US: In immigration policy, ideas meant to solve problems create new ones

Harold F. Schiffman haroldfs at
Sun Jan 14 14:20:30 UTC 2007

>>From U. of Chicago Magazine:  by Rick Perlstein

Fenced Out

A post-9/11 boom in immigration legislation hasn't stemmed the border flow,
but it has created a flood of new approaches--most with built-in paradoxes.
After strongly bipartisan votes in both houses of Congress, on October 26
President George W. Bush signed the Secure Fence Act of 2006. American
citizens across the Southwest had been clamoring for control of illegal
immigration from Mexico; the politicians had given them what they wanted;
the system, it seemed, had worked. Immediately, however, critics began
pointing out problems. Congress voted for 700 miles of fencing and
budgeted for only half that. The border, meanwhile, is some 2,000 miles
long. The portions crossing water will have to be broken up to allow
debris to pass through: some barrier. The legislation stipulates that
local governments will be consulted on the fencings exact placement--but, as
the San Francisco Chronicle reported, Every single mayor from Brownsville
to El Paso thinks the fence is a bad idea.

You might say the outcome was perverse: a seemingly obvious, simple, and
popular solution to a perceived problem may end up neither solving the
problem nor being particularly popular. You might say it called for some
scholarly clarification. With fortuitous timing, the very next afternoon
70 law professors, students, and immigration attorneys settled into the
horseshoe-shaped rows of Classroom V, part of Chicagos Laird Bell Law
Quadrangle, for a two-day symposium on immigration law and policy. But,
rather than clarify the issue, the professors, as they are wont to do,
kept unearthing more such perverse complexities.

Take, for example, that fence. Belinda Reyes, an assistant professor in
the College of Ethnic Studies at San Francisco State, presented a
regression analysis suggesting that the more impregnable the barrier, the
more unauthorized migrants wind up living in the United States (good
fences make it harder for neighbors to return home). Of President Bushs
preferred solution, a temporary guest-worker program, Phil Martin, an
agricultural economist at UC Davis, repeated an old saw: Theres nothing
more permanent than temporary workers. Employers make their investments
under the assumption the migrants will continue to be available. When the
temporary program is set to end, companies tell their congressmen, We will
go out of business without migrants. Meanwhile the exporting country has
come to rely on remittances these workers send home, and ending the
program becomes a diplomatic issue. Thats the way it goes in the
immigration-policy business: ideas meant to solve a problem create complex
new ones.

The conference was the work of a journal published at the Law School, the
University of Chicago Legal Forum. Every year the Legal Forums editors
choose a cutting-edge issue for a symposium; the following year the edited
papers are published in journal form along with essays by law students
fulfilling their writing requirements. This years volume, said Legal Forum
editor and third-year Law School student Kit Slack a few days later,
reflecting on the policy hall of mirrors the conference had produced, will
probably be pretty thick.

In the Legal Forums cluttered office, tucked into the back corner of the
law library (a good place to nap, staffers agree), Slack, a 30-year-old
Barnard graduate, explained why immigration made such an ideal topic for
the 2006 symposium. Between the post-9/11 folding of the Immigration and
Naturalization Service into the new office of Immigration and Customs
Enforcement (known as ICE) under the Department of Homeland Security
umbrella, and the mania for immigration-control statutes at every
jurisdictional level, scholars are hard-pressed to keep track of the
ground shifting beneath their feet. The editors began sending out
invitations in May, late for a conference set for October, bracing
themselves for a slew of regrets. So great was the interest in the topic
that the response rate far exceeded Slacks expectations.

The economists were easiest to get, she said. They were all like: Oh,
yeah, I want to come to Chicago!

Questions of law & economics dominated the opening session, Assimilation
and Local Control of Immigration. The Chicago-born school seeks to solve
legal problems by optimizing the distribution of scarce goods, like
justice and rights, by setting up proverbial markets that let competing
parties signal how much they are willing to metaphorically pay for those
goods. For Howard Chang of the University of Pennsylvania Law School, the
scarce good was real estate. Ethnic groups wish to live in relatively
distinct cultural neighborhoods, Chang said, citing moral philosopher
Michael Walzer. In Spheres of Justice: A Defense of Pluralism and Equality
(1983), Walzer argues that immigration controls allow jurisdictions to
honor this reasonable desire, and that it is appropriate for countries to
use immigration policy to engineer the kind of ethnic mix they prefer.

Chang countered with a signature Chicago School move. Invoking economist
Charles Tiebout's 1956 hypothesis that the optimal mix of public goods and
services is achieved when a variety of local governments competes freely
for residents, Chang reasoned that the best way to vouchsafe the optimal
level of cultural distinctiveness in neighborhoods, while allowing
migrants optimal access to labor markets, is simply to do nothing: free to
vote with their feet, a diverse population sorts itself. He concluded that
the principle extends all the way to the national level--that to engineer an
ideal ethnic mix, a laissez-faire immigration policy works best. This was
a conference in which every paper bore a paradox.

Changs argument was pitched at the highest level of theoretical
abstraction-a thought experiment about what an ideal immigration system
would look like if cultural effects were the only consideration and every
border were thrown open, an option thats not on the table politically. But
a fellow panelist, Peter Schuck of Yale Law, author of the recent essay
collection Meditations of a Militant Moderate: Cool Views on Hot Issues,
took a more concrete approach. Most thinking on immigration, Schuck began,
assumes the federal governments plenary power to regulate it--the proper
constitutional grounding, after all, for the international question of who
gets to come and who gets to stay in the United States. Scholars also
assume federal control of immigration policy is an important check on the
potential race to the bottom: if left to devise their own policies,
localities might compete with one another to be the toughest on
immigration, with inhumane consequences.

But, Schuck pointed out, state and local criminal-justice infrastructures
already do much of the heavy lifting in making and enforcing immigration
policy, and sometimes the results are more humane for immigrants rather
than less. Scholars should be theorizing about how to accommodate and
enhance this reality through market thinking. For instance, some
localities might be willing to pay more for certain categories of workers.
What if states received equal blocks of immigration visas to import
specialized classes of workers, and could then buy and sell their visa
allotments to match supply to demand?

Later in the day a circle of law professors would share their skepticism
over cold sodas and crudites. True, regional labor needs could be met more
efficiently, and the number of non-Americans stealing jobs kept to a
minimum, if Caspar, Wyoming, for example, sold its allotment of visas for
sushi chefs to San Francisco. But suppose a master sushi chef pined for
the wide-open spaces of Big Sky Country--what then? Would Wyoming need to
erect a border fence to keep the unlawful migrant out?

Speaking between Chang and Schuck, Michael Olivas brought the panel down
to earth. The William B. Bates distinguished chair of law at the
University of Houston, Olivas, himself a Mexican American, oversees a
clinic where things are a little dirtier than polite Pareto optimalities
of law and economics allow. First he deconstructed the theoretical
undergirding of both Schuck and Changs papers--the presumption that the
federal government possesses plenary power to regulate immigration. That
idea, Olivas said, has been made moot by reality: Mexican migrants fall
under as many as 500 local ordinances affecting immigration
enforcement-effectively 500 border policies. The race to the bottom is well
under way, and the result has been a parade of horribles.

The key to this race to the bottom, Olivas argued, is race. No one worries
about Scandinavians and their lutefisk, but everyday acts that mark
persons as Mexican can place them in a heightened state of jeopardy,
whether they are in the States illegally or not. A Georgia minister, for
instance, was locked up for posting Spanish-language signs to his church.
Witnesses to crimes fear coming forward to testify in court--not because of
retribution from the criminals but because they only speak Spanish, and
asking for a court translator might get them referred to ICE. Defense
lawyers, too, fear putting clients with weak English skills in jeopardy by
making arrangements for a translator. What used to be good lawyering,
Olivas pointed out, can now get your client deported.

The conversation in Classroom V had been steered from elegant neoclassic
abstractions to something closer to the terrain of human rights. And human
rights was the subject of the final panelist, Leslie Wexler of Florida
State University College of Law. Wexler, JD02, seemed apologetic about
venturing such a soft-and-fuzzy approach in the birthplace of law and
economics. Current domestic and international law relating to immigration
tends to favor law-enforcement over human-rights approaches, her paper
began. But international law can make a modest contribution, she offered,
in cases of human-rights abuses like child trafficking; treaties can be
used as aspirational statements for activists seeking to hold their
national governments accountable.

Wexler might have felt more comfortable in the next session,
Criminalization and Immigration Law, where panelists argued that it has
become hard to tell the difference between the two terms. Jennifer Chacn
of UC Davis described one vicious example. In 2005 ICE inaugurated
Operation Community Shield, a program to deport immigrant members of
designated street gangs. An idea that on its surface might seem
unobjectionable-the violent gang MS-13, for instance, born in Central
America but active across the United States, was responsible for a 2004
bus massacre in Honduras that killed 28 people--looks more complex on closer
examination. The public-relations rationale for the policy, that foreign
gangbangers are crossing the border to terrorize American cities, is
belied by the fact that many of the migrants targeted by ICE arrived in
the States as children--when their parents sought asylum during Central
American civil wars that the United States helped support.

If these children later learned to be gangbangers-and Operation Community
Shield does not require a criminal conviction or even a formal accusation
to deport someone but only gang membership--they learned it here. Meanwhile,
as adults, they are being returned to countries such as Honduras, which is
dealing with its own gang problem by, according to State Department
reports, forming extra-judicial death squads. We are knowingly sending
people to their deaths, Chacn charged.

But immigrants don't have to hobnob with MS-13 to be ensnared in a
Kafkaesque net, argued Teresa Miller of SUNY-Buffalo. Miller cited a
forthcoming book by Berkeley law professor Jonathan Simon, Governing
Through Crime: How the War on Crime Transformed American Democracy and
Created a Culture of Fear, in arguing that unauthorized immigration, once
seen as amenable to regulation, has become a problem of crime control.
This shift has occurred as Americas 200-year-old experiment with penal
modernism--an approach based on reforming the prisoners soul instead of
mortifying his flesh--has been jettisoned in favor of a contain-the-threat
model of incarceration: in detention people are assessed for their
dangerousness according to what group they belong to. When prisoners are
released, employers are reluctant to hire them, occupational licenses are
difficult to obtain, and they become part of a permanent subclass of
ex-cons. The reason the shift in prison philosophy must be the subject for
a conference on immigration, Miller argued, is that it has created the
prison system faced by an Oaxacan man lured north by the prospect of
employment and nabbed at the border by la migra.

Immigration detention is imprisonment, she pronounced. Maximum-security
prisons have more liberal visitation policies. Those breaking prison rules
are punished with solitary confinement. Hard-working family men are
incarcerated cheek by jowl with hardened criminals.

Imprisonment also, Miller noted, describes life for the 500 Arab men
rounded up for immigration violations after September 11, 2001, of whom
only a fraction were subsequently linked to terrorism. With that, she
named the elephant lurking about the room all afternoon, one of the
primary reasons this harder new America for immigrants, legal and illegal,
has come to be. Her talk set the table for the days last and most eagerly
anticipated paper, presented by Muneer Ahmad of American University--and the
attorney of record for Guantanamo Bay Detainee No. 766, Omar Khadr.

Khadr, a 14- or 15-year-old Canadian (no one is quite sure), was picked up
at a Qaeda compound after a fierce battle in which he allegedly attacked
an American sergeant with a grenade. The story Ahmad shared about his
attempts to represent the teenager was familiar: the problems encountered
when adopting a rights-based strategy in a post-9/11 detainee system
predicated on the denial of rights. The Guantanamo detention center, he
argued, was intentionally devised as a legal black hole.

At a pre-trial press conference the chief prosecutor in Khadrs Combatant
Status Review Tribunal in September 2004 called the teenager a murderer
and a terrorist. Attorney Ahmad complained that, because determining
whether Khadr was one, the other, or both was what the tribunal had been
convened to do, the defendants rights had been violated--and immediately
found himself accused of violating the governments rights when he said his
client had been tortured and that the proceedings were a sham. During the
hearing, whenever he asked about rules of evidence and procedure, or what
factors would count against his client, the judge replied, File a motion
and you'll find out. It was like a common-law system at Time Zero, Ahmad
said. There is no process requirement for an enemy combat determination.

He did learn one thing: if Omar Khadr had been born in Oakland instead of
Ottawa he would have had an easier time. Again, in the post-9/11 legal
environment, noncitizenship status exacerbates nonaccess to rights. It
was, Ahmad noted, just as Hannah Arendt said: citizenship is the right to
have rights.

During the Q&A session, an immigration lawyer asked if the tribunal had
produced a written record. Ahmad said that it had. At least you had a
court reporter, she replied. Deportation hearings, she reminded the group,
left behind no written record.

The keynote speaker offered an official perspective. Julie Meyers, the
Department of Homeland Securitys assistant secretary for Immigration and
Customs Enforcement, unleashed a Harpers Index litany of ways ICE was
helping to have a better America: 18 drug seizures a day; 1,400 removal
(deportation) cases and 528 formal removals; 15,000 employees enforcing
some 4,000 different statutes. Her speech was exactly like the previous
panel--in mirror-image form. Teresa Miller had just delivered a jeremiad on
how turning over immigration regulation to law-enforcement officers is
nearly un-American. The Bush appointee said exactly the opposite, praising
the state of Alabama, where police officers review applications at the
Department of Motor Vehicles, ferret out the suspicious, and work with us
on removal. Jennifer Chacn of UC Davis spoke of Operation Community Shield
as abetting extra-judicial massacre of deported gang members; Meyers
boasted that the program worked aggressively with our foreign partners
assimilating them back into society.

In the Q&A she was peppered by immigration lawyers. One told of a client
from the Sudan who was deported and tortured while his asylum case was on
appeal--which he won. Another asked why one of his clients, a Tibetan
asylum-seeker, was kept in detention for months for no apparent reason.
Meyers replied that she didn't know the details of the cases so she couldn't
respond-then responded anyway. Its hard to tell the malefactors from the
honest asylum-seekers, she said, referring to the architect of the 1993
World Trade Center bombings: How do we ferret out Ramsey Youssef?

Her prosecutorial mindset--every successful deportation, she said, is a
check on possible criminal and in some cases even terrorist acts--was
reinforced by both Republican and Democratic campaign commercials on the
eve of the midterm election. Mexicans wading across the Rio Grande, as
background music shrieked, dominated TV ads calling for harsher border
enforcement. The climate of political demagoguery added another layer to
the symposiums sea of ironies. Back at the Legal Forum office a few days
later, Kit Slack joked drily, I don't think they're looking much to the

The next morning Belinda Reyes presented a maze of charts demonstrating an
unintended outcome. The cost of border policing has skyrocketed: with the
new fence, America will spend as much on immigration control as it does on
NASA, the Army Corps of Engineers, or the Environmental Protection Agency.
Yet the probability of any given Mexican crossing the American border for
the first time has increased, Assistant Secretary Meyers statistics
notwithstanding. The most reliable way to control unauthorized
immigration, Reyes suggested, would be to control the gross domestic
product of Mexico.

Once unauthorized immigrants have arrived, argued Hiroshimi Motomura of
the University of North Carolina, they need to know that citizenship is an
option. Reprising the theme of his 2006 book Americans in Waiting: The
Lost Story of Immigration and Citizenship in the United States, he called
for a return to a 150-year-old law that allowed all new residents to vote.
His reasoning was down-to-earth and compelling: If you let people know
they're going to be citizens, they're going to increase their investment.

Just try to tell that to the voters watching the campaign ads with
shrieking music and Mexican hordes clambering over fences. Legislators
tend to follow the lead of a frightened populace rather than the more
complicated story told by the data; and whatever laws they pass may well
end up achieving the opposite of their intent. Thats the standard for
immigration policy. Consider the comic tale conveyed in separate papers at
the conferences final session by Nancy Morawetz of NYU and Lenni Benson of
New York Law School. In 1990 Congress passed a law to make the
naturalization system more efficient, eliminating the need for cases to be
rubber-stamped by federal courts. And a 1995 court stripping law limited
the appeals that federal courts could review.

The punch line? A 970-percent increase in immigration cases in the federal
courts. Immigration matters now make up more than a fifth of the federal
caseload--40 percent in the Ninth Circuit. The system is so unwieldy that
lawyers charge immigrants $10,000 retainers to handle their appeals. And,
in the face of claims that illegal immigrants frivolously appeal so that
they can stay while their case is pending, appellants can be deported
How did reforms meant to ease overcrowded courts help to create a tenfold
increase in crowding? No one, Benson lamented, has any good idea.

Immigration scholarship can blow the mind. Michael Wishnie, a clinical
professor at Yale Law, took the floor. Amid all of Washingtons talk of
comprehensive immigration reform with everything on the table, he said,
one item was on no ones agenda: ending employer sanctions for hiring
illegal immigrants, introduced in the Immigration and Reform Control Act
of 1986. Wishnie wanted to strike them off the books.

It was an unexpected argument, coming as it did from a former Legal Aid
Society attorney and the current codirector of NYU Laws Arthur Garfield
Hays Civil Liberties Program. After all, if the goal is controlling
unauthorized immigration, nothing seems more efficient than holding the
line against sweatshop owners, agribusiness executives, and
meat-processing-plant managers eager for cheap labor. And if the goal is
to protect the vulnerable--to eliminate the demand that keeps poor Mexicans
paying coyotes extortionist sums to make the treacherous crossing--nothing
seems more fair.

Paradox upon paradox. The sanctions, Wishnie argued, have achieved the
opposite of their intentions: they grant to employers terrifying power.
Employers are required to keep employees immigration status on file,
information that becomes a handy club to use against labor organizers in
the event of an ICE raid. Wishnie did a quick survey of such raids: 54
percent occurred at companies in the middle of active labor
disputes--employers blowing the whistle on their employees to break unions
or dampen unionizing impulses. Usually they don't need to actually blow the
whistle: employers can maintain a union-free, OSHA-free, and Title VII-free
workplace with the help of a ready file of blackmail material the
government requires them to compile. Indeed, Wishnie noted, the
legislation has created a perverse incentive to hire illegals, in turn
creating a whole category of bottom-feeding businesses to subcontract
illegals to employers.

Across the myriad disciplines, at every level of theoretical abstraction,
from every ideological direction, researchers at the October symposium
offered proof that current immigration policy is a factory for the
production of paradoxes. The fact that the nations politicians continue to
seek panaceas for a problem where every panacea, like every fence, has
failed might be the greatest immigration paradox of all.

Rick Perlstein, AB92, is the author of the forthcoming Nixonland: The
Politics and Culture of the American Berserk, 1965-1972, and a columnist
for The New Republic Online.


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[Moderator's note: the "law of unintended consequences" seems to apply in
immigration policy even more prolifically than in language policy--but
note how immigration policy makes language policy even more unmanageable.

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