Published online by Cambridge University Press: 07 March 2018
In today's age of restrictionism, a growing number of countries are closing their gates of admission to most categories of would-be immigrants with one important exception. Governments increasingly seek to lure and attract “high value” migrants, especially those with access to large sums of capital. These individuals are offered golden visa programs that lead to fast-tracked naturalization in exchange for a hefty investment, in some cases without inhabiting or even setting foot in the passport-issuing country to which they now officially belong. In the U.S. context, the contrast between the “Dreamers” and “Parachuters” helps to draw out this distinction between civic ties and credit lines as competing bases for membership acquisition. Drawing attention to these seldom-discussed citizenship-for-sale practices, this essay highlights their global surge and critically evaluates the legal, normative, and distributional quandaries they raise. I further argue that purchased membership goods cannot replicate or substitute the meaningful links to a political community that make citizenship valuable and worth upholding in the first place.
1 These measures include the introduction of Executive Order No. 13767 of January 25, 2017, “Border Security and Immigration Enforcement Improvements,” Federal Register 82, no. 18, p. 8793; and Executive Order No. 13768 of January 25, 2017, “Enhancing Public Safety in the Interior of the United States,” Federal Register 82, no. 18, p. 8799. Memorandum from John Kelly, Secretary of Homeland Security, to Kevin McAleenan, Acting Commissioner, U.S. Customs and Border Protection et al., “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” (February 20, 2017). The decision to rescind DACA was announced on September 5, 2017. In early 2018, DACA recipients were awarded an injunction from a federal court that temporarily halts the rescinding of the program. As of mid-January, there were negotiations underway in Congress to reach an agreement on the future of the DACA program.
2 On the competing visions of a nation of immigrants and that of a nation of laws, see Ayelet Shachar, “Earned Citizenship: Property Lessons for Immigration Reform,” Yale Journal of Law & the Humanities 23, no. 1 (2011), pp. 110–58.
3 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, EB-5 Immigrant Investor Program, www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa-classification.
4 The bona fide formulation is drawn from the recent U.S. Supreme Court decision in the travel ban case. See Trump v. International Refugee Assistance Project (IRAP), 582 U. S. ____ (2017).
5 These multiple facets of citizenship are captured well by Joppke, Christian, “Transformation of Citizenship: Status, Rights, Identity,” Citizenship Studies 11, no. 1 (2007), pp. 37–48 CrossRefGoogle Scholar.
7 States are not alone in charting this new terrain. Intermediaries, both local and transnational, such as specialized law firms, wealth mangers, and other for-profit third parties have also exerted influence in shaping and transplanting such programs from one country, or region, to another.
8 For a comparative overview of these civic-integration requirements, see Goodman, Sara Wallace, Immigration and Membership Politics in Western Europe (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar.
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11 Spain and Portugal are prime examples.
12 Malta's initial legislation, adopted in 2013, in essence brought to the continent the Caribbean cash-for-passport model. Cyprus soon followed suit with its citizenship by investment program. In exchange for €2 million, Cypriot (and by extension European) citizenship can be acquired at an unprecedented speed—within three months—through naturalization by exception. See “Cyprus: Citizenship by Investment Program,” www.investcyprus.eu/.
13 The “real and effective” standard is applied in many jurisdictions, affirming a notion of citizenship as social membership; it is most famously drawn from the Nottebohm Case. See Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgment of April 6, 1955: I.C.J. Reports 1955, p. 22. This decision focused on the claims for diplomatic protection and recognition of citizenship by other members of the international community.
14 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, EB-5 Immigrant Investor Program, www.uscis.gov/eb-5.
15 Department of Homeland Security, Office of Inspector General, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” Washington, D.C., December 12, 2013 (OIG-14-19), p. 5, www.oig.dhs.gov/assets/Mgmt/2014/OIG_14-19_Dec13.pdf.
16 Government of Canada, Department of Finance, “The Road to Balance: Creating Jobs and Opportunities,” February 11, 2014 (F1-23/3-2014E), p. 81.
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19 Migration Advisory Committee, “The Economic Impact of the Tier 1 (Investor) Route,” (London: Migration Advisory Committee, 2013), p. 1.
21 U.S. Government Accountability Office, “Immigrant Investor Program: Progress Made to Detect and Prevent Fraud, but Additional Actions Could Further Agency Efforts,” Washington, D.C. (GAO-16-828), September 2016, p. 6. See also Eric Lipton and Jesse Drucker, “Kushner Family Stands to Gain from Visa Rules in Trump's First Major Law,” New York Times, May 9, 2017, p. A1 (quoting Gary Friedland, a professor at NYU, who explains that traditional lenders for real estate projects can charge interest at 12 to 18 percent, whereas EB-5 loans carry a much lower interest, circa 4 percent, or roughly a third or a quarter of standard borrowing costs).
22 Editorial Board, “The Kushners and Their Golden Visas,” New York Times, May 9, 2017, p. A22.
23 This section draws on arguments developed in greater detail in Shachar, Ayelet, “Citizenship for Sale?” in Shachar, Ayelet et al. , eds., The Oxford Handbook of Citizenship (New York: Oxford University Press, 2017), pp. 789–816 CrossRefGoogle Scholar.
24 On such transformations, see Shachar, Ayelet, The Shifting Border: Legal Cartographies of Migration and Mobility (Critical Powers Series, Manchester University Press, forthcoming 2018)Google Scholar.
25 I thank Sarah Fine for helpful conversations sharpening this point.
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27 Gary S. Becker, “An Open Door for Immigrants—The Auction,” Wall Street Journal, October 14,1992, p. A1.
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30 This could also lead to tiered citizenship for present citizens. Marketization processes remind us of the long durée of history whereby the vast majority of the population was denied access to equal membership through mechanisms such as property ownership (over slaves, land, or household members) and the like.
31 Smith, Rogers, “Citizenship: Political,” in Smelser, Neil J. and Baltes, Paul B., eds., International Encyclopedia of the Social & Behavioral Studies (Oxford: Elsevier, 2001)Google Scholar, p. 1857.
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