Immigration, association, and the family

Law and Philosophy

Volumn 29, Issue 6, 2010, Pages 717-745

  Lister, Matthew ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 77957706441     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-010-9083-9     Document Type: Article

References (132)

1. By family-based immigration I shall primarily mean cases where one member of a family (or would-be family, in some cases) is already an 'insider' in the country of immigration - usually a citizen but sometimes a legal permanent resident, and the would-be immigrant is a family member who is allowed to immigrate, or at least seeks to immigrate, because of the family tie in question. Exactly which family ties should qualify for immigration benefits is part of what I hope to establish in this paper. There are many possible complications to the basic case given above. I shall discuss some of them as necessary, but shall mostly be concerned with this sort of core case in this paper.
2. For discussion of this in relation to the major 'countries of immigration' in the world, as well as in relation to France and Germany, see James P. Lynch and Rita J. Simon, Immigration the World Over: Statutes, Policies, and Practices (Rowman & Littlefield, 2003).
3. See also, Castles, Stephen and Miller, Mark J., The Age of Migration, 4th ed (Palgrave-Macmillan, 2009), p. 110.
4. Rawls, John, The Law of Peoples:With 'The Idea of Public Reason Revisted' (Harvard University Press, 2001).
5. Cases where families might benefit from family-based immigration can result from the 'formation' of a family, when a citizen of one country marries a non-citizen, or 're-formation' or 'reunification', where one family member migrates to a new country, acquires citizenship, and then brings in his or her family members after acquiring the right to do so. Both types are currently common. I intend my account to cover both formation/unification and re-formation/reunification, though from now on I shall only use the former term.
6. It is hard to know with any certainty how extensive family-based immigration would be in a world that satisfied Rawls's law of peoples, as there are factors which push in both directions. I shall discuss the matter further below.
7. I think it is easy to over-state this case and to ignore the ways that immigration based around the family, rather than around individuals, can also have positive economic effects for the target country, even when compared with individuals chosen for features that we except would make them significant economic contributors. I will discuss some of these issues later, but here merely want to point out that this particular effect is, I believe, often over-stated. Furthermore, we may doubt that economic well-being is the correct measure of welfare, and think that family-based immigration is less likely to be 'inefficient' if we take another measure. I am sympathetic to this claim, but as economic well-being is a common, perhaps the dominant, measure in most government policy-making (it is the standard used in most cost-benefit analysis, for example) it seems worth here focusing on this method, at least to show it is not decisive.
8. See, among many examples, Macedo, Stephen, 'The Moral Dilemma of U.S. Immigration Policy', in Swain (ed.), Debating Immigration (Cambridge University Press, 2007), p 67. and p. 77
9. Borjas, George, Friends or Strangers: The Impact of Immigrants on the U.S. Economy (Basic Books, 1990), pp. 218-225. Borjas thinks the Canadian system is better than the U.S. system but does not think it goes far enough. Though he does not explicitly say so, he strongly hints that he favors stringent country of origin limitations on immigration in addition to efforts to more actively recruit 'skilled' workers. Canada does provide for significant family-based immigration of immediate family members, and likely meets the minimal requirements of justice I set out later in this paper, despite having fewer categories for family-based immigration than does the U.S.
10. Obviously, many philosophers and others working on immigration will reject this assumption as a matter of principle. I will not here provide a defense of the claim that states have some right to set limits on immigration, evenwell belowbreaking-point considerations accepted by open or near-open borders theorists such as Joseph Carens, Phillip Cole, Michael Dummett, and Bruce Ackerman. (For these arguments, see Carens, 'Migration and Morality: A Liberal Egalitarian Perspective', in Barry andGoodin (eds.), Free Movement (Penn State University Press, 1992), pp. 28-31
11. Ackerman, Social Justice in the Liberal State (Yale University Press, 1981), pp. 89-95
12. Cole, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh University Press, 2001)
13. Dummett, On Immigration and Refugees (Routledge, 2001), pp. 14-21.)
14. My personal sympathies lie close to the position argued for by Joseph Heath, in his articles, 'Immigration,Multiculturalism and the Social Contract', Canadian Journal of Law and Jurisprudence 10: (1997) 2
15. 'Rawls on Global Distributive Justice: A Defence', Canadian Journal of Philosophy Supplementary Volume (2007)
16. Stephen Perry, in his article, 'Immigration, Justice, and Culture', in Schwartz (ed.), Justice in Immigration (Cambridge University Press, 1995), pp. 94-135.
17. If one accepts that some limits on immigration are compatiblewith liberal principles of justice, then the considerations in this paper are immediately and directly relevant. However, I contend that the sorts of cases that I here consider are important even for those who claim to favor open borders, for at least two reasons. Firstly, if we are not to have chaos, some sort of priority principleswill need to be in place, so that flows may bemet in an orderly way that does not, for example, swamp local services. Considerations here considered may help provide such principles. Secondly, thosewho favor open borders as an idealmay acceptmy arguments as transitional and second-best.Given thatwe are unlikely to have aworld with open borders in the near future (even if we think such a world is desirable), it is useful to develop principles for the world we are likely to face. As I do not think that open or nearly open borders are a requirement of justice, I do not accept this 'principles for the second-best' reading of my account, though I contend it is a plausible one for those who do support open borders, as in a world with immigration restrictions, the problem of family-based immigration must be faced.
18. To my knowledge no country does this outside of refugee or temporary protection programs of various sorts. Such programs are usually not based on economic need, but other special grounds, and so do not directly fit the example under consideration. A superficially similar program is the 'diversity visa', the so-called 'green-card lottery', in the U.S., which provides for several thousand immigrant visas to residents of 'underrepresented' countries via a lottery system each year. See INA § 203(c). However, because the visas are made available to countries with low immigration to the U.S., many of the visas are reserved for citizens of well-off countries (though many go to African countries as well). Furthermore, the education and work experience requirements, as well as general 'public charge' requirements, of the type discussed below, keep this program from being effectively directed at the worst-off globally. Finally, there is good reason to think that immigration is probably a poor way to help the worst-off globally. For discussion of this point
19. see Pogge, Thomas, 'Migration and Poverty', in Goodin and Pettit (eds.), Contemporary Political Philosophy: An Antholgy, 2nd ed. (Wiley-Blackwell, 2005), pp. 710-720. I largely agree with Pogge's conclusion in this article, though I will not address this issue at length in this paper.
20. Here I am ignoring a related but distinct question of whether a state may legitimately offer a nonmember a chance to enter but at the same time refuse to allow the would-be immigrant's family to join him or her. This question comes up most starkly in the case of guest-workers, a subject that must be saved for another discussion.
21. The 'primarily' clause here is important. I shall note in what follows some ways in which the receiving state must give some weight to the interests of the non-citizen would-be immigrants. But, given the working assumption of the paper that there is no general right to free movement and that states have significant discretion in setting their own immigration policies, it seems to me preferable to start from the perspective of the citizens of the receiving state, for reasons that will be developed below.
22. The 'two moral powers' are, (1) the capacity for a sense of justice and the ability to act from principles of political justice that specify fair terms of social cooperation, and (2) the capacity for a conception of the good and to rationally revise and pursue such a conception.
23. See Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001), pp. 18-19. Much helpful discussion of the moral powers is to be found in Freeman
24. Samuel, Rawls (Routledge, 2007). See especially pp. 54-56.
25. For a particularly interesting account of how the family can affect the development of the moral powers see Green, T. H., 'The Right of the State in Regard to the Family', pp. 230-243
26. Lectures on the Principles of Political Obligation (University of Michigan Press, 1967). I do not agree with many of the details of Green's account, but believe that it offers one of the more interesting accounts of the role of the family in the development of what Rawls (though not Green) calls the moral powers.
27. See, e.g., Records of the Federal Convention (Yale University Press, 1966), vol. 2, p. 238.
28. See Walzer, Michael, Spheres of Justice (Basic Books, 1984)
29. especially chapter two, 'Membership', and Wellman, Christopher, 'Immigration and Freedom of Association', Ethics 119: (October 2008), 109-141.
30. Blake, Michael, 'Discretionary Immigration', Philosophical Topics (2004), 273-290.
31. I am here assuming that states do not have to give nearly as much weight to the associative desires of outsiders as to insiders (though also not no weight). This follows, I believe, from a general 'modest cosmopolitan' position of the sort argued for by Jon Mandle in his book Global Justice, Polity 2006, and by Samuel Scheffler in his paper 'Conceptions of Cosmopolitanism', in his Boundaries and Allegiances (Oxford University Press, 2003), pp. 111-130. I believe that a modest cosmopolitanism along these lines is the correct view, but I will not argue for this claim here.
32. Rawls, Justice as Fairness, p. 44.
33. See also Freeman, Rawls, pp. 47-48, 55-56.
34. Freedom of association is not explicitly mentioned in the US Constitution but is usually inferred from the rights protected by the 1st Amendment (assembly, free speech) 5th and 14th amendments (due process and equal protection) and, more controversially, the 10th amendment (reserving other rights to the people). The UN Universal Declaration of Human Rights proclaims, in art. 20, that, 'Everyone has a right to freedom of peaceful assembly and association'. Rights closely related to freedom of association are set out in articles: 12 (privacy in family life and home), 13 (freedom of movement within the state), 16 (right to marry and form a family), 17 (own property in association with others), 18 and 19 (freedom of conscience and to seek information).
35. See http://www.un.org/Overview/rights.html. The Universal Declaration is, of course, aspirational and not a legally binding document, but the inclusion of freedom of association does give reason to think it is widely recognized as important.
36. Rawls, 'The Idea of Public Reason Revised', in Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2001), p. 596.
37. An obvious worry about my account at this point is that Rawlsian deliberators, notoriously, consider themselves, while behind the full veil of ignorance, to be in a 'closed society'. See Rawls, Justice as Fairness: A Restatement, p. 40.
38. Given this, it is not immediately obvious how an argument such as mine extends to the right to bring in outsiders. My view, developed in more detail below, is that the basic right to form intimate associations is protected in the constitutional stage of the four-stage process that Rawls discusses in A Theory of Justice. See Theory, revised edition (Harvard University Press, 1971, 1999), pp. 171-176.
39. At the later stages, as the veil of ignorance is progressively lifted, the parties, for reasons I discuss below, come to see that the same right that protects domestic association must allow for family-based immigration, if it is to be effective. This is done without the controversial attempts to 'globalize' the original position in the way suggested by Thomas Pogge, Charles Beitz, or Joseph Carens, among others.
40. See Realizing Rawls (Cornell University Press, 1989)
41. Political Theory and International Relations (Princeton University Press, 1979, 1999)
42. 'Aliens and Citizens: The Case for Open Borders', in Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, 1995), pp. 331-349
43. respectively. Seyla Benhabib, in 'The Law of Peoples, distributive justice, and migration', chapter 3 in her The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press, 2004), discusses what she sees to be certain pathologies in Rawls's account of international justice, and draws conclusions from this for immigration policy. I believe that her account is systematically distorted by an incorrect understanding of how the 'closed society' premise in Rawls's argument functions, as well as other significant misreadings of Rawls, but I cannot pursue this issue in more depth here.
44. See Benhabib, The Rights of Others, pp. 71-128, and especially pp. 85-93.
45. Moreau, Sophia, 'What is Discrimination?', Philosophy and Public Affairs 38(issue 2): (2010), 147. Moreau uses this idea to discuss discrimination, not specifically association, but it seems to me easily applicable to both ideas.
46. This is not to imply that other forms of association, such as political association or labor organization, are not extremely important. They are, which explains why such rights must be protected in any state, if it is to be just. But note how the same sort of anti-discrimination limits that I discuss below have been imposed in the case of political and labor organization, showing how, even though these are important forms of association, they may still be regulated for broader purposes in a way we do not think intimate associations may.
47. See, for example, Smith v. Allwright, 321 U.S. 649. (1944), finding the Texas 'white primary' unconstitutional. Labor organization may stretch over borders as well, though it is not clear that such activities must involve immigration, as opposed to more temporary forms of movement. I discuss related issues below.
48. Title VII of the Civil Rights Act of 1964 ('Title VII').
49. George Kateb has argued that such trade-offs are in almost all cases illegitimate and that freedom of association may be limited only to protect the 'vital claims reaching to the life, liberty, or property of others' from serious harm.
50. See Kateb, 'The Value of Association' in Amy Gutmann (ed.), Freedom of Association (Princeton University Press, 1998), p. 40. Kateb claims that his position is both the morally right one and also the one that follows from the best interpretation of the US Constitution, despite the fact that the Supreme Court has consistently rejected his account. His more basic claim is that any approach that does not grant near unlimited rights of freedom of association cannot take it to be a basic right but must see it as merely instrumental to the exercise of some other basic right such as freedom of speech. This is, I believe, a mistake, since we might well think that basic rights may be traded off against each other so as to have the largest or most adequate scheme of rights without thinking that any one must be reducible to or merely instrumental for the exercise of another. Given this, I shall not further argue against the claim that almost any limitation on freedom of association is illegitimate.
51. Fair Housing Act of 1968, as amended in 1974 and 1988, 42 USC § 3601-19, 3631. Some cities have even stronger fair housing regulations.
52. It seems unlikely that polygamous marriages are always or necessarily harmful. To the extent that they are not, they ought not be prohibited. But, in many actual cases it does seem that polygamy is part of a pattern of domination of women by men. To the extent that the practice of polygamy keeps women from being able to be autonomous it is reasonable to regulate it. For a particularly interesting discussion of how polygamy might restrict the development of the moral powers (though not put quite in these terms) see Green, Lectures on the Principles of Political Obligation, pp. 235-236.
53. A somewhat similar argument is made by Thom Brooks in his paper, 'The Problem with Polygamy', available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331492.
54. See Turner v. Safley, 482 U.S. 78. (1987)
55. Zablocki v. Redhail, 434 U.S. 374. (1978)
56. Loving v. Virginia, 388 U.S. 1. (1967)
57. Skinner v. Oklahoma, 316 U.S. 535. (1942)
58. Meyer v. Nebraska, 262 U.S. 390. (1932).
59. My claim here is only that these are legitimate goals that states may have, and that limiting immigration might, in some cases, be part of a strategy of achieving these goals. If open borders are required by justice, then these other legitimate goals will have to be addressed in different ways. If, however, as I am here assuming, states have some degree of discretion in setting their immigration policies, then these legitimate aims might function as reasons for adopting particular immigration policies, assuming that this can be done in a way that does not conflict with other considerations of justice.
60. Walzer, Sphere of Justice, p. 62.
61. Raz, Joseph and Margalit, Avishai, 'National Self Determination', in Kymlicka (ed.), The Rights of Minority Cultures, pp. 79-93.
62. See also Raz, The Morality of Freedom (Oxford, 1988)
63. Miller, David, On Nationality (Oxford, 1995), p. 129, among other places.
64. Records of the Federal Convention, vol. 2, p. 238.
65. Quoted from Kesler, Charles, 'The Promise of American Citizenship', in Pickus (ed.), Immigration and Citizenship in the 21st Century (Rowman & Littlefield, 1998), p. 15. Kesler largely endorses Morris's view.
66. On this point, see Perry, Stephen, 'Immigration, Justice, and Culture', pp. 114-115
67. Blake, Michael, 'Immigration', in Frey and Wellman (eds.), A Companion to Applied Ethics (Blackwell, 2005), p. 228.
68. For discussion of this sort of case see Borjas, Friends or Strangers, pp. 177-178.
69. It is possible that Rawls thought something like this, since, in his few short words on immigration in The Law of Peoples he claims that immigration would not be a serious issue in a world that met the demands of the law of peoples. Rawls, The Law of Peoples, pp. 8-9. As Rawls says so little about immigration, I hesitate to attribute any specific views to him, but insofar as he did believe this he was mistaken, I shall show.
70. Bermann, Goebel, Davey, and Fox, European Union Law, 2nd ed. (West Group, 2002), pp. 575-576
71. These are just the sort of facts that become known to the deliberating parties in Rawls's account, as they move through the four-stage process. This explains how the general right to freedom of association, and the right to form intimate associations in particular, come to guarantee the right to form relationships across borders without having to 'globalize' the original position
72. Of course some associations are harmful, both to others and to the members of the group itself. White supremacist groups are an obvious example. To the extent that such groups do actual harm to others, there is no problem in restricting their activities. Even in the case of such groups, however, the value of association may still be present in some forms. See the discussion of such groups in Rosenblum, Nancy, Membership and Morals, pp. 274-277
73. For a concise and, to my mind, convincing argument that all legal permanent residents ought to eventually have access to citizenship without significant restrictions, see Carens, Joseph, 'Why Naturalization Should be Easy: A Response to Noah Pickus', in Pickus (ed.), Immigration and Citizenship in the 21st Century, pp. 141-148
74. I argue that family-based immigration benefits should be available to same-sex couples in my paper, 'A Rawlsian Argument for Extending Family-Based Immigration Benefits to Same-Sex Couples', University of Memphis Law Review, 37 (Summer 2007): 745-780
75. In this way my argument is somewhat similar to that made by Justice Marshall in this dissent in the case Kleindienst v. Mandel.
76. See Kleindienst v. Mandel, 408 U.S. 753, 777-784 (1972) (Marshall, J., dissenting). Marshall argued that the exclusion of Marxist philosopher Ernest Mandel was a violation of the first amendment rights of the U.S. citizens who wished to hear him speak. I here take no position as to whether Kleindienst v. Mandel was properly decided, but the parallel is important to note
77. Records of the Federal Convention, vol. 2, p. 238
78. Walzer, Spheres of Justice, pp. 35-40
79. Wellman, 'Immigration and Freedom of Association', p. 112
80. Walzer, Spheres of Justice, pp. 46-48. I find this account to be deeply implausible, if for no other reason than that the reason why Asians wished to immigrate to Australia was not that they were overcrowded as such - most Asian countries have less populated regions, after all - but because their home countries lacked economic prosperity and freedom. Merely making Australia smaller would not have given these things to would-be immigrants. This is only one way in which Walzer's account is, I think, deeply implausible
81. Walzer, Spheres of Justice, pp. 48-51. This is, I believe, an insufficiently strong position with regard to refugees, as it will predictably lead many who can only be protected by giving them access to a new state without protection. I cannot, however, elaborate on this point here, though I hope to do so in future work
82. Wellman, 'Immigration and Freedom of Association', p. 139. Wellman distinguishes here, rightfully, between admission for permanent residence and admission for lesser periods. This important distinction is often over-looked by people writing on immigration, and is important to my own account, but cannot, I believe, do enough to salvage Wellman's account
83. It is not clear from Wellman's account exactly how this would work. Australia, during the 'White Australia' period, for example, did have some Asian members. But, if it did not have any members from, say, Mongolia, would that have allowed Australia to keep out Mongolians, even though they are Asians? Wellman notes that no country today is ethnically or racially 'pure', but not all ethnic or racial groups are represented in all countries. Whether those not represented in a particular country may be kept out is left unclear on his account
84. His examples of the first case is American responsibility for the plight of so-called 'boat people' from South Vietnam and of the second is the ethnic connection between Germans in Germany and ethnic Germans forced out of other central and eastern European countries after the second world war. Walzer, Spheres of Justice, p 48. and p. 42, respectively
85. As with Walzer's discussion of refugees cited in note 34 above, I believe this is a significantly mistaken position, in that it will predictably leave many people without the protection that they need, protection that can only be granted by giving those in need access to a new state. An argument for this position will have to wait for a future paper
86. For discussion of this point, and its limits in U.S. law, see Roberts v. United States Jaycees, 468 U.S 609. (1984)
87. Boy-Scouts of America v. Dale, 530 U.S. 640. (2000)
88. Rosenblum, Nancy L., Membership and Morals, pp. 26, 59-60
89. I here must disclaim two unintended implications of this line of thought. As noted above, this argument does not imply that the family is the most important form of association in all senses. Rather, the important point is that the type of association the family is makes it such that it cannot serve its functions unless its makeup is largely left to the parties. This is less clearly so with larger and less intimate associations, even if they are, in some ways and for some purposes, more important. Secondly, I do not imply that families are always or only 'schools for virtue'. Obviously, they may also be schools of despotism and vice, as Mill noted many years ago in his The Subjection of Women. As the title of this paper is a play on Okin's famous book on the family, I hope my acceptance of this point is clear.
90. See Okin, Justice, Gender, and the Family (Basic Books, 1989). But, this same fact is true of all associations. That an association may have an evil impact on the members does not mean, however, that they cannot be 'schools of virtue', nor that we should not see that as a powerful reason to protect associations of various sorts, including the family
91. Many authors hold that the U.S. has a 'consensual' model of citizenship, one that treats membership in the state much like membership in a club. See, for example, Schuck, Peter and Smith, Rogers, Citizenship Without Consent: Illegal Aliens in the American Polity (Yale University Press, 1985)
92. Schuck, 'Consensual Citizenship', chapter 9 in his Citizens, Strangers, and In-Between (Westview Press, 1999), pp. 207-216. This is obviously a flawed account descriptively, and cannot, in any strict literal sense, serve as a normative account of citizenship for reasons adequately developed by Hume more than two hundred years ago.
93. See Hume, 'Of the Original Contract', pp. 465-487 in his Essays, Moral, Political, and Literary (Liberty Classics Edition). This criticism applies only to actual consent theories like that developed by Smith and Schuck (and, of course, Locke before them) and not to hypothetical consent theories like Rawls's, since such theories serve a rather different purpose. I discuss this point at more length in my paper
94. 'Citizenship, in the Immigration Context', Maryland Law Review, 70, 1 (2010, forthcoming)
95. For discussion, see Cohen, Elizabeth, 'Carved from the Inside Out: Immigration and America's Public Philosophy of Citizenship', in Swain (ed.), Debating Immigration, pp. 40-45
96. This argument parallels Rawls's treatment of states as closed systems in the original position. For discussion of this point, one of the most misunderstood points in Rawls's work, see Freeman, Samuel, Rawls, p 416.
97. Freeman, 'Consequentialism, Publicity, Stability, and Property-Owning Democracy' in his Justice and the Social Contract (Oxford, 2006), pp. 90-91.
98. See also my paper, 'A Rawlsian Argument for Extending Family-Based Immigration Benefits to Same Sex Couples', University of Memphis Law Review, 37, 763-764
99. See, Boy-Scouts of America v. Dale, 530 U.S. 640. (2000). Groups that have many features similar to the Boy Scouts but that seek to avoid the aspects they disapprove of include the SpiralScouts http://www.spiralscouts.org/metadot/index.pl and the Navigators USA http://www.dysongraphics. com/navigators/ among others
100. This distinction is ignored by Chandran Kukathas in his paper, 'The Case for Open Immigration', where he treats both temporary and permanent migration under one heading. See his paper, in Cohen and Wellman (eds.), Contemporary Debates in Applied Ethics, p. 208. I contend that this leads Kukathas to draw significantly flawed conclusions from his premises. Some argument is given in what follows, though I cannot here provide a complete discussion of this point
101. For the U.S. see INA § 101(15)
102. This is just one of many ways that I believe the Supreme Court was wrong in the case of United States Ex Rel. Knauff v Shaughnessy, 338 U.S. 537. (1950). In that case the U.S. government refused admission to the non-citizen wife of a US citizen on the basis of secret (and, it later turned out, largely non-existent) evidence. The Court held that the government need not present its reasons for refusing entry to Knauff or, even in camera, to a federal judge. While, of course, national security is a serious concern, at least in most cases a state will owe those seeking to have outsiders enter at least some individualized rational if the would-be visitors are kept out. Note here that this is a duty owed to the citizens, one that arises from the need to respect their freedom of association and to explain why it is limited when it is. It is not a duty owed directly to the outsider seeking to enter. While such a duty to outsiders may exist, it will have a different normative base, and is not a topic I can address in this paper
103. Of course spouses do sometimes spend long periods apart, as do parents and children, but these are normally thought to be quite unusually and generally undesirable cases, and even in these cases the separation is usually expected to be only temporary, even if not short
104. A full analysis at this point would have to explore whether a feasible and just temporary worker program is possible. I sketch such a program in an unpublished paper, 'Guest-Worker Programs: An Analysis and Partial Defense', but cannot hope to answer all worries here. Two quick points are worth noting, however. First, few people who accept any limits on immigration at all think that any admission to a country at all, including, say, tourist visas, must grant a right to remain indefinitely. Nearly everyone, then, accepts that some sorts of time-based limits on immigration are acceptable. The difficulty is in figuring out the time and how to make it work reasonably well. Secondly, there is significant evidence that many migrant workers have no significant intention of remaining permanently, and large number return to their homes when this is possible. On this
105. see, among other discussions, Massey, Durand, and Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration (Russell Sage Foundation, 2003)
106. Sassen, Saskia, Guests and Aliens (The New Press, 1999)
107. In this conclusion I differ from Howard Chang's conclusion in his recent article 'Cultural Communities in a Global Labor Market: Immigration Restrictions as residential Segregation', University of Chicago Law Forum, 2007, in that I do not think that justice requires granting immigrant status to those seeking to enter and work in the U.S., even if this would provide a net improvement in over-all global welfare
108. In the US, see INA §212(a)(4). For the European Union, in addition to various member-state laws, see Council Directive 90/365, art. 1, 1990 O.J. (L 180) 28, Council Directive 90/364, art. 1, 1990 O.J. (L 180) 26, Council Directive 93/96, art. 1. 1993 O.J. (L 317) 59
109. Again, following Pogge, I believe that states may best meet their duties to the global poor through means other than allowing immigration. See Pogge, Thomas, 'Migration and Poverty'. I disagree with Pogge's claim in this paper that direct aid to the poor may also discharge duties states have to refugees, which is why I distinguish them as a separate category here. A full account of the duties owed to refugees, and to whom these duties are owed, must wait for another paper, though I here note that the policy in the U.S. of granting public benefits to refugees seems to me to be a minimal condition of justice
110. INA § 213A(1)(A)
111. After this period in the U.S., the immigrant is eligible for naturalization, and to otherwise receive public benefits
112. Officially, becoming a public charge is a ground for removal as well, since any action that would make a would-be immigrant inadmissible also makes her removable. In practice, however, very few if any removal proceedings are brought on this ground. But, failure to meet the public charge provisions is a major ground for denial of a family-based immigration provision. INA § 237(a)(1)(A)
113. INA §§ 212(a)4 and 213A. Note this is a distinct rule from federal laws allowing (and in some cases compelling) the exclusion of immigrants from means-tested federal benefits. For those rules see 8 U.S.C. §§ 1612(b), 1621, 1622. For helpful discussion on these matters see Chang, Howard, 'Public Benefits and Federal Authorization for Alienage Discrimination by the States', New York University Annual Survey of American Law 58(Issue 3): (2002), 357-370
114. Interestingly enough, John Stuart Mill thought that rules much like these ought to apply to all persons, including citizens, seeking to marry, for much the same reason as I have argued for above. He said, 'The laws which, in many countries on the Continent, forbid marriage unless the parties can show that they have the means of supporting a family, do not exceed the legitimate powers of the State: and whether such laws be expedient or not... they are not objectionable as violations of liberty'. Mill, 'On Liberty', in Collini (ed.), On Liberty and Other Writings (Cambridge, 1989), p. 108. For an excellent discussion of this point
115. see Ryan, Alan, 'Mill in a Liberal Landscape', in Skorupski (ed.), The Cambridge Companion to Mill (Cambridge, 1998), pp. 512-514
116. For discussion on this point, see Chang, Howard, 'Migration as International Trade: The Economic Gains from the Liberalized Movement of Labor', UCLA Journal of International Law and Foreign Affairs 3(2): 384-395
117. Here, as in many areas of modern life, bright-line rules are likely to be preferable to individual assessments, and more compatible with liberalism, since they both allow greater planning, and hence freedom, and also because they allow for less room for arbitrary decision-making and discrimination. On this point see Larmore, Charles, 'In Praise of Bureaucracy' in his Patterns of Moral Complexity (Cambridge, 1987), pp. 90-92
118. See, for example, the provisions relating to adjustment of status and cancellation of removal in the 'Violence Against Women Act' in the U.S. INA § 204(a)(iii)(II), INA § 240A(b)(2). Immigrants who adjust status under these acts are eligible for public benefits
119. Note that this discussion is independent of the question of what other services, such as language and civics classes, help finding jobs, and so on should be provided to immigrants of any sort. I discuss this matter to some degree in my paper 'Citizenship in the Immigration Context', Maryland Law Review, 70, 1 (2010, forthcoming), but cannot hope to deal with all such issues in one paper
120. Compare the claim of one of the drafters of the Universal Declaration of Human Rights that the delegates could agree on the rights only so long as they did not have to agree on their foundation. There are also obvious similarities here with the Rawlsian idea of an 'overlapping consensus'
121. For discussion on this point see my paper, 'A Rawlsian Argument for Extending Family-Based Immigration Benefits to Same-Sex Couples', University of Memphis Law Review, 37 (Summer 2007)
122. as well as Gerstmann, Evan, Same-Sex Marriage and the Constitution (Cambridge, 2003)
123. This is, of course, not to say that there cannot be other conceptions of family - but, it seems, these other conceptions are parasitic off of the core conception. I shall not, however, argue this point now
124. See, INA § 101(b)(1), (2). The reason this benefit applies only to citizens over 21 is to prevent, or at least minimize, attempts to gain 'back-door' access to family-based immigration benefits by having a child in the U.S., since all children born in the U.S., even to illegal immigrants, are citizens. If children of any age could petition for their parents, this would create strong perverse incentives for non-citizens to have children in the U.S. Of course, non-citizens, including irregular migrants not eligible for legal status, do have children in the U.S., potentially creating problems. Most states deal with this by having much less generous jus soli citizenship rules than those found in the U.S., though this seems to me undesirable. I argue for this position in my paper, 'Citizenship in the Immigration Context', Maryland Law Review, 70, 1 (2010, forthcoming).
125. No immigration policy can be perfectly implemented. Immigration policy here is like all policy - there will be opportunity for abuse and no system can avoid such problems. We must seek to minimize injustices in application, but this can never be fully achieved. My approach to this problem would be to apply a standard somewhat like that found in U.S. law, where 'extreme hardship to a U.S. Citizen or permanent resident' (here the child born in the U.S.) can ground a claim for cancelation of removal, though in a more generous way that the law is currently applied. This, I think, would allow us to avoid the clearest cases of injustice. See, INA § 240A(b) for the current U.S. Law
126. Potential beneficiaries include siblings and adult children, among others. See INA § 203(a). These beneficiaries are, however, subject to numerical and country of origin limits in such a way as to create very long back-logs. It is sometimes argued that these backlogs are themselves unjust. Certainly they are highly frustrating to those subject to them. Since I hold that the justice of these aspects of immigration policy turn on the details of the country in question, and that the only way to determine these details is via the democratic process and serious deliberation, I will not here attempt to determine whether, as a matter of justice (as opposed to a matter of sound or efficient policy) the U.S. should strive to reduce these backlogs or eliminate them altogether
127. This statement is not to endorse any philosophical account of cultural assimilation and whether this is desirable. Such questions are beyond the range of this paper and would require significantly more space to address than I can here provide. Rather, my point here is the banal one that having contacts one can trust in a country is usually helpful for helping one learn how to get along with daily tasks, find work, not get lost, and so on. Such sorts of economic and practical integration are, I believe, tangential to the deeper philosophical disputes
128. This basic rule, of course, will have limits. For example, if a state had long granted immigration benefits to extended family members of citizens, but then later greatly limited them, solely because these benefits were being used by members of an ethnic minority in a way that was changing the ethnic make-up of the country, but was in no way harming the country, then restricting such benefits might well be a violation of the demands of justice. But, this violation of justice would be due to the unequal treatment of various members, and not due to the change in immigration policy as such
129. Given the non-ideal nature of our current world, and the fact that neither the U.S. nor Canada currently meet the requirements of a just foreign policy, even on the modest cosmopolitan account, there may be grounds in non-ideal theory for preferring one system over another. It is generally thought that the U.S. system provides more access to less advantaged immigrants than does the Canadian system. Whether this alone is reason to prefer it in non-ideal conditions is not, however, something I can hope to establish in this paper
130. In the case of restriction, of course, measures would have to be taken to protect the legitimate expectations of those already in the system before any changes could legitimately be made. But, this is a general principle of just action by states and not something special to the immigration context
131. Whether this means that such a right should be formally written into a constitution or should rather be inferred from other relevant clauses is not a matter that I shall discuss here. What is important is that the right be formally recognized
132. Bark v. INS, 511 F.2d 1200 (9th Cir.) 1975.