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.

A Bit of SciFi

In answering a hypothetical posed to me, I found myself defending the Miranda decision (“you have the right to remain silent...”) against Congressional overhaul.  I argued that Miranda should be kept as a field tested, though imperfect, solution to the problem of police coercion, instead of a technocratic solution hashed out in the halls of government.  Based on several anecdotes I am familiar with[1] I asserted that technocrats inevitably fail to accommodate for the complexity of the systems they are struggling to manage.  This is true across the board, from economic regulation to environmental systems to human migration.  The fundamental flaw with top-down solutions is the lack of information and the inability to manage it.  Imperfect information has been the bane of economists since the dismal science was begun.  Humanity´s information about the natural world is painfully inadequate (the closer we come to hard and fast rules the more complexity we uncover – think string theory and genomes).  The chalice of all social scientists, of whom technocrats are a particular and comparatively well-paid subspecies, is the ability to collect and systematize oceans of data.  Sample size, everything.  The following blog post is a diversion into science fiction, but a compelling notion that merits brief mention. 

The nexus of the original declaration grew out of an unrelated conversation about Michel Foucault’s conception of biopower and biopolitics and new ways of configuring sovereignty away from territoriality.  One of the central ideas was shifting the idea and focus of state control entirely onto the individual.  This idea would mean a world without borders, but it would also likely mean extreme intrusion into the physical bodies of the subjects.  In some respects this corpus-centric state already exists.  Consider the US tax regime, which is one of the few[2] tax systems that follows it citizens wherever they roam.  While most countries only demand taxes from people physically within the territory of the state, the US attaches its tax reporting obligations to the body and family of its citizens.  For many, this type of body-attaching state is repelling and even insidious and the specter of George Orwell’s 1984 super-state looms in the shadows.  Ignoring for the moment these overwhelming concerns, I posit the following supposition:

Imagine the implications on the social sciences of knowing where every person on the planet was and being able to track and manage the information.[3]

                This is clearly science fiction, but it is not too wild of an extrapolation given the day’s news.  The National Security Agency has been striving for the technocrat’s prize by collecting vast swaths of information about people’s electronic communications.  It is unclear to what degree the NSA is able to manipulate and understand all of that data, but the Utah Data Center is clearly a best effort.  Now, what if 100% accurate GPS data on every single human being could be gathered and tracked.  This would either involve some sort of massive dystopian compulsory chip implantation scheme similar to what we in developing countries are inflicting on our cats and dogs or the development of extremely sensitive biometers capable of registering tell-tale signs of each individual human body from space.  That´s the science fiction bit. 

                Beyond a good set up for a short story, this possibility reveals just how important the location of human bodies is.  It would be possible to infer massive amounts of information just by knowing exactly where a certain person was at any given time and then tracing their patterns of movement.  This information would have revolutionary impacts on all of the social sciences from economics, urban development and sociology to psychology, political science, criminology and media studies among others.  Consider subject K: We know K is most likely a male because we can track him regularly going into the men’s bathroom and standing at a urinal.  We can also tell that K is an adult by his movements to an office and bars.  We know that K has children because we can track him at a local elementary school at regular intervals each morning and his frequenting of certain stores every December.  He is also most likely overweight because he spends little time in the vegetable aisle at the grocery store and zips around town so fast that we know he isn´t walking or riding a bike.  It also appears that K is having problems with his prostate, given his frequent trips to a medical facility as well as those trips to the bathroom.  We would know his religion and his drug habits, just by tracking the location of his body.  The possibilities for this type of speculation are endless.  Could we determine K’s political affiliations by compiling and analyzing a lifetime of movements?  What about his ethnicity?  Could we predict his favorite music or sports team?  The implications of this information for social scientists, not to mention marketing agencies and tyrants, are staggering. 

It is extremely unlikely that this potential future will ever come to pass.  However, I will close this reverie with this context.  It is important to remember just how important the movement of the human body is, on all levels, micro to macro.  To come full circle to Miranda, consider the second-worse punishment society can conceive of after the infliction of physical pain or death; confinement.  Constricting a person’s movement is a devastating blow to their personhood.  I think all of this bears keeping in mind when we consider human migration.  How we move is who we are.  Foucault was very aware of the state’s interest in controlling our bodies.  Clearly states are interested in controlling the movement of our bodies across their international borders.  It bears questioning why and considering what the costs and benefits are.

---

[1] One of the most compelling has been the Transantiago public transport system overhaul undertaken by then-President Michelle Bachelet in 2007.  The system was designed by her government to replace a hodge-podge system that evolved driven by small bus companies operating independent lines.  The integrated system launched to overwhelming criticism and now six years later Transantiago is still plagued by problems and overcrowding.  One of the lessons learned from this experience has been that the technocratic designers failed to fully consider and anticipate the needs and flows of people using public transport in the city of 7 million.  Other examples of this type of top-down design failure are forthcoming, but not really the point of this blog post.

[2] One of the only?  I am not an international tax expert...

[3] The thought experiment also requires knowing minute detail of the environment as well, but given the advances of google, I wouldn't be surprised if one could locate not only your backyard pool, but also your bathroom in the near future. 

Imagine a World without Labor Certification

Imagine a world without labor certification.  For 99.99% of the world who are enviously ignorant of what labor certification is, the thought experiment is not difficult.  However, for those of us who know about or work in labor certification it is difficult to imagine the modern practice of immigration law in the United States without this onerous bureaucratic gauntlet.  For those of you in the lucky 99.99%, labor certification is a process that requires potential immigrants wishing to enter the US for work to get advanced approval of their work visa by the Department of Labor. 

The Department of Labor (DoL) is much maligned, but in the field of labor certification, much of that grousing is warranted.  In essence, a labor certification requires a potential immigrant to prove to the DoL that their employment in the United States will not “take a job” from a native US worker and will not negatively impact the local wage scale.  Labor certification is a stillborn migration policy that not only fails in praxis, but makes no sense in theory. 

The theory of labor certification is for the US government to protect domestic workers from foreign competition.  Given our modern understanding of foreign competition, labor certification is a laughable attempt to achieve this goal.  In 1965, when the labor certification process became law, the pressures of globalization and world-wide competition were quite distinct.  Many developing countries were just barely edging into modernization, telecommunications were mediaeval compared to modern standards and the world was sliced into ideological blocs that restricted the movement of everything, from goods and services to ideas and people.  Perhaps, only perhaps, at that time did labor certification make sense.  Today it is as relevant as typewriter ribbon. 

Competition from foreign workers is everywhere.  It fills your local big box store; it is the basis for your Black Friday sales.  For those of you who remember the “Buy American” campaign, consider filling your stockings this year with only American-made products.  Little Jimmy gets a ratchet set and Molly gets a handcrafted wooden toy truck that she wants about as much as a splinter.  Check out this site and compare to what you actually buy and want.  The impact of globalization is obvious.  “US jobs” have been “shipped overseas” for decades now.  Detroit, once the epicenter of US manufacturing and exports, has been downgraded from a city to town or burg or some sort.   

The idea that we can protect US jobs by limiting immigration is ironically contra factual.  Stemming the tide of more driven people, willing to work more for less, has possibly kept wages high in this country.  High wages, in turn, drive companies out of the US, taking their tax and infrastructure benefits with them.    In fact, as global production and service chains expand and technology efficiencies continue to pincer labor, wage competition among local labor may be one of the only mechanisms that would allow for adjustments to help the US adapt to the modern globalized economy.   Labor certifications make sure that this market adjustment will never happen. 

Finally, with respect to theory, labor certification is based on insidious nationalist, racist and selfish attitudes towards production and consumption.  The dialogue is about “our jobs” being “taken.”  This fallacy of entitlement is deeply rooted in human in-group out-group thinking that has accompanied us out of the jungles and savannahs of our pre-history.  Today the fallacy rings hollow.  Consider “US companies” such as Apple who shift sales and operations around the globe to enjoy tax benefits in Ireland, for example.  Modern global companies are not national partisans, why then should labor?  Jobs today go to the most competitive, in price, skill or quality.  It is no longer possible to protect a dull and complacent work force.  Labor certification is therefore futile. 

With regard to the praxis, labor certification is an exercise in waste.  Because labor certification is required before a visa can be issued, the whole process must be undertaken before the immigrant arrives in the US.  This means waiting for and dealing with an unwieldy and opaque government bureaucracy from outside the US.  The intricacy and layers of requirements to establish a successful labor certification compel would-be immigrants to use attorneys, at great expense. Once the labor certificate has been submitted, a government employee, at public expense, then endeavors to predict if that particular employment would adversely affect US workers and wages.   Given humanity’s utter inability to predict just about anything, this process borders on the absurd.  What is specifically required here is the ability to extrapolate from the micro (the individual worker) to the macro (the economy).  Social science and economic theory are notoriously incompetent with regard to this task.  Ultimately, labor certification requires the staffing of a large government organization tasked with the impossible all in the name of some goal that lost its relevance some time during the Carter administration.  Simply put, labor certification is costly and pointless.  Beyond generating employment for bureaucrats and attorneys, the system serves little purpose and policy makers should consider more dynamic and real-world solutions to the regulation and management of human migration.

Outsourcing Migration Policy

Specialists and academics in the field of immigration often complain that human migration is a global or regional phenomenon that is usually dealt with on a national level.  The regulations and enforcement mechanisms of national immigration laws are generally considered clumsy tools for managing international migration flows.  No academic conference on modern migration passes without a discussion of the state as an appropriate or inappropriate level of analysis.  Beyond academic debate, it is becoming clear that states are increasingly sharing the responsibility for their migration policies with other actors, both state and non-state.  This reality is at odds with the popular nationalist discourses used in most countries to justify and promote immigration laws. 

One telling example has been the European Union (EU) effort to secure bilateral agreements with neighboring non-EU countries, conscripting them into enforcing EU immigration policy.  This outsourcing of immigration enforcement to North Africa has ostensibly had a negative impact on human rights and the treatment of migrants moving from Africa to the EU.  These treaties often induce under-resourced countries to implement rudimentary immigrant control schemes.  These systems foster abuse in the form of inadequate detention conditions, access to legal recourse, social benefits and healthcare among others.  For example, UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, found that bilateral cooperation between Italy and Libya was heavily geared toward curbing migration to Italy.  He found that training and funds superficially dedicated to high seas rescue were also being used to increase interdiction of EU-bound migrants.  He found that given the poor record of human rights abuses against migrants in Libya, no intercepted migrants should be returned to that country against their will.  In his visit to Turkey, Prof. Crépeau, found that the focus on securitizing the border and reducing irregular immigration came at the expense of human rights concerns.

However, this type of “migration diplomacy” conducted by European states extends well beyond bordering states.  Since 2006 for example, the Spanish government has signed agreements Mauritania, Gambia, Guinea, Senegal, Mail, Cape Verde and Niger among others.  These agreements link development and migration and tend to focus heavily combating irregular migration through readmission agreements and strengthening emigration controls in the countries of origin.  On both the EU level as well as the individual state level, Europe is externalizing its borders and outsourcing the enforcement of its migration policy.

Another formal arrangement demonstrating the outsourcing or off-shoring of international border enforcement is the Australia-Papa New Guinea “Regional Resettlement Arrangement.”  This agreement, discussed in more detail in an earlier post, essentially designates PNG as the off-shore detention facility for individuals seeking asylum in Australia.   The UNHCR has said that the agreement “raises serious, and so far unanswered, protection questions”.   The Australian government lauds the agreement as a meaningful step to reduce the flow of migrants taking to the sea to seek asylum in Australia.  A similar trend is underway in the United States with regard to the southern border, however, marked by far less coordination or formal negotiation.  Mexico has been reforming its immigration laws, revising its visa categories and attempting to control irregular transmigration to the United States as well as bolstering human rights protections for migrants.  However, the Mexican government has been carrying out raids, paralleling those in the US and EU, to apprehend irregular migrants from Central America.  Such raids, carried out along well-known routes of north-bound migration, suggest an externalization of the US-Mexico border.  At a time when net migration from Mexico to the US has reached zero, Central Americans now represent the fastest growing segment of the Latin American immigrant population in the US.  As the Mexican government seeks to pivot away from the narco-migrant dialectic of its diplomatic relationship with the US, recasting Mexico’s role as border enforcement collaborator may be a beneficial alternative.

In all of the examples given above, the principal actors have been states.  However, the outsourcing of migration policies also involves non-state actors.  One of the most important has been the airlines.  One of the principal methods of entry for irregular immigrants in developed countries is to enter legally on a visa and then overstay.  Thus, controls at ports of entry, particularly airports, are a key aspect of border enforcement for these countries.  Migration laws in migrant destination countries are converging and imposing fines on airlines who allow passengers to board who do not have proper entry documents.  For example, in the US, the Customs and Border Protection agency requires airlines to transmit passenger information for all passengers on a given flight.  Failure to comply can result in fines of $5,000 for each infraction.  Examples of non-state actors taking on roles in immigration enforcement will likely multiply as states retrench under budgetary pressures.  As long as security and fear govern migration policy in the global popular consciousness, new actors and new revenue streams will spring up.  In the meantime, states will continue to seek methods of externalizing and “outsourcing” their immigration policies.

The Australia Asylum Debacle

Though it has recently fallen from international headlines, Australian refugee policy continues to stand as an icon of the broken and unworkable international asylum regime.  Recently, the Australian government resurrected its policy under the moniker, the “Pacific Solution,” in which people seeking asylum who arrive by boat to Australian waters are detained in third party countries.  The program was closed down in 2008 after 1,637 asylum seekers were diverted by Australian authorities to Nauru, or Manus Island in Papua New Guinea, to have their refugee claims processed.  According to the UNHCR “[t]he policy was introduced in 2001 to deny asylum seekers access to Australian territory to lodge their claims. The then government led by Prime Minister John Howard adopted the Pacific Solution after Australia refused to allow a Norwegian freighter, the MV Tampa, to enter Australian waters to disembark 433 mainly Afghan boat people rescued at sea.”  Policy makers hoped that this policy would deter future “unauthorized” asylum seekers from attempting to reach Australia by boat without a visa.  Australian migration policy allows individuals whom the UNHCR has determined are refugees to apply for a visa abroad and then come to Australia.

The policy was harshly criticized for wrongly lumping individuals with legitimate asylum claims in with economic migrants that the Australian government sought to exclude. However, between 2001 and 2008, 1,153 of the 1,637 individuals diverted into asylum camps were ultimately granted refugee status or humanitarian protection.  The UNHCR confirmed that “[o]f those, 705 (approximately 61 percent) were resettled to Australia; 401 went to New Zealand; 21 to Sweden; 16 to Canada, six to Denmark and four to Norway.”  The UNHCR criticized the policy stating that “[m]any bona fide refugees caught by the policy spent long periods of isolation, mental hardship and uncertainty – and prolonged separation from their families.” With the termination of the “Pacific Solution” the Australian government began processing asylum seekers on Christmas Island where authorities promised to adhere to the letter and spirit of the 1951 Refugee Convention.  However, the core of the policy, mandatory detention of asylum seekers, remained and remains in place.  Given that asylum claims take an average of 2 years to process, mandatory detention, whether on or off Australian territory, approaches the penal.  The 1951 Refugee Convention holds that refugees should be granted government protection while their status is being determined.

In September 2012, the labor government, which was responsible for closing the “Pacific Solution,” reopened off-shore processing in Nauru.  From September to April, 2013 the Australian government spent approximately US $104 million on the program.  It appears that the Australian government has learned few lessons from the first round of the “Pacific Solution.”  A three-day inspection by Amnesty International concluded in a scathing report.  “The situation on Nauru is unacceptable. The unlawful and arbitrary detention of these men in such destitute conditions is cruel, inhuman and degrading,” said Amnesty’s Dr. Graham Thom.  Dr. Thom continued, “[t]he news that five years could be the wait time for these men under the government’s ‘no advantage’ policy added insult to injury, with one man attempting to take his life on Wednesday night.” When the Australian government voted to reinstate the program “the House rejected an amendment that would have set a one-year limit on the time asylum seekers could be held at the offshore sites.”

Even more damning is the fact that this hardline policy appears to be failing at its principal goal: deterrence. According to the BBC, “[s]ince the government announced its return to the Pacific Solution, 21,730 passengers have arrived in Australian waters in 340 boats.”  The government is responding to conservative concerns with stemming the tide of non-white, low-skilled immigrants that would disturb the traditional ethnic makeup of migration to the country.  There is a political sense that the country is being overrun by the so-called “boat people” and the newly elected government has vowed to stop the boats.  However, the Migration Policy Institute points out that overall asylum numbers in Australia are relatively small:

“While the Australian Bureau of Statistics reports that the population of resident refugees and asylees has grown for several decades, the numbers are relatively small. According to the United Nations High Commissioner for Refugees (UNHCR), Australia had 23,434 designated refugees living in the country in 2011. (By comparison, Canada had 164,883 refugees and Germany, which hosted the fourth-largest number of refugees worldwide, had 571,685. Pakistan hosts the greatest number of refugees, 1,702,700.)”

In addition, Australia’s foreign born population reflects a heavier presence of Europeans than either Canada or the US (47.1% compared with 36.8% and 12.1% respectively).

Ultimately, Australian asylum policy hinges on the legal fiction of an “authorized” asylee or refugee.  By requiring that refugees be pre-approved by the UNHCR before seeking asylum in Australia foists the cost and responsibility of adjudicating asylum claims on an underfunded and overstretched international organization.  While the UNHCR struggles to provide basic needs in humanitarian crisis areas such as the countries neighboring Syria, it is unconscionable for Australian migration officials to ask so much.  More likely is that the UNHCR stamp of approval is a politically convenient mechanism for restricting the flow of migrants and refugees into the country. 

However, blame does not fall on Australia alone.  Most developing countries have taken similar measures to restrict access by people seeking refuge.  In Europe, the policy of “push-back” is being widely applied as Frontex diverts boats with migrants and potential asylum seekers back to third party countries.  Recently, Switzerland amended its immigration policy and closed down the ability of potential refugees to file for asylum at Swiss embassies, effectively making arriving on European soil the only means for application.  Switzerland was the only European country to offer extraterritorial asylum application.  In the United States, tightening of immigration and border enforcement has made it more difficult for potential refugees to reach US soil and make their claim.   What is occurring in Australia is only one particularly glaring example of how the international refugee system is broken.