Diversity, Mass Immigration, and National Security after 9/11-An Immigration Reform Movement Perspective
Hethmon, Michael M., Albany Law Review
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.
I. 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. …