When Mexico’s (former) President Fox met with undocumented Mexican immigrants during his visit to the US this past May, his actions amounted to the making of a new informal jurisdiction. His actions did not fit into existing legal forms that give sovereign states specific types of extraterritorial authority. Nonetheless, his actions were not seen as particularly objectionable; indeed, they were hardly noticed. Yet these were, after all, unauthorized immigrants subject to deportation if detected, in a country that is now spending almost 2 billion dollars a year to militarize border control. But no INS or other police came to arrest the undocumented thus exposed, and the media barely reacted.
On July 10, over 50 leaders from countries sending and receiving immigrants into the EU met in Rabat. This was a historic first. Sending countries all over the world have for decades resisted the idea of meeting with receiving countries around the question of immigration; their basic position has been to disregard the fact of emigration from their countries. Also notable is that one of the reasons for the meeting was a recognition by EU receiving countries that current policy aimed almost exclusively at border control on the EU perimeter was not helping anyone. Finally, also notable was that there was considerable specificity in the meeting: the focus was largely on migrations from Western Sub-Saharan African countries, involving the governments of 27 African and 30 European countries. It was not a global event. It was a working session with a reasonable agenda.
Both instances are bits of a multi-bit reality in the making which is unsettling the basic alignments on which immigration policy rests. Some of these bits, such as Fox’s meeting in the US with undocumented Mexicans and the Rabat meeting, are historic firsts. Others are old, even when they may assume new meanings in the current period.
This emergent multi-bit reality does not fit neatly under transnationalism nor under post-nationalism. And even in cases where it might fit, we lose something when we explain it in those terms. Perhaps it is more helpful to see this reality as a variety of micro-processes inside the nation-state that are beginning to denationalize the national as historically constructed. They are not confined to immigration, even though this is the focus here. Their partial and fragmented character means these processes can coexist with a renationalizing of policy and of political discourse in multiple domains, including immigration.
The partial denationalizing of the national is to be distinguished from transnationalism and from post-nationalism because it does not happen beyond the realm of the national or in more than one country. Its distinctive character is that it happens deep inside the thicket of the national. It may at times intersect with or be one moment in a larger transnational dynamic. In that sense, identifying this denationalizing multi-bit reality adds to, rather than replaces, the types of processes identified in the rich literatures on transnationalism and post-nationalism.
I next examine a variety of these instances and then proceed to discuss how they fit or not into key features of current immigration policy in the US and Europe.
When bits of the national get denationalized
Even as the US government seeks to further weaponize the border with Mexico to control undocumented immigration, the bits of this new immigration reality multiply. The emergent multi-bit immigration reality functions within specific settings insofar as migration flows are far more geographically structured than is often assumed.1A few basic figures help illustrate this. About 30 countries account for over 75% of all immigration; eleven of these are developed countries, with over 40% of all immigrants. More generally, the latest estimate is of a world wide immigrant resident population of between 185-192 million in 2005. This is under 3% of global population, but up from the 2.1% of world population in 1975; and up from the 175 million or 2.9% of world population estimated for 2000. See World Migration 2005: Costs and Benefits of International Migration (Geneva: IOM, 2006).
The border itself is a good case in point. There is a strong contrast, and possibly contradiction, between the project of militarizing border control and the reality of the border zone. In 2004, the latest year for which we have comprehensive figures on all the following variables, 175,000 legal immigrants entered the US from Mexico, along with 3.8 million visitors for pleasure, 433,000 visitors for business, 118,000 temporary workers and dependents, 25,000 intra-company transferees and dependents, 21,000 students and dependents, 8,400 exchange visitors and dependents, and 6,200 traders and investors.2Please find sources for these various items in Douglas S. Massey, Backfire at the Border: Why Enforcement without Legalization Cannot Stop Illegal Immigration (Washington, DC: Center for Trade and Policy Studies, Cato Institute, 2005). On the other hand, 1 million Americans live in Mexico, 19 million travel there each year as visitors, US foreign direct investment in Mexico now totals $62 billion annually, and trade with Mexico grew by a factor of eight from 1986 to the present. More difficult to measure, but still very real, are the multiple crossborder networks connecting people from both sides of the border, which go beyond physical border crossings. This includes the variety of transnational processes described in other texts on this website, as well as digital transactions that begin to constitute a crossborder electronic space.
Thus the reality of the border is not quite a line that divides but a partly denationalized fuzzy zone. It binds as much as it divides, and perhaps more so. Thereby it enters in tension with the explicit aims of US immigration policy.
There are more elusive bits in the new immigration reality.
The large demonstrations on the streets of Chicago, Los Angeles and other US cities in March and April of last year included many self-declared undocumented immigrants claiming the right to have citizens’ rights. Whether some of these may have been actually legal immigrants or citizens is beside the point. We do know that many were indeed unauthorized. At a time that our Congress was discussing legislation to criminalize illegal immigrants, these undocumented responded by going in public on the streets. Their faces were deployed on hundreds of front pages and television screens, but none were arrested—again, against a backdrop of militarized borders and a clear apprehension policy.
Beyond the fact of no arrests of undocumented immigrants, these events point to a second, perhaps more significant bit of a reality in the making. There were signs that the claim-making was more about the right to have rights than about the desire to become American citizens per se. American citizenship would function then as the channel for acquiring rights to a far more universal condition. There are multiple instances, also in other countries, of an emerging claim for a sort of denationalized citizenship.
One version of such a denationalized citizenship can be seen in the portable rights given to top level professionals through the major free trade agreements as part of the globalization of trade and investment in services. These are rights inscribed in WTO, NAFTA and dozens of other trade agreements shaped by the new realities launched in the 1990s. There is a mini-immigration policy in each of the major chapters in these treaties (chapters on a broad range of services, notably, finance, business services, telecommunications, particular types of engineering, and so on). Professionals in each of the specific sectors are given the right to reside in any signatory country for at least three years and enjoy various rights and protections.
While this type of development is rarely a focus in the migration literature, these professionals are a class of “migrant workers” fully endowed with rights. This fact is obscured by their placement in the treaties under specific economic sectors and descriptions that avoid the language of migration. These are rights that originate in international agreements and require signatory states to fulfill them. Their fulfillment entails a partial denationalizing of the national state’s power to grant rights.3A detailed examination of these issues can be found in Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, 2006), chaps. 5, 6, and 9.
A far more complex and advanced instance of denationalized portable rights is emerging in the European Union. It might be interesting to provide some detail because it may well signal the beginning of a process that we see elements of in the US. At the heart of this process is the shift of rights to individuals as individuals rather than as citizens of a specific country. Immigrants are incorporated into various national and EU-level systems of rights as a result of EU law. The question of “immigrant integration” shifts away from an emphasis on the “foreignness” of immigrants and what to do about it (such as requirements for learning the language and the culture of the host country), and begins to move towards the work of mixing EU level law/policy (like the European Court of Human Rights and the Social Charter of the Council of Europe) with the decisions of national judiciaries.4See David Jacobson and Galya Benarieh Ruffer, “Social Relations on a Global Scale: The Implications for Human Rights and for Democracy,” pp. 25-44 in Dialogues on Migration Policy, edited by Marco Giugni and Florence Passy (Lanham, MD: Lexington Books, 2006). One possible outcome is that integration (including the necessity to learn the language of the country of residence) shifts from being the condition for acquiring rights to a matter (responsibility) for a rights-bearing immigrant.
The filtering of supranational norms into national law can take many forms. The fact that national systems are critical for the implementation of non-national types of rights (whether those inscribed in free trade agreements or in the human rights regime) is not necessarily incompatible with the growing weight of international norms in national courts and in national law. While this does not amount to post-nationalism or transnationalism, the filtering of non-national norms into national law does involve a partial denationalizing of at least some components of national law.5For instance, to mention just one of the more recalcitrant EU members, in 2000 the UK incorporated the bulk of the European Convention of Human Rights into domestic law. The British Parliament adopted the Human Rights Act of 1998 in November of 1998; it became effective in the UK in October 2000. It all happens within the state apparatus and often remains coded in the language of the national.
Positing matters as an either/or (as in either national or global) is far less valid today than it was even 10 years ago. The last decade has seen significant changes, not only in the EU but also in a country like the US, one of the most closed and “nationalist” in the world. Even the US Supreme Court has in the last few years acknowledged that it needs to consider international and foreign law—two very different types of law—in its interpretations. Specifically, when it comes to human rights norms, the US has seen sharp growth in the use of these norms in national courts, and it has seen the federalizing of these norms through rather informal processes that make these norms part of customary practice, eventually enabling their federalization—that is, their becoming national law.6Harold Hongju Koh, “How Is International Human Rights Law Enforced?” Indiana Law Journal 74, 1997, p. 1379.
There are other bits in the new immigration reality beyond those described above.7For more see Sassen op. cit., especially chapters 6 and 8. But for now let me emphasize the need to examine the tension between, on the one hand, these emergent processes capable of partly denationalizing borders and national institutional spaces, and, on the other, the renationalizing of political discourse about immigration in much of the developed world. We cannot assume that this renationalizing precludes the development of new bits and pieces in the larger familiar immigration reality, and in the character of the national state apparatus itself.
The state itself has changed
There is more movement towards a novel approach in handling immigration than the statements and speeches of national politicians in the US and Europe would make you think. While the state continues to play the most important role in immigration policy making and implementation, the state itself has been transformed by the growth of a global economic system and other transnational processes, such as the institutional development of the human rights regime, and EU institutions in the case of the EU.
Three particular changes in the positioning of national states could have a potentially significant impact on the role of the state in immigration policy making and implementation.
One is the relocation of various components of state authority to supranational organizations, including the institutions of the European Union, the newly formed World Trade Organization, or the newly instituted International Criminal Court with its potentially universal jurisdictions. In the specific case of migration there is also the renewed role of the International Organization for Migration (IOM) in managing migration and refugees flows, and to some extent the Organisation for Economic Co-operation and Development (OECD).
Strictly speaking we should include a whole series of other actors as well. One instance is the financial and banking sector that handles immigrant remittances. This sector is not an insignificant actor if we consider that worldwide immigrant remittances reached $230 billion in 2005.8See World Bank, Global Economic Prospects: Economic Implications of Remittances and Migration (Washington, DC: The World Bank, 2006). Further, to mention something typically overlooked, there is the role of the banking and financial sector in the larger migration web. The Inter-American Development Bank (IADB) estimates that in 2003, immigrant remittances generated $2 billion in handling fees for the financial and banking sector on the $35 billion sent back home by Hispanics in the US.9The IADB also found that, for Latin America and the Caribbean as a whole, in 2003 these remittance flows exceeded the combined flows of all foreign direct investment and net official development assistance.
Second, the privatization and deregulation of public sector activities has brought with it a type of de-facto (rather than formally explicated) privatization of various governance functions that were once in the public bureaucracy.10Elsewhere I have examined how when public sector firms get privatized, and, more generally, when economies are deregulated, regulations do not simply disappear. Rather, they get transformed into private corporate specialized services (accounting, legal, etc.), and get oriented towards the private interests of the firms and markets at issue. For details, see Saskia Sassen, The Global City: New York, London, Tokyo (Princeton: Princeton University Press, 1991/2001 [2nd updated edition]). This privatization of governance is particularly evident in the internationalization of trade and investment. Corporations, markets, and free trade agreements are now in fact “governing” an increasing share of cross-border flows, including the regimes for cross-border professionals described earlier.
Third, the numbers and kinds of political actors involved in immigration policy debates and policy making in Europe and the US are far greater than they were two decades ago: the European Union; anti-immigrant parties; vast networks of organizations in both Europe and North America that often represent immigrants, or claim to do so, and fight for immigrant rights; immigrant associations and immigrant politicians, mostly in the second generation; and, especially in the US, so-called ethnic lobbies. The policy process for immigration is no longer confined to a narrow governmental arena of ministerial and administrative interaction. Public opinion and public political debate have become part of the space wherein immigration policy is shaped. Whole parties position themselves politically in terms of their stand on immigration, especially in some of the European countries.
The emerging realities about immigration and the state described in these two first sections amount to a larger ecology within which border controls function. That larger ecology can unsettle, if not undermine, the foundations of border controls.
The limits of militarized border controls given new realities
Against this larger context, the increasingly militarized US/Mexico border is a sort of natural experiment to examine the interaction of these realities with militarized border controls. US immigration policy, with its overwhelming focus on border control, rests precisely on not factoring in that emergent immigration reality and those particular state transformations described in the first two sections.11On the question of control as a political choice see Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era,” Political Science Quarterly, vol. 113, nr. 4: 591-615 (1998-9). See also generally Wayne Cornelius et. al, Controlling Immigration (Palo Alto, CA: Stanford University Press, 2003). Here I can only limit myself to the narrowest definition of these issues.
Many of the facts are by now familiar, but some are not. After 15 years of increased militarizing of the border, we have an all-time high in the estimated unauthorized immigrant population (ca. 12 million). The annual INS budget rose from $200 million in 1996 to $1.6 billion in 2005. The number of Border Patrol officers increased from 2,500 in the early 1980s to around 12,000 today. Backfire at the Border finds (see fn. 2) a sharp increase in the costs per arrest and falling arrest rates. Before 1992, the cost of making one arrest along the US-Mexico border stood at $300; by 2002, that cost had grown by 467% to $1,700 and the probability of apprehension had fallen to a forty year low, despite massive increases in spending on border enforcement. Finally, the escalation of border control has raised the risks and costs of illegal crossing, which in turn has changed a seasonal circulatory migration—with workers leaving their families behind—into a family migration and long-term stays. The Border study established that in the early 1980s, about half of all undocumented Mexicans returned home within 12 months of entry. By 2000 the rate of return migration stood at just 25 percent.
In brief, the results were the opposite of what the government aimed at: border militarization did not reduce the probability of illegal crossings on the US/Mexico border, forced unauthorized immigrants to stay longer than they wanted and to bring their families even when they would rather not.
There are three peculiar absences in the enforcement effort in the US which are also part of the larger ecology within which militarization has failed to achieve its aims. One is the absence of a parallel “escalation” in the visa application process—because of understaffing it can still take ten years for a lawful applicant to get processed. Secondly, the budget for inspections of workplaces suspected of violating the law remains minimal and employers sanctions are rare.12Only about 2 percent of the INS budget has been allocated to employer sanction enforcement over the last several years; and few sanctions have been imposed since the passing of the legislation as part of the 1984 Immigration Reform and Control Act (IRCA). In 2005, U.S. Immigration and Customs Enforcement, which succeeded the INS, strengthened enforcement efforts: it won 127 criminal convictions in 2005, up from 46 in 2004, and won $15 million in settlements from Wal-Mart and 12 subcontractors for violations. To address the failure of employers’ sanctions enforcement, the government has started the Basic Pilot Program, part of Homeland Security. It is an electronic search machine that combines Social Security and immigration databases to verify an employee’s status. While today’s program is small and voluntary, with about 6,000 employers enrolled, it can be extended to each of the country’s approximately 8 million employers. Violations of the law would subject employers to stiff fines, with jail sentences for repeat offenders. However, the program is problematic in technical and legal terms. This combination has created a mixed opposition—from civil rights organizations to big business. A Government Accountability Office report issued in August 2005 criticized the program for its inability to identify fraud, for flaws in the databases, and for the possibility that employers will abuse the system. Thirdly, the budget for tracking visa over-stayers remains minimal and apprehensions are few.
At least part of the reason for these absences is rather straightforward. There are four critical differences between these three options and investment in border control. They concern jobs, buying materiel, lobbies and propaganda.
On jobs, regardless of political party, the US government has repeatedly shown a strong reluctance to create more jobs for inspecting workplaces, for tracking visa-overstayers, and for processing green card applications. Over the last 20 years especially, none of these efforts have seen the sharp budgetary increases allocated for controlling the border with Mexico. On buying material, the sharp increases in the INS budget have benefited the makers and sellers of armaments and surveillance technology. A third difference concerns lobbying efforts in Congress. Armament makers and large corporate employers in agri-business, meat-packing and other sectors known to employ significant numbers of unauthorized immigrants operate powerful lobbies. INS inspectors and green card processors, and large sectors of the workforce, do not. Finally, there is the electoral-and-public opinion machinery: weaponizing a border makes for better footage and a better media story than does hiring more INS inspectors and green card processors.
There are winners and losers in this policy framing. The winners include armament makers, some large corporate employers in particular sectors of the economy, various types of lobbies, employers of undocumented immigrants generally insofar as employers’ sanctions are not seriously enforced, and the growing numbers of smugglers whose fees and whose business have increased sharply as our policies have made border crossing more difficult and risky.
The losers include citizens whose taxes are paying for a far larger and costlier border control operation that is not even reducing illegal crossings—the intended policy outcome for supporting all those Congressional authorizations for budget increases. The losers also include the migrants themselves whose crossings have become far more difficult, dangerous, sometimes deadly as well as costly given the greater need for using a smuggler. They also include the INS inspectors who have not seen sharp increases in their numbers and resources to enforce employers’ sanctions, and the overworked and understaffed processing units at the INS.
But the problems go deeper. The emergent multi-bit immigration reality briefly and only partially described earlier is an increasingly active socio-political ecology that undermines traditional notions of border control. Further, this emergent reality is partly fed and strengthened by the fact that the estimated 500 annual deaths among illegal crossers due to current US border control policy are becoming unacceptable on normative grounds—whether social justice norms, human rights, or religious values.
Any policy bits to match the new immigration reality?
Accepting the fact of a new emergent immigration reality and the serious limitations and even unsustainability of militarized borders does complicate governments’ efforts to control immigration. The EU offers some interesting options, even though EU member states are foundationally different from the US in their political culture.
Over the last two decades, the EU has actually accumulated a series of innovations that move it towards governing, rather than controlling, immigration inside the EU. This move towards governing is gaining strength even as national governments in the EU continue to speak of unilateral control. Yet when it comes to immigration from outside the EU, strengthening control is what the EU has been gearing up to for the last decade. We can learn something positive from the EU’s internal efforts, and, in a way, the EU can learn something negative from the US border control policy—how not to do it.
One foundational outcome from years of EU negotiations that can illustrate the specificity of the EU approach and its contribution to notions of governing rather than controlling immigration is the Treaty of Amsterdam (2003). It formally allows a shift of immigration policy and its coordination out of the third pillar, where it gets handled as part of justice and home affairs, to the first pillar, whose legal provisions become part of European Community law and are binding on each member state. Further, it is possible to argue that since individuals will have the legal capacity to invoke first pillar laws and bring them to bear against member states, the changes of the Treaty of Amsterdam may give the judiciary, here the European Court of Justice (ECJ), more authority over immigration too. The treaty calls for enforcement of non-discrimination principles within member states, with enforcement through the European Court of Justice. The treaty’s formal commitment to human rights could strengthen the ECJ’s authority over member states and contribute to strengthen the notion of rights-bearing individuals who can move across the member states with their portable rights.
More generally, beyond human rights there is a far larger case to be made: multiple different types of international law are becoming part of the fabric of national law, both through legislative law making and through use in judges’ interpretations. This contributes to partly denationalize aspects of national law. Thus one of the foundational transformations lies in the extent to which a good part of the EU’s project inhabits and gets structured inside the complex institutional apparatus of the state. Similarly, in the case of the US, much of globalization gets structured inside the state. In both cases, this often happens in the language of the national—national law, national economic regulations, national monetary policy, and so on. We need to decode this language of the national rather than take it at face value: though formulated as national, these structurations may have little to do with the national as historically constructed.
Finally, a few words on borders. Borders are institutions, and as such they are undergoing change and stress. In my research I have tried to track the formation of a whole range of novel types of bordering capabilities—types of controls that are not embedded in the notion of geographic borders as produced in the historic process of nation-state formation.13For more detail see Sassen 2006, op.cit. chapter 9. These bordering capabilities do not pivot on geographic border controls. They are highly technical capacities which have multiple institutional locations beyond the “border” per se. For instance, in global finance, there are multiple such bordering capabilities (many inside financial institutions rather than in government offices) that have replaced the older traditional national borders. Free trade agreements certainly open up countries, but multiply processes of certification at point of production, again not the typical border. When “borders” are looked at through these lenses one can see a wide range of possibilities. The sharpest and most developed case at this time, when it comes to these new bordering capabilities and people flows, are the portable rights of the new transnational professional class. These rights are derived from free-trade agreements, discussed earlier, as well as the IMF and other institutions deeply engaged in global processes; as rights they become operative inside the countries that are signatories. There is no similar regime for working-class migrations today, but it is one possible regime in the future, perhaps as part of a flexibilizing of migration flows (which would enable return and circular migrations).
This paper has examined the institutional insertions of the immigration question in a far larger and complex map than current immigration law can fathom. We need more such close examinations in order to understand the micro shifts that are amounting to a new immigration reality. This new immigration reality comprises a variety of bits. These include changes in the position of the state in a world that is not only increasingly interdependent but also one where the national is itself being partly denationalized through state action. This begins to unsettle the distinction national-foreign, as epitomized by Fox’s visit described earlier and by more foundational shifts, such as the institutionalizing of the human rights regime and claims for rights made by unauthorized immigrants in all major immigration countries. Immigration is beginning to play on a far broader register than that represented by the “immigrant” in her relation to immigration policy narrowly defined. There is a whole new research agenda, well represented in this website, that is not concerned with the familiar issues of geographic border controls and the binaries of inside/outside. Such analysis dislodges the immigration question from narrow national versus foreign dimensions as made emblematic in militarized border control. It helps expand the analytic and policy terrain within which to examine the question of immigration, immigrant rights, and the governing of immigration.