Migration Policy: Devolution or Centralization?

            The setting of migration policy is, and has been in modern times, a function of national governments.  The control of movement of people into (and less frequently out of) national territory has been seen as a prerogative of the sovereign.  Even in federalized states such as the United States or Argentina, migration policy rests with the national government.  This is a product of internal power dynamics between the federal and state governments as much as a by-product of the Westphalian system of independent sovereign states.  However, there has been a growing global discussion questioning this status quo.  Consider the recent upsurge in state-level immigration laws enacted in the United States.  According to the Immigration Policy Center, in 2006, 570 state-level immigration bills were introduced; 84 laws were enacted and 12 resolutions were adopted.  However, in the first quarter of 2010, 1,180 immigration bills were introduced; 107 laws were enacted, and 87 resolutions were adopted.  At the local level in the United States, the emergence of the “sanctuary-city” reflects another attempt to devolve immigration policy away from the national epicenter.  Both Canada and Australia have regional (that is, sub-national) immigration programs.  For example, in Canada all of the country’s provinces may nominate a certain number of people for visas each year.  This trend reflects the fact that local and regional governments are the most affected by the costs and benefits of immigration.  The current national-level policies often fail to reflect these specific needs or are too slow in responding.

At the same time, regional (supra-national) integration continues to trundle along, glacially assembling blocs of countries along geographic or ideological criteria.  The most famous scheme is the European Union, but there are a plethora of such integration plans with varying goals and levels of institutionalization.  Regional integration can take the form of free trade areas such as NAFTA or customs unions like MERCOSUR or regional trade blocs such as ASEAN or the African Union.  Through a process denominated “spillover” by Philippe Schmitter, integration schemes tend naturally to grow beyond their initial purpose to encompass more policy areas.  The European Union began in the 1950’s as a coal and iron agreement between France and Germany.  More recently the customs union between Brazil, Argentina, Uruguay, Paraguay and Venezuela (MERCOSUR) has expanded into migration policy and lead to the establishment of a special visa for member citizens.  Given this hypothesis of integration spillover, migration policy will increasingly grace the agendas of such integration bodies.  For example, the European Commission is currently considering the creation of a Commissioner for Migration.  

As local and sub-national actors create immigration policies to respond to their real world needs and supra-national integration actors are forced to respond to the transnational impacts of human migration, the Westfalian nation-state is stuck in the middle.  What is the appropriate balance?  Where can effective and coordinated immigration policies be incubated?  Unfortunately, the answer must be a mix of all three levels: the micro, mezzo, and macro.  This will require a level of information sharing and communication never before seen in human governance.  It is a challenge that confronts many policy areas, not just migration.  The increasing global connectivity of people, as well as the growing agency of the individual, makes sensible local, national, and supra-national policymaking essential.   There is some hope that information technology can offer solutions to this gargantuan problem, but these tools are by no means a panacea.  Further complicating the task are political tug-of-wars between policymakers at each level, all trying to maximize their political clout and relevance.  While local and supra-national actors step into the breach of policy making around immigration, the nation-state will not lightly divest itself of such a powerful and symbolic policy area.  The benefits of coordinated and inclusive migration policies are not hard to imagine, however neither are the costs of establishing such a system.  

Like most political endeavors, change is unlikely until the costs of inaction so clearly outweigh the costs of action that policy makers are essentially forced to move.  The current trend seems to indicate that we as a species are headed in such a direction.  Global population continues to increase and migration-related policy issues such as public health and environmental protection are increasingly gaining political salience.  Global inequality and armed conflicts add pressure to the mix.  The need for cogent, multi-level migration policies will grow ever more apparent, even as reactionary and xenophobic responses also grow.  Fortunately, sensible migration policy can only be achieved thought true and representative democracy, thus the struggle for such migration policies is also the struggle for renewed democracy across the globe. 

A Fundamental Misunderstanding

President Barak Obama recently gave an interview in which he purported to speak to parents in Central America.  He warned parents not to send their children on the long and dangerous journey across Mexico to the United States.  He said, “do not send your children to the borders.  If they do make it, they'll get sent back. More importantly, they may not make it.”  His comments were spurred by a rapid increase in the number of unaccompanied minors arriving without visas at the Mexico-US border.  Because children are involved this trend has attracted massive media attention and injected even more emotion into the turbulent, cynical, and exasperating topic of immigration to the United States.

            The most disheartening aspect of the President’s comments is that they completely dehumanize the people living in Central America.  By chiding the families of minors arriving without governmental permission the President makes it appear as if they are bad parents.  Who would send their young child alone across hostile terrain rife with rapists, gangs and coyotes?  Even worse, while the President imputes bad parenting to these families, political figures on the other side frame these people as devious manipulators, risking their children to steal a slice of the American pie.  Despite the vast breadth of human experience, both of these characterizations must be overwhelmingly wrong.  The sad fact is that what is occurring is natural, understandable and predictable. 

            The situation in Central America is desperate.  How desperate? Desperate enough to make sending your child alone to the United States a reasonable option.  The utter lack of empathy with this reality demonstrated by political figures in the US, including the President, is disgraceful.  The well-deserved popular image of the region is of poverty, insecurity, and political instability.  The wider world has become accustomed to accepting the suffering and desperation implicit in these sanitized terms.  Specifically, we have accepted that they have accepted their suffering and desperation.  What this current “crisis” lays bare is the fact that we are not prepared for those we have resigned to their fate to do something about it.  As Harper Lee wrote in To Kill a Mockingbird, “you never really know a man until you understand things from his point of view, until you climb into his skin and walk around in it.”  Before any more politicians admonish parents in Central America, they are cordially invited to spend a week living in the neighborhoods of Tegucigalpa or San Salvador where these children grew up. 

            Political hyperbole is nothing unusual and does not merit much discussion, but Mr. Obama’s declaration that “they will be sent back” underscores a real and serious problem; the near total lack of adequate tools for coping with human migration in the 21^st century.   Worse, the government’s plan to use “voluntary departure” to legally bind minors, cut off many legitimate asylum claims and repatriate these children as quickly as possible, undermines the inadequate rules already in place.  Ignoring these issues for now, a wider lens serves to give perspective on the crumbling global migration regime. 

            At the heart of the problem are antiquated and disjointed asylum laws and treaties.  The most fundamental flaw is the category of asylum itself.  The distinction between “refugees,” who theoretically enjoy the protections of asylum, and “economic migrants,” who do not, is unrealistic and intellectually dishonest.  Most people with economic opportunities, adequate resources and hopeful futures do not engage in war or persecution.  Compartmentalizing and separating the cause (poverty) and effect (refugees) of human experience is neither prudent nor useful.  Splitting “economic” and “humanitarian” reasons for permitting migration causes perverse results.  Economic migrants can be turned back with a clear conscience because society is meeting its moral obligations by leaving open asylum as an avenue for truly deserving migrants.  At the same time, access to asylum is continuously narrowed because of fears that economic migrants are infiltrating and abusing the system.  Ultimately, this line of reasoning arrives at a moral and rational paradox.  The children arriving at the Mexico-US border are living and breathing this paradox.  A young person fleeing violence and poverty is a “deserving” migrant within the logic of asylum.  But despite their age, these people are also seeking to improve their economic well-being and thus the government is left with no good options.

            The second major problem highlighted by the current media attention is the use of resources.  President Obama asked Congress to allocate $3.7 billion to help deal with the costs of detaining, processing and deporting migrant youth.  Nearly a third of that money would go to Immigration and Customs Enforcement (ICE) to facilitate detection and detention.   Consider the $100 million spent by the US government to produce an ad campaign to try to dissuade parents from sending their children.  The imagery is useful.  An example of the ad campaign shows lonely footsteps across the sands of a deadly desert.  But this should be juxtaposed to a shot of a tattooed Mara who knows where you and your family live, work, and go to school.  The banner can read, “if you piss him off, there’s only a 2% chance of your murder being solved.” 

With those odds the desert doesn’t seem like such a bad choice.  In tragic parallel to the extremely relevant Drug War, any reeducation funds would be much better spent at home than abroad.  Perhaps $100 million could put a dent in damaging xenophobic fear and misinformation used by politicians and reverberated in the media.  Simply put, resources diverted to fences, guards, drones and hapless ad campaigns compound the problem by not only failing to address the underlying issue, but costing taxpayers and incurring more negative sentiment.  Unfortunately, the misallocation of resources is a response to the failed international instruments supposedly governing international human migration.

            The cycle persists because until proper international treaties are agreed to and implemented, societies must bear the costs of the negative externalities.  In concrete terms, the United States and its taxpayers must pay for the asylum of possibly hundreds of thousands of people.  Obviously, the government will do everything in its power to avoid such expense and so the cost is thrust back.  Unfortunately, there is no capable sovereign on the other side and so the cost is laid on the migrants, the children, and their families.  None of these scenarios are sustainable.  It is as unreasonable to expect the US taxpayer to foot an enormous asylum processing cost as it is to expect a poor person in Honduras to live under the dominion of armed youth in street gangs.  On the ground the US has gained a pyrrhic victory by avoiding the cost of granting mass asylum, but is still spending massive sums to detain, process, and return migrants.  In economic terms, the current situation is unsustainable.

            Global warming is an apt analogy.  Governments across the globe are required to pay for the increasing costs associated with the negative externalities of climate change.  Floods, fires, and droughts are drawing more government attention and resources.  However, because sandbags and firefighters only treat the effects of global warming, the government spending has no long-term beneficial impact, other than direct employment (not to be discounted in the immigration context).  The costs associated with the failing global migration regime are not only monetary. 

Perhaps political costs are the most relevant when trying to understand President Obama’s recent remarks on parenting.  It is unclear whether politicians gin up xenophobia and racism for their political purposes and thus perpetuate them, or if politicians are merely responding to inherent in-group/out-group thinking that has followed humanity out of the jungle.  Most likely it is a mix of the two.  Regardless, politicians, who purport to lead societies, are the principle obstacles to meaningful improvements in the international migration regime.  Of course politicians make ready scapegoats, but the lack of courage that allows racist and xenophobic policies to persist in the form of restrictionist immigration policies and Golden-Dawn-esque rallies calls into question the political system itself.  The purpose of government should be to promote the expanding and inclusive well-fare of all, not to drive a zero-sum game invented only to perpetuate the political class in its position of authority.   

            There is no easy solution.  As we watch children being detained and sent home for being too poor to afford a visa, or people in leaky boats being pushed back in open waters, it is not hard to lose faith.   Our sciences are not sufficiently integrated to understand the marco-to-micro systems at work, but something can be said for having a start here.

Sanctuary Cities in the Era of S-Comm: update from the United States

As 2014 rolls along, the political and media attention on immigration reform in the United States has waned.  With midterm elections in November, it seems increasingly unlikely that Congress will be in the mood for tackling a divisive and emotionally charged policy topic.  In the meantime, the hodgepodge of often conflicting immigration laws and policies continue to govern.  In the United States, immigration law has long been declared the sole province of the federal government.  That is, government bodies further down in the federal hierarchy, such as states, counties and cities, have no authority to legislate with regard to immigration.  This “bright line” rule is actually much less monolithic that it initially appears.  Immigration and immigration policy have proven to be much more than mere visas, border fences and foreign relations.  A large part of immigration is inexorably connected with the local lives of immigrants and their interactions with their communities and the cities and counties and states where they live.  Because of this reality, state, county and city governments are often explicitly involved in legislation that impacts the lives of immigrants and ultimately shapes immigration policy in the United States.

                So-called “sanctuary cities” are prime examples of this reality.  Sanctuary cities are localities that have chosen not to participate in federal programs aimed at removing immigrants who lack proper paperwork.  These policies are diverse and can range from official, written ordinances to unwritten policies communicated to law enforcement or other local officials.  There are well over a hundred cities with formal sanctuary policies, including: Washington DC, Salt Lake City, Dallas, Houston, New York City, Chicago, Phoenix, Los Angeles and New Orleans among many others.  For a complete list, this restrictionist website continues to be updated.  Here is an example of a San Francisco’s sanctuary law.  One of the main points of contention is policies regarding what to do with detained immigrants who lack documentation.

                Secure Communities (S-Comm) is a policy, launched by President George W. Bush and ramped up by President Obama, aimed at increasing removals of undocumented immigrants with criminal records.  The political discourse promotes S-Comm as a security policy that fosters coordination between local police and federal immigration officers in order to remove dangerous criminals (who happen to be immigrants) from the United States.  However, a recent report from TRAC at Syracuse University found that only 12% of removals in FY2013 associated with S-Comm were of individuals with serious “level 1” criminal convictions, such as homicide or robbery.  In 2013, for example, there were a total of 368,664 removals according to the report.  Homicide (1,172) and robbery (3,341) convictions together accounted for 1.2% of the total.  Traffic offenses, on the other hand, resulted in the removal of 47,249 individuals, or nearly 13% of total removals in 2013.  The statistical data belie the political discourse and reveal S-Comm as a much broader dragnet aimed at meeting removal and detention goals. 

                The typical procedure begins with an undocumented individual being detained by local police for some reason.  S-Comm then commands that police check the individual against immigration databases to determine the legal status of the person.  Should the search return a positive hit (ie. the detained person does not have legal status or is otherwise sought by federal immigration authorities), then local police are obligated to further detain the individual until federal immigration authorities can take custody.  Perhaps a hypothetical can flesh out the process more clearly.  

            Police are called to Kate’s house responding to a call from neighbors worried about domestic violence.  When police arrive, Kate, who does not speak English and cannot communicate with officers, is at home with her husband.  Her husband tells police that she attacked him.  Police take Kate back to the police station to defuse the situation and get her side of the story from other officers who speak her language.  According to S-Comm procedures, officers run Kate through the federal immigration database and it is revealed that Kate does not have immigration status in the United States.  Now instead of releasing Kate on her own recognizance, S-Comm dictates that she be held at the police station until federal immigration agents can take her into custody and begin removal proceedings.  Given many mandatory detention requirements (another article entirely) it is possible that Kate will remain in detention until her removal, often several months later.  What was likely a minor criminal offense or perhaps only a misunderstanding has now spiraled into a life-altering removal process against a woman with no criminal background.

                Sanctuary cities and S-Comm conflict head on in situations like the hypothetical above.  Often sanctuary city laws will refuse city funds or openly direct employees (including police) not to cooperate with federal immigration officials.  Thus, instead of checking Kate in the database, police would conduct their investigation and release Kate like any other suspect in a similar case.  Alternatively, the city may refuse to hold Kate beyond the time needed for police to resolve their investigation or as otherwise called for by law.

 

In 2013, S-Comm became nationwide and mandatory.  Previously, local governments could opt-in to the program or refuse to cooperate.  Making the policy mandatory raises serious questions as to the constitutionality of the program.  A recent law review note outlines how S-Comm violates the principles of federalism and anti-commandeering set down by the Constitution and case law.  Without delving into the legalese, it is enough to understand that the Supreme  Court of the United States has forbidden the federal government from forcing state governments (and their employees) to carry out federal mandates.  According to the court, federalism and the 10^th Amendment proscribe federal commandeering of local authorities.  As currently structured, S-Comm does just that when it makes participation mandatory.  The SAFE Act currently before Congress (though highly unlikely to pass), would remedy this federalism problem, by conditioning federal anti-terrorism money destined to non-complying localities on participation in S-Comm.  This type of federal funding manipulation is expressly permitted by Supreme Court precedent.

In the meantime the flood of S-Comm removal continues, driving sanctuary cities to retrench.  Lawyers and law students may worry about the constitutional implications of S-Comm, but police and local law enforcement are concerned with public safety.  Some policy makers and police chiefs worry that S-Comm is having a “chilling effect” on relations between police and the communities where they work.  If residents fear that they or their family members may meet a fate like our hypothetical Kate above, the argument goes that they will be less likely to call police in the first place.  Where communities do not trust police, it becomes difficult for police to secure public safety effectively.  Some states have taken action.  In October 2013, California passed the Trust Act which directs local authorities not to cooperate with S-Comm.  Other states and localities, such as Massachusetts, Illinois, new York and Washington DC have enacted similar laws.  The conflict between S-Comm and sanctuary cities is far from over and is likely to continue until there is a concerted effort at comprehensive immigration reform.

Swiss Exceptionalism or the Beginning of an End?

Last month Swiss voters narrowly approved a proposal to limit the free movement of workers and their families to the country.  Switzerland is not a member of the European Union, but it is a party to the Schengen agreement and is closely bound to the EU (which completely surrounds the landlocked alpine nation) through over 100 bilateral treaties.  Switzerland joined the Schengen Area in 2005 as a result of similar popular referendum.  That referendum, held on June 5, 2005, had a markedly liberal outcome.  On the ballot that day were two provisions, both of which won popular support: 1) Swiss adhesion to the Schengen free-movement agreement and, 2) the introduction of registered same-sex partnerships.  Voter turnout for the election was 2,745,267 or 56% of registered voters.  The Schengen agreement was passed by a majority of 54.6% (while the registration provision passed by 58.0%).  However, an important ethnic split was apparent in the 2005 vote, with German speaking Swiss generally opposing and French speaking Swiss generally in favor.  This linguistic division was replicated in the recent vote.  French speakers in the west largely opposed the measure, while Italian speakers in the east supported the provision, with German speakers split.

                The February 2014 referendum was a decidedly conservative ballot, with issues that were clearly geared toward motivating conservative voters.  Turnout for the vote was nearly identical with the 2005 vote at 55.8%, which is considered high for referendum voting in Switzerland (which is usually around 40%).  The immigration provision, which institutes quotas for immigration, appeared on the ballot along with an anti-abortion measure that would have dropped abortion procedures from public health insurance.  The abortion measure was soundly defeated (with 69.8% opposed) while the immigration measure passed by the barest majority (with 50.3% in favor). 

                In many respects the Swiss vote tracks rising anti-immigrant and anti-Schengen sentiment in Europe.  The anti-immigrant proposal was driven by the efforts and funding of the Swiss People’s Party (SVP), a rightwing party campaigning on a conservative nationalist platform.  The SVP is the largest party in the Swiss lower house and is Eurosceptic, anti-Islam and isolationist.  Far-right parties have been gaining political traction in France, Germany, Norway, Netherlands and Britain using anti-immigrant platforms.  However, in other respects the Swiss immigrant profile is unique.  Since Switzerland signed on the free-movement agreement around 64,000 EU community members migrated annually with 69% of them highly skilled.  Nearly a quarter of the Swiss population is foreign-born, which is four times the average of other EU member states.

                The Swiss vote is particularly disconcerting given British Prime Minister David Cameron’s announcement that his government is dedicated to cutting immigration and negotiating limits on EU immigration to the UK.  Nigel Farage, leader of the far-right UK Independence Party remarked on the vote, applauding the Swiss “freedom to decide the number and skill level of who they wish to invite to work or stay in their country”.  While the UK is not party to the Schengen agreement and is a limited member of the EU, restrictionist migration politics have been gaining strength in the country.  Both the UK and Switzerland represent fringe EU countries in that neither are a full member to the integration scheme.  However, the recent focus on immigration, continually and opportunistically cast as a threat to domestic employment, hints at a much larger threat to regional integration, not only in Europe but around the globe.

                Regional integration is the modern incarnation of globalization and a tool for facilitating the interactions driving the global economy.  Integration seeks to ease the flow of the four factors of globalization: goods, services, finance and people.  Regional integration schemes have been largely successful with respect to the first three.  With respect to the freer movement of people, only the EU has taken steps to ensure the mobility of people as workers.  The recent news in Switzerland is a blow to this sole model of full integration.  At the heart of the issue is the “in group”-“out group” dynamics that have dominated human societies since the rise of civilization.  Modern humans are apt to easily accept foreign goods, services and finance in their lives, but introducing foreign people provokes a deep rooted fear that can be described as xenophobia, racism, ethnocentrism, nationalism, jingoism or anti-immigrant sentiment.    What this vote in Switzerland means for the European project is far from clear, even a month later.  This larger impact on regional integration schemes around the globe is even less identifiable.  

Global Pressure Points in Migration for 2014

2014 looks to be a difficult year in immigration around the world.  There seems to be little forward movement on any of the major challenging issues and significant back sliding in other areas.  The following is brief roundup of some of the hurdles facing different areas of the globe with respect to human migration.

Middle East - Syria

The most challenging and heartrending humanitarian crisis continues to grind on in Syria.  The conflict appears set to extend well beyond 2014.  While diplomats are currently convened in an idyllic Swiss town, the killing continues and neither side seems to be winning or exhausted.  Peace under these conditions has little chance.  Meanwhile, over 6.5 million people are internally displaced, constituting almost 30% of the total population.  The international aspect of this refugee crisis has been deeply impacting neighboring countries and is now demanding the attention of countries further afield.  The UNHCR has register nearly 2.4 million Syrian refugees, with nearly 900,000 currently in neighboring Lebanon, a country with a total population of around 5 million.  (This would be the proportional equivalent of 100 million refugees arriving in the US).  The Prime Minister of Lebanon, Najib Mikat, recently wrote an open letter insisting that financial aid, while vital, is not enough, and calling for the international community to secure safe zones within Syria itself.  The international community, viz the US and NATO, have little appetite for this type of massive military intervention and without the support of China and Russia nothing like the intervention seen in Yugoslavia seems remotely feasible. 

Europe and the US are also failing to help those refugees who manage to escape the region.  According to the Washington Post, the United States has granted asylum to only 90 Syrians and of the 60,000 refugees admitted to the US in 2012 only 31 were Syrian.  There has been little political pressure for the US to do more, especially given the weak posture of the US with regard to intervention.  Additionally, refugees from Syria often do not fit into ridged and exclusionary categories for legal asylum in the US and underlying fears that such people may be a security threat. 

The EU has pledged to accept a mere 12,000 or so refugees, garnering the contempt of Amnesty International.  Germany has pledged to accept 10,000, however France has pledged only 500, Spain just 30 and Italy and the UK have pledged to accept none.  Since 2012, some 50,000 Syrian refugees have made their way to Europe with Sweden accepting approximately 14,000 at last count.  Through a chance of geography many Syrians enter the EU via Greece which has such a dismal record of refugee treatment that the Dublin II protocol has an exception for Greece.  Normally refugees must seek asylum in the first country they arrive at in the EU and will be returned there if apprehended in another country. But Greece’s grave violation of human rights protections have lead countries such as Sweden and Germany to abridge the rule, thus allowing some Syrian refugees to seek asylum in their respective countries, despite having arrived via Greece.   The Secretary General of Amnesty International, Salil Shetty, recently said, “the platitudes of Europe’s leaders ring hollow in the face of the evidence. The EU must open its borders, provide safe passage, and halt these deplorable human rights violations.” Thus the Syrian refugee crisis is set to expand and worsen.

Europe

In Europe, the great experiment of free movement embodied in the Schengen agreement stumbles forward with the lifting of work restrictions on citizens of Bulgarians and Romanians on January 1, 2014.  Both countries became parties to the agreement in 2007, but Western European members exercised their right to extend work restrictions for seven years.  Those seven years are now up.  In the meantime, travel restrictions remain in place and Bulgarians and Romanians will still require travel documents to move around the Schengen zone.  Romania announced its intentions to fully partake in the free-movement scheme by the end of the year, while Bulgaria has resigned itself to enjoying free-movement in 2018.

Notwithstanding Europe’s hard line with respect to refugees, there are signs of loosening at least with respect to tourist travel.  In April, the European Council will vote to approve visa-free travel for Peruvians.  A similar agreement looks likely for citizens of Colombia.  It appears that fears of visa overstays have been outweighed by the economic imperative to attract tourist dollars. 

United States

The scene in the United States offers little more cause for hope.  Much needed comprehensive immigration reform has most likely stalled in 2014.  Pundits and Washington insiders consider the topic too divisive and dangerous for Congress to touch in an election year.  Despite this pessimism, President Obama has predicted immigration reform for this year.   This sentiment has been echoed by Speaker John Boehner who will present principles for comprehensive reform to his caucus later this week.  It seems unlikely that the House and the Senate will agree given the acrimonious nature of the debate and the fragmentation of the Republican Party. 

In the meantime, the immigration system in the US is facing a potential collapse as nearly half of immigration judges will become eligible for retirement in 2014.  The immigration court system, a fiefdom cloistered away from the main judicial system, faces a backlog of over 350,000 cases.  Immigration courts received very little of the additional funding funneled at the immigration administration and immigration judges are notoriously overworked and understaffed.  Luckily because the immigration courts are part of the executive branch, the nomination of replacement judges would not depend on gridlocked Congress.