Rights, Deportation, and Detention in the Age of Immigration Control 9780804794572

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Rights, Deportation, and Detention in the Age of Immigration Control

Rights, Deportation, and Detention in the Age of Immigration Control Tom K. Wong

Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2015 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Wong, Tom K., author.   Rights, deportation, and detention in the age of immigration control / Tom K. Wong.    pages cm   Includes bibliographical references and index.   isbn 978-0-8047-9306-3 (cloth : alk. paper)   isbn 978-0-8047-9457-2 (electronic)   1. Emigration and immigration— Government policy.  2.  Emigration and immigration law.  3.  Immigrants— Civil rights.  4.  Deportation.  5.  Alien detention centers.  I.  Title.   jv6271.w66 2015   325— dc23 2014038930 Typeset by Newgen in 10/14 Minion

For Rose, Soul, Pace, and Ever

Contents

List of Figures and Tables

ix

List of Selected Abbreviations

xiii

Acknowledgments

xvii



1 Immigration Control in the Age of Migration



2 Human Rights and Immigration Control Wrongs

27



3 Deportation Nations

65



4 The Labyrinth of Immigration Detention

109



5 An Effective Deterrent or Smoke and Mirrors?

144



6 Conclusion: Migrants, Agency, and the Future of Immigration Control

166

1

Appendix 1: Methodological Notes in the Analysis of Ratification of the ICRMW

175

Appendix 2: Methodological Notes in the Analysis of Deportations

179

Appendix 3: Methodological Notes in the Analysis of Immigration Detention

187

Appendix 4: Methodological Notes in the Analysis of the Impact of Immigration Control

189

vii

viii  Contents

Notes

193

Bibliography

199

Index

225

Figures and Tables

Figures

1.1 Annual immigration to the United States and European Union, 2000–2011 14



2.1 Rate of ratification for the core UN human rights treaties

36



2.2 Immigration and the predicted probability of ratifying the ICRMW

59

2.3 Relationship between ratification of the ICRMW and remittances

60

2.4 Immigration, the ICRMW global rate of ratification, and the predicted probability of ratifying the ICRMW

63

3.1 U.S. share of total deportations across Western immigrantreceiving democracies, 2000–2009

85

3.2 Comparing deportations across the United States and European Union, 2000–2009

86



3.3 Immigration-to-deportation ratio, 2000–2009

87



3.4 Comparing the immigration-to-deportation ratio across the United States and European Union, 2000–2009

88



3.5 Immigration-to-deportation ratio by country

89



3.6 Deportation per total population by country

90



3.7 The politics of immigration control

98



ix

x  Figures and Tables



3.8 Electoral rules and the legislative representation of the far right

100

3.9 Electoral rules, the far right, and deportation

102

3.10 Electoral thresholds, the far right, and deportation

105



4.1 Florida Immigration Enforcement Act

113



4.2 Right-leaning governments and immigration detention

132



4.3 Elections and immigration detention

133



4.4 The far right and immigration detention

135



4.5 Economic growth and immigration detention

137



4.6 Unemployment and immigration detention

139



4.7 Foreign-born population and immigration detention

140



4.8 Asylum inflows and the use of immigration detention

141



5.1 Deportations and the unauthorized immigrant population in the United States

153

Tables

2.1 Human rights and deportation

42



2.2 Human rights and immigration detention

46



2.3 Comparing ICRMW ratifying and nonratifying countries

57



2.4 Modeling ratification of the ICRMW

58



3.1 Factors analyzed and expected effects: Modeling deportations

81



3.2 Modeling the immigration-to-deportation ratio

91



3.3 Modeling deportations per total population

92



3.4 Factors analyzed and expected effects: Interaction model

99



3.5 Modeling the impact of electoral institutions

101



4.1 Cross-national view of immigration detention

130



5.1 Factors analyzed and expected effects: Modeling the impact of immigration control

152



5.2 Modeling immigrant inflows

156



5.3 Modeling asylum inflows

161

Figures and Tables  xi



A2.1 Operationalizing deportation

184

A2.2 Deportation measures correlation matrix

185



A2.3 Summary statistics

185



A4.1 Modeling immigrant inflows: Contemporaneous models

190

A4.2 Modeling asylum inflows: Contemporaneous models

191



192

A4.3 Propensity score matching analyses

Selected Abbreviations

ATDs

Alternatives to detention

Banjul Charter

African Charter on Human and Peoples’ Rights

CAT United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, 1984 CBP

U.S. Customs and Border Protection

COE

Council of Europe

CPT

European Committee for the Prevention of Torture

Declaration on United Nations Declaration on the Human Rights of Non-Nationals Individuals Who Are Not Nationals of the Country in Which They Live, 1985 DFT

Detained Fast Track

DHS

U.S. Department of Homeland Security

DIBP Australian Department of Immigration and Border ­Protection DPI

World Bank Database of Political Institutions

ECHR

European Convention on Human Rights, 1950

ECOSOC

United Nations Economic and Social Council

ECtHR

European Court of Human Rights

EMN

European Migration Network xiii

xiv  Selected Abbreviations

EU-28

European Union

FN

French National Front

FPÖ

Austrian Freedom Party

Frontex European Union Agency for the Management of Operational Cooperation at the External Borders of the Members States of the European Union General Assembly

General Assembly of the United Nations

Home Office

United Kingdom Home Office

ICCPR

International Covenant on Civil and Political Rights

ICE

U.S. Immigration and Customs Enforcement

ICJ

International Court of Justice

ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 ILO

International Labor Organization

INGOs

Intergovernmental organizations

INS

U.S. Immigration and Naturalization Service

IRCA

Immigration Reform and Control Act, 1986

NGOs

Nongovernmental organizations

OECD Organization for Economic Cooperation and ­Development OHCHR United Nations Office of the High Commissioner for Human Rights Pact of San Jose

American Convention on Human Rights

PBNDS

Performance-Based National Detention Standards

Refugee Convention United Nations Convention Relating to the Status of ­Refugees, 1951 Returns Directive

European Union Returns Directive

Roundtable

Global Roundtable on Alternatives to Detention

SBI

U.S. Secure Borders Initiative

Special Rapporteur United Nations Special Rapporteur on the Human Rights of Migrants

Selected Abbreviations  xv

UDHR

Universal Declaration of Human Rights

UKBA

United Kingdom Border Agency

UNCHR

United Nations Commission on Human Rights

UNESCO United Nations Educational, Scientific, and Cultural ­Organization UNHCR

United Nations High Commissioner for Refugees

UNHRC

United Nations Human Rights Committee

USCIS

U.S. Citizenship and Immigration Services

WDF

Donald W. Wyatt Detention Facility

WDI

World Bank World Development Indicators

WGAD

United Nations Working Group on Arbitrary Detention

Working Group United Nations Inter-Governmental Experts on the Human Rights of Migrants

Acknowledgments

This book is the product of the accumulation of years of intellectual debts. In providing me the space to pursue and develop my ideas, and their support and encouragement, I am indebted to Karthick Ramakrishnan, Bronwyn Leebaw, and John Cioffi, as well as to David Pion-Berlin, Edna Bonacich, Juliann Allison, Shaun Bowler, Kevin Esterling, Martin Johnson, Antoine Yoshinaka, Ben Bishin, Indridi Indridason, Yuhki Tajima, Feryal Cherif, and Farah Godrej. I am also deeply indebted to Jim Hollifield whose mentorship, which began with a response to an email that I sent to him while I was just beginning my academic career, has been invaluable. I am grateful to Jeanette Money, Antje Ellermann, and Terri Givens for their thoughtful comments and advice at various stages of the development of this book. The support of Zoli Hajnal, Marisa Abrajano, David Fitzgerald, John Skrentny, and Wayne Cornelius at my new intellectual home at UC San Diego and the Center for Comparative Immigration Studies has also been instrumental. It has been a pleasure working with Geoffrey Burn, my editor at Stanford University Press; James Holt, editorial assistant; and Frances Andersen, project manager. I thank the United Nations Office of the High Commissioner for Human Rights for allowing me to participate in the 2009 Day of General Discussion on Migrant Domestic Workers in Geneva, Switzerland. I also thank the participants at the 2009 annual meeting of the American Political Science Association (APSA) in Toronto, Canada, including Joe Carens; participants at the 2009 Metropolis seminar in Ottawa, Canada; participants at the 2010 Cumbre conference, which was held in preparation for the 2010 Global Forum on Migration and Development in Puerto Vallarta, Mexico, and Alison Brysk, Peter xvii

xviii  Acknowledgments

Gourevitch, and Jeff Isaac for thoughts and comments on Chapter 2. I thank the United Nations High Commissioner for Refugees and the European Union Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for their cooperation. I also thank the participants at the 2010 Politics of Race, Immigration, and Ethnicity Consortium (PRIEC) meeting at Stanford University, including Gary Segura; participants at the 2010 “Beyond Arizona: Laws Targeting Immigrants in the U.S. and Europe” conference at UC Berkeley, including Aarti Kohli; participants at the UC Irvine Center on Immigration, Population, and Public Policy seminar, including Sara Wallace Goodman, Frank Bean, and Louis DeSipio; participants at the 2011 UC Center for New Racial Studies conference at UC Los Angeles, including Shannon Gleeson and John Park; participants at the 2011 “Immigration Policy in an Era of Globalization” conference at the Federal Reserve Bank of Dallas, Texas, including Stephen Castles, Andrew Geddes, Irene Bloemraad, Dan Tichenor, Marc Rosenblum, Willem Maas, and Grete Brochmann; participants at the 2011 APSA annual meeting in Seattle, Washington; participants at the 2011 IMISCOE conference in Neuchâtel, Switzerland; and participants at the 2012 PRIEC meeting at UC Riverside for thoughts and comments on Chapters 3, 4, and 5. Above all else, I am indebted to Rose, my partner. She has been my greatest supporter, as well as my harshest critic. All that I have accomplished I owe to her, including our wonderful triplet boys, Soul, Pace, and Ever. And to my family and friends, we have come a long way, but there is still so much to do.

Rights, Deportation, and Detention in the Age of Immigration Control

1

Immigration Control in the Age of Migration

My parents were already in the U.S. I remember flying from the Philippines to Mexico when I was little [. . .] When we got to Mexico, we stayed with these people. I’m not sure if they were relatives [. . .] I think I didn’t see my parents for a month [. . .] The next thing I know, we were in the trunk of a car crossing the border. —Unauthorized Filipino American, California, United States1

I went first to Italy on a boat from Libya [. . .] No, I wasn’t scared [. . .] then I came here [to Calais, France] on the train. Everyone here wants to go to the UK [. . .] I made it there once, but it wasn’t how I thought it was going to be [. . .] After a few months I was deported back to Italy. Italy couldn’t take me anywhere else, so they just let me go. So I got back on the train and came back here. —Unauthorized Eritrean, Calais, France2

The Central Experience of Humanity

The scholarly study of international migration has, over the past several decades, slowly entrenched itself in the mainstream of the social sciences. From research that intersects migration and the study of racial and ethnic politics in order to understand the implications of changing democratic electorates, to work that examines how the movement of people across borders collides with the foundational principles of national security, sovereignty, and citizenship, migration is a cross-cutting issue that touches the heart of many of the most salient political and societal debates today. Historian Oscar Handlin (2002 [1951]) once described immigration as the “central experience” of humanity, and contemporary migration trends show that this, indeed, continues to be the case. According to data from the World Bank, in the last half-century, the number of international migrants increased by nearly 200 percent. In 1960, approximately 72 million people lived outside 1

2  immigration control in the age of migration

of their country of birth. By 2010, this number climbed to over 213 million people, ­representing 3.1 percent of the world’s total population. While international migration to high-income, Western countries has generally accounted for much of the increase in the world’s migrant population, these countries are not alone in experiencing large-scale international migration. Whereas approximately one in every ten people living in advanced industrialized countries is an international migrant, in many other countries, the international migrant population exceeds 25 percent. In Singapore, for example, international migrants account for almost 40 percent of the total population. And while one out of every two people living in Jordan was born in another country, in Qatar and Kuwait, approximately 75 percent of the population is an international migrant. As these figures, as well as the concomitant images of the national, racial, and ethnic milieu of global cities suggest, our current era of globalization vividly captures the idea of a world in motion. The contemporary movement of people across borders is, however, distinct from the great migrations in human history, as are the political and societal challenges it gives rise to (see, e.g., Castles, de Haas, and Miller, 2013; Hollifield, Martin, and Orrenius, 2014). When it comes to immigration control, the expansion of the immigration-industrial complex—which includes multilateral deportation regimes, public-private partnerships between states and publicly traded prison firms, increasingly dense networks of immigration detention sites and asylum processing centers, external border controls, and interior immigration enforcement—are all inextricably linked to the contemporary landscape of international migration. Moreover, the reification of identity through biometric passports, visas, and other “papers,” though not entirely new (Torpey, 2000), has further entrenched the notion of “illegality” as one of the foremost categories of the undesirable “other.” Over a decade ago, the United Nations Working Group of Inter-Governmental Experts on the Human Rights of Migrants (Working Group) estimated that one-fifth of all international migrants were in an irregular situation (1999). More recently, the United Nations Development Program (UNDP) estimated that approximately 50 million persons, representing close to one-quarter of all international migrants, were in an irregular situation (2009). In the United States, an estimated 11.5 million people constitute the (undocumented) other (U.S. Department of Homeland Security [DHS], 2012a). The European Union Agency for the Management of Operational Cooperation at the External Borders of the Members States of the

immigration control in the age of migration 3

European Union (Frontex) estimates that up to 6 million people currently live in the European Union (EU) without authorization (Frontex, 2013). Accordingly, Western immigrant-receiving democracies spend a combined $25 to $30 billion per year on immigration control and enforcement costs. In the United States, proposed comprehensive immigration reform legislation, which was actually passed by the Senate in 2013, but was not taken up in the House, includes $46.3 billion in bolstered border security and enforcement spending. It is no wonder that international migration and, in particular, immigration control, remains a central focus of the policy agendas of most advanced industrialized democracies. Sovereignty, Citizenship, and Closure: Understanding the Machinery of Immigration Control

This book makes two broad and interrelated arguments. The first is conceptual while the second is analytical. While some scholars describe our current epoch as an “age of migration” (Castles, de Haas, and Miller, 2013), the continual development, expansion, and evolution of the policies and practices states use to keep out “unwanted” immigrants reflects a dual reality that this is also an unrelenting age of immigration control. This age of migration has, in effect, reaffirmed and entrenched the exclusionary prerogatives of immigration control, meaning the sovereign right of states to keep out the other. Indeed, the contemporary practice of controlling immigration can be understood as a reaffirmation of national sovereignty, wherein the unwanted immigrant has captured the full attention of the coercive powers of the state (Ellermann, 2009) and unauthorized immigration status has become a “central axis” of stratification in democratic societies (Bloemraad, Korteweg, and Yurdakul, 2008; Massey, 2007). Sovereignty alone, however, tells only part of the story, as I argue that the restrictiveness of immigration control is also a function of how the politics of immigration unfold at the level of domestic institutions and political processes. I describe these arguments in more detail in the sections that follow. The Tyranny of Sovereignty?

That authority over immigration and immigration control, including decisions regarding admittance, to whom citizenship should be extended, as well as who to exclude, is inextricably tied to the sovereignty of states is, for many,

4  immigration control in the age of migration

common sense. In writing about the status of statelessness during the interwar years in Europe, which magnified distinctions between nationals and foreigners and highlighted the role of the state in managing the movement of peoples both across and within borders, Hannah Arendt (1966) described the right of states to decide on matters of entry, exit, nationality, and expulsion as “timehonored and necessary” (p. 284). It is time honored in the sense that these matters impinge directly on the territorial integrity of states, which is one of the foundational components of the Westphalian international system. It is necessary in that the distinctiveness of citizenship and the importance of the rights it entails depend on a certain degree of closure. In one sense, closure serves to demarcate and reinforce the boundaries of distinct political communities (i.e., states), which provides the basis for distinguishing between members and nonmembers (i.e., citizens from noncitizens). To Arendt, this is important because our “right to have rights” stems from our being intersubjectively recognized as a member of a political community, as such recognition brings with it the existence of a government that can protect rights. In the absence of this, “the Rights of Man, supposedly inalienable, proved unenforceable [. . .] whenever people appeared who were no longer citizens of any sovereign state” (Arendt, 1966, p. 290). Others, such as Michael Walzer (1983), go further in arguing that closure is necessary for the maintenance and preservation of national identity. He writes, “The distinctiveness of cultures and groups depends upon closure [. . .]. If this distinctiveness is valued, as most people seem to believe, then closure must be permitted somewhat” (p. 39). Not just a Western phenomenon, a recent study of Thai citizenship and the noncitizen status of people residing in Thailand’s northern highlands, which border China,3 Burma, and Laos, suggests that “Thai identity [. . .] is defined through creating the ‘non-Thai’; this exclusion affirms and legitimates sovereign power” (Toyota, 2007, p. 92). Though drawn from scholars writing from distinct points of departures and traditions, a common thread exists here, wherein closure is intrinsically related (however curious the relationship is) to inclusiveness. This can, perhaps, be summarized best by the apropos imagery of states as being externally exclusive but internally inclusive (Brubaker, 1992).4 As it continues to be regarded as both time honored and necessary, the national sovereignty approach to immigration and immigration control remains a conceptual pillar in our thinking about immigration policy. A less eloquent but also an important reason for this is that it remains unclear how the modern nation-state system would function without sovereign control over borders.

immigration control in the age of migration 5

But at the same time, the migration literature abounds with arguments that provide important theoretical contrasts that push our thinking, including arguments for open borders (Carens, 1987; Hayter, 2004), porous borders (Benhabib, 2004), and the view of diminished sovereignty (Sassen, 1996, 1999; Soysal, 1994). Research on immigration control has not ignored these arguments (Brochmann and Hammar, 1999; Cohen, 2001; Hollifield, Martin, and Orrenius, 2014; Geddes, 2001; Joppke, 1999a; Lahav, 2004; Rudolph, 2005; Schain, 2009). Studies have even attempted to empirically analyze the observable implications of theories of diminished sovereignty (Bloemraad, 2004; Guiraudon and Lahav, 2000; Joppke, 1997; Koopmans and Statham, 1999; Schain, 2009). Immigration policy scholars have thus far not found persuasive enough evidence to support a full retreat from the national sovereignty approach to the design and implementation of immigration policy. I agree with this view. However, existing studies tend to address alternatives to national sovereignty explanations as being almost exclusively a matter of empirical investigation and analysis, thus placing the onus on rival explanations to show evidence of empirical validity. As the investigative lens has been mostly fixed outwardly, some of the important normative underpinnings of the national sovereignty approach have been left underexamined. For example, as comparative research by political scientists on immigration grew during the 1990s (Freeman, 2011), an early laundry list of reasons given in defense of national sovereignty in matters of immigration control suggested that a safe and prosperous country that declares its borders open risks being overwhelmed by a massive influx of immigrants from poor and/or violent countries. If the country then provides these immigrants with the same benefits it offers its own citizens (education for children, healthcare, unemployment benefits, etc.), its social services and welfare services may be stretched to the limit. [. . .] As the number of migrants grows, the local population may become xenophobic, resulting in the growth of antimigrant political organizations, violence, and social disorder. (Weiner, 1996, pp. 172–173)

To be sure, each of these propositions are empirical questions to be examined, and research that interrogates the empirical validity of such claims will go far in adding clarity to our understanding of the impact of immigration on society. However, the normative issue in need of attention here is that arguments opposing immigration on the basis of national sovereignty are too often taken as given, not only as matters of empirical truth but also as matters of public

6  immigration control in the age of migration

opinion and policy consequence. On this point, Dennis Broeders and Godfried Engbersen (2007) draw a link between the “social myths” that unauthorized immigrants are “criminals” and “welfare abusers” to the general view across northern European countries that irregular migration is a threat to society and the economy (p. 1594). Sentiments such as these, no matter how pervasive they may be, distract from, and even obfuscate, a simple but crucial point: national sovereignty when it comes to matters of immigration control need not always mean or even imply closure and restrictiveness, as the various mechanisms used by states to control immigration are policy outputs that emerge from the broader political and institutional context in which the contentious politics of immigration unfolds and takes place. As James F. Hollifield and Tom K. Wong (2014) note, immigration control is founded upon the exercise of power in the legal, institutional, and even the ideational confines of political systems. The restrictiveness of immigration control should thus not be viewed as monolithic or as an inevitable outgrowth of national sovereignty, as restrictiveness itself is variable (Brochmann, 1999). What determines its variability, however, remains an open question and answering this question constitutes our current task at hand. Disassembling and Theorizing the Machinery of Immigration Control

Analytically, a point that flows directly from the last is that while its various manifestations are similarly aimed at keeping out the immigrant other, the theorized political, economic, and migration-related determinants of immigration policy may affect each cog in the machinery of immigration control in different and sometimes unexpected ways. Moreover, as Jeanette Money (1999) points out, political scientists have yet to agree upon a reliable set of indicators to use in empirically testing theories about the determinants of immigration control. I thus argue that is it necessary to disassemble this machinery in order to analyze its discrete components. Much of the existing work has yet to deconstruct the distinct mechanisms of these increasingly complex regimes. This risks conflating disparate aspects of immigration control that may be governed by distinct factors and behavioral logics (Money, 1999). Indeed, immigration policy is not unitary and scholars are becoming increasingly attuned to this point. Accordingly, a new generation of cross-national research is focusing on the creation of comparable metrics that can be used to analyze immigration politics and policies across space and time. In fact, entire panels at academic

immigration control in the age of migration 7

conferences have been devoted to the creation of comparable metrics. It is not that demand for this is new; rather, one of the main culprits in this delay has been the lack in the availability of comparable data beyond tallies of migrant inflows and outflows (i.e., who enters a country and who leaves), both across countries, as well as within countries over time. Methodologically, data limitations have also hindered the refinement and further development of theories of immigration control. In addressing this issue, this book pushes our thinking about the theorized determinants of immigration policy by empirically testing existing theories using not just one but a set of immigration control policies, as well as by connecting political institutions to immigration control policy preferences and outcomes in a comparative framework. Despite some notable exceptions (see, e.g., Cornelius et al., 2004; Ellermann, 2009; Fitzgerald and Cook-Martín, 2014; Givens and Luedtke, 2005; Hollifield, Martin, and Orrenius, 2014; Joppke, 1999a; Messina, 2007; Money, 1999; Ruhs, 2013; Thielemann, 2004), existing empirical studies of immigration control tend to be country specific or, as Hollifield (1992) observes, there has been a tendency to collect individual case studies, bind them together, and call them comparative. This has made sorting between idiosyncratic factors and more widely applicable theories difficult, as the theorized determinants of immigration control have yet to be systematically tested across countries, institutional levels, economic configurations, groups, or time. These types of comparisons are important because they allow us to compare the effects of specific policy mechanisms cross nationally to identify best practices, including what works, what does not, which practices unduly create hardships for migrants, and which deepen inequalities.5 As Andrew Geddes (2003a) adds, “If we focus entirely on national differences between countries and on the particularities of debates within these countries then this could lead to the conclusion that national particularities are the key element of immigrant policies in Europe. This would diminish the possibility of comparison” (p. 24). Whereas a small, but growing library of studies have sought to address comparable methodological and substantive gaps in crossnational comparisons in other areas of migration politics and policy, including anti-immigrant sentiment and public opinion (see, e.g., Blinder, Ford, and Ivarsflaten, 2013; Fetzer, 2000; Lahav, 2004; Mayda, 2006; McLaren, 2003; Quillian, 1995; Sides and Citrin, 2007), citizenship policies and rights (see, e.g., Aleinikoff and Klusmeyer, 2002; Cook-Martín, 2013; Howard, 2009; Koopmans, Michalowski, and Waibel, 2012; Ruhs, 2013; Goodman, 2010; Weil, 2001),

8  immigration control in the age of migration

immigrant incorporation (see, e.g., Bloemraad, 2006; Dancygier, 2010; Hochschild et al., 2013; Hochschild and Mollenkopf, 2009; Koopmans, 2010; Maxwell, 2012; van Tubergen, 2004; Wright and Bloemraad, 2012; see also Migrant Integration Policy Index), regularizations/legalizations (see, e.g., Kraler, 2009; Rosenblum, 2010), and emigration (see, e.g., Moses, 2011), few studies can make similar claims with respect to immigration control. This book is an attempt to address this gap. Analyzing the Politics of Immigration Control

The two preceding points—that immigration control is best conceptualized not only as a matter of national sovereignty but also as a product of politics, and that nested within the broader issue of immigration control are analytically distinct policy outcomes—frame the approach of the substantive chapters of this book. Put otherwise, understanding the politics of immigration control requires conceptualizing and then analyzing the distinct blends of political and institutional factors, as well as their interactions with societal and economic conditions, that incentivize the tightening or loosening of specific immigration restrictions by governments. Only then can we begin to understand “why states do what they do” when it comes to immigration control. Our current age of migration is simultaneously an age of immigration control, wherein it is unclear where the impulse, desire, and necessity of controlling immigration ends and where the rights of all migratory persons, irrespective of their immigration status, begins. Indeed, finding our balance here and where we settle along this continuum is certain to be one of the defining characteristics of this era of migration. Yet, despite this pressing importance, only a handful of studies have systematically analyzed immigration control and its implications across countries and over time. While existing works have gone far in helping us make sense of the dilemmas and policy challenges that immigration control poses, up until recently we have had a limited understanding of the full range of policy mechanisms that states have used in pursuit of immigration control ends, and we knew even less about the factors underpinning and driving the use of these mechanisms. Consequently, it has been unclear why states choose certain policy approaches over others and what explains the varying degrees of restrictiveness that we observe across countries, and sometimes even within countries at different points in time. This book thus contributes to the literature in a number of ways. In analyzing new data across twenty-five countries over a ten-year period, it represents

immigration control in the age of migration 9

one of the most comprehensive studies to date on immigration control. The statistical analyses are also combined with in-depth interviews and participant observation of immigration control practices in the United States and in Europe. Moreover, the book draws attention to, and systematically analyzes, the distinct components that comprise contemporary immigration control regimes across immigrant-receiving democracies, focusing on policies of “attrition through enforcement,” which broadens our view of immigration control beyond the singular attention to borders. On one level, the analyses provide detailed descriptive accounts of the use and evolution of particular mechanisms of immigration control across countries and over time. On another level, the book pushes further by answering the analytical question of why states do what they do in response to increased (unwanted) immigration by empirically analyzing the determinants of immigration control. As we will see, the analyses provide some expected, but also some unexpected, results. I detail how this unfolds and manifests in the areas of rights, deportation, and immigration detention in the chapter summaries below. Before moving forward, it is important to define immigration control and to note that, in analyzing matters of immigration policy, it is easy to “lose sight of the forest for the trees,” as immigration policy is in reality an intricate and complex tangle of policies and practices. This book thus focuses the analytical lens on what is arguably the most contested, dynamic, and evolving set of immigration control policies. As the title intimates, this book addresses three of the most salient and visible aspects of immigration control. These are the denial of rights to noncitizens, their physical removal and exclusion from the polity via deportation, and their deprivation of liberty and freedom of movement in immigration detention. These mechanisms form the bedrock of the contemporary machinery of immigration control. Moreover, not only do they give rise to contentious policy debates, but these core facets of immigration control concretize the implications of these policies for immigrants and for society more generally. There is no existing research that I am aware of that simultaneously analyzes these fundamental cogs in the machinery of immigration control. Defining Immigration Control

What is immigration control? Immigration control refers broadly to the policies and practices used to deter unwanted immigration, meaning immigration that is occurring despite and against the intentions of states (Guiraudon and

10  immigration control in the age of migration

Joppke, 2001). In one of the exemplar studies on this subject, Grete Brochmann (1999) defines immigration control more narrowly as attempts by states to “regulate the size and composition of immigration and to control aliens already in the country” (p. 9). However, because this definition does not fully capture the deterrent aspect of immigration control—be it real or simply hoped for by states—I opt to use the more general definition. What has been, and what continues to be, among the most salient challenges that policymakers face is the question of what to do when it comes to so-called unwanted immigration.6 What has emerged in recent years is a concerted strategy of attrition through enforcement. As Kris Kobach (2007–2008), the author of two highly controversial state-level immigration laws in the United States (SB 1070 in Arizona and HB 56 in Alabama) writes, “If the risks of detention or involuntary removal [i.e., deportation] goes up, and the probability of being able to obtain unauthorized employment goes down, then at some point, the only rational decision is to return home” (p. 154). In practice, the strategy of attrition through enforcement is designed to create for unauthorized immigrants conditions of life that are so harsh that the benefits of “self-deportation” exceed those of remaining in a country without authorization. For example, HB 56 in Alabama requires police to check the immigration status of those who are suspected of being in the country without authorization, prohibits unauthorized immigrants from receiving any public benefits, deters children without papers (or who have parents without papers) from attending public schools, and prohibits landlords from renting property to those who are unauthorized, among other provisions. In questioning the constitutionality of these measures, the U.S. Department of Justice has criticized HB 56 for imposing criminal penalties and restrictions on “the most basic human needs” (United States v. Alabama, 2011).7 While much of HB 56 has been blocked from being implemented by U.S. courts, it is worth noting here that at the same time that the U.S. Congress debates comprehensive immigration reform and the legalization of unauthorized immigrants, many attrition through enforcement-esque policies are likely to be tightened even further as part of a final reform package. In analyzing parallel processes in the European context, Broeders and En­gbersen (2007) describe the strategy of attrition through enforcement as follows: “When it comes to irregular migrants, exclusion is now the stated aim of policy. For those illegal aliens who cannot be discouraged or deterred to come, exclusion is meant to complicate and frustrate living and working condi-

immigration control in the age of migration 11

tions to such a degree that they will turn round and try their luck elsewhere” (p. 1593). As a result, migrants have been pushed “towards the fringes of legality and beyond” (Engbersen and Broeders, 2009, p. 867). Recently proposed legislation in the United Kingdom makes the contours of these “fringes” evermore vivid. In efforts to, as Immigration Minister Mark Harper describes, “stop migrants from abusing public services to which they are not entitled, reduce the pull factors which draw illegal immigrants to the UK and make it easier to remove people who should not be here,” legislation introduced at the end of 2013 would, among other things, require landlords to check the immigration status of their tenants, prohibit banks from opening accounts for those who are unable to prove that they are in the country legally, extend powers to examine the credibility of immigrants seeking to marry or enter into a civil partnership with a British citizen, and decrease the number of grounds on which one can appeal deportation or detention decisions (United Kingdom Home Office [Home Office], 2013). The preceding illustrates two main points. First, it is no longer sufficient to think about immigration control simply in terms of the external borders of states and questions related to who is (or is not) admitted. Only until recently, research on immigration control had been confined mostly to border policing and the strategy of “prevention through deterrence,” meaning keeping the pejorative “them” out by fortifying borders (see, e.g., Andreas, 1998, 2012; Donato and Armenta, 2011; Hagan and Phillips, 2008; International Organization for Migration [IOM], 2003). However, in generally neglecting the changing landscape of immigration control, the study of immigration politics and policymaking has obscured the fact that in some countries, more people have been apprehended, detained, and deported in the modern era of migration than have actually immigrated. For example, whereas nearly 40 million people were admitted into the United States from 1927 to 2010, some 52 million were deported or returned (Wong, 2014). Indeed, states today realize that the work of immigration control extends far beyond borders. Accordingly, studies have examined the shifting terrain of immigration control outward or via “remote control” (Zolberg, 2006a), upward to intergovernmental bodies, downward to localities, and outward to nonstate actors (Ellermann, 2006; Guiraudon and Lahav, 2000; Lahav, 1998; Lavanex, 2006), as well as inward via the expansion of interior immigration enforcement (see, e.g., Broeders, 2007; Coleman, 2007; Coleman and Kocher, 2011; Hopkins, 2010; Ramakrishnan and Wong, 2010;

12  immigration control in the age of migration

Rosenblum and Kandel, 2012; Wong, 2012). What makes this striking is that only a decade ago, even the United States was described as a country that was averse to interior immigration controls (see, e.g., Joppke, 1999a). Second, the practice of immigration control has increasingly pitted the sovereign right of states to keep out the other in direct opposition to the basic rights of noncitizens (Brochmann, 1999). While the policy relevance of controlling immigration has been high across Western immigrant-receiving democracies for quite some time now, the human implications of immigration control—how the absence of rights impacts the lived experiences of unauthorized immigrants, the separation of families as a consequence of deportation, and the deprivation of liberty in immigration detention, among other stark and severe examples—are what maintain and continue to amplify its importance. Relatedly, how states design and implement immigration control policies have become important and contested legal issues. In the United States, for example, arguments about the legality of state-level attrition through enforcement policies have made their way to the U.S. Supreme Court. In the United Kingdom, the immigration reform legislation described above, includes a forty-nine-page memorandum explaining how the proposed changes do not violate the European Convention on Human Rights (ECHR)—a memorandum that is sure to be hotly debated. These examples reflect what Hollifield (1992) refers to as the “liberal paradox” (see also Hollifield, Martin, and Orrenius, 2014), whereby market pressures related to globalization and economic openness make immigration a “permanent fixture” in advanced industrialized democracies (see also Piore, 1979), while domestic political and societal pressures concomitantly press for closure. The notion of the liberal paradox raises a critically important question: Is the contemporary practice of immigration control (the pressure for closure) eroding the rights that accrue to individuals in liberal democratic societies, irrespective of their immigration status? One of the great challenges moving forward is finding durable policy solutions that are “thick” enough to satisfy immigration control needs but are also “thin” enough to accommodate individual rights and civil liberties. While the liberal paradox is as applicable today as it was in its original formulation, the mechanisms of closure have clearly evolved. As alluded to above, while tightening rules on the admission of immigrants and external border controls have, in the past, been the locus of immigration control, its contemporary practice has evolved into increasingly complex re-

immigration control in the age of migration 13

gimes. External to national borders, these regimes include legal admissions requirements—for example, quotas, points-based admissions systems that privilege certain categories of migrants over others, biometric screening, and stricter citizenship, work, and benefits eligibility requirements—bilateral and multilateral cooperation with immigrant-sending countries, interdiction, carrier sanctions, and the increased use of military technologies and personnel in border security and enforcement efforts. They also include screening immigrants based on the values they hold. In Australia, for example, all prospective immigrants over the age of eighteen are required to sign a values statement when applying for selective visas. As the Australian Department of Immigration and Border Protection (DIBP) describes, the statement requires prospective immigrants to not only obey the laws of the country but also “confirm that they will respect the Australian way of life.” Interior immigration control includes efforts to lessen the economic “pull” of a country through employer sanctions and mandatory verification of work eligibility, public-private burden sharing, the denial of rights vis-à-vis the strategy of attrition through enforcement, including access to welfare, police surveillance, and the apprehension, detention, and deportation of unauthorized immigrants. Moreover, a host of mechanisms have been developed specifically in relation to persons seeking asylum. These include the designation of “safe” third countries or countries of origin, in-country processing and preinspection of asylum seekers, detention pending the decision of cases, and the denial of public benefits and work authorization, among others. As Matthew J. Gibney (2004) describes, when it comes to asylum, the control policies of Western immigrant-receiving countries are “schizophrenic” in that “great importance is attached to the principle of asylum but enormous efforts are made to ensure that refugees [. . .] never reach the territory of the state where they could receive its protection” (p. 2). What constitutes immigration control and how to measure it are questions that, particularly with respect to the latter, the existing literature provides little guidance. For example, in the United States, immigration policies such as the Immigration Reform and Control Act (IRCA) of 1986 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 simultaneously contain both permissive and restrictive components. As Christian Joppke (1998) describes, “IRCA carried its restrictionist intention in its name. It turned out, however, to be vastly expansionist” (p. 273). Immigration policy, broadly conceived, seldom fits neatly onto a permissive to restrictive scale. Moreover,

14  immigration control in the age of migration

immigrant inflows have often been used as a measure of immigration control. While this was, perhaps, a practical necessity given the lack of comparable cross-national data, the use of flows as an indicator of control is particularly problematic given these data insufficiently capture unauthorized flows, aggregate multiple categories of more or less wanted and unwanted immigration (e.g., skilled and unskilled immigration), and provide only modest insights into immigration enforcement processes. Moreover, as Figure 1.1 shows, despite the restrictive turn in immigration control in recent years, immigrant inflows to the United States have remained largely steady and inflows have increased across the European Union for much of the past decade, declining only with the global economic downturn of 2008 and 2009. In other words, immigrant flows paint only part of the portrait of immigration control. Moreover, substantial disagreement exists over the depth of the deterrence objective of immigration control. For example, one of the immigration policy priorities among policymakers in the United States is the idea of “operational” or “effective” control. The Secure Fence Act of 2006, which authorized 700 miles of fencing along the U.S.-Mexico border, defines operational control 3.5

Annual immigration (in millions)

3 2.5 2 1.5 1 .5 0 2000

2001

2002

2003

2004

2005

2006

United States Figure 1.1 

2007

2008

2009

2010

European Union

Annual immigration to the United States and European Union, 2000 –2011

source: OECD International Migration Database and Eurostat.

2011

immigration control in the age of migration 15

as the “prevention of all unlawful U.S. entries.”8 In contrast, U.S. Customs and Border Protection (CBP), which is at the front lines of external U.S. immigration control efforts, defines its mission as not preventing all unlawful entries, but rather it is to establish a “substantial probability” of apprehension (2004). The comprehensive immigration reform bill passed by the U.S. Senate in 2013 adds an additional wrinkle by requiring a 90 percent “effectiveness rate” at the border, which means that nine out of every ten unauthorized entries are detected and deterred. In Europe, an official for a EU-wide immigration enforcement agency interviewed for this study notes that the goal of immigration control is not to reduce unauthorized flows down to zero, as this would likely force highly motivated and determined migrants, as well as traffickers, to adopt riskier and more dangerous tactics.9 Indeed, the meaning of immigration control is not only a subject for academic debate, as definitional controversies exist even between policymakers and immigration enforcement bureaucrats within the same country. In the remainder of this chapter, I provide a detailed chapter-by-chapter overview of the book, identifying the distinct blends of factors that “matter” for the immigration control mechanisms under study. But before doing so, I discuss and hopefully dispel the notion that there is not much to explain about immigration control policies or their outcomes, given “illegal” simply means “illegal.” Those who follow immigration politics closely will have undoubtedly heard this expression, as it is a popular catch phrase that is often used in (stunting) discussions about immigration or in response to questions that are critical of attrition through enforcement or “self-deportation” policies. The logic is simple: unauthorized immigrants should be identified, apprehended, and deported without room for deviation because their mere presence represents a violation of the law. Hence, “illegal means illegal.” However, a closer look at how immigration control unfolds and works on the ground reveals far greater depth and complexity than this simplistic view assumes or permits. “Illegal” Does Not Simply Mean “Illegal”

In the public debate doing something about unwanted immigration and, in particular, unauthorized immigrants who are already in the country, often means intensified apprehension, detention, and deportation efforts. In the United States, for example, “Operation Wetback” in 1954 featured large-scale coordinated immigration sweeps, vehicle checkpoints, workplace raids focused mostly in the agricultural sector, identification checks of “Mexican-looking”

16  immigration control in the age of migration

persons, and door-to-door checks in immigrant communities (Massey, 2007). This was done largely in response to the over 200 percent increase in unauthorized border crossings along the U.S.-Mexico border in the years immediately following World War II. Under the direction of a retired army general Joseph Swing, the U.S. Immigration and Naturalization Service (INS) began largescale immigration sweeps first in California and Arizona, before moving north into Utah, Nevada, and Idaho and east to Texas. During these sweeps, “doing something” about unwanted immigration came to resemble a military undertaking. From June to July 1954, over 50,000 people were apprehended in California and Arizona alone. In Texas, the INS recorded 80,000 apprehensions by September. In all, an estimated 1 to 1.2 million Mexican nationals left the United States in order to avoid being deported. Those who were apprehended by the INS were placed on buses, trains, and ships that took deportees deep within Mexico in order to increase the difficulty of their return. Two ships that were used during the operation, the Emancipation and the Mercurio, ferried deportees from Port Isabel, Texas, 500 miles south to Vera Cruz, Mexico. According to some accounts, by the late 1950s, unauthorized border crossings plummeted by an estimated 95 percent. The conduct of the INS during the mid-1950s illustrates the basic view of immigration control, wherein unauthorized immigrants are apprehended using whatever means necessary, detained, and then promptly deported. But these sorts of intensive immigration control efforts are the exceptions, not the rule. “Operation Wetback” is exceptional in its military-like conduct, as well as in its disregard for the fundamental rights of those unfortunate enough to find themselves on the wrong end of an INS raid or immigration sweep. As recent history now admits, the operation resulted in the deportation of “Mexican looking” American citizens (Massey, 2007). Still, immigration control efforts such as these continue to be popularly viewed as the solution to the “problem” of unwanted immigration. One recent news article recalling “Operation Wetback” expresses this sentiment clearly, as it is titled “How Eisenhower Solved Illegal Border Crossings from Mexico.” However, such efforts belie how the contemporary practice of immigration control often works on the ground: put simply, migrants who are known to be in irregular circumstances are not always apprehended and those who are apprehended are not always deported. Nonapprehension

Despite hardline attitudes that “illegal means illegal” those who are known or are suspected of being unauthorized or in an irregular situation are not always

immigration control in the age of migration 17

the direct objects of immigration control. Take the example of unauthorized migrant street vendors at the Milano Centrale train station in Milan, Italy. Like most train stations in large European cities, inside the bustling Milano Centrale is a sort of ordered chaos that belies the hurried pace of the comings and goings of the people there. That the frenzied movement of people inside the station is actually tuned into a more mundane rhythm of arrivals and departures is, in many ways, a reflection of the drama of immigration control that unfolds just outside of the main ticket office of the station. The main entrance to the Milano Centrale is an architectural entryway that consists of three, impressively massive (several stories high) openings separated by Roman style columns. On either side of the main entryway are smaller, less ornate openings that stretch across the width of the station. There is a large open square just outside of the main entrance that separates the Milano Centrale from the street in front. Just inside of the main entrance, there is an open walkway that leads to the main ticket office. The walkway also stretches across the width of the station. At time t, a group of Guardia di Finanza, or “Financial Guard,” stands by their vehicles, which are parked in the square just outside of the main entrance. The competencies of the Guardia di Finanza, a police force with a militarylike bureaucracy, include financial crimes and smuggling, as well as irregular migration and customs and border inspections. A short distance away, there is a group of mostly South Asian, more specifically, Bangladeshi and Pakistani, street vendors selling toys and other items just inside of the main entrance. Most, if not all, of the street vendors either are, or are assumed to be, unauthorized migrants. At time t + 1, three Guardia di Finanza approach the group of street vendors. At time t + 2, the group disperses and moves away from the encroaching officers. At time t + 3, the Guardia di Finanza, seeing that the group has dispersed, stop short of the main ticketing area of the train station. At time t + 4, the three officers turn around and start walking back towards the square just outside of the main entrance where their vehicles are parked. As soon as the officers turn back, the street vendors begin slowly returning to their original positions just inside of the main entrance. This takes all of about five minutes to unfold and repeats several times during the course of an hour. Despite awareness of the presence and activities of the street vendors, the officers act only as if to remind the migrants that they are there. There is no apparent sense of urgency among the officers to apprehend the migrants. In fact, it is the dissonance created by their leisurely pace amidst the hurried and sometimes

18  immigration control in the age of migration

hectic movement of people in and around the station that makes the Guardia di Finanza stand out more so than their distinct uniforms. On the other hand, the presence of the Guardia di Finanza has a very real effect on the street vendors. One of them, a twenty-eight-year-old Bangladeshi who has lived in Italy for two years, had a palpable sense of anxiety as I spoke with him.10 Early on in our conversation, his eyes remained fixed on the officers. His stare was broken only by a quick look over his shoulder every few moments. Given his demeanor, I felt obligated to discontinue my questioning. However, as the other street vendors began emerging from behind the many Roman style columns that flank the station’s main entrance, making their way back to their original selling places, his demeanor visibly changed. As I looked around for the Guardia di Finanza, I saw that they were back at their original positions by their vehicles in the square. In no more than ten minutes, the precariousness of one’s illegality transformed from an abstract concept to one of deep consequence, and then to a sort of anticlimactic surrealism. It is abstract in that this drama of immigration control unfolds within open view of a public that is mostly unaware of its role as the backdrop. Regarding consequence, one needs only to look into the eyes of an individual who has everything to lose to feel the enormity of what it means to be “illegal.” And, as the spectacle of immigration control repeats itself, be it in Milan or elsewhere, it becomes clear that the constant threat of deportation that unauthorized immigrants confront is an entirely engrossing upheaval of emotions that builds and fades, almost incessantly, and relents only with apprehension, detention, or deportation. The surreality of this constant is not just the threat of deportation, but also the uncertainty of being. Nondeportation

In addition to nonapprehension, even those unauthorized immigrants who are apprehended are not always deported. The situation of migrants in Calais, France, provides an illustrative example. The northern French port of Calais is the main ferry crossing connecting France with Britain. Over the past decade, Calais has become a collection point for asylum seekers and other unauthorized immigrants who travel across Europe to Calais in the hopes of reaching the United Kingdom. For many of these migrants, Calais is the last stop in a long, and often treacherous journey that includes escape from persecution or conflict and encounters with human traffickers. The migrants in Calais want to be in the United Kingdom for many

immigration control in the age of migration 19

reasons. Some think that it has more favorable asylum rules, others are trying to reunite with family members or friends who are already there, many already speak English and believe that life in the United Kingdom will be easier to adapt to, while others think that it will be easier to find work in London’s ­underground economy. In my conversations with an official from the United Nations High Commissioner for Refugees (UNHCR) office in Paris, he pointed out that from Calais, one could actually see the white cliffs of Dover across the English Channel; in other words, the migrants in Calais can actually see that the end of their journey is within reach.11 The reality, however, is that many of Calais’s migrants never make it to the United Kingdom. For what many imagined would be only a short, temporary stay, quickly turns into months, and even years. Living in Calais can be extremely difficult. Calais’s migrants sleep in the city’s parks, underneath bridges, and in makeshift camps that the UNHCR describes as squalid and filthy.12 Moreover, because they are unable to legally obtain work, the migrants in Calais are forced to rely on local charities for food and clothing. During my time there, I was able to experience life as an irregular migrant: walking through the city’s streets, eating at the lunch food distribution site, standing at the docks watching the trucks drive by, washing my hands and arms where the migrants wash their hands and arms, standing in line for the dinner distribution, and laying my head down on a park bench as night fell. In 1999, the Red Cross established a reception center to provide food and shelter in Sangatte, which is just outside of Calais’s city center. Sangatte hosted as many as 1,500 persons at one time and more than 5,000 persons passed through the shelter between 1999 and 2002. In 2002, over concerns that Sangatte had become a magnet for unauthorized immigrants, the center was closed. Closing the center, however, did not deter migrants from coming to Calais. On September 22, 2009, French authorities, including some 600 police officers, raided what had become known as the “jungle,” Calais’s largest migrant camp. The raid led to the arrest of 278 persons. As bulldozers cleared the “jungle,” French immigration minister Eric Besson declared that Calais would no longer be a magnet for Europe’s unauthorized immigrants. Despite this highly publicized spectacle, the weekend following the raid, over 100 migrants were back in Calais for the lunch food distribution. Moreover, only two weeks later, nearly all of the 278 who were arrested were released. The case of Calais illustrates something fundamental about the practice of immigration control. As I walked through the streets of Calais with an

20  immigration control in the age of migration

e­ ighteen-year-old Eritrean migrant, a police car drove by.13 My first thought was that we needed to start running. However, he did not flinch. As the police car passed, he said that it is not the police that you need to run from, but the Compagnies Républicaines de Sécurité (CRS), the French riot police. He knew the rules of the game with respect to immigration enforcement. For those who raise suspicion by running the police will give chase, but to the extent that one keeps his or her head down and stays out of trouble, the police in Calais, much like police elsewhere, tend not to prioritize matters of immigration control.14 Moreover, when the CRS do come into the city for the purposes of immigration enforcement, which they often do at dawn or under the cover of night, what results is not what one might expect. As the Eritrean migrant told me, when the CRS make an apprehension, “they put you in the van and drive you to the station [southwest in Coquelles], ask you questions about where you’re from, why you’re here. They tell you that you’re not allowed to be here, but then they just let you go.” I asked if this has happened to him. He replied, “Yeah. It’s a long walk back.” The distance from the Centre de Rétention Administrative in Coquelles to Calais is three miles. The eighteen-year-old Eritrean migrant is, in effect, nondeportable. As with most countries that lack a democratically elected government, legislature, and an official constitution, France does not have a bilateral readmission agreement with Eritrea. In other words, the two countries have not agreed to cooperate in order to facilitate the deportation or return of their respective nationals. France thus cannot deport him because the Eritrean government has not agreed to accept him. Moreover, a recent Amnesty International (AI) report finds that deportation to Eritrea risks the torture and even murder of returned individuals (2008, 2013); in this particular case, deportation thus further risks violating the principle of non-refoulement. An added dimension here is that, while France is aware that many of Calais’s migrants have legitimate claims to asylum— indeed, much of the work of the UNHCR and its local partners in Calais is raising awareness among the migrants there of their opportunities to file an asylum application in France—it is also aware that their preferred country of destination is the United Kingdom. As a result, while many of the migrants in Calais are essentially nondeportable, the French government is in no hurry to take in what could amount to thousands of new asylum claims. These are by no means isolated examples, as nonapprehension, nondeportation, and other similar outcomes are deeply woven into the fabric of the machinery of immigration control. Research on “catch and release” in the

immigration control in the age of migration 21

­ etherlands and Belgium shows that some unauthorized immigrants have been N let go after their initial apprehension because of insufficient detention capacity (Broeders and Engbersen, 2007). Joanne van der Leun (2003) also describes how public officials in the Netherlands provide various public services to unauthorized immigrants despite national immigration policy that forbids this. In another example, Antje Ellermann (2009) directs attention to the varying levels of discretion that street-level immigration bureaucrats have in carrying out the work of immigration control in a comparative study of Germany and the United States. “Illegal means illegal” is thus too simplistic of an approach to use if we are to understand how states control immigration, as the scope, intensity, and even the intent of immigration control policies are outcomes that are shaped and reshaped by particular constellations of factors that simultaneously implicate politics, the economy, and broader societal factors. The Road Ahead

The approach of this book is to analyze immigration control, first at the broadest level of international human rights law and then in comparative perspective across Western immigrant-receiving democracies. The focus on Western immigrant-receiving democracies is important given these countries are not only home to over half of the global international migrant population, but they also have what are arguably the most defined immigration control regimes. Moreover, variation across these countries with respect to migratory pressures (e.g., levels of immigration), political contexts, including electoral systems and the strength of far-right political parties, and economic conditions, provide for a great deal of analytical leverage. At each level of analysis, I use illustrative examples to motivate discussion of the particular mechanism being studied, identify common theoretical explanations for the mechanism, and then test the empirical validity of these explanations in order to better understand the dynamics at play. Chapter 2 begins by examining what the human rights of migrants are as a matter of international human rights and customary law, focusing on rights in the context of deportation and immigration detention. The restrictiveness of immigration control continues to raise serious human rights concerns, particularly as migrants, asylum seekers, and refugees are increasingly criminalized, detained, and deported with minimal regard for their basic rights (see, e.g., Amnesty International, 2006, 2009; Fekete, 2005; Fernandes, 2007; Jesuit Refugee Service [JRS], 2010; Kretsedemas and Brotherton, 2008;

22  immigration control in the age of migration

UN ­Human Rights Council [HRC], 2011). I draw from several historical and recent examples—from the refoulement of Jewish refugees during World War II to the mass deportation of Roma by the French government in 2010, as well as the ongoing detention of migrants in Greece in conditions that the European Court of Human Rights (ECtHR) has found to amount to inhuman and degrading treatment and punishment—to dramatize the human rights and immigration control wrongs that animate much of the contemporary debate. I then examine what role, if any, the human rights of migrants play when it comes to immigration control. I investigate this question by analyzing trends in, as well as the determinants of, ratification of international human rights treaties that require states to extend basic human rights protections to noncitizens focusing on the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). I choose to focus on the ICRMW because it confers rights to migrants irrespective of their immigration status. Chapter 2 combines a global quantitative analysis of 162 countries from 1990 (the year the treaty was opened for signature) to 2009 with interviews with representatives of intergovernmental organizations (INGOs) and nongovernmental organizations (NGOs), as well as with insights from my own participation in a United Nations Office of the High Commissioner for Human Rights (OHCHR) conference on migrant workers held in Geneva, Switzerland, in 2009. I argue that because treaties such as the ICRMW impose high sovereignty costs on states, meaning they increase the distance between what states want to do with respect to immigration control and what they can do as parties to these treaties, they are not likely to be ratified. Consequently, emergent human rights norms related to noncitizens have yet to become fully instantiated in the domestic legal frameworks that govern the machinery of immigration control. As an immigration enforcement official in one of the largest immigrantreceiving countries in Europe notes, states are cautious about extending rights to unauthorized immigrants because doing so may result in increased irregular migration.15 In this age of migration, it appears that the negative affirmation of the noncitizen’s right to have rights has woven its way into the logic of immigration control. Chapter 3 moves from the international level to a comparative analysis of immigration control, starting first with the analysis of deportation. Deportation is one of the most “heavy-handed” tools that states wield (Ellermann, 2006, 2009). It serves as a “powerful tool of discretionary social control” (Kanstroom,

immigration control in the age of migration 23

2007a, p. 201; see also Kanstroom, 2007b, 2012). Moreover, as Lauren McLaren (2003) writes, “Perhaps the ultimate negative attitude toward a socially defined group is a willingness to expel members of the group from society” (p. 917). While comparative research on deportation has emerged in recent years, for example, with Ellermann’s (2009) study of Germany and the United States and Kay Hailbronner, David A. Martin, and Hiroshi Motomura’s (1998) study of the same two countries, few studies have examined contemporary trends in deportation or their determinants across countries and over time. What are the politics and determinants of deportation? Chapter 3 investigates this question by analyzing data collected across twenty-five immigrant-receiving countries from 2000 to 2009. To facilitate the analysis, I introduce new ways of operationalizing and measuring immigration control using deportation. This represents one of the first systematic, cross-national, and over time studies of contemporary trends in deportation and its political, economic, and migration-related determinants. Before proceeding to the analysis, Chapter 3 provides a brief history of deportation, focusing on its political use. From the deportation of conquered peoples by the Assyrian and Roman Empires to what historian Robert Conquest (1970) describes as the “deportation of nationalities” during Joseph Stalin’s Great Purge, deportation has held a prominent role in the creation, expansion, and defense of state and nationhood. This brief look into the modern history of deportation shows that many of the core characteristics of the contemporary machinery of deportation—the reification of groups as deportable, provisional forms of detention, a purposive bureaucratic apparatus, and an infrastructure to effectuate the physical removal of people—have many historical precedents. From here, I move on to the analysis. The empirical analysis of deportation employs a more traditional comparative framework, which focuses on the domestic roots of immigration policy. In analyzing why states do what they do with respect to deportation, I argue that while the economic and societal implications of immigration may harden public attitudes, thus increasing the demand for greater policy restrictiveness, the extent to which this demand is translated into policy outcomes fundamentally hinges on the political landscape in which the politics of immigration plays out. In other words, public preferences do not directly translate into immigration control outcomes, as political institutions mediate these preferences. More specifically, electoral institutions play a role in channeling restrictive preferences over immigration into policy outputs by providing opportunities for the

24  immigration control in the age of migration

legislative representation of far-right political parties. Here, the analysis proceeds in two main parts. First, I analyze the relationship between the legislative representation of the far right and deportations. The data indicate that as the share of legislative seats held by far-right parties increases, so too do deportations. Though significant in and of itself, this finding leaves unanswered the extent to which the relationship between the far right and immigration control is due to restrictive, anti-immigration public preferences, which gives rise to and lends support for the far right, as opposed to the political opportunities created by the electoral institutions that provide avenues for their legislative representation. My second step is thus to unpack this finding. In doing so, I find that support for far-right political parties, as measured by the share of votes they receive in elections, is associated with increased deportations in proportional representation electoral systems but not in majoritarian ones. Chapter 4 continues with the comparative analysis of immigration control, moving next to immigration detention. Immigration detention is another prominent, yet understudied cog in the machinery of immigration control. This chapter proceeds in two main parts. First, I discuss the labyrinthine processes of immigration detention, wherein the initial steps of presuming illegality can be a haphazard or even deliberate exercise in racial and ethnic discrimination involving elaborate efforts to verify identity using biometrics, DNA testing, language analyses, and even the analysis of bone age using X-rays. Here, I argue that the “identification problem” that states face when attempting to substantiate unauthorized immigration status has resulted in a general fixation on disproving asylum claims in order to justify detention and to facilitate deportation above other, mostly humanitarian considerations. This has, at times, resulted in those who have legitimate claims to asylum, including torture survivors, trafficking victims, and others, being detained along with so-called bogus asylum seekers and even criminals. I describe conditions of immigration detention in the United States and in Europe, including cases of death during detention, as well as mounting international case law that condemns the immigration detention practices of prominent immigrant-receiving democracies, to concretize the important human rights implications at stake. The second part of the chapter then turns to the empirical analysis. Despite pressing human rights and international legal claims, immigration detention continues to expand mostly unabated. But while immigration detention has become an increasingly prominent component in the machinery of immigration control, it remains unclear what explains its prevalence

immigration control in the age of migration 25

across Western immigrant-receiving democracies. In other words, just how widespread is this practice? Moreover, while the immigration-industrial complex is rapidly expanding in some countries with new immigration detention facilities being built to accommodate increasing demand, this is not the case for all of the countries that are currently experiencing large-scale immigration. What explains these cross-national variations? These questions have gone mostly unanswered in the literature. I thus use new comparative data on immigration detention to address this gap. I use these data to explore the political, economic, and migration-related factors that explain the prevalence and use of immigration detention across the same sample of countries analyzed in Chapter 3. I note here that this analysis is mostly descriptive, as cross-national data collection on immigration detention is a nascent process that currently lacks the key over time component that allows for the type of rigorous analysis applied to deportation. In addition to improving our understanding of why states do what they do when it comes to immigration control, strong demand exists, particularly among policymakers, for research about the impact of these policies. Chapter 5 thus analyzes whether the increased restrictiveness of immigration control reduces unwanted immigration. Despite its fundamental policy importance, this question remains almost entirely unanswered in the scholarly literature. Wayne A. Cornelius and Idean Salehyan’s (2007) study of border enforcement and unauthorized Mexican immigration to the United States and the deterrence index that Eiko Thielemann (2004) constructs in analyzing asylum inflows are notable exceptions. Moreover, while there is a large and growing library of research that examines the factors that facilitate or inhibit the movement of people across borders (Ravenstein, 1885, 1889; see also Breunig, Cao, and Luedtke, 2012; Hatton and Williamson, 2005; Hooghe et al., 2008; Mirilovic, 2010), few studies have directly examined the relationship between immigration control and migratory inflows (whether wanted or not). Chapter 5 analyzes data on immigrant inflows and asylum inflows across the same sample of countries studied in Chapters 3 and 4, as well as the same time period studied in the analysis of deportation. Chapter 5 argues that because tighter immigration controls do not fundamentally change the motives of migrants, the increased restrictiveness of immigration control does not necessarily mean less unwanted immigration. Using deportations as an indicator of immigration control, and while controlling for the most enduring explanations given for immigration, the analysis provides

26  immigration control in the age of migration

evidence to support this argument. The data indicate that increased restrictiveness is not significantly related to immigrant inflows and is only weakly related to asylum inflows. These results add to the growing skepticism over whether current modes of immigration control actually deter unwanted immigration. Chapter 6 reviews the main empirical findings and then discusses the territory that remains uncharted in the study of immigration control.

2

Human Rights and Immigration Control Wrongs

We are all equally entitled to our human rights without discrimination [. . .] Non-discrimination is a cross-cutting principle in international human rights law [. . .] The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a non-exhaustive list of categories. —Office of the High Commissioner for Human Rights

It is the responsibility of the State, regardless of the legal status of the migrant, to ensure that fundamental human rights norms are adhered to and that all migrants are treated with dignity, and their obligation to respect and protect the human rights of all those within its territory, nationals and non-nationals alike, regardless of mode of entry or migratory status. —Special Rapporteur on the Human Rights of Migrants

Noncitizens and the Limits of Human Rights

In 2009, the United Nations Office of the High Commissioner for Human Rights organized a day of discussion, wherein UN agencies, INGOs, and NGOs came together to discuss existing international legal protections for migrant domestic workers and the need for bolstered human rights protections. Migrant domestic workers, particularly female workers, are a vulnerable group, as they experience widespread physical, sexual, and psychological abuse (United Nations Commission on Human Rights [CHR], 2004). The conference was organized with the goal of providing concrete recommendations with respect to the protection of the rights of these workers. Toward this end, the opening session of the conference included personal testimony from a female migrant domestic worker. As she spoke about migrating from Cameroon to Italy and about her experiences working in the underground economy of domestic household work, it was clear that, for the most part, her story was capturing the attention of the audience. However, during her testimony, as I surveyed 27

28  human rights and immigration control wrongs

the large, crowded, and bustling conference room, what was most notable to me was entirely unrelated to what was being said. Almost directly across from where I was sitting, one of the government representatives in attendance was fully asleep. Human rights apply to everyone without discrimination. As the OHCHR describes, this “cross-cutting” principle in international human rights law prohibits discrimination in rights on the basis of a nonexhaustive list of categories, including immigration status. The incorporation of this and other core human rights principles in international law, institutions, and discourse reflects not only the power and influence of human rights but has also been taken as evidence of a human rights norms cascade, wherein a fundamental change has occurred in the allowable ways in which governments can act toward those within their borders (Finnemore and Sikkink, 1998). Over the past half-century, human rights discourse has broadened. The nine “core” treaties that comprise the postwar international human rights regime, which includes the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, are accompanied by human rights instruments related to indigenous peoples, the elderly, and persons with disabilities, among others.1 However, between normative discourse and state practice are often chasmal gaps. As the government representative’s literal and figurative inattentiveness to the issue of protecting the rights of migrant domestic workers alludes to, states have been especially reluctant to recognize and extend rights to noncitizens. Moreover, in reference to postcolonial migration to France, the United Kingdom, and the Netherlands, where migrants from former colonies have often met with racism and discrimination, Andrew Geddes (2003a) reminds us that “the formal extension of rights should not be confused with the ability to utilize these rights” (p. 16). Why are states, particularly Western industrialized ones, reluctant to support measures designed to strengthen and protect the human rights of migrants? My answer centers on the sovereignty costs (either real or perceived) that such measures place on state practice when it comes to immigration control. I develop and provide evidence in support of this argument in the empirical analysis below. As we will see, human rights norms related to noncitizens, including basic rights during deportation and detention processes, have yet to become fully instantiated in the domestic legal frameworks that govern the machinery of immigration control. But more than this, the reluctance of states to ratify international human rights treaties related to noncitizens, coupled

human rights and immigration control wrongs 29

with increasingly restrictive immigration control policies, have revealed what some have referred to as a crisis of human rights, wherein human rights are administered almost exclusively as the rights of citizens to the exclusion of others (Baubock, 1994; Benhabib, 2004; Brysk, 2002; Brysk and Shafir, 2004; Cole, 2006; Krause, 2008; Maher, 2002). The continued expansion of the machinery of immigration control has thus made it critically important to scrutinize the inclusiveness of human rights and to evaluate the extent to which these rights can transcend the rigid boundaries of citizenship in order to encompass noncitizens, including unauthorized immigrants and other “people out of place.” This chapter provides a primer on the human rights of migrants. As the human rights of unauthorized immigrants motivate this chapter, I start with a brief discussion of the normative debate over who, as Hannah Arendt famously put it, has a “right to have rights.” After outlining the main contours of this debate, I move away from the normative and the theoretical by describing the evolution of the human rights of migrants under international human rights law, focusing on the ICRMW. What exactly are the human rights of migrants? Examples of human rights and immigration control wrongs are used to illustrate what these rights are, as well as their importance. This is followed by the empirical analysis. Immigration Status and the “Right to Have Rights”

Do unauthorized immigrants have a right to have rights? As it has become a political category unto itself, unauthorized immigration status has legitimized the societal exclusion and marginalization of the “unwanted” immigrant. Moreover, as the United Nations Special Rapporteur on the Human Rights of Migrants (Special Rapporteur) adds, the criminalization of being in a country without adequate documentation “makes all migrants, regardless of immigration status, potentially vulnerable to racist or xenophobic acts” (HRC, 2011, p. 6). But while they are subject to the full coercive capacity of the state, their personhood is recognized only insofar as they can become constituted as objects of control, and not subjects of rights. Thus, to some, they do not have legitimate claims to the rights and protections of citizens; that by virtue of their “illegality” they do not have a right to have rights. These boundary-based citizenship arguments can be distinguished as either membership or consent based. Hannah Arendt’s The Origins of Totalitarianism (1966) illustrates the

30  human rights and immigration control wrongs

former and Peter Schuck and Rogers Smith’s Citizenship Without Consent (1985) illustrates the latter. Writing in the aftermath of the Holocaust, Arendt was skeptical about whether universal human rights could be incorporated into the national legal frameworks of sovereign countries embedded in a system of unitary nationstates.2 In a chapter aptly titled “The Decline of the Nation-State and the End of the Rights of Man,” Arendt argued that while human rights are commonly identified as being inalienable, “the moment human beings lacked their own government and had to fall back on minimum rights, no authority was left to protect them and no institution was willing to guarantee them” (pp. 291–292). Individuals, Arendt wrote, could lose their human rights but still retain their dignity. However, in the absence of a government to protect them, even one’s last vestiges of dignity could be stripped away. According to Arendt, “Man, it turns out, can lose all so-called Rights of Man without losing the essential quality as man [. . .]. Only the loss of a polity itself expels him from humanity” (p. 297). Thus, the “calamity of the rightless,” as she eloquently puts it, is that these people do not belong to any political community. To Arendt, then, the primary source of rights is membership in a political community. Do unauthorized immigrants exist within the boundaries of political membership? Or are they outside of citizenship’s reach? To Schuck and Smith (1985) this question is one that is to be determined by the citizens of the polities where migrants reside. The authors argue for what they describe as a “consensual” approach to citizenship, wherein one’s membership status depends intersubjectively on the extent to which her host polity recognizes her as a member. Citizenship, in other words, is the product of mutual consent between the polity and the individual. For unauthorized immigrants this consent is, in their view, unilateral, as their ascribed illegality implies the absence of consent by the host polity. Thus, they are outside of citizenship’s reach and the rights and protections accorded therein. This, according to Christina Boswell (2008), reflects a “historically evolved compact” between citizens and states, wherein citizenship’s exclusions serve broader instrumental and legitimating purposes: by limiting and privileging access to certain rights and protections to citizens, states are thus able to ensure loyalty and compliance. For Boswell, this explains why unauthorized immigrants are necessarily constituted as “illegal” and intensifies the importance of immigration control. She writes, “It is hardly thinkable that a state could publicly renounce this aspiration [to control immigration] and retain legitimacy” (p. 188).

human rights and immigration control wrongs 31

As boundary-based notions of citizenship risk the permanent exclusion of entire categories of migrants and deprive those who may have legitimate claims to membership of their rights, strong counterarguments have developed. In The Rights of Others, Seyla Benhabib (2004) argues for what she calls a “moral universalism,” wherein citizens, noncitizens, and stateless persons would all be regarded equally in rights. This moral universalism would obviate distinctions in migratory status and would lay the basis for what she sees as the creation of a system of just membership and inclusion. As Benhabib writes, this system would recognize the “moral claim of refugees and asylees to first admittance; a regime of porous borders for immigrants [. . .] and the vindication of every human being ‘to have rights,’ that is, to be a legal person, entitled to certain inalienable rights” (p. 3). Such a reconceptualization of political membership, she continues, is more closely aligned with democratic ideals than are existing conceptualizations, as the marginalization and “permanent alienage” of noncitizens is simply “incompatible with a liberal-democratic understanding of human community” (p. 4). Others have also related the exclusion of migrants to broader issues of democratic legitimacy. As Joseph Carens (2008, 2013) argues, unauthorized immigrants—in fact, all persons irrespective of their migratory status—derive legitimate claims to the rights of membership from the ties they establish with their communities as a result of their residence. For them, their source of rights is not a draconian polity that imagines itself through exclusionary immigration policies; rather, their rights stem from their presence within their communities and the human bonds that develop and cement over time. Whatever their migratory status, people who live in a society become members of that society, as their lives intertwine with, and their histories become a part of, the broader societal fabric. It is this connection that provides the basic contours of rights that states must guarantee. Impassioned debate about the right to have rights will undoubtedly persist as the movement of people across borders continues to push against the boundaries of membership and collides with the inviolability of national identity. My purpose here is not to resolve this debate; instead, I outline its core features in order to move us away from its foreseeable and intractable ends. Normative and theoretical debates about the rights of others have raised new and important questions for empirical research. Whereas migrant illegality has, at least in popular discourse, been sufficient for stunting discussion about the rights of unauthorized immigrants, the quotidian response that “illegal means

32  human rights and immigration control wrongs

illegal” overlooks the rights and protections that already exist in international human rights and customary law. It is thus not simply a matter of whether unauthorized immigrants have a right to have rights, but what are these rights and to what extent have states recognized them? The Elusive Rights of Migrants

In 1999, the UN mandated a Special Rapporteur with the responsibility of ensuring the full and effective protection of the human rights of migrants. The mandate of the Special Rapporteur for the Human Rights of Migrants grew, in part, from the recommendations of a Working Group of Inter-­Governmental Experts on the Human Rights of Migrants (Working Group). The group met for two periods of five workings days each during the 54th session of the General Assembly of the United Nations (General Assembly). These sessions included public and private meetings with government representatives, UN bodies and specialized agencies, INGOs, and NGOs. A large majority of the participants in these sessions supported the creation of a special rapporteur on the question of migrants, the United States being an exception. The Working Group also identified several institutional, social, and economic obstacles to the full realization of the human rights of migrants, including the absence of universal standards and norms in national law that “explicitly recognize and extend to migrants basic human rights” (CHR, 1999, p. 18). On this point, the Working Group concluded that it is incumbent on all states to respect the human rights of migrants, irrespective of their status. It also urged states to ratify international human rights treaties related to noncitizens and, where international human rights standards have already been incorporated into national law, to explicitly extend these rights to migrants. Over a decade into the work of the Special Rapporteur, progress has been minimal and uneven. In his 2011 annual report, the Special Rapporteur observes that while some rights that have become “disconnected” from citizenship in many democratic states, “insufficient progress has been made in mainstreaming human rights into migration governance” (HRC, 2011, p. 16). For example, the Special Rapporteur makes reference to many of the rights articulated in the 1985 Declaration of the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live (Declaration on Non-Nationals). The Declaration on Non-Nationals, however, does not explicitly refer to migrants in irregular situations and reserves certain rights (e.g., the right to safe and healthy working conditions, fair wages, the right to join trade unions, the right

human rights and immigration control wrongs 33

to health protection, medical care, social security, and education, among others) for “aliens lawfully residing in the territory of a State” and only if “undue strain is not placed on the resources of the State.” Thus, this exiguity of progress is most pronounced in the unwillingness of states to support international human rights treaties that articulate and protect the rights of unauthorized immigrants.3 The centerpiece of international human rights law as it relates to unauthorized immigrants is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. While other instruments, particularly the Geneva Convention on the Status of Refugees (Refugee Convention), are more widely relied on and referred to as a matter of legal practice, no treaty goes as far as the ICRMW does when it comes to blurring distinctions in rights based on migratory status.4 The origins of the ICRMW trace back to the early 1970s when the United Nations Economic and Social Council (ECOSOC) expressed alarm at the exploitation of migrants, particularly African migrants in Europe, in what it referred to as “conditions akin to slavery and forced labor” (ECOSOC, 1972). In 1972, the General Assembly passed a resolution that condemned discrimination against migrant workers. That same year, the summary deportation of nearly 60,000 Asians from Uganda—known as the “Asian expulsion”—further highlighted the need for strengthened rights protections for noncitizens (Grant, 2011). More specifically, the Asian expulsion made clear that the principle of nondiscrimination, at least as it was understood at the time, was insufficient for preventing states from abusing the rights of noncitizens. In fact, in 1973, the United Nations Human Rights Commission Sub-Commission on the Prevention of Discrimination and Protection of Minorities called for a new international legal instrument to protect the rights of noncitizens. Then, on the heels of the 1978 World Conference to Combat Racism and Racial Discrimination, as well as another General Assembly resolution that called on states to ensure the protection of the human rights and dignity of migrant workers, the Open-ended Working Group, led by Mexico and Morocco, was formed to draft the ICRMW (MacDonald and Cholewinski, 2007). After the formation of the Open-ended Working Group in 1979, the 1985 Declaration on Non-Nationals added to the impetus of the ICRMW. The 1986 General Comment 15 on The Position of Aliens Under the Covenant provided further momentum toward the final drafting of the ICRMW. Here, the United Nations Human Rights Committee (UNHRC), the treaty body that oversees the International Covenant on Civil and Political Rights (ICCPR),

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unequivocally declared that the rights articulated in the ICCPR are to be guaranteed “without discrimination between citizens and aliens.” As the OHCHR describes, the Convention is the result of decades of international dialogue and cooperation (OHCHR, 2005; see also Bosniak, 1991). What sets the ICRMW apart from other international human rights instruments is its explicit reference to, and acknowledgement of, migrants who are in irregular situations. As the preamble to the Convention reads, the “human problems involved in migration are even more serious in the case of irregular migration.” While it makes a definitional distinction between authorized and unauthorized migrant workers, Article 1 states that the rights articulated in the Convention are applicable to all migrants and members of their families without distinction of any kind. Moreover, these rights apply during the entire migration process, including departure, transit, and the entire period of residence. Article 7 reiterates the principle of nondiscrimination and reminds parties to the Convention of their obligation to respect and apply it. How the ICRMW defines a migrant worker is also sufficiently broad to encompass unauthorized immigrants, as well as asylum seekers who fall outside of the protections of the refugee law, but who are similarly seeking “to be engaged in a remunerated activity.” Altogether, these points, depending on one’s perspective, are the greatest strengths of the ICRMW or its fatal flaw. As part of the strategy for the adoption of the Convention, the ICRMW links the protection of the rights of unauthorized immigrants to broader economic and policy issues. Specifically, strengthening and protecting the rights of unauthorized immigrants and providing them with recourse against exploitation reduces the incentives employers have to hire unauthorized workers and decreases unfair labor market competition. Moreover, the Convention views the extension of rights to migrants as an incentive for legal migration, wherein “granting certain additional rights to migrant workers and members of their families in a regular situation will encourage all migrants and employers to respect and comply with the laws and procedures established by the States concerned.” Part III of the ICRMW articulates the human rights of all migrant workers and members of their families. These rights include physical integrity rights, civil and political rights, as well as economic, social, and cultural rights. Many of these rights are not entirely controversial and are consistent with some of the most firmly entrenched principles of international human rights law. For example, the physical integrity rights in the ICRMW include the right to life,

human rights and immigration control wrongs 35

as well as prohibitions on slavery, servitude, and other forms of forced or compulsory labor. The civil and political rights include freedom of thought and religion, as well as freedom of expression. However, the Convention also contains several articles that bear directly upon the immigration control practices of states, thus creating sovereignty costs to its ratification. For example, Article 16(2) of the ICRMW prohibits the racial profiling of migrants, Article 25(3) requires states to ensure that rights of employment, including overtime, hours of work, weekly rest, holidays with pay, safety, and health, are not deprived “by reason of irregularity in their stay or employment,” and Articles 28 and 30, respectively, provide that the rights to emergency medical care and education are universal, irrespective of migratory status. These rights effectively render the strategy of attrition through enforcement illegal as a matter of international law—of course, this being contingent on ratification. The ICRMW was opened for signature in 1990 and entered into force in 2003. Over two decades into the life of the Convention, it remains one of the most poorly ratified human rights treaties. As of 2011, only 45 out of the 192 UN member states have ratified, a rate of about 23 percent. In comparison, the average rate of ratification at twenty years for the other core human rights treaties is 73 percent. Figure 2.1 compares the rate of ratification for the ICRMW with the other core human rights treaties. On first glance, the Convention’s poor ratification rate may reflect a slowing of the human rights “norms cascade,” or perhaps that states are more responsive to physical integrity rights than to other categories of rights. However, comparing the rate of ratification of the ICRMW to the newest human rights treaties provides a more striking contrast. Only five years into the 2006 International Convention on the Rights of Persons with Disabilities (CRPD), its ratification rate is already 55 percent. To many, the weak support for the ICRMW is unsurprising. However, this trend belies the gradual extension of fundamental rights to migrants that some have taken as evidence of a new, postnational model of political membership. In The Limits of Citizenship, Yasemin Soysal (1994) views the incorporation of foreign guest workers in Europe as marking a distinct shift away from traditional models of state-based and territorially bounded notions of citizenship. According to this perspective, postnational forms of membership have developed concomitantly with the emergence and evolution of the postwar international human rights regime, as the various instruments that comprise it, including legally binding international treaties, declarations, and supranational institutions, among others, endeavor to confer and protect the rights of

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Human rights treaty ratification rate

100 80 60 40 20

Ratification rate:

at 20 years

CRPD*

CPED*

ICRMW

CAT

ICESCR

ICCPR

ICERD

CEDAW

CRC

0

in 2011

Figure 2.1  Rate of ratification for the core UN human rights treaties source: United Nations Treaty Collection; author tabulations. note: The rate of ratification, meaning the percentage of all states in the UN system that have ratified a treaty, for the “core” human rights treaties at twenty years and in 2011. CAT, Convention Against Torture; CEDAW, Convention on the Elimination of All Forms of Discrimination Against Women; CPED, Convention for the Protection of All Persons from Enforced Disappearance; CRC, Convention on the Rights of the Child; CRPD, Convention on the Rights of Persons with Disabilities; ICCPR, International Covenant on Civil and Political Rights; ICERD, Convention on the Elimination of All Forms of Racial Discrimination; ICESCR, International Covenant on Economic, Social, and Cultural Rights; ICRMW, Convention on the Rights of All Migrant Workers and Members of Their Families. Note that the ratification rate for the CRC was higher at twenty years than in 2011. This is explained by the growth of the membership of the United Nations. *CPED and CRPD were open for signature in 2006.

all persons irrespective of their membership status in any state. These human rights instruments have, in effect, blurred distinctions in rights between citizens and noncitizens.5 Saskia Sassen (2003) similarly argues that the postwar human rights regime has fundamentally changed what was once a necessary connection between citizenship and the state by creating “operational and rhetorical openings for the emergence of new types of political subjects and new spatialities for politics” (p. 42). For example, human rights discourse has, to a varying degree, become a part of national immigration policy debates, new legal categories have been created for various migrant classifications, and new institutional venues exist wherein migrants can stake claims to their funda-

human rights and immigration control wrongs 37

mental human rights. Taken altogether, scholars writing within this tradition ­emphasize three main points. First, the increased movement of people across borders, specifically, the growing numbers of noncitizens settling permanently in their countries of destination, has required that states confront existing definitions of citizenship, as well as the ways in which legitimate political membership is constituted. Second, the prominence of international human rights norms and institutions has constrained these decisions by rendering the distinctions in rights between citizens and noncitizens less salient (see also Jacobson, 1996). And third, noncitizens are increasingly making claims to those rights that were previously reserved exclusively for citizens.6 But while the postnational view may explain the emergence and gradual development of international human rights treaties and instruments that articulate the human rights of migrants, it is unable to explain the seemingly intractable reluctance of immigrant-receiving countries to recognize them. While many agree that human rights do, indeed, promise more than citizenship rights, there exists a great deal of skepticism about the empirical validity of postnational forms of membership (Bloemraad, 2004; Fox, 2005; Guiraudon and Lahav, 2000; Joppke, 1998; Schain, 2009). Moreover, human rights violations in the context of immigration control make clear that the shift toward postnational membership is, at best, incremental and incomplete. As Patrick A. Taran (2001) puts it, because they are so widespread, violations of the human rights of migrants are among the defining features of contemporary international migration. In addition, when examining rights abuses in the context of deportation and immigration detention, we see that Western advanced industrialized democracies, states that are otherwise regarded as leaders when it comes to human rights, are directly implicated in these abuses. The next section thus provides examples of human rights violations in the context of immigration control. These examples are discussed in order to contextualize what the human rights of migrants are when it comes to deportation and immigration detention, as well as to dramatize the stark policy relevance and importance of these rights. Human Rights and Deportation Wrongs

Mass deportations in violation of international and regional human rights treaties, the deportation of citizens, and the refoulement of refugees provide glaring examples of human rights and deportation wrongs.

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The Mass Deportation of Roma from France

In 2010, former French president Nicolas Sarkozy’s government drew international condemnation for its mass deportation of Roma to Romania and Bulgaria. Eric Besson, who was the French immigration minister at the time, defended these actions against criticisms that the government was in violation of international and European human rights laws on the grounds that the Roma were not being specifically targeted and that the deportations were both consistent with French immigration laws and were part of a broader strategy to combat urban crime (BBC News, 2010). However, as a widely leaked memo from the office of the French minister of the interior stated, “Three hundred camps or illegal settlements must be evacuated within three months [of August 2010]; Roma camps are a priority [. . .]. It is down to the préfect in each department to begin a systematic dismantling of the illegal camps, particularly those of the Roma” (CNN World, 2010; see also Willsher, 2010). Despite the evidence of the memo and the further condemnation that ensued, which included a resolution passed by the European Parliament (2010) that urged the French government to “immediately suspend all expulsions of Roma” and to “reject any statements which link minorities and immigration with criminality,” the deportations did not end. The mass deportation of Roma by the French government violates the ICRMW. In addition to prohibiting mass deportations, Article 22 of the Convention further requires that each case of expulsion be examined and decided on individually, that people have the right to appeal their deportation and, pending their appeal, that they have the right to seek a stay in order to remain in the country. Article 14 further protects migrants from being subjected to arbitrary or unlawful interference with their families or homes, which problematizes, as a matter of international human rights law, the harm done when families are torn apart or uprooted as a consequence of deportation. The ICRMW is not alone in articulating human rights in the context of deportation. The 1950 European Convention on Human Rights (ECHR) also protects against mass deportations, though it does not go as far as the ICRMW in requiring that all cases of expulsion be examined and decided on individually. Protocol No. 7 of the ECHR (1984) further gives migrants the right to submit arguments against their deportation, to have their cases reviewed by competent authorities, and the right to legal representation. These rights mirror those articulated in the ICRMW, however, Protocol No. 7 also makes clear that these rights apply only to “lawfully resident aliens.” The 1969 American Convention

human rights and immigration control wrongs 39

on Human Rights (Pact of San Jose) and the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) both echo the ECHR in that they specify that rights in the context of deportation apply only to authorized immigrants. Deporting Citizens: The Mexican Repatriation

The ECHR and the Pact of San Jose protect against the deportation of people who are nationals of the states in which they live. The fact that citizens cannot be deported may seem highly and, perhaps, excessively intuitive. However, this basic right is fundamental. In the United States, the period known as the Mexican Repatriation illustrates why. In 1929, the U.S. government began an aggressive program to forcibly deport persons of Mexican descent. This entailed large-scale raids with “authorities and others indiscriminately characterizing these persons as ‘illegal aliens’ even when they were U.S. citizens or permanent legal residents” (California State Senate, 2005). Moreover, many families were forced to abandon or were otherwise deprived of their property because of these raids. In some cases, local authorities sold the property of deportees in order to cover the costs of transporting them from the United States to Mexico. This account of the Mexican Repatriation comes not from an academic text; rather, it comes from an official apology made by the State of California for its role in these events. In the Apology Act for the 1930s Mexican Repatriation, the State of California apologized to the nearly 1.2 million people who were “illegally deported and coerced into emigrating to Mexico” and acknowledged that in California alone, “approximately 400,000 American citizens and legal residents of Mexican ancestry were forced to go to Mexico” (California State Senate, 2005). As history shows, the impulse of immigration control is at times unyielding, which deepens the importance of articulating and defending rights in the context of deportation. Moreover, as the Mexican Repatriation illustrates, these rights are not only matters of concern for noncitizens, as the impulse of immigration control can even penetrate the aegis of citizenship. The St. Louis and the Refoulement of Refugees

Perhaps the most enduring human right related to deportation is the principle of non-refoulement. On May 13, 1943, the passenger ship St. Louis departed from Hamburg, Germany, for Havana, Cuba. On board were 937 German Jews escaping Nazi persecution. The passengers onboard sought refuge in Cuba. However, just before the ship departed, the Cuban government changed its immigration laws so that entry into the country by a non-Cuban national

40  human rights and immigration control wrongs

required a 500-peso bond and the written approval of the Cuban secretaries of state and labor (United States Coast Guard, n.d.). Unaware of these changes, all but twenty-two of the refugees on board the St. Louis were denied entry. Because the passengers did not have permission to enter Cuba, Gustav Schroeder, the ship’s captain, was told to leave Cuban waters just shortly after the St. Louis’s arrival. On June 2, the ship left Cuba, but not for a return voyage to Europe, as negotiations were taking place between the Cuban government and the U.S. ambassador to Cuba to allow the passengers to disembark in Havana. Thus, instead of returning to Germany, Schroeder kept the St. Louis near Cuban waters. However, as unease grew among the passengers, the ship eventually changed course and headed toward Florida. Though the U.S. Coast Guard (USCG) disputes whether it had specific orders to interdict the St. Louis, in his own memoir, Schroeder writes that Coast Guard vessels and planes prevented his planned unauthorized landing along the Florida coast. Without denying the presence of its vessels and maintaining the position that there were no official interdiction orders, the U.S. Coast Guard posits that a reasonable explanation for its presence was to “respond to a potential search and rescue situation” in the case that passengers attempted to swim to shore and that Schroeder “misunderstood” the reason why the Coast Guard vessels were there (USCG, n.d.). This possibility notwithstanding, the denial of refuge in Cuba coupled with the U.S. Coast Guard’s presence in Florida sufficiently deterred the St. Louis, thus forcing its return to Europe. Moreover, transcribed conversations about the St. Louis that involved then secretary of state Cordell Hull made clear that the passengers could not legally enter the United States, in part, because they could not be issued tourist visas because they had no return addresses.7 Having been turned away from the United States, and after one last unsuccessful attempt to land in Cuba, the St. Louis ultimately returned to Europe. Roughly one-quarter of the original passengers disembarked in London and the remaining disembarked in Antwerp. Conservative estimates suggest that 227 of the St. Louis’s passengers eventually died during the Holocaust. The principle of non-refoulement protects against the forcible deportation and return of a refugee to a country where his or her physical integrity is threatened. It was first articulated in the League of Nations 1933 Convention Relating to the International Status of Refugees. However, this convention was not widely adopted and, in its early articulation, non-refoulement applied only to Russian, Armenian, and already settled refugees. Today, the principle of nonrefoulement is, as the UNHCR describes, the cornerstone of international

human rights and immigration control wrongs 41

a­ sylum and refugee law (UNHCR, 1997). It is enshrined in the Refugee Convention and its 1967 Protocol. In fact, non-refoulement is so fundamental to the Refugee Convention that no reservations or derogations can be made to it. According to Article 1(2) of the Refugee Convention, a refugee is someone who is “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Asylum seekers who have yet to have their status determined, but whose refoulement risks their physical integrity, are also protected under the principle of non-refoulement. Article 33 specifically prohibits the refoulement of a refugee to “the frontiers of territories where his life or freedom would be threatened.” Moreover, once admitted, Article 32(1) prohibits states from deporting refugees except in the interest of national security or public order. The principle of non-refoulement is also articulated in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 3 of CAT extends the principle to protect those in danger of being subjected to torture. Despite its prominence in international human rights and customary law, even the principle of non-refoulement has come under threat. The UNHCR has criticized the asylum practices of many Western countries, specifically as they have sought to limit access to their territories in ways that infringe upon the human rights of refugees and asylum seekers. For example, in an effort to deter unauthorized immigrants from entering Australia via boat, the government of former prime minister John Howard implemented what became known as the Pacific Solution. The “solution” involved the excision of certain island territories; in other words, certain parts of Australia were no longer “Australia” for immigration purposes. Christmas Island, which is located in the Indian Ocean south of Indonesia, was excised to become Australia’s largest offshore detention facility and asylum processing center. Ashmore, Cartier, and Cocos (Keeling) Islands were also excised in 2001. According to Article 14(1) of the Universal Declaration of Human Rights (UDHR), “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Moreover, parties to the Refugee Convention are obligated to review the asylum claims made in their respective territories, irrespective of an asylum seeker’s mode of entry. The Pacific Solution effectively circumvented this obligation. As one parliamentary report describes, it allowed asylum claims to be “processed by the Immigration Department outside the jurisdiction of Australian courts [. . .] any unlawful non-citizen attempting to enter Australia via one of these [excised] islands was

42  human rights and immigration control wrongs

now prevented from making a valid application for protection” (Phillips and Spinks, 2011, pp. 14–15). Table 2.1 inventories the human rights of migrants in the context of deportation as articulated in the core human rights instruments, in the main regional human rights treaties, and in treaties related specifically to refugees, asylum seekers, and stateless persons. Table 2.1  Human

rights and deportation

Right

Parties a

Instrument(s)

Non-refoulement.

172

Refugee Convention, CAT, Pact of San Jose

Legally admitted migrants can only be deported pursuant to decisions reached in accordance with the law.b

172

ECHR, ICCPR, Pact of San Jose, Banjul Charter, ICRMW, Stateless Persons Convention

A person(s) to be deported has the right to appeal his or her deportation decision.b

169

ECHR,c ICCPR,c ICRMW, Stateless Persons Convention

Appeal of a deportation decision has to be reviewed by competent authorities.b

169

ECHR,c ICCPR,c ICRMW, Stateless Persons Convention

Pending an appeal of a deportation decision, the person(s) concerned have the right to seek a stay of deportation.

166

ECHR,c ICCPR,c ICRMW

Protections against arbitrary or unlawful interference with families or homes.b

166

ECHR,d ICCPR,d Pact of San Jose, ICRMW

Mass deportations are prohibited.

132

ECHR, Pact of San Jose, Banjul Charter, ICRMW

Protections against being arbitrarily deprived of property.b

132

ECHR,d Pact of San Jose,d Banjul Charter,d ICRMW

Prior to deportation, the person(s) concerned shall be given a reasonable time period to seek legal admission into another country.

70

Stateless Persons Convention

Citizens cannot be deported.b

68

ECHR, Pact of San Jose

Each case of deportation must be examined and decided individually.

45

ICRMW

The costs associated with deportation are not to be borne by the person(s) being deported.

45

ICRMW

Prior to deportation, the person(s) concerned shall have a reasonable opportunity to settle wages or other entitlements owed to him or her.

45

ICRMW

note: Treaties in alphabetical order: Banjul Charter, African Charter on Human and Peoples’ Rights (1981); CAT, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); ECHR, European Convention on Human Rights (1950); ICCPR, International Covenant on Civil and Political Rights (1966); ICRMW, International Convention on the Rights Protection of All Migrant Workers and Members of Their Families (1990); Pact of San Jose, American Convention on Human Rights (1969); Refugee Convention, Geneva Convention on the Status of Refugees (1951); and Stateless Persons Convention, Convention Relating to the Status of Stateless Persons (1954). a As of December 9, 2011. b  This right is also contained in the Arab Charter on Human Rights (2004). c Applies to legally admitted migrants. d Exceptions relate to national security and public order.

human rights and immigration control wrongs 43

Human Rights and Immigration Detention Wrongs

Inhuman and degrading treatment, as well as arbitrary detention, provide prominent examples of human rights and immigration detention wrongs. The Inhuman and Degrading Treatment of Immigrant Detainees in Greece

Conditions in immigration detention have given rise to significant human rights concerns. For example, on January 21, 2011, in the case of M.S.S. v. Belgium and Greece the European Court of Human Rights described conditions of immigration detention in Greece as follows: Detainees had no access to the water fountain outside and were obliged to drink water from the toilets [. . .] In a number of cells there was only one bed for fourteen to seventeen people. There were not enough mattresses and a number of detainees were sleeping on the bare floor. There was insufficient room for all detainees to lie down and sleep at the same time. Because of overcrowding, there was a lack of sufficient ventilation and the cells were unbearably hot. Detainees’ access to the toilets was severely restricted and they complained that the police would not let them out into the corridors. The police admitted that the detainees had to urinate in plastic bottles which they emptied when they were allowed to use the toilets. It was observed in all sectors that there was no soap or toilet paper, that sanitary and other facilities were dirty, that the sanitary facilities had no doors and the detainees were deprived of outdoor exercise. (ECtHR, 2011, paragraphs 33–53)

In this case, an Afghan asylum seeker argued that his deportation from Belgium to Greece and his subsequent detention in Greece violated Article 3 of the ECHR. Article 3, which the ECtHR (2011) describes as one of the most “fundamental values of democratic societies,” protects all persons from being subjected to “torture or to inhuman or degrading treatment or punishment.” M.S.S. was held in immigration detention on two separate occasions. On the first occasion, he was held in a small, confined space with nearly twenty other detainees, had access to toilets only at the discretion of guards, was not allowed into the open air, was given little to eat, and had to sleep on a dirty mattress or on the bare floor. When Greek authorities released him from detention, having no means of subsistence and being unable to either return to Afghanistan for fear of persecution or leave Greece, M.S.S. was forced to live in a park in central Athens where other Afghan asylum seekers had assembled. On the second occasion, in addition to being held in similar conditions he was also beaten by the

44  human rights and immigration control wrongs

police officers in charge of the facility where he was detained. Article 16(2) of the ICRMW protects against such abuses by providing that all migrants “shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups, or institutions.” The issue of immigration detention in Greece is particularly important given the country is one of the main focal points for unauthorized entry into Europe, as well as the primary country of destination for the transfer of asylum seekers based on the Dublin Regulation. Upon examining the merits of the case, the ECtHR described immigration detention in Greece as tantamount to arbitrary detention in “appalling conditions,” wherein migrants, including those with legitimate claims to asylum, face a substantial risk of inhuman or degrading treatment. As such, the court ruled that the detention of M.S.S. did, in fact, violate Article 3 of the ECHR. In its decision, the ECtHR stated that conditions in immigration detention must be compatible with respect for human dignity and that detainees must not be subject to “distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured” (ECtHR, 2011, paragraph 221). It also made reference to the conclusions of the European Committee for the Prevention of Torture (CPT). In 2007, the CPT inspected twenty-four police stations that Greek authorities used to hold immigrant detainees. In speaking with detainees, the CPT delegation heard a “considerable number” of allegations of physical abuse. More than just allegations, the delegation included medical personnel who verified claims of physical abuse. For example, a Bangladeshi who stated that Greek police officers had compressed his throat, pressed their fingers into his eye sockets, twisted his hands behind his back and kicked him multiple times, all before he fainted, was confirmed to have injuries consistent with these claims. The ­ECtHR also referred to an Amnesty International (2010) report about conditions of immigration detention in Greece that described the multiple complaints that a pregnant woman made about not being able to breathe while being detained in a tightly confined space. It is interesting to note that the Greek government defended its detention practices by arguing that migrants are often only held briefly in detention. The ECtHR responded that, whether for days or for weeks, the duration of stay is insignificant under such conditions. It is also interesting to note that the court ruled that M.S.S. be compensated 1,000 euros for nonpecuniary damage sustained during his two

human rights and immigration control wrongs 45

periods of detention in Greece and ordered Belgium to pay M.S.S. 24,900 euros for its decision to transfer him to Greece. When Mandatory Detention Is Arbitrary Detention

Table 2.2 inventories the human rights of migrants in the context of immigration detention. International human rights and customary law provide a host of due process protections in the context of immigration detention. These include the right to be informed of the reasons for detention in a language that one understands, the right to legal representation or assistance, which is to be provided by the state without cost if one has insufficient means to pay, access to courts or competent authorities that can decide on the lawfulness of one’s detention, and access to authorities that have the power to order one’s release if his or her detention is found to be unlawful. The ICRMW also requires that detained migrants have access to an interpreter if they cannot understand or speak the language that is being used during official proceedings and that states consider the hardships that immigration detention poses for the families of those being detained. Altogether, these rights seek to ensure that noncitizens are held in equality with nationals before the law. One of the most important of these due process rights is protection against arbitrary arrest or detention. The contemporary practice of immigration detention in Australia illustrates the importance of this right. In an effort to more effectively control immigration, the Australian government overhauled its immigration policies during the early 1990s. A central component of this was the creation of a system of mandatory detention for all unauthorized immigrants, defined as any migrant in Australia without a valid visa. Prior to 1992, the detention of unauthorized immigrants was discretionary. However, the Migration Reform Act of 1992 changed this so that “if an officer knows or suspects on reasonable grounds that a person [. . .] is an unlawful non-citizen, the officer must detain the person.”8 The act further stipulated that it would not amount to unlawful arrest or wrongful imprisonment if a person was indefinitely detained for immigration-related reasons, even despite an order of release from a court. According to Section 54ZD of the Migration Reform Act, an unlawful noncitizen “must be kept in immigration detention until he or she is removed, deported, or granted a visa [. . .] a court may not order the release of an unlawful non-citizen unless the non-citizen has made a valid application for a visa and the criteria for a visa have been satisfied by the noncitizen.” Consequently, the number of people held in immigration detention

Table 2.2  Human

rights and immigration detention

Right

Parties a

Instrument(s)

Detained persons shall be entitled to take proceedings before a court (access to legal system), in order that a court decide without delay the lawfulness of their detention and order their release if the detention is not lawful.

176

ECHR, Refugee Convention, Stateless Persons Convention, ICCPR, Pact of San Jose, Banjul Charter, ICRMW

Detained persons have a right to legal representation or assistance without cost to them.

176

ECHR,b Refugee Convention, Stateless Persons Convention, ICCPR, Pact of San Jose,b Banjul Charter,b ICRMW

Protection against inhuman or degrading treatment or punishment.

174

ECHR, ICCPR, Pact of San Jose, Banjul Charter, CAT, ICRMW

Protections against arbitrary arrest or detention.

169

ECHR, ICCPR, Pact of San Jose, Banjul Charter, ICRMW

Detained persons shall be informed at the time of arrest of the reasons for their detention in a language they understand.

166

ECHR, ICCPR, Pact of San Jose,c ICRMW

Persons who are unlawfully detained have an enforceable right to compensation.

166

ECHR, ICCPR, ICRMW

Detained persons shall be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

166

ICCPR, Pact of San Jose, ICRMW

Detained minors shall be separated from adults.

166

ICCPR, Pact of San Jose, ICRMW

Protections against arbitrary or unlawful interference with families or homes.d

166

ECHR,e ICCPR,e Pact of San Jose, ICRMW

Freedom of movement shall not be restricted as a penalty for illegal entry or presence for persons seeking protection from persecution.

147

Refugee Convention

Protections against being arbitrarily deprived of property.d

132

ECHR,e Pact of San Jose,e Banjul Charter,e ICRMW

During detention or imprisonment, migrants have the same rights as nationals to visits by members of their families.

45

ICRMW

When a migrant is detained, the state concerned shall pay attention to the problems that may be posed for members of his or her family, in particular for his or her spouse and minor children.

45

ICRMW

If a migrant is detained for the purpose of verifying any infraction related to migration, he or she shall not be responsible for the costs of detention.

45

ICRMW

As of December 9, 2011. Does not specify without cost. c Does not include language specification. d This right is also contained in the Arab Charter on Human Rights (2004). e Exceptions relate to national security and public order. a b

human rights and immigration control wrongs 47

increased dramatically. From 1996 to 2001, the number of migrants detained increased by 365 percent, jumping from 2,460 to 11,439 (Phillips and Spinks, 2011). During this period, Australia experienced a parallel increase in the number of unauthorized immigrants arriving via boat (so-called boat people).9 At the time of the Migration Reform Act in 1992, there were 216 unauthorized boat arrivals. By 2001, this number climbed to 5,516. In 2002, the United Nations Working Group on Arbitrary Detention (WGAD) visited detention facilities in Australia to investigate the human rights and international legal issues concerning the country’s immigration detention policies (WGAD, 2002). One of the main points at issue was Article 9(1) of the ICCPR, which prohibits arbitrary arrest and detention. This right is reaffirmed in Article 16(4) of the ICRMW for all persons irrespective of migratory status. The WGAD considers a case to be an arbitrary deprivation of liberty if it falls into one of three categories: when it is not possible to invoke any legal basis justifying the deprivation of liberty; when detainees do not have due process protections, specifically, access to courts as required by the UDHR and other international treaties; or when the deprivation of liberty results from the exercise of the rights guaranteed by Articles 7, 13, 14, 18, 19, 20, and 21 of the UDHR or Articles 12, 18, 19, 21, 22, 25, 26, and 27 of the ICCPR (WGAD, 2011). Reference to the UDHR is particularly important as Articles 13 and 14 relate specifically to migration. Article 13 guarantees the right to freedom of movement and, to recall, Article 14 is the right to asylum. In its report, the WGAD described immigration detention policies in Australia as indiscriminate in character, highlighting its potentially indefinite duration and the absence of judicial oversight. During its investigation, the WGAD met with a number of detainees that had been held for years, some even after their initial application to remain in Australia had been denied. However, that some individuals had been held in immigration detention not for days, weeks, or even months, but for a period of years did not come as a surprise to the WGAD. In 1997, the United Nations Human Rights Committee concluded in the case A v. Australia that the detention of a Cambodian man (“Mr. A”) for a period of four years was, in fact, arbitrary (UNHRC, 1997). In this case, the UNHRC noted that the arbitrariness of immigration detention need not be equated only with detention that is “against the law,” but should also be interpreted to include considerations about appropriateness, justice, and proportionality. As such, the UNHRC concluded:

48  human rights and immigration control wrongs

Every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the State party has not advanced any grounds particular to the author’s case, which would justify his continued detention for a period of four years, during which he was shifted around between different detention centres. The Committee therefore concludes that the author’s detention for a period of over four years was arbitrary within the meaning of article 9, paragraph 1. (UNCHR, 1997, paragraph 9.4)

In addition to violating Article 9(1), the UNHRC further concluded that immigration detention in Australia violated Article 9(4) of the ICCPR, which guarantees access to courts “in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” More recently, the UNHRC made similar conclusions in D and E and their two children v. Australia. In this 2006 case, an Iranian family was held in immigration detention for just over three years. In its decision, the UNHRC concluded that this, again, violated Articles 9(1) and 9(4) of the ICCPR. Noting that while their initial detention may have been justified in order to ascertain their identities and for immigration screening purposes, their continued detention was not.10 Sovereignty Costs, Immigration Control, and the Human Rights of Migrants

Despite a robust normative framework of rights, the human rights of migrants have too often been met, and with severe consequences, by immigration control wrongs. To be clear, the examples described above are not an exhaustive list and should also not be taken to imply that all Western immigrant-receiving countries are similarly implicated in rights abuses in the context of immigration control. Nevertheless, recalling the case of M.S.S. v. Belgium and Greece, the ECtHR concluded that states’ legitimate concerns about deterring unwanted immigration “cannot absolve” them of their human rights obligations. Similarly, the Council of Europe (COE) Commissioner for Human Rights notes,

human rights and immigration control wrongs 49

“everyone has the right, on the arrival at the border of a Member state, to be treated with respect for his or her human dignity,” and that, “as a rule there should be no restrictions on freedom of movement. Wherever possible, detention must be replaced by other supervisory measures” (as cited in M.S.S. v. Belgium and Greece). And, as the Special Rapporteur urges, “At the core of immigration policies should be the protection of migrants, regardless of their status or mode of entry” (UNHCR, 2011, p. 6). Yet only incremental progress has been made when it comes to closing the gap between the normative discourse of rights and state practice in the area of immigration control; in other words, insufficient progress has been made when it comes to fusing human rights norms into the machinery of control. For example, in 2010, the Special Rapporteur submitted twenty-five written communications to eighteen governments regarding violations of the rights of migrants. Only eleven responses were received. Moreover, despite the ruling against Greece in M.S.S. v. Belgium and Greece, the mistreatment of migrant detainees continues to be an issue. At the end of 2013 Nils Muiznieks, the COE Commissioner for Human Rights, expressed his concerns about reports that Greek border police have “seriously ill-treated arrested migrants and confiscated their personal belongings” and that Greece has collectively expelled asylum seekers, including Syrian refugees.11 In another example, despite the conclusions of the UNHRC in the case of A v. Australia, the Australian government disagreed with its view and refused to pay compensation to Mr. A (Australian Human Rights Commission [AHRC], n.d.). The Australian government similarly rejected the conclusion that detention was arbitrary per Article 9(1) of the ICCPR in the case of D and E and their two children v. Australia, noting that “the detention of unlawful non-citizens is necessary to uphold the integrity of Australia’s migration system” and that this is consistent with the “fundamental principle of sovereignty in international law, which includes the right of a State to control the entry of non-citizens into its territory and to deport from its territory such aliens as it no longer finds acceptable” (Australian Government, n.d.). Moreover, as Tables 2.1 and 2.2 show, substantial variation exists in the recognition of fundamental human rights when it comes to deportation and immigration detention. Many states, particularly immigrant-receiving ones, remain reluctant to support measures aimed at protecting migrants. As the tables also show, the rights articulated in the ICRMW, which goes furthest in protecting the rights of unauthorized immigrants in the context of ­immigration control,

50  human rights and immigration control wrongs

enjoy the least support. And, while the ICRMW allows the International Court of Justice (ICJ) to settle disputes that arise between states concerning the interpretation and the application of the Convention, several states have submitted declarations or reservations to this, meaning they ratified under the condition that they are not to be subject to, or bound by, the oversight of the ICJ. These countries are Algeria, Argentina, El Salvador, and Morocco. While only four countries in total, this represents nearly 10 percent of all state parties to the Convention. As they are caught in the liminal space between citizenship rights and human rights, noncitizens remain especially at risk, as their political status, and thus their claims to the rights of membership, are uncertain. For them, the state-based human rights regime, particularly when viewed through the lens of the ICRMW, is insufficiently accessible. This begs the question: What explains why states are reluctant to ratify the ICRMW and, more generally, what explains state support (or the lack thereof) of measures designed to protect the human rights of migrants? As Martin Ruhs (2012) explains, the reason for the “limited effectiveness of international migrant rights conventions relates to the perceived and/or real consequences (different types of costs and benefits) of extending rights to migrants for the national interests (however defined) of nation-states” (p. 1277). While this is almost certainly the case, there exists a common set of perceived consequences that, once identified and addressed, leaves sovereignty costs in the area of immigration control standing as the greatest impediment to ratification of the ICRMW and to the broader extension of fundamental rights to migrants. A United Nations Educational, Scientific, and Cultural Organization (UNESCO) report describes what it identifies as some of the main financial, administrative, legal, and political obstacles to the ratification of the ICRMW (MacDonald and Cholewinski, 2007; see also Pecoud, 2009). For example, one administrative obstacle is almost entirely technical, but critical as it relates to raising awareness about the Convention. After two decades into its existence, the text of the Convention has yet to be officially translated into a number of different languages. When it comes to more substantive issues, one of the main legal obstacles is the (mis)perception that the ICRMW limits the right of states to determine their own admissions criteria. On this point, the UNESCO report emphasizes that the ICRMW contains language that encourages the control of irregular migration and that Article 79 provides that “nothing in the present Convention shall affect the right of each State Party to establish the criteria gov-

human rights and immigration control wrongs 51

erning admission of migrant workers and members of their families.” Moreover, in terms of family reunification, Article 44 allows states to address this aspect of immigration policy “as they deem appropriate.” The report further identifies a set of political obstacles. One of these obstacles is the view that the Convention encourages irregular migration. As early as the drafting process of the ICRMW, countries such as the United States and Germany already began signaling that they would not ratify the Convention given they regarded it as a “blank check” for unauthorized immigrants (MacDonald and Cholewinski, 2007). It is important to note that the empirical validity of the relationship between safeguarding the rights of unauthorized immigrants and increased irregular migration is unclear. Nevertheless, the immigration enforcement officials interviewed for this book each expressed some level of agreement with this sentiment. When pressed to provide empirical evidence to support this, it became clear that the possibility, however remote, of promoting or somehow facilitating irregular migration is a sufficient enough deterrent to ratification. An additional political obstacle is the view that the ICRMW is unnecessary and “superfluous,” as many of the rights it articulates are already guaranteed in other human rights instruments. But as Tables 2.1 and 2.2 show, several of the rights articulated by the ICRMW in the context of deportation and immigration detention are not guaranteed in other human rights instruments. One final political obstacle is the view that, if not already guaranteed in international law, the rights contained in the ICRMW are sufficiently articulated and protected as a matter of domestic law. This argument, as the examples of human rights and immigration control wrongs suggests, is similarly untenable. Ongoing rights violations by Western immigrant-receiving countries cast serious doubts about the extent to which the human rights of migrants are sufficiently recognized and protected. I argue that the principal barrier to the ratification of the ICRMW, as well as what explains the weak support for measures designed to protect the human rights of migrant more generally, relate to the sovereignty costs that are placed on the practice of immigration control. The concept of sovereignty costs comes from the commitment literature in international relations and refers to the costs that a state incurs upon accepting a binding international legal obligation (Abbott and Snidal, 2000). These costs are, perhaps, best thought of as the distance between what states prefer to do with respect to a particular issue and what their international legal obligations require or permit them to do. For example, given that its policy of mandatory immigration detention vio-

52  human rights and immigration control wrongs

lates the ICRMW, the sovereignty costs of ratifying the Convention for Australia are high. In fact, the commitment literature views sovereignty costs as being at their highest when “international arrangements impinge on the relations between a state and its citizens or territory [. . .] when, for example, an international human rights regime circumscribes a state’s ability to regulate its citizens” (Abbott and Snidal, 2000, p. 437). As the ICRMW extends this even further to unauthorized immigrants, the sovereignty costs involved may be even higher still. Moreover, as Hollifield and Wong (2014) note, rights have very long half-lives in liberal democracies. Once they are extended, whether specifically to migrants or to any other group, they are difficult to roll back. The legal (mis)perception that states have about how the ICRMW diminishes their ability to determine their own admissions criteria thus detracts from a more fundamental concern: while the Convention does not tie the hands of states when it comes to deciding on who to let in, it does when it comes to deciding who to “kick out,” as well as why and the processes involved in how. Sovereignty costs also arise when states bind themselves to external authority or oversight. As previously described, the ICRMW creates an interstate dispute settlement mechanism administered by the ICJ. It also creates an individual complaint mechanism, wherein migrants can submit their grievances against states directly to the Committee on the Rights of Migrant Workers, the treaty body responsible for overseeing the ICRMW. The sovereignty costs of the ICRMW are not static, as these costs fluctuate with the migratory pressures states face. Immigration itself catalyzes the demand for immigration control, which intensifies the sovereignty costs of ratification. This goes far in explaining the reluctance of Western immigrantreceiving countries to commit to the Convention. It follows that emigration diminishes the demand for, and the necessity of, immigration control, and therefore decreases the sovereignty costs of the ICRMW. An Empirical Analysis of the Human Rights of Migrants

This section empirically analyzes the determinants of the ratification of the ICRMW across 162 countries from 1990 (the year that the Convention was opened for signature) to 2009. This analysis helps us better understand why states commit (or not) to treaties that require them to recognize and protect the human rights of migrants, isolating the role that immigration plays while also accounting for important political, economic, and societal factors. This analysis builds from the growing human rights commitment literature (see, e.g., Cole,

human rights and immigration control wrongs 53

2005; Greenhill, 2010; Hafner-Burton and Tsutsi, 2005, 2007; Hathaway, 2002, 2003, 2007; Lupu, 2013; Neumayer, 2005; Simmons, 1998, 2009, 2010), which has identified a set of influential factors that makes states more or less likely to commit to international human rights treaties. I thus briefly review this literature as a matter of identifying potential alternative explanations to consider before proceeding to the empirical analysis. Democracy  One of the most basic propositions in the human rights commitment literature is that states commit to human rights treaties because they believe in their substantive content. This helps to explain, in part, why democratic regimes are expected to be more likely to commit to these treaties than nondemocratic ones. While this may largely be the case, the literature tends to view ratification as a more complex process that simultaneously implicates political, economic, and societal factors—at both domestic and international levels—such that ratification often serves instrumental purposes unrelated to the substantive content of human rights. For example, Oona Hathaway (2002) argues that the ratification of human rights treaties by states is often disingenuous, as states make commitments that they have no intention of honoring. This is explained by the dual nature of human rights treaties as both instrumental and expressive tools: they are instrumental in that they articulate binding legal norms ratifying governments are obligated to respect, but they are also expressive in that ratification outwardly declares a state’s intended position on a particular human rights issue. These dual roles are intertwined. However, the expressive aspect becomes divorced from the instrumental one when the monitoring and enforcement of treaties are minimal. Because compliance with human rights treaties depends largely on self-reporting by governments, rather than on sanctions or other externally imposed and coercive measures, ratification occurs in a largely costless environment. In such an environment, noncompliance with treaty obligations is unlikely to be exposed or be met with significant consequences. This allows states, whether democratic or not, to commit to treaties that they have no intention of honoring (see also Hafner-Burton and Tsutsi, 2005, 2007; Hathaway, 2007; Neumayer, 2005; Simmons, 1998). As support for human rights treaties by democratic states is expected, though not entirely given, it is necessary to account for regime type in the empirical analysis. Respect for Human Rights  The extent to which states already respect human rights has been identified as a significant predictor of human rights treaty ratification. Derived from rational-actor logic, the depth of compliance

54  human rights and immigration control wrongs

perspective views ratification as governed by a selection process, wherein governments commit to only those treaties with the least onerous impositions on the state (Downs, Rocke, and Barsoom, 1996; Simmons, 2010). In other words, states self-select treaties that require only modest behavior changes or with which they can otherwise easily comply. To illustrate, Jack Goldsmith and Eric Posner (2005) argue that by the second half of the twentieth century most Western liberal democracies could already comply with most human rights treaties without significant behavioral changes. Using the ICCPR as an illustrative example, they contend that most liberal democracies were already in compliance with its obligations. Additionally, over one-third of ratifying countries have qualified their consent through reservations, understandings, or declarations (RUDs). RUDs, they write, “permit liberal democracies to conform to ICCPR obligations to the contours of extant domestic law, permitting compliance without any change of behavior” (Goldsmith and Posner, 2005, p. 112). Because the degree of congruence between what states are already doing and what human rights treaties require them to do is higher in states with track records of respecting human rights (Goodliffe and Hawkins, 2006; Hathaway, 2002), it is important to account for this factor in the empirical analysis. However, as it relates to the ICRMW, the dynamic may be working in an opposite direction. To recall, one of the main political obstacles preventing ratification of the Convention is the view that many of the rights it articulates are already guaranteed in other human rights instruments. Thus, it may be that states with strong human rights records use their demonstrated respect for human rights in other areas as political cover or justification for not ratifying the ICRMW. State Power  State power, defined and measured in terms of economic resources, is another important factor to consider when analyzing commitment to human rights treaties. Powerful states are more likely to have the capacity to implement their respective treaty obligations. Moreover, in examining state support for the Convention Against Torture, Jay Goodliffe and Darren Hawkins (2006) argue that powerful states are also better equipped to address any potential unintended consequences to which ratification may give rise. For example, one of the unintended consequences the authors describe is the prosecution of nationals by supranational institutions or authorities. Powerful states with “well-developed and well-financed judicial and police systems [. . .] can bring power and resources to bear to help their citizens ­escape

human rights and immigration control wrongs 55

universal jurisdiction should others decide to exercise it” (pp. 363–364). This leads us to expect that more powerful states are not only more likely to have the capacity to implement the ICRMW but are also better positioned to address the potential unintended consequence of increased irregular migration. However, the dynamic here may once again be working in the opposite direction. While powerful states may have greater capacity, the economic resources that give rise to this capacity may also provide these states with the greatest incentives to control immigration. Method

I analyze the determinants, meaning the factors that increase or decrease the likelihood that a state ratifies the ICRMW using a time-series (over time) crosssectional (across countries) analysis of 162 countries from 1990 to 2009. As the ICRMW represents only one, albeit the most comprehensive treaty related to the human rights of migrants, I check the results of the analysis against an analysis of International Labor Organization (ILO) Convention 143. This convention calls on states to respect the human rights of all migrant workers, but does not go nearly as far as the ICRMW does when it comes to blurring distinctions in rights between authorized and unauthorized immigrants. Moreover, Articles 2 to 7 of ILO Convention 143 require states to work to “suppress clandestine movements of migrants for employment and illegal employment of migrants” and to “adopt all necessary and appropriate measures [. . .] against those who employ workers who have immigrated in illegal conditions.” The analysis yields qualitatively similar results. Appendix 1 provides a more detailed discussion of the method used, variable measurement, data sources, and alternative model specifications. I measure migration using annual net migration, which is immigration minus emigration, as well as the foreign-born percentage of the total population. These data come from the World Bank’s World Development Indicators (WDI). I measure democracy using the polity2 score from the Polity IV Project. This score is one of the most widely used measures of regime type in the social sciences. The polity2 score is a twenty-one-point autocracy-to-democracy scale with negative values representing greater degrees of authoritarianism and positive values representing greater degrees of democracy. I measure respect for human rights using the physical integrity rights index from the CingranelliRichards Human Rights Data Project. This index takes into account reports of torture, extrajudicial killing, political imprisonment, and disappearances by governments, and ranges from 0 (no respect for physical integrity rights) to

56  human rights and immigration control wrongs

8 (full respect for physical integrity rights). Lastly, consistent with other empirical studies in the human rights commitment literature, I measure state power using the natural log of a country’s total gross domestic product (GDP). These data also come from the WDI. Comparing Countries That Have Ratified the ICRMW with Countries That Have Not

In comparing countries that have and have not ratified the ICRMW, several striking trends emerge. First, among the countries that have ratified, Latin America is the most heavily represented region with over one-third of all ratifications, followed by Asia, and then Africa. Put otherwise, ratification of the Convention remains largely confined to the global south. Second, when it comes to migration, states that have ratified tend to be countries of emigration with small foreign-born populations, whereas nonratifying states tend to be countries of immigration with larger foreign-born populations. More specifically, the average annual net migration for ICRMW countries is −52,494 migrants per year while the commensurate average for non-ICRMW countries is just under 5,000. This difference is highly statistically significant. The average annual emigration for ICRMW countries is driven up by the 2.6 million people who left Mexico between 2000 and 2005, the 2.9 million who left Bangladesh between 2005 and 2010, and the nearly 3 million who left India between 2005 and 2010. These cases notwithstanding, only nine of the forty-five countries that have ratified the ICRMW during the period under study have experienced net immigration over the past two decades. Moreover, the average foreign-born percentage of the total population in ICRMW countries is 2.87 percent compared to the 8.89 percent average for non-ICRMW countries. This difference is also highly statistically significant. Third, ratification does not appear to be directly correlated with regime type, as states that have ratified the ICRMW are not significantly more democratic. In fact, the polity scores for ratifying and nonratifying states are nearly identical. Fourth, the data indicate that ratifying countries exhibit worse human rights practices than nonratifying countries. This difference is highly statistically significant. Lastly, when viewing state power through the prism of economic resources, the data show that ICRMW countries have significantly lower GDP than non-ICRMW countries. This difference is also highly statistically significant. Table 2.3 summarizes the descriptive results. Altogether, countries that have ratified the ICRMW tend to be countries of emigration, meaning they send ­migrants abroad, have small foreign-born populations, tend to have worse

human rights and immigration control wrongs 57

Table 2.3  Comparing

ICRMW ratifying and nonratifying countries Average

Difference

Variable

ICRMW

Non-ICRMW

Expected direction

Observed

Sovereignty costs and immigration Net migration Foreign-born percentage of population

−52,494 2.87

4,899 8.89

− −

−57,392** −6.02**

Democracy Polity score

3.31

2.71

+

0.60

Human rights Physical integrity abuse

4.05

4.77

+

−0.72**

56.60

182.49

+

−125.89**

State power GDP (in billions, 2000 USD)

note: Descriptive statistics and comparison of means. *Significant at .05 level. **Significant at .01 level or less.

human rights practices, and are significantly poorer than non-ICRMW countries. The table shows that the three main theories related to human rights treaty ratification appear to be working in opposite directions when it comes to the ICRMW. However, while these comparisons provide some insights about why some states ratify the Convention and not others, they tell only part of the story, as a simple comparison of means can obscure more complicated relationships that are not readily apparent. For example, while factors such as immigration may be significantly lower, on average, for ratifying countries than for nonratifying countries, this information is insufficient for determining how the likelihood of ratification changes as immigration increases or decreases. Moreover, it may be the case that outlying observations among ratifying countries are driving the average down and/or outlying observations among nonratifying counties are exerting upward pressure on the average, among other possibilities. Either scenario conceals what is a potentially inconsistent relationship between these variables, wherein countries that receive immigrants both ratify and do not ratify the ICRMW; such a relationship serves to decrease the significance of any factor. Thus, in order to arrive at more systematic answers, it is important to conduct analyses that can account for these complex relationships while simultaneously accounting for other important factors. I thus turn next to the multivariate analysis and results. Analysis and Findings

Table 2.4 reports the results of the multivariate analysis. Models 1 to 4 examine the determinants of ratification using time fixed effects logistic regression

58  human rights and immigration control wrongs

Table 2.4  Modeling

ratification of the ICRMW Model

Variable Net migration

1

2

−4.39e−6** (6.99e−7)

−4.46e−6** (6.93e−7)

Foreign-born percentage of population Polity score

3

4

−.195** (.025)

−.197** (.025)

.022 (.012)

.023 (.012)

−.004 (.013)

−.002 (.013)

Human rights

−.135** (.037)

−.134** (.037)

−.076* (.038)

−.075* (.037)

GDP (ln)

−.099** (.035)

−.100** (.035)

.006 (.039)

.005 (.034)

ICRMW global rate of ratification Year fixed effects Observations

.138** (.010) i 2,638

.143** (.010) i

2,898

2,638

2,898

note: Multivariate logistic regression results. Logistic regression models with time fixed effects. i are time-specific dummy variables. Standard errors are in parentheses. Results are substantively similar when estimating effects using rare events logistic regression (King and Zeng, 2001). *Significant at .05 level or less. **Significant at .01 level or less.

models. These results are checked using rare events logistic regression models (King and Zeng, 2001), which are appropriate given only a small fraction of states have ratified the Convention. Because the migration-related factors are correlated, which causes some problems for the statistical analysis, net migration and the foreign-born percentage of the total population in a country are examined separately to avoid multicollinearity. Sovereignty Costs and Immigration  The analysis provides evidence to support the argument that, by increasing the sovereignty costs of ratification, immigration itself deters states from committing to the ICRMW. As immigration increases, ceteris paribus, the data indicate that states become significantly less likely to ratify the Convention. Figure 2.2 graphically depicts the relationship between net migration and the likelihood of ratification. It shows how the predicted probability of ratification changes as net migration moves from large-scale emigration to immigration. The vertical axis (up and down) indicates the predicted probability of ratification, and the horizontal axis (left to right) indicates annual net migration. Not only does the predicted probability of ratification decrease significantly with immigration, but the

human rights and immigration control wrongs 59

Predicted probability of ratification

.5

India Bangladesh* Mexico*

.4

.3

.2

.1 UAE 0 −500,000

0

Germany

United States

500,000 1,000,000 Annual net migration

Figure 2.2  Immigration and the predicted probability of ratifying the ICRMW note: Change in the predicted probability of ratification of the ICRMW with emigration and immigration. Predicted probabilities obtained from Model 1 in Table 2.4. All other variables are held constant at their means or modes. The six countries in the figure represent the top three countries of emigration (annual total) and top three countries of immigration. *Ratified the ICRMW.

­ robability that a state commits to the ICRMW becomes less than .1 when p annual net migration is greater than zero. The data also indicate that as the foreign-born percentage of the total population increases, the likelihood of ratification decreases significantly. These results are highly statistically significant and hold across each of the model specifications. Altogether, the data make clear that states are in no hurry to extend basic human rights protections to migrants when they are experiencing immigration. Why are countries that send immigrants more likely to ratify the ICRMW than countries that receive them? The answer to this question may have to do with remittances. In 2010, remittance flows were estimated at almost $445 billion USD worldwide, of which nearly three-fourths, or $320 billion, went to developing countries. A closer look at the relationship between remittances and migration shows that remittances make up, on average, 5.03 percent of the GDP of countries of emigration, as compared to just 1.19 percent of the GDP of countries of immigration. This difference is statistically significant. While

60  human rights and immigration control wrongs

Predicted probability of ratification

1 .8

.6 .4

.2 0 0

20

40 60 Remittances as percentage of GDP

Predicted probability

80

Fitted values

Figure 2.3  Relationship between ratification of the ICRMW and remittances note: Bivariate relationship between remittances and the ratification of the ICRMW. Predicted probabilities are obtained from a bivariate logistic regression and are plotted against remittances as a percentage of GDP. Fitted values represent the linear relationship between remittances and the ratification of the ICRMW.

data limitations and issues of multicollinearity make it difficult to include remittances in the multivariate analysis, it is possible to examine the impact of remittances on ratification of the ICRMW using alternative means. Figure 2.3 depicts the bivariate relationship between remittances and the probability that a state ratifies the Convention. As the graph shows, the probability of ratification increases significantly as the remittances a country receives increase. Democracy  As many of the defining characteristics of human rights— universality and inalienability, interdependence and indivisibility, and equality and nondiscrimination—also reflect many of the core values of democratic governance, democracies (particularly Western ones) are often presumed to lead other states when it comes to matters of rights. Accordingly, quantitative studies of human rights commitment have found democratic governance to be a reliable predictor of treaty ratification. However, the analysis shows that the relationship between democracy and ratification of the ICRMW is a weak one. A closer look at the data shows that over one-half of the states that have ratified the ICRMW (twenty-four out of forty-five) are democratic; however,

human rights and immigration control wrongs 61

five are highly autocratic and the remaining states are mixed regimes. Moreover, when the foreign-born percentage of the population is taken into account, the direction of the relationship between democracy and ratification becomes negative; in other words, as the foreign-born population increases, democracies become less likely to ratify the ICRMW. It thus appears that, to the extent that immigration results in the settlement of immigrants, even the most democratic states seem reluctant to commit to the Convention. Respect for Human Rights  According to the depth of compliance perspective, states that respect human rights are more likely to commit to human rights treaties because they are already in compliance with them. The analysis shows that the human rights practices of states are significantly related to the ratification of the ICRMW, but not in the expected direction. The data indicate that, ceteris paribus, states that respect human rights are significantly less likely to ratify the Convention than states that abuse them. This result holds across each of the model specifications and is highly statistically significant. Holding the other variables constant at their means, the data indicate that states that fully respect physical integrity rights—in other words, they do not torture, engage in extrajudicial killings, political imprisonment, or disappearances—are over 60 percent less likely to ratify the ICRMW than other states. This should not be interpreted to mean that states that respect physical integrity rights do not respect the human rights of migrants or that they abuse them. It does, however, provide further evidence of the deep disconnect between the (lack of) respect for human rights in the context of immigration and immigration control, as opposed to respect for human rights in other contexts. State Power  While more powerful states may have the capacity to implement their treaty obligations, this does not, ceteris paribus, make them more likely to ratify the ICRMW. Contrary to what the human rights commitment literature predicts, as state power increases, the likelihood of ratification decreases. This result is highly statistically significant when accounting for net migration, but not when accounting for the foreign-born population. This makes intuitive sense. When powerful states, as measured by their economic resources, are met with large-scale immigration, the initial impulse may be reactionary and protective, wherein immigration control comes to the forefront of the policy agenda—think most Western advanced industrialized countries and persistent calls to tighten borders in order to protect scarce resources.

62  human rights and immigration control wrongs

Time  Because the number of states that commit to the ICRMW increases over time, the statistical models take into account annual time trends in order to separate the impact of the hypothesized factors from time itself. One way that I do this is by including time-specific variables for each year in the analysis. Another way is by using the global rate of ratification of the ICRMW. The global rate of ratification is a derivative of what Martha Finnemore and Kathryn Sikkink (1998) describe as the “norms life cycle.” Central to the norms life cycle, which is a dynamic process that ends once emergent norms become instantiated in domestic law and practice, is the idea of the norms cascade. According to Finnemore and Sikkink, the acceptance of an emergent norm by a few leader states precipitates a cascade effect, wherein an increasing number of states commit to the norm. As the norm becomes more widely accepted, other states then feel pressure to commit. The extent of this cascade effect is determined by what the authors describe as an “active process of international socialization,” a process led by leader states, norms entrepreneurs, and international organizations that both independently and jointly exert pressure on targeted actors so that they behave in accordance with international human rights norms and standards. Ellen Lutz and Kathryn Sikkink (2001) describe a similar process in relation to human rights trials in Latin America, which they refer to as the “justice cascade.” Brian Greenhill (2010) also examines and finds evidence in support of a socialization effect on human rights practice. Thus, the expectation here is that a state’s decision to ratify is positively related to the ratification of these treaties by other states. Because the global rate of ratification is constant for each year in the analysis (e.g., in 2000 it was 7.9 percent, in 2001 it was 8.9 percent), it proxies for a time fixed effect. When the ICRMW global rate of ratification is estimated, time fixed effects are excluded to avoid multicollinearity. As expected, the data indicate that, ceteris paribus, as more states commit to the ICRMW the likelihood that other states will commit also increases. The analysis further permits us to examine how the global rate of ratification affects the likelihood that a state commits to the ICRMW at meaningful values of the other explanatory variables (e.g., countries of emigration versus countries of immigration). As Figure 2.4 shows, the predicted probability that a country of emigration ratifies the ICRMW, while setting the other variables constant at their means, is .5 (a coin toss) when the global rate of ratification is about 25 percent. For countries of immigration, the global rate of ratification needs to reach approximately 40 percent to reach a similar threshold.

human rights and immigration control wrongs 63

Predicted probability of ratification

1 .8 .6 .4 .2 0 0

10

20 30 ICRMW rate of ratification (% ) Emigration

40

50

Immigration

Figure 2.4  Immigration, the ICRMW global rate of ratification, and the predicted probability of ratifying the ICRMW note: Change in the predicted probability of ratification based on the ICRMW rate of ratification, distinguishing between countries of emigration and countries of immigration. Predicted probabilities obtained from Model 2 in Table 2.4. All other variables are held constant at their means or modes.

Western Immigrant-Receiving Democracies  The analysis also provides leverage in examining what the prospects for the ratification of the ICRMW are specifically among Western immigrant-receiving democracies. These countries are not only the locus of contemporary international migration, but they also serve as focal points for much of the advocacy surrounding the human rights of migrants. The relevance and importance of the ICRMW for these countries are magnified even further given there are few signs to suggest that current trends in immigration will drastically change any time soon. The data paint a bleak portrait. For Western immigrant-receiving democracies, the predicted probability of ratification given current levels of immigration is .18.12 If net migration were equal to zero, the predicted probability increases to .28. If annual immigration into these countries became an annual exodus of emigrants (switching the positive sign for average annual immigration to a negative sign), the predicted probability of ratification increases to .39. In order for the likelihood of ratification to equal a coin toss, net migration would have to equal approximately −   225,000 people per year.

64  human rights and immigration control wrongs

Conclusion

The harm done to migrants in the context of immigration control has highlighted what some have referred to as a crisis of human rights. The crisis is this: while human rights are made to be equal and nondiscriminatory on the basis of a nonexhaustive list of categories, including immigration status, they tend in practice to be administered as the rights of citizens to the exclusion of “others.” This creates a human rights citizenship gap that engulfs unauthorized immigrants. In examining human rights and immigration control wrongs, it is clear that emergent human rights norms, including basic rights in the context of deportation and immigration detention, have yet to become fully instantiated in the domestic legal, policy, and administrative frameworks that govern the contemporary machinery of immigration control. We also see that some Western democracies, states that are otherwise regarded as leaders when it comes to human rights, are directly implicated in these immigration control wrongs. Moreover, in analyzing the determinants of the ratification of the ICRMW, the analysis provides evidence to support the argument that, by increasing the sovereignty costs of ratification, immigration itself deters states from committing to the ICRMW. Altogether, the future strengthening of human rights protections for migrants, at least when it comes to state support for these efforts, appears dim. How immigrants are received by society is often viewed as a test of the limits of membership and belonging in a society. But in this age of immigration control, it is becoming increasingly clear that their treatment, particularly those migrants who are deemed to be “unwanted,” also poses an important test of the reach and limits of human rights. As the inattentiveness of the government representative at the OHCHR day of discussion on migrant domestic workers reminds us, the now four-decades-long international struggle to realize the universal recognition and full protection of the human rights of migrants, irrespective of their migratory status, remains but a shadow to the impulse of immigration control. At the same time, deportation and immigration detention have reached unprecedented levels across Western immigrant-receiving democracies. The next two chapters discuss each in turn.

3

Deportation Nations

I don’t worry too much about myself if I’m deported. I can take it. What I worry about is how it would affect my mom. —Undocumented Mexican American, United States1

one’s forcible removal, upheaval, and sometimes permanent exclusion from the polity, deportation is among the most coercive and severe mechanisms of immigration control. Deportation is, however, by no means a recent phenomenon. Some of the earliest accounts of deportation can be traced back to antiquity. Remarkably detailed accounts exist of the mass deportation of newly conquered peoples dating back to as early as the eighth century BCE when Assyrian kings systematically orchestrated mass deportations as a means to build and to preserve empire (Healy, 1991). Not just a matter of population control, the Assyrians used deportation as a political tool. More specifically, potentially rebellious groups were deported en masse to pacify newly conquered regions.2 As a full historical account of deportation is beyond the scope of this book,3 I begin this chapter with a brief history of its contemporary use. It is not my intention here to provide a definitive history; rather, I discuss illustrative examples of the forcible removal of persons by states in order to dramatize the historical significance of deportation and its dynamic political relevance.4 AS IT MEANS

Deportation in the Modern Era

The recognition of territorial sovereignty and respect for the integrity of national borders provide much of the operational foundation for the contemporary practice of deportation. However, deportation’s core features as an instrument of empire—the forcible removal of persons by states or ruling authorities within sovereign territories and a decidedly political logic—would remain intact and be used alongside the removal of persons from one sovereign 65

66  deportation nations

territory to another distinct sovereign territory until the mid-twentieth century. The deportation of Jews in Nazi-controlled territories to concentration camps during World War II and the forced resettlement of ethnic groups by the Soviet Union after the war provide harsh modern examples. Deportation and the Holocaust

The deportation of Jews by Nazi Germany is well documented. I retrace only certain aspects of this history, keeping an eye toward the political logic of the Jewish deportations. I also paint with decidedly broad strokes, as it is not the task of this book to reconstruct this deplorable period in human history. During the Holocaust, Nazis murdered an estimated 6 million Jews. Roma, disabled persons, as well as members of certain political, religious, and social groups were also killed. Between 1933 and 1945, some 20,000 concentration camps were established (United States Holocaust Memorial Museum [USHMM], n.d.). These camps, including Auschwitz, featured prominently in the Final Solution, the Nazi plan to exterminate 11 million European Jews. Toward this end, ghettos were created to confine Jews and to segregate them—armbands bearing the Star of David became emblematic of Jewish identity—from the broader population. These ghettos became the locus of Nazi deportation efforts. The deportation of Jews to the camps was a massive human, as well as logistical and bureaucratic undertaking. It required the coordination of several Nazi government agencies, including the Reich Security Main Office, which coordinated the deportations, the Transport Ministry, which created the train schedules, and the Foreign Office, which negotiated the transport of Jews from Germanallied states (USHMM, n.d.). Indeed, the deportation of Jews by the Nazis includes many of the characteristics that constitute the contemporary practice of deportation, including the reification of groups of people as deportable, provisional detention, a purposive bureaucratic apparatus, and physical removal. As Raul Hilberg (2003) describes, “The machine that carried out the ‘Final Solution’ consisted of a large array of offices, German and non-German, uniformed and civilian, central and municipal” (p. 425). It also provides an early illustration of the immigration-industrial complex. An estimated 3 million people, half being children and youth, were transported throughout Europe to extermination camps by the German National Railway. The Deutsche Reichsbahn employed almost half a million civil servants and 900,000 workers. Moreover, as much of the railway infrastructure used by the Nazis was located outside of Germany

deportation nations 67

and occupied Poland, deportation efforts required cooperation between the Deutsche Reichsbahn and operators of railways in France, Belgium, the Netherlands, and Denmark (Hilberg, 2003, p. 430). By 1943, trains arrived at the camps on a regular basis carrying deportees, not all of whom survived the harrowing experience, from “virtually every German-occupied country of Europe—from as far north as Norway to the Greek island of Rhodes [. . .] from the French slopes of the Pyrenees in the west to the easternmost reaches of Germanoccupied Poland and the Baltic states” (USHMM, n.d.). For its services, the Deutsche Reichsbahn received profits of an estimated 445 million euros (nearly $600 million USD), charging fees per passenger and for each mile traveled, with children paying reduced fares (Hilberg, 2003). The Soviet “Deportation of Nationalities”

The lesser known deportation of ethnic groups by the Soviet Union, which began shortly prior to World War II and continued during the immediate postwar period, echoes the forcible movements of peoples within the empires of antiquity. From 1937 to 1949, over 2 million ethnic minorities were deported from the frontiers of the Soviet Union to Central Asia, Siberia, and other remote regions within the USSR (Pohl, 1999). Soviet Koreans were among the first to be systematically deported. Korean immigration into the Soviet far east began near the end of the nineteenth century and continued through the Russo-Japanese War, as well as the Bolshevik Revolution, and increased with Japan’s occupation of Korea during the first few decades of the twentieth century. The Soviet Korean population had reached well over 100,000 by the 1930s and was concentrated primarily along the easternmost borders of the USSR, which buffered Japan. According to J. Otto Pohl (1999), the Soviet Union effectively ended Korean immigration in 1931 and further required all Soviet Koreans to naturalize. Koreans in the Soviet far east established over 150 Korean village Soviets, created 7 Korean newspapers, 6 Korean journals, and built some 380 Korean schools, among other cultural institutions—most of these institutions, however, were “permanently lost” after October 1937 (Pohl, 1999). Japanese imperial expansion into Korea fueled concerns about the loyalty of Soviet Koreans, as the Soviets were wary of Japanese spies among their ranks. Thus, on the basis of a geopolitical logic, Soviet Koreans were deported over 2,000 miles to Kazakhstan and Uzbekistan in Central Asia. They were then replaced by a large contingent of People’s Commissariat for Internal Affairs (NKVD) border guards who promptly appropriated the properties of the deportees for use as their own l­iving places.

68  deportation nations

According to Pohl, “The Soviet regime believed that the deportation of the Soviet Koreans from the Far East Kray was a necessary security measure against Japanese subversion. Stalin did not hesitate to sacrifice the rights of a small national minority in order to strengthen the security of the Soviet Union” (p. 11). By October 1937, 36,442 Soviet Korean families totaling 171,781 people were deported. In Central Asia, those who survived the month-long journey experienced conditions of severe hardship, including starvation and poverty. From 1937 to 1938, nearly a quarter of the Soviet Korean population died.5 The deportation of Soviet Koreans provided Stalin and the NKVD with a template for later mass deportations.6 These deportations were instructive not only because they were conducted with military-like planning and ­efficiency— which, like the deportation of Jews under Hitler, utilized rail transport as the infrastructure of control—but they also provided a political logic that would later be used to justify the deportation of entire nations from their natal territories. Whereas concerns about the “infiltration” of Soviet Koreans by the Japanese provided the impetus for the 1937 deportations, an equivalent security logic, namely, concerns about collaboration with Nazis, effectuated the deportation of entire ethnic minority (and predominately Muslim) groups from the strategic Caucasus region to Central Asia and Siberia beginning in 1943. These groups were the Chechens, Ingush, Crimean Tatars, Karachays, Balkars, Meskhetian Turks, and Kalmyks. As historian Norman M. Naimark (2001) points out, “The period of postwar ‘high Stalinism’ unabashedly lauded the Russian nation for bringing civilization and development to the backward peoples of the Russian Empire [. . .] In this context, the new Soviet man (and woman) was to look like a Russian [. . .] speak like a Russian, and— if not actually be Russian or Slavic—was to recognize the inherent superiority of the Russians” (pp. 91–92). It is against the backdrop of the wartime politics of security and an intensified nationalism that the deportations took place. The largest groups that were deported were the Chechens and the Ingush. Beginning on the night of February 23, 1944, NKVD troops began moving systematically from house to house, rounding up individuals, and loading them onto Studebaker trucks that took them to railway stations where they were then loaded into boxcars (Naimark, 2001). Those who resisted were killed. In all, nearly 500,000 were forcibly removed. The Chechens and Ingush suffered tremendously as a result of their uprooting. An estimated 100,000 died within the first three years of their arrival in Central Asia. This figure does not include those who died during transport. The ethnic dimension of the “Soviet depor-

deportation nations 69

tation of nationalities” also led to a concerted effort to erase all traces of the nations that were deported from the Caucasus. The Chechens and Ingush were officially permitted to return to the Caucasus in 1957. However, as they returned to find their homelands occupied, they drove out, often violently, the new inhabitants that they encountered. In fact, it is the totality of this experience, as Naimark (2001) writes, that “left them [the Chechens] the most serious internal enemy of the Moscow regime” (p. 99). Many of the core characteristics of the contemporary practice of deportation are also reflected in the Soviet deportations. Non-Russian or non-Slavic ethnic minority groups constituted the unwanted “other,” confinement in boxcars during transport served as a form of intermediary detention, the NKVD provided the bureaucratic apparatus, and modern railroad systems formed the infrastructure of control. Another key element is also present in the Soviet case, which is the use of identity documents to distinguish between deportable persons. As Naimark (2001) describes, the institution of the Soviet passport and system of residency permits during the 1930s were “crucial for the maintenance of Soviet power and the management of nationalities,” as it tightened Moscow’s control over the population (p. 87). Indeed, the broader formalization of documenting individual identity can be attributed, in part, to the growing salience of nationalism as the legitimating ideology of states (Caplan and Torpey, 2001). As Leo Lucassen (2001) notes, documenting identity allows states to prevent the departure of its own citizens in order to enforce military service, to collect taxes and settle debts, and to apprehend wanted criminals. It also facilitates “getting rid of ” certain undesirable segments of the population and helps control the movement of foreigners, particularly with respect to entry and expulsion. Scholars of recently declassified Soviet archives directly link the “passportization” of the population beginning in the early 1930s to broader processes of distinguishing “unwanted elements,” particularly kulaks and “dangerous” nonRussian and non-Slavic ethnic minority groups, from the rest of the population (Kessler, 2001).7 The Most Heavy-Handed Tool of the State: Understanding Contemporary Trends in Deportation

Deportation means the forcible removal of a person or a group of people by a state or governing authority from one place to another. That deportation is forced, involuntary, and a matter of state has endured from antiquity to our

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current age of immigration control. The ideas of person and place, however, have not been constant or fixed over time. As the previously discussed examples show, these ideas have often been defined in accordance with political logics related either to the creation, preservation, and defense of nations or to the politics of identity. To be clear, there is not one logic that legitimates deportation; rather, a confluence of reasons, often political, but also economic, social, and cultural—or even all simultaneously—have historically been used to justify the forcible removal of people. Moreover, as the Nazi and Soviet deportations make clear, these logics are often deeply and inextricably intertwined. Today, the person we understand to be deportable is the unauthorized immigrant whose personhood is reducible to various “papers” and is understood principally by her migratory status. Place, as it reflects the structure of an international system constituted by territorially bounded nation-states, is understood to mean removal from one sovereign state, often the immigrant-receiving country, to another sovereign state, often the country of origin. Whereas our understanding of the subjects and spaces of deportation has shifted somewhat, a constant truism remains: for whatever its justification may be, it is often the less powerful and those who are marginalized and dispossessed of their agency—be they conquered peoples, disenfranchised racial, ethnic, or religious minority groups, or workers from the global south seeking greater economic opportunities in the global north—that experience deportation most acutely. Despite the long and diverse history of its use, as well as its prominence among the contemporary mechanisms of immigration control, there have been only a few studies to date that have systematically analyzed trends in deportation or their determinants across countries and over time. While countries of immigration such as the United States have a long tradition of immigration and immigration control, many European countries only officially began regulating immigration during the 1970s and 1980s. Indeed, the contemporary immigration-industrial complex is a relatively new development in the long history of human migration. It is unsurprising, then, that studies about the politics and determinants of immigration control have been significantly outpaced by efforts to explain the causes of immigration and its political, economic, and societal implications. Deportation poses a critical test of the machinery of immigration control, as its implementation not only involves the intricate workings described above, but it also reflects the extent to which a state is willing to enforce its immigra-

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tion laws in the face of the ensuing human consequences. Scenes of toddlers and young children at immigration rallies carrying signs reading don’t deport my mom, which have become all too familiar, provide one example, among many, of the human consequences of deportation. On this point, the work of Antje Ellermann (2006, 2009) is incredibly instructive. How immigration control policies are implemented, according to Ellermann constitutes “uncharted territory in the study of migration control” (2006, p. 296; see also Nevins, 2002; van der Leun, 2003). In distinguishing between the stages of policy design and implementation, Ellermann finds that bureaucrats who implement immigration control policies “regularly encounter local publics who are opposed to the strict enforcement of migration control measures,” which reflects “a shift in public attention between the stages of policy design and implementation, from the benefits of restriction to the harsh costs of control” (p. 293). In other words, immigration control reflects restrictive policy preferences (mostly among political actors) at time t that tend to abate (mostly among the public) at time t + 1 once control practices, such as deportation, begin to have real and visible consequences for individuals. Ellermann (2009) provides evidence of this in a comparative study of Germany and the United States.8 Despite her important work it is necessary to push further. Even though the dynamics that Ellermann lays out reflect many of the “on the ground” realities of immigration control, an empirical puzzle remains: despite shifting preferences over immigration control policies from the policy design to the implementation phase, the work of immigration control marches on and countries like Germany and the United States are among the most prolific of the “deportation nations” among Western immigrant-receiving democracies. What, then, explains why states “do what they do” when it comes to deportation and how do politics, the economy, and immigration itself affect these decisions? The remainder of this chapter answers these questions by analyzing the determinants of deportation using new data collected across twenty-five Western immigrantreceiving democracies from 2000 to 2009. As it provides a lens by which to view how states are responding to increased global migration, analyzing deportation helps us to better understand why states choose certain policy approaches over others and what accounts for the varying degrees of restrictiveness. To better understand the factors that drive contemporary trends in deportation, the following reviews the immigration policy literature, which then sets the stage for the empirical analysis.

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Political Factors

The client politics model of immigration politics (Freeman, 1995; cf. Wilson, 1980) views the immigration policymaking process as being largely captured by interest groups that represent employer and business interests. These groups generally have more permissive preferences over immigration than publics prefer. The basic logic underpinning the model is that the more strongly a group’s interests are affected by immigration, the greater incentive it has to organize around certain policies. For example, to the extent that access to foreign labor ensures an adequate pool of inexpensive workers, employers benefit as wages are expected to decrease. But while the availability of inexpensive labor provides concentrated benefits to employers, the costs associated with low-skilled labor importation are diffuse as they are spread across the native workforce. As the client politics model suggests, employers typically have incentives to lobby in favor of more permissive policies while those negatively affected have fewer incentives to lobby against them. Thus, immigration policies are generally more permissive than publics prefer, as their diffused costs (either real or perceived) create collective action problems among those with more restrictive control preferences. Despite its prominence in the literature, the client politics model has been critiqued on several important levels. In focusing on the agency of interest groups, it neglects the role that legal and other institutional factors play in either facilitating or dampening their influence (Boswell, 2007; Joppke, 1998). Moreover, research on interest-group politics in the United States suggests that lobbying strategies often involve selection effects wherein lobbyists choose policymakers that are already sympathetic to their interests or take the form of counteractive lobbying (Austen-Smith and Wright, 1994; Milbrath, 1963). The literature also distinguishes between different types of lobbying (e.g., direct and indirect) and for different purposes (fundraising, membership, etc.), for which the client politics model does not account (see, e.g., Milbrath, 1963). Empirically, while immigration policymaking may reflect client politics when immigration is not a salient national issue, it does not in the presence of “populist pressure against immigration” (Givens and Luedtke, 2004, p. 149). Also, immigration policy in the postwar era has been increasingly hostile, averse to openness, and has “displayed an acute sensitivity to the racial, ethnic, and cultural composition of flows,” all of which belie what we would expect “if the state were truly beholden to the interests of domestic employers” (Rudolph, 2003, p.  604). And more relevant for our purposes here, the client politics model

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privileges economic over political interests and underestimates the incentives that political candidates and parties have to use anti-immigrant rhetoric, xenophobic appeals, and restrictive control policies to appear “tough” on immigration in order to attract votes. Right-Leaning Governments  As the political right is generally thought to have more restrictive preferences over immigration and the left is generally thought to be more inclusive of migrants (Ellermann, 2009; Givens and Luedtke, 2004; Joppke, 1999a; Lahav, 2004; Salehyan and Rosenblum, 2008), it is reasonable to suspect that the restrictiveness of immigration control increases with right-leaning governments.9 This rests on the belief that political representatives pursue policies that are consistent with the preferences of their constituencies and is buttressed by research that shows that individuals who espouse conservative political ideologies are more likely to express anti-­ foreigner sentiments and support exclusionary policies toward out-groups (see, e.g., Semyonov, Raijman, and Gorodzeisky, 2006; Wilkes, Guppy, and Farris, 2007). Indeed, in a large cross-national analysis of anti-immigrant attitudes, which includes most of the countries analyzed here, as well as a large number of non-Western countries, Anna Maria Mayda (2006) finds that those who identify with the political right are consistently and significantly more likely to support immigration restrictions. However, research has also shown that immigration politics often creates “strange bedfellows,” as the political, economic, and societal implications of immigration cross party and ideological lines (Tichenor, 2002; see also Hollifield, Hunt, and Tichenor, 2008; Hollifield, 1992, 2008), and that immigration policy tends to converge toward restrictiveness when it comes to matters of control (Cornelius et al., 2004; Givens and Luedtke, 2005; Money, 1999). For Terri Givens and Adam Luedtke (2005), who build on the work of Money (1999), while the political left may be more likely to view immigrants as constituents, “the Left cannot afford to be more generous in terms of immigration control policies [. . .] since short-term public backlashes offset any future gains from an expanded immigrant electorate” (p. 8). Whether partisanship “matters” for deportation thus remains an open empirical question. Election Cycles  Elections may also affect the restrictiveness of immigration control. As alluded to above, during elections, political candidates and parties may use anti-immigrant rhetoric and xenophobic appeals in order to attract votes, which also forces incumbents to appear “tough” on immigration

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by tightening immigration enforcement efforts. However, elections may also have an opposite effect. For example, to the extent that a large foreign-born electorate can potentially influence the outcome of an election, incumbents may relax certain aspects of existing immigration enforcement efforts, and candidates may seek to distance themselves from restrictive policy positions. Regarding the former, U.S. Citizenship and Immigration Services (USCIS) announced proposed changes to its deportation policy in January 2012 that would allow undocumented immigrants with immediate U.S. citizen relatives, assuming that they also meet several other conditions, to potentially remain in the U.S. if their deportation would impose extreme hardship on their families (DHS, 2012c). Widely lauded among immigrant-rights groups, these proposed changes were announced during the Republican presidential primaries in advance of the 2012 presidential elections. As the field of Republican candidates took mostly hard lines on the issue of immigration, the announcement by USCIS provided voters with a contrast between the Obama administration and a potential Republican administration. Given the various ways that national elections and immigration control can potentially intersect, it is necessary to include election cycles in the empirical analysis. The Legislative Representation of the Far Right  Recent research exploring the relationship between the far right and immigration policy outcomes has revealed a significant positive relationship (Howard, 2009, 2010). “Far-right” or “radical right-wing” political parties generally refer to “those whose main platform emphasizes opposition to immigration and immigrants” (Howard, 2010, p. 745).10 These parties are often nationalistic and xenophobic and are racist, culturally conformist, or both. As Herbert Kitschelt (2007) writes, the far right makes “xenophobic mobilization against immigrants and insistence on a dominant national cultural paradigm obligatory for all residents the central planks of their policies” (p. 1178). Anthony Messina (2007) thus aptly describes the far right as being in the vanguard of actors seeking to politicize immigration and issues related to the incorporation of racial and ethnic minorities. And while real differences do exist within this “family” of political parties (Mudde, 1999; see also Golder, 2003a; Messina, 2007, pp. 64– 72; Wilkes, Guppy and Farris, 2007), scholars agree that the most successful far-right parties have “cultivated and fostered a climate of public hostility toward immigrants that has, in turn, created a more favorable political context for themselves” (Messina, 2007, p. 64). While far-right political parties are

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more heterogeneous than is often assumed (Mudde, 1999), they remain distinct from the mainstream right and, as Kai Arzheimer (2009) writes, “share a number of ideological features, in particular their concern about immigration” (p. 259). As such, the far right is less likely to compromise their restrictive preferences over one of the defining issues that breathes life into their emergence: immigration control. In a comparative study of citizenship, Marc Morjé Howard (2009) finds that the relative strength of far-right political parties, as measured by the share of votes they receive, effectively “trumps” pressures from the left to liberalize citizenship criteria, as the electoral success of the far right mobilizes anti-­ immigrant public sentiment. As Hollifield (2008) also writes, “With the advent of postindustrial society, which has created feelings of failure, alienation, and resentment, especially among workers in the most advanced industrial societies [. . .]. All it takes then is some entrepreneurial (usually right-wing) politician to trigger feelings of xenophobia and racism in these segments of the population” (p. 218). I contend that vote shares may not, however, fully capture key political and institutional dynamics that connect popular support for far-right political parties with policy outcomes. Specifically, legislative influence, rather than vote shares alone, is what gives the far right access to the political resources (e.g., public funding, political patronage, and media attention) necessary for influencing policymaking. The legislative representation of the far right also elevates the importance of the anti-immigrant platform, as it forces right-of-center political parties to address or even adopt some of these positions in order to attract or reclaim votes in subsequent elections. As Messina (2007) writes, “In virtually every major immigrant-receiving country, organized anti-immigrant forces now exercise at least a modest degree of influence over the public policy agenda and political discourse” (p. 55). In this way, the legislative representation of the far right has an agenda-setting effect (see also Givens and Luedtke, 2004). As deportations can increase or decrease as a function of bureaucratic or executive order, and not just legislative change, to the extent that their representation can set or dictate the tone of the political discourse surrounding immigration, the far right can effectively force the hand of governments to enact more restrictive control measures. The case of the Austrian Freedom Party (FPÖ), which I discuss below, illustrates this point. Or, in the case of the Danish People’s Party (DPP), the legislative representation of the far right can also have a more indirect effect on immigration policy. To the extent that the share of seats held by the far right is

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substantial enough to sway the outcome of votes within legislatures, far-right parties can use their influence to extract gains in the area of immigration in exchange for concessions on other issues. Economic Factors

While the immigration policy literature has grown significantly in recent years, as more attention has been paid to the importance of factors not directly related to the economy, it is still one that is largely dominated by classic economic theories (see, e.g., Piore, 1979; see also Borjas, 1995, 2001; Borjas, Freeman, and Katz, 1996), though interdisciplinary efforts to bridge disciplinary divides remain ongoing (Brettell and Hollifield, 2014). GDP Growth and Unemployment  At their most basic level, macroeconomic theories of immigration policy predict that, as an economy grows, immigration policy becomes more permissive as the demand for labor increases. It follows that as an economy contracts, it is less able to absorb new workers and so immigration control tightens and becomes more restrictive. As one account describes: In times of economic decline and increasing unemployment, workers push for restrictions on immigration. The employers, who face a reservoir of workers willing to work for lower wages, limit their investment in immigration advocacy because the marginal utility of such an effort declines. Consequently, the government restricts immigration. In contrast, during economic prosperity, employers are desperate for additional manpower, and they invest resources in promoting liberal immigration control policies. The workers in low-paying jobs limit their opposition to immigration because the inflow of immigrants into these jobs allows them to climb the social and professional ladder. The government, faced with pressures for additional migrants on the part of the employers, liberalizes immigration control policy. (Meyers, 2002, p. 133)

Stephen Castles, Hein de Haas, and Mark J. Miller (2013) put it more bluntly, stating simply, “economic woes often lead to anti-immigrant politics” (p. 3). Macroeconomic trends are thus viewed by many as being among the most reliable predictors of immigration control. However, economic booms and busts do not sufficiently explain the varying degrees of restrictiveness in immigration control that we observe across countries and over time. For example, despite years of relatively low unemployment and stable economic growth, a series of immigration policies have been passed in Denmark, including the Aliens Act of 2002, which are viewed as being among the most restrictive in Europe.

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Moreover, as Money (1997) notes, substantial historical variation exists in how Western industrialized countries have responded to immigration despite similar positions in the global economy and macroeconomic characteristics. In the U.S. case, as Hollifield, Hunt, and Tichenor (2008) find, immigration isolationism defined U.S. immigration policy for much of the immediate postwar period, as “Congressional isolationists successfully defended biased national origins quotas and established new ideological exclusions [. . .] despite economic conditions that were conducive to large-scale immigration” (p. 11). The authors also note that although both the Truman and Eisenhower administrations called for more permissive immigration policies during periods of relative economic growth, “their efforts were derailed by restrictionist committee chairs in Congress who vigilantly defended national origins quotas” (p. 22). Macroeconomic indicators such as GDP percent growth or total unemployment may also miss the broader strategic interplay between immigration enforcement agencies and unauthorized immigrants. For example, with respect to GDP percent growth, because deportation can entail significant administrative costs—for example, each deportation in the United States costs approximately $23,148 (Fitz, Martinez, and Wijewardena, 2010)—a worsening economy may mean less restrictive immigration control outcomes for reasons related to shrinking immigration enforcement budgets. The relationship between unemployment and the restrictiveness of immigration control is also not entirely clear. One enduring view is that increased unemployment requires that states limit immigrant inflows and tighten immigration control efforts. During times of increased unemployment, the burden of providing for workers transfers from employers, who would otherwise provide in the form of wages, to the state, which steps in to provide in the form of social services and benefits (Freeman, 1986). The strains that unemployed (migrant) workers potentially place on public coffers, in turn, provides states with incentives to increase the restrictiveness of immigration control. However, there is another logic to consider. When it comes to unemployment, because prospective migrants select their countries of destination based on labor market conditions (Sjaastad, 1962), high unemployment may mean less restrictive immigration control, but not as a matter of policy supply, but as a matter of policy demand, as migrants may themselves leave to find work in other countries or return home to wait out economic downturns. This is not to suggest that macroeconomic factors do not matter; they clearly do. However, these factors may not be as deterministic as some think, particularly when it comes to the machinery of immigration control. As Tichenor

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(2002) summarizes, “The potential importance of economic conditions [. . .] is undeniable. However, precisely how economic conditions influence immigration politics and whether they dictate policy choices is quite another matter” (p. 20). Migration-Related Factors

In addition to political and economic factors, there are strong reasons to suspect that the restrictiveness of immigration control may be a direct function of the migratory pressures that states face. New Immigration  As it has the potential to reshape the demographic composition of societies at all levels, alter and augment political coalitions, and transform meanings of citizenship and national identity (see, e.g., Hollifield, 2008; Zolberg, 2006b), new immigration may itself be sufficient to provoke restrictive policy responses. However, that such changes can occur, even on such magnitudes, does not necessarily portend the valence (restrictive or permissive) of ensuing policies. For example, Stephen Castles (1995) describes the different ways that states have historically responded to the varying ethnic composition of immigrant inflows. In distinguishing between the differential exclusion model, the assimilation model, and the pluralist model, he argues that each is explained by a distinct set of logics and is linked to different patterns of nation-state formation. Money (1997), Rafaela Dancygier (2010), and Helen B. Marrow (2011) also show how different local receiving contexts and  electoral considerations interact to produce varying degrees of openness and hostility toward immigrants. Viewed from a slightly different perspective, there is a long tradition of public opinion studies that relate rapid growth in the immigrant population with negative attitudes toward immigration and perceptions of minorities (see, e.g., Brader, Valentino, and Suhay, 2008; Branton et al., 2011; Espenshade and Hempstead, 1996; Hopkins, 2010; Sniderman, Hagendoorn, and Prior, 2004). These negative attitudes are rooted in notions (wherein perception and reality become entwined) that immigrants compete with or crowd out native-born workers (Hainmueller and Hiscox, 2010; Scheve and Slaughter, 2001), reduce wages, undermine the provision of social services, or threaten the cultural, ethnic, or national identity of the state (Huntington, 2004). This reflects what sociologists refer to as the competitive threat model, wherein “fear of competition or perception of threat is likely to prompt negative sentiments against outgroup populations” (Semyonov, Raijman, and Gorodzeisky, 2006, p. 428). It is

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important to note that definitive answers regarding the relationship between new immigration and various labor market outcomes remains elusive, despite several decades of research. As George J. Borjas, Richard B. Freeman, and Lawrence F. Katz (1996) conclude, “The estimated effect of immigration on nativelabor outcomes depends critically on the empirical experiment used” (p. 250).11 Nevertheless, strong claims about the impact of new immigration continue to frame the academic discourse and public debate. For example, as Gary Freeman (1986) forcefully writes, “Postwar migration in Europe has stimulated an outburst of reactionary, nativist, and sometimes neofascist political activity, as native workers organize to resist the invaders” (pp. 61–62). To the extent that the public construes new immigration as a policy “problem,” growth in the immigrant population is likely to engender hostility and a policy backlash (Hopkins, 2010; O’Neil and Tienda, 2010).12 Size of the Foreign-Born Population  While new immigration may increase the restrictiveness of immigration control, the total size of the foreign-born population may have the opposite effect. Large foreign-born populations may, for reasons related to contact theory, lead to more favorable attitudes toward immigration and immigrants. As Kevin O’Neil and Marta Tienda (2010) write, “more direct exposure to immigrants in multiple venues fosters acceptance and mutual understanding while also dispelling myths and unfounded fears about the newcomers” (p. 736). Politically, large foreign-born populations may also lead to less restrictive policies given the political influence and the social capital that comes with size. As Hollifield and Wong (2014) argue, as newcomers establish roots and gain a legal foothold in society, the rights that accrue to them, even if they fall short of full voting rights (e.g., freedom of speech and association, among other foundational civil rights), helps them become viable political actors capable of shaping and reshaping both politics and policy. While I hypothesize this to be the case, we must also consider an alternative. As Samuel Huntington (2004) argues, large foreign-born populations may in fact disincentivize immigrants from incorporating into their host society. While Huntington mostly stands alone, he is not entirely isolated in this view. Research by Theo Van Leeuwen and Ruth Wodak (1999) shows that governments have used similar logic to deny family reunification. In examining the Austrian case, a Bescheide document (a notice sent by immigration officials informing applicants of immigration decisions), which laid out why a Turkish man could not immigrate to Austria to live with his wife, stated:

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Those who arrive as adults from the same cultural background as applicants are hardly likely to enter into communication with the local population, especially not in terms of speaking the language, and are hardly likely to successfully adapt to Middle-European customs, traditions and ways of life, even after a residency of many years. These were the reasons for the decision taken. (van Leeuwen and Wodak, 1999, p. 90)

Thus, to the extent that large foreign-born populations disincentivize incorporation and lead to linguistic or cultural balkanization, the demand for more restrictive immigration policies may increase in response to the real or perceived inassimilability of immigrants. Asylum  The restrictive turn in immigration control, particularly in Europe, has been fueled by the significant rise in the inflows of asylum seekers. Concerns about “bogus” asylum claims being used as an immigration backdoor, as well as about the prohibitive economic costs of hosting asylum seekers, have led to the use of the asylum “crisis” to legitimate restrictive immigration control measures. As inflows of asylum seekers have been increasingly met by hardening public attitudes and harsh policy responses, it seems likely that the deportation of those who have been denied asylum would feature prominently in immigration control efforts. It follows that increased asylum inflows are likely to lead to increased policy restrictiveness. However, Xavier Escandell and Alin M. Ceobanu (2009) turn this relationship on its head. They find evidence that higher asylum inflows are correlated with less hostile attitudes toward immigrants due to a selection effect. They argue that the number of asylum applications a country receives is reflective of institutional environments that are more supportive of migrants, which in turn is associated with less prejudice (p. 14). These conflicting accounts reinforce the need to empirically test the relationship between asylum inflows and the restrictiveness of immigration control. Table 3.1 lists the factors analyzed and the direction of their expected impact on restrictiveness. Having examined the theorized factors that affect immigration control, I turn next to the empirical analysis of deportations. Analyzing Deportations Across Countries and Over Time

The countries analyzed are the immigrant-receiving countries of the EU-28 and North America, as well as Australia and Norway. Immigrant-receiving

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Table 3.1  Factors analyzed and expected effects: Modeling deportations Factor

Expected impact: Restrictiveness

Right-leaning government

+

Election year

+

Far-right seat share

+

GDP percent growth

−

Unemployment rate

+

New immigration

+

Percentage of foreign-born population

−

Asylum inflows

+

note: + means positively related to restrictiveness (e.g., a larger farright seat share means increased restrictiveness). − means negatively related to restrictiveness (e.g., greater GDP percent growth means decreased restrictiveness).

countries are those in which net migration, which is equal to immigration minus emigration, is greater than zero. For example, while Mexico is in North America, it is excluded from the analysis, as it is a country of emigration not immigration. The sample includes nearly the entire universe of Western immigrant-receiving countries. According to World Bank estimates, in 2010, the countries combined to account for two-thirds (66.4 percent) of total world migration. Moreover, they combine to account for over half (56.2 percent) of the world’s wealth. They also include both traditional countries of immigration as well as new immigrant destination countries. Moreover, substantial variation exists among the countries in their immigration control policies. It is important to note that the countries analyzed here include those that deport high and low numbers of immigrants. This variation is important, as focusing only on countries that deport many immigrants, and thus excluding countries that do not, would likely lead to an overestimation of the factors that lead to increased restrictiveness. The results of this analysis are thus generalizable across industrialized immigrant-receiving democracies and can be instructive for growing economies that are experiencing increased large-scale immigration. Analyzing Deportation: The Denominator Problem

Before analyzing deportation, it is first necessary to determine what constitutes restrictiveness. Epistemologically prior to the analysis of immigration policy and its restrictiveness are questions about the goals and objectives of

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i­ mmigration control. As mentioned earlier, substantial disagreement exists over what the depth of the deterrence objective of immigration control is or should be, which has made difficult the creation and use of metrics to measure policy restrictiveness. To recall, a “denominator problem” exists in the study of immigration control, wherein it is unclear how much immigration control—be it the size of immigration enforcement budgets, the number of people refused at borders, how many unauthorized immigrants are deported, or the capacity of the immigration detention infrastructure, among other examples—constitutes restrictiveness. The literature has provided little guidance on this question. A related complication arises in cross-national studies, as differences between countries require us to take care in making and in interpreting the comparison of deportation statistics (see Appendix 2 for detailed discussion). I thus analyze deportation using three distinct measures, each of which are continuous measures that help us distinguish between varying degrees of restrictiveness. I analyze deportation using the annual immigration-to-deportation ratio, deportation as function of the foreign-born population, and deportation as a function of the total population. The immigration-to-deportation ratio refers to the ratio of annual immigrant inflows to total annual deportations. An analogous immigration-to-population ratio has been used in previous research in economics to compare the intensity of immigration to the United States from 1905 to 1914 with later time periods (Chiswick, 1988). Lower ratios reflect a “let fewer immigrants in and kick more out” approach to immigration control. For example, a one-to-one ratio would mean that one immigrant was legally admitted for every one immigrant that was deported. The logic of this ratio reflects the view expressed by many immigration enforcement officials that theirs is not the task of closing off all avenues to immigration; rather, it is to ensure the integrity of legal migration regimes by removing unauthorized (and mostly lowskilled) immigrants while facilitating the entry of lawful (and mostly skilled) ones. As smaller ratios mean less immigration and more deportation and larger ratios mean more immigration and less deportation, we can view this measure as a scale that provides an approximation of restrictiveness. The total annual number of deportations per the total foreign-born population in a country provides another way to operationalize deportation. As it reflects a “deport them all” approach, with the pejorative “them” representing the immigrant “other,” we can view higher values as indicative of increased policy restrictiveness. Imagine simply if the total number of persons deported equaled the entire

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foreign-born population in a country; this, in effect, would mean the removal of all immigrants. This would be consistent with the view that the deterrence objective of immigration control is to prevent all unlawful migration. Lastly, the total annual number of deportations per the total population in a country provides a rough look at the societal extent of deportation efforts and reflects a “deport as many as possible” approach to immigration control. Using the total population in a country to compare migratory trends permits comparability across countries. It is also a useful way to operationalize deportation because it, in many ways, reflects not the intent, but the actual practice of deportation. The “true” unauthorized immigrant population, despite best guesses, is unknown. However, it is a subset of the total population. Thus, as more unauthorized immigrants are removed relative to the total population, the prevalence of irregular migration, at least in theory, should lessen. The underlying assumption here is a commonly held one: though it may not be possible to deport all unauthorized immigrants, deporting increasingly larger numbers may deter future irregular migration. These measures provide approximations of the restrictiveness of deportation that permit comparability across countries. They are not, however, without flaws and care needs to be taken in interpreting them. Regarding the ratio of immigration-to-deportation, this measure assumes a certain degree of relatedness between legal immigrant inflows and deportations. This is not entirely problematic, as increased large-scale immigration may, as previously discussed, catalyze restrictive immigration control efforts.13 The exact contours of the relationship between these two factors has not, however, been previously measured and may, in fact, operate and move differently in different contexts (e.g., across countries or in different time periods). It is thus necessary to control for the differences in the migration regimes of each of the countries under study. Regarding deportation as a function of the foreign-born population, one particularly important issue relates to “noise”; in other words, is this measure capturing the number of immigrants who are deported relative to the number of deportable immigrants? While the foreign-born population is, arguably, a closer approximation to the unauthorized immigrant population than are other migration factors, there is no a priori reason to suspect that a foreignborn person is an unauthorized immigrant or is even deportable. Foreignborn persons can also be naturalized citizens. Moreover, there are numerous “quasi-legal” categories in which a foreign-born person may be protected from

84  deportation nations

deportation (e.g., a victim of human trafficking). Lastly, while deportation as a function of the total population does not assume much, it does implicitly disconnect deportation from other migratory trends and processes. The empirical analysis is attuned to these shortcomings. A look at the correlation between each of the three measures shows that the immigration-to-deportation ratio is distinct, but that deportations per foreignborn population and deportations per total population are highly correlated (see Appendix 2 for the correlation matrix). I thus operationalize deportation using the immigration-to-deportation ratio and deportations per total population. I use the latter because, as described above, it assumes less than the deportation per foreign-born population measure. Moreover, normalization based on total population has become a common practice in migration research (see, e.g., Givens and Luedtke, 2005; Neumayer, 2004; Thielemann, 2004). Method

Appendix 2 provides a detailed discussion of the statistical analyses. Deportation data were collected first from primary sources, starting with national statistical agencies and annual immigration yearbooks. Secondary sources were then used to fill in gaps. I use data on right-leaning governments and elections from the World Bank Database of Political Institutions (DPI). A list of far-right political parties was adapted from Pippa Norris (2005) and Cas Mudde (2007). The vote and seat shares won by these parties in national lower house legislative elections were tabulated for sixty-seven elections in the time series. Economic data, specifically, GDP percent growth and unemployment were obtained from the World Bank World Development Indicators. Migrationrelated factors, which include the annual percentage change in the foreign-born population, which captures new immigration, the foreign-born percentage of the total population, and asylum inflows, come from the Organization for Economic Cooperation and Development (OECD) International Migration Database, Eurostat, and the United Nations High Commissioner for Refugees. An important migration-related factor that is absent from this and nearly all other cross-national time-series studies of international migration and immigration control is the size of the unauthorized immigrant population. While multiple efforts are currently underway to improve the available data on unauthorized migrant populations, existing data sources remain limited with respect to their longitudinal coverage and comparability. Only a few countries attempt to regularly estimate the size of their respective unauthorized migrant

deportation nations 85

populations and, among the countries that do, there is a lack of common definitions and data collection procedures. Deportations Trends, 2000 to 2009

The analysis of deportation yields several significant findings. First, total deportations across all Western immigrant-receiving democracies have steadily climbed, increasing by 29 percent from 2000 to 2009. In all, 512,306 total deportations were recorded in 2000. By 2009, this number grew to 659,398. To put this figure into a broader perspective, in 2009, one person was deported for every six immigrants that these countries received. However, as Figure 3.1 shows, the United States accounts for most of the total number of deportations recorded across Western immigrant-receiving democracies. In 2000, the United States accounted for approximately 37 percent of total deportations. In 2009, this number climbed to almost 60 percent. The dark region in Figure 3.1 represents the total number of deportations for the U.S. The gray region represents the combined total number of deportations for the rest of the sample.

Deportations (in thousands)

800

600

400

200

0 2000

2001

2002

2003

2004

United States

2005

2006

2007

2008

2009

Combined total

Figure 3.1 

U.S. share of total deportations across Western immigrant-receiving democracies, 2000 –2009

note: Total deportations, United States and the combined total of all other countries in the sample, 2000–2009. In 2000, the United States accounted for 36.8 percent of all deportations. In 2009, it accounted for 59.6 percent of all deportations.

86  deportation nations

Second, as Figure 3.2 shows, while deportations have significantly increased in the United States., they have steadily decreased across the immigrantreceiving countries of the EU-28. Over the ten-year period under study, deportations in the United States increased by 109 percent. In 2000, the United States deported 188,467 people. In 2009, this number climbed to 393,289. The Obama administration has been much maligned by immigrant-rights advocates for its deportation track record, and the nearly 400,000 deportations recorded in 2009 are, at the time of this writing, the highest ever to have been recorded in the United States. To put this figure into context, in 2009, the United States deported one person for every three immigrants it legally admitted.14 Moreover, starting in 2006, the United States deported more people than all of the immigrantreceiving countries of the EU-28 combined. The peak number of deportations for the EU-28 during this period came in 2000 when 305,916 people were deported. Since then, deportations have declined by 20 percent, dropping to 244,030. The increase in deportations in the United States, particularly since 2006, can be explained in part by the broader immigration enforcement strategy of

Deportations (in thousands)

400

300

200

100 2000

2001

2002

2003

2004

United States

2005

2006

2007

2008

2009

EU-28

Figure 3.2  Comparing deportations across the United States and European Union, 2000 –2009 note: Total deportations, United States and the immigrant-receiving countries of the EU-28, 2000–2009. While deportations have increased significantly in the United States, they have steadily decreased in the EU-28.

deportation nations 87

the Department of Homeland Security (DHS). This strategy is articulated in the George W. Bush–era Secure Borders Initiative (SBI), described as a “multiyear plan to secure America’s borders and reduce illegal immigration” (GAO, 2011). The goal of SBI, which was launched at the end of 2005, was to gain operational control the border by, among other things, expanding deportation and detention programs. Toward these ends, over the course of the past ten years, the budget of U.S. Immigration and Customs Enforcement (ICE) increased from $3.3 billion in 2003 (when the agency was created) to $5.6 billion in 2013 (IPC, 2013). Moreover, the number of ICE Enforcement and Removal Operations personnel—agents who are tasked with identifying, apprehending, detaining, and deporting undocumented immigrants—has increased by over double, jumping from 2,710 in 2003 to 6,338 in 2012 (IPC, 2013). Third, as Figure 3.3 shows, while the ratio of the number of immigrants admitted to the number of people deported annually has grown smaller over the past few years, the trend for most of the past decade has been in the opposite direction. In fact, with the exception of the period immediately following 9/11, the immigration-to-deportation ratio grew each year from 2000 to 2007. In short, what this means is more immigration and less deportation. This can,

Immigration-to-deportation ratio

8.5

8

7.5

7

6.5

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

Figure 3.3  Immigration-to-deportation ratio, 2000 –2009 note: Immigration-to-deportation ratio (the number of immigrants admitted per deportation), 2000– 2009. In 2009, 6.2 immigrants were admitted for every 1 person that was deported.

88  deportation nations

Immigration-to-deportation ratio

15 13 11 9 7 5 3 2000

2001

2002

2003

2004

United States

2005

2006

2007

2008

2009

EU-28

Figure 3.4  Comparing the immigration-to-deportation ratio across the United States and European Union, 2000 –2009 note: Immigration-to-deportation ratio (the number of immigrants admitted per deportation), the United States and the immigrant-receiving countries of the EU-28. The mean ratio for the United States from 2000 to 2009 was 4.2. The mean for the immigrant-receiving countries of the EU-28 was 10.1.

perhaps, be explained by the ascension of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, and Slovenia into the European Union in 2004, as well as the ascension of Bulgaria and Romania in 2007. It is also useful to distinguish between the United States and the immigrantreceiving countries of the EU-28. From 2000 to 2009, the mean immigrationto-deportation ratio for the United States was lower than the low for the EU-28. However, as Figure 3.4 also shows, the trend for both in recent years has been toward increased restrictiveness. Aggregate trends provide a noticeable contrast between the United States and the European Union. But it is also useful to compare trends by country. Figure 3.5 looks the immigration-to-deportation ratio for each of the countries under study. The “tails” of each of the plots represent the range in the immigration-to-deportation ratio for each country from 2000 to 2009. As the figure indicates, the eastern Mediterranean “frontier” countries of the European Union, Greece, Cyprus, and Malta are among the most restrictive countries

deportation nations 89

Greece United States Cyprus Slovak Republic Malta France United Kingdom Finland Belgium Netherlands Slovenia Spain Austria Norway Germany Australia Denmark Canada Sweden Italy Hungary Luxembourg Czech Republic Portugal Ireland

0

100

200

300

400

500

Immigration-to-deportation ratio Figure 3.5  Immigration-to-deportation ratio by country note: Immigration-to-deportation ratio (the number of immigrants admitted per deportation), by country. Greece legally admits the fewest number of immigrants for every one person it deports, at 1.8. Ireland legally admits the highest number of immigrants for every one immigrant it deports, at 165.6.

when viewed through this measure, combining to legally admit less than two immigrants for every one deportation. Figure 3.6 looks at deportations per total population for each of the countries under study. Here, the tails of each of the plots represent the range in the number of deportations per 100,000 total population for each country from 2000 to 2009. As this figure also shows, Greece, Cyprus, and Malta are again among the most restrictive countries, combining to deport approximately 351 people per 100,000 total population. Analysis and Findings

As the preceding figures show, substantial variation exists in the use of deportation by states. We can thus use multivariate statistical techniques to identify and explain the reasons for this variation. The first series of models in Table 3.2 use cross-sectional time-series regression models with panel-corrected standard errors. The outcome analyzed is the immigration-to-deportation ratio. Model 1 is the full model, which simultaneously tests the main hypotheses described above. In an effort to avoid multicollinearity, Models 2 through 4 separately

90  deportation nations

Greece Cyprus Slovenia Malta United Kingdom Austria Netherlands Norway United States Sweden Belgium Spain Australia Luxembourg Hungary Denmark Italy Slovak Republic Finland Canada Germany France Czech Republic Portugal Ireland

0

100

200 300 400 500 Deportations per 100,000 total population

600

Figure 3.6  Deportation per total population by country note: Range plots by country. Greece deports the highest number of immigrants per 100,000 total population, at 485.7. Ireland deports the fewest number of immigrants per 100,000 total population, at 11.3.

analyze new immigration, the foreign-born population, and asylum inflows. Models 1 through 4 include country fixed effects to account for unobserved (and unanticipated) heterogeneity.15 Table 3.3 repeats the analysis but focuses instead on deportations per total population. Right-Leaning Governments  As the political right is generally viewed as being less tolerant of irregular migration, we expect deportations to increase when right-leaning governments are in power. The results, however, provide only mixed support for this. Right-leaning governments are not significantly related to the “let fewer in, kick more out” measure of deportation. While the direction of the relationship is negative, which we expect, it is not statistically significant. On the other hand, right-leaning governments are significantly related to the “deport as many as possible” measure. This result is highly statistically significant and holds across each of the model specifications. What explains these mixed findings? These findings may, at first glance, seem consistent with the client politics model of immigration policymaking. As former U.S. representative Romano Mazzoli and former U.S. senator Alan Simpson write in response to criticism

deportation nations 91

Table 3.2  Modeling

the immigration-to-deportation ratio Model

Variable

1

2

3

4

Right government

−4.049 (5.027)

−5.777 (4.406)

−4.219 (5.038)

−5.953 (4.329)

Election year

−4.637 (4.840)

−3.048 (5.241)

−3.309 (5.172)

−2.969 (5.267)

Far-right seat share

−.454* (.251)

−.530* (.240)

−.556* (.255)

−.602* (.266)

GDP percent growth

2.907 (2.084)

2.929 (2.881)

3.667 (2.341)

2.752 (2.824)

Unemployment rate

−2.501 (2.521)

−3.983** (1.434)

−2.986 (1.991)

−4.424** (1.506)

New immigration

−.058 (.186)

.069 (.215)

Foreign-born percentage of population

1.922 (2.983)

Asylum inflows

−.0002* (.0001)

Country fixed effects Observations

2.857 (3.297) −.0003** (.0001)

i

i

i

i

225

225

225

225

note: Time-series cross-sectional regression models with panel-corrected standard errors (in parentheses). All time-variant variables are lagged to ensure that causes come before effects. A lagged dependent variable is estimated but not reported. Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

over the enforcement provisions of the 1986 Immigration Reform and Control Act, which the two authored: “Administrations of both stripes are loathe to disrupt economic activities—i.e., labor supply in factories farms and businesses” (Mazzoli and Simpson, 2006). Taking this view, deportation is not likely to neatly correlate with right- or left-leaning governments, as both are attuned to the economic need for a large pool of inexpensive (and potentially exploitable) migrant workers. Seeing this logic to its end, however, would mean that deportations decrease with both right- and left-leaning governments. The results do not support this. In the United States, for example, annual deportations have reached historically high levels under the left-leaning Obama administration. Moreover, during the period under study, deportations in Spain reached a high in 2006 under the left-leaning Socialist government of Prime Minister José Luis Rodríguez Zapatero. To be clear, this is not to suggest that differences do not exist between the political right and left when it comes to deportation; instead, these re-

92  deportation nations

Table 3.3  Modeling

deportations per total population Model

Variable

5

6

7

8

Right government

21.057** (6.439)

20.519** (6.056)

20.140** (5.976)

21.112** (6.282)

Election year

5.702 (5.318)

5.769 (5.529)

5.669 (5.549)

5.535 (5.270)

1.505* (.652)

1.333* (.606)

1.398* (.592)

GDP percent growth

−2.694 (1.917)

−3.276 (2.042)

−3.469 (2.185)

−2.679 (1.749)

Unemployment rate

1.299 (2.429)

.175 (2.252)

.207 (2.429)

1.605 (2.109)

New immigration

−.175 (.304)

−.199 (.344)

Foreign-born percentage of population

−.167 (1.115)

Far-right seat share

Asylum inflows Country fixed effects Observations

1.562** (.637)

−.623 (1.266)

.001** (.0002)

.001** (.0002)

i

i

i

i

225

225

225

225

note: Time-series cross-sectional regression models with panel-corrected standard errors (in parentheses). All time-variant variables are lagged to ensure that causes come before effects. A lagged dependent variable is estimated but not reported. Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

sults are consistent with previous research that shows that immigration policy tends to converge toward restrictiveness when it comes to matters of ­immigration control. Election Cycles  While elections are correlated with increased restrictiveness, these results are not statistically significant. This should not be interpreted to mean that elections do not matter for immigration control. Indeed, the results are statistically insignificant not because elections and immigration are entirely unrelated but because this relationship does not always move in one (restrictive) direction. For example, the (unsuccessful) attempt by former French president Nicolas Sarkozy to court the far right by hardening his stance on immigration during the 2012 presidential election (Chrisafis, 2012) illustrates a case in which an election is tied to efforts to tighten immigration control. However, depending on the broader political context surrounding an election, it may be less, not more, restrictiveness that serves as a winning

deportation nations 93

electoral strategy. As discussed above, the timing of the Obama administration’s January 2012 announcement regarding changes to the handling of certain deportation cases, as well as the June 2012 announcement of the policy of Deferred Action of Childhood Arrivals (DACA), which provides administrative relief from deportation for undocumented youth, both had clear electoral undertows and implications. Altogether, because the political utility of deportation changes depending on the political winds, this mitigates the statistical significance of electoral cycles in any one direction. The Legislative Representation of the Far Right  To recall, recent research examining the impact of the far right on citizenship policy has revealed a significant relationship, wherein increased support for far-right political parties, as measured by the share of votes they receive in elections, results in increased policy restrictiveness. However, as I argue above, vote shares themselves do not capture important dynamics that connect the electoral success of the far right with immigration control outcomes. Specifically, legislative representation rather than vote shares alone gives the far right access to, and potential influence in, immigration policymaking processes. Consistent with this argument, the results indicate that as the legislative representation of far-right political parties increases, so too do deportations. I discuss each measure of deportation in turn. As Table 3.2 shows, as the share of legislative seats held by far-right parties increases, the immigration-to-deportation ratio significantly decreases. For example, the 28.4 percent share of legislative seats won by the Austrian Freedom Party during Austria’s 1999 National Council elections, one of the most successful far-right electoral showings to date, decreases the immigration-todeportation ratio by approximately 17. This represents a one-third of one standard deviation decrease in the immigration-to-deportation ratio. Moreover, as Table 3.3 shows, as the far-right seat share increases, deportations per total population significantly increases. Here, the nearly 30 percent seat share won by the FPÖ translates into an increase of 44 deportations per 100,000 total population. This also represents about a one-third of one standard deviation change. Taken together with the findings related to right-leaning governments and election cycles, these results suggest that while mainstream political parties may politicize deportation in similar ways, both during and in-between elections, the far right seems less willing to compromise or play politics when it comes to matters of immigration control.

94  deportation nations

GDP Growth and Unemployment  While the idea that immigration policy restrictiveness ebbs and flows with economic booms and busts remains a popular one, a number of studies have found that immigration policy is not as closely tied to macroeconomic factors as previously hypothesized. Consistent with these studies, the data indicate that while GDP growth is correlated with fewer deportations, this relationship is not statistically significant. Regarding unemployment, the results paint a mixed portrait. As unemployment increases, the immigration-to-deportation ratio decreases, meaning fewer immigrants are legally admitted per deportation. This result is highly statistically significant when new immigration and asylum inflows are considered but not when the foreign-born population is taken into account. The results indicate that a 10 percent increase in unemployment, for example, decreases the immigration-to-deportation ratio by as much as 44, which represents a full standard deviation change. Now, it may be the case that as unemployment increases it is the decision to admit fewer immigrants and not the decision to increase deportations that drives this result. A check on the bivariate relationship between unemployment and annual immigrant inflows shows that this is not the case (r = .012). While states may be more selective about the immigrants they admit during times of high unemployment, that immigration continues while, simultaneously, the immigration-to-deportation ratio decreases, lends support to the argument that high unemployment results in a tightening of immigration control efforts. This is not entirely unexpected. However, what the data reveal is that this is done not by decreasing inflows but by more strictly enforcing immigration laws, in other words, by deporting more unauthorized immigrants. On the other hand, the data indicate that increased unemployment does not significantly increase deportations per total population. While the direction of the relationship is positive, which we expect, the result is not statistically significant. Thus, while unemployment may, as other studies have already shown, increase hostility toward immigrants and increase the demand for more restrictive immigration control efforts, this does not, ceteris paribus, translate into a “deport as many as possible” approach to immigration control and enforcement. One possible explanation for this is that such efforts would likely begin with the most visible and, perhaps, most vulnerable among the unauthorized immigrant population, including agricultural and other workers in productive industries whose removal could potentially be disruptive to the economy. The logic of dual labor market theory further suggests that the structural inflation and economic dualism embedded in advanced industrial-

deportation nations 95

ized economies would prevent native-born workers from filling the sorts of jobs that would be left empty as a result of “deport as many as possible” enforcement efforts. New Immigration  The results suggest that new immigration, ceteris paribus, is insufficient for triggering a restrictive backlash in the form of increased deportations. The data indicate that new immigration is not significantly related to either the immigration-to-deportation ratio or to deportations per total population. Given the strong expectations that exist about the link between immigration and restrictive policy responses, it is important to give these (non)-findings a closer look. It is possible that the effect of new immigration on deportation is masked. For example, aided by the logic of migration network theory, it may be the case that immigrants select countries of destination based on less hostile policy climates. Another potential explanation is that policy restrictiveness precedes new immigration, as states attempt to anticipate and deter new immigrant inflows. The data, however, do not support either of these alternative explanations. A check on the bivariate relationship between deportations and new immigration, as well-lagged deportations and new immigration, does not reveal any significant relationship. Altogether, these (non)-findings are consistent with comparative research done on antiimmigrant attitudes. For example, Joel Fetzer (2000) finds that immigration does not have “any effect on opposition to immigration or immigrants, or on support for anti-immigration political parties [. . .]. At least in the short run, then, simply how many immigrants live in a country does not seem to matter for the native population’s attitudes towards them” (pp. 90–91). Size of the Foreign-Born Population  It is also important to note the effect (or lack thereof) of the size of the foreign-born population. Unexpectedly, the data indicate that the size of the foreign-born population is positively related to the immigration-to-deportation ratio and negatively related to deportations per total population. Neither of these results, however, are statistically significant. On one level, these results can be explained by family reunification, as existing immigrant communities provide family members abroad with a legal means of immigrating. On another level, this may involve a more nuanced political dynamic, wherein the size of the foreign-born population, to the extent that it is reflective of the broader political and societal influence of immigrant communities, works generally to produce less restrictive immigration control outcomes. However, it is difficult to push this much further in

96  deportation nations

the absence of cross-national data on the size of the immigrant electorate in each of the countries under study. Asylum  Asylum is a sensitive issue for many Western European countries. Accordingly, the data indicate that asylum clearly strikes a nerve when it comes to immigration control. The results show that asylum inflows are highly statistically significantly related to deportations. As asylum inflows increase, the immigration-to-deportation ratio significantly decreases. According to data from the UNHCR, the highest number of new asylum applications received by any of the countries under study from 2000 to 2009 was the 103,080 applications that were made in the United Kingdom in 2002. Using this figure as an illustrative example shows that an increase of 100,000 new asylum applications decreases the immigration-to-deportation ratio by as much as 30, which represents a nearly two-thirds of one standard deviation change. Moreover, as asylum inflows increase, deportations per total population also significantly increase. The results indicate that 100,000 new asylum applications increase deportations per total population by approximately 100. This represents a nearly one full standard deviation change in deportations per total population. The Politics of Immigration Control

The empirical analysis shows that deportations increase with the legislative representation of the far right. It is unclear, however, how much of this result is due to restrictive preferences among the public or to the political opportunity structures created by political institutions. My next step is thus to analyze this finding. Here, I develop and test a theoretical framework that connects the institutional context in which immigration politics plays out, and in which far-right political parties are embedded and must maneuver, with immigration control outcomes. I argue here that it is the electoral success of the far right in combination with proportional representation electoral rules that provide avenues for political actors who espouse the most restrictive preferences over immigration to exert pressure and influence over policy. Far-right political candidates and parties are strategic actors that function within institutional constraints that are determined by electoral rules. This reflects a truism rooted in Duverger’s law, which has further been confirmed by an established literature in comparative politics, that electoral rules determine the entry into party competition of minor parties and thus shape party systems

deportation nations 97

(see, e.g., Duverger, 1954; see also Cox, 1997; Grofman and Lijphart, 2003; Lijphart, 1999; Norris, 2004, 2005; Rae, 1967; Taagepera and Shugart, 1989). Electoral rules determine the electoral fortunes of far-right parties. The electoral success (or lack thereof) of France’s National Front (FN) provides us with an example. During its 1986 national legislative elections, France used a proportional representation system to elect deputies to its National Assembly. In that election, the FN won approximately 9.7 percent of the popular vote, which translated into thirty-five total seats or 6.1 percent of the legislative seat share. During the 1988 National Assembly elections, proportional representation rules were replaced by two-round runoff voting in single-member constituencies. As a result, although the FN won nearly the same total of votes that it had in 1986, the party received only one total seat as a result of the election. As Maurice Duverger (1954) long argued, majoritarian electoral rules (i.e., single-member district plurality or “first-past-the-post formulas”) tend to produce two-party systems. This impact depends on two effects: a mechanical effect, whereby the share of legislative seats obtained by minor parties is disproportionate to the share of popular votes they receive, and a psychological effect that disincentives rational voters from casting votes for minor parties. Rein Taagepera and Matthew S. Shugart (1989) describe the mechanical effects of electoral rules as being “mechanical” in the sense that, once electoral laws are in place, “no human manipulation or strategy is involved” in how votes are translated into seats (p. 80). The latter suggests that rational voters are less likely to support minor or fringe parties for fear of wasting their vote (see, e.g., Blais and Carty, 1991; Cox, 1997; Taagepera and Shugart, 1989). As a result, as Kitschelt (2007) writes, “Far right activists then might just join mainstream parties” (p. 1190). Thus, while public demand for the far right may very well exist, electoral rules strongly influence whether this demand is translated into votes during elections (Golder, 2003a). Electoral rules thus also play a role in shaping the electoral strategies of farright parties. Under proportional representation, the far right is able to gain seats by emphasizing cultural protectionist, xenophobic, and anti-immigrant appeals. However, in majoritarian systems, the far right must broaden their policy agendas in order to win votes from more diverse constituencies. As Pippa Norris (2005) writes, “Under majoritarian electoral rules, given the distribution of public opinion on issues [such as immigration] parties will repeatedly fail to surmount the hurdles to become elected on a sustained basis and they will remain marginalized at the periphery of power” (p. 28).

98  deportation nations

Proportional Representation and the Far Right  Perhaps more importantly, electoral rules provide the mechanism by which vote shares are translated into legislative seats. Under proportional representation electoral rules, legislative representation is largely commensurate with the share of votes that a party receives. As thresholds to enter into the political arena are lower, far-right political parties can be more successful under proportional representation as opposed to majoritarian electoral rules (Jackman and Volpert, 1996; Norris, 2005; Golder, 2003b). In other words, whereas majoritarian rules limit the far right’s access to legislative office, proportional representation rules create opportunities for it. Thus, as Norris concludes, “The type of electoral system is therefore critical in constraining the legislative influence of extreme parties, even where they tap into reservoirs of popular support” (p. 114). Thus, it is the interaction between the electoral system and the share of votes far-right parties receive that results in the increased restrictiveness of immigration control. As Figure 3.7 shows, the legislative representation of the far right is a function of electoral rules and public demand, which is reflected by vote shares. Table 3.4 lists the factors analyzed in the interaction model and their expected impact on restrictiveness. It is important to give note to a potential alternative argument. Kai Arzheimer and Elisabeth Carter (2006) posit a contrasting view in terms of the effects of electoral rules. In a study of twenty-four elections from 1984 to 2001, they find that the proportionality of electoral rules does not significantly predict support for far-right political parties. The authors suggest that the farright electorate may be unaware of the consequences of electoral rules or that the psychological effects of electoral rules may be weaker among the far-right

Electoral rules (institutional context) ×

Seat share (representation)

Restrictiveness

Vote share (public demand)

Figure 3.7  The politics of immigration control note: The relationship between electoral rules, the legislative representation of the far right, and immigration control outcomes.

deportation nations 99

Table 3.4  Factors

analyzed and expected effects: Interaction model

Factor

Expected impact: Restrictiveness

Proportional representation × Far-right vote share

+

Proportional representation

≠

Far-right vote share

≠

note: + means positively related to restrictiveness (e.g., the interaction between far-right vote shares and proportional representation electoral systems means increased restrictiveness). ≠ means an unlikely independent effect (e.g., a proportional representation electoral system alone is unlikely to impact restrictiveness).

electorate than they are for other voters (pp. 432–433). However, their study only includes seven countries and, while the methods they use are justified given their research question, they only analyze countries with significant levels of far-right support. This design does not permit a full examination of the counterfactual (i.e., what explains the absence of support for the far right in countries where far-right political parties have not made significant inroads). Moreover, the “immigration figures” analyzed in their study are limited to asylum inflows; in fact, they use the terms asylum and immigration interchangeably. Measures of immigrant inflows and the foreign-born population are not even considered. This finding is repeated in Arzheimer (2009), though the result is statistically insignificant. Figure 3.8 shows how the far-right vote share is translated into legislative seats under proportional representation versus majoritarian electoral rules. The vertical axis represents far-right vote shares. The horizontal axis represents far-right seat shares. The circles represent proportional representation systems and the triangles represent majoritarian systems. The figure shows that the 26.9 percent vote share that the FPÖ received during the 1999 National Council elections translated into a 28.4 percent seat share under proportional representation rules. It also shows that the combined 17.3 percent vote share that far-right parties in France received during the 1997 National Assembly elections translated into a mere .54 percent seat share under majoritarian rules. Figure 3.8 illustrates three points that support the interaction model: first, far-right vote and seat shares are distinct; second, vote shares themselves do not translate neatly into seat shares under majoritarian rules; and third, the interaction between proportional representation electoral rules and vote shares map neatly onto seat shares (r = .972). Given the interaction between electoral rules

100  deportation nations

30

Far-right seat share

25 20 15 10 5

0

5

10

15 Far-right vote share

Proportional representation 95% confidence interval

20

25

30

Majoritarian Fitted values

Figure 3.8  Electoral rules and the legislative representation of the far right note: The share of votes and seats won by far-right political parties in lower house elections from 2000 to 2009 for sixty-seven elections. Election results under proportional representation electoral rules indicated by open circles. Election results under majoritarian electoral rules indicated by solid circles. The fitted line represents the bivariate relationship between vote and seat shares under proportional representation rules.

and vote shares are highly correlated with seat shares, I can analyze the contribution of each of these factors separately, as well as their interaction. The first step in the multivariate analysis was to show that deportations increase with the far-right seat share. My second step is to evaluate how much of the result is due to public demand for increased policy restrictiveness (as reflected in the far-right vote share), as opposed to the institutional context that provides opportunities for the legislative representation of the far right (as reflected by proportional representation electoral rules). Table 3.5 examines the interaction between the far-right vote share and proportional representation electoral rules. These models differ slightly from the previous models in that they exclude country fixed effects given the multicollinearity that results when including a fixed effect and a country-level constant in the same model. Population density is used in lieu of country fixed effects to control for unobserved heterogeneity.16 The results confirm the interaction hypothesis. The results in Table 3.5 show that deportations per total population increase significantly with the inter­

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Table 3.5  Modeling

the impact of electoral institutions Model

Variable Proportional representation × Vote share

9 1.822* (.943)

10 1.814** (.737)

11 2.452** (.904)

2.008** (.713)

Proportional representation

−9.258 (6.295)

−8.825 (5.807)

Vote share

−1.284** (.429)

−1.323** (.404)

−1.641** (.383)

−1.439* (.368)

Right government

8.410 (8.450)

8.439 (8.662)

9.527 (7.768)

9.129 (7.991)

Election year

7.877 (7.993)

7.547 (8.209)

4.649 (8.317)

3.948 (8.584)

GDP percent growth

1.118 (1.838)

Unemployment rate New immigration

.079 (1.000) 14.770 (8.808)

−10.187 (5.837)

1.690 (1.759) −.950 (.989)

14.774 (8.965)

Foreign-born percentage of population Population density

−12.776* (6.176)

12

−.561 (.362)

−.696 (.426)

.046* (.022)

.045* (.021)

.041* (.021)

.037 (.019)

225

225

225

225

Country fixed effects Observations

note: Modeling the interaction between proportional representation and far-right vote shares. Crosssectional time-series regression models with panel-corrected standard errors (in parentheses). A lagged dependent variable is included, but not reported. Models do not include country fixed effects given the multicollinearity that results when including a fixed effect and a country-level constant in the same model. Population density is used in lieu of country fixed effects to control for unobserved heterogeneity. *Significant at .05 level. **Significant at .01 level or less.

action between proportional representation electoral rules and the far-right vote share. This finding is highly statistically significant and holds across each of the model specifications. I note here that the negative direction of the vote share result should not be interpreted to mean that deportations decrease as the far-right vote share increases. Because of the interaction term, the correct interpretation of this result is that deportations per total population decrease as the far-right vote share increases when the electoral system variable equals zero, meaning in majoritarian electoral systems. But as the interaction term shows, as the far-right vote share increases in proportional representation electoral systems, so too do deportations. Similarly, the negative direction of the

Deportations per total population (fitted values)

102  deportation nations

100

80

60

40

20 0

5

10 15 Far-right vote share Proportional representation

20

25

Majoritarian

Figure 3.9  Electoral rules, the far right, and deportation note: Deportations per 100,000 total population as the far-right vote share increases by electoral system. The solid line represents proportional representation electoral systems. The dashed line represents majoritarian electoral systems.

electoral system result should not be interpreted to mean that deportations decrease under proportional representation electoral rules. Because of the interaction term, the correct interpretation of this result is that deportations per total population decrease in proportional representation electoral systems, but only when the far-right vote share equals zero. Figure 3.9 graphically depicts these results. The solid line shows the positive relationship between the far-right vote share and deportations under proportional representation electoral rules. The dashed line shows the negative relationship between the far-right vote share and deportations under majoritarian electoral rules.17 Consistent with the expectations described earlier, the far-right vote share is itself insufficient for explaining increased deportations, as electoral rules have a significant moderating effect. I analyze these results and discuss illustrative cases in the next section. Electoral Rules, the Far Right, and the Politics of Control

The results indicate that the legislative representation of the far right, either measured by their legislative seat share or by the interaction between proportional representation electoral rules and vote shares, means more deportations.

deportation nations 103

The results also indicate that the far-right vote share alone does not lead to increased policy restrictiveness. Why? Because differences in electoral rules affect whether vote shares are translated into legislative representation. The contrasting cases of the Austrian FPÖ and the French FN illustrate the dynamics at play between electoral rules, the electoral success of the far right, and immigration control. The FPÖ has been one of the more prominent far-right political parties in Europe. When it comes to immigration, the FPÖ advocates that Austria close itself off from all non-European immigration—“Austria is for Austrians”— and, especially since 9/11, that Austria protect itself from the perceived cultural threat of Islam (Meret, 2009; Sully, 1997). The FPÖ further condemns immigrants as welfare abusers that threaten the viability of the Austrian welfare state. In fact, a recent party program describes immigrants as “subjects” who live at the expense of Austrian citizens (Meret, 2009). In 1999, the FPÖ won nearly 27 percent of the popular vote, gaining fifty-two seats in the National Council. In these elections, the FPÖ drew significant support among working-class voters and was the leading party among male voters (Messina, 2007). As a result of the party’s electoral success, the FPÖ entered into government as part of a coalition with the conservative Austrian People’s Party (ÖVP). The resulting coalition held 104 out of 183 legislative seats. In response to the inclusion of the FPÖ in government, fourteen European Union countries temporarily ceased formal relations with Austria, as cooperation with the FPÖ violated the cordon sanitaire against coalition agreements with far-right parties. This political context was further muddied by internal disputes within the FPÖ that later led to the party’s fractionalization. In fact, by 2005, internal disagreements led the former and late FPÖ leader Jörg Haider to break away from the party to form a new party, the Alliance for the Future of Austria (BZÖ). Altogether, in 2002, the party received only about 10 percent of the popular vote, which resulted in a net loss of thirty-four National Council seats. Deportations from Austria have largely mirrored the success and the failures of the FPÖ. While the FPÖ’s time in government was not smooth, the party was able to effectively put its stamp on Austria’s immigration control policies. Among the most significant of these changes was to allow for the deportation of rejected asylum seekers despite pending appeals (Meret, 2009). Other changes to Austria’s Asylum Act under the FPÖ included the force-­ feeding of asylum seekers during hunger strikes and expanded police authority in the area of immigration enforcement. From 1999 to 2001, at the peak of the

104  deportation nations

party’s popularity, Austria averaged 181 deportations per 100,000 total population. However, from 2002 to 2007, as the FPÖ lost 16.9 percent of its seat share, deportations decreased dramatically. During this period, Austria averaged 89 deportations per 100,000 total population. Consistent with expectations, deportations from Austria are again increasing, as the revamped FPÖ won a net gain of 7 percent of National Council seats in 2008. In contrast, the case of the FN shows how majoritarian rules can subdue the influence of the far right. The FN’s immigration platform is very clear: that all non-European immigrants be expelled from France, that France end all nonEuropean immigration, and that birthright citizenship (jus soli) be replaced with “right of blood” citizenship (jus sanguinis). As Messina (2007) describes, the FN is distinct from many of Europe’s fringe far-right parties in that “the FN’s electorate over time has become increasingly less inclined to support the party as simply a vehicle for diffuse political protest and has become more disposed to perceive the FN as a conduit for implementing meaningful political change” (p. 58). In 1997, the FN won nearly 15 percent of the popular vote in the first round of France’s National Assembly elections. However, despite its popular support, the FN won outright in only one electoral district. Thus, under majoritarian electoral rules, the FN won just one seat. This translated into a .2 percent legislative seat share (1 out of 577 seats) in the National Assembly. In contrast, during France’s 1986 National Assembly elections, which were conducted under proportional representation electoral rules, the FN won thirtyfive seats. In the absence of any significant legislative representation after the 1997 election, the FN had no direct institutional means of translating its preferences over immigration into policy outcomes. Accordingly, deportations from France remained largely constant despite the FN’s relative electoral success. The Far Right in Proportional Representation Systems

For countries that use proportional representation electoral rules, deportations increase and decrease with the far-right seat share. However, it is important to note that opportunities for the legislative representation of the far right varies among the countries that use proportional representation, as the costs of entering into party competition differ from system to system. As Givens (2005) finds, voting for the far right significantly declines when parties are perceived to be unable to overcome electoral thresholds. Moreover, as Norris (2005) finds, these thresholds exert a “critical mechanical impact” on the far-right seat share. On the other hand, Kitschelt (2007) notes that higher thresholds may some-

deportation nations 105

Deportations per total population (fitted values)

times discourage but also encourage far-right support. He writes, “The latter occurs when a party’s electoral base is perceived as being close to the threshold so that marginal increases by just a small percentage of citizens could make all the difference for legislative representation” (p. 1191). This, however, would not be sufficient for changing the relational dynamics between thresholds for representation, far-right electoral success, and immigration control outcomes, as parties that minimally surpass thresholds gain only a minimum allotment of seats. In looking at how thresholds for representation affect far-right seat shares, the data indicate that the average far-right seat share is 6.3 percent in countries with thresholds of less than 2 percent. For countries with thresholds of greater than 2 percent, the average seat share is approximately 5 percent. Figure 3.10 shows how the threshold for representation affects deportations among countries that use proportional representation rules when distinguishing between right- and left-leaning governments. As the figure indicates, deportations decrease as electoral thresholds increase for both right- and left-leaning

160

140

120

100

80

60 0

1

2 3 Threshold for legislative representation Right government

4

Left government

Figure 3.10  Electoral thresholds, the far right, and deportation note: Relationship between legislative thresholds and deportations among proportional representation electoral systems while distinguishing between right- and left-leaning governments. The solid line represents right-leaning governments. The dashed line represents left-leaning governments.

5

106  deportation nations

governments. While policy decisions may not be a direct function of thresholds for representation, this suggests that thresholds are important institutional constraints that far-right parties, their supporters, and the mainstream opposition, as strategic political actors, must consider. The Far Right in Majoritarian Systems

For countries that use majoritarian electoral rules, the data indicate that deportations decrease when the far-right vote share increases. This result seems counterintuitive, but it is consistent with the evidence and is explained mostly by France on the one end and the United States on the other. Among the majoritarian systems studied here, which include Australia, Canada, France, the United Kingdom, and the United States, the far right has been most successful in France. The far right in Australia, led by Pauline Hanson’s One Nation (ON) party, also achieved some success, reaching a peak of 8.4 and 4.3 percent of the national vote during the 1998 and 2001 federal elections, respectively. Despite the relative electoral success of the far right in France and in Australia, among the majoritarian systems, deportations are lowest in these two countries during the time period under study. In fact, among the five majoritarian countries, deportations have been highest where the far right has been least successful (the United States and the United Kingdom) and are lowest where the far right has been most successful (France and Australia). In majoritarian systems, when a viable party exists that can appeal to the far-right portion of the electorate, the far right has been able to make inroads at the ballot box (e.g., France). When the far-right electorate supports these minor or fringe parties, the remainder of the electorate, by definition, becomes more moderate. Thus, in order to appeal to such an electorate, mainstream political parties may distance themselves from the far right by adopting commensurately moderate policy positions. This potentially explains the lower number of deportations we see in France relative to the other majoritarian countries. Conversely, where the far-right vote share is negligible or even nonexistent, either because no viable party exists or the far-right electorate is voting strategically (i.e., not wasting their vote), this portion of the electorate remains up for grabs. In this context, mainstream parties may adopt more restrictive immigration policies in order to appeal to a far-right electorate that has no party to represent it. As immigration can be an issue that crosses party and ideological lines among voters, it would be unwise to assume that the far-right electorate is a captured one (i.e., by conservative, right-leaning parties). This dynamic

deportation nations 107

potentially explains why deportation trends continue to climb upward in the United States irrespective of the political orientation of the government. In the United States, both Democrats and Republicans have been implicated in restrictive turns in immigration control. Whereas “Operation Wetback” in 1954 and the restrictive components of the Immigration Reform and Control Act in 1986 came under Republican administrations, the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, as well as the record number of deportations in recent years, have come under Democratic administrations. Conclusion

Deportation is one of the most heavy-handed tools of the state when it comes to immigration control. Despite its prominence, few studies have examined contemporary trends in deportation or their determinants across countries or over time. This chapter addresses this gap by examining new data on deportations collected across twenty-five Western immigrant-receiving democracies from 2000 to 2009. The analysis yields several significant findings. First, during this period, these countries combined to account for approximately 5.6 million deportations. In just over a decade, the combined total number of deportations has increased by almost 30 percent. Second, the most dramatic increase in deportations has occurred in the United States. Third, while deportations from the United States have increased, deportations from the EU-28 have declined. In fact, starting in 2006, the United States deported more people than all of the immigrant-receiving countries of the EU-28 combined. Fourth, in analyzing deportations in relation to immigration, the data show that the ratio of immigrants admitted to the number of people deported has grown for most of the period under study. Lastly, whether examined through the lens of the immigration-to-deportation ratio or deportations per total population, the data show that substantial cross-national variation exists in the deportation efforts of Western immigrant-receiving democracies. What does the analysis tell us about the politics and determinants of deportation? Much of the current theorizing about immigration policy is deeply rooted in the logic of economic markets and assigns causal importance to macroeconomic and structural factors. As Hollifield, Hunt, and Tichenor (2008) describe, economic theories of immigration policy often assume “that government actions designed to control immigration are of little or no explanatory importance. Either policy interventions by national states merely rubber-stamp labor market demands and the business cycle, or they have no effect because

108  deportation nations

they defy determining economic forces” (p. 10). In a departure from existing theories, I argue that the politics of immigration control often leads to outcomes that belie the conventional expectation that policy restrictiveness simply (and necessarily) oscillates in tandem with economic booms and busts. Indeed, while a worsening economy may increase public demand for tighter immigration policy restrictiveness—thus prompting states to pay closer attention to, and to invest more heavily in, the practice of deportation—public demand alone does not always neatly translate into policy outcomes. I develop and test a theoretical framework that connects the electoral “rules of the game” and the legislative representation of the far right with immigration control outcomes. Whereas proportional representation electoral rules provide opportunities for the far right to exert pressure and influence over immigration policymaking by translating votes into seats, majoritarian rules dampen such opportunities by limiting their access to legislative representation. Indeed, whereas the share of votes far-right political parties receive may reflect public demand for increased policy restrictiveness, it is the legislative representation of these parties that provides the link between public demand and policy outcomes.

4

The Labyrinth of Immigration Detention

interviewee:

I’m trapped here, I can’t get on the ferry [to mainland Spain], I can’t work. I can do nothing, but wait. interviewer: Does this make you want to go back home? interviewee: Home? I don’t have a home. I have nothing to go back to. All I have is this. —Undocumented Ghanaian, Ceuta, Spain

CONCERNS OVER the human rights implications and legality of immigration detention, particularly as it relates to detaining vulnerable persons, have led to sharp scrutiny of this increasingly widespread mechanism of immigration control. In the United States, since ICE was created in 2003, 107 people have died in immigration detention (Bernstein, 2011). This may not seem like an overwhelming total given the hundreds of thousands of people ICE detains annually, and even the social scientist may be tempted to equate the incidence of death in immigration detention to that of other forms of detention or even with broader trends in mortality. However, not only are each of these deaths deeply meaningful, but they take on added importance when it requires the combined efforts of the New York Times and the American Civil Liberties Union, as well as a Freedom of Information Act request, for them to become known. Indeed, it is the secretiveness of, and the lack of transparency in, immigration detention that adds urgency to the human rights and international legal claims that are directed toward this particular mechanism of immigration control. Immigration detention refers to the deprivation of liberty—most often, but not always, of an unauthorized noncitizen—for migration-related reasons, including unlawful presence or detention pending deportation. The UNHCR and OHCHR (2011) define immigration detention as “the holding in detention of individuals suspected of illegal entry, unauthorized arrival, visa violations, and those subject to procedures for deportation and removal” (p. 2).1 While 109

110  The labyrinth of immigration detention

some may question the extent to which these persons can accurately be described as being deprived of their liberty, given they are free to return to their respective countries of origin, the fact that persons may voluntary leave, but are involuntarily restricted in their movements if they do not do so, does in fact amount to a deprivation of liberty. On this point, the European Committee for the Prevention of Torture refers to the 1996 European Court of Human Rights decision in Amuur v. France, 1996.2 In this decision, the ECtHR ruled that holding asylum seekers in international transit zones, such as airports, violated their right to liberty as granted in the ECHR. Accordingly, the UNHCR further describes conditions of immigration detention as “confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory” (UNHCR, 1999). Such conditions serve not only to isolate migrants, but they also reinforce the literal and the figurative barriers that keep unauthorized immigrants apart from, and outsiders to, society. As Susan B. Coutin (2005) describes, immigration detention provides states with a “means of sorting out those who do not belong” (p. 12). Moreover, it reflects what Michael Welch (2002) and Liza Schuster (2005) refer to as the “criminology of the other.” It is important to note that immigration detention is distinct from criminal detention or detention for security purposes (e.g., for terrorism-related reasons), as these involve detention on the grounds of having committed a criminal offense or for national security reasons. Mary Bosworth and Emma Kaufman (2011) view the general detention of noncitizens along a continuum with detention for migration-related reasons on one end and “at the most extreme end, those ‘captured’ in pursuit of the ‘war on terror’ are detained in a web of facilities, most of which are offshore” (p. 102). It follows that the ICRMW, along with a host of other international and regional human rights instruments (see Chapter 2), requires that those held in immigration detention be kept separately from convicted persons or persons detained pending criminal trial. While immigration detention is not entirely controversial, at least, to the extent that it involves noncitizens and serves as an intermediary step in the process of removal, the simple snapshot view that detention is limited to “unwanted” immigrants and that it necessarily precedes deportation belies the more complex realities of how this mechanism of immigration control works in practice. I refer to these complexities as the labyrinthine processes of immigration detention.

The labyrinth of immigration detention 111

To illustrate, forms of immigration detention include front-end detention, which is detention upon entering a country, and back-end detention, which is detention pending deportation. Though seemingly benign, these distinctions can have serious implications for the length of detention, as well as for the legal recourse available to immigrant detainees. For example, when U.S. Customs and Border Protection detains persons who are apprehended at the border, this type of front-end detention effectively strips persons of “any form of review by an immigration judge,” as U.S. immigration courts generally do not have jurisdiction over the decisions made (e.g., expedited removal) by enforcement agencies (Amnesty International, 2009, p. 14). In the United Kingdom, the front-end detention of asylum seekers who are nationals of so-called safe countries, which, at the time of this writing, include several countries that are currently experiencing or have recently transitioned from conflict and political violence, including Sierra Leone and Nigeria, among others, funnels people into the category of “detained non-suspensive appeals,” which are asylum cases that are deemed to be patently unfounded. These migrants are promptly deported and can only appeal their cases from outside of the United Kingdom. Immigration detention processes in the United Kingdom also include a “detained fast track” (DFT) process, which is a form of expedited review of asylum claims. The DFT process has drawn heavy criticism from human rights groups for not meeting “basic standards of fairness,” particularly when it comes to complex cases involving “rape, slavery, the threat of ‘honor killings,’ and other complex claims” (Human Rights Watch [HRW], 2010). Regarding back-end detention, immigration rules in the United States provide an illustrative example. U.S. immigration policies allow for mandatory and potentially indefinite detention. Prior to 1996, the mandatory detention of “criminal aliens” was mostly limited to those who were considered to be security threats or flight risks. However, with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the grounds for mandatory detention were greatly expanded to include those convicted of minor drug offenses, as well as a long menu of criminal misdemeanors. With respect to indefinite detention, the U.S. Supreme Court ruled in Zadvydas v. Davis et al., 2001, that unauthorized immigrants can be detained for up to ninety days pending their deportation.3 However, if the person is not removed by this ninety-day period, and if there is no realistic expectation that the person can be deported (e.g., due to statelessness or if the United States does not have a repatriation agreement with the country of origin), the person is to be released, as potentially indefinite detention given these

112  The labyrinth of immigration detention

circumstances would be unconstitutional. Despite the ruling in Zadvydas v. Davis et al., 2001, in practice, as Bosworth and Kaufman (2011) note, immigration authorities “can extend the deportation period as many times as it wants under a broad ‘reasonable time’ standard” (p. 110). Detention policies in Australia, as discussed earlier, provide another example of potentially indefinite detention. The complexities of immigration detention are also apparent in what I refer to as the “identification problem” of immigration control. The Identification Problem

The identification problem with respect to immigration control refers to the difficulty of distinguishing the would-be subjects of immigration control from the broader population at large. The identification problem has long plagued immigration enforcement efforts. For example, recalling the earlier discussion of “Operation Wetback” in the United States in 1954, identification checks of “Mexican looking” persons resulted in the deportation of a large number of American citizens to Mexico (Massey, 2007).4 I first discuss the identification problem from a conceptual perspective and then from a more applied and practical one. Conceptually, “illegality” as a category to describe individuals or groups is an opaque construct that, underneath the veneer of the political and popular rhetoric surrounding the “illegal,” includes a variegated array of people that potentially intersects all national origins, classes, languages, and migratory histories; in other words, just as everyone is a foreigner somewhere, so too can anyone be “illegal” somewhere. When it comes to immigration detention, illegality and consequent deportability are often presumed; however, both are rarely so obvious. For example, as immigration control is actually practiced, a Canadian national living in the United States without authorization is largely indistinguishable from the broader population, especially if the Canadian is white and speaks fluent English. Not just a matter of supposition, the text of a restrictive state-level immigration bill that was introduced in Florida in 2010— the Florida Immigration Enforcement Act (see Figure 4.1)—instructed police to presume that Canadian citizens were in the country legally and, hence, were not the subjects of tightened immigration control efforts. The act further stated that police could accept the presentation of a passport from any one of thirtysix visa waiver program countries (mostly Western European countries) as evidence of lawful presence. The act was voted down in 2010 and again in 2011. Conversely, in a story that attracted national news media attention in the United States, a Mexican American father of four was detained for several days

The labyrinth of immigration detention 113

Figure 4.1  Florida Immigration Enforcement Act note: The act instructs law enforcement to presume legal status if one can show proof of Canadian citizenship or a valid passport from a visa waiver program country.

in immigration detention on suspicion of being in the country without authorization, despite the man repeatedly telling immigration officials that he was an American citizen. When asked why he believed that immigration officials did not believe that he was a citizen, his response was, “I look 100 percent Mexican” (Preston, 2011). Hardly an isolated case, recent research has revealed what appears to be a systematic rate in which ICE detains American citizens for migration-related reasons (Stevens, 2011). Indeed, when distinguishing between people on the basis of immigration status becomes a haphazard or even a deliberate exercise in racial and ethnic discrimination, serious rights issues emerge. As Jacqueline Stevens (2011) writes, “The mistaken deprivation of citizenship rights effects a legal death [that] triggers a series of events that include a range of extremely serious harms, from the loss of political rights to brutal physical and emotional hardships” (p. 612). It also forms the basis for the racialization of immigration control, as it creates a selection effect over illegality, wherein the “illegal” becomes synonymous with broad and often ill-defined racial and ethnic categorizations, such as Hispanic and Latino in the U.S. context or African and Asian (which subsumes those from the Middle East, South Asians, and East Asians) in the European context.

114  The labyrinth of immigration detention

The identification problem is also a literal one. So much of immigration detention, which begins with the issue of “papers” (or the lack thereof), involves knowing who people are, as well as the circumstances of their migratory experiences. However, even the seemingly mundane processes involved in establishing identity can have severe consequences that make it important to distinguish between presuming illegality and establishing it. Presuming illegality and establishing illegality are distinct aspects of the identification problem. As one immigration enforcement official put it, the former often reflects an “evidence-based pragmatism” that pits the state against unauthorized immigrants who have developed strategies to conceal and even obliterate all traces of their identities.5 Engbersen and Broeders (2009) identify three main variants of these strategies. The first is the “structural or situational adoption of a false identity” through forged or legitimate documents (e.g., passports and work or residence permits). The second involves destroying identity documents to separate oneself from one’s own legal identity. And the last is to conceal unauthorized immigration status from others. Establishing illegality, on the other hand, can in some cases involve relentless efforts to verify or acquire identity and travel documents (e.g., passports, identity cards, or birth certificates), biometrics (e.g., fingerprint matching), DNA tests or language analyses to determine nationality, and various forms of medical testing (e.g., dental X-rays and bone scans) to determine age.6 In fact, a large percentage of persons held in immigration detention in Europe are “identity detention cases,” wherein the identities of the detained migrants have yet to be established or verified (Khosravi, 2009). Paradoxically, whereas the initial inability to establish identity provides de facto evidence of illegality, the continued inability to establish identity potentially provides de facto (albeit temporary) relief from deportation. As Broeders and Engbersen (2007) write, “Irregular migrants can prevent and obstruct deportation by destroying their identification papers (e.g., their passports). Unidentifiable irregular migrants are the ‘unmanageable’ cases with which the immigration authorities have difficulty coping, and they are seldom deported” (p. 1598). To illustrate, in 2009, the United Kingdom Border Agency (UKBA) launched a pilot program that used isotope analysis and DNA testing in order to establish the nationalities of certain migrants. According to the UKBA field manual titled “Nationality Swapping—Isotope Analysis and DNA Testing,” those subjected to these tests needed to be adults who claimed to be of Somali nationality and had already undergone language analysis testing, wherein the results of the language analysis suggested that the person was not from Somalia.

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The testing also applied to those claiming to be nationals of Ethiopia, Eritrea, Kenya, Uganda, and Sudan. This program, which was scrapped in 2011 after it was widely criticized by scientists as being unreliable (Travis, 2011), was undertaken in response to concerns that asylum seekers were claiming to be nationals of war-torn countries in order to prevent their deportation under the principle of non-refoulement. To be clear, while the inability to establish identity can in some cases delay deportation (while also prolonging detention), this should not be construed only as some sort of gain, as the processes involved in establishing identity can also create undue hardships for migrants. It should also be noted that the inability to firmly establish identity does not preclude immigration enforcement agencies from attempting to carry out the work of immigration control. To illustrate, in early 2011, the Swedish Migration Board (Migrationsverket) deported a family whose asylum application was rejected to Uzbekistan. Upon arriving in Uzbekistan, Uzbek authorities quickly determined that the family was not Uzbek at all, as their identification documents were fraudulent and the addresses that the documents listed did not actually exist. Consequently, the family was returned to Sweden and placed back in immigration detention. The Migrationsverket acknowledged that although there was evidence to suggest that the family was from Uzbekistan, they could also have been from Azerbaijan, Georgia, or Turkey. This story was covered in an aptly titled article “Sweden Deported Family to Wrong Country” (The Local [Sweden], 2011). As the preceding examples illustrate, immigration detention demands knowing who people are. However, the work of establishing identity has been disproportionately preoccupied with substantiating illegality in order to justify detention and to facilitate deportation, to the neglect of understanding the migratory experiences of individuals. The significance of this cannot be overstated, as these experiences—whether one is escaping persecution, is a victim of human trafficking, is a torture survivor, or is an unaccompanied minor, among other examples—can potentially mean the difference between detention, deportation, or refuge. Yet, existing research has insufficiently problematized the immigration control objectives related to identification. For example, a “detain first, ask questions later” approach to immigration detention can potentially subject individuals who have escaped persecution in their countries of origin to new forms of persecution in the course of being detained. Moreover, such an approach is likely to mean that legitimate asylum seekers are treated as “bogus” until proven otherwise. Such trends leave increasingly little space for what the

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Special Rapporteur on the Human Rights of Migrants refers to as a rightsbased approach to managing migration governance. Immigration Detention and the Principle of Proportionality

In addition to the human rights and immigration control wrongs discussed in Chapter 2, the international legal principle of proportionality has increasingly been invoked along with human rights claims in relation to immigration detention. To recall, many of the human rights claims made against immigration detention center on protections against arbitrary or unlawful detention. These protections are articulated in Article 16(4) of the ICRMW, Article 9(1) of the ICCPR, Article 7 of the Pact of San Jose, and Article 5 of the ECHR, among other international and regional human rights instruments. When applied to immigration control, the principle of proportionality provides that the various mechanisms of immigration control, particularly the most coercive policies and practices, should not produce consequences in excess of what is necessary to achieve the objectives established in immigration law. Moreover, should it be possible for these objectives to be achieved using other, less coercive measures, the most punitive aspects of the machinery of immigration control should be abandoned altogether. When applied to immigration detention, the principle of proportionality suggests that, as a UNHCR expert analysis notes, immigration detention should be limited to “a measure of last resort” (UNHCR, 2011, p. 15). For example, to the extent that the initial screening of unauthorized immigrants and efforts to establish identity can be accomplished beyond the bars of prisons or outside the walls of immigration detention sites, then mandatory immigration detention is neither necessary nor proportional. Moreover, even pending deportation, immigration detention is only necessary if there is a wellfounded risk of absconding or if the person who is to be deported is otherwise hindering the removal process. Indeed, as the UNHCR and the OHCHR (2011) describe, “Detention can only be justified where other less invasive or coercive measures have been considered and found insufficient to safeguard the lawful governmental objective pursued by detention” (p. 3). Moreover, as inadequate consideration has been paid to alternatives to detention (ATDs), immigration detention “exceeds the legitimate interests of States.”7 The United Nations Special Rapporteur on the Human Rights of Migrants has also invoked the principle of proportionality in his efforts to promote a rights-based approach to managing migration. In a 2010 report to the General Assembly, the Special Rapporteur (Jorge Bustamante, 2005–2011) states sim-

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ply that immigration detention cannot be considered proportionate (or even necessary) if less restrictive measures to achieve the same objectives of immigration control have not been considered. It is thus, according to the Special Rapporteur, “deeply regrettable” that for many immigrant-receiving countries, immigration detention is not only the main or only interim measure to ensure the efficacy of immigration control, but that it is increasingly looked upon as a deterrent measure to prevent further irregular migration. As the Special Rapporteur continues, “these objectives cannot justify the widespread and increasing use of immigration detention” and “States should [. . .] progressively abolish it” (UN Human Rights Council [HRC], 2010, p. 8). The report goes on to identify several ATDs, including registration requirements, reporting or monitoring conditions, financial guarantees, or an obligation to stay at a designated address, among others. Consistent with the principle of proportionality, these noncarceral ATDs should, as the Special Rapporteur concludes, “always be explicitly considered before resorting to detention, with the least restrictive measures considered first” (HRC, 2010, p. 23). Indeed, the corollary to the principle of proportionality in the context of immigration detention is the identification of alternatives to detention. Accordingly, ATDs have assumed an increasingly prominent role in the discourse surrounding the use of detention as a mechanism of immigration control. In May 2011, the UNHCR and the OHCHR organized the first Global Roundtable on Alternatives to Detention (the Roundtable). This came on the heels of several international and regional meetings that took place between 2009 and 2010 on the issue of immigration detention. These include the 2009 UNHCRNGO Consultations, a 2010 UNHCR-organized East Asian Roundtable on Alternatives to Detention in Seoul, a 2010 Regional Consultation on Detention of Asylum Seekers and Refugees in Bangkok, and panel discussions on the human rights of migrants and immigration detention during the 12th and 13th sessions of the Human Rights Council. Reflecting the groundswell of opposition to immigration detention rooted in arguments centered on the principle of proportionality, the report of the Roundtable concludes that states should avoid criminalizing unauthorized immigrants by “imposing penal sanctions or conditions of treatment that are not suitable to persons who have not committed a crime” and that ATDs must be “part of any assessment of the necessity and proportionality of detention” (UNHCR and OHCHR, 2011, p. 2). There is some evidence to suggest that the principle of proportionality has woven its way into migration governance and into the practice of immigration detention. For example, attention to the principle of proportionality is clearly

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paid in the European Union Returns Directive (Returns Directive). The preamble of the Returns Directive states, “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.” Article 15 of the Returns Directive further states that if there is no reasonable prospect for the removal of an unauthorized immigrant, immigration detention can no longer be justified and “the person concerned shall be released immediately.” It is important to note, however, that the governing structure of the EU is such that the primary responsibility for incorporating directives into national law lies with member states, which makes the transposition of directives a slow and sometimes painstaking process. For example, in response to a 2010 query about how it was incorporating the Returns Directive into national immigration law, the German government responded simply: “A decision on how [the Returns Directive] is to be implemented has yet to be reached in Germany” (European Migration Network [EMN], 2010). Indeed, the vast majority of the sixteen countries that responded to the query stated that transposition of the Returns Directive was still in progress. Moreover, the Returns Directive does not impact the United Kingdom and Ireland, as these countries have not opted into this area of European Union law. Here again, broad-based efforts to promote a human rights–based approach to migration governance confront the sovereign right of states to control their borders. The Special Rapporteur urges states to “revise and reform their immigration laws and decriminalize irregular migration,” as well as to “not deprive migrants of their right to liberty because of their migration status” (UN, 2010, p. 21). The UNHCR similarly argues that governments should move away from the practice of immigration detention, as international law compels them to institute more open and “human rights-compatible” reception conditions (UNHCR, 2011). However, as discussed in Chapter 2, such a rights-based shift is unlikely, as it imposes high sovereignty costs over the practice of immigration control. This does not absolve states of their human rights obligations. It does, however, provide a clear example of what is, perhaps, one of the most important yet unresolved controversies of our current age of migration: Where do the prerogatives of immigration control end and where do the human rights of migrants begin? Emergent human rights norms related to noncitizens lay the foundation for an answer to this question that combines human rights

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principles with the ongoing efforts of human rights institutions, immigrantserving organizations, and by migrants themselves to confront and contest the machinery of immigration control. The continued and evolving practices of states, however, casts a very different and opposing structure. Despite persistent and ongoing criticisms, the increased prevalence of immigration detention suggests that questions of rights remain ancillary to questions of control when it comes to matters of irregular migration. Indeed, the prevalence of immigration detention is increasing (Flynn, 2014) despite mounting international case law that has found detention for migrationrelated reasons to be disproportionate to the objectives of immigration control, unnecessary, and in some cases, even arbitrary or tantamount to inhuman and degrading treatment.8 The following thus describes conditions of immigration detention in the United States and in Europe in order to further dramatize the severity of the practice and the importance of our continued attention to it. Immigration Detention in the United States

In the United States, immigration detention is a booming industry. As is frequently cited, the annual rate of growth in the number of people held in immigration detention has outpaced the annual rate of growth of the rest of the overall federal prison population. But just how widespread is this web of immigration detention? The system of immigration detention in the United States is often described as a “haphazard network of privately run jails, federal centers and county cells” (Bernstein, 2011). The task of immigration detention rests primarily with two agencies within the Department of Homeland Security. Generally speaking, Customs and Border Protection (CBP) is responsible for the detention of those who are apprehended while attempting to enter the United States without authorization (or who are apprehended within 100 miles of the border) while Immigration and Customs Enforcement (ICE) is responsible for the detention of those who are apprehended during the course of interior immigration enforcement. As CBP can simply “return” those who it apprehends at the border, ICE becomes principally responsible for operating this “haphazard network” of immigration detention in the United States. More specifically, at the time of this writing, ICE operates eight immigration detention facilities and makes use of five Federal Bureau of Prisons sites. It also contracts its immigration detention responsibilities out to seven private detention centers and to approximately 350 state and county jails (Amnesty International, 2009). As discussed in Chapter

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3, the launch of the Secure Borders Initiative in 2005 greatly expanded the resources of ICE, and thus its detention capacity. Accordingly, from 2005 to 2010, the number of persons detained annually increased by approximately 64 percent, jumping from 233,417 to 383,615 (Transactional Records Access Clearinghouse [TRAC], n.d.). Moreover, in 2010, an average of 29,343 detainees were housed per day at an average daily cost of $122 USD. No discussion of immigration detention in the United States is complete without mention of the detention bed mandate. The detention bed mandate, which first appeared in 2007, is a budget line item that funds immigration detention. The Department of Homeland Security Appropriations Act of 2014 states that “funding under this heading [U.S. Customs and Immigration Enforcement Salaries and Expenses] shall maintain a level of not less than 34,000 detention beds [. . .] That of the total amount provided [appropriated to DHS], not less than $2,835,581,000 is for detention and removal operations.” The detention bed mandate, in other words, provides ICE with the resources (approximately $3 billion USD) to detain 34,000 unauthorized immigrants on any given day. However, the language of the mandate, “maintain a level not less than,” has been interpreted by many as a detention quota. The detention bed mandate thus continues to be a contentious issue in the immigration reform debate in the United States. Conditions of Immigration Detention

To begin, reports on conditions of immigration detention in the United States have repeatedly found that torture survivors, victims of human trafficking, and even legal permanent residents and American citizens have been detained (Amnesty International, 2009; Physicians for Human Rights and the Bellevue/ NYU Program for Survivors of Torture, 2003). The detention of torture survivors and victims of human trafficking raise serious human rights concerns, as these individuals are afforded a dense set of protections under international human rights law. When it comes to the detention of American citizens, as I alluded to at the outset of the chapter, immigration detention is not always exclusive to noncitizens. Over the past ten years, Amnesty International has documented 117 cases in which citizens or permanent residents have been detained for migration-related reasons. More recently, in a study of two immigration detention facilities in Arizona, Stevens (2011) finds that about 1 percent of detainees are American citizens. Moreover, in a highly publicized case in 2007, an American citizen, Pedro Guzman, was detained by ICE and subsequently

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deported to Mexico. As reported by the Los Angeles Times, Guzman, a developmentally disabled man, spent much of his nearly three months in Mexico “on foot, avoiding human contact, eating from garbage cans and bathing in rivers” (Quinones, 2007). The accounts that have been put together about conditions of immigration detention in the United States paint a bleak portrait. According to Amnesty International (2009), some of the “pervasive problems” that exist include the comingling of noncriminal immigrant detainees with individuals convicted of criminal offenses, the inappropriate and excessive use of restraints, lack of access to legal services, and poor or inadequate healthcare. The Detention Watch Network (DWN), a national coalition of organizations that monitors immigration detention in the United States, has found what it describes as “egregious conditions of confinement,” which include physical and sexual abuse, overcrowding, discrimination, racism, shackling, and the use of tasers for disciplinary purposes (DWN, n.d.). Another account of conditions of immigration detention in the United States finds that female detainees, including minors, are regularly coerced into performing sexual favors in exchange for promises of release (Dow, 2004). Since 1997, the New York Times has reported regularly on the abuse of immigrant detainees, as well as on the deaths of detainees while in custody. One of these reports is about a Nigerian man who fled his country in 1995 over fears of political imprisonment and torture after his brother was charged by the country’s military dictatorship with treason for allegedly plotting a coup. When he arrived in the United States, instead of finding refuge, he was immediately detained. During the course of his detention, he was transferred to a county jail where guards “stomped on him, forced him to kneel naked for hours, pushed his head in a toilet, left him to sleep naked on a bare mattress and subjected him to racist invective” (Dugger, 1997). Twelve guards at the jail were ultimately indicted for beating and degrading immigrant detainees. A more recent report centers on the story of a Guinean man who, in 2007, died while in ICE custody. As described by the New York Times, the internal records maintained by the Corrections Corporation of America, a publicly traded prison firm that was in charge of the detention facility where the man was held, reveals that he was “shackled and pinned to the floor of the medical unit as he moaned and vomited, then left in a disciplinary cell for more than 13 hours, despite repeated notations that he was unresponsive and intermittently foaming at the mouth” (Bernstein, 2008).

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In 2008, perhaps in response to mounting allegations of abuse, ICE released new guidelines related to conditions of immigration detention. These guidelines include forty-one “performance-based national detention standards” (PBNDS). As ICE describes, these standards are consistent with the agency’s “desire to employ best practices and industry standards to improving the quality of life and conditions of confinement for every individual ICE detainee” (ICE, 2011a). The standards relate to safety, personal security, care, and justice, among other categories.9 While the PBNDS represent some movement forward, they are not legally binding and their implementation is not subject to independent scrutiny. In fact, a 2008 Office of the Inspector General (OIG) report titled ICE Policies Related to Detainee Deaths and the Oversight of Immigration Detention Facilities concluded that while ICE is taking steps to improve the oversight of its detention facilities, it “should revise certain policies and standards to gain a more complete understanding of facilities’ compliance status. By improving its oversight methodology, ICE will improve both standards compliance and detainee safety” (OIG, 2008, p. 19). Moreover, the ever-sprawling immigration detention complex in the United States exacerbates the problem of oversight and review. Thus, there remains cause to be skeptical that these standards will result in any real and substantive changes in the workings of immigration detention in the United States. To illustrate, in 2009, after the introduction of the PBNDS, ICE was forced to terminate its contract with the Donald W. Wyatt Detention Facility (WDF) after the death of a male Chinese national, Jason Hiu Liu Ng. This death prompted an investigation by ICE’s Office of Professional Responsibility. Initially classified as “sensitive” and labeled for “official use only,” the report of the investigation was ultimately made public via a Freedom of Information Act request. The thirty-three-page report details Mr. Ng’s experience in immigration detention, which spanned from July 2007 to August 2008. On one occasion, WDF staff observed Mr. Ng “sitting on the bed, crying, and stating he could not move” (ICEOPR, 2009, p. 15). A doctor, after seeing that Mr. Ng had weakness in his right leg and was unable to stand, authorized the use of a wheelchair. WDF staff did not, however, provide one. In one account when Mr. Ng needed to be transported, still being unable to walk and not having a wheelchair, he was physically lifted from his bed by detention staff. As the report describes, “As Captain [redacted] and Officer [redacted] lifted Mr. Ng, he began to scream loudly. Captain [redacted] and Officer [redacted] proceeded to carry Mr. Ng down the hallway, face forward, allowing his feet to drag on the ground. Mr. Ng

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continued to scream as he was being carried away” (p. 15). In a separate incident, and still without a wheelchair, Mr. Ng was “carried stomach down by four WDF guards. One guard holding each arm and leg. Mr. Ng has restraints on his hands and feet” (pp. 16–17). These incidents occurred just days before Mr. Ng was found immobile on his bed. Having urinated and defecated on himself, WDF medical staff ordered emergency tests. Mr. Ng was transported to a hospital where an MRI revealed a potentially fractured spine and a tumor in his liver. Just five days after being transferred to the hospital, where he remained restrained and under WDF supervision, Mr. Ng died. After repeatedly being told to stop crying and whining by WDF staff for not being able to walk and being called a “fucking idiot” by a senior officer (p. 30), Mr. Ng in fact died from complications arising from an extensive form of liver cancer. Prior to his death, Mr. Ng’s attorney wrote a letter to the deportation officer in charge of his client’s case about Mr. Ng’s deteriorating health and about his being denied appropriate medical treatment. In her affidavit, the deportation officer stated that she did not receive the letter until after the death and, therefore, did not respond to it. Immigration Detention in Europe

Conditions of immigration detention vary widely across Europe. For examples, as discussed in Chapter 2, while nearly all facets of immigration detention in Greece have been vigorously maligned and criticized, the detention practices of the large majority of European countries have not been found to amount to inhuman and degrading treatment and punishment. Several other important differences also exist. For example, there are significant differences across countries in the maximum length of time that a person can be held in immigration detention. While the Returns Directive sets the maximum period of detention at eighteen months for most European countries, the de facto length of detention ranges, at the time of this writing, from a low of thirty-two days in France to potentially indefinite detention in countries such as Denmark, the Netherlands, and the United Kingdom (Global Detention Project, n.d.). Moreover, while the Returns Directive requires that families be “provided with separate accommodation guaranteeing adequate privacy” (European Parliament and the Council of the European Union, 2008), an Amnesty International (2008) report on the detention of unauthorized immigrants and asylum seekers in the Netherlands found that over the course of a year, 142 families, including 235 children, were held in immigration detention

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facilities. Some were detained for as many as 187 days. The physical infrastructure of immigration detention also varies across Europe. The Returns Directive further requires that migrant detainees be held, insofar as possible, in specialized facilities (i.e., not prisons). However, whereas some countries have built facilities dedicated exclusively for the purposes of immigration detention, others have either relied on existing prison infrastructures, used a combination of new immigration detention and existing prison facilities, or have even created tent compounds or used abandoned warehouses as immigration detention sites (see the example of Malta below). Other differences revolve around whether administrative responsibility for immigration detention resides with government ministries, police, or other authorities, as well as the emphasis placed on the distinctions between criminal and administrative detention. Conditions of Immigration Detention

A recent large-scale study, which includes 685 interviews conducted with detainees in twenty-three European Union member states, provides firsthand accounts of conditions of immigration detention in Europe (Jesuit Refugee Service [JRS], 2010). Incidents of physical abuse, either at the hands of security guards or at the hands of other detainees, were uncovered in seventeen of the twenty-three countries. Psychological abuse and stress were also recurrent themes, as detainees reported being depressed, anxious, and had worsening self-perceptions as a result of their detention. Inadequate medical care, overcrowding, unsanitary toilets and showers, as well as other unhygienic conditions were also widespread. By compiling the demographic characteristics of the interviewees, the study finds that persons detained for migration-related reasons in Europe are generally male, single, about thirty years old, are most likely to be West African, South Asian, or Middle Eastern, and are detained for an average of three months (although one person reported being detained for three years). Asylum seekers tend to be detained, on average, one month longer than other detained persons. Another important finding is that many who are held in immigration detention do not fully understand why they are being detained. In fact, one-third of female asylum seekers and one-third of minors stated that they did not know the reasons for their detention. The accounts that have emerged about conditions of immigration detention in Europe paint an equally stark portrait to that of the United States. For example, according to the Institute of Race Relations (2010), between 2006 and 2010, at least twenty-eight people committed suicide in the United Kingdom

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while being held in immigration detention and at least seven more died while in police custody. One of these cases of suicide is that of an Angolan man, Manuel Bravo, who was detained with his thirteen-year-old son in the Yarl’s Wood Immigration Removal Center. In 2005, Mr. Bravo was found hanged on the morning of his thirty-fifth birthday, which was also the day that he and his son were to be deported. Mr. Bravo committed suicide so that his son could stay in the United Kingdom. As a note found in his room at Yarl’s Wood reads, “I kill myself because I don’t have a life to live anymore. I want my son [. . .] to stay in the UK to continue his studies” (BBC News, 2006). Further details emerged during the course of an investigation into Mr. Bravo’s death. In particular, a note that he wrote five months prior stated, “It is not easy for me to live in this manner. I feel sick I want to die or kill myself. I can’t return to my country because it is not safe for me or my son [. . .]. If I return I will be tortured. [. . .] If I die here I would like my son to stay with the government or the NSPCC [a non-profit children’s organization] or youth protection.” At the time of this writing, there is no comprehensive European-wide instrument that sets minimum standards for conditions of immigration detention. While the Returns Directive, at least to the extent that it invokes the principle of proportionality in relation to immigration detention, represents some movement forward, its transposition into national law remains partial, uneven, and incomplete. Moreover, whereas the European Committee for the Prevention of Torture has published and disseminated standards designed specifically for persons held in immigration detention, including legal, health, and physical safeguards, measures designed specifically to protect children, and standards regarding the use of coercion in the context of detention or to facilitate deportation, these are all nonbinding on states (CPT, 2010a, 2010b). Thus, as with the U.S. case, skepticism is warranted regarding whether conditions of immigration detention in Europe will soon change. To illustrate, the CPT made a number of ad hoc visits to detention sites in 2011, including a visit to Greece. The ad hoc visit to Greece, which included inspections of thirty-one immigration detention sites and prisons, focused on the need to improve conditions of immigration detention, particularly in the Attica and Evros regions (the former is the southern portion of the Greek peninsula and the latter borders Turkey). The 2011 ad hoc visit followed extensive high-level talks between the CPT and Greek authorities in 2010. As the 2011 annual report of the CPT states, “From the findings made in the course of the visit, the CPT could only conclude that effective action had not been taken to

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improve the situation notwithstanding the recommendations it had made after several visits organized during the previous six years” (CPT, 2011, p. 8). In fact, the persistent lack of action on the part of Greek authorities forced the CPT, in March 2011, to issue a public statement regarding conditions of immigration detention in the country. The statement reads: The 2005, 2007, 2009, and 2010 visits all paint a similar picture of irregular migrants being held in very poor conditions in police stations and other illadapted premises, often disused warehouses, for periods up to six months, and even longer, with no access to outdoor exercise, no other activities and inadequate healthcare provision. [. . .] Over a period of years, no steps were taken to put in place a coordinated and acceptable approach as regards their detention and treatment. [. . .] The Greek authorities have continuously asserted that action was being taken to improve the situation. [. . .] Regrettably, the findings made during the CPT’s most recent visit to Greece, in January 2011, demonstrated that the information provided by the authorities was not reliable. Police and border guard stations continued to hold ever greater numbers of irregular migrants in even worse conditions. (CPT, 2011, pp. 76–77)

Greece is not alone in this regard. In 2005, the CPT visited three sites used to detain unauthorized immigrants in Malta, another Mediterranean frontier country. The CPT found that detainees in Malta were routinely held for prolonged periods in poor conditions, including in a sprawling tent compound. In its 2011 annual report, the CPT noted that the situation of immigration detention in Malta “had not substantially improved” (CPT, 2011, p. 30). In another example, the CPT made an ad hoc visit to Italy in 2009 to investigate so-called push-backs, referring to the interdiction of migrants at sea by Italian authorities and their consequent return to Libya. The CPT concluded that Italy’s pushback policy violated the principle of non-refoulement, as migrants were not only denied effective access to the refugee protection system, but they were sent to a country that “cannot be considered a place of safety, nor a safe country in terms of human rights or refugee law [. . .] persons pushed back to Libya are at risk of ill-treatment” (CPT, 2011, p. 26). In their response to the conclusions of the CPT, the Italian government referred to its interdiction efforts euphemistically as “search and rescue operations.” Analyzing the Immigration Detention Site

There is no doubt that immigration detention is one of the fundamental cogs in the contemporary machinery of immigration control. What remains

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unclear, however, is how prevalent it is across Western immigrant-receiving democracies. The remainder of this chapter uses new comparative data from the Global Detention Project to explore cross-national variations in the prevalence and use of immigration detention across the same countries studied in Chapter 3. The unit of analysis I explore is the locus of immigration detention: the detention site. These are, as the United Nations Working Group on Arbitrary Detention describes, “places of deprivation of liberty,” which may be situated “in border areas, on police premises, premises under the authority of a prison administration, ad hoc centers (centres de rétention), so-called international or transit zones in ports or international airports, gathering centers or certain hospital premises” (WGAD, 1999). The Immigration Detention Site

The labyrinthine processes of immigration detention consume a multitude of spaces, ranging from the public spectacles of immigration raids to the private and isolated obscurities of detention cells, and from our abstract notions of borders to their concrete manifestations in the papers that proclaim asylum denials, removal orders, or other dictums of otherness. These processes also implicate a broad and cacophonous array of political institutions and societal actors, including government enforcement agencies, immigration bureaucrats, prison firms, detention officials, prison guards, health professionals, social workers, and advocacy organizations, in addition to the migrants themselves. Finding analytical clarity here is, indeed, a difficult pursuit. However, the immigration detention site constitutes a clear unit of analysis that provides researchers with some analytical leverage. The Global Detention Project currently provides the most comprehensive publicly available comparative data on immigration detention sites. These data form the basis of the empirical analysis. The Global Detention Project codes immigration detention sites based on three broad categories: general, operational, and bureaucratic. These categories contain over twenty specific indicators. The general category includes basic information about detention sites, including the type of site. The operational category includes information about internal workings, including security levels (e.g., high or low), and maximum lengths of detention, among other characteristics. The bureaucratic category includes information about whether the state, a private for-profit corrections firm, or some other entity owns or operates a site. As data collection efforts are ongoing, it is difficult at this time to compare many of these indicators of immigration detention cross nationally. However, the Global Detention Project does

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provide country-by-country inventories of immigration detention sites, which distinguish between criminal, administrative, and ad hoc sites, that are useful for exploratory cross-national comparisons. Because data collection is ongoing, and because the detention infrastructure of countries is rapidly changing and evolving, the list of immigration detention sites analyzed here should not be viewed as exhaustive—even the Global Detention Project issues a disclaimer on the data they have made public (see Appendix 3). Regarding the distinctions made between types of detention sites, an important reminder here is that, as the UNHCR notes, “All restrictions of liberty [. . .] are subject to human rights oversight” (2011, p. 8). This notwithstanding, as Michael Flynn (2014) writes, “Where states choose to confine migrants can tell us a great deal about how these people are perceived by the states and whether authorities have taken steps to differentiate between administrative and criminal detention” (p. 16). Criminal detention sites, which include prisons, prison hospitals, police stations, and juvenile detention centers, are sites that detain persons for migration-related reasons, as well as those who are suspected or have already been convicted of a criminal offense. The use of criminal detention sites for the purposes of immigration detention has come under heavy criticism. In its detention standards, the CPT concludes that the systematic use of criminal facilities in immigration detention is fundamentally flawed, as prisons are “by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offense” (CPT, 2010b, p. 54). Moreover, “care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment” (p. 55). The use of criminal detention sites thus conveys some information about the distinctions states make between criminal and administrative immigration detention, as well as about broader trends in the criminalization of unauthorized immigrants. Administrative detention sites, which include dedicated detention centers, immigration offices, offshore detention centers, reception centers, and transit zones, are sites that are designed and used for migration-related detention and holding purposes only. While the use of administrative detention is, arguably, more commensurate with the objectives of immigration detention, it does not necessarily imply a more proportional or rights-based detention regime. However, the use of administrative over criminal detention does acknowledge, albeit in a limited way, that the prison-industrial complex is not entirely suitable for the needs, demands, and objectives of immigration control. Lastly, ad hoc sites, which include camps, hotels, military facilities, and other

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structures (e.g., tent compounds), refer to improvised immigration detention sites. While ad hoc sites in developing countries and regions tend to be hastily and improperly built structures, ad hoc sites in Western countries often tend to be hotels. For example, hotel chains in Florida, Washington, and Massachusetts have been used for immigration detention purposes in the United States on an “as needed” basis (Global Detention Project, n.d.). Despite its desirability as a clear unit of analysis, it is important to note that the immigration detention site is an incomplete measure of immigration detention. Creating a more insightful metric would involve combining data on immigration detention sites with data on detention capacity, the number of migrants detained, who is detained and why, conditions in detention, as well as costs, among other important factors. Indeed, future research in this area should endeavor to further diminish the opacity of immigration detention. However, despite existing work that has exposed conditions of immigration detention by providing detainees with a platform to tell their stories, transparency continues to be a persistent problem, as governments remain reluctant to (willingly) make data publicly available. This analysis of immigration detention sites is thus necessarily descriptive and should be looked upon as a first step in this nascent area of empirical inquiry. Method

Given the newness of comparative data on immigration detention and the absence of longitudinal coverage, a cross-national and over time analysis is not currently possible. Moreover, the number of countries studied during one time period does not provide sufficient statistical power for multivariate analysis. I thus rely on the analysis of bivariate relationships to analyze how the theorized determinants of immigration policy relate to the prevalence and use of immigration detention. By prevalence, I mean the total number of detention sites in a country. By use, I mean criminal over administrative or ad hoc types of detention. I apply the same theoretical framework used in the analysis of deportation in Chapter 3 to the analysis of immigration detention. As this analysis relies on bivariate relationships, the results should be interpreted as exploratory, as I am only able to consider each factor independently without simultaneously accounting for other factors. A Cross-National View of Immigration Detention

The analysis yields several significant findings. First, there are currently, at the time of this writing, 602 immigration detention sites across Western immigrant-receiving democracies.10 Approximately half of these sites are criminal

130  The labyrinth of immigration detention

detention sites, about one-third are administrative detention sites, and the remainder are ad hoc sites. The number of immigration detention sites in each country ranges from a high of 364 to a low of 1. As Table 4.1 shows, the United States has by far the highest total number of immigration detention sites at 364, followed by Germany, France, Italy, and Greece. Finland, Norway, and Portugal each have just 1 recorded immigration detention site. In terms of criminal

Table 4.1  Cross-national Country United States

view of immigration detention Total number of sites

Criminal

Administrative

Ad hoc

364

277

42

45

0

36

0

Germany

40

France

36

Italy

20

0

20

0

Greece

19

10

9

0

Spain

16

0

15

1

United Kingdom

15

0

15

0

Canada

10

7

3

0

Cyprus

9

8

1

0

Australia

9

0

7

2

Netherlands

7

0

7

0

Ireland

7

7

0

0

Hungary

6

0

6

0

Czech Republic

6

0

5

1

Belgium

6

0

6

0

Austria

6

Sweden

5

0

5

0

Slovak Republic

5

0

5

0

Malta

4

0

3

1

Slovenia

3

0

3

0

Luxembourg

3

2

1

0

Denmark

3

2

1

0

Portugal

1

0

1

0

Norway

1

0

1

0

Finland

1

0

1

0

source: Global Detention Project, Migreurop. note: The prevalence and use of immigration detention in twenty-five immigrant-receiving democracies.

The labyrinth of immigration detention 131

­ etention, as Table 4.1 also shows, 8 out of the 9, or 89 percent, of the immid gration detention sites in Cyprus, and 277 out of the 364, or 76 percent, of the immigration detention sites in the United States, are criminal detention sites. In terms of administrative detention, twelve of the countries under study exclusively use administrative sites for migration-related detention. Right-Leaning Governments  Fundamental differences often exist between the political right and left when it comes to issues of immigration control. However, what the results suggest is that both right- and left-leaning governments are implicated in the rise of immigration detention. For example, while right-leaning governments have been in power in Belgium and Malta for each of the first ten years of the new century, these countries have fewer total detention sites than the United Kingdom and Ireland, where only leftleaning governments have been in power during the same period. Moreover, in the United States, immigration detention, just like deportation, has reached historical levels under the left-leaning Obama administration. Because it is such a significant outlier, Figure 4.2a depicts the bivariate relationship between right-leaning governments and the prevalence of immigration detention when excluding the United States from the analysis. Here, we see that while the direction of the relationship is positive, it is not statistically significant (p = .465). In order to not exclude the United States, but to minimize its impact as an outlier, Figure 4.2b reruns the analysis using the natural log of the total number of immigration detention sites. Here, we see again that while the direction of the relationship is positive, it is not statistically significant (p = .178). This result is consistent with the findings of Chapter 3. Election Cycles  The data indicate that elections are not significantly related to the prevalence of immigration detention. As Figures 4.3a and 4.3b show, the direction of the relationship between elections and the prevalence of immigration detention is either slightly negative or slightly positive depending on whether the United States is excluded (p = .623) or included using the natural log of detention sites (p = .425). On the other hand, there is some evidence to suggest that elections are significantly related to the use of criminal detention. When the United States is excluded from the analysis, the relationship between elections and criminal detention is positive and weakly significant (p = .103). However, when the United States is included in the analysis using the natural log of criminal detention, the relationship remains positive and becomes more strongly statistically significant (p = .055).

Total number of immigration detention sites

(a) 40

30

20

10

0 0

.2

.4

.6

.8

1

Political orientation of government Total number of detention sites

Fitted values

(b)

ln number of detention sites

6

4

2

0 0

.2

.4

.6

.8

Political orientation of government Detention sites (ln)

Fitted values

Figure 4.2  Right-leaning governments and immigration detention note: Bivariate relationship between right-leaning governments and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

1

Total number of immigration detention sites

(a)

40

30

20

10

0 .2

.25

.3 Elections

.35

Total number of detention sites

.4

Fitted values

(b)

ln number of detention sites

6

4

2

0 .2

.3

.4

.5

Elections Detention sites (ln)

Fitted values

Figure 4.3  Elections and immigration detention note: Bivariate relationship between elections and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

134  The labyrinth of immigration detention

The Legislative Representation of the Far Right  Consistent with the analysis of deportation, the results show that the far-right seat share is significantly related to immigration detention. However, unexpectedly, the data show that the direction of the relationship is negative. In other words, as the legislative representation of far-right political parties increases, we see fewer immigration detention sites, both criminal and administrative. What explains this seemingly counterintuitive result? Whereas far-right political parties have experienced electoral success in Austria, Denmark, and Norway, these countries have fewer immigration detention sites than countries such as France, the United Kingdom, Canada, Germany, and Spain, all countries where the far right has yet to obtain significant legislative representation. As Figure 4.4a shows, when the United States is excluded from the analysis, the direction of the relationship between the legislative representation of the far right and the prevalence of immigration detention is negative and statistically significant (p = .069). In further interrogating this result, I excluded all countries that use majoritarian electoral rules. After doing so, the negative and significant relationship remains. A closer look at the countries where the far right has had success in terms of legislative representation also reveals no significant differences in migration-related factors that may explain this negative relationship. In other words, these countries do not experience less immigration and thus have less need for immigration detention. In fact, average annual immigrant inflows are slightly higher in countries where the far right has had success than in other countries. In the absence of additional data, it is difficult to provide a definitive answer for why the legislative representation of the far right means more deportations but less immigration detention. However, while this result is unexpected, it does make some intuitive sense. One potential explanation relates to preferences over the processes in which unauthorized immigrants are apprehended, detained, and then deported. As the Austrian case discussed earlier in Chapter 3 illustrates, the far right has, in some cases, been successful in expediting the deportation of asylums seekers and in limiting judicial review of detention and deportation decisions. While British prime minister David Cameron’s Conservative Party does not fall within the far-right family of political parties, the intent of the immigration legislation that his government introduced at the end of 2013 reflects a similar preference regarding the processes that lead from the apprehension of unauthorized immigrants to their deportation. As one journalistic account describes, the new immigration legislation intends to

(a) Total number of immigration detention sites

40

30

20

10

0 0

5

10 Far-right seat share

Total number of detention sites

15

20

Fitted values

(b)

ln number of detention sites

6

4

2

0 0

5

10 Far-right seat share Detention sites (ln)

15

20

Fitted values

Figure 4.4  The far right and immigration detention note: Bivariate relationship between the legislative representation of the far right and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

136  The labyrinth of immigration detention

“deport foreign criminals first and hear their appeal later” (BBC News, 2013). When the processes that lead from detention to deportation are purposively and decidedly short, for example, when unauthorized immigrants have limited recourse to legally challenge immigration decisions that are made against them, the importance and necessity of immigration detention lessens. Research on the Netherlands provides additional support for this idea, but from a slightly different perspective. In the Netherlands, unauthorized immigrants are held in administrative rather than criminal detention sites. As Broeders and Engbersen (2007) write, “The most important reason for this is that [criminalizing unauthorized immigration status] can prolong illegal residence,” which runs against the arrangement of Dutch immigration detention sites as institutions that “focus on the efficient organization of forced return programs” (p. 1601). Another related facet is more material. Given the economic costs of detention—$122 USD per day in the United States, £120 GBP per day in the United Kingdom, $120 CAD per day in Canada—it is reasonable to assume that the policy preference among the far right is expedited deportation rather than lengthy and costly detention. GDP Growth and Unemployment  That policy restrictiveness moves in lockstep with macroeconomic conditions has become somewhat axiomatic in the immigration policy literature. This leads us to expect a negative relationship between GDP percent growth and the prevalence of immigration detention; in other words, when economic conditions are good, we expect the demand for immigration detention to decrease. While the data generally show the expected negative relationship, the results are not statistically significant (see Figure 4.5). As with the analysis of deportations, we once again see that an important macroeconomic factor does not produce as clear or as significant an effect as the literature predicts. On this point, these (non)-findings may not simply be a function of data limitations. Immigration detention is distinct in that its economic costs are more easily quantifiable, at least when the necessary data are recorded and made available, than are some of the other mechanisms of immigration control. When thinking about the costs of detention for each detainee per day, as well as other administrative costs, and then multiplying these by the total number of detainees and the average length of detention, the totals can be staggering. For example, as discussed earlier in this chapter, per the Department of Homeland Security Appropriations Act of 2014, $2.9 billion USD were earmarked for immigration detention alone. In

Total number of immigration detention sites

(a)

40

30

20

10

0 0

1

2 3 GDP percent growth

Total number of detention sites

4

5

Fitted values

(b)

ln number of detention sites

6

4

2

0 0

1

2 3 GDP percent growth Detention sites (ln)

4

5

Fitted values

Figure 4.5  Economic growth and immigration detention note: Bivariate relationship between GDP percent growth and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

138  The labyrinth of immigration detention

the United Kingdom, although the government does not generally make the costs of immigration detention publicly available, the Migration Observatory at the University of Oxford has culled together enough data to estimate that the total annual cost of immigration detention in the country is about £8.5 million GBP per year (Silverman, 2012). In Australia, the 2010 to 2011 budget for border protection and detention includes nearly $800 million AUD for operations at Christmas Island and an additional $202 million over five years to increase detention capacity at other sites (Spinks, Barker, and Watt, 2013). Thus, while certain macroeconomic logics may suggest that the demand for immigration detention dampens during economic booms, a counterbalancing reality may be that state capacity when it comes to detention, as reflected in operating budgets, is highest during periods of economic growth. In terms of unemployment (see Figure 4.6), while the data indicate that it is generally positively related to immigration detention, the relationship is not statistically significant (p = .111 when the United States is excluded and p = .420 when the United States is included using the natural log of criminal detention sites). Moreover, the data do not indicate a clear relationship between unemployment and criminal detention (p = .711 when the United States is excluded and p = .644 when the United States is included using the natural log of criminal detention sites). New Immigration and the Size of the Foreign-Born Population  That the prevalence and use of immigration detention is a direct function of the demand created by the increased migratory pressures that states face as a result of immigration is one of the most parsimonious and, perhaps, most plausible explanations for the expansion of the immigration-industrial complex. The data analyzed here, however, do not support this simple relationship. In fact, the data indicate that both new immigration and the size of the foreign-born population is neither significantly related to the prevalence nor to the use of immigration detention. Figures 4.7a (p = .806) and 4.7b (p = .738) illustrate the relationship between the foreign-born population in a state and the prevalence of immigration detention. It is important to reiterate that the data examined here relate to legal migration flows and estimates of the foreign-born population as a whole. One can imagine a different set of results if reliable data were available on irregular migration flows and the size of the unauthorized immigrant population. Inflows of asylum seekers, on the other hand, tell a much different story.

Total number of immigration detention sites

(a)

40

30

20

10

0 0

5

10 Percentage unemployment

Total number of detention sites

15

Fitted values

(b)

ln number of detention sites

6

4

2

0 0

5

10 Percentage unemployment

Detention sites (ln)

15

Fitted values

Figure 4.6  Unemployment and immigration detention note: Bivariate relationship between unemployment and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

Total number of immigration detention sites

(a)

40

30

20

10

0 0

10

20 30 Percentage of foreign-born population

Total number of detention sites

ln number of detention sites

(b)

40

Fitted values

6

4

2

0 0

10

20 30 Percentage of foreign-born population Detention sites (ln)

Fitted values

Figure 4.7  Foreign-born population and immigration detention note: Bivariate relationship between the foreign-born population and immigration detention. Part (a) excludes the United States, and part (b) examines the natural log of the total number of detention sites (United States included).

40

Number of criminal immigration detention sites

(a) 10

8

6

4

2

0 0

2

4 Asylum inflows

Number of criminal detention sites

6

8

Fitted values

(b) Number of administrative immigration detention sites

40

30

20

10

0 0

2

4 Asylum inflows

Number of administrative detention sites

6

8

Fitted values

Figure 4.8  Asylum inflows and the use of immigration detention note: Bivariate relationship between asylum inflows and the use of immigration detention. Part (a) excludes the United States and looks at the relationship between asylum inflows and criminal detention. Part (b) excludes the United States and looks at the relationship between asylum inflows and administrative detention.

142  The labyrinth of immigration detention

Asylum  The data indicate that asylum inflows are significantly related to the use of immigration detention. More specifically, asylum inflows are positively and significantly related to criminal detention and negatively related to administrative detention. Put otherwise, as asylum inflows increase, there is a greater emphasis on criminal detention and less emphasis on administrative detention. As Figure 4.8a shows, when the United States is excluded from the analysis, the relationship between asylum inflows and the use of criminal detention is positive and statistically significant (p = .068). Excluding the United States is not particularly problematic here, as the issue of asylum and the political controversies that it has given rise to have been experienced most acutely in Europe. To reiterate, given the limitations of bivariate analyses, these results should be taken as exploratory; nevertheless, they warrant greater scrutiny of the broader nexus between asylum and the criminalization of irregular migration, particularly as it manifests in criminal detention. Conclusion

This chapter explored what I refer to as the labyrinthine processes of immigration detention and detailed its human rights implications, ranging from the metaphorical violence done to due process rights to the very real violence done to the physical integrity of detainees, both in the United States and in Europe. More than just a matter of human rights, the contemporary practice of immigration detention impinges on the international legal principle of proportionality. The UNHCR and OHCHR (2011) state clearly that states should avoid “imposing penal sanctions or conditions of treatment that are not suitable to persons who have not committed a crime” (p. 2). Despite deep human rights concerns, as well as an increasing number of international legal decisions condemning the immigration detention practices of Western immigrant-receiving democracies (recall the ECtHR decision regarding conditions of immigration detention in Greece and the multiple UNHRC rulings on the arbitrariness of detention in Australia), the immigration-industrial complex continues to expand mostly unabated. This growth in immigration detention has left many empirical questions unanswered. The second half of this chapter thus analyzed new comparative data in order to improve our understanding of the prevalence and use of immigration detention, as well as to explore explanations for crossnational variations. As existing theories of immigration policy map poorly onto the prevalence and use of immigration detention, this analysis, methodological issues

The labyrinth of immigration detention 143

­ otwithstanding, demonstrates the need for more refined theories that capn ture the complexity and nuances of this particular mechanism of immigration control. It also illustrates the importance and necessity of ongoing efforts to systematically collect data on immigration detention across countries and over time. As the harrowing experiences and tragic circumstances surrounding the deaths of Mr. Ng and Mr. Bravo make clear, cutting through the opacity of immigration detention demands our best efforts.

5

An Effective Deterrent or Smoke and Mirrors?

If I get deported, trust, I’d find my way back! This is where my life is. —Undocumented Mexican American, United States1

The Impact of Immigration Control and Migratory Flows

This chapter turns away from the question of why states “do what they do” to the question of impact. Analyzing the determinants of immigration control helps improve our understanding of what accounts for the varying degrees of restrictiveness that we observe across countries and over time, but it does not answer the question of whether the increased restrictiveness of immigration control actually deters “unwanted” immigration. Immigration control, at least according to some, should serve an attrition purpose, wherein efforts to control immigration should be designed not only to prevent illegal entry but should also persuade unauthorized immigrants to “self-deport” (Kobach, 2007–2008). For example, according to the conservative U.S.-based “pro-immigrant, lowimmigration” Center for Immigration Studies (CIS), immigration control should “reduce the number of new illegal arrivals and persuade a large share of illegals already here to give up and deport themselves” (CIS, n.d.). Mathew Coleman and Austin Kocher (2011) describe such strategies as “spatialised tactics of immigrant incapacitation” (p. 228). If the intent of immigration control is to reduce unwanted immigration, does increased restrictiveness, for example, through the deprivation of basic rights, more restrictive deportation efforts, or by the increased prevalence of immigration detention, among other measures, work? This is a critically important question to address, particularly as it relates to immigration policy design and to efforts to evaluate policy effectiveness. I argue that because increased restrictiveness does not fundamentally change the underlying motives of migrants, more restrictive immigration control efforts are unlikely to result 144

An effective deterrent or smoke and mirrors? 145

in less unwanted immigration. Whereas deportations were previously analyzed as a dependent variable, this chapter uses deportations as an independent variable that serves as a proxy for the restrictiveness of immigration control. This permits the analysis of how restrictiveness affects annual immigrant inflows (y1) and annual asylum inflows (y2) across the same sample of Western immigrant-receiving democracies and the same time period studied in Chapter 3. I note here that while using deportations and immigration detention to create an immigration control index would add valuable analytical leverage, the limited longitudinal (i.e., over time) coverage of the data that is currently available on immigration detention does not permit this. I begin by discussing why we would expect deportations to affect migratory inflows. Then, I move on to the multivariate analysis and the discussion of the findings. Why Deportations Matter for Migration

According to the human capital approach to international migration (Massey et al., 1993; Sjaastad, 1962) migratory decisions reflect rational, individual choices that can be expressed as follows: ER(0) = ∫tn[p1(t)p2(t)yd(t) − p3(t)yo(t)]e−rtdt − C(0).2 Stated simply, this means that individuals migrate to where they have the most to gain (see note 2 on page 198 for a detailed explanation). A prospective migrant determines this by evaluating the probability of not being deported, p1(t), the probability of employment, p2(t), and the expected earnings in the country of destination, yd(t). For legal immigrants, the probability of not being deported is assumed to be 1, or close to it. For unauthorized immigrants, the probability of not being deported is assumed to be much lower. Ceteris paribus, as the probability of deportation in the country of destination increases, the net expected returns (ER) to migration decreases. Thus, to the extent that the probability of deportation increases with more restrictive deportation efforts, the human capital approach provides a rational basis for understanding why migratory inflows may decrease as deportations increase. However, it may also be the case that the threat of deportation, despite how real it is, may not appreciably affect migratory decisions, whether legal or otherwise. In contrast to the rational actor framework that underlies the human capital approach, I argue that individual migratory decisions are not reducible to existing simple expected utility calculations. It follows that asking whether gains exceed costs misses a more important question: Do the policies and practices of immigration control change the motives of migrants? If the motives of

146  An effective deterrent or smoke and mirrors?

migrants, especially those who migrate in irregular circumstances, can be fundamentally conceived of in terms of the desire to reach and to be in a particular destination, then increased restrictiveness may add certain costs, but it does not change motives. Thus, the increased restrictiveness of immigration control may not mean less “unwanted” immigration, as the costs and risks of illegal entry, as well as the perils related to evading immigration enforcement efforts, ultimately run ancillary to motives. Indeed, as one of the unauthorized immigrants interviewed for this study stated in describing what living under the constant threat of deportation is like, he said simply, “that’s the life of an immigrant.”3 Evidence supporting this argument comes from research on the residence strategies of unauthorized immigrants. In the United States, restrictive local immigration policies have not been found to drive unauthorized immigrants away from their homes (Garcia, 2013; cf. Leerkes, Bachmeier, and Leach, 2013). Research also suggests that unauthorized immigrants who live under conditions of restrictive immigration enforcement strategically incorporate in order to avoid detention and deportation (Garcia, 2014). Some even endure physical violence and crime in order to remain invisible to immigration authorities (Menjivar and Abrego, 2012). In Europe, as Broeders and Engbersen (2007) find, policies aimed at “deterrence, exclusion, and, ultimately, expulsion” (p. 1592) have not necessarily driven unauthorized immigrants away. Rather, they have had the effect of increasing their dependence on informal networks and institutions. To be clear, aggressive immigration enforcement and the threat of deportation carry severe consequences that reverberate across all aspects of the lived experiences of unauthorized immigrants. However, just as the notion that “we asked for workers, but human beings came”4 reminds us that migrants are not merely political objects whose actions always comport to the whims of policymakers, the notion that stepped up immigration enforcement neatly deters irregular migration provides insufficient space for considering the varying risk propensities that unauthorized immigrants have in defining the limits of what they may be willing to endure. Research on the impact of border enforcement efforts provides additional support for the argument that the increased restrictiveness of immigration control may not mean less “unwanted” immigration. For example, research on border enforcement in the United States shows that stepped up control efforts simply displace irregular entry routes to less fortified and more dangerous areas instead of deterring illegal entry attempts, which has led to an increase in

An effective deterrent or smoke and mirrors? 147

border-crossing deaths (Cornelius, 2001, 2005). Increased border enforcement has also been argued to raise the demand for human smugglers, which actually improves the chances of evading enforcement efforts (Andreas, 1998, 2012; Cornelius and Tsuda, 2004; Kyle and Koslowski, 2011). In fact, one study finds that as many as 98 percent of those who were initially apprehended while attempting to cross the U.S.-Mexico border without authorization “were able to successfully cross eventually, almost all on their first or second try” (Fitzgerald and Alarcon, 2013, p. 118). The increased restrictiveness of immigration control has also been argued to cause temporary or circular migratory movements to become permanent (Massey, Durand, and Malone, 2002). In the United States, the case of Operation Gatekeeper is instructive. Operation Gatekeeper represented a concentrated effort by the United States to deter unauthorized entry from Mexico (Nevins, 2002, 2010). Prior to 1994, the U.S. Department of Justice described the San Diego sector of the U.S.-Mexico border as having “no coherent strategic plan” (Office of the Inspector General [OIG], 1998). Operation Gatekeeper thus provided resources for increased border patrol personnel, improved technology, including seismic sensors and infrared scopes, and materials to construct solid fencing—indeed, Operation Gatekeeper played a significant role in the making of the U.S.-Mexico border as we know it today. In 1993, there were 531,689 apprehensions of individuals attempting to enter the United States without authorization in San Diego. By 2000 (before 9/11 changed the security dynamics along the border), this number plummeted to 151,681, representing a decrease of approximately 71.5 percent. However, in El Centro, the border sector immediately east of San Diego, apprehensions increased during the same period by 692 percent, jumping from about 30,058 in 1993 to 238,126 in 2000. In Yuma, the border sector immediately east of El Centro, apprehensions increased by 362 percent, jumping from 23,548 apprehensions in 1993 to 108,747 in 2000. And in Tucson, the border sector immediately east of Yuma, apprehensions increased by 565 percent, jumping from 92,639 apprehensions in 1993 to 616,346 in 2000 (United States Border Patrol [USBP], n.d.). In Europe, Frontex, the European Union border agency, recently began producing annual risk analysis assessments. These analyses include data on the detection of irregular border crossings. Like the U.S. case, these data also suggest a displacement rather than a deterrent effect. For example, as Frontex patrols and operations have made it increasingly difficult to enter the European Union via

148  An effective deterrent or smoke and mirrors?

the main western irregular migration routes, the detection of irregular bordercrossing attempts between formal border-crossing points via the eastern routes have increased. From 2009 to 2010 (before the Arab Spring), whereas detected irregular border-crossing attempts decreased by 91 percent along the western African route via the Canary Islands, by 31 percent along the western Mediterranean route to Spain, and by 60 percent along the central Mediterranean route to Italy, they increased by 345 percent along the eastern Mediterranean route to Greece (Frontex, 2011). Theorizing Migration

I test the impact of deportations on migratory inflows while controlling for the main theorized determinants of international migration. In their comprehensive review of theories of international migration, Douglas S. Massey et al. (1993) write, “There is no single, coherent theory of international migration, only a fragmented set of theories that have developed largely in isolation from one another, sometimes but not always segmented by disciplinary boundaries” (p. 432). While the axiomatic expression that “a theory that explains everything explains nothing at all” may be invoked here, it is also the case that despite the decades-long boom in immigration studies, the preceding quote can, perhaps, be as aptly used to describe the state of the literature today as it was used to describe the literature twenty years ago. One could also, alternatively, argue that there has, indeed, been a single, almost paradigmatic view of what causes international migration that dates back to E. G. Ravenstein’s “Laws of Migration” (1885, 1889): international migration can be explained by combining the “desire inherent in most men to better themselves in material respects” (Ravenstein, 1889, p. 286) with certain push-and-pull factors in sending and receiving countries. Before moving on, it is important to remind ourselves that not all migration is voluntary. Thus, another useful perspective by which to view international migration is along a voluntary to involuntary continuum, which reflects the varying degrees of agency migrants have in migratory processes (Betts, 2009; Faist, 2000; Geddes, 2003a). GDP per Capita and Unemployment  In its most basic form, push-pull models of international migration (see, e.g., Lee, 1966) posit that the costs and benefits of migrating are determined by an array of factors in the countries of origin that “push” migrants out while, simultaneously, a commensurately di-

An effective deterrent or smoke and mirrors? 149

verse array of factors in destination countries “pull” migrants in. That people move based on economic push-pull factors—the push being unemployment and low wages, among other factors, while the pull includes the availability of jobs and higher wages—is one of the most enduring explanations used to describe patterns of international migration. In short, migration ebbs and flows based on labor demand, and people migrate based on expected wage differentials, as workers in poorer countries migrate to wealthier countries where there are more jobs and higher pay. Most empirical studies on the determinants of immigration have found wages, which are typically measured by GDP per capita, to be positively and significantly related to migratory inflows. Controversies do, however, exist. For example, a recent study finds that GDP per capita is not significantly related to immigrant inflows to wealthy industrialized countries, as migrants do not systematically select countries of destination based solely on material incentives (Hooghe et al., 2008). The availability of jobs, which is typically measured by the unemployment rate, is also an enduring explanation for international migration. However, it too is not without controversy. For example, despite the global economic downturn that began toward the end of 2008, which led to increased unemployment across many Western immigrant-receiving democracies, international migration continued mostly unabated. Indeed, a look at the correlation between unemployment and annual immigrant inflows across the twenty-five countries under study here reveals a weak and almost nonexistent relationship (r = .079). Nevertheless, given the intuitive importance of economic factors in explaining international migration, it is important to account for GDP per capita and unemployment in the empirical analysis. Economic push-pull models lead us to expect that migratory inflows increase as GDP per capita increases and decrease when unemployment increases. Studies have also examined the “welfare magnet” or welfare state hypothesis (see, e.g., Borjas, 2001), which suggests that migrants select destination countries based on the provision of welfare benefits. However, recent research on immigration to Europe suggests that the magnet of welfare benefits does not consistently explain migratory patterns (Hooghe et al., 2008). Indeed, many states use the denial of welfare benefits in order to lessen their economic pull (Bommes and Geddes, 2000). Dual labor market theory (Piore, 1979) has also been widely used to explain international migration. While similarly rooted in the rational logic of markets, dual labor market theory slightly departs from the push-pull framework and

150  An effective deterrent or smoke and mirrors?

focuses, instead, on just the (structural) pull. More specifically, dual labor market theory argues that international migration is caused by what is assumed to be the “permanent demand” for immigrant labor that is intrinsic to the very structure of advanced industrialized economies. Massey et al. (1993) describe this as a “chronic and unavoidable need for foreign workers” (pp. 440–441). The necessity of migrant labor is driven by four primary factors: structural inflation, motivational problems, economic dualism, and the demography of labor supply. Structural inflation refers to the idea that wages are not solely determined by the supply of workers, as social expectations and institutional mechanisms (e.g., union contracts and pay scales) also work to ensure that wages correspond to “hierarchies of prestige,” meaning the correlation society comes to expect between occupational status and pay. For example, the wages of a surgeon are expected to be higher than those of a butcher. As a result, employers are unable to simply raise wages at the bottom of the job hierarchy to attract workers, as those higher up will then demand a commensurate increase in wages. Continuing with the analogy, if the wages of a butcher become competitive with those of a surgeon, the surgeon is expected to demand a significant wage increase. That wages move in proportion to job hierarchies is the problem of structural inflation. Thus, as Massey et al. (1993) summarize, “Attracting native workers by raising entry wages during times of labor scarcity is thus expensive and disruptive, providing employers with a strong incentive to seek easier and cheaper solutions, such as the importation of migrant workers who will accept low wages” (p. 441). Motivational problems are also related to job hierarchies. Because people often pursue certain types of work for reasons related to social status and prestige, in addition to income, jobs at the bottom of a job hierarchy are difficult to fill. Such jobs are assumed to diminish one’s social status or, at the very least, not add to it. Moreover, they are undesirable because they provide few avenues for upward mobility. Employers thus turn to low-skilled migrant workers to fill structural gaps at the bottom of job hierarchies. The bifurcated labor markets (capital- and labor-intensive production) that characterize advanced industrialized economies also create a structural demand for migrant labor. Because labor-intensive sector jobs tend to be lower paying, unskilled, and unstable, the high turnover associated with these jobs requires a flexible and expendable (and exploitable) workforce. As employers find it difficult to recruit native-born workers into these sectors, they turn instead to migrant workers. Lastly, the demography of labor supply, specifically, the slow population growth that persists across many advanced industrialized

An effective deterrent or smoke and mirrors? 151

countries, also increases the demand for migrant labor. In short, slow population growth means fewer workers, which in turn creates labor shortages that migrant workers fill. Population Growth  The many nuances of dual labor market theory make it difficult to comprehensively test all of its facets empirically and such an attempt is beyond the scope of this chapter. However, as arguments related to the demography of labor supply are consistent with other, more general population-related explanations for international migration, it is possible to account for the effect that population growth has on migratory inflows. Dual labor market theory thus leads us to expect that migratory inflows increase when population growth decreases. Migration Networks  Migration networks have also been identified as an important cause, as well as a perpetuating factor, of international migration (Faist, 2000; Haug, 2008; Lewer and Van den Berg, 2008; Massey et al., 1993; Portes, 1995). Migration networks refer to social networks that connect recently arrived immigrants and newcomers with other immigrant groups, as well as to more established immigrant communities. Migration networks facilitate international migration as they decrease the costs and risks of migrating. Moreover, as it is often noted, these networks also constitute a form of social capital (Bourdieu, 1986) wherein new immigrants can use them to access the (underground) labor market. In the language of the human capital approach, migration networks increase the expected net returns to migration. It is thus important to account for these networks in the empirical analysis. The effect of migration networks in empirical studies is often captured by using lagged immigrant inflows or the lagged percentage of the foreign-born population in the country of destination. The logic of this is straightforward: immigration at time t affects immigration at time t + 1. This leads us to expect that migratory inflows increase with the existence of migration networks. I note here that a debate exists about the causal processes and mechanisms that link migration networks to international migration flows (Krissman, 2005; Hollifield, 2008; Waldinger and Fitzgerald, 2004; Zolberg, 2006b). For example, as Aristide Zolberg (2006b) argues, migration networks are causally related to immigration only to the extent that “states do not seriously interfere” (p. 243). Table 5.1 lists the factors analyzed in this chapter and their expected impact on inflows.

152  An effective deterrent or smoke and mirrors?

Table 5.1  Factors analyzed and expected effects: Modeling the impact of immigration control Factor

Expected impact: Inflows

Deportations

≠

GDP per capita

+

Unemployment

−

Population growth

−

Migration networks

+

note: + means positively related to inflows (e.g., as GDP per capita increases, so to do inflows). − means negatively related to inflows (e.g., as unemployment increases, inflows decrease). ≠ means unlikely significant impact (e.g., more deportations are unlikely to decrease inflows).

Does Immigration Control Deter Unwanted Immigration?

Does the increased restrictiveness of immigration control mean less unwanted migration? Before proceeding to the analysis, it is important to note that the ideal dependent variable to use in analyzing this question is the unauthorized immigrant population in a country. For example, Figure 5.1 shows the relationship between deportations and the estimated size of the unauthorized immigrant population in the United States from 1990 to 2007 (the economic recession years of 2008 and 2009 are intentionally excluded) based on new data compiled by Robert Warren and John Robert Warren (2013). As the figure shows, more deportations do not mean fewer unauthorized immigrants in the United States. As the top panel shows, deportations are unexpectedly positively related to the size of the unauthorized immigrant population. As the bottom panel shows, the relationship between deportations and the year-to-year difference in the size of the unauthorized population is essentially flat. If such data were available across countries and over time, one analytical strategy would involve evaluating whether the unauthorized immigrant population decreases in response to increased policy restrictiveness. However, for reasons discussed in previous chapters, such data are currently not available or reliable across countries and over time. Instead, I use two proxies: annual immigrant inflows (y1) and annual asylum inflows (y2). Regarding annual immigrant inflows, because of increasingly selective points-based immigration systems and other screening criteria that states use to select immigrants, legal inflows reflect immigration that is more or less

Unauthorized population (in millions)

An effective deterrent or smoke and mirrors? 153

12 10 8 1996 1995 1993 1994 1992 1990 1991

6 4 0

Change in unauthorized population (first difference; in millions)

2003

2002

50,000

100,000

1997

2001 2000 1999 1998

150,000 200,000 Annual deportations

2005

2006

2007

2004

250,000

300,000

350,000

2001

1

2000

.8 2002 1991 1996 1992 1994 1995 1993

.6 .4

1999 1997 1998

2003

2005

2006

2004

.2 0

50,000

100,000

150,000 200,000 Annual deportations

250,000

2007 300,000

350,000

Figure 5.1 

Deportations and the unauthorized immigrant population in the United States

source: Warren and Warren (2013) and the U.S. Department of Homeland Security. note: Bivariate relationship between annual deportations and the estimated size of the unauthorized immigrant population in the United States. The top panel depicts the relationship between annual deportations and the absolute size of the unauthorized immigrant population. The bottom panel depicts the relationship between annual deportations and the first difference in the size of the unauthorized immigrant population.

“wanted.” However, because anecdotal evidence suggests that irregular migration tends to ebb and flow with legal migration, it serves as a useful proxy.5 For example, official estimates produced by the U.S. Office of Immigration Statistics, which is housed within the Department of Homeland Security, suggest that the unauthorized immigrant population in the United States decreased as a result of the recent economic downturn by 7.4 percent, dropping from 11.6 million in 2008 to 10.8 million in 2010 (DHS, 2012b). During this same period, legal immigration to the United States also decreased by 6.2 percent. Regarding asylum inflows, as previously discussed, the restrictive turn in immigration control in Europe is partly attributable to the significant increase in the number of people seeking refuge across the European continent over the past few decades. This has led policymakers to look to the deportation of asylum seekers as a possible deterrent to “asylum shopping.” However, it remains unclear whether more restrictive deportation efforts actually deter individuals from seeking asylum. Whether deportations have a deterrent effect on new

154  An effective deterrent or smoke and mirrors?

asylum claims is a question that is of great concern to policymakers, as it provides a metric for evaluating the effectiveness of immigration control efforts. It is also of great interest to those who are concerned that prioritizing and, in some cases, expediting the deportation of asylum seekers risks violating basic human rights, including the principle of non-refoulement. This concern becomes especially pronounced when the deportation of asylum seekers is implemented in tandem with limited or even no administrative or judicial review of rejected asylum claims. Method

I empirically test how the restrictiveness of immigration control, as measured by deportations, affects immigrant and asylum inflows across the same countries and time period studied in Chapter 3. To recall, these countries are the immigrant-receiving countries of the EU-28 and North America, as well as Australia and Norway. Appendix 3 provides a discussion of the statistical method, data sources, variable measurement, and alternative model specifications. The natural logs of annual immigrant inflows (y1) and annual asylum inflows (y2) are used as proxies for “unwanted” immigration. Data for annual immigrant inflows come primarily from the OECD International Migration Database. Eurostat, the European Union statistical agency, is used to fill in gaps for non-OECD countries. Data for annual asylum inflows, meaning the annual total number of first or new asylum claims recorded in a country, come from the UNHCR. Because a check on the respective bivariate relationships between deportations and immigrant inflows, and between deportations and asylum inflows, shows high levels of correlation, it is necessary to normalize the deportations data in order to avoid multicollinearity. I thus use deportations per total population as my indicator of restrictiveness. The variable is lagged in order to analyze whether increased policy restrictiveness in one year affects immigration or asylum during the subsequent year. The economic factors analyzed here include GDP per capita and the unemployment rate, which are also lagged one year. These data come from the World Bank World Development Indicators. Migration-related factors are analyzed to capture network effects. These variables include lagged immigrant inflows and the lagged percentage of the foreign-born population. In the analysis of asylum inflows, network effects are captured using lagged asylum inflows and the lagged percentage of the refugee population. Population growth, lagged one year, is captured by natural increase, which is the crude birth rate minus the crude death rate in a coun-

An effective deterrent or smoke and mirrors? 155

try. Population size is another important factor to consider. In gravity models of immigration, demographers often model both the population of the sending and receiving countries (Cohen et al., 2008; Kim and Cohen, 2010). Ceteris paribus, larger populations in sending countries mean more prospective migrants, and larger populations in receiving countries mean larger labor markets. The natural log of the total population in a country is thus also included in the analysis and is lagged one year. Population data come from the WDI. The logic of lagging variables is straightforward: what happens at time t can influence what happens at time t + 1. This logic is appropriate for the analysis of annual immigrant inflows, as immigration is not generally a spontaneous act. On the other hand, fleeing persecution and seeking asylum is. I thus estimate models that include lagged variables, as well as models that do not include them (except for the migration network variables). The results are substantively similar. For the sake of coherence, I report the results of the models that include lagged variables. See Appendix 4 for the results of the models that do not include lagged variables. In order to deepen the analysis, I use propensity score matching to identify comparable country-year observations—e.g., countries with similar GDP per capita, unemployment, migration, and population characteristics—but vary on the restrictiveness of immigration control. Appendix 4 also includes the results of propensity score matching analyses, which do not substantively differ from the results reported below. Analysis and Findings: Immigration Inflows

Table 5.2 reports the results of the multivariate analysis of immigrant inflows. Deportations  Does the increased restrictiveness of immigration control, as measured by deportations, decrease immigrant inflows? The data suggest, no. More deportations do not, ceteris paribus, lead to less immigration. In fact, in addition to the statistically insignificant findings, the direction of the relationship between deportations and immigrant inflows changes from negative to positive depending on how migration networks are measured. The relationship is negative, meaning more deportations lead to less immigration, when the size of the foreign-born population is taken into account. This is consistent with the view that existing foreign-born populations provide prospective immigrants abroad with a form of social capital that facilitates, or in this case inhibits, movement across borders (Massey and Riosmena, 2010; Palloni et al., 2001). In other words, stepped-up deportation efforts may work to decrease immigrant inflows when established immigrant communities can

156  An effective deterrent or smoke and mirrors?

Table 5.2  Modeling

immigrant inflows Model

Variable

1

2

Deportationst−1

.025 (.045)

−.008 (.043)

GDP per capita (ln)t−1

.266 (.177)

.557** (.147)

Unemploymentt−1

−.038 (.021)

−.086** (.020)

Natural increaset−1

−.041 (.051)

−.026 (.057)

Immigrant inflowst−1

.464** (.139)

3

−.009 (.020)

Foreign-born percentage of populationt−1 Right governmentt−1

−.087* (.038)

Election yeart−1

.008 (.049)

Far-right seat sharet−1

.004 (.007)

Total population (ln)t−1 Country fixed effects Observations

−.552 (1.407)

−.135 (1.294)

i

i

i

225

225

225

note: Multivariate analysis of immigrant inflows. Cross-sectional time-series regression models with panel-corrected standard errors (in parentheses). Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

communicate information about the restrictive enforcement conditions that prospective migrants are likely to encounter upon immigrating. To be clear, however, the impact of deportations on immigrant inflows is not statistically significant, meaning deportations, no matter how they are measured or modeled, do not systematically affect immigration. Now it may be the case that analyzing Western immigrant-receiving democracies collectively can obscure within-country trends, wherein more deportations, at least in some countries, does lead to systematically less immigration. However, a closer look at the data indicates that the bivariate relationship between deportations and immigrant inflows is negative and high for only a handful of countries studied. In Australia (r = −.78), Slovenia (r = −.74),

An effective deterrent or smoke and mirrors? 157

Finland (r = −.67), Portugal (r = −.57), Hungary (r = −.56), and Norway (r = −.52) stepped-up deportation efforts in one year are correlated with less immigration during the subsequent year. These countries tend to be smaller, both in terms of total population and total annual immigration, relative to the rest of the countries studied. They also tend to experience higher levels of new immigration, have smaller existing foreign-born populations, and are characterized by higher levels of unemployment. Politically, while the far right has not been significantly more successful in this subset of countries, these countries are more likely to have had right-leaning governments in power during the time period under study. These characteristics are largely consistent with what the immigration literature predicts. However, that these factors are mostly insignificant in the multivariate analysis suggests that while they are important, they are not sufficient conditions for determining immigrant inflows. GDP per Capita and Unemployment  With respect to the economic factors analyzed here, the data indicate that GDP per capita is positively, but not consistently, significantly related to immigrant inflows. To be sure, the bivariate relationship between immigrant inflows and GDP per capita is highly statistically significant, which the literature predicts—i.e., economic “good times” are correlated with higher levels of immigration. But why does this relationship lose its statistical significance when taking additional factors into consideration? One plausible explanation relates to the linkage between immigration control efforts and individual risk propensity. While the economic lure that we associate with higher levels of GDP per capita may be enough to overwhelm the costs and risks of migrating for some, other prospective migrants may be more risk averse. Thus, when GDP per capita and measures of immigration control are simultaneously taken into account, these risk-averse migrants, meaning individuals who are more likely to be deterred by restrictive immigration control efforts than are other more risk-acceptant migrants, may provide part of the explanation for the inconsistent significance of the results. Otherwise put, economic incentives may not “pull” all prospective migrants equally, which is something that becomes more readily apparent in the context of immigration control. The data analyzed here are insufficient for delving into this more deeply; however, research that examines the risk propensities of prospective migrants across different migratory contexts and how prospective migrants adjudicate risk in light of varying economic incentives are, indeed, ripe areas for future exploration.

158  An effective deterrent or smoke and mirrors?

Unemployment is negatively and significantly related to immigrant inflows, but this result is also inconsistent. When migration networks are measured using lagged immigrant inflows, unemployment has an insignificant effect. On the other hand, when migration networks are measured using the lagged percentage of the foreign-born population, the effect of unemployment is highly statistically significant. The human capital approach to international migration suggests that migrants strategically select their countries of destination based, in part, on where the likelihood of employment is high. It follows that during periods of high unemployment, a prospective migrant’s probability of employment decreases, which in turn weakens the economic pull of a country. Model 2 in Table 5.2 supports this logic. But does a purely economic calculus drive this result? After all, previous research shows that increased unemployment can lead to the hardening of attitudes toward immigration and immigrants. It is thus worth exploring the possibility that increased unemployment leads to more restrictive immigration control efforts, which in turn decreases immigrant inflows. A check on the bivariate relationship between unemployment and deportations, however, shows no significant correlation. In other words, higher unemployment does not mean more deportations, which adds confidence to the finding that unemployment has an independent impact on immigrant inflows when the foreign-born percentage of the total population is taken into account. Population Growth  Dual labor market theory suggests that an aging population coupled with smaller cohorts of young people willing to fill entry-level and low-skilled jobs creates a structural demand for immigration. However, the data analyzed here do not support this, as population growth is not significantly related to immigrant inflows across any of the model specifications. Migration Networks  In terms of migration network theory, the results show that while previous immigrant inflows are significantly related to more immigration, a sizable existing foreign-born population in a country is not. One possible explanation for this is that these two indicators of migration networks, in fact, measure distinct phenomena. Ilse Ruyseen, Gerdie Everaert, and Glenn Rayp (2011) argue that while the former captures dynamic effects related to how expectations about earnings in a country are formed and updated, for example, migrants learn about the economic prospects in a country based on whether or not others are migrating there, the latter captures the social aspects (e.g., family members already in the destination country) of migration networks. These differences may explain the contrasting results.

An effective deterrent or smoke and mirrors? 159

On the one hand, previous immigrant inflows may signal positive information that encourages prospective migrants to immigrate. On the other hand, increasingly large foreign-born populations may catalyze efforts to restrict so-called chain migration. Indeed, many of the most significant changes that have been made over the past decade to the legal migration regimes of the countries under study relate to family reunification—familial bonds are, indeed, part and parcel of the social aspects of migration networks. Policies in Denmark related to family reunification, which include a minimum age requirement (twenty-four years old, at the time of this writing) before a foreign spouse of a Danish citizen can legally immigrate to the country, among other strict requirements, provide one example. Proposed changes to family-based immigration to the United States, including the elimination of entire categories of familial relationships from legal immigration pathways (e.g., adult siblings), provide another example. Political Factors  Immigration tends to decrease when right-leaning governments are in power, but upcoming elections and the legislative representation of the far right are not significantly related to immigrant inflows. When it comes to the political orientation of government, right-leaning governments have made prominent efforts to “close the tap,” or at least tighten it, when it comes immigration. This is, perhaps, best illustrated by the new immigration legislation proposed by British prime minister David Cameron’s Conservative Party government in late 2013. In addition to its “deport first, appeal later” approach to immigration control, as discussed in Chapter 4, the reforms also seek to reduce family-based immigration by taking aim at “sham marriages and civil partnerships.” At the same time, the relationship between right-leaning governments and immigrant inflows is only weakly statistically significant. It is not difficult to explain why. Right-leaning governments may also have incentives to keep the immigration tap open. Whether they are pulled by economic necessity or pushed by client politics, immigration may be looked upon as necessary to increase labor pools in order to fill labor market shortages or other similar macroeconomic needs. From a slightly different perspective, “rights-markets coalitions,” which bring political conservatives who are economic liberals together with political liberals to support more open immigration policies, have historically enabled major immigration reform legislation in the United States, including the Immigration Reform and Control Act of 1986 (Hollifield, Hunt, and Tichenor, 2006; Hollifield and Wong, 2014; Tichenor,

160  An effective deterrent or smoke and mirrors?

2002). Altogether, as right-leaning governments may seek to restrict immigration on balance, they may also seek at times to expand it. It is also important to note that right-leaning governments are not alone in seeking to close or tighten the tap on immigration. As mentioned above, some categories of family-based immigration, which constitutes two-thirds of annual immigrant inflows to the United States (DHS, 2013), were eliminated as part of a comprehensive immigration reform package passed by the Democrat-led Senate in 2013 and endorsed by the Obama administration. The relationship between elections and immigration also warrants some attention. As popular news media coverage makes clear, elections provide the occasion for politicians and political parties to sensationalize immigration and immigrants (Baker et al., 2008; Rasinger, 2010; Richardson and Colombo, 2013). However, as political machines take stock of the electoral landscape in which they are operating, it is increasingly the case that winning electoral strategies may require that immigrant constituencies be taken into account. Not only limited to the United States, immigrant-receiving countries across Europe have experienced substantial growth in the immigrant share of the electorate. An innovate study by Ruud Koopmans, Ines Michalowski, and Stine Waibel (2012) shows that from 1980 to 2008, the estimated share of first- or second-generation immigrant voters in national elections in the United Kingdom increased from 2.1 to 10.2 percent. In France, it increased from 2.5 to 9.9 percent. Belgium experienced the largest increase among the ten countries studied, as the immigrant share of the electorate grew from just .7 percent in 1980 to 8.1 percent in 2008, which represents a percentage change of over 1,000 percent. Still, the rise of the immigrant electorate in Europe has run alongside the rise of the far right, which the authors conclude has tempered the electoral and policy gains of the former. Nevertheless, students of immigration politics and policy will be well served by keeping close attention to the relationship between elections, immigration outcomes, and the role that immigrants themselves play in shaping the contours of both. Lastly, while Chapter 3 shows that the legislative representation of the far right has a significant effect on deportations, and while Chapter 4 shows a significant, but somewhat counterintuitive effect on immigration detention, we see here that the far right does not significantly impact immigrant inflows. The far right has been effective in politicizing irregular migration and in casting unauthorized immigrants as the “undesirable other.” Whereas such frames certainly resonate among their supporters, it seems unlikely that, even despite their best efforts, that they would resonate with the broader public when

An effective deterrent or smoke and mirrors? 161

applied to legal immigration, particularly when the selectivity of points-based immigration systems lead to immigrant stocks that are increasingly highly skilled, educated, and viewed as productive members of society. The differential effects that the legislative representation of the far right has on the outcomes analyzed over the course of the past several chapters reinforces the idea that interrelated, but distinct, sets of behavioral logics and factors govern different aspects of immigration control policy. Put otherwise, whereas factors such as the far right clearly play a role when it comes to deportations, it appears that a different political milieu “matters” when it comes to decisions regarding legal admissions. Analysis and Findings: Asylum Inflows

This section replicates the preceding analysis but focuses on asylum rather than immigrant inflows. Table 5.3 reports the results of the multivariate analysis of asylum inflows. Table 5.3  Modeling

asylum inflows Model

Variable

4

5

Deportationst−1

−.148** (.055)

−.036 (.083)

GDP per capita (ln)t−1

−.263* (.132)

−.578** (.179)

Unemploymentt−1

.024 (.019)

.035 (.023)

Asylum inflowst−1

.658** (.076)

6

.487 (.292)

Refugee percentage of populationt−1 Right governmentt−1

−.039 (.066)

Election yeart−1

.000 (.104)

Far-right seat sharet−1

.018* (.009)

Total population (ln)t−1 Country fixed effects Observations

2.546 (1.406)

5.809** (1.730)

i

i

i

225

225

225

note: Multivariate analysis of asylum inflows. Cross-sectional time-series regression models with panelcorrected standard errors (in parentheses). Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

162  An effective deterrent or smoke and mirrors?

Many of the factors that are thought to shape immigrant inflows are also thought to shape asylum inflows (see, e.g., Neumayer, 2004; Thielemann, 2004). As it relates to immigration control, existing studies have examined whether hostile policy climates make certain countries less attractive destinations for asylum seekers. Eiko Thielemann (2004) analyzes the impact of restrictive asylum policies using an additive five-point deterrence index. The index takes into account whether asylum seekers are prohibited from legally working, whether a state has a below-average asylum recognition rate, whether a state has a “safe third-country” provision, meaning it deports asylum seekers to places that they have transited through if these places are deemed to be “safe,” whether restrictions are placed on asylum seekers with respect to freedom of movement, and social welfare policies. Thielemann finds that two of these factors—safe thirdcountry provisions and a below-average recognition rate—have a significant deterrent effect on asylum inflows. Eric Neumayer (2004) also analyzes the impact of asylum recognition rates in a separate study. He similarly finds that asylum inflows decrease when recognition rates decrease. As exemplars of the few quantitative studies conducted in this area, these findings are particularly insightful, as they show that both restrictive policies and administrative practice can have an effect on asylum inflows. Deportations  More deportations mean fewer new asylum claims, however, the significance of this finding depends on how asylum networks are measured. When asylum networks are captured using previous asylum inflows, the relationship between deportations and new asylum claims is highly statistically significant. However, the significance of the relationship disappears when networks are measured using the lagged refugee percentage of the total population. As with the analysis of immigrant inflows, it appears that the two different indicators used to capture asylum networks are measuring distinct phenomena. Asylum networks, when measured by previous asylum inflows, are agnostic about the outcome of asylum claims; for example, whether an asylum seeker is recognized as a refugee, receives a complementary form of protection, or is rejected, among other possibilities. This measure thus captures those with legitimate asylum claims, as well as the subset of “bogus” asylum seekers who are the focus of stepped-up deportation efforts. On the other hand, the refugee population in a country, by definition, only captures those asylum seekers who have been recognized as refugees and are thus, at the potential risk of refoulement, not deportable. Altogether, the data indicate

An effective deterrent or smoke and mirrors? 163

that more deportations mean fewer asylum claims when asylum networks are measured in a way that includes potentially bogus asylum seekers, but not when they are measured in a way that captures only those asylum seekers who have been recognized as refugees. GDP per Capita and Unemployment  While asylum seekers often flee their countries under conditions of imminent threat and great duress, and are thus unable to consider the costs and benefits of choosing one destination over another, existing studies generally model the choice of asylum destination as a utility-maximizing decision. In other words, asylum seekers weigh the relative net benefits of applying for asylum in each prospective country and then choose the one that offers the greatest benefit (Neumayer, 2004). This leads us to expect that, ceteris paribus, asylum seekers will systematically choose wealthier countries over other potential destinations. The results, however, show just the opposite. GDP per capita is negatively related to asylum inflows, meaning the wealthier a country is, the fewer asylum claims it receives. This result is statistically significant and holds across each of the model specifications. This does not necessarily mean that the choice of asylum destination is not a rational, utility-maximizing decision. Rather, the utility-maximizing function here seems less related to economic and material benefits than some theories would suggest. For example, previous research shows that asylum recognition rates decrease as the wealth of a country increases. Thus, while economic factors may very well play a role in asylum destination choice, it seems equally rational, and slightly more pragmatic, that asylum seekers would be less likely to go where their asylum claims are more likely to be denied. From this perspective, the utility-maximizing function is more about “getting one’s foot in the door” than it is about what one stands to gain economically. The data provide no support for a link between levels of unemployment in a country and asylum inflows. Asylum Networks  Migration network theory, when applied to asylum, suggests that previous asylum inflows facilitate future asylum inflows (Davenport, Moore, and Poe, 2003; Moore and Shellman, 2004; cf. Melander and Oberg, 2006). One of the core causal mechanisms here relates to information. Those who have already claimed asylum in a country can communicate valuable information to prospective asylum seekers. This can include firsthand accounts of the costs and potential perils of migrating, as well as experiential information about the asylum process, the broader political and social

164  An effective deterrent or smoke and mirrors?

context in the destination country, and other important information that helps to reduce the risks and uncertainties associated with migrating under conditions of duress. As expected, when measured by the lagged total number of new asylum claims, asylum networks are positively and significantly related to asylum inflows. In other words, the number of new asylum claims that a state receives in one year predicts the number of new asylum claims that it will receive in the following year. However, while the lagged refugee percentage of the total population is also positively related to asylum inflows, this result is not significant. Political Factors  Unexpectedly, as the share of seats held by far-right political parties increases, so too do asylum inflows. This result is difficult to interpret. First, a check on the bivariate relationship between these two factors does not reveal a significant relationship—in other words, it is not the case that the far right systematically fares better in elections, and thus has greater legislative representation, when asylum inflows increase (p = .225). Moreover, the statistical significance of the relationship disappears when the lag is extended beyond one year (e.g., when the far right gains legislative representation asylum inflows increase the immediate year after, but not in subsequent years). This finding may thus simply be an artifact of the data. The data also show that right-leaning governments and upcoming elections are not significantly related to asylum inflows. Altogether, these results should not be interpreted to mean that politics do not play a role in asylum inflows, as previous research shows that it clearly does (Neumayer, 2004; Thielemann, 2004). Rather, this simply means that the particular constellation of political factors analyzed here may not adequately capture the nexus between the domestic politics of migration, asylum policies, and the logic that undergirds why, how, and when an individual flees persecution in one place and seeks asylum in another. Conclusion

Does the increased restrictiveness of immigration control deter unwanted immigration? As Andrew Geddes (2003a) writes, “Restrictive immigration policies have not meant the end of immigration, rather they have co-existed with continued immigration” (p. 26). The analysis here supports this view. Using deportations as a measure of policy restrictiveness, the data indicate that more deportations do not mean less immigration. The results are less straightforward, however, when it comes to asylum inflows. More deportations tend to

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mean fewer asylum claims, but the significance of this result is sensitive to how asylum networks are measured. Taken altogether, the data and analysis do not provide definitive evidence to support the argument that the increased restrictiveness of immigration control, at least when measured by deportations, has a deterrent effect on immigrant inflows. However, there is some evidence to suggest that it does have a deterrent effect on asylum inflows.

6

Conclusion Migrants, Agency, and the Future of Immigration Control

MIGRATION has become one of the most prominent and enduring features of globalization, and it continues to be an issue that ignites intense passions from all sides. It is the persistence of migration, as well as how it touches so many of the most important aspects of liberal democratic society—for example, how it pushes against the boundaries of membership and inclusion and how it, at times, collides with the inviolability of national identity—that maintains and restocks the fuel that gives rise to political debates over controlling immigration. Over a century ago, E. G. Ravenstein (1885, 1889) identified certain “laws of migration”:

Bad or oppressive laws, heavy taxation, an unattractive climate, uncongenial social surroundings, and even compulsion (slave trade, transportation), all have produced and are still producing currents of migration, but none of these currents can compare in volume with that which arises from the desire inherent in most men to better themselves in material respects. (1889, p. 286)

We have now come to understand the blend of political, economic, social, and structural factors that drive migratory decisions as “push” and “pull” factors (Lee, 1966). Although we experience these “pushes” and “pulls” more or less acutely today depending on the factor, the basic point remains that many of the same causes that have driven historical migrations persist in our present day and continue to be experienced by people in ways that make decisions to migrate—whether legal channels exist or not—rational. Migration is, to recall the work of Handlin (2002 [1951]), one of the central experiences of humanity. 166

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For the millions of migrants across the world and for the societies that continue to be transformed by them, Handlin’s thesis remains prophetic. But our current age of migration is also an unrelenting age of immigration control. As each of the chapters show, the machinery of immigration control, meaning the bundle of policies and practices that states use to deter so-called unwanted immigration, is a diverse arsenal that extends far beyond tightening admissions criteria and fortifying borders—conceptualizing control requires moving beyond a singular fixation on borders. Indeed, among the fundamental cogs in this machinery, are the denial or severe curtailment of rights to those entangled in immigration enforcement efforts, unprecedented numbers of deportations, and the continued growth of immigration detention. Moreover, in this age of control, the human rights and immigration control wrongs discussed throughout these pages make clear that the line demarcating where the impulse, desire, and necessity of controlling immigration ends and where the rights of all migratory persons, irrespective of their immigration status, begins, is often blurry and is sometimes even nonexistent. These are not just matters of concern for noncitizens, as the impulse of immigration control can even penetrate the aegis of citizenship, as the deportation of U.S. citizens during the Mexican Repatriation demonstrates. As a matter of politics, this begs the question: What explains why states “do what they do” when it comes to immigration control? Until recently, few studies had systematically analyzed immigration control and its implications either across countries or over time. Thus, in analyzing new data across twenty-five immigrant-receiving countries over a ten-year period, this book represents one of the most comprehensive studies to date on the topic. Combining statistical analyses with in-depth interviews and participant observation of immigration control practices in the United States and in Europe, it unravels the logic and politics that undergird three of the most salient and visible components of the contemporary machinery of immigration control. Is the restrictive turn in immigration control that we are currently witnessing the inevitable outgrowth of what Arendt (1966) describes as the “timehonored and necessary” right of states to decide on matters of entry, exit, nationality, and expulsion? As I have argued, no. That national sovereignty vests states with the right to control immigration does not mean that states must always exercise their power and authority, or do so in ways that exclude those who are deemed strangers to a polity from the rights and protections that form the core of what constitutes liberal democratic society. As the analyses show,

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varying degrees of restrictiveness in immigration control emerge as policy outputs that are products of the political and institutional contexts in which the politics of immigration unfold and are shaped and reshaped by particular constellations of political, economic, and societal factors. While this means that immigration control need not always imply restrictiveness, contemporary political debates over the issue are such that not only does the pendulum appear firmly entrenched in this direction, but few hints exist that it has ever, can, or will in the future swing in the other direction. Chapter 2 illustrates this clearly. Despite a robust normative framework of rights, the human rights of migrants have often been met by immigration control wrongs. Widespread human rights abuses in the context of immigration control, including abuses that implicate Western democracies, have prompted the United Nations Special Rapporteur on the Human Rights of Migrants, the European Court of Human Rights, and countless other INGOs and NGOs to remind states that the objectives of immigration control do not absolve them of their human rights obligations. However, in stark contrast to the need for strengthened human rights protections in this area, the interests and incentives of states, particularly immigrant-receiving ones, continue to work against the extension of greater rights protections to migrants. A global quantitative analysis of 162 countries from 1990 to 2009 provides evidence to support the argument that, because international human rights treaties that extend rights to migrants impose high sovereignty costs on states over matters of immigration control, meaning they increase the distance between what states want to do and what they can do as parties to these treaties, they are not likely to be ratified. The data indicate that, not only does the likelihood of ratifying the ICRMW decrease as immigration increases, but the dynamics within Western immigrantreceiving countries suggest that the future prospects of ratification are, even in the best of scenarios, dim. As a result, emergent human rights norms, including basic rights during deportation and immigration detention, have yet to become fully instantiated in the domestic legal frameworks that govern the machinery of immigration control. Respect for the human rights of migrants will undoubtedly remain a flashpoint. As the contours of the political debate seem clear, that is, states will continue to invoke notions of Westphalian territorial sovereignty to legitimate immigration control efforts while, simultaneously, arguing against the need to support international human rights instruments that extend rights protections to migrants for reasons already discussed, rights advocates face a difficult task

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moving forward. Because arguments directed against the former often fall flat as a matter of influencing policy, efforts to strengthen rights protections may very well hinge on the ability to establish objective metrics regarding the extent to which state immigration control practices conform (or not) to international human rights standards. One such effort, the International Migrants Bill of Rights project, is ongoing. It remains to be seen what impact, if any, such efforts will have. However, increasingly heavy-handed deportation efforts and the unabated expansion of immigration detention make vivid their importance. What constellation of political, economic, and societal factors “matter” when it comes to deportations? For this particular mechanism of immigration control, the legislative representation of far-right political parties takes center stage. Chapter 3 uses new data collected across twenty-five Western immigrantreceiving democracies from 2000 to 2009 to analyze and explain why states do what they do when it comes to deportations. In contrast to theories of immigration policy that assign causal importance to macroeconomic or societal factors, I argue and show that while the economic and societal implications of immigration (either real or perceived) may increase public demand for more restrictive immigration control measures, the extent to which this demand is translated into policy outcomes is determined by the political landscape in which the politics of immigration plays out. More specifically, electoral institutions play a role in channeling restrictive preferences over immigration into policy outputs by providing opportunities for the legislative representation of the far right. The analysis shows that as the legislative representation of farright political parties increases, so too do deportations. Moreover, in unpacking the results, we see that as support for the far right, as measured by vote shares, increases, deportations increase in proportional representation electoral systems, but not in majoritarian ones. Taking a step back for a moment, in tracing its political utility across different historical contexts, we see that the ideas of person and place in relation to deportation have not been constant or fixed over time. Today, the person we understand to be deportable is the “unwanted” immigrant whose personhood is reducible to various “papers” and is understood principally by her migratory status. Place is understood to mean removal from one sovereign state to another. However, the ideas of person and place have historically been defined in accordance with distinctly political logics. Thus, there is not one logic that legitimates deportation; rather, a confluence of reasons, almost always political, but also economic, social, and cultural, have been used to justify the forcible

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removal of people. Altogether, while deportation can be viewed as a literal end that results in the expulsion of an individual or group, its historical place has been that of a political means. In other words, who states choose to deport or not deport are fundamentally political decisions. What constellation of factors “matter” when it comes to immigration detention? Because of data limitations, the analysis of immigration detention in Chapter 4 is descriptive and exploratory. The results should thus be interpreted with caution. In analyzing immigration detention, we see that the political, economic, and migration-related determinants of immigration policy affect each cog in the machinery of immigration control in distinct and sometimes unexpected ways. Immigration policy is not unitary, and we are becoming increasingly attuned to this point. For example, in contrast to the analysis of deportations, the data indicate that as the legislative representation of the far right increases, the prevalence of immigration detention decreases. This result is unexpected; however, it does make some intuitive sense. As the case of the FPÖ illustrates, the far right has found some success in expediting the deportation of asylums seekers, as well as in limiting due process and judicial review in the context of immigration detention. When the processes that lead from detention to deportation are purposively stripped of these protections and become decidedly short, the demand for immigration detention lessens. Moreover, recalling the economic costs—$122 USD per day in the United States, £120 GBP per day in the United Kingdom, and $120 CAD per day in Canada— it is also reasonable to assume that expedited deportation rather than lengthy and costly detention is the preferred policy preference among the far right. But again, these results should be interpreted with caution. As cross-national data collection on immigration detention is ongoing, future research can hopefully provide greater clarity when it comes to the determinants of immigration detention. This includes analyzing immigration detention not only through the lens of the detention site but also detention capacity (e.g., how many people are detained), who is detained, the resources governments invest in the practice, and the further expansion of the immigration-detention-industrial complex, to name a few. In the interim, exposing and problematizing the labyrinthine processes of immigration detention, taking seriously questions regarding its proportionality, reminding ourselves of the circumstances that led to the deaths of Mr. Ng and Mr. Bravo (and that many other cases of death in immigration detention exist), and documenting human rights and immigration detention wrongs, are

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all necessary steps in further cutting through the opacity of this mechanism of immigration control. Lastly, one of the most fundamental policy questions at play in the analysis of immigration control is whether increased restrictiveness works to deter “unwanted” immigration. Chapter 5 addresses this question. A review of the relevant literature suggests that the answer is no. Moreover, not only does increased policy restrictiveness not deliver the intended deterrent effect, but it comes with a series of unintended consequences, the most dire of which is the increased number of migrant deaths that result when irregular entry routes are shifted to more dangerous areas. The results of the analysis in Chapter 5 are largely consistent with what the literature expects. The data indicate that increased restrictiveness, as measured by deportations, is not related to decreased immigrant inflows. However, the analysis does show that increased deportations are, with some qualifications, related to decreased asylum inflows. So where does this leave us? In one respect, the future of immigration control seems clear: we will see more of it. As a matter of rights, this means sharper distinctions between citizens and noncitizens, which can manifest in many different ways. Plans by Swiss officials in the town of Bremgarten to segregate asylum seekers from the general population, including at “public swimming pools, playing fields, libraries—even a church” (Calamur, 2013), provides one example, in addition to the numerous other examples discussed throughout the book. With respect to deportation, this means its persistence as the most heavy-handed immigration control tool that states wield. The ongoing targeting of Roma by the French government after the widespread condemnation it received for its mass deportations in 2010, as described in Chapter 2, provides an example. The record number of deportations that we are seeing from major immigrant-receiving countries like the United States, as described in Chapter  3, provides another example. Lastly, regarding detention, this means the continued expansion of immigration detention facilities and even efforts to create and maintain minimum detention quotas. For example, with respect to the detention bed mandate in the United States, as discussed in Chapter 4, a recent attempt to repeal the mandate via an amendment to the Department of Homeland Security Fiscal Year 2014 Appropriations Bill failed. The policies, mechanisms, strategies, and tactics of immigration control are also likely to continue to evolve (or devolve depending on one’s perspective). Here, the UK Home Office’s “go home” van campaign, which includes signs posted on the sides of vans reading in the uk illegally? go home or face arrest, and the use

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of Twitter to tweet news and pictures of immigration enforcement actions are illustrative examples. But while this book analyzes the main theorized determinants of immigration control, it does not analyze all of them. Among the most pressing, albeit existential, questions that liberal democratic societies face is the extent to which migrants are regarded as “members” or “strangers.” Our current version of this question is not entirely a Walzerian replica. Rather, it falls within what Hollifield and Wong (2014) describe as the ideational confines of political systems. As such, its answer is subject to capture and recapture by both old, and new, political actors. The new political actors here are those who find themselves in spaces of liminal illegality. These are the objects of immigration control—the “undocumented,” the “unauthorized,” the “irregular,” the “illegal,” and the “unwanted”—who not only stake claims to membership based on their presence and the roots that they have established in a place, but who are also increasingly visible, vocal, and active political actors who are confronting head on the exclusionary aspects of immigration policies. As immigration policies define who is to be allowed in and who is to be kept out of the polity, they help to define the boundaries and limits of inclusiveness in a society. These new actors are thus attempting to push these boundaries outward. Some are even trying to shatter them altogether. They are, perhaps, best exemplified by undocumented youth activists in the United States, some of whom find themselves permanently in Washington, DC, lobbying Congress for fair, just, and humane comprehensive immigration reform, while others are pushing the envelope in different ways. In July 2013, for example, a group of undocumented youth left the United States for Mexico, and then attempted to reenter the country without authorization at the Nogales, Arizona, port of entry. This was a deliberate political act that created a storm of controversy, partly due to its timing amid the debate over comprehensive immigration reform legislation, but also because it sought to test the limits of U.S. immigration control efforts. After being detained by CBP officers and then transferred to the Eloy Detention Center, the group was ultimately released (Carcamo, 2013). My intent here is to draw attention to an underexamined factor that may shape the future of immigration control, not insofar as swinging a seemingly unmoving pendulum, but by taking the rough edges off of where it is currently fixed. With respect to rights, it may very well be those who have the most to gain and lose in the context of immigration control, meaning unauthorized immigrants themselves, who help ensure that domestic policies and practices

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are consistent with international human rights law and norms. Deportation and detention will continue, but it may very well be those who live in fear of being deported or detained, or even deportees and detainees themselves, who collectively raise the importance of moral and human rights considerations in the context of immigration control. Put otherwise, to the extent that the objects of immigration control become political actors, the valence of immigration control can potentially change. If such change were to occur, it would result in part because engaging with political processes and institutions in liberal democratic societies is among the most important political acts that members of these societies can do. At the same time, however, as immigrants as political actors push for inclusiveness, competing political, economic, and societal currents often push back. This is hardly new. In fact, this dynamic has been an enduring feature of contemporary international migration—Chinese exclusion in the United States during the late nineteenth and mid-twentieth centuries, Chinese exclusion in Canada during the early twentieth century, and the “White Australia” policies of the early to mid-twentieth century, just to name a few, attest to this reality. In the United States, some scholars are paying increasing attention to the “White backlash” stemming from the persistent and growing unauthorized immigrant population (Abrajano and Hajnal, forthcoming). In Europe, as Anna C. Korteweg and Gokce Yurdakul (2013) describe, the denial of French citizenship to a niqab-wearing Muslim woman and similar “headscarf debates” in other countries with large Muslim-immigrant populations, such as Germany and the Netherlands, continues to replenish the fuel that gives rise to controversies that intersect immigration and national identity. This opens up an interesting set of new research questions and avenues that can help navigate mostly uncharted territory in the study of the politics of immigration control. Conceptualizing an (unauthorized noncitizen) immigrant as a political actor is, perhaps, oxymoronic in a discipline that generally assumes that individuals “matter” politically only to the extent that they are citizens and can vote, and given a reality wherein politicians are more responsive to those constituents whose votes impinge on their electoral survival. However, as irregular migration persists, as unauthorized immigrant populations grow, and as societies continue to negotiate the realities of liminal illegality, perhaps the most salient question here is the extent to which elected representatives and political parties view unauthorized immigrants as strangers who simply reside, whether welcome or not, in a place, or as part of the constituencies that they

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represent and serve. Most may not, but others may, which begs the question: What explains these differences and is any of this consequential for immigration politics and policy? This also requires a better understanding of the civic engagement and political incorporation of unauthorized immigrants, as well as what the structural and other impediments are to their political participation. Whether pursued in an individual case or across countries, these questions reach far beyond immigration politics, as they also speak to the foundational issues of political representation and participation. Thus, the answers to these questions will invariably involve the collision of migrants and advocates who invoke the language of representation, agency, and rights in order to push in one direction, the far right and other societal actors, including sensationalist media (Art, 2007; Chavez, 2013), who push back in the opposite direction, and the political and institutional context that provides the backdrop. In describing the experience of migrant guest workers in Europe during the postwar period, Michael Walzer (1983) wrote, “These guests experience the state as a pervasive and frightening power that shapes and regulates their every move—and never asks for their opinion. Departure is only a formal option; deportation a continuous practical threat,” (p. 57). His depiction of the precariousness of one’s existence as a temporary guest worker in the 1960s is applicable for many unauthorized immigrants today. However, the mantra of “undocumented and unafraid,” which describes the undocumented youth movement in the United States, provides a contrasting narrative. To be clear, unauthorized immigration status carries with it serious negative consequences that continue to be experienced acutely by millions around the world. But by wrestling agency away from the restricting confines of their immigration status, these effects may become less suffocating, and in the process of gaining political voice, unauthorized immigrants as political actors may very well shape the future of immigration politics.



Appendix 1 Methodological Notes in the Analysis of Ratification of the ICRMW

I model the ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Their Families, y1, using a logistic regression model with time fixed effects. Because only a small percentage of states have ratified treaties that require them to extend basic human rights protections to noncitizens, I check the results of the logistic regression models with time fixed effects using rare events logistic regression models (King and Zeng, 2001). The use of time fixed effects allows time invariant trends that are not anticipated in the model to affect all countries equally. In addition to time fixed effects, I also estimate the global rate of ratification of the ICRMW. The global rate of ratification is a measure of the strength of a norm and has been used in previous research (Goodliffe and Hawkins, 2006; Simmons, 2009). Predicted probabilities are obtained using CLARIFY (Tomz, Wittenberg, and King, 2003). Data for y1 come from the United Nations Treaty Series database. I check the analysis of the ICRMW against the analysis of International Labor Organization Convention 143 (C. 143), y2. To recall, C. 143 calls on states to respect the human rights of all migrant workers but does not go nearly as far as the ICRMW when it comes to blurring distinctions in rights between authorized and unauthorized immigrants. Moreover, Articles 2 to 7 of C. 143 require states to work to “suppress clandestine movements of migrants for employment and illegal employment of migrants” and to “adopt all necessary and appropriate measures [. . .] against those who employ workers who have immigrated in illegal conditions.” Data for y2 come from ILO International Labor Standards

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database. As the profile of states that have ratified the ICRMW and C. 143 are similar, the analysis, expectedly, yields qualitatively similar results. The main migration-related variables analyzed include annual net migration (immigration minus emigration) and the foreign-born percentage of the total population in a country. Data for these migration-related variables come from the World Bank World Development Indicators. Net migration estimates are obtained at five-year intervals using official data that come from national censuses, border statistics, administrative records, and surveys. If official estimates are insufficient, net migration is calculated using the balance equation, which is the difference between overall population growth and natural increase. I impute gaps between the five-year intervals using the same linear algorithm used in the polity2 score of the Polity IV Project. In alternative model specifications, I examine the relationship between the total number of refugees hosted by a country and ratification of the ICRMW. These data come from the UNHCR and the Forcibly Displaced Persons dataset of the Integrated Network for Societal Conflict Research. The effect of the refugee percentage of the total population, like net migration and the foreign-born percentage of the total population, is negative and significant. Data for regime type come from the Polity IV project. I use the polity2 score, which is a twenty-one-point additive scale that ranges from fully institutionalized democracies through mixed authority regimes to fully institutionalized autocracies. Previous research has found that the relationship between democracy and human rights is a threshold relationship, wherein only fully institutionalized, consolidated democracies exhibit improved human rights practices (see, e.g., Davenport and Armstrong, 2004). I thus check the results of the polity2 score against a threshold measure of democracy. The negative relationship between regime type and the likelihood of ratification holds for both the polity2 score and the threshold measure of democracy. I measure respect for human rights using the physical integrity rights index from the Cingranelli-Richards Human Rights Data Project. The index takes into account torture, extrajudicial killing, political imprisonment, and disappearances, and ranges from 0 (no respect for physical integrity rights) to 8 (full respect for physical integrity rights). I check these results using an alternative measure of human rights abuse. The Political Terror Scale measures the extent to which states abuse physical integrity rights on an ordinal scale ranging from 1 to 5 with higher values corresponding to worse human rights practices. Political Terror Scale data are compiled from annual human rights reports

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issued by the U.S. State Department and Amnesty International. Because these reports have been shown to be biased in favor of America’s allies and against repressive regimes (see, e.g., Poe, Carey, and Vazquez, 2001; see also Cole, 2005; Hill, Moore, and Mukherjee, 2013), I use the average of the two scores obtained from each report. As the Cingranelli-Richards and Political Terror Scale data are highly correlated, the results are qualitatively similar. Consistent with previous studies, I use the natural log of GDP as a measure of state (economic) power. These data come from the WDI. In other model specifications, I use GDP per capita as an alternative measure of state (economic) power. The results obtained using GDP per capita are qualitatively similar to those obtained using GDP.



Appendix 2 Methodological Notes in the Analysis of Deportations

I model the immigration-to-deportation ratio (y1) and deportations per total population (y2) using cross-sectional time-series regression models with panel-corrected standard errors. The structure of the data presents some methodological problems that need to be addressed before conducting regression analyses. Cross-sectional data often exhibit panel (i.e., country specific) heteroskedasticity, meaning the distribution of residuals in panel data may vary from one panel to the other. The effect is that the standard errors of coefficients are underestimated. To correct for this, OLS standard errors are replaced with the more conservative panel-corrected standard errors (Beck and Katz, 1995, 2001). Country fixed effects are also included to account for unobserved country-level heterogeneity not anticipated in the model. The inclusion of country fixed effects helps to account for the varying migration histories (e.g., “immigrant settler” or colonizing country) and legal immigration regimes (e.g., points-based systems and quotas) of the countries analyzed, as well as the different migratory and population pressures that these countries face. Moreover, per Nathaniel Beck and Jonathan Katz (2001), a lagged dependent variable is included to account for autocorrelation. Given that the inclusion of a lagged dependent variable can create bias and suppress the explanatory power of the independent variables (Achen, 2001), I check the results of the far-right seat share against an Arellano-Bond linear dynamic panel data estimator, which excludes a lagged dependent variable and, instead, takes the first differences of each of the independent variables (Arellano and Bond, 1991). The results are qualitatively similar. In fact, the size of the effect of the far-right

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seat share slightly increases. New immigration also becomes strongly, positively significant. However, as Sven Wilson and Daniel Butler (2007) note, the use of panel-corrected standard errors, country fixed effects, and a lagged dependent variable are no panacea for the problems posed by the structure of the data analyzed here. I thus also test several alternative specifications. For example, paying particular attention to their cautions about “sluggish variables,” meaning variables that change slowly over time, I check the results against a model that only includes election years (years in between elections when the far-right vote and seat share do not change are excluded, which results in a significant decrease in the total number of observations). While the direction of the effect of the far-right seat share and the interaction between the far-right vote share and proportional representation rules remain intact, all of the variables except for the lagged dependent variable lose their statistical significance. This, however, is attributable to the lack of the statistical power in the model due to the small number of observations. The countries analyzed are the immigrant-receiving countries of the EU28 and North America, as well as Australia and Norway. Immigrant-receiving countries are those in which net migration, which is equal to immigration minus emigration, is greater than zero. Of the twenty-eight European Union countries, the sample excludes Bulgaria (estimated net immigration of −5,000 from 2005 to 2010), Croatia (estimated net immigration of 0 from 2005 to 2010), Estonia (estimated net immigration of 0 from 2005 to 2010), Latvia (estimated net immigration of −10,000 from 2005 to 2010), Lithuania (estimated net immigration of −100,000 from 2005 to 2010), Poland (estimated net immigration of −120,000 from 2005 to 2010), and Romania (estimated net immigration of −200,000 from 2005 from 2010). Deportation is defined as the enforced removal of persons who are present in a country without authorization. Deportation can further be characterized as resulting from the violation of immigration rules and as being carried out by the state against the preferences of the migrant. I note here that for European Union countries, a deportation refers to the enforced removal of an unauthorized immigrant to a third country. A third country refers to any country outside of the EU. As discussed in the text, differences in how states define deportation require us to take care in making and in interpreting deportation statistics. For example, words such as “resettlement” and “voluntary repatriation” are also part of the immigration control vernacular. These processes, however, are distinct from the definition of deportation used here and are thus excluded

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from the analysis. In the United States, perhaps one of the most important definitional distinctions to make is that between “removals” and “returns.” The United States defines a removal as the “compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal” (DHS, 2012b). An unauthorized immigrant may, for example, be apprehended in the United States, be detained, an immigration judge may then issue an order of removal, and the person may then subsequently be removed. Given this process is set in motion by a violation of immigration rules and, assuming that the person does not want to leave the United States, a removal thus fits the definition of deportation described above. “Returns” are distinct in that they are not based on an order of removal. An unauthorized immigrant may, for example, be apprehended in the United States, be detained, and “voluntarily depart,” meaning the person agrees to leave the United States without being issued an order of removal (there are fewer obstacles to legally immigrating to the United States if one has not previously been issued an order of removal; nevertheless, the degree of agency individuals have in this context is tenuous). Because the person agrees to leave the United States, a return does not fit the definition of deportation described above. In the United Kingdom, similarly important distinctions need to be made between “deportations,” “returns,” and “voluntary departures” (Blinder, 2012). Each refers to the enforced removal of persons who are irregularly present in the United Kingdom. However, despite the use of the word “voluntary” in voluntary departure, each also results as a consequence of enforced removal proceedings. As Scott Blinder (2012) writes, “In this context, ‘voluntary’ describes the method of departure rather than the choice of whether or not to depart” (p. 3). Therefore, each of these categories fits the definition of deportation described above. Moreover, because of changes in data collection in 2005, even if one wanted to separately analyze deportations, returns, and departures in the United Kingdom, it would be “impossible to draw firm conclusions [. . .] any increases might be the result of changing data collection or actual increases in departures” (p. 3). As the examples of the United States and the United Kingdom demonstrate, one must take seriously how different states define deportation, as well as the related processes that produce qualitatively dissimilar (e.g., “removals” as opposed to “returns” in the United States) or similar (e.g., “removals” and “voluntary departures” in the United Kingdom) results. What the data are unable to account for are individuals who are deported multiple times during the same year or persons who are deported, but u ­ ltimately

182  appendix 2

return (see the example of Sweden’s mistaken deportation of a family to Uzbekistan in Chapter 4). The data further do not distinguish between who is deported, whether by national origins, sex, age, or any other status, including whether a person is an asylum seeker. It should also be noted that the data is unable to capture migrants who “self-deport.” These people, arguably, experience the restrictiveness of immigration control most acutely. However, because they are not forcibly deported or leave under voluntary return schemes, they are uncounted (and, in many ways, uncountable). Relatedly, the data are unable to speak to “push backs” and those who are refused entry at national borders. Altogether, the deportation data that states report may underestimate the full extent of this particular mechanism of immigration control. Data on deportations were collected first from primary sources, starting with national statistical agencies, such as the U.S. Department of Homeland Security Office of Immigration Statistics, and annual immigration yearbooks, such as the Managing the Border: Immigration Compliance report of the Australian Department of Immigration and Border Protection. Secondary sources were then used to fill in gaps. These secondary sources are mainly European Migration Network (EMN) annual reports and Eurostat, the EU statistical agency. The Center for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration (CIREFI), whose objective is to “assist [European Union] Member States in effectively studying legal immigration, in preventing illegal immigration and facilitator networks, in better detecting forged documents and in improving expulsion practice” and the European University Institute’s Collective Action to Support the Reintegration of Returning Migrants to Their Countries of Origin (MIREM) project were also used. Missing data were imputed using country averages for the time series. Missing data were imputed for Cyprus in 2007, Luxembourg from 2002 to 2003 and 2007 to 2008, Malta in 2007, and Norway in 2009. Data for Australia come from DIBP. Data for Austria come from the Federal Ministry of the Interior (BMI), EMN, and Eurostat. Data for Belgium come from the Foreign Affairs Office, EMN, and Eurostat. Data from Canada come from the Canada Border Services Agency (CBSA). Data for Cyprus comes from CIREFI, MIREM, and Eurostat. Data for the Czech Republic come from EMN and Eurostat. Data for Denmark come from CIREFI, MIREM, and Eurostat. Data for Finland come from the Ministry of the Interior, EMN, and Eurostat. Data for France come from EMN and Eurostat. Data for Germany come from EMN and Eurostat. Data for Greece come from EMN and Eurostat. Data for

appendix 2 183

Hungary come from EMN and Eurostat. Data for Ireland come from the Irish Immigration and Naturalization Service, EMN, and Eurostat. Data for Italy come from EMN and Eurostat. Data for Luxembourg come from EMN and Eurostat. Data for Malta come from EMN and Eurostat. Data for the Netherlands come from EMN and Eurostat. Data for Norway come from the Norwegian Directorate of Immigration, CIRFI, MIREM, and Eurostat. Data for Portugal come from EMN and Eurostat. Data for the Slovak Republic come from EMN and Eurostat. Data for Slovenia come from EMN and Eurostat. Data for Spain come from the National Statistics Institute, EMN, and Eurostat. Data for Sweden come from the Swedish Migration Board (Migrationsverket), EMN, and Eurostat. Data for the United Kingdom come from the UK Border Services Agency, EMN, and Eurostat. Data for the United States come from the Office of Immigration Statistics. Table A2.1 provides summary statistics for the different operationalizations of deportation. Table A2.2 shows the correlation matrix between the different operationalizations of deportations. As the table shows, deportations per foreign-born population and deportations per total population are highly correlated. However, the immigration-to-deportation ratio seems to be distinct. Political variables come primarily from the World Bank Database on Political Institutions (DPI). The DPI contains 124 variables that measure various aspects of the political systems and electoral rules of 178 countries (all independent countries with populations over 100,000). The sources used in the expert coding of the data are the Political Handbook of the World, the Europa Year Book, the PARLINE database, and the IFES Election Guide. The variables used from the DPI in this analysis include the political orientation of a government, that is, whether a government is right leaning, election year, the electoral system of a country, and the threshold for legislative representation. Regarding the political orientation of a government, a government is coded 1 for right leaning if the governing party characterizes itself as being right wing, conservative, or Christian democratic. Governments are coded as 0 if the governing party characterizes itself as left wing, communist, socialist, social democratic, or centrist. Election year is a dichotomous variable coded 1 if there is an executive or legislative election. The electoral system of a country is a dichotomous variable coded 1 if a country uses proportional representation electoral rules. A list of far-right political parties was adapted from Norris (2005) and Mudde (2007). Deviating slightly from Norris (2005), the Reform Party of Canada (1987 to

184  appendix 2

Table A2.1  Operationalizing

deportation

Deportation, 2000–2009

Operationalizing deportation

Country

Average

Low

High

Immigration-todeportation ratio

United States

Per foreign-born population

Per total population

259,339

165,168

393,289

4:1

73

87

United Kingdom

60,982

46,645

68,630

6

109

101

Greece

53,932

39,842

68,505

2

561

486

Spain

27,306

23,942

33,235

21

69

63

Germany

26,942

10,909

55,813

27

30

33

Italy

21,424

5,315

33,289

25

121

37

France

16,118

8,604

23,831

9

32

26

Netherlands

16,038

8,980

25,209

6

94

99

Canada

11,102

8,400

13,254

22

19

34

Australia

10,385

6,818

13,878

16

21

51

Austria

8,246

3,267

14,855

13

75

101

Belgium

7,593

3,965

10,352

15

62

73

Sweden

6,947

1,885

12,489

12

61

77

Hungary

4,843

619

19,645

18

158

48

Norway

4,385

1,665

8,393

12

123

95

Slovenia

4,057

1,995

9,017

6

182

203

Cyprus

3,273

2,791

4,520

5

377

393

Czech Republic

2,562

526

6,375

52

54

25

Denmark

2,123

800

3,509

20

61

39

Portugal

2,080

607

6,162

44

31

20

Slovak Republic

1,992

900

3,087

5

86

37

Finland

1,888

910

2,775

9

114

36

Malta

697

305

962

6

619

173

Ireland

470

142

830

166

9

11

Luxembourg

223

105

381

69

14

48

note: The United States deports the highest number of people in absolute terms, averaging 259,339 deportations annually from 2000 to 2009. However, when looking at the immigration-to-deportation ratio, it is Greece that admits the fewest number of immigrants for every one immigrant that is deported. Greece also deports the highest number of people per total population, averaging 486 deportations per 100,000 total population annually from 2000 to 2009.

2000) is excluded from the far-right parties analyzed here. While the Reform Party was opposed to multiculturalism, it supported immigration to the extent that migrant labor met Canada’s labor market needs. The vote share and seat share obtained by these parties in national lower house legislative elections were then tabulated for sixty-seven elections in the time series.

appendix 2 185

Table A2.2  Deportation

measures correlation matrix Immigration to deportation

Immigration to deportation

1

Per 10,000 foreign-born population

−.2606

Per 100,000 total population

−.2617

Table A2.3  Summary

Per foreign-born population

Per total population

1 .7849

1

statistics

Variable

Observations

Mean

Std. dev.

Min

Max

Immigration-to-deportation ratio

250

25.5

47.4

.4

504.5

Deportations per total population

250

95.9

119.1

3.3

609.6

Right government

250

.4

.5

0

1

Election year

250

.3

.5

0

1

Far-right seat share

250

4.0

6.2

0

28.4

GDP percent growth

250

2.3

2.8

−8.0

10.6

Percentage of unemployment

250

6.8

2.9

1.8

19.3

New immigration

250

5.3

9.3

−53.4

53.5

Foreign-born percentage of population

250

10.6

6.9

Asylum inflows

250

17,132.6

19,697.9

2.2 71

36.9 103,080

The economic factors analyzed include GDP percent growth and the unemployment rate. These data come from the World Bank World Development Indicators. The annual percent growth of GDP is the percent change in GDP from one year to the next. The unemployment rate is the share of the total labor force that is without work despite being available for and seeking employment. The migration-related variables analyzed include new immigration, which is the percent change in the foreign-born population in a country from one year to the next, the foreign-born percentage of the total population, and the annual number of new asylum claims submitted in a country. Data on the foreignborn population come primarily from the OECD International Migration Database. Eurostat, the statistical agency of the European Union, is used to fill in data gaps for non-OECD countries. Gaps for the foreign-born population were imputed using country averages for Belgium 2009, Canada 2009, Norway 2009, Slovak Republic 2000 and 2009, and Slovenia 2000 to 2004 and 2009. Data on asylum inflows come from the UNHCR. Table A2.3 provides the summary statistics for the variables analyzed in Chapter 3.



Appendix 3 Methodological Notes in the Analysis of Immigration Detention

I operationalize the prevalence of immigration, y1, detention by using the count of the total number of criminal, administrative, and ad hoc detention facilities in a country. I operationalize the use of immigration detention by using the count of criminal detention sites, y2. Data on detention sites come primarily from the Global Detention Project. The Global Detention Project describes itself as “an inter-disciplinary research endeavour that investigates the role detention plays in states’ responses to global migration, with a special focus on the policies and physical infrastructures of detention” (Global Detention Project, n.d.). Data for twenty-three of the twenty-five countries analyzed here are obtained from the Global Detention Project. Because data are currently unavailable for Austria and Germany, Migreurop data were used for the respective counts of the total number of immigration detention sites in these countries. Comparative data collection on immigration detention is a new process and the Global Detention Project has paved the way in this area. As the process of data collection is ongoing, the following disclaimer is provided regarding the number of immigration detention sites that the Global Detention Project (n.d.) has identified:

The list is not necessarily a comprehensive register of sites currently in operation in a given country, nor does the list provide information about ad hoc sites of detention that do not appear to be regularly used to hold non-citizens in administrative detention. Also, please note that although researchers endeavour to provide as up-to-date information as possible, sources of information are

187

188  appendix 3

quickly outdated and frequently contradictory. This list should not be viewed as evidence that a particular site remains in service.

I largely apply the same framework used in the analysis of deportations in Chapter 3 to the analysis of immigration detention. The political variables include the political orientation of government, election year, and the far-right legislative seat share. Political variables come primarily from the World Bank Database on Political Institutions. The economic variables include GDP percent growth and the unemployment rate. These data come from the World Bank World Development Indicators. The migration-related variables include new immigration, the foreign-born population in a country, and asylum inflows. Data for these variables come primarily from the OECD International Migration Database. Eurostat is used to fill in data gaps for non-OECD countries. Data on asylum come from the UNHCR. Given the descriptive nature of the bivariate analysis, the x axis for each of the figures in Chapter 4 represents the ten-year average of each of the respective variables.



Appendix 4 Methodological Notes in the Analysis of the Impact of Immigration Control

I empirically test the relationship between increased policy restrictiveness and “unwanted” immigration using cross-sectional time-series regression models with panel-corrected standard errors (see Appendix 2 for discussion). The empirical analysis focuses on the same sample of countries studied in Chapters 3 and 4. The natural logs of annual immigrant inflows, y1, and annual asylum inflows, y2, are used. Data for annual immigrant inflows come primarily from the OECD International Migration Database. Eurostat is used to fill in gaps for non-OECD countries. Data for annual asylum inflows, meaning the annual total of first or new asylum claims recorded in a country, come from the UNHCR. Deportation is used as a proxy for the restrictiveness of immigration control. As discussed in Chapter 5, a check on the respective correlations between deportations and immigrant inflows (r = .784), and between deportations and asylum inflows (r = .407), shows high levels of correlation, as each increases with population size. I thus use deportations per total population to measure policy restrictiveness in efforts to avoid multicollinearity. Normalization based on total population is commonly used in quantitative analyses of migratory flows (see, e.g., Givens and Luedtke, 2005; Neumayer, 2004; Thielemann, 2004). As noted in Chapter 5, I estimated models with lagged independent variables, as well as contemporaneous models (with the exception of the migration network variables). Tables A4.1 and A4.2 report the results of the contemporaneous models. As the tables show, the results are substantively similar to those reported in Chapter 5.

189

190  appendix 4

Table A4.1  Modeling

immigrant inflows: Contemporaneous models Model

Variable

1

2

Deportations

−.077 (.046)

−.124** (.044)

GDP per capita (ln)

.178 (.146)

.351** (.103)

Unemployment

−.026** (.015)

−.074** (.016)

Natural increase

−.026 (.056)

.036 (.057)

Immigrant inflowst−1

.429** (.138)

3

.004 (.019)

Foreign-born percentage of populationt−1 Right government

−.088* (.043)

Election year

.008 (.059)

Far-right seat share

.007 (.006)

Total population (ln)

1.323 (1.139)

2.146* (1.018)

Country fixed effects

i

i

i

225

225

250

Observations

note: Multivariate analysis of immigrant inflows. Cross-sectional time-series regression models with panel-corrected standard errors (in parentheses). Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

I also use propensity score matching to analyze the impact that the restrictiveness of immigration control has on immigrant and asylum inflows. The advantage of this method, particularly when it comes to nonrandomized observational studies, is that it collapses each of the variables in the multivariate analysis into a single dimension in the form of the propensity score—countryyear observations with similar propensity scores are then matched for analysis (see, e.g., Guo and Fraser, 2010; Becker and Ichino, 2002). The first step in this analysis is the estimation of the propensity score. I distinguish between “high” and “low” restrictiveness by creating dummy variables that equal 1 if the country-year observation is above the 25th percentile

appendix 4 191

Table A4.2  Modeling

asylum inflows: Contemporaneous models Model

Variable

4

5

Deportations

.066 (.059)

.137 (.077)

GDP per capita (ln)

−.222 (.157)

−.460* (.197)

Unemployment

.016 (.019)

.011 (.025)

Asylum inflowst−1

.653** (.077)

6

.485 (.283)

Refugee percentage of populationt−1 Right government

−.047 (.059)

Election year

.078 (.101)

Far-right seat share

.008 (.011)

Total population (ln) Country fixed effects Observations

1.513 (1.704)

4.127* (1.811)

i

i

i

225

225

250

note: Multivariate analysis of immigrant inflows. Cross-sectional time-series regression models with panel-corrected standard errors (in parentheses). Country fixed effects (i) are included but not reported. *Significant at .05 level. **Significant at .01 level or less.

of deportations per total population for all country-years under study and 0 otherwise, and then repeat this for the 50th and 75th percentiles of deportations. The propensity score is thus the likelihood that a county-year observation falls into a high restrictiveness category conditional on the covariates included in the multivariate analysis. I use radius (caliper = .001) and nearest-neighbor (1) matching algorithms. Before analyzing matched observations, additional steps are taken to ensure common support, meaning “treated” observations have matched “untreated” observations to compare against, and balancing, meaning that the distribution of the covariates across the matched observations are not biased. Table A4.3 reports the results of the propensity score matching analysis using radius (caliper = .001) matching. The results using nearest-neighbor

192  appendix 4

Table A4.3  Propensity

score matching analyses Treatment

Control

Treatment effect

S.E.

t-statistic

25th percentile: caliper (.001)

11.038

11.125

−.086

.294

−0.30

50th percentile: caliper (.001)

11.103

11.141

−.038

.382

−0.10

75th percentile: caliper (.001)

11.613

11.235

.378

.407

0.93

25th percentile: caliper (.001)

11.611

11.088

.523

.266

1.97

50th percentile: caliper (.001)

10.946

11.294

−.348

.343

−1.01

75th percentile: caliper (.001)

11.273

11.511

−.238

.551

−0.43

25th percentile: caliper (.001)

9.265

9.144

.121

.314

0.38

50th percentile: caliper (.001)

8.758

8.593

.165

.425

0.39

75th percentile: caliper (.001)

9.569

9.146

.423

.523

0.81

25th percentile: caliper (.001)

9.064

8.773

.483

.411

1.17

50th percentile: caliper (.001)

8.886

8.847

.039

.394

0.10

75th percentile: caliper (.001)

9.700

9.035

.665

.479

1.39

Matching method Lag model (immigrant inflows)

Contemporaneous model (immigrant inflows)

Lag model (asylum inflows)

Contemporaneous model (asylum inflows)

note: Radius (caliper = .001) matching. Only matched “treatment” and “control” observations are reported.

(1) matching are substantively similar and are thus not reported. Only matched treated and untreated observations are included in the table. The results show that across all levels of high and low restrictiveness (i.e., the 25th, 50th, and 75th percentiles), there is no statistically significant difference in either immigrant or asylum inflows. This is true for both the lagged and contemporaneous models.



Notes

Chapter 1 1.  Undocumented A. (2009). Personal interview. 2.  Undocumented B. (2009). Personal interview. 3.  Those traveling from Thailand through Laos to China require special permission from Thai immigration and border authorities. 4.  See Joppke (1999a) for a middle ground view. Bosniak (2006) also provides a discussion of the space between the inclusionary and exclusionary aspects of citizenship (see also Calavita, 2005; Coutin, 2005; De Genova, 2002; Ngai, 2004). Critical scholars have described the relationship between inclusiveness and closure as a contrast between norms and exclusion (Rajaram and Grundy-Warr, 2007) and note that “boundarying practices” can occur not only between states, but also within them (Toyota, 2007). 5.  At the same time, it is worth reiterating a point that Castles, de Haas, and Miller (2013) make when it comes to methodological pluralism in migration studies: “Each of these [research] methods has its place, as long as it lays no claim to be the only correct one” (p. 27). 6.  “Unwanted” is an admittedly vague term, but it is its imprecision that helps form the basis of its political utility. Who states regard as “unwanted” is often context dependent and fluctuates with the political winds. For a discussion of the dilemmas and controversies surrounding the terms that are used to describe “unwanted” immigrants (e.g., “undocumented,” “illegal,” “irregular,” etc.), see Kraler (2009, pp. 9–15), which is particularly illuminating as it examines the use of these descriptors in the context of legalizations/regularizations. See also De Genova (2002) for an insightful discussion of the epistemological underpinnings of contemporary conceptualizations of “illegality.” 7.  Alabama’s HB 56 was signed into law in June 2011. Just months after its passage, however, a series of lawsuits were filed that questioned its constitutionality. One such 193

194  notes to chapter 1

lawsuit was filed by the U.S. Department of Justice. For the full text of United States v. Alabama, 2011, as well as briefs, memos, and orders regarding HB 56 that have been filed with or issued by the U.S. Supreme Court, the U.S. Court of Appeals for the 11th Circuit, or the U.S. District Court of the Northern District of Alabama, see http://www.nilc.org/ hb56usval.html. 8. See 2006 Secure Fence Act, H.R. 6061. 9.  Interview A. (2009). Personal interview. 10.  Undocumented C. (2009). Personal interview. 11.  Interview B. (2009). Personal interview. 12.  See also Engbersen (2001) and Engbersen, van San, and Leerkes (2006) for discussion of the residence strategies of unauthorized immigrants in the Netherlands. 13.  Undocumented D. (2009). Personal interview. 14.  For example, see Special Order 40 of the Los Angeles Police Department. Special Order 40 prevents police officers from questioning people solely to determine their immigration status. 15.  Interview C. (2009). Personal interview. Chapter 2 1. “Core” is a label used by the OHCHR to describe a set of nine human rights treaties. The OHCHR is quick to note, however, that all human rights instruments have an “undeniable moral force” and provides states with practical guidance in their conduct. 2.  As Jeffrey C. Isaac (1996) writes, “She believed that human rights were not a problem of moral speculation or legal philosophy so much as a problem of politics” (p. 61). 3.  See Grant (2011) for a broader overview of the development of the human rights of migrants under international human rights law. 4.  Concerns about the human rights of migrants, particularly in the context of labor migration, have woven their way into international labor agreements. Accordingly, several International Labor Organization (ILO) treaties, such as the 1949 Convention Concerning Migration for Employment (C. 97) and the 1975 Convention on Migration in Abusive Conditions (C. 143), further articulate the economic and labor rights of migrants. Martin Ruhs and Ha-Joon Chang (2004) discuss the ethical and rights-related contours of labor migration policy. 5.  While acknowledging that the distribution of rights between citizens and noncitizens is not always even, proponents of the postnational citizenship approach suggest that, as the criteria of political and societal membership moves further away from that of shared nationhood, national ties and affiliations will no longer serve as the basis for the equal treatment of residents within a polity. Shifting away from shared nationhood and toward what Soysal (1994) describes as “universal personhood” means that differential status between groups will become increasingly unjustifiable, as the rights of all per-

notes to chapter 3 195

sons will be recognized and legitimated through the international human rights regime rather than through established models of national citizenship. That the individual transcends the citizen is, as Soysal writes, “the most elemental way that the postnational model differs from the national model” (p. 142). 6.  See Irene Bloemraad, Anna Korteweg, and Gokce Yurdakul (2008) for an insightful review and comparison of contemporary perspectives on citizenship. 7.  Conversation between Secretary of State Cordell Hull and Secretary of Treasury Henry Morgenthau, June 5, 1939, 3:17 PM (USCG, n.d.). 8.  Migration Reform Act of 1992. See Section 54W, paragraph 222, p. 51. 9.  The term “boat people” first referred to the displaced Vietnamese population of the 1970s. Over half of Vietnam’s total population was displaced as a consequence of the Vietnam War. Many fled Vietnam to neighboring countries, as well as to Australia, via boat. 10. See also C v. Australia, 2002, and Bakhitaryi v. Australia, 2003. For the full text of these cases, see https://www.humanrights.gov.au/human-rights-explained-casestudies-complaints-about-australia-human-rights-committee. 11. CommHR/MB/jp0 044-2013, December 5, 2013. 12.  The predicted probability is obtained by fixing annual net migration (immigration equals 121,058) and democracy (polity2 equals 9.86) at the average for Western immigrant-receiving democracies and holding the other variables constant at their means or modes. Chapter 3 1.  Undocumented C. (2009). Personal interview. 2.  For example, in 720 BCE, the Assyrian King Sargon II conquered Samaria, the capital of the Kingdom of Israel, and systematically deported some 30,000 of its inhabitants to the eastern frontiers of the empire and replaced them with groups of deportees from the Zagros Mountains, Babylonia (modern-day Iraq), and the Syro-Arabian desert (modern-day Syria, Iraq, Jordan, Saudi Arabia). The inscribed prisms of Sargon II, which detail his military campaigns, further describe the two-way deportation of 90,580 people from Kummuh in Syria to Chaldea (modern-day southern Iraq). As scholars of these archeological records describe, it is clear that Sargon II “took the opportunity of his campaigns to remove his opponents [. . .] and resettle them elsewhere” (Na’aman and Zadok, 1988, p. 44). 3.  See Bessel and Haake (2011) for a broader history of forced removals during the nineteenth and twentieth centuries. 4.  See Daniel Kanstroom (2007b) for a historical overview of deportation in the United States. 5.  This figure comes from a letter written by Nikolai Yezhov, head of the NKVD, the Soviet secret police, to Vyacheslav Molotov, chairman of the Council of People’s Commissars, dated October 29, 1937, as discussed in Pohl (1999).

196  notes to chapter 3

6.  It is important to note that Chinese, Finnish, Poles, Germans, as well as Ukrainians and Estonians were also subject to forced deportation, mostly to Central Asia, during the late 1930s (Naimark, 2001). 7.  The many reasons for the institution of the Soviet passport system, its implementation, and its consequences, are discussed in Kessler (2001). In the short term, this facilitated the (de)population aspects of Stalin’s Great Purge and later formed the basis for the deportation of nationalities. 8.  Research examining “policy gaps,” in other words, the gap between the intent of immigration policies and their outcomes, has been a significant driver of research on immigration politics and policy since the initial articulation of the “gap hypothesis” by Wayne A. Cornelius, Phillip L. Martin, and James F. Hollifield (see, e.g., Castles, 2003a, 2004; Cornelius and Rosenblum, 2005; Freeman, 1994; Freeman and Kessler, 2008; Hollifield, 2004; Joppke, 1998; Lahav and Guiraudon, 2006). 9.  Right-leaning governments may support and encourage legal immigration for reasons related to business interests and economic growth. This notwithstanding, rightleaning governments are commonly viewed as being less tolerant of irregular migration, which is at the heart of immigration control. 10.  As with most social science concepts, a common definition of the far right currently eludes scholars. Far-right political parties have been classified as fascist, welfare chauvinist, right-authoritarian, and populist antistatist (Kitschelt and McGann, 1995); protest, racist, and extreme-right (Fennema, 1997); neofascist and populist (Golder, 2003a); and neo-Nazi, neofascist, authoritarian xenophobic, neoliberal xenophobic, and neoliberal populist (Carter, 2005), among others. Some argue that these distinctions are meaningful, as ideological differences between far-right political parties matter for the types of positions they espouse (Fennema, 1997; Wilkes, Guppy, and Farris, 2007). The literature abounds with more detailed discussions of these definitional controversies (see, e.g., Kitschelt, 2007; Mudde, 1999; Rydgren, 2007). 11.  See Borjas (2001) for a fuller discussion of these debates and controversies regarding the economic impacts of immigration. 12.  See Hubert Blalock (1967) for earlier articulations of the threat hypothesis as it relates to interactions between whites and African Americans in the United States. 13.  Also, as a matter of definition, because many unauthorized immigrants were initially legally admitted into their host countries (e.g., visa overstayers), immigrant inflows and deportations are further related in that the former potentially expands the population of those subject to the latter. 14.  The United States admitted 1,130,818 permanent residents in 2009 (DHS, 2012c). Thus, the ratio of immigration-to-deportation is 2.88 admissions per deportation. 15.  Models were also run that excluded country fixed effects and instead looked at the differences between frontier countries, meaning the United States and the external border countries of the EU-28, and interior immigrant-receiving countries. Addi-

notes to chapter 4 197

tional models examine any time-dependent effects related to the terrorist attacks of 9/11 and European Union enlargement in 2004 and 2007. Some models also controlled for a country’s colonizing history, as recent research by Howard (2009) indicates that the colonizing history of a country is predictive of the inclusiveness of its citizenship policies. However, the effects were not significant across several model specifications. 16.  Estimating fixed effects and a constant in the same model results in the severe underestimation of standard errors. As a robustness check, I also estimated the models with country fixed effects. The results were qualitatively similar; the interaction (b3) between the far-right vote share (b1) and proportional representation (b2) was positively significantly related to deportations and b3 + b1 ≠ 0 (p < .01). 17.  The lines represent the fitted values obtained from Model 11 in Table 3.5. Chapter 4 1.  Similarly, as Stephanie J. Silverman and Evelyne Massa (2012) note in examining various legal definitions, immigration detention ultimately involves three core elements: the deprivation of liberty, the use of designated detention facilities, and the purpose of serving some immigration-related goal. 2.  For the full text of Amuur v. France, 1996, see http://hudoc.echr.coe.int/sites/eng/ pages/search.aspx?i=001-57988#{“itemid”:[“001-57988”]}. 3.  For the full text of Zadvydas v. Davis et al., 2001, see http://www.refworld.org/ docid/3decaa6c4.html. 4.  See also United States v. Brignoni-Ponce, 1975. In this case, the U.S. Supreme Court ruled that it was unconstitutional for the Border Patrol to stop a vehicle solely on the basis of the driver appearing to be Mexican. For full text of United States v. Brignoni-Ponce, 1975, see http://scholar.google.com/scholar_case?case=17010248136028194244&q=United +States+v.+Brignoni-Ponce+1975&hl=en&as_sdt=2006&as_vis=1. 5.  Interview D. (2009). Personal interview. This “evidence-based pragmatism,” however, suffers in light of distinct racial and ethnic contours of immigration control and enforcement. 6.  For an excellent discussion of registration, computerized and networked migration databases, and surveillance in Europe, see Broeders (2007). 7.  It is also important to note here the serious physical and mental health consequences that prolonged immigration detention can have on migrants. Deborah Zion, Linda Briskman, and Bebe Loff (2010) document the harmful effects of force-feeding, the emotional toll that detention has on the mental health of children, and how in some cases, health professionals “betrayed their duty of care” in their treatment of detainees. 8.  In addition to Chapter 2, see UNHCR (2011) for an inventory of international case law. 9.  For example, the standard regarding the “Use of Force and Restraints” authorizes detention staff to “use necessary force after all reasonable efforts to otherwise resolve a

198  notes to chapter 4

situation have failed” (ICE, 2008a, p. 208). However, what constitutes “reasonable” is not defined. Moreover, the guidelines also provide for the use of force in order to prevent escape, prevent property damage to a detention facility, and to maintain “orderly operation.” Here, the standards read more like a defense justifying the use of force against detainees rather than guidelines designed to protect their physical integrity and safety. 10.  In comparison, less than a decade ago, a census of immigration detention sites in Europe counted only 205 sites in 23 countries. Chapter 5 1.  Undocumented D. (2010). Personal interview. 2. ER(0) is the expected net returns to migration calculated prior to migrating. The first set of terms, p1(t), p2(t), and yd(t) represent a prospective migrant’s economic prospects in a particular country of destination. p3(t) is the probability of employment in the country of origin. yo(t) represents earnings in the country of origin. p3(t) × yo(t) thus reflects a prospective migrant’s economic prospects if she were to remain in her country of origin. To calculate ER(0), economic prospects in the country of destination are subtracted from economic prospects in the country of origin. This difference is summed over a period of n years and is discounted by r. Lastly, C(0), which represents the total costs of migrating (including psychological costs) is subtracted from the result. According to this perspective, a rational actor migrates to the country where ER(0) is positive and highest. 3.  Undocumented E. (2009). Personal interview. 4.  This is how novelist Max Frisch famously described the experience of postwar guest workers in Europe. 5.  Moreover, it is possible to get a sense of the error involved in using legal migration as a proxy for irregular migration. To the extent that irregular migration is positively related to legal immigrant inflows, the results of the empirical analysis could be underestimated, which would mean that the factors analyzed in the statistical models may be more significant than the results suggest. On the other hand, if irregular migration is negatively related to legal immigration, the results of the empirical analysis could be overestimated, which would mean that the factors analyzed may be less significant than the results suggest. Another possibility is that the irregular and legal flows are entirely unrelated. Pending new and more sophisticated research on this relationship, there is currently insufficient evidence that points to systematic trends in either direction.



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Index

Italic page numbers indicate material in figures or tables. ACLU (American Civil Liberties Union), 109 African Charter on Human and Peoples’ Rights (Banjul Charter), 39, 42, 46 African migrants in Europe, 33, 124, 148 AI (Amnesty International): on deportation to Eritrea, 20; on detention conditions in Greece, 44; on detention conditions in Netherlands, 123–124; on detention conditions in United States, 120–121; on Netherlands, 123; on United States, 111, 119, 120–121 Alabama, 10, 193–194n7 Alabama, United States v., 10, 193–194n7 Aliens Act (Denmark, 2002), 76 alternatives to detention (ATDs), 116–117 American Civil Liberties Union (ACLU), 109 American Convention on Human Rights (Pact of San Jose), 38–39, 42, 46, 116 Amnesty International. See AI Amuur v. France, 110 analysis of deportation across countries and time, 80–81, 81; denominator problem, 81–84; method, 84–85, 179–185, 184, 185; trends (2000–2009), 85, 85–89, 86, 87, 88, 89; findings, 89, 89–96, 90, 91, 92 analysis of deportation trends, 69–72; economic factors, 76–78; migration-related factors, 78–80; political factors, 72–76 analysis of ICRMW ratification, 52–53; proposed expectations, 53; method, 55–56, 175–177; findings, 56–64, 57, 58, 59, 60, 63

analysis of immigration control impact (inflows), 152–154; deportation and unauthorized immigrant population, 153; expected effects, 152; method, 154–155, 189–192, 190, 191, 192; findings, 155–164, 156, 161 analysis of immigration detention sites, 126–129; method, 129, 187–188; findings, 129 Arendt, Hannah: loss of polity, 30; on national sovereignty rights, 4, 167; and “right to have rights,” 4, 29–30 Arizona, 10, 16, 120, 172 assimilation model, 78 Asylum Act (Austria), 103 asylum inflows: contemporaneous models, 191; deportations per population, 92; and immigration control impact, 161, 161–164; and immigration restrictiveness, 80, 81, 146; and immigration-to-deportation ratio, 91; and prevalence of detentions, 141, 142; and support for deportation, 96 asylum networks, 162 asylum seekers: Afghan, 43–44; asylum claims as metric, 154; “asylum shopping,” 153; “bogus,” 162; M.S.S. v. Belgium and Greece, 43–45; networks, 162–164; number of and restrictiveness of control, 80; “schizophrenic” policies toward, 13; segregation, 171 ATDs (alternatives to detention), 116–117 225

226  index

attrition through enforcement, 167; defined, 10; in Europe, 10–11; illegal under ICRMW, 35; at U.S. state level, 10, 12 Australia, 41; A. v. Australia, 47–48; border protection and detention budget, 138; D and E and their two children v. Australia, 48; deportations per total population, 90; detention sites in, 130; effects of increased deportation, 156; immigration-todeportation ratio, 89; Migration Reform Act (1992), 45–47; Pacific Solution, 41; Pauline Hanson and One Nation party, 106; sovereignty costs of ICRMW for, 52; values statement requirement for visas, 13; “White Australia” policies, 173 Austria, 79–80; Asylum Act, 103; denying family reunification to Turkish man, 79–80; deportations from, 103–104; deportations per total population, 90; detention sites in, 130, 134; FPÖ, 75, 93, 103–104; immigration-to-deportation ratio, 89 Austrian Freedom Party (FPÖ), 75, 93, 103–104 A. v. Australia, 47–48 Balkars, 68. See also “deportation of nationalities” Bangladesh: abused asylum seeker in Greece, 44; average annual emigration, 56, 59; Bangladeshis in Italy, 17–18 Banjul Charter (African Charter on Human and Peoples’ Rights), 39, 42, 46 Belgium, 21; deportations per total population, 90; detention sites in, 130, 131; immigrant share of electorate, 160; immigration-to-deportation ratio, 89; M.S.S. v. Belgium and Greece, 43–45 Benhabib, Seyla, 31 Bescheide document, 79–80 Besson, Eric, 19, 38 bifurcated labor markets, 150 biometric passports, 2 birthright citizenship vs. “right of blood” citizenship, 104 Blinder, Scott, 181 boat people, 47, 195n9 border security and enforcement: differing objectives for, 15; increased spending on U.S., 3; increasing human smugglers, 147; leading to change of routes, 146–148; sovereign control in modern nation-state system, 4; Soviet Korean homes occupied by border guards, 67

Borjas, George J., 79 Boswell, Christina, 30 Bosworth, Mary, 110, 112 boundary-based citizenship, 29–31 Bravo, Manuel, 125, 143, 170 Brignoni-Ponce, United States v., 197n4 Brochmann, Grete, 10 Broeders, Dennis: on attrition through enforcement, 10–11; on Dutch detention strategy, 136; on effect of European deterrence and expulsion, 146; on identifying irregular migrants, 114; on insufficient detention capacity, 21; on social myths about unauthorized immigrants, 6 budgets for enforcement, 77, 82, 87, 120, 136, 138 Bush, George W., administration, 87 Bustamante, Jorge, 116 Calais, France, 18–21 California, 16, 39 Cameron, David, 134, 159 Canada: Chinese exclusion in, 173; deportations per total population, 90; detention sites in, 130, 134; immigrationto-deportation ratio, 89; Reform Party, 183–184; treatment of citizens in United States illegally, 112 Carens, Joseph, 31 Castles, Stephen, 76 CAT (United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment; 1984), 36, 41, 42, 46, 54 CBP (U.S. Customs and Border Protection), 15, 119, 172 CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), 36 Center for Immigration Studies (CIS), 144 Ceobanu, Alin M., 80 Chechens, 68–69. See also “deportation of nationalities” children: DACA policy (U.S.), 93; denied schooling, 10; effects of detention on, 197n7; in European detention, 123–124; at immigration rallies, 71; not understanding reasons for detention, 124; sexual coercion, 121; transported to Nazi death camps, 66–67 Christmas Island, 41, 138 Cingranelli-Richards Human Rights Data Project, 55–56

index 227

CIS (Center for Immigration Studies), 144 citizenship: definitions of, 37; deportation despite, 39; detention despite, 120; no “right to rights” for those without, 4; product of mutual consent, 30 Citizenship Without Consent (Schuck & Smith), 30 client politics model, 72–73, 90, 159 COE (Council of Europe) Commissioner for Human Rights, 48–49 Coleman, Mathew, 144 Compagnies Républicaines de Sécurité (CRS; France), 20 comparative data on immigration control, 7–8 consent-based vs. membership-based rights, 29–30 contact theory, 79 Convention for the Protection of All Persons from Enforced Disappearance (CPED), 36 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 36 Convention on the Rights of Persons with Disabilities (CRPD), 35, 36 Convention on the Rights of the Child (CRC), 36 core rights treaties, 194n1 Corrections Corporation of America, 121 Council of Europe (COE) Commissioner for Human Rights, 48–49 counteractive lobbying, 72 country fixed effects: deportations per population, 92; and immigration-todeportation ratio, 91; impact of electoral institutions, 101 Coutin, Susan B., 110 CPED (Convention for the Protection of All Persons from Enforced Disappearance), 36 CPT (European Committee for the Prevention of Torture), 44, 125–126 CRC (Convention on the Rights of the Child), 36 Crimean Tatars, 68. See also “deportation of nationalities” CRPD (Convention on the Rights of Persons with Disabilities), 35, 36 CRS (Compagnies Républicaines de Sécurité; France), 20 Cuba and St. Louis refoulement, 40. See also St. Louis refoulement

cultural balkanization, 80 Cyprus: deportations per total population, 89, 90; detention sites in, 130; immigrationto-deportation ratio, 88, 89 Czech Republic: deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 88, 89 DACA (Deferred Action of Childhood Arrivals), 93 Dancygier, Rafaela, 78 D and E and their two children v. Australia, 48 Danish People’s Party (DPP), 75 Declaration on Non-Nationals (1985), 32–33 Deferred Action of Childhood Arrivals (DACA), 93 de Haas, Hein, 76 Denmark: deportations per total population, 90; detention sites in, 130, 134; family reunification policies, 159; immigration-todeportation ratio, 89; passing restrictive immigration policies, 76 Department of Immigration and Border Protection (DIBP; Australia), 13 deportation of citizens, 39, 65–70. See also immigrant deportations “deportation of nationalities” (Soviet Union), 67–69 destroying identifying documents, 114 detention: arbitrary, 45–48, 46, 116; backend, 111; of citizens, 120; cross-national comparison, 130; front-end, 111; of human trafficking victims, 120; indefinite, 45, 111–112, 123; intermediary, 69; mandatory, 45–48, 46; “reasonable time” standard for, 112; of torture survivors, 120; unhygienic conditions in, 124. See also immigrant detention detention sites: ad hoc, 128–129, 130; administrative, 127–128, 130; bureaucratic, 127; criminal, 127–128, 130, 131; general, 127–128; operational, 127 Detention Watch Network (DWN), 121 Deutsche Reichsbahn (German National Railway), 66–67 DFT (detained fast track), 111 DHS (U.S. Department of Homeland Security), 87, 119–120, 136, 171 DIBP (Department of Immigration and Border Protection; Australia), 13 differential exclusion model, 78

228  index

Donald W. Wyatt Detention Facility (WDF), 122 DPI (World Bank Database of Political Institutions), 84, 183 DPP (Danish People’s Party), 75 dual labor market theory, 94–95, 149–151, 158 dual nature of human rights treaties, 53 Dublin Regulation, 44 Duverger, Maurice, 96–97 DWN (Detention Watch Network), 121 ECHR (European Convention on Human Rights, 1950): and Amuur v. France, 110; on deportations, 38–39, 42; on detention, 46, 110, 116; and M.S.S. v. Belgium and Greece, 43; Protocol No. 7, 38, 41; on torture and degrading treatment, 43–44; U.K. memorandum on, 12 economic dualism, 94, 150 economic factors: and immigration policy, 76–78; in restrictiveness of control, 76–78 ECOSOC (United Nations Economic and Social Council), 33 ECtHR (European Court of Human Rights): Amuur v. France, 110; on Greek detention conditions, 22, 43–44, 142; on human rights obligations, 48; M.S.S. v. Belgium and Greece, 43 Eisenhower, Dwight, 16, 77 election year/cycles: and asylum inflows, 161, 191; and deportations per population, 92; and immigrant inflows, 156, 160; and immigration restrictiveness, 73–74, 81; and immigration-to-deportation ratio, 91; and impact of electoral institutions, 100, 101; and prevalence of detentions, 131, 133; and support for deportation, 92–93 electoral rules: and politics of control, 98, 102–104; and proportional vs. majoritarian representation, 97–102, 98, 99, 100, 102, 104–107 Ellermann, Antje, 21, 71 Eloy Detention Center (U.S.), 172 EMN (European Migration Network), 182, 183 employer/business interest groups (client politics model), 72 employment rights, 35 enforcement budgets, 77, 82, 87, 120, 136, 138 Engbersen, Godfried: on attrition through enforcement, 10–11; on Dutch detention strategy, 136; on effect of European deter-

rence and expulsion, 146; on identifying irregular migrants, 114; on insufficient detention capacity, 21; on social myths about unauthorized immigrants, 6 entry wages, migrant worker effect on, 150 Eritrea, 20 Escandell, Xavier, 80 Estonia, 88 European Committee for the Prevention of Torture (CPT), 44, 125–126 European Convention on Human Rights (ECHR; 1950). See ECHR European Court of Human Rights (ECtHR). See ECtHR Europe and European Union: African migrants in, 33; annual immigration to, 14; asylum shopping in, 153; foreign guest workers, 35; immigrant detention in, 123– 126; number of unauthorized residents, 3; Parliament and Roma deportation from France, 38; Returns Directive, 118 European Migration Network (EMN), 182, 183 European Union Returns Directive. See Returns Directive Everaert, Gerdie, 158 executive orders, 75 expected effects modeling: deportations, 81; far right under proportional representation, 99; impact of immigration control, 152 false identities, 114 family reunification, 51, 159 far right: and asylum inflows, 161, 164, 191; definition of, 196n10; and deportations per population, 92; electoral rules and politics of control, 98, 102–104; and electorate strategy, 106; and immigrant inflows, 156, 160; and immigration control impact, 160–161; and immigration restrictiveness, 74–76, 81; and immigrationto-deportation ratio, 91; legislative representation, 7, 8, 96; under majoritarian systems, 97, 106–107; majoritarian vs. proportional representation, 97–102, 102; more deportations but fewer detentions, 134, 136; and prevalence of detentions, 134–136, 135; under proportional representation, 97, 98–102, 102, 104–106, 105; and reluctance to compromise on immigration, 93; and support for deportation, 93. See also right-leaning governments; seat share of far right

index 229

Fetzer, Joel, 95 “Final Solution,” 66–67 Finland, 157; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 Florida Immigration Enforcement Act, 112, 113 Flynn, Michael, 128 FN (National Front; France), 97, 103–104 force-feedings, 103, 197n7 foreign-born population size: and asylum inflows, 141, 142; and deportations per population, 92; and immigrant inflows, 156, 190; and immigration restrictiveness, 79–80, 81; and immigration-todeportation ratio, 91; impact of electoral institutions, 101; percentage for ICRMW countries, 56, 57, 59; and prevalence of detentions, 138, 140; ratio of deportations per, 82; and support for deportation, 95–96 FPÖ (Austrian Freedom Party), 75, 93, 103–104 France: deportations per total population, 90; detention sites in, 130, 134; FN, 97, 103–104; immigrant share of electorate, 160; immigration-to-deportation ratio, 89; Roma deportation from, 38–39, 171 Freedom of Information Act (U.S.), 109, 122 Freeman, Gary, 79 Frisch, Max, 198n4 Frontex, 147–148 “frontier” EU countries, 88–89 gap hypothesis, 196n8 GDP growth and unemployment: and deportations per population, 92; and immigration control impact (asylum inflow), 157–158, 163–164; and immigration restrictiveness, 76–78, 81; and immigrationto-deportation ratio, 91; impact of electoral institutions, 101; and prevalence of detentions, 136–138, 137; and support for deportation, 94–95 GDP per capita: and asylum inflows, 161, 191; and choice of asylum destination, 163; as determinant of migration, 148–151, 152, 156, 157–158; and immigrant inflows, 190 Geddes, Andrew, 7, 28, 164 Geneva Convention on the Status of Refugees. See Refugee Convention German Jews and St. Louis incident, 39–40. See also St. Louis refoulement

Germany: deportations per total population, 90; detention sites in, 130, 134; German National Railway (Deutsche Reichsbahn), 66–67; Holocaust, 40, 65–70; on ICRMW ratification, 51; immigration and ICRMW ratification, 59; immigrationto-deportation ratio, 89 ghettos as locus of Nazi deportation, 66 Gibney, Matthew J., 13 Givens, Terri, 73 Global Detention Project, 127–129 Global Roundtable on Alternatives to Detention, 117 government as protective authority, 30 gravity models, 154 Greece, 43–45, 125–126; deportations per total population, 89, 90; detention sites in, 130; immigration-to-deportation ratio, 89 Guardia di Finanza, 17–18 guest workers, 35 Guzman, Pedro, 120–121 Haider, Jörg, 103 Handlin, Oscar, 1, 166–167 Hanson, Pauline, 106 Harper, Mark, 11 HB 56 (Alabama), 10, 193–194n7 “headscarf debates,” 173 health professionals and “duty of care,” 197n7 hierarchies of prestige, 150 Hilberg, Raul, 66 Hollifield, James F., 7, 107; on comparative studies, 7; on “liberal paradox,” 12; on studies ignoring government actions, 107–108; on U.S. postwar isolationism, 77; on workers and far right, 75 Holocaust, 40, 65–70 Hooghe, Marc, 149 Howard, John, 41 Howard, Marc Morjé, 75 Hull, Cordell, 40 human capital model of migratory decisions, 145, 151 human smugglers, 147 Hungary, 157; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 88, 89 Hunt, Valerie F., 107 Huntington, Samuel, 79 ICCPR (International Covenant on Civil and Political Rights): applying to “citizens

230  index

ICCPR (continued ) and aliens,” 33–34; on deportation, 42; on detention, 46, 47–49, 116; liberal democracies in general compliance with, 54; rate of ratification for, 36 ICE (U.S. Immigration and Customs Enforcement): budget of, 87; deaths in detention under, 109; detention responsibilities of, 119–120; PBNDS, 122 ICERD (Convention on the Elimination of All Forms of Racial Discrimination), 36 ICESCR (International Covenant on Economic, Social, and Cultural Rights), 36 ICJ (International Court of Justice), 50, 52 ICRMW (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families), 28; addresses irregular migrants, 34; attrition through enforcement illegal under, 35; democracy and ratification of, 53, 57, 60–61, 63, 63; on deportations, 42, 51; on detainee rights, 44, 45, 46, 110, 116; GDP of ICRMW countries, 56, 57; global rate of ratification of, 62; imposing sovereignty costs, 35, 48; listing of categories of rights, 34–35; modeling ratification of, 57–58, 58; most rights, least state support, 49–50; obstacles to ratification, 50–51; official translations still not finished, 50; origins of, 33; principle of nondiscrimination, 34; prohibiting racial profiling, 35; ratification rate for, 35, 36; regarded as “blank check,” 51; rights not dependent on immigration status, 33, 47; rights to set admissions criteria, 50–51; on Roma deportation from France, 38; sovereignty costs of, 35, 50–52, 57, 58, 168. See also analysis of ICRMW ratification identity: armbands on Jews, 66; difficulty of establishing, 112–116; documenting facilitates deportation, 69; importance of establishing before action, 115; inviolability of, 31; presuming vs. establishing, 115; reification through “papers,” 2. See also membership-based vs. consent-based citizenship IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act of 1996; U.S.), 13, 107, 111 “illegality”: based on racial profiling (Florida), 112–113; Boswell on, 30; “illegal

means illegal” policy, 15–21, 31–32; and the “other,” 2; presuming vs. establishing, 114 ILO Convention 143, 55 immigrant deportations, 9, 171; administrative costs of, 77; and asylum inflows, 161, 162, 191; definition of, 180, 181; as determinants of migration, 148, 152; effect of on immigrant inflows, 155–157, 156; effect of on migration, 145; and far right, 102, 105; human rights and, 37–42, 42; and immigrant inflows, 190; immigration-to-deportation ratio, 82; as instrument of empire, 65; logics used to legitimate, 70; modeling, 80, 81; within sovereign territories, 65. See also analysis of deportation contemporary trends; mass deportations immigrant detention, 9, 170–172; crossnational view of, 129–131, 130; deaths in, 109, 121–123; detainees not understanding reasons for, 124; detention bed mandate, 120, 171; in Europe, 123–126; human rights and, 43–48, 46; as last resort, 116; and principle of proportionality, 116–119; sites for, 127–129; in United States, 119–123; without establishing identity, 115 immigrant inflows: effect of deportations on, 155–157, 156; election year/cycles and, 156, 160; far-right legislative representation and, 156, 160; foreign-born population size and, 156; migration networks and, 158–159; political factors and, 159; population growth and, 158; seat share of far right and, 156, 190, 191 immigration control: defined, 9–13, 15; as defining issue for far right, 75; deterrence objective of, 14; external to national borders, 11, 13; future of, 171–173; impact of on migration flows, 144–145; logic and politics of, 167–168; need for deconstructing, 6; as reaffirmation of sovereignty, 3. See also analysis of immigration control impact (inflows); immigration restrictiveness immigration-industrial complex, 2, 66 Immigration Reform and Control Act of 1986 (IRCA; U.S.), 107, 159 immigration restrictiveness, 6; effect of on asylum inflows, 80, 81, 146; election cycles and, 73–74, 81; far-right legislative representation and, 74–76, 81; foreignborn population size and, 79–80, 81;

index 231

GDP growth and unemployment and, 76–78, 81; immigrant adjustments to, 146; migration-related factors, 78–80; new immigration and, 78–79, 81; right-leaning governments and, 73, 81; unemployment and, 76–78, 81 immigration-to-deportation ratio, 82, 83; by country, 88–89, 89; U.S. and EU comparison, 88, 88; for years 2000–2009, 86–87, 87 immigration-to-foreign-born-population ratio, 82 immigration-to-population ratio, 82 inclusiveness and closure, 4 India, 56, 59 infiltration concerns as justification for deportation, 67–68 inflows. See asylum inflows; immigrant inflows infrastructure of deportation, 66–69 Ingush, 68–69. See also “deportation of nationalities” INS (U.S. Immigration and Naturalization Service), 16 Institute of Race Relations, 124–125 institutional venues, new, 36–37 interaction model, 98–101, 99, 101 interest groups, 72 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 36 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). See ICRMW International Court of Justice (ICJ), 50, 52 International Covenant on Civil and Political Rights (ICCPR). See ICCPR International Covenant on Economic, Social, and Cultural Rights (ICESCR), 36 International Migrants Bill of Rights, 169 international rulings, lack of compliance with, 49 international socialization, 62 international transit zones, 110 IRCA (Immigration Reform and Control Act of 1986; U.S.), 13 Ireland, 118, 131; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 Isaac, Jeffrey C., 194n2

Italy, 17–18, 126; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 Jews, deportation of during Holocaust, 66–70 Joppke, Christian, 13 Jordan, 2 judicial review, limiting/denying of, 103, 111, 134, 154 jus soli vs. jus sanguinis, 104 justice cascade, 62 Kalmyks, 68. See also “deportation of nationalities” Karachays, 68. See also “deportation of nationalities” Kaufman, Emma, 110, 112 Kazakhstan, 67. See also “deportation of nationalities” Kitschelt, Herbert, 74, 97, 104–105 Kobach, Kris, 10 Kocher, Austin, 144 Koopmans, Ruud, 160 Koreans, displacement from Soviet Union, 67–68. See also “deportation of nationalities” Korteweg, Anna C., 173 Kuwait, 2 language analysis to determine nationality, 114–115 Latvia, 88 “Laws of Migration” (Ravenstein), 148, 166 League of Nations, 40 legal admission, burgeoning requirements for, 13 legal death, loss of citizenship rights as, 113 legal residents, deportation/detention of, 39, 120 legislative influence, 75 liminal illegality, 172 Limits of Citizenship, The (Soysal), 35–36 Lithuania, 88 lobbying strategies, 72 Luedtke, Adam, 73 Luxembourg: deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 machinery of deportation, 66–70 macroeconomic factors in immigration, 77–78

232  index

majoritarian vs. proportional representation, 97–102, 98, 99, 100, 102, 104–107 Malta, 126, 131; deportations per total population, 89, 90; detention sites in, 130; immigration-to-deportation ratio, 88, 89 Marrow, Helen B., 78 Massa, Evelyne, 197n1 mass deportations: in antiquity, 65; “deportation of nationalities” (Soviet Union), 67–69; of Jews during the Holocaust, 66–67; 1930s Mexican Repatriation, 39; Roma deportation from France, 38–39 Massey, Douglas S., 148, 150 Mayda, Anna Maria, 73 Mazzoli, Romano, 90–91 medical treatment, denial of, 123, 124 membership-based vs. consent-based citizenship, 29–30. See also identity Meskhetian Turks, 68. See also “deportation of nationalities” Messina, Anthony, 74, 75, 104, 105 method of analysis: deportation, 84–85, 179–185, 184, 185; of ICRMW ratification, 55–56, 175–177; immigration control impact (asylum inflows), 154–155, 189–192, 190, 191, 192; immigration detention, 129, 187–188 Mexico: average annual emigration, 56, 59; and ICRMW, 33, 59; 1930s Mexican Repatriation, 39; and Operation Gatekeeper, 147; and “Operation Wetback,” 15–16, 107, 112; undocumented youth activists entering, 172; U.S. border with, 14–16, 112, 147, 172; U.S. citizens deported to, 112, 120–121 Michalowski, Ines, 160 migrants: African, 33, 124, 148; degrees of agency of, 148; as domestic workers, 27; English-speaking, 19, 112; female, 27, 71, 121, 124; increase in, 1–2; as “members” or “strangers,” 172; motives of, 144–146; rights of under international law, 32–37, 36, 194n4; risk-averse vs. risk-acceptant, 157 migration: and globalization 2, 12, 166; motives for, 144–146; voluntary vs. involuntary, 148–149. See also migration networks migration networks, 151; as determinants of migration, 151, 152; and immigrant inflows, 158–159; and immigration control impact, 158–159; theory of, 95 Migration Reform Act (1992, Australia), 45–47

Migrationsverket (Swedish Migration Board), 115 migratory decisions, human capital model of, 145 Miller, Mark J., 76 minor detainees. See children Money, Jeanette, 6, 73, 77, 78 Morocco, 33 M.S.S. v. Belgium and Greece, 43–45, 48–49 Muiznieks, Nils, 49 National Front (FN; France), 97, 103–104 national identity, 4 national sovereignty, 3–6, 167. See also sovereignty costs nation-state system, 4 Netherlands, 21, 136; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 new immigration: and immigration restrictiveness, 78–79, 81; and immigrationto-deportation ratio, 91; and prevalence of detentions, 138, 139; and support for deportation, 95 Ng, Jason Hiu Liu, 122–123, 143, 170 Nigeria, 111, 121 NKVD (People’s Commissariat for Internal Affairs), 67–69. See also “deportation of nationalities” nonapprehension, 16–18 noncitizens and noncitizen status: equality of under law, 45; and limits of human rights, 27–29; need for strengthened rights, 33; of permanent residents, 37; in Thailand, 4 nondeportation, 18–21 non-refoulement principle: and Australia’s Pacific Solution, 41–42; and Eritrean migrants, 20; expediting deportation of asylum seekers, 154; and Italy’s push-back policy, 126; in League of Nations, 40; in Refugee Convention and Protocol, 41, 42; St. Louis incident, 39–40; UKBA language analysis and, 114–115 Norway, 157; deportations per total population, 90; detention sites in, 130, 134; immigration-to-deportation ratio, 89 Obama administration: deportations under, 86; detention under, 131; timing of policychange announcements, 93; USCIS changes during Republican primaries, 74

index 233

OHCHR (United Nations Office of the High Commissioner for Human Rights): “core” human rights treaties, 194n1; definition of immigration detention, 109; detention as last resort, 116–117; Global Roundtable on Alternatives to Detention, 117; on ICCPR, 34; on penal sanctions for noncriminals, 142 ON (One Nation) party (Australia), 106 O’Neil, Kevin, 79 open borders, arguments for, 5 operationalizations of deportation, 183, 184, 185 Operation Gatekeeper, 147 “Operation Wetback” (1954), 15–16, 107, 112 Origins of Totalitarianism, The (Arendt), 29–30 overcrowding of detainees, 124–126 Pacific Solution, 41 Pact of San Jose (American Convention on Human Rights), 38–39, 42, 46, 116 Pakistanis in Italy, 17–18 “papers” establishing identity, personhood, 2, 70, 114 “passportization,” 69 PBNDS (Performance-Based National Detention Standards), 122 People’s Commissariat for Internal Affairs (NKVD), 67–69. See also “deportation of nationalities” Performance-Based National Detention Standards (PBNDS), 122 person, concept of, 70, 169 personhood, universal, 194–195n5 physical apparatus of deportation, 66–67 pluralist model, 78 Poland, 88 policy design, policy implementation stages, 71 policy gaps, 196n8 political activists, undocumented, 172–174 political factors: and immigrant inflows, 159; reactionary, nativist, neofascist activity, 79; in restrictiveness of control, 72–76 Political Terror Scale, 176 politics of identity, 70 politics of immigration control, 168 population density, impact of on electoral institutions, 101 population growth, 150–151, 152, 158

porous borders, arguments for, 5, 31 Portugal, 157; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 postnationalism, 35, 37, 194–195n5 powerful states and human rights ratification, 54–55 principle of proportionality, 116–119 proportional vs. majoritarian representation, 96–102, 98, 99, 100, 102, 104–107 public policy agenda, influence over, 75 push-backs, 126, 182 “push-pull” migration factors, 148–149, 157, 166 Qatar, 2 racial profiling, 35, 112 radical right wing, 74. See also far right railways as machinery of deportation, 66–69 rallies against immigration, 71 ratification of international treaties: carries little cost, 53; Convention for Australia, 52; ICRMW, 35–36, 36, 51–52, 57, 58, 168; qualifying through RUDs, 54; UN human rights, 36 rational-actor logic, 53–54, 145, 166 Ravenstein, E. G., 148, 166 Red Cross, 19 Reform Party of Canada, 183–184 Refugee Convention, 33, 41, 42, 46 refugee percentage of population and asylum inflows, 161, 191 reification of identity, 2, 66 remittances, 59, 60 “removals” vs. “returns” in United States, 181 respect for human rights, 53–54, 57, 61 restrictiveness of control, 6; economic factors in, 76–78; leading to permanent migrations, 147; metrics for measuring, 82; migration-related factors in, 78–80; and number of asylum seekers, 80; political factors and, 72–76 Returns Directive, 118, 123–125 right-leaning governments: and asylum inflows, 161, 191; deportations per population, 92; and immigrant inflows, 190; and immigration control impact, 159, 164; and immigration detention, 131, 132; and immigration inflows, 156; and immigration restrictiveness, 73, 81; and immigrationto-deportation ratio, 91; impact of

234  index

right-leaning governments (continued ) electoral institutions, 101; and support for deportation, 81, 90–92; varying views on immigration, 159–160. See also far right “right of blood” citizenship vs. birthright citizenship, 104 rights, 9; abuses of by leading democracies, 37; of citizens to exclude others, 29; civil and political, 34; derived from presence and human bonds, 31; difficult to rescind once extended, 52; economic, social, cultural, 34; emergent norms for, 118–119; erosion of for all, 12; and expectations on human rights ratification, 53, 56, 57, 61; and immigration detention, 43–48, 46; as incentive for legal migration, 34; of migrants under international law, 32–37, 36; new legal categories for, 36; noncitizen status and limits of, 27–29; of physical integrity, 34–35; renders less distinction between citizens, noncitizens, 37; rightsbased approach, 115–118; “right to have rights,” 4, 29–32; treaties as instrumental and expressive, 53. See also respect for human rights rights-markets coalitions, 159 Rights of Others, The (Benhabib), 31 Roma deportation from France, 38–39, 171 RUDs (reservations, understandings, declarations), 54 Ruhs, Martin, 50, 194n4 Sarkozy, Nicolas, 38, 92 Sassen, Saskia, 36 SBI (U.S. Secure Borders Initiative), 87, 120 SB 1070 (Arizona), 10 Schroeder, Gustav, 40 Schuster, Liza, 110 seat share of far right, 75; and asylum inflows, 161; and deportations per total population, 92, 93; effect of election rules on, 96–102, 98, 99, 100, 102, 104–107; FN party example, 97; and immigrant inflows, 156, 190, 191; and immigration deportations, 81, 102–105, 179–180, 185; and immigration detention, 134, 135; and immigration-todetention ratio, 91; politics of immigration control, 98; and principle of proportionality, 116–119 Secure Fence Act of 2006 (U.S.), 14–15

“self-deportation,” 10, 144 shackling, 121 Sierra Leone, 111 Silverman, Stephanie J., 197n1 Simpson, Alan, 90–91 Singapore, 2 slavery and servitude, 35 Slovak Republic: deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 88, 89 Slovenia, 156; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 88, 89 Smith, Rogers, 30 social capital, 79, 151, 155 Somalia, 114 sovereignty costs, 28, 168; defined, 51–52; expectations/results on human rights ratification, 57; of ICRMW, 35, 50–52, 57, 58, 168; of rights-based approach, 118 Soviet Union, 67–69, 196n7 Soysal, Yasemin, 35–36, 194–195n5 Spain, 109; deportations per total population, 90; detention sites in, 130, 134; immigration-to-deportation ratio, 89 Special Rapporteur, 27, 29; on ATDs, 117; letters regarding violations (2010), 49; mandate for, 32; opposed by United States, 32; progress report (2011), 32–33; promoting rights-based approach, 116–118 statelessness, 4, 30 Stateless Persons Convention, 42, 46 states: sovereignty over admittance and citizenship, 3–4; and treaty ratifications, 53–55, 57, 61 Stevens, Jacqueline, 113, 120 St. Louis refoulement, 39–40 structural inflation, 149 suicide among detainees, 124–125 supply of labor, 150–151 Sweden, 115, 182; deportations per total population, 90; detention sites in, 130; immigration-to-deportation ratio, 89 Swing, Joseph, 16 Switzerland, 171 Taran, Patrick A., 37 tasers, 121 Texas, 16 Thai citizenship, 4

index 235

Thielemann, Eiko, 162 threat hypothesis, 196n12 threat perception model, 78 thresholds for legislative representation, 97–102, 98, 99, 100, 102, 104–107 Tichenor, Daniel J., 77–78, 107 Tienda, Marta, 79 Truman, Harry S., 77 UAE (United Arab Emirates), 59 UDHR (Universal Declaration of Human Rights), 41, 47 Uganda, 33 UKBA (United Kingdom Border Agency), 114 unemployment: and asylum inflows, 161, 163, 191; and deportations per population, 92; as determinant of migration, 148–151, 152, 156; effects on enforcement and immigration, 77; and immigrant inflows, 152, 190; and immigration restrictiveness, 76–78, 81; and immigration-to-deportation ratio, 91; impact of electoral institutions, 101 UNESCO (United Nations Educational, Scientific, and Cultural Organization), 50–51 UNHCR (United Nations High Commissioner for Refugees): on A. v. Australia, 47–48; on Calais circumstances, 19; defining immigration detention, 109; on detention as “last resort,” 117; on ICCPR rights, 33–34; on penal sanctions for noncriminals, 142 United Arab Emirates (UAE), 59 United Kingdom: attrition by enforcement, 11; cost of immigrant detention, 138; deportation first, appeal later, 136; deportations of asylum seekers, 111; deportations per total population, 90; “deportations,” “returns,” “voluntary departures,” 181; detention sites in, 130, 131, 134; DFT, 111; goal of immigration control, 15; “go home” van campaign, 171–172; immigrant share of electorate, 160; immigrants traveling through Europe to reach, 18–19; immigration-to-deportation ratio, 89; not subject to Returns Directive, 118; and use of Twitter in immigration enforcement activities, 172 United Kingdom Border Agency (UKBA), 114 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment and Punishment (CAT; 1984), 36, 41, 42, 46, 54 United Nations Convention Relating to the Status of Refugees, 1951. See Refugee Convention United Nations Economic and Social Council (ECOSOC), 33 United Nations High Commissioner for Refugees (UNHCR). See UNHCR United Nations Office of the High Commissioner for Human Rights. See OHCHR United Nations Educational, Scientific, and Cultural Organization (UNESCO), 50–51 United Nations Special Rapporteur on the Human Rights of Migrants. See Special Rapporteur United Nations Working Group on Arbitrary Detention (WGAD), 47 United States: Alabama, 10, 193–194n7; annual immigration to, 14; Arizona, 10, 16, 120, 172; California, 16, 39; CBP, 15, 119, 172; Chinese exclusion, 173; comparing deportations with EU (2000–2009), 86, 86–87; deaths of immigrant detainees in, 109; deportation of citizens, 16; deportations per total population, 90; detention bed mandate, 171; detention in prisons, jails, private facilities, 119; detention sites in, 130, 131; enforcement budgets, 77, 82, 87, 120, 136; grounds for mandatory detention in, 111; on ICRMW ratification, 51; IIRIRA, 13, 107, 111; immigrant detention in, 119–123; immigration and ICRMW ratification, 59; Immigration Reform and Control Act (1986), 107, 159; immigration reform package (2013), 160; immigrationto-deportation ratio, 89; and the 1930s Mexican Repatriation, 39; military-style sweeps, 16; net outflow of migrants, 11; Operation Gatekeeper, 147; “Operation Wetback,” 15–16, 107, 112; “removals” vs. “returns” in, 181; “self-deportation” and attrition by enforcement, 10–11; share of deportations by Western democracies, 85; size of “undocumented” population, 2; spending on control and enforcement, 3; state-level enforcement, 12; and St. Louis incident, 40; Texas, 16; undocumented youth activists, 172, 174; “white backlash” in, 173

236  index

United States v. Alabama, 10, 193–194n7 United States v. Brignoni-Ponce, 197n4 Universal Declaration of Human Rights (UDHR), 41, 47 U.S. Citizenship and Immigration Services (USCIS), 74 U.S. Congress: blocking presidential immigration reforms, 77; Senate-passed immigration reform bill (2013), 15 U.S. Customs and Border Protection (CBP), 15, 119, 172 U.S. Department of Homeland Security (DHS), 87, 119–120, 136, 171 U.S. Immigration and Customs Enforcement (ICE). See ICE U.S. Immigration and Naturalization Service (INS), 16 U.S. Secure Borders Initiative (SBI), 87, 120 Uzbekistan, 67, 115 van der Leun, Joanne, 21 visa overstayers, 196n13 vote share and far right: Austrian example, 103–104; and electoral thresholds, 105; necessary but not sufficient for control, 75, 93; under proportional vs. majoritar-

ian representation, 98–102, 98, 99, 100, 102, 104–107 Waibel, Stine, 160 Walzer, Michael, 4, 174 Warren, John Robert, 152 Warren, Robert, 152 WDF (Donald W. Wyatt Detention Facility), 122 WDI (World Bank World Development Indicators), 55–56, 155, 177 Welch, Michael, 110 welfare state hypothesis, 149 Westphalian system of international relations, 4, 168 WGAD (United Nations Working Group on Arbitrary Detention), 47 World Bank Database of Political Institutions (DPI), 84, 183 World Bank World Development Indicators (WDI), 55–56, 155, 177 Yurdakul, Gokce, 173 Zadvydas v. Davis et al., 111–112 Zolberg, Aristide, 151