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51. Weeping in the Playtime of Others: The Obama Administration’s Failed Reform of ICE Family Detention Practices

Author:
Dora Schriro
Publication Date:
01-2017
Content Type:
Working Paper
Institution:
Center for Migration Studies of New York
Abstract:
The United States has long struggled with the practice of detaining immigrant families and over time, most reform efforts have flagged, if not failed. This paper examines the impact of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) through an exploration of the evolution of the family residential center (FRC) for families in immigration custody, established prior to the 9/11 terrorist attack by the Immigration and Naturalization Service (INS), and expanded by Immigration and Customs Enforcement (ICE) in its aftermath. The paper provides an inside look at how policymakers, at various points in the Obama administration, sought to roll back its most infirm practices and the fate of those efforts. It begins with a brief history of family detention in the United States, continues with a summary of the reforms undertaken both early and late in the Obama administration, and examines the significant challenges it faced and the less progressive positions it adopted during its first and second terms in office. The paper concludes with a discussion of reasons for the rapid reversal of its previous reforms and provides recommendations to achieve a civil, civil system of immigration enforcement for families and all others, which means nothing less than the transformation of the immigrant detention system from a criminal to a civil paradigm, consistent with the population and legal authorities.[1] The need for such an effort is all the more urgent in light of executive actions taken in the early days of the Trump administration and their initial outcomes. Among those thwarting admissions are orders to Customs and Border Protection (CBP) and US Citizenship and Immigration Services (USCIS) to seal the US borders, shun refugees fleeing from war-torn regions until “extreme vetting” measures are put into place, and reassess others who have already been issued visas. Additional orders issued to ICE expanded and expedited the removal of persons whose conduct could result in charges or convictions as well as those with criminal charges or convictions, resulting in a 38 percent increase in arrests by ICE agents within the first 100 days of the Trump administration (Dickerson 2017b; Duara 2017).
Topic:
Migration, Border Control, and Family
Political Geography:
United States, Central America, and North America

52. Is Border Enforcement Effective? What We Know and What It Means

Author:
Edward Alden
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
For too long, the policy debate over border enforcement has been split between those who believe the border can be sealed against illegal entry by force alone, and those who believe that any effort to do so is futile and without expanded legal work opportunities. And for too long, both sides have been able to muster evidence to make their cases — the enforcers pointing to targeted successes at sealing the border, and the critics pointing to continued illegal entry despite the billions spent on enforcement. Until recently it has been hard to referee the disputes with any confidence because the data was simply inadequate — both sides could muster their preferred measures to make their case. But improvements in both data and analysis are increasingly making it possible to offer answers to the critical question of the effectiveness of border enforcement in stopping and deterring illegal entry. The new evidence suggests that unauthorized migration across the southern border has plummeted, with successful illegal entries falling from roughly 1.8 million in 2000 to just 200,000 by 2015. Border enforcement has been a significant reason for the decline — in particular, the growing use of “consequences” such as jail time for illegal border crossers has had a powerful effect in deterring repeated border crossing efforts. The success of deterrence through enforcement has meant that attempted crossings have fallen dramatically even as the likelihood of a border crosser being apprehended by the Border Patrol has only risen slightly, to just over a 50-50 chance. These research advances should help to inform a more rational public debate over the incremental benefits of additional border enforcement expenditures. With Congress gearing up to consider budget proposals from the Trump administration that seek an additional $2.6 billion for border security, including construction of new physical barriers, the debate is long overdue. In particular, Congress should be taking a careful look at the incremental gains that might come from additional spending on border enforcement. The evidence suggests that deterrence through enforcement, despite its successes to date in reducing illegal entry across the border, is producing diminishing returns. There are three primary reasons. First, arrivals at the border are increasingly made up of asylum seekers from Central America rather than traditional economic migrants from Mexico; this is a population that is both harder to deter because of the dangers they face at home, and in many cases not appropriate to deter because the United States has legal obligations to consider serious requests for asylum. Second, the majority of additions to the US unauthorized population is now arriving on legal visas and then overstaying; enforcement at the southern border does nothing to respond to this challenge. And finally, among Mexican migrants, a growing percentage of the repeat border crossers are parents with children left behind in the United States, a population that is far harder to deter than young economic migrants. The administration could better inform this debate by releasing to scholars and the public the research it has sponsored in order to give Americans a fuller picture on border enforcement.
Topic:
Immigration, Border Control, and Refugees
Political Geography:
United States, Central America, and North America

53. A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti

Author:
Robert Warren and Donald Kerwin
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This report presents detailed statistical information on the US Temporary Protected Status (TPS) populations from El Salvador, Honduras, and Haiti. TPS can be granted to noncitizens from designated nations who are unable to return to their countries because of armed conflict, environmental disaster, or other extraordinary and temporary conditions. In January 2017, an estimated 325,000 migrants from 13 TPS-designated countries resided in the United States. This statistical portrait of TPS beneficiaries from El Salvador, Honduras, and Haiti reveals hardworking populations with strong family and other ties to the United States. In addition, high percentages have lived in the United States for 20 years or more, arrived as children, and have US citizen children. The paper finds that: The labor force participation rate of the TPS population from the three nations ranges from 81 to 88 percent, which is well above the rate for the total US population (63 percent) and the foreign-born population (66 percent). The five leading industries in which TPS beneficiaries from these countries work are: construction (51,700), restaurants and other food services (32,400), landscaping services (15,800), child day care services (10,000), and grocery stores (9,200). TPS recipients from these countries live in 206,000 households: 61,100 of these households (roughly 30 percent) have mortgages. About 68,000, or 22 percent, of the TPS population from these nations arrived as children under the age of 16. TPS beneficiaries from these nations have an estimated 273,000 US citizen children (born in the United States). Ten percent of El Salvadoran, nine percent of the Haitian, and six percent of the Honduran TPS beneficiaries are married to a legal resident. More than one-half of El Salvadoran and Honduran, and 16 percent of the Haitian TPS beneficiaries have resided in the United States for 20 years or more. The six US states with the largest TPS populations from these countries are California (55,000), Texas (45,000), Florida (45,000), New York (26,000), Virginia (24,000), and Maryland (23,000). Eighty-seven percent of the TPS population from these countries speaks at least some English, and slightly over one-half speak English well, very well, or only English. About 27,000, or 11 percent, of those in the labor force are self-employed, having created jobs for themselves and likely for others as well. TPS status should be extended until beneficiaries can safely return home and can successfully reintegrate into their home communities. Most long-term TPS recipients should be afforded a path to lawful permanent resident (LPR) status and ultimately to US citizenship.
Topic:
Border Control, Refugees, and Immigrants
Political Geography:
United States, South America, Central America, and North America

54. Kidnapped, Trafficked, Detained? The Implications of Non-state Actor Involvement in Immigration Detention

Author:
Michael Flynn
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Global migration challenges are reinforcing long-standing trends that involve shifting immigration control measures beyond national borders and incorporating new actors into detention systems. Proposals to shape migration management policies — including discussions on developing a Global Compact for Migration — recognize the need to involve a range of actors to implement humane and effective strategies. However, when observed through the lens of immigration detention, some policy trends raise challenging questions, particularly those that lead to increasing roles for non-state actors in migration control. This article critically assesses a range of new actors who have become involved in the deprivation of liberty of migrants and asylum seekers, describes the various forces that appear to be driving their engagement, and makes a series of recommendations concerning the role of non-state actors and detention in global efforts to manage international migration. These recommendations include: ending the use the detention in international migration management schemes; limiting the involvement of private companies in immigration control measures; insisting that the International Organization for Migration (IOM) actively endorse the centrality of human rights in the Global Compact for Migration and amend its constitution so that it makes a clear commitment to international human rights standards; and encouraging nongovernmental organizations to carefully assess the services they provide when operating in detention situations to ensure that their work contributes to harm reduction.
Topic:
Migration, Non State Actors, Border Control, and Refugees
Political Geography:
Global Focus

55. The “Right to Remain Here” as an Evolving Component of Global Refugee Protection: Current Initiatives and Critical Questions

Author:
Daniel Kanstroom
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article considers the relationship between two human rights discourses (and two specific legal regimes): refugee and asylum protection and the evolving body of international law that regulates expulsions and deportations. Legal protections for refugees and asylum seekers are, of course, venerable, well-known, and in many respects still cherished, if challenged and perhaps a bit frail. Anti-deportation discourse is much newer, multifaceted, and evolving. It is in many respects a young work in progress. It has arisen in response to a rising tide of deportations, and the worrisome development of massive, harsh deportation machinery in the United States, Germany, the United Kingdom, France, Mexico, Australia, and South Africa, among others. This article’s main goal is to consider how these two discourses do and might relate to each other. More specifically, it suggests that the development of procedural and substantive rights against removal — as well as rights during and after removal — aids our understanding of the current state and possible future of the refugee protection regime. The article’s basic thesis is this: The global refugee regime, though challenged both theoretically and in practice, must be maintained and strengthened. Its historical focus on developing criteria for admission into safe states, on protections against expulsion (i.e., non-refoulement), and on regimes of temporary protection all remain critically important. However, a focus on other protections for all noncitizens facing deportation is equally important. Deportation has become a major international system that transcends the power of any single nation-state. Its methods have migrated from one regime to another; its size and scope are substantial and expanding; its costs are enormous; and its effects frequently constitute major human rights violations against millions who do not qualify as refugees. In recent years there has been increasing reliance by states on generally applicable deportation systems, led in large measure by the United States’ radical 25 year-plus experiment with large-scale deportation. Europe has also witnessed a rising tide of deportation, some of which has developed in reaction to European asylum practices. Deportation has been facilitated globally (e.g., in Australia) by well-funded, efficient (but relatively little known) intergovernmental idea sharing, training, and cooperation. This global expansion, standardization, and increasing intergovernmental cooperation on deportation has been met by powerful — if in some respects still nascent — human rights responses by activists, courts, some political actors, and scholars. It might seem counterintuitive to think that emerging ideas about deportation protections could help refugees and asylum seekers, as those people by definition often have greater rights protections both in admission and expulsion. However, the emerging anti-deportation discourses should be systematically studied by those interested in the global refugee regime for three basic reasons. First, what Matthew Gibney has described as “the deportation turn” has historically been deeply connected to anxiety about asylum seekers. Although we lack exact figures of the number of asylum seekers who have been subsequently expelled worldwide, there seems little doubt that it has been a significant phenomenon and will be an increasingly important challenge in the future. The two phenomena of refugee/asylum protections and deportation, in short, are now and have long been linked. What has sometimes been gained through the front door, so to speak, may be lost through the back door. Second, current deportation human rights discourses embody creative framing models that might aid constructive critique and reform of the existing refugee protection regime. They tend to be more functionally oriented, less definitional in terms of who warrants protection, and more fluid and transnational. Third, these discourses offer important specific rights protections that could strengthen the refugee and asylum regime, even as we continue to see weakening state support for the basic 1951/1967 protection regime. This is especially true in regard to the extraterritorial scope of the (deporting) state’s obligations post-deportation. This article particularly examines two initiatives in this emerging field: The International Law Commission’s Draft Articles on the Expulsion of Aliens and the draft Declaration on the Rights of Expelled and Deported Persons developed through the Boston College Post-Deportation Human Rights Project (of which the author is a co-director). It compares their provisions to the existing corpus of substantive and procedural protections for refugees relating to expulsion and removal. It concludes with consideration of how these discourses may strengthen protections for refugees while also helping to develop more capacious and protective systems in the future.
Topic:
Human Rights, International Cooperation, Border Control, Refugees, and Humanitarian Crisis
Political Geography:
Africa, United States, Europe, France, South Africa, Germany, Australia, Mexico, and Global Focus

56. Matching Systems for Refugees

Author:
Will Jones and Alexander Teytelboym
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Design of matching systems between refugees and states or local areas is emerging as one of the most promising solutions to problems in refugee resettlement. We describe the basics of two-sided matching theory used in a number of allocation problems, such as school choice, where both sides need to agree to the match. We then explain how these insights can be applied to international refugee matching in the context of the European Union and examine how refugee matching might work within the United Kingdom, Canada, and the United States.
Topic:
International Cooperation, Refugees, and Resettlement
Political Geography:
United States, United Kingdom, Europe, Canada, and North America

57. Proposals for the Negotiation Process on the United Nations Global Compact for Migration

Author:
Victor Genina
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
On September 19th, 2016, the United Nations (UN) General Assembly adopted Resolution 71/1, the text of the New York Declaration for Refugees and Migrants(the “New York Declaration”). Resolution 71/1 is the outcome document of the high-level plenary meeting on addressing large movements of refugees and migrants, held at the UN headquarters. The New York Declaration reflects how UN member states have decided to address the challenge of large movements of people in two main legal categories: asylum seekers/refugees and migrants. Resolution 71/1 includes an annex titled “Towards a Global Compact for Safe, Orderly and Regular Migration” (the “global compact for migration” or “global compact”). This document is comprised of several thematic issues related to international migration that will be the basis of a globally negotiated agreement on how member states should respond to international migration at the national, regional, and international levels, as well as to issues related to international migration and development. The global compact for migration is intended to be adopted at a conference on international migration and development before the inauguration of the 73rd annual session of the UN General Assembly in September 2018. This paper addresses how UN member states should plan to address international migration in the future. It does not refer to refugees and asylum seekers: a global compact on refugees will be drafted by the United Nations High Commissioner for Refugees (UNHCR) in 2018, and to be presented to the UN General Assembly for states’ consideration during its 73rd annual session, which starts in September 2018.[1] For those who have been involved in migration issues within the United Nations, the fact that member states have finally agreed to convene an international conference on international migration represents a major achievement. It is the result of an extended process that started decades ago and was made possible by a long chain of efforts by many state delegations and other stakeholders. The global compact for migration will not be the first outcome document dealing exclusively with international migration. A declaration[2] adopted at a high-level meeting at the United Nations in October 2013, for example, paved the way for the 2018 conference. Nonetheless, the global compact represents a unique opportunity to address international migration comprehensively and humanely. This paper contributes to the discussion on the elements that should be included in the global compact for migration. The paper is divided into two sections. The first section analyzes the main elements of Annex II, “Towards a Global Compact for Safe, Orderly and Regular Migration,” and the criteria that needs to be adopted in order to achieve a substantive outcome. In particular, participants in the negotiation process should aim to balance the concerns of states and the members of host societies, on one hand, with the needs and rights of migrants, on the other. The second section includes proposals to enrich the final global compact for migration and takes into account two documents written by two different actors within the UN system, the Special Representative of the Secretary-General on Migration, and the Special Rapporteur on the Human Rights of Migrants. In particular, the paper proposes that the global compact for migration: sets forth principles that can inform the actions of governments in relation to international migration at all levels; enunciates a clearer definition of state protection responsibilities in relation to migrants in crisis situations and so-called “mixed flows” [3]; affords a substantive role to civil society organizations, the private sector, and academic institutions in the global compact’s follow-up and review process; defines the institutional framework for the implementation and follow-up of the global compact within the United Nations, including through the work of the UN High-level Political Forum on Sustainable Development (HLPF); establishes a mechanism to fund migration policies for states that lack enough resources to invest sufficiently in this task; and builds a cooperation-oriented, peer-review mechanism to review migration policies. The paper has been conceived as an input for those who will take part in the negotiation of the global compact for migration, as well as those who will closely follow those negotiations. Thus, the paper assumes a level of knowledge on how international migration has been addressed within the United Nations during the last several years and of the complexities of these negotiation processes. The author took part in different UN negotiation processes on international migration from 2004 to 2013. The paper is primarily based on this experience.[4]
Topic:
International Cooperation, Migration, United Nations, and Refugees
Political Geography:
Global Focus

58. Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era

Author:
Leisy Abrego, Mat Coleman, and Daniel Martínez
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
During a post-election TV interview that aired mid-November 2016, then President-Elect Donald Trump claimed that there are millions of so-called “criminal aliens” living in the United States: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate.” This claim is a blatant misrepresentation of the facts. A recent report by the Migration Policy Institute suggests that just over 800,000 (or 7 percent) of the 11 million undocumented individuals in the United States have criminal records. Of this population, 300,000 individuals are felony offenders and 390,000 are serious misdemeanor offenders — tallies which exclude more than 93 percent of the resident undocumented population (Rosenblum 2015, 22-24).[1] Moreover, the Congressional Research Service found that 140,000 undocumented migrants — or slightly more than 1 percent of the undocumented population — are currently serving time in prison in the United States (Kandel 2016). The facts, therefore, are closer to what Doris Meissner, former Immigration and Naturalization Service (INS) Commissioner, argues: that the number of “criminal aliens” arrested as a percentage of all fugitive immigration cases is “modest” (Meissner et al. 2013, 102-03). The facts notwithstanding, President Trump’s fictional tally is important to consider because it conveys an intent to produce at least this many people who — through discourse and policy — can be criminalized and incarcerated or deported as “criminal aliens.” In this article, we critically review the literature on immigrant criminalization and trace the specific laws that first linked and then solidified the association between undocumented immigrants and criminality. To move beyond a legal, abstract context, we also draw on our quantitative and qualitative research to underscore ways immigrants experience criminalization in their family, school, and work lives. The first half of our analysis is focused on immigrant criminalization from the late 1980s through the Obama administration, with an emphasis on immigration enforcement practices first engineered in the 1990s. Most significant, we argue, are the 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). The second section of our analysis explores the social impacts of immigrant criminalization, as people’s experiences bring the consequences of immigrant criminalization most clearly into focus. We approach our analysis of the production of criminality of immigrants through the lens of legal violence (Menjivar and Abrego 2012), a concept designed to understand the immediate and long-term harmful effects that the immigration regime makes possible. Instead of narrowly focusing only on the physical injury of intentional acts to cause harm, this concept broadens the lens to include less visible sources of violence that reside in institutions and structures and without identifiable perpetrators or incidents to be tabulated. This violence comes from structures, laws, institutions, and practices that, similar to acts of physical violence, leave indelible marks on individuals and produce social suffering. In examining the effects of today’s ramped up immigration enforcement, we turn to this concept to capture the violence that this regime produces in the lives of immigrants. Immigrant criminalization has underpinned US immigration policy over the last several decades. The year 1996, in particular, was a signal year in the process of criminalizing immigrants. Having 20 years to trace the connections, it becomes evident that the policies of 1996 used the term “criminal alien” as a strategic sleight of hand. These laws established the concept of “criminal alienhood” that has slowly but purposefully redefined what it means to be unauthorized in the United States such that criminality and unauthorized status are too often considered synonymous (Ewing, Martínez, and Rumbaut 2015). Policies that followed in the 2000s, moreover, cast an increasingly wider net which continually re-determined who could be classified as a “criminal alien,” such that the term is now a mostly incoherent grab bag. Simultaneously and in contrast, the practices that produce “criminal aliens” are coherent insofar as they condition immigrant life in the United States in now predictable ways. This solidity allows us to turn in our conclusion to some thoughts about the likely future of US immigration policy and practice under President Trump.
Topic:
Migration, Refugees, and Criminal Justice
Political Geography:
United States, Central America, and North America

59. The Mixed Motives of Unaccompanied Child Migrants from Central America’s Northern Triangle

Author:
Matthew Lorenzen
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
A growing body of literature has argued that the distinction between forced and voluntary migration can be, in practice, unclear. This literature points out that each individual migrant may have mixed motives for migrating, including both forced and voluntary reasons. Few studies, however, have actually set out to analyze mixed-motive migration. This paper examines the mixed-motive migration of unaccompanied minors from Central America’s Northern Triangle states (Guatemala, Honduras, and El Salvador), using data from a small 2016 survey carried out in 10 shelters for unaccompanied child migrants run by a Mexican government child welfare agency. Using this survey, the paper identifies the immigrating minor’s motives, which are oftentimes mixed, and details differences by nationality, gender, and age groups. Some of the key findings include: Around one-third of the child migrants surveyed had mixed motives, including both forced and voluntary reasons for migrating. Violence appears most often as a reason for migrating among minors with mixed motives, as opposed to the search for better opportunities, which appears more often as an exclusive motive. Significant differences between the three nationalities are observed. Relatively few Guatemalan minors indicated violence as a motive, and few displayed mixed motives, as opposed to Hondurans, and especially Salvadorans. The minors fleeing violence, searching for better opportunities, and indicating both motives at the same time were largely mature male adolescents. The minors mentioning family reunification as their sole motive were predominantly girls and young children. The results indicate that binary formulations regarding forced and voluntary migration are often inadequate. This has important implications, briefly addressed in the conclusions. These implications include: the need for migration scholars to consider forced reasons for migrating in the context of mixed-motive migration; the fact that mixed motives call into question the established, clear-cut categories that determine whether someone is worthy of humanitarian protection or not; the need to have in-depth, attentive, and individual asylum screening because motives may be interconnected and entangled, and because forced reasons may be hidden behind voluntary motives; and the need for a more flexible policy approach, so that immigration systems may be more inclusive of migrants with mixed motives.
Topic:
Migration, Children, and Humanitarian Crisis
Political Geography:
Central America, Honduras, Guatemala, and El Salvador

60. Strengthening the Global Refugee Protection System: Recommendations for the Global Compact on Refugees

Author:
Kevin Appleby
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
On September 19, 2016, the United Nations (UN) General Assembly adopted the New York Declaration for Refugees and Migrants. This document launched a two-year process to develop a Global Compact on Responsibility Sharing on Refugees (“Global Compact on Refugees”) and a Global Compact for Safe, Orderly, and Regular Migration. With a record 65 million displaced persons in the world, the global community must come together to fashion a stronger protection regime for persons on the move. This paper outlines broad themes and specific recommendations that the Global Compact on Refugees should adopt on how to strengthen the global refugee protection system. The recommendations fall into several categories: (1) responsibility sharing for the protection of refugees; (2) filling in protection gaps; (3) balancing and replacing deterrence strategies with protection solutions; (4) refugee resettlement; and (5) building refugee self-sufficiency. Some of the key recommendations include: the development of a responsibility-sharing formula to respond to large movements of refugees; the development of an early warning system to identify and respond to nations in crisis; the adoption of principles included in the Nansen and Migrants in Countries of Crisis initiatives; the use of temporary protection measures to protect populations that flee natural disaster; the adoption of model processes that ensure safe and voluntary return; cooperation between destination and transit countries to expand refugee protections; the provision of asylum and due process protections at borders; the use of development assistance to ensure the self-sufficiency of refugees; the adoption of a goal to resettle 10 percent of the global refugee population each year; the establishment of a refugee matching system between refugees and resettlement countries; and the adoption of coherent strategies, involving all sectors, to address large movements of refugees. This paper draws heavily, albeit not exclusively, from a series of papers published as a special collection in the Journal on Migration and Human Security[1] on strengthening the global system of refugee protection.
Topic:
Migration, United Nations, Refugee Crisis, and Resettlement
Political Geography:
Global Focus