To seek asylum or to go without papers? That is the question

The difference between the millions of undocumented migrants who evade immigration control and the thousands who seek asylum is that those who apply for asylum give the Migra and the judges the last word on the possibility of staying in the United States, while undocumented migrants don’t give it up; they leave this chance in their own hands. For every undocumented migrant the Migra detains, three others manage to gain entry to the United States.

José Luis Rocha

Many Central American migrants who recently crossed the Mexican-US border as well as those who have lived in the United States for months or even years now face a dilemma: give themselves up to the Migra or make their own way at their own risk; apply for improbable asylum, betting on the lottery represented by the US Immigration and Customs Enforcement (ICE) officials, or run from them like the plague, living with the uncertainty of being undocumented, not knowing if tonight will cut short their American dream.

Give yourself up to the Migra or hold out?

The combination of thistles that bristle with obstacles and petals that are smoothing immigration policy has created this dilemma; it’s hard to give a definite answer to everyone. Benito, a Guatemalan Quiché who has lived in Los Angeles for more than seven years, asked me: “What do you think will happen if I go to the Migra and give myself up so I can apply for asylum? My people experienced genocide and are still suffering violence.” I took his question to a lawyer who’s a migration expert highly committed to helping Central Americans. He didn’t hesitate in answering: his recommendation is to hold out, carry on as is until the immigration reform helps them regularize their status.

The Law only makes an exception for clear DACA (Deferred Action for Childhood Arrivals) cases. This is the memorandum Obama used to suspend deportation for migrants aged 15 or over, high school graduates (or those about to become so) who arrived in the United States before they turned 16 and before June 2012 who pay the $465 application fee. Fewer than 10% of undocumented migrants are potential DACA beneficiaries. What the lawyer’s opinion indicates—absurd to some and even an excuse for the crime of sidestepping it to others—is that something that might be a solution for some migrants isn’t necessarily one for all.

The 1980 refugee act:
Few admissions, many rejections

The history of the institution of refuge and its figures shows us that official acceptance as asylum seekers or refugees is not a benefit to which the bulk of Central Americans arriving in the United States without papers can aspire. The refugee is a relatively recent figure. It appeared after the First World War when peace treaties and the fall of the Russian, Austro-Hungarian and Ottoman empires changed the demographic and territorial order of east central Europe. In a very short time, a million and a half white Russians, 700,000 Armenians, 500,000 Bulgarians, a million Greeks and hundreds of thousands of Germans, Hungarians and Romanians left their countries. In the United States, refuge was legally validated very late on.

The 1980 refugee act was the first comprehensive amendment of the immigration act in the United States. According to Maurice A. Roberts, known as “the dean of immigration law,” it was designed to provide a clear-cut policy and flexible solutions to meet the rapidly shifting developments of new armed conflicts in a turbulent world. Nonetheless, success rates for asylum applications and arguments put forward by humanitarian organizations, which appeal to pity for migrant children who arrive at the border unaccompanied rather than to the substance of the refugee act, are not an indicator of its clarity and flexibility. Nor do immigration lawyers share the optimism of the man who was one of the brains behind this law. Figures show that asylum cases won by Central Americans are almost insignificant compared to the thousands of applications.

In general terms, admission rates for asylum and refuge in the United States are low and have shown a marked downward trend. President Carter ended his term with 55% and averaged 50% throughout his administration. In 1980 he granted refuge to 207,116 people fleeing different armed conflicts, a historical record unbeaten to this day. Reagan reduced admissions to 27% in his first term and ended his second with 37%, despite the fact that his office started after the 1980 refugee act came on the scene.

Under Reagan, relatively few refugees were admitted throughout most of the 1980s despite direct intervention by the US Army in Grenada, Panama, Lebanon and Sinai; the recurring presence of advisers in Honduras, El Salvador, Colombia, Bolivia and Peru; and naval and air operations in the Persian Gulf, Iran, Libya, Egypt and the Philippines. Willingness to receive the victims of these events has not advanced at the same speed as US military identification with conflicts, later aggravated by direct intervention. This asymmetry is probably the result of a high degree of US self-complacency in its role as exporter of democracy: if the interventions install or restore democracy, what’s the point in receiving refugees from the affected countries?

The George H. W. Bush administration was the most generous in absolute terms; it provided refuge to 458,073 applicants, an annual average of 114,518, far exceeding Reagan’s average of 82,478. After 88,006 refugees a year under Clinton, George W. Bush dropped to 47,500, the lowest average of all, with refuge approvals in 2002 plummeting to 26,788, the most paltry figure to be welcomed to the United States since the 1980 act was passed. In the 2009-2012 period, Obama averaged 65,615.

Approval and rejection rates for applications tend to vary greatly among the eight US offices that process asylum applications. In 1996, San Francisco, Arlington and Miami had the highest admission rates: 45%, 32% and 30%, respectively, with Newark, Los Angeles and Houston registering the lowest: 12%, 14% and 20%. In 2004, the San Francisco office admitted 47% of all cases and Arlington and Miami followed with close to 40% each, in stark contrast with Houston and New York, which only admitted 19% and 18% of their respective applicants. This disconcerting variation is a clear indication of discretionality. It also implies that the geographical location of migrants affects their chances of getting asylum, thus serving as an indicator for migrants as to where and where not to apply. In any case, it remains clear that the road to asylum is strewn with potholes.

An ever less porous filter

The membrane that filters refugees has become less porous during the last two administrations, with the US government appearing to have decided that the era of refugees is over. Although Salvadorans, Guatemalans and Hondurans are among the ten nationalities most benefited by asylum in the United States, together with Chinese and Mexicans (a deplorable ranking if we consider the gap between the size of these two countries’ populations and the populations of the tiny Central American nations), diminishing admissions resulting from an ever increasing number of applications indicates an insufficient willingness to receive them.

As the table below shows, in the ten years between 2003 and 2012 the United States approved a meager 9,656 applications from the four countries most affected by wars in the eighties and by today’s violence. During those ten years it deported 623,408 people belonging to these nationalities. This gives us an idea of their message: refugee status is not a gateway but rather a miniscule hatch for the selected few.

To appreciate just how narrow the selection is, let’s look at the series between 2006, the year in which the United Nations High Commissioner for Refugees started providing enough detailed data, and 2012. During that period, the United States received 48,550 applications for asylum from Salvadorans, Guatemalans and Hondurans, approving only 7,541 applications, 15.5% of the total. The number of applications increased every year, but admission rates fell from 27% in 2006 to 9% in 2011 and 10% in 2012.

The “big case”

In some ways, US asylum policy can be associated with a tacit admission of its responsibility in the conflicts. For this reason, granting asylum is linked to geopolitical calculations and to the pressure of internal conditions. In the absence of pressure, immigration courts haggle over asylum, appealing to the demanding intricacies of the law rather than its flexibility. For this reason, the US government granted refuge to as little as 3% or fewer Salvadoran and Guatemalan applicants in the eighties on the grounds that they weren’t refugees. That continued until a civil society coalition led by Protestant churches filed a petition approved in January 1991: American Baptist Churches v. Thornburgh Settlement, known as the ABC Agreement.

After nearly six years of tough, complex arguments, the churches twisted the arms of the attorney general and migration director just to get them to apply the refugee act, a triumph supported in essence by the barbarous repression Guatemalans and Salvadorans were suffering in their countries, which the US government hadn’t acknowledged until then.

It isn’t clear whether the current approach to unaccompanied minors reaching the border—a minority among Central Americans fleeing violence—is a better tactic. The only thing that is clear is that this one point scored by US civil society in favor of Salvadoran and Guatemalan refugees aimed at the heart of the refugee act: to receive victims of violence.

William, a Salvadoran who lives in Los Angeles and advises a group of young Quiché Guatemalans, appealed to the ABC agreement. He came to the United States when he was 16 and is now 50. Whenever he could, he took advantage of ABC rather than any initiative that might benefit underage migrants.

In today’s muddied waters

The insistence on the minors’ drama has so muddied the waters of the immigration debate that, for the moment, only Republicans have obtained any gains. When Attorney General Eric Holder announced that a partnership with Ameri¬Corps, a federal program offering legal representation to undocumented minors, would guarantee “the rights of the most vulnerable members of society” and that “how we treat those in need, particularly young people who must appear in immigration proceedings—many of whom are fleeing violence, persecution, abuse or trafficking—goes to the core of who we are as a nation,” he didn’t make an effective statement. Rather he fanned the xenophobic flames of those such as Ryan Lovelace, a columnist in the National Review, who are of the opinion that these statements and the possibility of suspending deportation processes by using DACA would act as a magnet for attracting undocumented migrants.

Perhaps Mr. Lovelace isn’t wrong: the disproportionate number of minors detained in the United States and Mexico is remarkable. Unaccompanied minors from Guatemala, Honduras and El Salvador represent a much greater percentage of the total number detained in the United States. In 2013, they represented 20,805 of 106,420 deportees (19.5%), and 5,389 out of 77,232 (7%) in Mexico. The previous year the percentages had respectively been 11% and 4% in the United States and Mexico.

Does this mean that some migrants are putting themselves in the hands of the migration authorities, appealing to legislation and some temporarily benevolent procedures? It’s possible. If so, it was an effective tactic until the Obama administration backed down and once again made a show of the rigor with which it can apply the law, insisting that children be returned to their country of origin.

Those without papers
become those without voices

Polish sociologist Zygmunt Bauman, himself driven out of his country by its government’s anti-Semitic campaign, who has resided in England since 1971, maintains that “refugees are human waste, with no useful function to play in the land of their arrival and temporary stay and no intention or realistic prospect of being assimilated and incorporated into the new social body.”

In an essay called “We Refugees,” written by Hannah Arendt in 1943, two years after her arrival in the United States, it was hard for her to imagine a more dangerous attitude than the discrimination society wielded like a weapon, allowing it to kill without shedding blood because passports and birth certificates ceased to be official documents and became a matter of social standing. Years later, in The Origins of Totalitarianism, Arendt stated that the fundamental deprivation of human rights is manifested above all in disallowing people to have a place in the world where their opinions mean something and their actions are effective. Those who lack human rights are deprived “not of the right to think whatever they please, but of the right to opinion.”

This vision returns to the portrait of banishment portrayed by Euripides in his tragedy The Phoenician Women, in the dialogue between the banished Polyneices and his mother Jocasta on the hardships of exile:

Jocasta: “What is it like? What is it galls the exile?”
Polyneices: “One thing most of all; he cannot speak his mind.”
Jocasta: “This is a slave’s lot thou describest, to refrain from uttering what one thinks.”

Parrhesia, a figure of speech that means to speak freely, to say everything without restrictions, implying not only freedom of speech, but the obligation to speak the truth for the common good, even at personal risk, distinguished Greek citizens from slaves and barbarians. According to Foucault, a parrhesiastes, i.e. a person who says what must be said, disconcerts others not so much because of what is being said, but because it calls them to task and transmits an incitement that requires truth to enter into action towards oneself, obtaining conditions for one’s own care, like a friendly hand that accompanies and challenges.

But a parrhesiastes can speak the truth because he or she has the right. The circumstance of exiles is that they are denied that right. Those without papers become those without voices. They are denied the right even to voice the words that concern their own destiny, which is the thing Polynieces considers their greatest deprivation. If you don’t have the right of free speech, Foucault holds, detailing Polynieces argument, you are unable to exercise any kind of power and thus are in the same situation as a slave.

The refugee:
A non-citizen?

This is what happens, according to Giorgio Agamben, in the nation-state system where “the so-called sacred and inalienable rights of man show themselves to lack every protection and reality at the moment in which they can no longer take the form of rights belonging to citizens of a state.” The supposed universality of human rights thus remains constrained by historical function: the inscription of natural life in the juridical-political order of the nation-State.

For the purposes of this bio-politics, birth is the immediate bearer of sovereignty but the human being as such, the supposed bearer of these rights, dissolves into a different category: the citizen. Birth appears as the basis of all rights, but their exercise is associated with the nation. Thus the refugee, in whom birth and nation are at odds, displays the hidden vulnerability of “bare life,” according to Agamben, “representing the first and only real appearance of the man without the citizen’s mask that constantly veils him.”

The refugee is an unsettling figure because it shows how the judicial ordering of the nation-State breaks the identity between human being and citizen. Starting with the premise that the exile is the life figure in its immediate and original relation with sovereign power, Agamben maintains that the refugee is the only category in which we can glimpse today the forms and limits of the political community to come. The refugee could, in his opinion, be the only figure based on which political philosophy can be rebuilt, once we unreservedly decide to abandon the fundamental concepts by which, up till now, we have represented political subjects: human beings, citizens with rights, the sovereign people, the worker...

Agamben’s argument loses its capacity to explain not because it’s useless when he talks about the total lack of rights, as the critics who refute him maintain, calling on the inalienable right to possess rights which, according to Arendt, helps everyone. It is rather for having chosen the wrong metaphor: the condition of exile doesn’t refer to bare life but to lack of a voice, to being unable to discuss and decide one’s own destiny, to a political condition beyond politics, like that of the slave in ancient Greece, according to what Euripides maintained through Polynieces’ mouth over 2,400 years ago.

With their voice and
by their own hands

Most Central Americans who enter the United States opted not to give up this voice; that was their choice when faced with the dilemma of “seeking asylum” or “going undocumented.” The difference between the millions of undocumented who evaded immigration control and the thousands of applicants for asylum is that the applicants have given immigration judges and other officials the last word on their possibility of staying in the United States.

Undocumented migrants didn’t give up this word. Most Central Americans are becoming refugees by their own hand. The undocumented women and men scattered through thousands of cities in the United States have in common the fact that they haven’t given up speaking their word. They refuse to be homo sacer (sacred man), consecrated to the death their deportation sometimes becomes. They didn’t give over to the State all rights to decide on their immediate future.

Agamben states that “only in a world in which the spaces of states have been thus perforated and topologically deformed and in which the citizen has been able to recognize the refugee that he or she is—only in such a world is the political survival of humankind today thinkable.”

For every detainee deported
three arrive and stay

What’s happening is that it is the undocumented migrants who perforate and penetrate the spaces of the States and recognize the potential citizens they themselves are. In the meantime, they are taking over spaces by their own hand. The 11,598 Central Americans who sought asylum in the United States last year probably represent a bare 3% of those who entered without papers the same year. Mexican migration authorities calculate that for every detainee, three migrants escape from the elongated sieve Mexico has become, thanks to the will of its politicians. In the United States, an average of 180,000 migrants a year was expelled between 1990 and 2010, but 8 million managed to enter during that same period, almost 381,000 a year.

Nor is asylum the main penultimate rung before residency: the 3,623 Salvadoran refugees/asylum seekers who obtained an adjustment to their status as residents barely represented 2.5% of the 146,980 Salvadorans who settled legally in the United States between 1991 and 1996. Not even in its golden age with the implementation of the 1980 refugee act was asylum/refuge a wide open road to legal settlement in the United States. Between 1987 and 1996, only 31,921 Central Americans refugees and asylum seekers achieved permanent residence.

This figure represents barely 5% of the 589,577 Central Americans admitted legally, a figure that includes Central Americans who entered through the big open door for immediate family members of US citizens (spouses, children or parents). It is also equal to only 3.5% of the undocumented in 1996, which gives an idea of how far this adjustment to status was from being a solution to the lack of documents. In fact, Central Americans who between the 1970s and 2004 used the refugee route as a way to achieve residency equal barely 6% of the 660,000 undocumented Central Americans in 1996.

While Republicans and Democrats are locked in a continuing battle, Central Americans who deserve refuge for so many reasons and to whom it is granted with lukewarm stinginess continue winning those spaces for themselves, with their own voices and hands.

José Luis Rocha is a member of the envío editorial council, and is associated with the Institute of Sociology at Philipps University, Marburg, Germany.

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