By Margaret Hobbs
In some instances, corruption is ethically permissible. A society should address corruption with a combined “voice” and “control” solution by engaging citizenry to improve legal institutions and public policy (Everett, Neu & Rahaman, 2006). To examine the ethical permissibility of corruption, it is necessary to first address what corruption is.
Chinung-Ju Huang cites three types of corruption. First, there is “grand corruption” which involves “corruption among high level executives in government” (Huang, 2012). Next is “legislative corruption . . . among representatives of the general public” (2012). Finally, there is “bureaucratic corruption” involving “government officials and staff” (2012). The general definition of corruption per the “corruption perception index (CPI)” is “‘the misuse of public power for private benefit’” (Huang, 2012).
Everett, Neu, and Rahaman necessarily expand on the definitions cited by Huang. Everett et al. add the following types of corruption: “bureaucratic; political; petty; grand; productive; malignant; systematic; individual; private-to-private; private-to-public; official; and fiscal” (2006). The authors note that, “within these many definitions a wide range of acts is also often implied” which within one type of corruption (“private-to-public”) there may be a range from “‘bribery’ to, simply, ‘ingenuous acts’” (2006). The synthesized definition offered by Everett, et al. closely resembles that of Huang: “most commentators are clearly referring to acts involving specific actors, namely public figures, civic employees, bureaucrats, and politicians” (2006). Corruption is seen “as ‘the misuse of public office for private ends or private gain’” (2006).
Despite these generalized definitions, it is critical to note the distinctions among the types of, as well as the acts of corruption in order to analyze whether it is ethically permissible in any context. The analysis therefore is contingent on the circumstances of the corruption. By applying an analysis to specified circumstances it is useful to evaluate the causes of corruption, which “may be seen as either ‘demand-side’ or ‘supply-side’” (Everett, et al., 2006). The demand-side/supply-side causal evaluation is particularly relevant in considering whether corruption is ethically permissible in the United States immigration system.
United States immigration policy began as an inherently racist system. The Naturalization Act of 1790 provided “‘that any alien, being a free white person . . . may be admitted to become a citizen’” (Douglas, 2005). The Chinese Exclusion Act of 1882 “allowed the Executive branch to exclude Chinese nationals from entering the United States” (Sandoval, 2011). Citizenship was not extended to African Americans until 1870 (Douglas, 2005). The Immigration Act of 1924 was the product of a “push for racial limits on immigration” and established the national origins quota system (Clarke, 2011). During the Great Depression, one million Mexican nationals were repatriated in order “to ensure that only ‘true Americans’ held jobs in the United States” (Sandoval, 2011).
The Immigration and Nationality Act of 1952 preserved the national origins quota system and “deep-seated racial beliefs remained central to the legislation” (Clarke, 2011). In 1954, Congress passed “Operation Wetback” to import temporary Mexican agricultural workers in order to address labor shortages due to World War II” (Sandoval, 2011). In 1986, Congress passed the Immigration Reform and Control Act, which “focused primarily on enforcement in the context of labor and employment” (Clarke, 2011). Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. The laws were “designed to tighten the influx and regulate the presence of immigrants in the country” by expanding “‘the litany of crimes for which aliens c[ould] be summarily deported, eliminated waiver of deportation relief, and precluded judicial review of certain deportation orders’” (Clarke, 2011).
The historic racial underpinnings of United States immigration law continue to influence the law and the politics of immigration in the country today. While the Immigration Act of 1965 “abolished the national origins quota system and barred racial considerations from expressly entering into decisions about immigrant visas” it simultaneously created a new discriminatory scheme (Johnson, 1998). The quota system was replaced with an “annual numerical limit of 20,000 immigrants from each nation” (Johnson, 1998). The result has been that immigrants from Mexico, the Philippines, and India “face radically different waits for immigration” than similarly-situated persons of other nations (1998). Immigration laws also include public charge exclusions which have a disproportionate effect on noncitizens of color from developing nations (1998).
Johnson argues that “U.S. law and policy toward noncitizens who have fled civil war, political and other persecution, and genocide in their native lands historically have been influenced by nativism and racism” (1998). The support of this theory comes primarily from the method by which the U.S. government handled the influx of Haitians claiming asylum in the 1980s and repatriation efforts of the Bush administration in the 1990s.
It is within the United States asylum system that corruption is ethically permissible. To obtain protection, refugees and asylees “must meet the U.S. statutory definition of a refugee” (Settlage, 2009). That definition provides:
[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . (8 United States Code §1101(a)(42)(A)).
Refugee status is granted to persons outside the United States. The grant of status is contingent upon a determination made by the United Nations High Commissioner for Refugees (UNHCR) that must be approved by the U.S. Department of Homeland Security. Conversely, asylum seekers “must request protection while inside the United States or at its borders” (Settlage, 2009). Thus the U.S. government has discretion to “grant protection or to send the asylum seeker back to his or her country of origin” (2009). Citing a 2006 UNHCR report, Settlage explains, “U.S. immigration laws, . . . the asylum process, and even adjudicators themselves, have shown an ever-increasing bias against protection seekers, who are increasingly viewed as criminals or illegal immigrants” (2009).
Equally troubling is the fact that because applying for asylum requires that refugees be able to afford to reach the United States, only “a fraction have the means” to do so (Settlage, 2009). Furthermore, to reach the United States, an asylum seeker “must have a valid passport from his home country and, in most cases, must obtain a U.S. visa” (2009). Settlage cites a report issued by the Department of Homeland Security and the U.S. Department of State that notes:
Embassies may appear to disproportionately refuse applicants from less developed regions of the world, or from poor sectors of the population, but it can be much more difficult for applicants who are unemployed or marginally employed to show that they intend to return to their country after visiting the United States (2009).
Settlage explains that unsurprisingly, “some asylum seekers use fraudulent documents to travel” (2009). Asylum thus invokes something akin to the “individual, demand-side” corruption that is described by Everett, et al. (2006). The authors explain that “individual” corruption may be the product of “‘resource scarcity’: low or non-existent salaries and wages often motivate people to engage in what is termed ‘low-level’ or ‘petty’ corruption” (2006). In fact, the corruption that results in response to the U.S. asylum system is the product of something more than “resource scarcity.” This corruption is the product of desperation.
Mirroring the statutory definition of refugee, the U.S. Citizenship and Immigration Services website states: “Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion” (U.S. Citizenship & Immigration Services, 2011). The United States’ obligations to persons seeking refugee status or asylum arise primarily from the United Nations Refugee Convention (Settlage, 2009). Thus the end of asylum is to ensure human rights. The purpose is to preserve human rights by providing a safe haven for people in danger.
Given the purpose of the asylum system, corruption is ethically permissible under an Aristotelian view. Sandel refers to two ideas “central to Aristotle’s political philosophy” (2009). Justice is “teleological”– we must ascertain the “purpose, end, or essential nature” of the practice. (2009). And justice is “honorific;” teleological reasoning requires an analysis about the virtues that should be honored and awarded (2009).
Sandel explains that to Aristotle, justice is about “giving people what they deserve” and that “[j]ustice involves two factors: ‘things, and the persons to whom things are assigned’” (2009). The subsequent analysis is about what is being distributed to whom; it is “relevant excellence” that determines the merit-based distribution of the things (2009). Because Aristotle requires that the just distribution of the good be determined by the purpose of the practice, it follows that with asylum, human rights must be distributed to those who can best utilize those rights. That is, asylum ought to be granted to those most in need.
The current process for asylum does not grant status to refugees who have the greatest need; it grants status to those in need who have the means to arrive safely at the borders of the United States. Therefore, if the underlying purpose of asylum is to grant human rights to those with the greatest need, corruption is permissible in order to achieve that end. Ethically permissible corruption would then be in the form of Huang’s “bureaucratic corruption” as the “supply-side” coupled with an “individual, ‘low-level,’ ‘resource scarcity’ demand-side” corruption, a combination of elements described by Everett, et al. (2012 & 2006). This might be manifested in a scenario in which a United States immigration official accepts false documents to permit an endangered refugee to enter the United States in order to apply for asylum. If by doing so, the refugee is saved from persecution “on account of race, religion, nationality, and/or membership in a particular social group or political opinion,” then the refugee has obtained the “good”—human rights.
A proposal of this sort is difficult, particularly in a post- 9/11 United States. According to the 9/11 Commission, the nineteen hijackers responsible for the attacks did not enter the United States surreptitiously; most were able to obtain visas through forged documents (Garcia & Wassem, 2004). The hijackers came from varied socioeconomic backgrounds, however Bin Ladin, who was very wealthy, personally chose each hijacker and gave them money to obtain U.S. visas in Saudi Arabia (National Commission on Terrorist Attacks upon the United States, 2004). This is perhaps the most tragic result of an immigration policy that is most accessible to those with the greatest financial resources.
The protection of United States citizens is critically important. Sandel believes that the “best argument for limiting immigration is a communal one” (2009). However, he explains, “restrictive immigration policies also serve to protect privilege” (2009). The current asylum system does precisely this. Though Sandel’s analysis refers explicitly to the protection of privilege of citizens of the United States by restricting Mexican immigration, the concept is relevant with regard to the protection of a broader citizenry. The current asylum policy serves to protect privileged people of the world.
A society should address corruption with a combination of the “control” and “voice” solutions described by Everett, et al. (2006). The control solution is “aimed at improving legal, electoral, educational, and other institutional systems, through, as the name implies, the establishment and enhancement of control” (2006). “Voice” solutions “are based on the idea that what is needed to fight corruption is the active participation of civil society” because “[c]ivil society knows the causes and consequences of corruption better than do distant and élite experts…” (2006). The authors explain that establishing an effective control solution “is not easy, and requires concerted efforts from members of civil society and, often, members of the international community” (2006). Thus, an effective control solution essentially requires that it be combined with a voice solution.
The appropriate response to the corruption that results from the restrictive United States asylum system is institutional reform. There is a need for broad reform of United States immigration policy, too. Institutional reform ought to be accompanied by a “deontic ethical perspective” contained within a “voice solution” which respects “a wide array of perspectives, desires, and forms of practical knowledge” (Everett, et al., 2006). A voice solution addresses “the needs of each and every citizen and ensures that none becomes a mere means to any prescribed end” (2006).
Immigration reform in the United States must shift from being a strictly domestic policy to being a type of hybrid domestic/international policy. Reform then must truly contemplate the “wide array of perspectives” of a “voice” solution (Everett, et al., 2006). The perspectives considered should not be limited to those of current United States citizens. Immigration policy should be based on the needs of the citizens of the world.
Handling corruption through institutional reform of the United States immigration system should incorporate a (global) voice solution because it is the ethical thing to do. Sandel argues that, “the accident of birth is no basis for entitlement . . .” (2009). This notion should be embraced when recommending solutions for immigration policy. It is also necessary that leaders thinking about how to solve corruption “acknowledge that they may well be an endogenous variable or determinant factor in the corruption equation” (Everett, et al., 2006). That is, leaders must acknowledge that the existing institution in fact perpetuates corruption in the asylum process and other processes of the United States immigration system. Everett, et al. describe virtue ethics as arguing: “morality is first and foremost an integral and embodied part of the person, and that what is generally needed to make the world a better place is not simply more ethical rules, but more inherently moral people” (2006). The authors note that, “virtue ethics uses such concepts as ‘self-mastery’ and ‘self-overcoming’ to draw attention to the embodied and character-based nature of morality” (2006). It is critical that leaders incorporate the voices of the global citizenry by looking to virtue ethics to reform immigration and thereby reduce corruption.
* Margaret Hobbs is a graduate of Hendrix College with a degree in political science, Hobbs is participating in the concurrent JD/MPS program with the UALR Bowen School of Law and the Clinton School of Public Service. Before entering law school, she worked in the office of U.S. Congressman Vic Snyder and served as an interpreter for a local free medical clinic. At the Clinton School, Hobbs worked with the Arkansas Legal Services Partnership to complete a comprehensive study that assessed the civil legal needs of low-income Arkansans and worked in Puerto Rico to study the the Constitutional rights of Puerto Ricans in the context of the jury trial.
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