Professor Lenni Benson specializes in immigration law and political asylum and is nationally recognized in the field. In 2008 she was honored with other members of the Safe Passage Project and received the State Bar President’s Award for Pro Bono Law School Project. 1999, the American Immigration Lawyers Association named Professor Benson the outstanding professor in immigration law based on her contributions to the professional and scholarly development of the field and her role as a mentor of students and young attorneys.
Professor Benson was partner in the international law firm Bryan Cave LLP, where her twelve years of practice focused on immigration. She is an active participant in immigrant rights projects coordinated by the National Lawyers Guild and the American Civil Liberties Union, and she serves on the board of the Center for Human Rights and Constitutional Law Foundation and is a trustee emeritus for the American Immigration Law Foundation. She is currently the Chair of the Immigration Committee of the Administrative Law Section of the American Bar Association and is the President-Elect of the Immigration Section of the American Association of Law Schools.
Question: What are the best ideas for making immigration in the US less complicated?
Lenni Benson: There are some ideas kicking around in think tanks and academic circles and in Congress. One idea that’s very attractive to people is the idea that we would outsource the immigrations decisions to a blue ribbon commission, that we would get a panel together of labor economic experts, maybe a few lawyers, civil right experts, and that those neutral, shall we call them platonic guardians of our idyllic utopian society, would make the decisions of who should be admitted and should not, and they could they move quickly because they would be exempt from some of the traditional constraints on agencies of rule-making through the Administrative Procedure Act, and adjudication in a formal sense.
Question: Could this plan work?
Lenni Benson: I think that’s attractive on the surface. It’s also an old idea. There’s been immigration commissions periodically; perhaps, I haven’t done the math, but it’s maybe every 50 years or so. It’s such a politically hot topic that Congress often makes the move of saying, "We're going to turn to the experts and let them tell us who should be the immigrants in society." So, we’ve had commissions, usually making recommendations for law reform to Congress, but this is an idea that we should let the private experts make the decisions for us. It’s sort of like saying we should use the market to make decisions on environmental policy. If we let businesses trade credits, we’ll have pollution credits, we'll have more efficient systems develop the market will work for us. So why not use this blue ribbon commission to let labor market policy drive our immigration law?
Well I have some concern about that, because number one, who’s selecting the experts? Number two, what input data is going to those experts? Sure, some sophisticated industries will find it easy to access that commission and make their case that in shortages. So agri business, which often lobbies Congress saying they're highly dependent on migrant labor, much of it undocumented, would like to have a system of guest workers—they’d like to have a system that facilitates bringing in migrant labor. The think-tank group, the commission, might agree, but would there be protections for the health, welfare, and safety of those workers? Is that think tank going to have the leverage to go to the Department of Labor and give them the extra resources they need to do wage and hour inspections and help the labor inspections through OSHA or the farm workers statues to make sure those workers aren’t exploited?
When you have a commission that’s not integrated into the rest of government, you could have success for industry lobbying for a particular worker or individual workers lobbying the commission to say, “I’m a gifted rap artist,” or “ I’m a record producer,” or “ I’m the latest website czar—let me come to America and create jobs," but that wouldn’t necessarily integrate with the rest of government or policy.
Question: What can the U.S. learn about immigration policy from other countries?
Lenni Benson: I think when Europe moved to a model, first with the Schengen Agreement and then with the European Union’s formalization of recognizing that individuals and their right to take their services and skills from nation state to nation state within the EU, really was such a remarkable action in Europe and for us to learn from. It isn’t without warts or bumps in a neighborhood. Someone in a French neighborhood hearing Polish music or seeing Polish newspapers on their newsstand may suddenly feel the stranger in their own land and feel some resentment toward the stranger coming into their neighborhood.
I don’t mean to pick on the French, we could have the Poles who might not like to have Germans coming from East Germany who are skilled dock workers coming into a Polish dock and competing with them with their higher education or training, if that was the case. So, of course, humans tend to identify—whether it’s your sports team or your church or the way you cut your hair—when you have nations like Europe that have centuries of cultural and political identity with language around it, one would think it would never work. The great experiment of people moving from nation state to nation state and moving their labor about would never work, but a lot of us scholars and economists think it’s been a tremendous success.
[It is] just like capital will move from market to market to find economic opportunity. Let’s invest in Ireland, in its explosion in technology, creating a lot of jobs for Irish—in part, Ireland could sustain that growth in the '90s of the high-tech boom because Americans found it fairly easy to get temporary visas to work there, and skilled Europeans could come from other states to Ireland to help sustain, nurture, manage, contribute to that evolution.
Now that we’ve gone back into a bit of recession, many people are leaving Ireland who came with the real estate booms or the high-tech boom and they're going back to nation states—just as capital does. Again, it’s not without cost displacement, families don’t like to move, households may be broken up, but it didn’t result in complete chaos.
The predictions back when Schengen Agreement was first was adopted the late '80s, early '90s, was that everyone from Portugal was going to move to Germany, that everyone would immediately vacate Spain in its poorer regions and move to the more economically successful parts of Italy. It didn’t happen. So the U.S. could learn from the European experience, and when I talk to students about it I often say, why don’t all the unemployed in Detroit move immediately to the Silicon Valley in California? “Why don’t all the unemployed in Flint, Michigan, suddenly move to Florida and look for housing and work experience there when there’s a boom economy there?” Yes, some people do move and that’s terrific, but there is always countervailing reasons why people want to stay in their home communities. Allowing people to move more freely creates a pattern of economic remittances.
So there are a lot of people are studying this—some central American nations, some African nations, are very dependent on money coming home from their foreign workers working abroad. It can be the best tool for economic development in the home country—the sending country—when people are more free to alienate their labor and move about.
Question: Do temporary visa and guest worker programs help or hurt the economy?
Lenni Benson: Temporary visa programs, guest worker programs, there’s always a concern. The famous quotes are, "We wanted guest workers and we ended up with immigrants." Then there’s concern from labor movements of exploitation of those guest workers, but if you put it all together in the stew pot and you say, "Why should workers have greater restriction on their mobility than capital stock markets, investment instruments, government lending programs? Why not recognize that people can move from nation to nation, make economic contributions both in this country and in their home country that actually creates more opportunity all around, and can actually slow down immigration?" There is a Sociologist, Douglas Massey, who teaches at Princeton, who has shown that by toughening up our border making it very difficult to enter from the southern border, we've actually disruptive decades old migration patterns between the US and Mexico.
So we're keeping more Mexicans in the United States as undocumented workers because the price of going home when a season is over or in a lull of a work period is too high because you're going to have to pay a smuggler, you're going to risk apprehension. You might have to risk a jail sentence if you illegally re-enter after an order of removal.
So we've actually created this pool of workers that are trapped, when for decades and decades, since really 1898, maybe 1848 with our first war with Mexico, people have migrated -- worked in the United States, sent money home, gone back for visits, left their families there. Now, because of the difficulty of crossing that border, men and women sent for their children, sent for their families and build their lives here and have to abandon or cut-off the ties in the home country because of the difficulty of crossing the border.
Recorded on: August 31, 2009