On Reporting Green-Card Marriages
The latest edition of “The Ethicist,” the The New York Times‘ moral advice column (published last Wednesday), takes as its topic sham green-card marriages. The advice seeker asks current Times ethicist, Kwame Anthony Appiah (NYU), whether she should report that at a wedding of an acquaintance, the bride explained to her that the marriage “was a fraud, one she’d entered into only in order to gain U.S. citizenship.”
Appiah says that “this country’s economic and cultural strength is in part a result of our openness to immigration… but it is the nature of the nation-state arrangement that states have a right to regulate who crosses their borders.” He adds:
If someone abuses it by the sort of fraud you have described, they are not only breaking the law, they are jumping a queue that millions of other people have formed by applying properly and then waiting their turn.
Appiah concludes that while one is “not obligated” to report the fraud, “it would be a good thing” to do so.
I’ve seen some discussion of the column online, and a couple of Daily Nous readers emailed me about it, asking for a discussion of it. There are questions about what makes a marriage real or fraudulent. There are questions about the immigration process, some of which are just factual (e.g., what affect does one’s obtaining a spousal green card have on other applicants for spousal green cards, or on applicants for green cards more generally? What’s the punishment for getting caught engaging in such fraud? One reader says “someone caught in a ‘fake’ marriage is potentially open to being sent to prison for 5 years and/or a $250,000 fine, at least according to this source.”). And there are questions about ideal and non-ideal theory, e.g.,: How does the unfairness of a system affect the moral assessment of individual moves of those who operate within it?
I’m inclined to think that Appiah is correct in opposing the kind of fraud described in the letter. Written before this weekend’s immigration law chaos, one operative and reasonable assumption was probably that there are significant benefits to rule of law and that changes to immigration policy should be sought through proper political and legal channels or perhaps through civil disobedience—not through attempts to get away with fraud. (I say this as someone who is generally in favor of very permissive immigration policies). The punishment strikes me as excessive, though, and that would temper my enthusiasm for encouraging private individuals to report such attempts.
When immigration law itself is made by executive order without respect for the rule of law, in the absence of consultation with the relevant experts, and with the apparent intention to reinforce or cater to discriminatory attitudes—as we saw with Trump this past weekend—it might seem that individuals’ obligations to obey the law weaken. That judgment, though, depends on us having rather dim prospects for more straightforwardly permissible forms of resistance and reform of the law and the way in which it is made. Are we at that point yet? The modest successes that the people and the judiciary have had over the past couple of days in response to Trump’s immigration order suggest that it is too early to abandon the hope we need in order to believe in the resilience of the rule of law.
UPDATE: As Bruno Leipold notes in the comments, Chris Bertram (Bristol) comments on Appiah’s advice here.
So-called fraudulent marriages often enable families to escape poverty and other circumstances that otherwise impact negatively on their ability to live meaningfully, e.g., one in which there is the opportunity to educate one’s children, get medical treatment, escape oppressive laws, etc. My case is a good example of ‘fraudulently’ acquiring citizenship. We immigrated to Canada as asylum-seekers when I was about 4 or 5 years old. We were given refugee status on the basis of exaggerated arguments about the threat of political persecution in our country of origin. There was some persecution but my parents would not have been threatened if they chose to keep their mouths shout about the things they were witnessing around them. Now, part of the real reason for emigration was that my parents did not want to live in a state whose laws and customs meant that their daughters could not flourish, would be subject to all sorts of demeaning treatment growing up, etc. These are not acceptable legal grounds in an application for refugee status as far as I am aware (I have since worked with UNHCR on asylum and refugee cases). But they are very good moral ones.
Tell me, would anyone in their right mind argue that if they had known about the fraudulent basis of the application, they would justifiably report it to the authorities? In thinking about this question, bear in mind that the vast majority of those who are lucky enough to be born with a good passport did not earn it in any meaningful sense (like those who were lucky enough to be born without some kind of lifelong medical ailment). One cannot begrudge those who do everything they can—including lying in their refugee applications or marrying for reasons other than true love—to do something about the hand they were dealt.
I agree that the likely punishment for the person makes reporting the case wrong. But even in the absence of punishment, I would disagree with the argument that ‘changes to immigration policy should be sought through proper political and legal channels or perhaps through civil disobedience—not through attempts to get away with fraud.’ For one thing, the person in question has few if any options to go through the proper political and legal channels since they were (before the marriage) not a citizen. Second, the ‘proper’ political and legal channels are so heavily skewed against the oppressed (including immigrants) that they have scant legitimacy. Third, given the immense injustice of immigration policy in the USA and other rich nations I think that Green Card marriage counts as a kind of civil disobedience.
And a very good response by Chris Bertram on Crooked Timber: http://crookedtimber.org/2017/01/31/snitching-on-those-in-breach-of-immigration-law/
“For one thing, the person in question has few if any options to go through the proper political and legal channels since they were (before the marriage) not a citizen. Second, the ‘proper’ political and legal channels are so heavily skewed against the oppressed (including immigrants) that they have scant legitimacy. Third, given the immense injustice of immigration policy in the USA and other rich nations I think that Green Card marriage counts as a kind of civil disobedience.”
For what it’s worth, it’s important to note that none of the above can be inferred from the actual article. It might apply to the person in question, or it might not. There are a significant number(*) of marriage fraud cases involving people from wealthy countries who are not in any plausible way oppressed, and who have the ability to live perfectly decent lives in the places they are, and who often even have other, if less quick or certain, ways to migrate They simply want other options not currently open to them. Perhaps these options should be open to them. But, that’s a different argument. When thinking about immigration, it’s important to keep in mind that there are remedial cases and non-remedial ones, and if you are making a general argument, you have to be able to include both sets. The argument I am replying to here seems to apply only in the case of remedial cases, but we don’t know if that applies here.
(*) by “significant” here I mean a non-small numerical number, not a large percentage of the total. I do not think the percentage of fraudulent cases is high enough to warrant stronger enforcement measures, or the top possible penalty – which is rarely applied – even if we think the general scheme of immigration rules in a country like the US is sound.
If she was not a citizen we can at least infer that several ‘proper’ political and legal channels, including voting and standing for office, were not open to her. We may not know about other features about her case, but neither did Appiah when he said ‘it would be a good thing’ to report her. Even if you were given more detail about her situation, I find it hard to think of many examples where it would be ‘good’ to report her, given the possible legal punishment. Furthermore, what we know about the general injustice and illegitimacy of US immigration policy is also independent of the article’s contents.
There are … very many assumptions built in to this reply (and the stuff above.) That’s not a huge problem. I don’t assume that people should make fully worked out arguments in comments on the internet. But, I do think it’s worth noting that the assumptions at play here are, 1) pretty controversial, 2) not obviously right, nor accepted by the large majority of people working in the area, and 3) necessary for the conclusions argued for here to be remotely plausible. If that’s all accepted, I don’t have too many serious worries here, though I do think that this line of thought isn’t of much real use. (I have no use for anarchist-friendly thought at all, as seems to be behind much of this, though of course others may disagree.)
I would never betray a decent person who has done what they need to do to get to a safe haven, and I know some. The arguments here about “LAW” remind me of Nazi Germany when people were either terrified into reporting on each other in order not to be perceived as having broken one of Hitler’s laws or did so out of spite. As human beings our first duty, indeed our instinct, should be to show compassion towards each other, not obedience to law. Our humanity trumps law.
I would never betray a decent person who has done what they need to do to get to a safe haven
That seems pretty reasonable. But, what makes you sure that it applies in this case? Nothing at all in the text suggests it. If it doesn’t apply, how would that change your feelings, if at all? (I would not support reporting the person in the story in any case, I think, but think it’s worth noting that the claim here just isn’t part of the story as presented. It’s being added in.)
Thanks for posting this, Justin.
It seems to me that your own analysis assumes that immigration policy (as well as marriage policy) prior to the Trump era was relatively non-arbitrary and non-discriminatory. But these policies have been deeply arbitrary and unfair for most, if not all, of American history. Take, for example, Obama’s policies on Central American refugees or the reversal of policy on Haitian refugees at the end of his presidency. I don’t think the average American has an obligation to enforce such unfair and potentially inhumane laws.
Just one example: during the Bush years, I knew two friends who undertook a “green card marriage”. The American citizen was a lesbian, and the non-citizen was her dear friend, a so-called “dreamer” who was brought to the US undocumented as a small child. At the time there was no reasonable legal recourse for dreamers (and of course, a DACA repeal is on the table now) , and pre-Obergefell, the bride was unable to enter into any non-fraudulent marriage. They had, and still have, a caring and loving friendship. I commend them for finding a humane way to circumvent unfair marriage and immigration laws. If we were reading the stories of real “green-card marriage” participants in full context, I think it would be much harder to defend the rule of law and much easier to recognize the morality of their actions.
I think that I and most of the commenters here are in rough agreement about the desirability of very permissive immigration policies, and also in agreement that (perhaps for a variety of reasons) more restrictive policies are bad or unjust. I also acknowledge that there are many individual cases in which people have escaped undeserved terrible circumstances by violating wrong or unjust immigration laws.
Perhaps our disagreement lies in our views about how we can make it the case that more people around the world can escape terrible circumstances by coming to the United States. My general concerns, which may be empirically unsubstantiated, are (a) perceptions of illegal immigration or violation of immigration laws encourage anti-immigrant sentiment and policies, (b) there are both subtle and not-so-subtle benefits to living in a society characterized by rule of law, and (c) rule of law is compatible with only so much discretionary compliance.
These concerns lead me to think that when we are under conditions in which both (1) liberalization of the immigration policies is politically possible and (2) violations of immigration policy make such liberalization less likely, then we should (generally, perhaps with some exceptions for egregiously desperate cases) be opposed to violations of immigration policy.
Let me add that, along the lines of Matt’s first comment, I did not interpret the case Appiah was discussing as an egregiously desperate case. That might have been a mistake.