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

Stanford University Press

Stanford, California

© 2015 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.

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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

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

Tom K. Wong

Stanford University Press

Stanford, California

For Rose, Soul, Pace, and Ever

Contents

List of Figures and Tables

List of Selected Abbreviations

Acknowledgments

1. Immigration Control in the Age of Migration

2. Human Rights and Immigration Control Wrongs

3. Deportation Nations

4. The Labyrinth of Immigration Detention

5. An Effective Deterrent or Smoke and Mirrors?

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

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

Appendix 2: Methodological Notes in the Analysis of Deportations

Appendix 3: Methodological Notes in the Analysis of Immigration Detention

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

Notes

Bibliography

Index

Figures and Tables

Figures

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

2.1. Rate of ratification for the core UN human rights treaties

2.2. Immigration and the predicted probability of ratifying the ICRMW

2.3. Relationship between ratification of the ICRMW and remittances

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

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

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

3.3. Immigration-to-deportation ratio, 2000–2009

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

3.5. Immigration-to-deportation ratio by country

3.6. Deportation per total population by country

3.7. The politics of immigration control

3.8. Electoral rules and the legislative representation of the far right

3.9. Electoral rules, the far right, and deportation

3.10. Electoral thresholds, the far right, and deportation

4.1. Florida Immigration Enforcement Act

4.2. Right-leaning governments and immigration detention

4.3. Elections and immigration detention

4.4. The far right and immigration detention

4.5. Economic growth and immigration detention

4.6. Unemployment and immigration detention

4.7. Foreign-born population and immigration detention

4.8. Asylum inflows and the use of immigration detention

5.1. Deportations and the unauthorized immigrant population in the United States

Tables

2.1. Human rights and deportation

2.2. Human rights and immigration detention

2.3. Comparing ICRMW ratifying and nonratifying countries

2.4. Modeling ratification of the ICRMW

3.1. Factors analyzed and expected effects: Modeling deportations

3.2. Modeling the immigration-to-deportation ratio

3.3. Modeling deportations per total population

3.4. Factors analyzed and expected effects: Interaction model

3.5. Modeling the impact of electoral institutions

4.1. Cross-national view of immigration detention

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

5.2. Modeling immigrant inflows

5.3. Modeling asylum inflows

A2.1. Operationalizing deportation

A2.2. Deportation measures correlation matrix

A2.3. Summary statistics

A4.1. Modeling immigrant inflows: Contemporaneous models

A4.2. Modeling asylum inflows: Contemporaneous models

A4.3. Propensity score matching analyses

Selected Abbreviations

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 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.

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 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 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, 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 time-honored 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.

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 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 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 cross-national 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