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Brian Leiter
University of Chicago Law School

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Tuesday, April 25, 2006

A Former Duke Law Prof on Why He Gave Up his Green Card

Michael Byers, an expert in international law, holder of a Canada Research Chair at the University of British Columbia, and previously a law professor at Duke, wrote the following interesting opinion piece in a Toronto newspaper:

”This is the first time I've met someone who wanted to do that.“ The U.S. immigration officer's southern drawl, so out of place in the Vancouver airport, was accentuated by incredulity.

A "green card," which is actually off-white in colour and called a Permanent Resident Card, provides full rights to enter, live and work in the world's most powerful country. It conveys most of the advantages of U.S. citizenship, so much so that it can be traded in for an American passport after just five years. Yet there I was, 4½ years after I had acquired it, asking for my green card to be taken away.

Acquiring U.S. permanent residency is an arduous process, involving blood tests, chest X-rays and numerous documents, including police certificates attesting to a crime-free past. Even with a prominent sponsor, Duke University, it had taken me three years....

I was on my way to a conference in San Diego when I surrendered my green card. The next morning, out for an early run, I saw scores of Mexican men tending lawns and flowerbeds. Later, a woman from Guatemala cleaned my hotel room. I remembered one of my grad students at Duke, now a law professor in Mexico City, explaining that most of these labourers have forged social-security cards that are convincing enough to protect their employers from the police, while providing no protections for the workers.

Six years ago, Globe and Mail columnist Jeffrey Simpson estimated that 660,000 Canadians were living and working illegally in the United States. Most Canadians blend in easily. But after Sept. 11, 2001, fear replaced curiosity as the standard response to things unknown. Before 9/11, my wife's English accent often generated a friendly response, including the comment "You sound just like Princess Diana." After the attacks, the warm chatter gave way to a strained silence.

At least my princess had a green card and was, therefore, on the legally advantageous side of the divide between "us" and "them." Thousands of men of Arab ethnicity were rounded up and either detained or deported without charge or access to lawyers. Significantly, none of them were citizens or permanent residents of the United States.

Of course, even U.S. citizenship does not provide the protections it once did. In 2002, the Bush administration jailed two Americans without charge or access to lawyers, in direct denial of habeas corpus, a common-law principle that dates back to Magna Carta. And then there is the secret, unconstitutional wiretapping program....

At the secondary screening, I was greeted by an immigration officer whose name tag and features suggested Vietnamese origins.

"Which form should I use?" he asked his supervisor. The supervisor, a stout man with a mid-western accent, gave a world-weary sigh. "Voluntaries get the short form."

It took 45 minutes to complete the short form. It was an entirely business-like procedure: No small talk, no smiles. At one point, I commented on the complexity of the process. He said, "Well, this is a big deal. It's like getting married."

No, I thought. It was more like getting divorced.

My wife and I had moved to North Carolina in 1999. The stock market was booming, most Americans felt prosperous and secure, and Bill Clinton -- despite Whitewater and Lewinsky -- was still capably in charge. It seemed obvious that one of two smart, experienced, open-minded internationalists, Al Gore or John McCain, would follow in January, 2001.

But then we were amused, perplexed and finally disgusted at the dirty tricks deployed in the 2000 election campaign, first to defeat Mr. McCain, and then to steal victory from Mr. Gore. And we felt nothing but horror as the Twin Towers collapsed, knowing not only that thousands of lives had been lost, but that Mr. Bush's neo-conservative advisers would seize their chance to plot a militaristic course.

My instinctive response was to put words to paper. Five days later, on Sept. 16, 2001, my article, "The hawks are hovering. Prepare for more bombs," appeared in London's Independent on Sunday. I continued to write, almost exclusively for British papers, chastising the Bush administration for its unnecessary violations of human rights and international law.

Needless to say, my opinions attracted considerable hostility, all the more so because I was expressing them from within a conservative law school at a conservative university in the very conservative South. I stood my ground, but it wasn't easy. And then it occurred to me: The United States wasn't my country; it wasn't a place for which I wanted to fight. My thoughts drifted northward, to the place where my values had been forged.

Within the parochial boundaries of American political discourse, it may surprise some to see Duke described as "conservative," though it is plainly apt with respect to the real issues at hand.

UPDATE:  Here's a gem of a comment from that bastion of "thoughtful" right-wing legal commentary, The Volokh Conspiracy, in response to this article:

[Quoting another commenter] "If you don't remember the post 9/11 roundup of Arabic men who were deported, you weren't paying attention."

It is too bad that the US government waited until after there were 3000 dead Americans before performing that salutary bit of social hygine.

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