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:: By Rick Perlstein, AB’92

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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 fencing’s “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 Chicago’s 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 Bush’s preferred solution, a temporary guest-worker program, Phil Martin, an agricultural economist at UC Davis, repeated an old saw: “There’s 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.

That’s 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 Forum’s 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 year’s 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 Forum’s 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 Slack’s 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.

Chang’s 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 that’s 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 government’s “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 crudités. 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 Chang’s 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, JD’02, 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 Chacón 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 extrajudicial death squads. “We are knowingly sending people to their deaths,” Chacón 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 America’s 200-year-old experiment with penal modernism—an approach based on reforming the prisoner’s 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 day’s last and most eagerly anticipated paper, presented by Muneer Ahmad of American University—and the attorney of record for Guantánamo 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 Guantánamo detention center, he argued, was intentionally devised as a “legal black hole.”

At a pre-trial press conference the chief prosecutor in Khadr’s 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 defendant’s rights had been violated—and immediately found himself accused of violating the government’s 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 Security’s assistant secretary for Immigration and Customs Enforcement, unleashed a Harper’s 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 Chacón of UC Davis spoke of Operation Community Shield as abetting extrajudicial 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. It’s 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 symposium’s 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 academy.”

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. That’s the standard for immigration policy. Consider the comic tale conveyed in separate papers at the conference’s 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 anyway.
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 Washington’s talk of “comprehensive” immigration reform with “everything on the table,” he said, one item was on no one’s 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 Law’s 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 nation’s 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, AB’92, 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.