By S. Shabzadeh
“So, what do you think our chances of immigrating to Canada are?” he asked me as he attempted to bring his unruly son onto his lap. Looking at my cousin I could see the toll of years of hardship in his eyes. We had the same name, we were the same age, even the same height, but our realities could not be more different. I was set to begin at law school in the United States in just a few weeks whereas my cousin was recently unemployed and thinking about his wife and two sons. I was going back to a life of certainty of school, good job prospects and stability. My cousin was walking into the abyss of the unknown as the economic situation in Iran was quickly deteriorated due to the United States’ reimposition of comprehensive sanctions following the Trump Administration’s unilateral withdrawal from the Joint Comprehensive Plan of Action (JCPOA). Sealed off from the world, the sense of desperation and panic was palpable as nearly everyone I spoke to who had had the means was drawing up plans to leave Iran.
I felt guilty. That summer, every laugh, every conversation, every moment I shared with my friends and family in Iran was haunted by this melancholic realization that my presence was a reminder of what they lacked. True, I spoke their language, shared in their laughs and tears, but my presence was a constant reminder of the precariousness of their situation. My status as a dual national and my US passport protected me from the harshness of their reality: rapid inflation, high unemployment and bleak prospects for immigration. My being there was simply a reminder of a world beyond their grasp. But why me? Why was I one of the lucky ones? But for a stroke of luck, I could be sitting in my cousin’s shoes and he in mine.
The readings for the Open Borders seminar of Abolition 13/13 shed light upon the moral quandary of borders and offer alternatives to existing border and immigration regimes. In The Ethics of Immigration, Joseph Carens compares the stratification created based on modern citizenship to feudalism: “To be born a citizen of a rich state in Europe or North America is like being born into the nobility. To be born a citizen of a poor country in Asia or Africa is like being born into the peasantry in the Middle Ages.”[1] In his work, Carens forwards a moralistic critique of borders beyond theory arguing that some formerly deeply imbedded practices–such as slavery, racial segregation and institutionalized sexism–are seen as reprehensible by modern moral standards. Drawing upon “familiar, widely shared democratic principles.” Carens seeks to use democracy’s most basic tenets—equality and liberty—to both levy a moralistic critique of modern migration and border practices in order to advocate for open borders. Tapping into these principles to argue that all humans are of equal moral worth and equally deserving of opportunity, Carens advocates for treating “freedom of movement across state borders as a human right.”[2]
In her book, On Borders, Paulina Ochoa Espejo similarly advocates for the reimagining of borders looking to commonly held principles and legal theories. Ochoa Espejo critiques the identity-based approach to delineating borders and instead advocates for borders to be conceptualized in terms of place and place-based obligations—such as political or social duties. Likening her conception of borders to the Watershed Model, Ochoa Espejo challenges both conceptions of national sovereignty and the individual right to own private property. Rather, Ochoa Espejo argues that like watersheds and drainage basins, territory should be seen as “emerging from local and socio-natural relations, obligations and institutions”[3] Per this model, Ochoa Espejo advocates for a “ground up” approach to conceiving borders as “institutions could be used to draw borders between localities.”[4] Thus, Ochoa Espejo advocates for a pragmatic approach to borders, taking into consideration political, social and cultural considerations tied to the territory or land when crafting a place-specific border regime.
Harsha Walia takes the critique of borders one step further, analyzing the border as the amalgamation of imperialist, racist, capitalist, corporatist, and nativist policies serving as a “key method of imperial state formation, hierarchical social ordering, labor control, and xenophobic nationalism.”[5] In her book, Border and Rule, Walia counters the imaginary ‘border crises’ narrative drummed up by nativists in Europe, the United States and around the world, instead arguing that “such representations depict migrants and refugees as the cause of an imagined crisis at the border, when, in fact, mass migration is the outcome of the actual crises of capitalism, conquest, and climate change.”[6] In her analysis of the function of borders, Walia connects the movement to abolish borders to the wider abolitionist movements to abolish prison and the police arguing that “police, prisons, and borders operate through a shared logic of immobilization, containing oppressed communities under racial capitalism.”[7] According to Walia, the use of the law is instrumental in carrying out such immobilization efforts as “illegal immigration is a product of migration law” and the state’s attempt to criminalize and regulate such activity.[8] Legal status, Walia argues, is at the core of the exploitation of undocumented migrants and their use as “state-sanctioned pool of unfree, indentured laborers.”[9] To solve for such endemic issues surrounding the existence of borders, Walia advocates for a “leftist politics of no borders” in which capitalist social relations are abandoned.[10]
In contrast, Seyla Benhabib contends that the issue is not the borders themselves but how the extent to which they are militarized and policed. In her article, “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” Benhabib advocates for a cosmopolitan pluralism in which would do away with the “militarily armed and violently guarded border regimes.”[11] While Benhabib contends that “democracies require jurisdictional boundaries” because we must know in “whose name the law is being enacted and how we can request accountability from those who enact it.”[12] Rather than the abolishment of borders, Benhabib advocates for “reconceptualizing sovereignty as a regime of global interdependence” with the primacy of international law over democratic, independent and self-determining sovereigns.
Reading such critiques of borders, I couldn’t help but reflect on how my life was shaped by immigration policies. I am the son of small business owning immigrants and I am a product of what some would call “illegal immigration.” To become a citizen, my mother along with many people in her generation, committed marriage fraud–marrying a U.S. citizen on paper to get a green card. After his student visa expired, my father was arrested in order to be deported as an undocumented immigrant. Luckily, after nearly two weeks in holding he was granted an extension by a judge—which he overstayed by about two decades. Immigration law is arbitrary and cruel. My childhood was characterized by a steady flow of family moving from Iran—despite highly discriminatory U.S. immigration practices in order to escape the ravages of U.S.-imposed sanctions. However, with the rise of nativist policies and the imposition of Trump’s notorious Muslim Ban, for many of my friends and family, Iran, the country of their birth, has become an open air prison in which the people of a nation are collectively punished by a U.S.-led sanctions regime.
Coming to understand such alternatives to existing border regimes, I could not help but think about my own experience with immigration. Reading Walia’s writing, I was especially struck by the way she was able to reverse the logic of nativist conservative rhetoric surrounding the imaginary ‘migration crisis’ and point out such an obvious fact: immigrants are the product, not the cause, of the crises of capitalism, imperialism and climate change. I started working with my father at the age of fifteen at my family’s gas station. Many of our customers were undocumented immigrants from Mexico and Central America who were escaping the violence of the War on Drugs. Many of these undocumented workers, some not much older than me, worked for cash in construction crews, boat crews and other manual labor jobs. Working as a cashier, I saw kids not much older than me maimed on the job or even deported in ICE raids that profiled and targeted Hispanic migrants. As a young teenager, I realized how something as arbitrary as birthplace and legal status could render human life expendable and disposable.
Now, as a law student, I am joining a field that is the core instrumentality of the violent and racist border regimes—especially in the United States. Borders are international legal fictions that are enforced via state violence. To reimagine borders and to overcome such injustices, we must first confront the laws that constitute such border regimes. Whereas Carens and Ochoa Espejo’s moralistic critique of contemporary border regimes are highly effective at appealing to universal principles, Walia’s critique was extremely effective in highlighting the top-down effects and ramifications of contemporary border regimes. As generations of law students are educated and inculcated into a legal system that is blind to the implications of such border regimes, this system of immobilization and exploitation is perpetuated. By demonstrating the injustice and inhumanity of these imaginary frontiers through education and effective pedagogy, the law can be retooled to abolish existing border regimes.
Notes
[1] Joseph Carens, “The Case for Open Borders,” in The Ethics of Immigration (Oxford: Oxford University Press, 2013), at 226.
[2] Ibid, 239.
[3] Paulina Ochoa Espejo, On Borders: Territoriality, Legitimacy, and the Rights of Place (Oxford: Oxford University Press, 2020), at 19.
[4] Id, 18.
[5] Walia, Border and Rule, at 14.
[6] Ibid, 14.
[7] Ibid, 15.
[8] Ibid, 15.
[9] Ibid, 16.
[10] Ibid, 111.
[11] Benhabib, “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” Jus Cogens (2020).
[12] Ibid.
