Big Data and Migration- What's in Store?

Unless you've been assiduously avoiding the internet the last few years, you've probably heard the term "Big Data" thrown around and witnessed the breathless speculation that generally accompanies its discussion. Interestingly, I haven't yet seen anyone talking about what the implications of the imminent big data revolution will be on migration studies, an area which is defined by a distinct lack of data. By way of starting a conversation, allow me to offer my predictions on what the impact will likely be.

I posit two main impacts of big data on migration studies/policies/ politics. One positive, one negative.

Positive: 1. It will allow scholars, NGOs and activists to track flows of migration like never before, making humanitarian interventions easier, allowing us to fight back against fear-mongering false statistics in the media, and providing new ways of preventing statelessness and human trafficking.

Negative: 2. It will allow governments to track undocumented migrants with an unheard of ease, prevent refugee flows from entering their countries, and track remittances and travel in ways that put migrants at new risks.

In short, this proliferation of knowledge could easily cut in both ways. In the following, I will describe the above scenarios in greater detail, and offer my opinions as to how we can (attempt to) avoid the downsides of the impact of big data on migration.

How Big Data Provides Information about Migration

In Big Data: A Revolution That Will Transform How We Live Work and Think, authors Viktor Mayer-Schonburger and Kenneth Cukier describe how a proliferation of data, thanks largely to the internet, has made new advances in prediction and analysis possible (and exploitable by those quick enough to grasp how to use it.) For example, Google, by analysing search data from past flu outbreaks, is able to make predictions about the next flu outbreaks with more accuracy than the CDC could ever have previously dreamt. Facebook uses your likes and interactions (along with other metrics) to guess what products you might be most interested in, just like Amazon, compiling the buying history of millions of customers, is able to make a much better guess about what you are going to buy than your book club.

The point is, having access to massive amounts of data can often be a more accurate predictor of behavior than the traditional polls or surveys, which rely on random samples or other means. The power of big data to predict is far from being totally harnessed, but as more people use the internet and offer up information about themselves, their interests, moods, and consumer behavior, the analysis becomes more accurate.

So how exactly does this relate to migration data? In several ways:

• Self-provided information: Ever changed your location on facebook or twitter to reflect a move? Tagged pictures from your European vacation with each country and city you visited? Signed into FourSquare?
• Passively Collected Information: As you've probably realized post-Snowden, information about flights, wired money transfers, international emails and text messages, and even GPS locations are stored, and available to some for analysis. 
• Searches: If you have auto-complete turned on for google, take a look at popular migration-related search chains. "Moving to San Francisco", "USA immigration requirements" "EU asylum lawyers"- all of these could be indicators of intent to migrate or move. This information is also collected and saved.

By using combinations of these data types, it boggles the mind what might be possible. For example, why not compare official state statistics of individuals from say, Romania, registered in say, Berlin. Then compare this against facebook profiles that have hometowns in Romania and current locations in Berlin to see who isn't mentioned.
Or, predict the next refugee wave by tracking purchases, money transfers and search terms prior to the last major wave.
Or connect the locations of recipients of text messages and emails to construct an international network and identify people vulnerable to making the big move to join their family or spouse abroad. (If the NSA can do it, why not Frontex?)
Or, an even more sinister possibility- identify undocumented migrant clusters with greater accuracy than ever before by comparing identity and location data with government statistics on who is legally registered.

I know what you're thinking: this might illuminate the behavior of rich kids with smart phones, but for the most vulnerable and poor among us, their interaction with technology is likely to be far more limited. That certainly may be the case, but even the least technologically connected amongst us might well use cell phones and send text messages, shop at companies that utilize data mining, or send money to family members using wire transfers. Further, the nature of Big Data makes this increasingly unimportant- the masses of data that are available make guesses about the rest of the population possible, and can identify trends that include you, even if you didn't contribute to the "research."  As Mayer-Schonburger and Cukier point out, big volumes of data may be "messy" or contain lots of red herrings and inaccuracies, but their size tends to make them more accurate than samples regardless.

The Good News for Migration Studies

All this proliferation of data would be a marked departure in the field of migration studies. As Jeff Crisp wrote in his well-known 1999 article, "Who Has Counted the Refugees":

Despite the centrality of statistics to the field of refugee studies, scholars working in this area have been remarkably inattentive to the issue of quantitative data. While all of the standard works on refugees are replete with numbers, few even begin to question the source or accuracy of those statistics. Scholars have generally been content to rely on figures offered by the two leading producers of refugee statistics - UNHCR and the US Committee for Refugees (USCR) - despite the fact that the figures presented by the two organizations very often differ!

Now, more than a decade later, a lack of statistics on migration and ethnicity continue to plague the field of migration and human rights more generally. We still rely on UNHCR estimates, and undocumented migrants are no closer to being counted in official registers than before. The Open Society Foundation has long been pushing for European governments to collect racially disaggregated statistics in order to comply with European law and illuminate inequality. In a recent blog post for Open Society by Costanza Hermanin ("Making 'Big Data' Work for Equality"), she pointed out the irony of the PRISM scandal when European governments can't seem to collect basic data:

As the recent PRISM program scandal in the United States highlighted, corporations and governments can gather information of any kind about us. Your emails, the foods you like, where you travel, and your shopping preferences are all examples of personal data that can be mined for profiling purposes. It’s ironic, then, that when discussing ethnic minorities or people with disabilities in Europe, “no data available” is a common excuse for not doing more to fight discrimination and inequality.

In addition to making it more difficult to fight discrimination, a lack of statistics (or just as bad, incomplete and inaccurate data) can easily be exploited by irresponsible media or right wing politicians. As I pointed out in a recent article, when it came to media coverage of a supposed "influx" of Roma from Bulgaria and Romania in Germany, the thrilling headlines and distorted statistics may have had real-world consequences for citizens of the two countries.

I don't have the space (or will) to elaborate on all the different ways that more accurate quantitative data could impact the study of migration, but I think its no exaggeration to say the impact could be major. In addition to proving evidence of discrimination and taking the air out of anti-immigrant hyperbole, it could mean any number of advances, such as identifying people at risk for human trafficking, determining what is most needed in a refugee camp,  and learning much more than we now know about identity, diasporas and remittances.

Needless to say, much of this information could also be used for less than noble purposes by governments, corporations, and hate groups, so let me now turn to the downsides of big data.

The Bad News and What to Do About It

via Indymedia

If you've followed me for this far, I have no doubt that the thought has crossed your mind that this whole Big Data thing could also be really bad news for migrants. After all, one of the reasons that we are lacking statistics is because so many migrants, stateless persons and refugees are forced to live in the shadows, unable to claim recognition at the state-level in fear of deportation under restrictive immigration laws. If its bad now, how bad will it be when governments have practically unlimited means for tracking people and their movements? (I don't want to get into the many possibilities for unethical behavior here, lest I be charged with giving them ideas.)

Far be it from me to dissuade you from letting the Gattaca-like scenario unfold in your head. I certainly do think that this may be where we are heading. But that is why it is so important that the "good guys"- people interested in studying rather than criminalizing migration, as well as human rights advocates- are ahead of the curve and preparing for what Big Data will mean for us.

I would argue that this unprecedented opportunity to gather real-time information about migration might illuminate all sorts of policy alternatives to detention and deportation. If immigrant-rights advocates get the jump start, we may have the chance to change minds and hearts, even laws, before the data is used in ways that violate human rights.

And to the extent that isn't possible, it will be necessary to prepare. From a legal perspective, it will be crucial to determine in what ways tracking and identifying of migrants is possible so that we will know what sort of threat big data poses to due process, privacy and the right to freedom of movement. We will need to be familiar with techniques used for tracking migrants or preventing family reunification so that can develop strong arguments against them, even at the same time as we wish to access many of the same stats ourselves for study. We will need to know all the legal justifications for data mining, as well as all the possible legal protections to prevent it. (A few good PhDs on the subject would be a good start.) In short, in order to fight the dangers of big data, it will not do to turn a blind eye and hope that governments do the same.

Is big data a double edged sword? Absolutely. But we ignore its potential impact on migrants and migration at our own peril. After all, at the end of the day we are just talking information here. Data is neutral, its all in how its used that makes the difference. If we allow ourselves to overtaken by governments and their contractors in the race to access and shape that information, then we are taking a giant risk that governments will use big data for good- a bet that historical experience suggests is extremely naive.

I'd love to hear your thoughts and criticisms in the comments. 

New Report Draws Attention to UK's Stateless Children

Via Voice of Russia

A new BBC Inside Out episode is causing a flurry in UK news outlets after uncovering a hidden problem: hundreds of stateless children living on London's streets, at risk of exploitation or turning to crime. The report identifies migrant children whom possess no means of identification and are unable to take advantage of social programs, forcing some to turn to crime or prostitution.

One 17-year-old, who fled Libya without her family in 2009, said: “I have to do things that make me sick and ashamed for a few pounds, sometimes even pennies - just so I can eat or get somewhere to sleep for one night.” (The Week)

(If you live in the UK you can watch the clip here.)

This is obviously a horrible problem, but I can't help but wonder: what is the deal with calling all of these kids stateless?

New figures show at least 600 children in the capital are stateless — without a passport or official documentation linking them to their country of residence — and campaigners fear that number is rising.
Many of London’s stateless youths came to the UK legally but were never officially registered, meaning they cannot access education or apply for social housing. For teenagers like 17-year-old Ugandan-born Tony, attempting to become a legal citizen retrospectively can be virtually impossible. (London Evening Standard)

As we know from the 1954 Statelessness Convention, the definition of a stateless person is "a person who is not considered as a national by any state under the operation of its law" (Art. 1). Not possessing a passport or documents might be a feature of statelessness, but its not enough. For example, Ugandan boy Tony, above, has a Ugandan father who kicked him out of his home at age 14. So although he is in an awful, heart-wrenching situation, Ugandan boy Tony is not "stateless", he is more likely Ugandan, and undocumented.

I bring this up because it may hurt the cause to call all these children stateless when in fact they are more likely "legally invisible," at risk of statelessness, or undocumented. The international human rights laws and UK immigrations laws applying to those groups are different, and are not as generous. If Tony were in fact stateless, and born in the UK, he would have a right to citizenship there that would simplify his problems tremendously. However, being legally invisible or undocumented he has limited options, at least under migration law. And that is a real problem- one that deserves more attention given the human rights issues at stake for these children.

The presence in each of these pieces of a disclaimer that most of the kids actually arrived in the UK legally suggests the reason for such a misnomer. If the kids were "illegal immigrant" homeless, would it be a news story? Does anyone feel sorry for kids with more complicated immigration issues, who aren't refugees or stateless?

If the public is outraged or concerned about this problem, it certainly doesn't help to call it something else to arouse additional sympathy. Its not necessarily the UK's "Homeless Stateless Kids" problem... might be more like the UK's "Homeless Kids" problem. And whether these children are actually stateless, legally invisible, or undocumented, don't they deserve some help in getting off the streets?

Read More:
Mapping Statelessness in the UK (Report from UNHCR and Asylum Aid)
Interview: Nando Sigona of Refugee Studies Centre (The Voice of Russia)
No Home, No Country, No Future: The 600 Stateless Children Living on London's Rough Streets (Evening Standard)
Hundreds of Stateless Children Live on UK City Streets (The Week)

And meanwhile, a report from Greece doesn't mince words: Teenage Migrants Trapped in Greece (IRIN)

New Report: Unnacompanied Minors on the Rise in Central America

The Women's Refugee Commission has released a new report on unaccompanied minors entitled,
"Forced from Home: The Lost Boys and Girls of Central America". According to the report, the number of child migrants apprehended traveling to the US from Guatemala, Honduras, and El Salvador has almost doubled .

The research conducted by the WRC confirms that the continuing problem of gang violence, coupled with heavy-handed tactics of police that tend to consider all youngsters potential gang members, has led to the upswing and created a "lost generation." In addition, girls are at a particular disadvantage since they are vulnerable to both gang violence and gender-based violence. Although there is also poverty in these countries, the majority of children seem to be fleeing from violence.

The conditions in Central America have deteriorated to such a point that, when the WRC asked the children if they would risk the dangerous journey north through Mexico all over again now that they had direct knowledge of its risks, most replied that they would. They said that staying in their country would guarantee death, and that making the dangerous journey would at least give them a chance to survive. Many of them expressed a longing for their homelands, stating that they would not have left but for fear for their lives (at 7).

Since the conditions in these countries don't seem to the changing (and let's recall that the US has contributed to the Central American gang problem significantly) it makes sense for the Government to adjust certain measures to ensure the human rights of these children are protected.

The report outlines a number of ways for the government to improve its response, but I would like to emphasize one in particular: unnacompanied minors are not entitled to legal assistance or lawyers, and often have to defend themselves from deportation in court. This is just patently unfair and should be the first thing to change. When a child's life is in the balance, he or she should have a better shot than an elementary grasp of a foreign legal system and 15 minutes in front of an impatient judge.

The entire report is worth a read, and is available for download here.

Read More:
 Gangs without Borders (SFGate)
National Center for Refugee and Immigrant Children
Gang-Based Asylum Claims (Immigrant Law Center of Minnesota)

Excerpts from Arizona V. US

Last week the Supreme Court heard arguments in the case Arizona, et. al, v US concerning the god-awful Arizona immigration law SB 1070. You can now read the whole transcript online, but in case you're not in the mood to read the whole, depressing thing, I thought I would provide some salient excerpts below.

The first issue that the justices really pounced on was the section of the law pertaining to holding a person for suspected immigration violation. The justices were concerned that the time taken to check on the suspect's immigration status could result in them being imprisoned for unreasonable stretches of time, and Paul Clement, atty for Arizona, emphasized that length of imprisonment would still be governed under the 4th amendment.

"JUSTICE GINSBURG: But how would the State officer know if the person is removable? I mean, that's sometimes a complex inquiry.
MR. CLEMENT: Well, Justice Ginsburg, I think there's two answers to that. One is, you're right, sometimes it's a complex inquiry, sometimes it's a straightforward inquiry. It could be murder, it could be a drug crime. But I think the practical answer to the question is by hypothesis, there's going to be inquiry made to the Federal immigration authorities, either the Law Enforcement Support Center or a 287(g) officer.
And presumably, as a part of that inquiry, they can figure out whether or not this is a removable offense, or at least a substantially likely removable offense.
JUSTICE KENNEDY: Suppose it takes 2 weeks to make that determination, can the alien be held by the State for that whole period of time -MR.
CLEMENT: Oh, I don't think -
JUSTICE KENNEDY: -- just under section 6?
MR. CLEMENT:I don't think so, Your Honor, and I think that, you know, what -- in all of these provisions, you have the Fourth Amendment backing up the limits..."

Next, Clement had a chance to make his argument on federal preemption. Whenever states get into areas of governance that usually dominated by the federal government, there is the potential for a claim that the federal law "pre-empts" and overrules the state level law. Let's see Clement's argument.

"I do think as to section 3, the question is really -- it's a provision that is parallel to the Federal requirements, and imposes the same punishments as the Federal requirement.
So it's generally not a fertile ground for preemption. But of course, there are cases that find preemption even in those analogous circumstances. They're the cases that the government is forced to rely on."

He then goes on to differentiate the AZ law from the ones in other federal preemption cases that the government is likely to bring up. However, the gist of the argument is always that the law is duplicated, so its hard to say that it conflicts with the federal requirements.

"And so I think the right analysis is really the analysis that this Court laid out in its Whiting decision, which says that in these kinds of cases, what you look for is whether or not the State scheme directly interferes with the operation of the Federal scheme."

Next up to bat we had the atty for the government, our hero Donald Verrilli. Verrilli comes out immediately with the main federal preemption argument:

"GENERAL VERRILLI: Mr. Clement is working hard this morning to portray S.B. 1070 as an aid to Federal immigration enforcement. But the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement, and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State.
That is something Arizona cannot do, because the Constitution vests exclusive -JUSTICE
SOTOMAYOR: General, could you answer Justice Scalia's earlier question to your adversary? He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government."

After the assist from Sotomayor, Verrilli spends the rest of the time getting picked apart by Roberts and Scalia.

CHIEF JUSTICE ROBERTS: You think there are individual cases in which the State can call the Federal Government and say: Is this person here illegally?
GENERAL VERRILLI: Yes, certainly. But that doesn't make -CHIEF
JUSTICE ROBERTS: Okay. So doesn't that defeat the facial challenge to the Act?

Problematically for the government, they didn't rely on the possibility of racial profiling as a reason to challenge the law, although that was the constant "elephant in the room" of the argument.

GENERAL VERRILLI: ... Now, we are not making an allegation of racial profiling. Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -

JUSTICE SCALIA: Sounds like racial profiling to me.

From here, it gets really messy. After failing to sell the preemption claim (Scalia and Roberts interpreted the Arizona statute as "helping" the federal government) Verrilli focused on the foreign relations aspect.

VERRILLI: What they're going to do is engage, effectively, in mass incarceration, because the obligation ...[is]...to enforce Federal immigration law, which is what they claim they are doing .... And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present. That ... poses a very serious risk of raising significant foreign relations problems.And these problems are real. That is the problem of reciprocal treatment of United States citizens in other countries.
JUSTICE KENNEDY: So you're saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No.

UGH. As we can see, this did not turn out well. The real problem at stake in SB 1070 is that police can just pull over any Latino, incarcerate them for a while and ask the government to figure out their immigration status. Problematically, due to VAWA, TPS, and asylum, this isn't always the straightforward question that one might think. So, because of our complex immigration laws in combination with this terrible statute, the result is a situation that allows for the incarceration and punishment of a section of the population to the extent that, even if they are legally here, they won't want to live in Arizona any more. And that is the point of the law. "Attrition through enforcement."


Harassing and annoying every Latino citizen of Arizona is racist, inhumane, and embarrassing for the US. But is it unconstitutional? Its going to take some fancy footwork to make that claim from the arguments in this case.

Plan and UN to Partner up for Birth Registration

According to a press release from the Plan International, a major child's rights NGO, they are announcing a partnership with the UN to promote universal birth registration. What's more, the campaign focuses specifically on children at a risk for statelessness.

Plan and UNHCR will conduct coordinated advocacy at all levels and exchange information on developments on birth registration. The efforts will consider specific needs and concerns of asylum-seeking, refugee, internally displaced and stateless children, as well as children at risk of becoming stateless. The two agencies will jointly identify priority countries and seek to address possible gaps to ensure that every child is registered at birth.

  Sounds like very good news for stateless and legally invisible persons! Naturally I think its a shame that the program focuses on children, when there are still many adults who have never been registered and do not have valid ID or citizenship. However, its a great start and fantastic timing- riding the coat-tails of a huge year for statelessness and UNHCR's big anniversary campaign.

Wonder what countries will be picked out as "priorities?' We'll be following closely.

Plan and UN Join Forces on Birth Registration

Non-Citizen News Roundup

U.S. Atty Fein at a press conference announcing the indictment, via AP

US: Federal charges have been brought against members of the police force in East Haven, Connecticut for charges ranging from excessive force and false arrest to conspiracy. The basis for the charges is years of harassment and violence against the immigrant community.

"They stopped and detained people, particularly immigrants, without reason, federal prosecutors said, sometimes slapping, hitting or kicking them when they were handcuffed, and once smashing a man’s head into a wall. They followed and arrested residents, including a local priest, who tried to document their behavior."

So despicable, but sadly common in other small towns in America, where picking on immigrants is a pastime as well as a source of income. (As many immigrants, lacking bank account, carry large sums of cash on their person.) Let's hope this action by the Justice Dept. sends a message to police officers like those in East Haven that their racial profiling and bullying will no longer be tolerated. 
NY Times: Police Gang Tyrannized Latinos, Indictment Says
CT.com: Feds Indict 4 East Haven cops in racial profiling abuse case, more may be on the way

Kuwait: 61 of the bidoon/ stateless protestors (that we discussed last week) are being imprisoned for an additional 3 weeks pending further investigations into the protests. The charges include assaulting police and instigating an illegal gathering, although the news out of Kuwait suggests if anyone turned the protests violent, it was police.
AFP: Kuwait detains Stateless Protestors for 3 Weeks

Australia: More than 50 persons in Australian detention are recognized as refugees but unable to leave due to having failed security tests. The security tests have expanded their definitions of threats in the last years, and having being classified as a threat most countries are unwilling to receive the individuals (understandably.) The refugees are not informed why they failed, nor are they accepted by their home country, leaving them in legal limbo without much hope of a resolution. As the Australian human rights violations stack up, you really have to wonder what their government is thinking.
ABC Sydney: Darwin refugees in limbo after failing ASIO tests

On Topic around the Web

Everybody learns in different ways (or at least that's how my Algebra teacher used to console me). So while some people seeking to understand non-citizen issues may be best served by a dry and factual NGO report, others may get the picture better from an evening news piece, a politician's rant, or a short story. Here are a few interesting pieces on non-citizens that may be worth a read or a look to round out your knowledge. 

McSweeney's has a fantastic series of articles by an anonymous "Bible-college educated evangelical" Christian who decided to try out her missionary skills on a group of Somalian refugees in Portland. The resulting tales are funny and often heartbreaking, drawing a comparison between people trying to adjust to a entirely new way of life, and those among us who feel like outsiders wherever they are.
Assimilate or Go Home: Dispatches from the Stateless Wanderers by DLM

Aleksander Hemon, author of several books about the immigrant experience including the bitter and beautiful novel "The Lazarus Project," has a piece out in Guernica Magazine this month about ethnic education in Bosnia and Herzegovina. This look at how the "ridiculous and demeaning" peace-process has played out in the classroom offers a cutting intro into a complex and fascinating subject.
National Subjects by Aleksander Hemon

Surprising Europe, a series from Al Jazeera, has some great pieces covering the experience of African Migrants in Europe. The episode below is especially salient, about undocumented migrants in Berlin and Amsterdam trying to live inside the paper maze.
Running out of Luck- Surprising Europe

And last but not least, below is a video by the Serbian NGO Praxis (whom I work with) regarding the situation of the legally invisible in Serbia.

South Africa: Legal Changes Hurt Asylum Seekers

It's another case of a huge backlog of asylum seekers persuading the government to make decisions that are not well thought out.

South Africa has a huge number of asylum seekers- UNHCR estimates just under 230,000- most of whom originate from Zimbabwe, supplemented by others from the Great Lakes region and the Horm of Africa. Starting in 2009, (perhaps overwhelmed by the numbers) the South African government took a generous policy towards Zimbabweans fleeing Mugabe's regime. Under a "special dispensation," refugees were entitled to remain in S.A. for 6 months, seek employment, and take advantage of educational and healthcare opportunities while their asylum applications were being processed, all without any form of documentation. (Although the dispensation was designed to assist Zimbabweans, as you might be able to guess, the "no documents" feature enabled a range of different nationalities to take advantage of the law.)

Now the government is back-tracking, concerned that economic migrants are abusing a system designed to protect "real" refugees. The department of Home Affairs has resumed deportations, and in the following weeks they will launch an inquiry to the minimum rights asylum-seekers are entitled to, and likely lift the dispensation for Zimbabweans as well as block rights to education and employment. The result could be thousands of asylum seekers in legal limbo, awaiting the outcome of their asylum application while unable to work or study. These developments, in conjunction with harsh announcements from the government and the closing of two refugee facilities, seems to signal a shift towards a harsher asylum regime in South Africa. As one government spokesman stated:

"South Africans must feel safe. If we're not able to control our illegal immigration, people won't feel safe."

It is understandable that providing education and/or employment for thousands of refugees is a costly measure. But the opposite can be ultimately be more expensive: thousands of individuals awaiting the outcome of their claim, turning to begging, crime, or black market employment to make ends meet. Which option do you think is safer for the people of South Africa? And in the event that the move forces massive returns to Zimbabwe as some fear it might, there is the question of whether S.A. is meeting its treaty obligations, particularly as pertains to non-refoulement.

In the end, the real question for South Africa is: is there a middle ground between all or nothing for Zimbabwe's asylum seekers?

Is it a good thing? Sweeping changes to US ICE

The NY Times is reporting  that they have obtained a document describing the new immigration priorities policy that Homeland Security will kick off this week- and it is a big deal, effecting some 300,000 cases. Let's break it down.

The policy will be aimed at instructing all actors in the deportation process- from immigration agents, to judges, to prosecutors- to streamline their cases to fit the following priorities: close out cases of non-dangerous undocumented immigrants, and speed up deportations of criminals. According to the Times, the policy is intended to:

scale back deportations of illegal immigrants who were young students, military service members, elderly people or close family of American citizens, among others.

For immigration agents, this means releasing (or perhaps not catching in the first place) people that are not dangerous criminals, repeat offenders, or national security risks. For prosecutors, this means exercising discretion in which cases to bring before the judges. And for judges, this means a more lenient approach to immigration law violators. Sounds like a good deal, right? Particularly in comparison to the heavy-handed approach the Obama administration has taken in ordering over 400,000 deportations (the most of any President in recent memory) in each of the first three years of his presidency. Perhaps that was an effort to clear out the courts to make way for this more liberal policy?

However, there is still much to be concerned about. I visited an immigration detention facility not  long ago, where most individuals held were repeat offenders or criminals. However, the most frequent crime was "loitering," that is, dwelling outside of a hardware store or similar, waiting for work. Will the new policy consider people like this to be deportable?

In addition, while Homeland Security pushes a discretionary, flexible approach, the states are in some cases pushing the opposite message. Alabama, Georgia, Arizona and other states have laws on the books making police officers responsible to some degree for enforcing immigration laws- will they also get the memo that passing non-violent undocumented youth into federal hands is likely to lead to an eventual release? And which level- state or federal- is more likely to have the more immediate impact on immigrant's lives?

At the end of the day, the mish-mash of approaches taken by the US government in the last few decades leads to fear and confusion among immigrants primarily, but also to ample confusion among the law enforcement professionals meant to interpret these laws and policies on every level. It is encouraging to see the Obama administration taking the heat off non-criminal and youth immigration law violators, but until we see Comprehensive Immigration Reform it seems hard to believe that everyone that needs to know will get the message.

US to Review Cases Seeking Deportation (via NY Times)

Non-Citizen News Roundup

Dia de los Muertos in Mexico City

Mexico: Maybe its not strictly relevant, but it is timely: Brujas and Brujos in Mexico find themselves in high demand for problems related to drug cartels. Some witches charge for protection from extortion, or use their senses to find a missing kidnapped relative. And its not just victims turning to the craft: some of the wizards and witches report visits by cartel members and police officers as well.
Mexicans turn to witchcraft to ward off drug cartels (via NY Times)

Australia: Sad news this morning as a capsized  boat carrying asylum seekers left at least 8 dead and 10 still missing,. The boat carried some 70 Iranian, Afghan, and Pakistani asylum seekers determined to make the passage from Indonesia to reach Australia's shores. The incident is causing a big rehashing of the Malaysian swap deal. As Immigration Minister Chris Bowen stated, "it is a fact that when you have more boats coming to Australia you will see more deaths." (So it's either flout the 1951 Convention OR death at sea? Is there possibly a third option?)
10 asylum seekers still missing off Java  (via Sydney Morning Herald)
Australia shock at asylum boat tragedy off Indonesia (via BBC)

Croatia: At a meeting in Zagreb on birth and civil registration, the UNHCR urged Southeastern European countries to accede to the 1961 Convention on the Reduction of Statelessness. Currently, both Croatia and Bosnia and Herzogovina have acceded, but many other nations in the region have not. Among other protection, the 1961 convention provides that a child born in the country who would otherwise be stateless receives the nationality of the birth country. The UNCHR argued this would help the plight of the region's Roma, who currently represent a majority of the stateless and legally invisible. I couldn't agree more.
UNCHR drives effort to reduce statelessness in Southeast Europe (via Alert Net)

Retroactive Denationalization of Haitians in Dominican Republic

Haitian men sell hats in a Dominican Market -Photo by Dominic Arizona Bonucceli

Between dictators, natural disasters and crushing poverty, life in Haiti has been incredibly rough for years. (Maybe even the last 400 years or so, but you can ask France about that.)  So its no surprise that the country sees a number of migrants leave its borders seeking a better life. Perhaps no country is more aware of this than neighboring Dominican Republic, home to a large Haitian migrant community as well as to a significant population of people of Haitian descent. Now, in an effort to cut down on illegal immigration, the Dominican Republic has taken drastic measures that have rendered many from this population effectively stateless.

The border between the two countries is very porous, and for decades there has been significant labor migration from Haiti to Dominican Republic (often legally and by invitation). There was seasonal migration between to the two countries, particularly for seasonal sugar-cane workers, but many other families in the last century have settled permanently in the DR. These families benefitted from a generous nationality acquisition policy: descendents were entitled to citizenship based on jus soli, i.e., being born on the territory made them Dominican citizens. However, in January 2010 there was a change to the Dominican constitution that effectively put a grandfather clause on citizenship.

Article 18: Nationality. They are citizens:
...(3) Persons born on natural territory, with the exception of sons and daughters of foreign members of diplomatic or consular services, foreigners that are in transit or reside illegally in Dominican territory. They are considered in transit all foreigners as defined in the laws of the Republic. (Translation mine.)

Now, in order to take advantage of D.R.'s jus soli territorial citizenship, one must not only be born in the country, but also born to legally residing Dominican parents. The effect was to instantly render up to 1 million people stateless, including many whom are 3rd and 4th generation Dominican residents.

Understandably given the magnitude of the population, this policy has been difficult to implement in practice. After all, many of Haitian descent already have identity documents, were registered at birth, and until this time considered themselves Dominican citizens. The government now seems to be using piecemeal tactics to denationalize- denial of document renewal, refusal to issue copies of birth certificates, erasure from civil registries, and other insidious means to take rights away from people of Haitian descent. 

But although the tactics are sporadic, Haitian-Dominicans are feeling the effects. Without access to documents they have limited freedom of movement, can't attend to college, drive, or marry. In short, they are deprived of the right to a legal personality.

There has been a recent upswing in attention to this issue. In fact, today there is a brief hearing on the subject at the Inter-American Commission on Human Rights with appearances by the government and representatives of NGO's. In a few days there will be a conference at Georgetown University on the same subject. Also there will apparently  be a conference at the end of the year in concert with UNHCR aimed at reducing statelessness. However, where I'm standing, this case is very similar to Kuric (the civil registry erasure case) and is ripe for litigation under any number of international legal documents which the Dominican Republic is clearly and wantonly violating.

Here is the 2010 Constitution of the Dominican Republic (in spanish): Consitution de la Republica Dominicana

Here's a very enlightening PBS video on the subject: In Dominican Republic, Haitians Grapple with Stateless Limbo
***Update: Here is the press release from the State Dept. after the event at Georgetown University: Statelessness and the Dominican Republic

Alabama Latinos protest "Juan Crow" Immigration Law

Scenes from an protest in June, photo by Mark Almond/ The Birmingham News

Good news out of Alabama today, as Latinos across the state stay home from work as a show of solidarity against the dreadful, recently upheld immigration law (HB-56). The law, which is likely the most punitive in the country, requires a number of harsh measures aimed at making the state as uncomfortable as possible for undocumented migrants. As its written the law has provisions that make it a crime to transport undocumented immigrants (because you can tell, just by looking at them) and makes it illegal for colleges to enroll undcocumented students (because, once again, university admission counselors are perfectly equipped to make immigration status determinations.)  Most importantly, the law requires police to verify immigration status during many routine encounters, such as traffic stops. Not only that, but in a move that brazenly violates federal jurisprudence, the law requires schools to verify immigration status while enrolling children. The effect of these measures is to encourage police harassment of Latinos, to cause children to stay home from school, and to reduce an entire segment of the population to living in fear and uncertainty.

That's why its very encouraging to see Latinos across the state- both documented and undocumented- staying home from work to peacefully protest.

"We want the mayor, the governor, this judge to know we are part of the economy of Alabama," said Mexican immigrant Mireya Bonilla.

Its important to note here that even US citizens are participating in this protest, according to reports. Given the nature of immigration status, it is more than clear that a law that provides for measures against people "suspected of being illegal" is code-wording for  Latino. State governments need to know that when they pass laws that broadly encourage racial profiling and discrimination against Latinos, that the legally-present won't keep silent so as not to be lumped in with the undocumented.

CBS News: Hispanics Skip Work to Protest Immigration Law
The Birmingham News: Looking at the Human Side of Alabama's Immigration Law

Human Rights Watch on Immigrant Injustice in the US

Grace Meng, a researcher from Human Rights Watch, has a great commentary today about the decline in living conditions for undocumented immigrants in the United States.
We already know that the conditions in states that have passed punitive immigration laws (eg: Alabama) have deteriorated significantly, but Meng points out that the Obama administration's stance has the ICE tormenting undocumented people all over the country.

Undocumented immigrants have long been afraid of government officials, but that fear is now translating into a fear of the justice system. Immigrants avoid going to court in communities from Fresno to Rochester, even to pay traffic tickets or to help a family member with translation, because Immigration and Customs Enforcement agents like to hang out by the courthouse. In North Carolina, a victim of domestic violence told me she would never again call the police for help after being questioned more about her immigration status than her safety the first time she called.

Naturally, this fear is likely to continue until Congress passes some form of Comprehensive Immigration Reform. In the meantime, we will have to hope that SCOTUS gets its hands on the Alabama law or one like it and strikes down punitive laws like this for good.

Does the Refugee Convention Provide rights for non-Refugees?

The most elementary right owed to refugees is that they not be returned, or “re-fouled” to their home state where they are endangered. The classic expression of the principle is found in the 1951 Convention: “No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontier of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a certain social group or political opinion.”[1] The principle of non-refoulement is becoming, if it is not already, considered a “peremptory norm” of international law that binds all states. [2]     

In earlier treaties and in the original drafts of the 1951 Convention, the duty of non-refoulement applied only to individuals lawfully present in the state, “refugees who have been authorized to reside in [state party] regularly.”[3] But a shift occurred during the drafting, probably related to the fact that so many refugees were already present in the member states, that a restriction requiring legal entry would have the effect of delegitimizing the majority of valid refugees already present. It seems that parties had already acknowledged this fact, since the discussion of clandestine entry in the travaux is limited to stating that that it is acceptable.[4] Simply put, under the under the principle of non-refoulement any removal at all that puts the refugee in danger is prohibited, whether classified as deportation, forced repatriation, or any other name.[5] This applies to individuals regardless of whether they have been recognized as refugees by the state apparatus.[6] In other words, the principle of non-refoulement attaches at the same moment that you become a refugee under the 1951 Convention, and neither the status determination nor the attaching obligation is dependant on state classifications. This fact is important for undocumented migrants for two reasons

First, it legitimizes illegal entry in certain cases. As a matter of fact, the duty of non-refoulement only applies to individuals already present in the receiving state. As Hathaway explains, “if the duty of non-refoulement under Art. 33 of the Refugee Convention can be claimed only by persons who are, in fact, refugees, then it is not a right that inheres in persons who have yet to leave their country… because Art. 1 of the Convention defines a refugee as a person who resides‘outside the country of his nationality.’”[7] Opening the door to illegal entry is an important feature in and of itself, as it demonstrates that there are occasions in international law when the territorial jurisdiction of a state cedes precedence to the needs to an individual.
 
The second importance of non-refoulement as it relates to clandestine entry is that it creates a presumption that individuals entering a country illegally could potentially have a claim to asylum. This presumption in turn creates a need for a minimum standard of administrative procedures prior to expulsion that could be beneficiary for a person regardless of his or her status.

Status Determinations
If an individual meets the definition of refugee under the 1951 Convention then he or she is a refugee, regardless of whether or not his or her host government or any other body finds otherwise. The 1967 Protocol does not list formal status recognition as a requirement[8] and the Handbook on Procedures and Criteria for Determining Refugee Status (“the Handbook”) explicitly states that a person becomes a refugee at the instant he or she fulfills the criteria. “Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”[9] This being the case, states may not expel individuals without some basic form of procedural due process to determine the validity of their asylum claim, lest they violate the principle of non-refoulement.

UNHCR recognizes that a variety of procedural systems could adequately determine refugee status, and therefore does not suggest one method for doing so, but does lay out a set ofrecommendations for minimum standards when dealing with refugee status determinations that would comply with the Convention.[10] At the least, individuals should have an opportunity to speak to an official familiar with the State’s international obligations, have access to an interpreter, and the ability to remain in the country pending adjudication of his application, as well as the opportunity to appeal at a higher court.[11]

While it would seem that a majority of 1951 convention states do comply with UNHCR’s recommendation in some form, the effect of these basic due process provisions is beneficial to undocumented migrants regardless of whether or not they are enacted. First, they provide an opportunity to engage with the receiving state’s legal system that may lead to residence status, even in the absence of a refugee determination under the 1951 Convention. Second, in States that do not comply, the lack of these standards is a foothold for NGO’s and human rights treaties to attack the treatment of migrants in general.

*Excerpted from a previous memo on the subject of non-refoulement and rights for undocumented peoples.

________________________________

[1] 1951 Convention at art. 33
[2] Daniel Bethlehem and Sir Elihu Lauterpacht "The Scope and Content of the Principle of non-refoulement: Opinion", in Refugee Protection in International Law 107 (Erika Feller, Volker Turk, Frances Nicholson eds., 2001)
[3] Convention Relating to the Status of Refugees, 159 LNTS 3663, Oct. 28, 1933 at Art. 3.
[4] Collected Travaux at A/CONF.2/SR. 5, 16 
[5] Bethlehem and Lauterpacht supra note 126 at 112.
[6] Id at 116
[7] James C. Hathaway. The Rights of Refugees under International Law. 307 (2005)
[8] 1967 Protocol
[9] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ¶ 28, UN Doc.  HCR/IP/4/ENG/REV.1.
[10] Id at 191
[11] Id at 192 (i)-(vii)

Realizing the Dream Act

The Dream Act is one of those legislative imperatives, like the repeal of Don't Ask, Don't Tell, that has been lingering around the halls of the U.S. Congress for years, receiving waxing and waning attention and support as political agendas shift. When Comprehensive Immigration Reform seemed to be gaining headway back in 2006, the DREAM Act was the carrot offered against the many sticks for undocumented immigrants contained in the bill. So what's it all about?

The DREAM Act portal website accurately describes the bill thusly:

Under the rigorous provisions of the DREAM Act, undocumented young people could be eligible for a conditional path to citizenship in exchange for completion of a college degree or two years of military service. Undocumented young people must also demonstrate good moral character to be eligible for and stay in conditional residency.

The basic argument for the DREAM Act is as follows.

1.) Children in the United States are guaranteed access to a K-12 public education, without any regard whatsoever to their immigration status. This has been so since 1983, when the landmark case Plyler v. Doe was handed down by the Supreme Court. The case struck down a Texas statute that would have denied access to public school education by children not "legally admitted" into the US. The logic of the Court (very simplified) was that the 5th and 14th amendment protects all people in the US (not just citizens) against discrimination/ deprival of rights, and therefore in order for the law to be constitutional, it must be rationally related to a substantial state interest. On the contrary, denying education to children was more likely to hurt state interests by relegating the children to a permanent underclass. Not to mention it was especially cruel to punish the children for the actions of the parents (ie, illegally crossing into the country.) Since 1983 this principle has been instituted in school districts across the country and has never been sucessfully challenged.

2.) Having received a high school education, many of these students would naturally have been prepared for the next step in education: a college degree. This makes sense, doesn't it? High school is increasingly geared towards preparation for a college degree, and having been educated in English and participated in the same kind of exams, extracurricular activities, and college prep programs, why wouldn't some or all of these students want to take the next step as many of their classmates?

3.) However, college, for most undocumented students, is an unattainable goal. Not only do most colleges require proof of citizenship, but they have proven particularly loathe to try to delve into the variety of non-illegal immigration statuses (such as temporary protective status or NACARA in cash, all at once. (See, for example: EAE v. Merten.) In sum, undocumented students face massive barriers to a college education, and have to find alternatives for after their high school education.

4.) The same arguments used in Plyler are applicable to college education. Why should students that were brought into the country at a young age be denied the opportunity to improve their career opportunities years later? In a sense, this situation forces otherwise bright and talented students to limit themselves to the kinds of jobs that do not require a college education- meaning that the U.S. deprives its economy of potential doctors, lawyers, scientists, ect, that are so needed. Not to mention that it is just patently unfair to continue to punish these children for the actions of their parents. These are often students that speak English and have otherwise completely assimilated into society, but are cut off from reaching their dreams because of... well, why, actually? I guess that's the point of the DREAM Act.

Apparently, this week will see an intensive lobbying effort on behalf of the DREAM Act by undocumented students in Congress. Whether it will have more success this time around is anyone's guess, but in my opinion it is only a matter of time before we stop depriving our society of the talents of first generation immigrants in this unjust way.

Some interesting articles:

Great old editorial from the NY Times: Pass the Dream Act
Will Perez: A New Civil Rights Movement

And here's a blog, ostensibly by an undocumented youth, about his efforts to get the DREAM Act passed. The Dream Blog

(Photo via Florida Immigrant Coalition Blog)

Les Sans Papiers

[Photo by Johann Karlsson via Flickr.]

Just a quick post to link to an old article about Les San Papiers of Paris.

In Paris Without Papers, and Seeking Visibility

And here is a gallery of images of les Sans Papiers from the Guardian.