do you have a residence permit?"

Ah, the fun part. "No, we applied online and have an appointment with the Immigration Center tomorrow."

No reaction from her as she looks at her monitor and then our passports.

I turn nervously to my husband who has not fled yet. "Do we have any paperwork from them?" He looks confused and then says no.

I am feeling very nervous at this point. How can I prove that I've applied for the permit? Where's my email? My confirmation number? I can't order movie tickets online without a confirmation number or a pdf with a barcode. And that's to see Ant Man and the Wasp (last movie I saw in the theater, no joke, we don't get out much).

I turn to the immigration goddess with what must have been desperation in my eyes. "Do you need a confirmation email? Our appointment is tomorrow at 10am."

Sidenote: I was totally wrong about that. Our appointment was at 1pm. Why did I think 10am? WHY DID I LIE TO HER?

My prevarication was never discovered, however. The immigration goddess (I really should have looked for her name, I could never be a journalist. Let's just call her Emma. Please note that I will not go back and change her name throughout this blog. Enjoy the journey.).

Emma, for the first time, cracks a small smile. "No, I believe you," she says.

Wait, what? You believe me? That's it?

That was, in fact, it. She looked at all our passports, asked a few perfunctory questions, and sent us on our way with a final admonishment. "If you do not receive a residence permit, you must leave before 90 days."

I felt the need to spill my guts a bit more. This was just way too easy. "Yes, of course. We're actually going to Italy in about three weeks but I thought I should tell you the whole story."

She nodded. "Yes."

In that moment, I felt like we had suddenly become best friends, our minds in total agreement on everything. I feel like she really got me, you know?

But before we could exchange whatsapp numbers, my husband and son moved me past her booth and through the safety of the now-opened glass door next to her. We made it.

So, what's the point of this story? One, I am no immigration law expert but, seeing what my husband - a US permanent resident - goes through when he returns to the United States stands in sharp contrast to what I experienced yesterday.

As I have mentioned, Finns are not known to be warm and cuddly. But, damn, Emma was calm, open and positively welcoming compared to what I've seen in the US. In US passport control, the atmosphere is tense, especially if you're not a US citizen. They make my husband have his retinas scanned just to enter his country of residence, and he is a white Irish guy, so pretty acceptable as foreigners go in America.

And in Finland, they let me in with just an assurance that I would obtain a residence permit or leave within the required 90 days. It's crazy. I felt like I'd somehow gotten away with something, even though I was completely (sometimes almost embarrassingly) honest. We did all the paperwork in advance, we were prepared. But, here's the kicker, they trusted me at my word.

It was so simple. It makes me wonder why we have made it so complicated, so confrontational.

-KitJ posted on behalf of Joanne Sweeny

Border apprehensions increased in 2018 – especially for migrant families

There were nearly 416,000 apprehensions at the U.S.-Mexico border in the first 11 months of 2018, the most in any January-November period since 2014, according to a Pew Research Center analysis of the most recent available data from U.S. Customs and Border Protection. The increase was driven in part by a dramatic spike in border apprehensions of family members in the fall of last year.

Despite the increase, the number of border apprehensions through the first 11 months of 2018 remained far below the levels throughout most of the 1980s, 1990s and 2000s, when around 1 million or more migrants were being apprehended each fiscal year.

The situation at the Southwest border has become the focus of a partial federal government shutdown, now in its third week. President Donald Trump and Democratic congressional leaders are at an impasse over Trump’s proposal for a wall at the border.

KJ

Law professor headed to New Mexico Senate

Antoinette Sedillo Lopez gives a thumbs up to her supports as she entered the room on election night. Tuesday, June, 05, 2018. (Jim Thompson/Albuquerque Journal)

 

Here is some law professor news from New Mexico!   Former University of New Mexico law school associate dean and congressional candidate Antoinette Sedillo Lopez has been appointed to a vacant Senate seat.

The Bernalillo County Commission voted unanimously to appoint Sedillo Lopez to the Albuquerque-based Senate District 16 seat that was vacated when Cisco McSorley resigned last week.

Sedillo Lopez, a Democrat,was sworn in shortly after being appointed.

KJ

Report: Toward Empowerment and Sustainability – Reforming America’s Syrian Refugee Policy

The Report: Toward Empowerment and Sustainability – Reforming America’s Syrian Refugee Policy - is a product of research, including field research in Jordan, by a team of Rutgers law students, Professor Sahar Aziz (Rutgers) and Professor Jeena Shah (CUNY Law), as part of the work of the Center for Security, Race and Rights. The report is available here,

The report examines Jordan as a case study for informing U.S. Syrian refugee policy. Jordan’s experience exemplifies the myriad challenges facing neighboring countries that warrant a rethinking of America’s approach to the Syrian refugee crisis.

Four recommendations for government policy makers would contribute toward more sustainable and effective U.S. refugee policies:

1. Increase U.S. aid to fund programs that empower refugees to be economically independent in their host countries rather than indefinitely dependent on international aid. Refugees unable to survive off of limited international and domestic subsidies are forced to take their sons out of school to work, borrow money from friends and family, and marry off their daughters at a young age.
2. Use development aid to strengthen both state institutions and the private sector. A promising model is the Jordan Compact, an agreement between the Jordanian government and several European and international non-state actors launched in 2016.
3. Fund humanitarian projects with need-based eligibility criteria not limited solely to Syrian refugees.
4. Increase the number of Syrian refugees admitted into the United States.  Less than 100 Syrian refugees were admitted in fiscal year 2018 as compared to 12,000 in 2017.

To read the full report, click here.

KJ

Federal Judge Blocks Trump Administration's Census Citizenship Question

Michael Wines for the New York Times reports that

"[a] federal judge [Jesse M. Furman] in New York blocked the Commerce Department on Tuesday from adding a question on American citizenship to the 2020 census, handing a legal victory to critics who accused the Trump administration of trying to turn the census into a tool to advance Republican political fortunes.

The ruling marks the opening round in a legal battle with potentially profound ramifications for federal policy and for politics at all levels, one that seems certain to reach the Supreme Court before the printing of census forms begins this summer."

Here is the district court's ruling.

KJ

From the Bookshelves: : The End of the Myth: From the Frontier to the Border Wall in the Mind of America by Greg Grandin

The End of the Myth: From the Frontier to the Border Wall in the Mind of America Hardcover – by Greg Grandin.   To be released March 2019

From a Pulitzer Prize finalist, a new and eye-opening interpretation of the meaning of the frontier, from early westward expansion to Trump’s border wall.

Ever since this nation’s inception, the idea of an open and ever-expanding frontier has been central to American identity. Symbolizing a future of endless promise, it was the foundation of the United States’ belief in itself as an exceptional nation―democratic, individualistic, forward-looking. Today, though, America has a new symbol: the border wall.

In The End of the Myth, acclaimed historian Greg Grandin explores the meaning of the frontier throughout the full sweep of U.S. history―from the American Revolution to the War of 1898, the New Deal to the election of 2016. For centuries, he shows, America’s constant expansion―fighting wars and opening markets―served as a “gate of escape,” helping to deflect domestic political and economic conflicts outward. But this deflection meant that the country’s problems, from racism to inequality, were never confronted directly. And now, the combined catastrophe of the 2008 financial meltdown and our unwinnable wars in the Middle East have slammed this gate shut, bringing political passions that had long been directed elsewhere back home.

It is this new reality, Grandin says, that explains the rise of reactionary populism and racist nationalism, the extreme anger and polarization that catapulted Trump to the presidency. The border wall may or may not be built, but it will survive as a rallying point, an allegorical tombstone marking the end of American exceptionalism.

KJ

A Wall Cannot Fix Problems at Border; Smart Solutions for Managing Asylum Cases Can

What President Trump calls a border crisis is in fact a crisis in the asylum system—one that has been worsened at every turn by his administration’s harsh policies and rhetoric.

In his demand for a border wall, the President has forced a record-setting government shutdown. Amid an impasse with congressional Democrats disinclined to give him $5.7 billion to begin wall construction, he has dangled the idea of declaring a national emergency and tapping into disaster-relief dollars earmarked for Texas, Puerto Rico, and others.

Yet a wall will not fix the problems occurring at the U.S.-Mexico border, as MPI’s Doris Meissner and Sarah Pierce explain in a new commentary.

Instead, the money would be far better spent retooling an overwhelmed asylum system, adapting outmatched border enforcement infrastructure and procedures to respond to the changing composition of arrivals, and working cooperatively with Mexico to tackle the factors propelling Central Americans to flee.

“For considerably less than the $5.7 billion for the wall and by managing existing resources differently, the administration could turn this ship toward a different sea,” they write.

KJ

Cancelled Immigration Court Hearings Grow as Shutdown Continues

The latest TRAC Immigration report states that, since the beginning of the federal government shutdown, most Immigration Court hearings have been cancelled. As of January 11, the estimated number of cancellations reached 42,726. Each week the shutdown continues, cancelled hearings will likely grow by another 20,000. As many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January. See Table 1.

Table 1. Immigration Court Hearings

As of Shutdown Week	Scheduled Hearings Cancelled
Dec 24 - 28	5,579
Dec 30-Jan 4	16,987
Jan 7 - 11	42,726
Jan 14 - 18	67,427
Jan 21 - 25	86,192
Jan 28-Feb 1	108,112
Feb 4 - Feb 8	129,490
Feb 11 - 15	149,434
Feb 18 - 22	165,301
Feb 25-Mar 1	185,071

 

The magnitude of the shutdown's effect - termed "devastating" by Immigration Judge Dana Leigh Marks - is based upon detailed analyses of court records by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University[1]. Individuals impacted by these cancellations may have already being waiting two, three, or even four years for their day in court. Judge Marks, former president of the National Association of Immigration Judges, in an interview January 9 on PBS estimated that it could add another three or four years to the wait for immigrants who are on her docket before their hearing can be rescheduled[2].

Since few cases are being resolved during the shutdown, each week the shutdown continues the practical effect is to add thousands of cases back onto the active case backlog which had already topped eight-hundred thousand (809,041) as of the end of last November.

KJ

Trump Defends Border Security Position, Government Shutdown

 

pic.twitter.com/3IH1yW2eTg

— Donald J. Trump (@realDonaldTrump) January 12, 2019

President Trump continues to defend his refusal to work to reopen the U.S. government.  This video released via twitter explains.

KJ

 

The Intercept: "The Border Patrol Has Been a Cult of Brutality Since 1924"

A Border Patrol Agent practice firing a Thompson submachine gun near El Paso in 1940.

Greg Grandin on The Intercept has a detailed post about the racist and brutal roots of the U.S. Border Patrol.  Among other sources, the article relies on the excellent book Kelly Lytle Hernandez, Migra!   A History of the U.S. Border Patrol.

The article concludes:

"The viciousness we are witnessing today at the border, directed at children and adults, has a long history, a fact that should in no way mitigate the extraordinary cruelty of Donald Trump. But it does suggest that if the U.S. is to climb out of the moral abyss it has fallen into, it has to think well beyond Trump’s malice. It needs a historical reckoning with the true cause of the border crisis: the long, brutal history of border enforcement itself."

KJ

The Daily Show Trolls Trump With His Own 2004 Speech

Kudos to the Daily Show for unearthing this 2004 commencement speech delivered by not-yet-president Donald Trump. It's priceless to hear Trump say "Never, ever give up. Don't give up. Don't allow it to happen. If there's a concrete wall in front of you, go through it. Go over it. Go around it. But get to the other side of that wall."

-KitJ

I Am Feeling This Guy

Is it just me or is this the best, most relatable, border protest sign ever?

-KitJ

Anti-Immigration Member of Congress Called to Task on Comments about White Nationalism, White Supremacy, Western Civilization

 

Congressman Steve King (R-Iowa) long has been an advocate for strong immigration enforcement measures and generally reducing immigration.  Given the relationship between race and immigration, one should not be surprised by the latest controversy surrounding King.  As Trip Gabriel reports in the New York Times, King

"has long outraged Democrats and liberals with racist remarks and demeaning insults about immigrants [and] is now facing extraordinary blowback from within his own party following an interview in The New York Times in which he questioned why white supremacy is considered offensive.

Mr. King, 69, who narrowly won re-election in November, has made racist comments for more than a decade that party leaders have mostly ignored. But his statements published Thursday in The Times went further than ever, triggering a barrage of public criticism from top House Republicans as well as a former G.O.P. presidential candidate and conservatives in the media.

In the interview, which focused on how Mr. King’s once-fringe immigration views set the stage for the border wall and white identity politics pursued by President Trump, the congressman said: “White nationalist, white supremacist, Western civilization — how did that language become offensive?”

Reflecting on the record number of black people and women in the new Congress, he added: “You could look over there and think the Democratic Party is no country for white men.”

King appeared on the floor of the House to respond to criticism over the remarks, which is attracting attention in Iowa as well as the nation..

 

KJ

Immigration Article of the Day: Free Trade, Immigrant Workers, and Employment Discrimination by Angela D. Morrison

Free Trade, Immigrant Workers, and Employment Discrimination  by Angela D. Morrison, Kansas Law Review

Abstract This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that the anti-discrimination provisions and regulatory cohesion requirements in trade agreements can be employed to protect the rights of vulnerable, and, in particular, noncitizen workers in the United States. The provisions in the most recent iteration of trade promotion authority reinforce the rights of noncitizen workers in the United States in three ways. First, they have the potential to fill in gaps in U.S. agency enforcement of workplace rights; second, they provide additional incentives for the United States to enforce existing worker protections; and third, they provide a legal hook for workers’ advocates to exert political pressure on U.S. agencies to enforce anti-discrimination laws and multi-national corporations to change discriminatory practices.

KJ

Trump Continues Stumping for Border Wall, Visits Border Town and Holds Immigration Roundtable

 

Yesterday, President Donald Trump threatened to declare a national emergency to circumvent Congress if he can't reach a deal with Democrats to fund his promised border wall and end the government shutdown.

Trump headed to the U.S.-Mexico border to draw attention to his case after negotiations with lawmakers blew up.

In McAllen, Texas, Trump visited a border patrol station for a roundtable discussion on immigration and border security. He expressed doubts that his appearance and remarks will change any minds.

Click here and here for more details.

KJ

 

Immigration Professor Does Good: When things go wrong, immigrants serving in the military look to Margaret Stock

Photo of Margaret Stock by John D. & Catherine T. MacArthur Foundation

This story in the ABA Journal looks at some of the amazing work of our Margaret Stock on behalf of immigrants in the military.   The article reports that Stock "believes this is a dishonorable period in American history, like the World War II-era discrimination against Japanese-Americans. As then, she says, she thinks it’s fueled by fear. . . .  `I think that’s what’s going on at the Pentagon right now, they are terrified of foreigners, and so they’re doing things that actually hurt our nation’s military,' she says. `And I think we’ll overcome that eventually. We’ll have to. If we don’t, we’re not going to be a superpower anymore.'”

KJ

Your Needed Thursday Humor Break

This Facebook post from Steve Kemish is everything: "Okay, here's the compromise The Republicans give 5.7 billion to the National Endowment for the Arts and the NEA gets Christo to build the wall."

Ha!

-KitJ

Immigration Article of the Day: Ninth Circuit Extends Bivens Remedy to Mexican Citizen Killed in Mexico by Cross-Border Agent Standing in America by the Harvard Law Review

Ninth Circuit Extends Bivens Remedy to Mexican Citizen Killed in Mexico by Cross-Border Agent Standing in America by the Harvard Law Review

This "Recent Case" piece in the Harvard Law Review looks at Rodriguez v. Swartz, in which the Ninth Circuit extended a Bivens remedy to a Mexican citizen shot and killed in Mexico by a U.S. border patrol agent standing on American soil. The Ninth Circuit’s extension of Bivens to the extraterritorial domain departs from the Supreme Court’s traditional treatment of Bivens as a disfavored remedy and creates a circuit split. However, as Bivens remains good law, the Ninth Circuit’s approach highlights the value of Bivens remedies in redressing egregious constitutional harms affecting millions along the U.S.-Mexico border.

The Ninth Circuit had withdrew this case from submission pending the Supreme Court’s decision in Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam), and supplemental briefing on the effect of that decision.

KJ