Diversity, mass immigration, and national security after 9/11--an immigration reform movement perspective.

• Author: Hethmon, Michael M.

Fiat justitia et pereat mundus? (1) Diversity as a legal doctrine in immigration law has become a contradiction, not because of what occurs under the law, but because of what occurs outside the law. In legal scholarship, diversity is a project of liberal constitutionalism, with its concepts of radical egalitarianism, anti-subjugation protections, and historicism. (2) Adherence to variants of liberal constitutionalism among immigration lawyers is widespread. These shared ideologies and professional interests have encouraged a rhetorical segregation of opponents of mass immigration at the "nativist" right extreme of the political spectrum. (3)

In actuality, the core leadership of the immigration reform movement comes from the environmental movement and has tended to use ecological rather than legal concepts in public discourse. (4) In an attempt to renew dialogue between rights-oriented lawyers and limits-oriented environmentalists, I offer a working paper that highlights ecolate (5) concepts behind immigration reform advocacy. The paradigm of diversity provides a useful organizing point. Diversity has taken on a set of concentric meanings in contemporary immigration law and policy. I would suggest that most advocates mix and mingle these meanings in legal writing.

1. DIVERSITY VISAS

   At its most discrete, diversity describes a statutory program for awarding immigrant visas to winners of a lottery from countries that have sent relatively few immigrants to the U.S. in recent years. (6) Congressional sponsors of this legislation described the policy underlying the statute as an equitable provision of current visa preferences to natives of countries that have been disadvantaged by past numerical limits and priority laws. (7)

   The "diversity visa" originated in a pilot program authorized under the Immigration Reform and Control Act of 1986. (8) The NP-5 program provided for 5,000 visas per year to be made available during 1987 and 1988 to natives of foreign states that had been "adversely affected" (9) by the enactment of the Immigration and Nationality Act of 1965. (10) Certain European countries experienced significant drops in the numbers of nationals eligible for immigrant visas after the 1965 repeal of the nation origins quota system. Thirty-seven countries subsequently were determined to be "adversely affected." (11) Applicants for NP-5 non-preference visas could apply by mail to the U.S. State Department, with priority based on the date the application was received. (12)

   An unexpectedly high demand for NP-5 visas prompted Congress to extend the program for two more years in 1988 and to increase the availability of visa numbers to 15,000 per fiscal year. (13) However, Rep. Howard Berman (D-CA) criticized the European orientation of the NP-5 program as a "slap in the face" to the 1965 reforms. (14) Berman was able to include a new OP-1 program to add 10,000 more visa numbers in fiscal years 1990 and 1991 for natives of "underrepresented countries." (15) "Underrepresented countries" were defined as those that had used less than twenty-five percent of the immigrant visa numbers normally available during fiscal year 1988. (16) Unlike NP-5, successful applicants under the OP-1 program would be selected randomly by computer in a visa lottery. (17) One hundred and sixty-two countries were found to qualify, and an unprecedented estimated three million applications were received.

   The diversity visa program was greatly expanded under the Immigration Act of 1990. (18) Further technical corrections were enacted in 1991. (19) As part of the largest statutory increase in legal immigration levels, Congress stated that one of its goals was to "promote diversity," although the term was never defined. (20) First, a transitional provision, called the AA-1 program, provided 40,000 visas for use between fiscal year 1992 and 1994 for thirty-four "adversely affected" countries. (21) The program was structured by Sen. Edward M. Kennedy and Rep. Edward J. Markey of Massachusetts to favor natives of Ireland, and in particular, Irish citizens illegally employed in the United States. (22) The AA-1 program also included a family preference provision that granted derivative status to spouses and children of approved beneficiaries. (23) A second transitional provision added loopholes designed to extend NP-5 eligibility for an additional year to various special interest groups and also lacked any diversity-based policy rationale. (24)

   The permanent diversity visa provisions enacted in 1990 created the diversity lottery in its present form. (25) Allocation of visas by national origin is based on an extraordinarily complicated formula. (26) The Attorney General must first identify, for each "foreign state," (27) the total number of aliens granted permanent legal residence during the most recent five-fiscal-year period. (28) States for which the total number of aliens granted permanent residency status exceeded 50,000 during the relevant period are designated as high-admission states. (29) Natives of high-admission states are ineligible for diversity visas. (30) Six world regions, which roughly correlate to the primary racial classifications used by the federal government, are identified either as "high-admission" or "low-admission." (31) Quotas for visa numbers for low-admission states are then created using a weighted formula to favor states in low-admissions regions. (32) Unused visa numbers can be redistributed by region using the same quota ratios. (33) An absolute ceiling of seven percent of total diversity visas is imposed on each eligible state. (34)

   Diversity visa applicants are chosen randomly each fiscal year in a lottery and selection process. Winning applicants and their derivative spouses must meet education and work experience qualifications higher than those for a "skilled worker" under a third-preference employment-based visa. (35) Separate extensions of eligibility for various special interest groups were enacted in 1994 and 1996. (36) In 1996, the Nicaraguan Adjustment and Central American Relief Act (NACARA) reallocated 5,000 diversity visa numbers to certain illegal aliens from Central America who became eligible to adjust their status to permanent legal resident. (37)

   The legislative history of the diversity visa programs is one of targeted relief for domestic special interests. (38) It does not identify a legal principle of diversity with general applicability to immigration law. (39) Designation of diversity beneficiaries by nationality and national origin has been arbitrary, and in policy terms, represents little more than a back-handed acknowledgement of the continuing vitality of the plenary power doctrine in immigration jurisprudence.

   In immigration policy debate, diversity has also taken on a more normative meaning that evokes domestic civil rights law, as classically but vaguely defined in the Bakke decision. (40) Civil rights rhetoric has been a determinative factor in shaping policy alternatives available to the United States government for the regulation of immigration. (41) In the United States, this formulation of diversity has been shaped by the Supreme Court's unwillingness to enforce ethnic quotas or other more stark forms of proportionalism among ascriptive groups. For example, in American legal education, diversity is said to enhance interaction among individuals of different races by expanding the subject matter of discourse and improving communications and insight among people from different backgrounds. (42)

2. TRANSNATIONAL DIVERSITY THEORY

   In immigration policy, diversity is said to provide the same benefits on a transnational scale. In particular, diversity is expressed as an ideology for combating xenophobia. This paradigm has been developed most elaborately in transnational institutions. (43) Traditional U.S. civil rights analysis had two prongs--a constitutional prong, based on equal-protection analysis, and a sociological prong--the harm and benefit thesis, based on social science studies, which found that racial and ethnic isolation damaged the individual performance of members of isolated groups. (44) In immigration law, the constitutional prong has been exercised through sanctions on national-origin discrimination. (45) The influence of the sociological argument has waned along with the failure of federal integration programs in public education and housing, but it has remained influential in foreign jurisprudence, notably in European antidiscrimination law.

   Advocates at the transnational level believe that the definition of xenophobia and the differences between it and racism are "still evolving concepts." (46) There is an implication that xenophobia, as "'an attitudinal orientation of hostility against non-natives in a given population'" encompasses a wider range of politically unacceptable thought than does racism, with its emphasis on measurable differences in behaviors. (47) Although xenophobia is a thought crime, its manifestations are said to derive from "severe economic inequalities and the marginalization of persons from access to basic economic and social conditions." (48) However, a direct causal connection between the demographic representation of migrants in a given population and the level of xenophobia is generally denied. (49)

   Human rights law, with its postulates of a universal right of migration, is the legal mechanism used to measure unlawful xenophobia. (50) Human rights discourse is given a central role in this analysis of xenophobia, whose target is defined broadly as "outsiders." Human rights-based diversity analysis also minimizes legal distinctions between migrant workers and refugees. (51) Diversity, defined as respect for the values and identities of others, is seen as the social and political tool for reducing and ameliorating xenophobic attitudes. (52) The essential legal tools in this process are national and transnational anti-discrimination...