Anil Kalhan

(Posted at Dorf on Law)

This week, the Senate began debate over a massive immigration reform bill cobbled together by a bipartisan group of senators and the Bush administration, a compromise proposal that Arlen Specter has extravagantly dubbed the “grand bargain.” As rumored several weeks ago, the bill includes a set of initiatives (apparently included at the behest of the Bush administration) that would radically accelerate the Clinton-era trend of eroding the place of family unity as a foundational principle underlying U.S. immigration policy. The system contemplated by the grand bargainers would eliminate most of the existing family-based immigration preference categories (and all of the existing employment-based preference categories) in favor of a new “points”-based scheme that prioritizes highly-skilled, highly-educated, and English-speaking professionals; under the points scheme, family ties would carry negligible weight. Immigration by spouses and minor children of U.S. citizens and lawful permanent residents would remain unchanged, but the grand bargain would eliminate family-based immigration for adult children of U.S. citizens and permanent residents and siblings of U.S. citizens. The proposal would also cap immigration by parents of adult U.S. citizens, who currently can immigrate without numerical restriction.

The proposal seems to come straight from the playbook of immigration restrictionists, who sometimes purport to welcome nuclear family-based immigration, but dismiss extended family-based immigration as privileging “kinship ties” over “actually making the United States better off.” [link] Curtailing “extended” family-based immigration — which in this context means parents, adult children, and adult siblings, not more “distant” relatives — certainly would visit a real hardship upon many immigrants from societies in which the extended family is a basic social unit and caring for aging parents and other adult family members a basic social value. (Indeed, at least one international news report this week characterized the grand bargain as “challeng[ing] Asian family values.”) But one need not view this issue exclusively in cultural terms to be concerned by the grand bargain’s rather sudden move away from family unity, for opponents of extended family-based immigration also seem to underestimate its social and economic benefits to the United States at large. Studies indicate that family-based immigrants, perhaps aided by greater social capital, have the same earning potential over time as employment-based immigrants, play a leading role in the entrepreneurial sector, and provide economic, psychological, emotional, and cultural support that facilitates the integration of immigrants into U.S. society. Immigrant grandparents and other extended family members often also play a crucial role in assisting with child care, facilitating the workforce participation of many parents.

It is a bit odd to see a proposal to curtail family reunification — which was not even on the table at all in the immigration debate last year — as part of the opening bid in the debate before a Democratic Senate. It is one thing to see President Bush’s statement that “American citizens [should] understand that family values do not stop at the Rio Grande River” evaporate, since the Bush administration has always devoted more energy to asserting broad principles in the area of immigration reform than to tangibly implementing those principles in proposed legislation. (The revised rhetoric coming from the White House this week maintains, less majestically, that the grand bargain’s elimination of most family-based immigration categories “create[s] a new balance between family connections and our national interests and economic needs.” [link]) But it is quite another to see Senator Kennedy signing on to this proposal, which appears in a bill that on balance seems more restrictionist, in some ways, than the bill which passed the Republican-led Senate by a wide margin last year. Not only did Kennedy strongly assert his commitment to family reunification less than two months ago, he also played a crucial role in placing family reunification at the heart of U.S. immigration policy in the first place, when the Immigration Act of 1965 was enacted. One has to wonder what the strategy is here. Some senators have said they will seek to amend the family unity provisions on the Senate floor, but it remains to be seen how those floor votes will play out.

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The New York Times efficiently summarizes and critiques the 347-page bill’s main components (including its legalization and temporary guest worker provisions, and the “triggers” and “touchbacks” that might make it difficult for those provisions to take effect at all) in this short editorial. The American Immigration Lawyers Association adds its concerns about the grand bargain here, the Rights Working Group discusses due process concerns in the bill here, and SAALT executive director Deepa Iyer discusses implications for the South Asian American community here. And last but not least, Jon Stewart and Aasif Mandvi discuss the points scheme in the clip above.

Last weekend’s bout of political violence in Karachi — the worst the city has seen in years — culminated a tumultuous week in which the stakes escalated sharply in the conflict between Pakistan’s President Pervez Musharraf and supporters of now the “non-functional” Chief Justice Iftikhar Chaudhry. With Musharraf and his allies clamping down on political opponents, interfering with freedom of the press, and raising the specter of a state of emergency, the prospects for the return of Pakistani democracy may hang in the balance. . . .

Continue reading at AsiaMedia…

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Watch the trailer here.

UPDATE: An updated discussion of the issues in this post may be found in my column for AsiaMedia on May 18, 2007.

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(Posted at Dorf on Law)

It’s been an eventful week in Pakistan. A recap for folks who get most of their news from American media outlets may have missed it:

• In a speech on Saturday, President Pervez Musharraf once again accused “non-functional” Chief Justice Iftikhar Chaudhry’s supporters in the Pakistani legal community of “trying to give political colour to a judicial issue.” He warned “that they would not succeed in their designs,” and again defended his decision to suspend Chaudhry. [link]
• In response, tens of thousands of Chaudhry’s supporters and Musharraf’s opponents rallied in support of Chaudhry’s motorcade on Saturday and Sunday as it proceeded through towns along the Grand Trunk Road from Islamabad to Lahore — a four-hour trip that took Chaudhry’s motorcade approximately twenty-six. “Nations and states which are based on dictatorship instead of the supremacy of the constitution, the rule of law and protection of basic rights get destroyed,” Chaudhry warned in a speech to lawyers in Lahore. The government apparently blacked out news coverage of the demonstrations and arrested many activists in advance of Chaudhry’s yatra. [one, two, three]
• In response to the demonstrations, Musharraf’s Prime Minister Shaukat Aziz, a former Citibank executive in New York, warned that the government reserved the option under the Pakistan Constitution to declare a state of emergency. He also warned the media to “use its press freedom with responsibility” and “avoid inappropriate reporting.” [link]
• On Wednesday, the Supreme Court of Pakistan “strictly prohibited” any “discussions, comments or write ups which may interfere with the legal process, or ridicule, scandalize or malign the Court or any of its Judges/Members of the Supreme Judicial Council or touching the merits of cases pending both before the Supreme Judicial Council/Supreme Court” and warned that violators would be punished for contempt of court. [link] Meanwhile, that same day in Karachi, government officials sealed the law office of Munir Malik, President of the Pakistan Supreme Court Bar Association and one of the lawyers defending Chaudhry. Within hours, the Sindh High Court ordered Malik’s office unsealed, and early on Thursday morning, shots were fired into Malik’s home by unidentified gunmen. [link]

Leaving to one side the merits of the charges against Chaudhry, about which I have nothing to say, Musharraf’s repeated attempts to draw a line between politics and law in this case — and at that, to do so in the course of his own political speeches and press conferences — seem a bit naive at best. Indeed, the highly politicized manner in which Musharraf and Aziz initially handled the referral of the case back in March, as summarized in a preliminary report released on Tuesday by the International Bar Association, seems to have intertwined the case with politics from the start. And clearly, the case has touched a nerve implicating issues bigger than anything to do with Chaudhry himself. Given the Supreme Court’s gag order, the cabinet has now asked Musharraf and other government officials to stop talking about the case. [link]

Aziz’s talk of emergency seems more ominous, evoking not only earlier moments in Pakistani history but also the notorious Emergency declared in India during the 1970s. Facing growing political opposition and an unfavorable judicial decision that would have tossed her from office, Indira Gandhi instead tossed Indian democracy itself to one side, manipulating constitutional provisions authorizing the declaration of emergency to suspend fundamental rights, censor news coverage, detain tens of thousands of political opponents and others, and effectively rule by decree. Pakistan seems to be facing a similar moment. With elections required by the end of this year, Musharraf has been maneuvering for a way to remain President while retaining his post as Army Chief of Staff, which would appear to violate the Pakistan Constitution. (Indeed, Musharraf has already violated his own promise to give up either his post as Army Chief or his civilian post as President by December 2004.) A state of emergency could provide a convenient pretext for Musharraf to postpone elections and prolong his hold on power. At the same time, given the depth of political opposition that the Chaudhry affair has exposed, one has to cringe at the thought of what it might take for the Pakistan Army to meaningfully enforce any declaration of emergency.

So far, there seems little basis for even a pretextual declaration of emergency. But the Chaudhry Yatra proceeds this weekend to Karachi, where Chaudhry is scheduled to address the Sindh High Court Bar Association. Chadhury’s supporters have scheduled an anti-Musharraf demonstration, and in response the pro-Musharraf MQM has scheduled a counterdemonstration to take place at the same time nearby, which Musharraf opponents allege has been planned in a deliberate attempt to stir up violence. (Musharraf also has scheduled a political rally of his own to take place at the same time in Islamabad.) Karachi is understandably on edge in advance of the competing demonstrations, for which the state government is planning to deploy 15,000 police.

Will the unfolding events provide Musharraf with a convenient excuse to declare an emergency? And what are U.S. diplomats saying to Pakistani officials behind closed doors? In the words of the Faiz Ahmed Faiz ghazal that has been much quoted in connection with this week’s events, “hum dekhenge.”

(Posted at Dorf on Law)

According to the New York Times, U.S. officials are concerned about what the Times calls a “visa loophole“: the ability to enter the United States as a short-term, temporary visitor without a visa. The headline does not make clear precisely what the supposed “loophole” is. If the Times means to refer to the Visa Waiver Program as a whole, which authorizes visa-free entry of visitors from 27 countries that extend the same privilege to U.S. citizens, then that must be one of the biggest “loopholes” in human history, since approximately 13-15 million people — representing roughly half of all nonimmigrant admissions — enter the United States under the program every year. So surely the Times’ characterization rests on a more particularized, irregular, and unanticipated concern?

In recent months, the homeland security secretary, Michael Chertoff, has opened talks with the government here on how to curb the access of British citizens of Pakistani origin to the United States. . . . Among the options that have been put on the table [by U.S. officials], according to British officials, was the most onerous option to Britain, that of canceling the entire visa waiver program that allows all Britons entry to the United States without a visa. Another option, politically fraught as it is, would be to single out Britons of Pakistani origin, requiring them to make visa applications for the United States.

Oops. Maybe not all that particularized, since (according to the Times) approximately 800,000 UK citizens are of Pakistani descent. And not the least bit irregular, since the government has implemented the Visa Waiver Program pursuant to criteria established under a series of statutes dating from the mid-1980s. A wag of the finger to the Times, and a tip of the hat to Siddhartha Mitter — as he notes, to characterize as a “loophole” the ordinary application of U.S. immigration laws to UK citizens of Pakistani descent in precisely the same manner that they apply to any other UK citizen seems, “wittingly or not, an appeal to prejudice and an insult to intelligence.” It’s as much a “loophole” as my entitlement, as a U.S. citizen of South Asian descent, to get one of those kitschy new U.S. passports that Mike wrote about on Tuesday.

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Let’s leave to one side debate over the Visa Waiver Program in general, which provides significant economic and fiscal benefits to the United States but also has raised security concerns. What should we make of the specific proposal to discriminate against Pakistani UK citizens? Despite the Chief Justice’s statement in a 2006 voting rights case that “it is a sordid business, this divvying of us up by race,” the Supreme Court might well uphold an official policy discriminating against Pakistani, South Asian, or Muslim UK citizens. Just as it relied upon and reaffirmed the Civil Rights Cases when striking down the Violence Against Women Act, the Court could rely upon and reaffirm the cases from the same era upholding Chinese exclusion, which never have been overruled; while more recent Supreme Court cases require some limited constitutional scrutiny over substantive admissions criteria, they probably don’t require strict scrutiny.

But it also doesn’t strike me as a “slam dunk” case, given the proposal’s rather questionable rationality. Indeed, the very fact that this discussion is taking place at all might be an illustration of Bernard Harcourt’s suggestion (which he also makes in his recent book) that profiling in defensive counterterrorism measures might, counterproductively, lead to substitution in the form of either recruitment from non-profiled groups or use of methods that may be more immune to such profiling. The first generation of post-2001 profiling-based initiatives by the United States largely targeted natives and citizens of predominantly Muslim countries. The possible shift now to a second generation of profiling-based initiatives, this time instead targeting citizens (presumably including both naturalized and native-born) of largely non-Muslim countries in the West, might be a response to precisely the sort of substitution that Harcourt discusses. Why shouldn’t we expect further substitution in response to this proposal as well? After all, UK citizens suspected of terrorism in recent years have not exclusively been Pakistani, but also have included individuals of Jamaican and East African descent. And there are 26 other countries in the Visa Waiver Program.

According to GAO, the biggest potential vulnerability in the Visa Waiver Program is the misuse of lost and stolen passports by individuals seeking to conceal their true identities or nationalities. Some visa waiver countries may not be monitoring and reporting lost or stolen passports as effectively as they should, and U.S. border officials may lack sufficient resources and capacity to detect the misuse of passports from visa waiver countries. But assuming these are the principal concerns here, it seems odd and misguided to respond by requiring Pakistani UK citizens alone to apply for visas. After all, holders of false, manipulated, or fraudulently-obtained British passports probably could manipulate their identities rather easily to indicate that they are of, say, Indian or Lebanese descent. Even if the profile were broadened to include all Muslim UK citizens, a determined would-be terrorist could similarly conceal their religious identity.

So a wag of the finger to Chertoff as well. Like most of the post-2001 initiatives that have adopted blanket, categorical rules that profile and discriminate against individuals perceived to be Muslim, this proposal strikes me as symbolic “security” on the cheap, a sign that perhaps the government does not understand all that well the phenomenon it seeks to prevent. In the short term, the proposal seems unlikely to provide more than a false sense of security and could visit real hardships upon many UK citizens of Pakistani descent, given how much red tape many Muslims face in the visa application process nowadays. (See here for a particularly cringeworthy story.) In the longer term, the proposal represents yet another discriminatory initiative with great potential to fuel the alienation and anger of Muslims throughout the world, by once again forcing them to endure the indignity of imputed responsibility for wrongdoing with which they have absolutely nothing to do.