Envío Digital
Central American University - UCA  
  Number 350 | Septiembre 2010



Migrants: Submissive Victims or Engaging in Civil Disobedience?

The stubborn efforts of Nicaraguan migrants— all migrants in fact—to cross borders come hell or high water illustrates that they are not and should not be seen as victims. They are rather pioneers of a new form of civil disobedience. They know they’re violating legality, but their transgression in the name of justice, in search of a better life, presages another possible world that is more equitable and free.

José Luis Rocha

Imagine a starch-collared World Bank official stroking his brush moustache and adjusting his Gucci tie while introducing a panel on export incentives with the following words: “Meat prices have fallen by 5%, but an increase in the volume of top-quality steaks has compensated for that reduction. We have recorded a similar phenomenon for bean, pineapple, banana and sesame exports. In contrast, we are forced to recognize that despite commendable improvements in highways, bridges, certification and clusters promoted with World Bank funds, the yields related to the exportation of poor people have dropped.”

“A year ago,” he might continue, “that category generated US$990 million in Nicaragua, but now the gross value of that category is only US$800 million. And from that value you have to subtract the increasing number of cases of failed placement [what migration officials refer to as ‘deportations’], the rise in transport costs [charged by the ‘coyotes’ who engage in human trafficking], the competitiveness of adverse and well-organized clusters [Los Zetas, the Gulf Cartel] and the multiplication of non-tariff barriers, whose severity is growing exponentially: walls, border patrols, paramilitaries, movement sensors…”

“Let’s export better-quality poor people”

Then the World Bank official might clear his throat and add, “The government’s economic plans haven’t managed to come up with a strategy with adequate incentives to allow Nicaragua to make market niche inroads for poor people. A suitable strategy must be governed by three principles: place more poor people, place better-quality poor people and place poor people with strong nationalist feelings and family ties.

“We know how to place our meat, but not know how to place our poor. We’ve added value to coffee through torrefaction and brands, but the quality of our poor people is plummeting before our eyes. Our cheeses exceed all health and sanitation controls, yet our poor aren’t presentable. Our bananas look impeccable, but our poor look fragile. We can cover up the strong smell of our venison, but it’s impossible to hide the ordinariness of our poor. The falling quality of our poor people only multiplies the rejection of them: in the eighties we placed people with high educational levels and got the best rates for the export of light-skinned poor people with a high school diploma. These days the poor we’re sending are dark brown and are lucky to have got through primary school, with a growing volume of illiterate people flooding the intra-regional markets.

“Solutions? Train them better, establish alliances with the transport companies, package them better and improve the certification systems: embryonic fluency in English, AIDS-free, non-alcoholic and low testosterone levels...”

They pay four to eight times more
for their journey than millionaires

Someone in the auditorium listening to this speech would probably jump up indignantly and protest at such gross merchandizing of human beings. But the technocrat’s words reflect a more courteous treatment than migrants are currently afforded. The decision-makers don’t think about, talk about or concern themselves about them. In addition, his central argument would be true from a strictly technocratic perspective: we do know how to place dead cow meat, but governments do nothing for living human flesh, which is no longer cannon or trench fodder here, but rather fodder for other countries’ barbed wire, night sticks, round-ups and electronic monitoring bracelets.

There’s a need for policies that improve the conditions in which the region’s emigrants travel, experience deportation processes and insert themselves into the societies of their destination But with the exception of El Salvador, Central America’s governments hardly have any such policies.

That lack of policies—and not just the country of destination’s willingness to segregate and expel them —has a lot to do with the increase in deportations and the subjection of migrants to processes that don’t respect even minimum legal guarantees.

Zygmunt Bauman has stated that migrants must pay “more for the crowded steerage of a stinking unseaworthy boat than others pay for business-class gilded luxuries.” In Latin America, migrants pay four to eight times the cost of a first-class flight to make an arduous and risky journey on foot, by bus, by train, dodging Los Zetas and other criminal bands. Globalization’s asymmetries explain this high cost.

Three obstacles for migrants
detained in Nicaragua

Many migrants have to cross Nicaragua to reach their destination. In 2006 transcontinental migrants accounted for 18% of detaineesin our country, a figure that had risen to nearly 60% by 2009. The number of Africans jumped from 6 to 201 during the same three years, headed in terms of nationality by Somalis, Ethiopians and Eritreans, which shot up from a combined total of 4 in 2006 to 197 in 2009. The flow of detainees of all nationalities increased from 350 to 423. In 2010 the number of migrants from China, Nepal and Cambodia multiplied. There was no lack of Hondurans who fled from the repression following the coup d’état against President Zelaya, and migrants were also captured from more unusual origins: Pakistan, Bangladesh, Iraq, Morocco and Cameroon. Between 15% and 30% of the migrants detained in Nicaragua are women.

These people are daring, fearless and very clever. They include detainees who learned Spanish in just the two to six months their detention lasted. Three factors help stretch out these migrants’ detention until their patience is at the breaking point. The first is the absence of consulates with which to negotiate. Nicaragua is a small, poor country of limited importance in world geopolitics. Most of the countries of origin of the African and Asian migrants have no diplomatic representation in our country, including China, Nepal, Cambodia, Cameroon, Ethiopia and Eritrea, while Somalia has collapsed so much it can’t possibly have any. Procedures are done by mail and very expensive telephone calls. Communication is an unavoidable condition for facilitating the procedures.

That brings us to the second obstacle: language. How can we get translators who speak Tigrinya, an Ethiopian language? Fortunately, most Tigrinya speakers also speak English, which is also true of other Africans. But what do we do with those from Iraq or China? As Nicaraguan migration officials admit, “We don’t have anyone who speaks Chinese.” And that’s just the tip of the iceberg: the real problem is that while some 850 million people in China use Mandarin as a lingua franca, the country has between 6 and 12 main regional linguistic groups and 205 spoken languages.

The third obstacle is the lack of resources to cover the cost of the fares. Pressuring the migrants to pay for it themselves, or requesting it from the International Organization for Migration (IOM) or other bodies can take months. All of these elements prolong the detention periods and trigger hunger strikes, aggressive behavior and brawls. Only money can grease wheels, speed up processes, open cells and ensure plane tickets.

“We try to help them”

Nicaraguan police caution also slows down processes. One immigration official shared the motive behind this with us: “We try to help them. Our country is also a country of migration due to many different circumstances, including wars and the economy, so we know what it means. But there are also agreements and policies that have to be respected and that’s why we detain them. If we let these people enter and leave irregularly whenever they want, we’re opening the way for criminal networks.”

That’s why Costa Ricans and Hondurans can spend months detained while their cases afre being investigated for suspicious occupations, relations and identities. The officers who guard the center watch for cases of drug and human trafficking associated with the movement of those seeking a better life and analyze any signs of irregularity.

Hundreds of entwined stories

Nicaragua’s migrant detention center houses varying kinds of people: Peruvians who pass themselves off as deaf-mutes; gringos who say they’re going to Argentina to find God and are apprehended sleeping in a dumpster; Hondurans cleansed by six years in the Tipitapa prison for drug trafficking; Colombian military officers who are given no information by their negligant consulate and break into insults against the consul; and Ecuadorans who lived 15 years in Belgium but returned only to be tricked with the unbearable hoax that it’s easier to obtain a visa for Spain from Nicaragua.

There are also impenetrable Iraqis; Somalis who complain daily about not being able to make phone calls; Pakistani businesspeople who say they resisted extortion by the border officials; Mexicans not recognized by their consulate; Chinese who suddenly recover their passports and learn Spanish in two months of detention; Chileans married to Nicaraguan wives who fleeced them; Dominicans in the middle of a nervous breakdown who can’t be swayed by shouting or the sight of arms; Canadians with ostensible crucifixes and loaded with books; Cubans who teach Spanish to their Chinese detention mates; Mexican singer-songwriters with two Central American nationalities; hyper-tattooed Salvadorans automatically accused of being members of the violent youth gangs known as maras; and people from Bluefields who try to pass themselves off as Mexicans so they can be deported there and continue making their way North. Hundreds of such stories are entwined in a prison where they share hours, days, months. Their lives are intense and risky; they wanted to go to the North but will be returned to the South.

What they ask of the authorities

During the last year, migrants detained in Nicaragua have received visits from the Office of Human Rights Ombudsperson, a novel improvement not only because it implies interest from another state body, but also because such visits can raise the detainees’ hopes and dissuade abuses of authority, should the temptation arise. The detainees use the visits to present their complaints, sometimes with great juridical sharpness and rebellious spirit. During one visit, a Peruvian told the delegation that “they don’t mistreat us here. They don’t hit us or anything like that. But it seems unfair to us that they’ve us detained without justification. That’s against the law.”

On her visits, Deborah Grandison, the Special Ombudsperson for the Defense of the Rights of Women, has collected some of the demands made by the migrants. The complete file would be immense, but a minimum list includes the transfer of minors, the sick, the elderly, people with disabilities or victims of some kind of violence to a special shelter where they can receive the help they need, as established in article 10 point C of the Refugee Protection Law; special treatment for pregnant women; appropriate medication for ailments, particularly if chronic; multiplied and regularized visits from the Office of Human Rights Ombudsperson; access to national legislation through a booklet detailing their rights and obligations; an end to changing information, such as being required to pay a fine to stay and then being handed a deportation order; quick and frequent communication with their countries’ consular delegations, when they exist; fewer delays for obtaining fares; and last and most important, the key to all good relations, information that mitigates the uncertainty and subsequent anxiety. In fact, for all cases of potential refugees, article 18 of the Refugee Protection Law establishes that “petitioners must be informed of the rights inherent to a due legal process.”

From detained migrant to refugee

The Africans qualify en masse for refugee status, according to the circumstances the Refugee Protection Law establishes they must meet to be officially recognized as such: “A) That they are away from the country of their nationality due to well-founded fears of being persecuted for reasons of race, religion, nationality, gender, identification with a determined social group or political opinions, and cannot or do not want to put themselves under the protection of that country due to said fears; B) That lacking nationality and due to the reasons stated in the previous point, they are outside of the country in which they previously had their habitual residency and cannot or do not want to return to it due to said fears; C) That they fled their country or the country where they previously had habitual residency because their life, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, mass human rights violations or other circumstances that have seriously disturbed the public order.”

Too much “new wine”
in an old barrel

These features relevant to the Africans, not a few Asians and recently certain Hondurans should be enough to streamline the processes. But Nicaragua’s system has limited staff and budget. The government has to deal with the central problem: this detention center is an old barrel that has shrunk and cracked, making it hard to contain the wine of new waves of migrants. The center’s dimensions, budget and staff training were perhaps enough to deal with smaller and less varied flows, but today’s migratory wave with its increasing volume, varied tones and complex situations took them unawares. They cling to a traditional way of working that sometimes depends on the prodigious memory of the officers, who have a good eye for identifying for the second or third time migrants who have already spent nights at the center.

The tracking, detention and processing system also requires adjustments. The delays mean that detention has been forced beyond the time established by the Refugee Protection Law: “Should a person requesting the condition of refugee be detained for lack of identity papers and/or having entered the national territory irregularly, the appropriate authority may not detain him or her for more than seven days, during which time it can conduct the relevant investigations.” The investigations and proceedings invariably take over a month for the Africans requesting asylum.

Another area that requires immediate adjustments is the application of fines. Pecuniary punishments violate article 10 of the Refugee Protection Law: “No penal or administrative sanctions as the result of irregular entry or presence will be applied to refugees or people requesting the condition of refugee who have entered or are in the national territory without authorization, as long they present themselves before the relevant authority no later than the term of one year, citing a reasonable cause for their irregular entry or presence.” In fact, we’ve started to feel the negative hunger for fines, as Nicaraguan emigrants residing in Costa Rica having fines of US$100 imposed on them for each month of irregular residence in that country.

Deportable Nicaraguans in Costa Rica

So what happens when Nicaraguans are retained, detained and deported in other countries? The most recent studies, based on the 2005 national census, tell us that 57% of Nicaraguan emigrants live in another Central American country and 47% are concentrated in a single country: Costa Rica. It’s a traditional migratory destiny, but one that is constantly updated: the biggest volume (47.7%) settled in that neighboring country between 2001 and 2005.

Relations between Nicaragua and Costa Rica have experienced marked shifts that are reflected in migratory policies. Costa Rica has established migratory amnesties on three occasions. In 1990 it facilitated the establishment of irregular foreigners who had entered the country before July 2, 1990. A second exception was decreed by the same officials in January 1994 to benefit foreigners who had entered before July 31, 1993. And in November 1998, the Costa Rican government announced a general amnesty to enable the establishment there of all Central American immigrants—from Nicaragua, Belize, El Salvador, Guatemala, Honduras and Panama—who had entered before November 9, 1998. This offer was made as a Costa Rican contribution to alleviate the economic and social situation of countries and families affected by Hurricane Mitch, emulating the Temporary Protection Status (TPS) granted on December 29, 1998, by US President Bill Clinton for Honduran and Nicaraguan immigrants. In Costa Rica, that migratory exception regime was in force between February 1 and July 31, 1999, resulting in 155,316 applications from immigrants, of which 97.4% were Nicaraguans. At the end of the process, some 140,000 Nicaraguans had benefitted from favorable decisions.

The Costa Rican State hasn’t made an even remotely similar offer in over ten years. Quite the contrary, the Migration Law (Law 8764) unanimously approved by the legislative branch on August 3, 2009, and put into force on March 1, 2010, severely penalizes irregular migration and leaves over 200,000 Nicaraguans potentially fineable and deportable.

The deportees in the San Carlos shelter

Although it is very premature to ponder the consequences of this law’s implementation, we can assume that if it’s applied as rigorously as it could be in the coming months we’ll see a multiplication of the kind of situation we detected over a year monitoring the 570 residents of the Human Mobility Pastoral Care’s shelter in the city of San Carlos in the Nicaraguan department of Río San Juan. All of them were victims of deportations from Costa Rica’s Los Chiles immigration post.

Half of them were very young and with no children. Although there was a wide variety of trades and professions, an overwhelming majority (42%) worked in agriculture. Most were detained while traveling or attempting to do so: on buses or at bus stops (14%), on streets and highways (18%) and in parks (22%). Only 1.6% were captured at home and 0.9% in their place of work. Just 0.4% were actually deported, with the vast majority subjected to administrative rejection, an expeditious procedure with no long-term legal consequences. The generosity with which this procedure is applied, added to the persistence of the migrants, results in high re-incidence rates. One of the people interviewed had racked up 20 rejections, while 13% of those interviewed had been captured and rejected at least twice.

The crux of the problem continues to be the lack of papers, with 63% travelling without any identification document. Those who did travel with documents weren’t carrying the right ones: 28.6% only carried an identity card, 3.6% a birth certificate, 3.2% a passport, 1.3% a slip showing they had applied for an ID card and 0.6% a provisional passport. Some of the people we interviewed left Nicaragua with no documentation after four months waiting in vain for their passport.

Migration authorities take advantage of the immi¬grants’ defenselessness. Of the 30.4% who testified that their human rights had been violated, 30% blamed police or immigration authorities and only 0.4% said the abuse was committed by their employer. Some 28% suffered from a failure to apply due process and 2% were subjected to physical, verbal and/or psychological maltreatment. The failures in due process generally involved being held incommunicado, collectively detained, separated from underage children, and not being given information about their process.

Our research revealed a novel element in the form of administering medication to a group of deportees. Anastasia Félix from Los Chiles declared that “there were two men and the rest women among the five of us traveling. Where they nabbed us, one woman was praying to God that they wouldn’t catch us, but no such luck! They just caught us more quickly. They sent us to a cell and that’s where we slept. In the morning they gave us a pill to take so they could send us back to our country. Yes, they gave us that pill. And I took it. One companion wasn’t so stupid and didn’t take it. He put it under his tongue and when the police officer turned around he threw it away.”

This kind of pre-flight cocktail was denounced in 2004 by The Washington Post, which claimed that between 2003 and May 2004 over 250 immigrants were drugged—without medical prescription—before their repatriation flight. In Río San Juan, the “pre-flight” cocktail was a pre-navigation cocktail.

The right to migrate =
the right to documents

Wilbert’s experience is more frustrating: “They deported me three times, but the last time Migration itself deported me and without a right to re-enter. They deported me like this: I went and got a provisional passport, as they call it, at the Nicaraguan consulate. They gave it to me there and I always carried it. They told me it was to get documents with. So one time I took the risk and went to Migration and they did help me and gave me documents. Then they told me they were going to do the procedures and I had an appointment every month, but within a year the people from Migration told me the signature and the order had arrived to deport me directly from San José because they hadn’t approved my application procedure. So right there they took my documents and called the law to come and get me. They came and deported me and told me I couldn’t enter again for ten years. They said that if I entered before the ten years was up I’d be violating the laws and they’d put me in prison.”

Wilbert was probably deceived by one of the many legal practices—run by real lawyer-gangsters—that have proliferated on Costa Rican soil to make juicy profits from the every-growing mine of undocumented Nicaraguans. The lawyer responsible for his case probably didn’t explain to him that a provisional passport can only be used to cross the border once and is valid for a month. He just charged him money month after month for a year. More serious still, the Nicaraguan authorities who sold him the passport didn’t explain it either, although they should have seen him as something more than just a client in the consular market.

Article 8 of the International Convention for the Protection of the Rights of All Migrant Workers and Members of their Families, a legal instrument the Nicaraguan government ratified in 2005 and that has been in force for going on five years, establishes that “migrant workers and members of their families shall be free to leave any State, including their State of origin.” If Nicaragua doesn’t provide the documents or supplies inadequate documents to leave the country and set up in another one, it’s violating that right. Without documents there is no right to migrate.

The entryway to the American
dream is the Mexican nightmare

The challenges facing those who return to the South wanting to reach the North are very different from those who go North wanting a visa to a dream. In just five years Mexico has turned into a dark territory where the immigration service is no longer the main or most feared threat, as recent events confirm.

This past August 23, the Mexican army found the bodies of 72 migrants on a ranch in Tamaulipas. There were Brazilians, Hondurans, Salvadorans and Ecuadorans, 58 men and 14 women who had entered through Chiapas and were heading to the Matamoros-Brownsville border. They were attacked by a group of Los Zetas, mercenaries who first appeared as part of the Gulf Cartel but for some time now have been operating independently as hired killers, drug traffickers and kidnappers and extorters of migrants. The migrants couldn’t flee, despite a warning by one when the criminals started surrounding them. They were kidnapped, taken to the farm, interrogated to see if there was any possibility of extortion and then executed.

All of this was told by a 19-year-old Ecuadoran, identified as Luis Fredy Lala Pomadilla, who survived the massacre despite being shot in the face and ended up in a Matamoros hospital. He notified Army troops, who intercepted an armed group while on their way to the scene of the crime. They engaged the group in an armed battle and confiscated an arsenal of weapons, camouflage uniforms and a cloned National Defense Secretariat pick-up truck.

Inspired by this horrendous episode, Nicaraguan caricaturist Pedro Molina titled one of his daily cartoons “Emigrant dilemma.” In the drawing, one migrant says to another, “The problem is that to get to the ‘American dream’ you now have to pass through the ‘Mexican nightmare.’”

The Society of Jesus’ Kino Project on the Nogales border denounced the massacre as an effect “of the Mexican State’s harmful migratory policy and failure to prevent illicit activities committed against it.” It also stated that the massacre is not an isolated occurrence, but rather “a clear demonstration of how the violence against migrants is being aggravated by State agents and private individuals.”

“In this and other cases,” says the denunciation, “we have noted how the kidnapping of migrants is aimed not only at demanding ransom but also at subjecting them to labor and sexual exploitation and other illicit ends. It should be pointed out that the crime of kidnapping migrants is a serious matter that can be added to the abuse perpetrated by both public servants and members of organized and common crime. These systematic violations of the rights of migrants are a consequence of the lack of a human rights approach in the migration policy, institutional precariousness, the de facto criminalization of irregular migration, and the corruption and impunity of the authorities at the three levels of government.” The Mexican government’s response was a report it sent to the Inter-American Commission on Human Rights in which it attempted to deny the true dimension of the tragedy.

Among other demands, the Kino Project and many other bodies that signed its communiqué stressed the “urgent need to modify the current immigration policy approach, which has resulted in the perpetuation of violence, the systematic generation of invisible victims and, as in this case, the massacre of 72 people.”

The Tamaulipas massacre
isn’t the first and won’t be the last

Unfortunately the denunciation hit the nail on the head: what happened in Tamaulipas is no exception and the Mexican government’s negligence has played an essential part in allowing it to happen. An Amnesty International report titled Invisible victims: migrants on the move in Mexico, charges that the Mexican police capture migrants and then hand them over to Los Zetas.

The report also denounces excessive use of force, as happened on March 31, 2008, when a freight train carrying a group of irregular migrants “was intercepted by INM [National Migration Institute] agents supported by 50 members of the Mexican Navy armed with rifles and batons.” According to eyewitnesses, including a photographer who had previously boarded the train to document the migrants’ journey, “The migrants tried to flee, but Navy personnel chased them and beat them with batons, forcing them to the ground.”

Another documented case of excessive force happened on January 9, 2009, when “state police opened fire repeatedly on a truck carrying around 45 irregular migrants from El Salvador, Guatemala, Honduras, Ecuador and China. Three migrants were killed and another eight seriously wounded in the incident, which took place near the town of San Cristóbal de las Casas, in the state of Chiapas. According to several of the survivors, four officers were in the police car that followed the truck. The officers ordered the truck to pull over and, when it failed to stop, they fired several rounds of live ammunition. One migrant said the state police ‘shot at us like animals.’”

Cases of police extortion and robbery are also common, as is physical abuse, both of which happened on 23 January, 2010, when “three Federal Police vehicles stopped a freight train carrying more than 100 irregular migrants … According to several migrants, uniformed and armed police forced the migrants to get off the train and lie face down, then stole their belongings. After going through their possessions, the police let the migrants go and told them that if they did not continue their journey on foot along the railway tracks, they would be killed. Late that night, as the migrants walked along the railway tracks, several groups of them were attacked by criminal gangs that killed at least one migrant and raped one of the women.”

A 2006 study quoted in the Amnesty International report interviewed 90 migrant women being held in the Iztapalapa Migrant Detention Center, just over half of whom were from Central America. According to the report, “Twenty-three women reported experiencing some kind of violence, including sexual violence. Of these, 13 stated the person responsible was a state official. Researchers conducting the study believed the figures may significantly understate the problem because of the reluctance of women to discuss sexual violence, particularly when they are in detention.” And yet the officers operate with complete impunity: “In February 2010, the INM informed Amnesty International that no INM official had been dismissed for human rights violations as these did not constitute grounds for dismissal under federal labor laws.”

A testimony to the Mexican authorities’ failure to do anything is provided by the marked contrast between figures from the National Human Rights Commission, which reported the kidnapping of 9,758 migrants in six months just between late 2008 and early 2009, and those of the Mexican Federal Government, which reported 393 kidnap victims between January 2008 and April 2010 and 17 operations in the first 4 months of 2010 to free 57 people.

The captured, detained and deported
are “assured, lodged and returned”

For those who enjoy euphemisms, the Mexican immigration services are quite an authority on the subject, having refined the art with a number of exquisite examples. The Mexican government doesn’t capture migrants, it “assures” them. Nor does it detain them in detention centers; instead it kindly “lodges” them, before “returning” them to their countries of origin.

“Assure” is a polysemic word, with various dictionary definitions. We assume it means “protect people or things from damage,” but the Mexican immigration services must be thinking of a less benevolent definition, such as “place people in conditions that stop them from fleeing or defending themselves.” It’s a similar story with the word “lodge.” One might suppose the migration services are referring to the most common definition of “housing or putting up,” but are forced to conclude that they are referring to “placing one thing within another, particularly in an appropriate cavity,” as in the case of placing migrants in prisons. As for “return,” there seems little argument that it means “Restoring a thing to a previous state or situation,” in this case a State, with the “state or situation” being the very poverty they wanted to flee. Or could it be that it refers to the use of “return” as a synonym for “vomiting,” “violently throwing up something one has inside”? Vomiting out migrants that are inside one’s territory?

In the almost ten years between 2001 and July 2010, Mexico has assured, lodged and returned 1,315,487 Central Americans. In the first seven months of 2010, 541 Nicaraguans have been deported. In 2009 the total was 900. That’s 17 per week.

A growing tide nobody can stop

With 77 migrants deported from Mexico a month, we’re not at the peak of deportation
s. During the four-year period 2005-2008 the country reported having deported 233 Nicaraguans per month. That was also the worst period for Hondurans, while Salvadorans and Guatemalans were most affected in the 2001-2004 period, and 2005 saw the Mexican migration authorities’ biggest harvest of Central Americans in general: over 8,000 Guatemalans, 6,000 Salvadorans, 3,579 Hondurans and 300 Nicaraguans a month.

The number of people captured has dropped since that year, perhaps due to the thinning out of the migrant flow for reasons rooted in the current condi¬tions in the United States: the economic crisis, the strengthening of the wall and the application of xenophobic policies, of which the Arizona law is only the most shamelessly perverse and most recent. The reduction in the flow may also be an effect of the fearful Los Zetas, who are, even against their own self-interest, ruthlessly killing the hen that lays their golden eggs.

Despite all this, migrants continue crossing, dodging danger and pursuing opportunities, just as Spanish journalist Javier Reverte observed in 1992: “Those who can set off for the United States. And those desperate wetbacks who have spent the day sitting next to the tall tin fence, contemplating the other side of the border—the broad fields of Yanqui¬landia, the horizons of their particular American Dream—also set off. Now, with the darkness, they jump the barrier, run between the wire fencing, reach the freeway and cross it praying they won’t be hit by a car coming rocket-like out of the distance. On the other side of the freeway they are being waited for by a smuggler they have paid a year’s salary to cross them to the United States. Most of them will end up at the bottom of a car trunk, the center of a truck full of pigs or sheep to start a journey to the most miserable trades, the most stinking suburbs of the United States or downtowns of the big metropolises where it smells of garbage and suffering humanity, the depths of the night.”

This year the Jesuit Migrant Service was unable to talk to Nicaraguans deported from Mexico because the Nicaraguan government wouldn’t let us accompany the deportation processes of those entering through the border crossing at El Guasaule. So we couldn’t collect the disturbing testimonies they give through the tiredness of an exhausting journey with no rest from Tapachula to Managua. We hope to find them in their communities to faithfully transmit the audacity that spurs them on and the vexations they suffered.

Injustices and lack of information for Nicaraguans deported from the USA

Irregular migrations to the United States and deportations from there continue to be a symptom of what Portuguese sociologist Boaventura de Sousa Santos calls “asymmetric globalisms”: in this case a barn door for merchandise, the eye of a needle for people.

The last year for which the Department of Homeland Security gives public access to statistics on migratory matters is 2009. That year ended with 79,632 deported Central Americans, just 191 fewer than in 2008, the record year for deportations of Central Americans. A look at the most recent series of years—the last 10—reveals an increase of 541% based on the 12,414 of 1999. The deportation of Nicaraguans increased from 444 to 2,098 over that same ten-year period.

In collaboration with the Kino Border Initiative in Nogales, the University of San Francisco and the Jesuit Service for Migrants of Mexico, the Jesuit Service for Migrants of Central America is building a database of immigrants deported from the USA. While still incipient, it allows us to do an embryonic analysis of the violation of migrants’ human rights.

It enables us, for example, to find that 44% of the Nicaraguan deportees in the database are between the ages of 30 and 39 and almost 30% are 20-29 years old for a total of 74% under the age of 40. Interestingly, none so far are under 20. A total of 3.7% entered the United States with a visa and were deported because it had expired by the time the immigration authorities got on their case, and 22% were repatriated before they could get a job. The majority worked in construction (26%) or in restaurants (7.4%). A total of 11% made up to four attempts to cross the Mexican-US border, most of them in Reynosa/McAllen (19%) and the vicinity of San Antonio (15%). A full 78% paid over US$3,000 to the coyote and 3.7% between US$1,000 and US$2,000, but the latter figures were only for the route from Mexico City to Houston, Texas.

Their journey through Mexico was plagued with threats. Traveling north¬wards, 22% were assaulted, 11% extorted, 11% suf¬fered other crimes, 7.4% were kidnapped by Los Zetas or other groups and 26% were attacked by youth gang members. Of those extorted or mistreated, 3.7% said the Mexican police were responsible.

When captured, 26% of the deportees were not informed of their rights or of the deportation process to which they would be subjected. Of those who did have access to information, 7.4% didn’t understand it. Some 48% declared that they had no access to lawyers to conduct their case, while nearly 60% never had a hearing before a judge. Nonetheless, 90% signed legal documents—50% of which were in English and 22% of which were otherwise incompre¬hensible—recognizing their irregular entry into the country and, therefore, their violation of US law. Of those who signed, 48% said they had been forced to do so.

Just over 18.5% said they had been shut up in cells without ventilation during their confinement and 11% recalled not having received three meals a day. Only 48% were given the chance to contact their consulate and barely 22% were given access to unrestricted telephone calls. Only 18% were able to regularly communicate with their relatives and 23% couldn’t even contact their family when they arrived. A mere 7.4% were able to contact free legal advice services because only that percentage was informed of the possibility. Sheets of paper tend to be hung up in detention centers with the names of NGOs and lawyers’ associations that offer free services, but detainees need to be given details about such opportunities.

There were also anomalies in the deportation processes, with 26% saying they had been deported without adequate clothes for the climate, 3.7% that they had been drugged for their deportation, and 18.5% that they had been the victims of verbal abuse and harassment by the immigration authorities.

What could our consulates do?

The differing conditions and treatment in the various immigrant detention centers in the United States are very striking. The rule of law, even in such a paradigmatic liberal democracy as the United States, leaves a large margin for discretional action by prison directors, judges and migration agents. The unfortunate immigrants who fall into the grasp of Sheriff Arpaio in Maricopa county, Arizona, will be lodged in tent cities and forced to work chained five to a group and to eat food that costs just 30 cents a plate.

There’s a chance of obtaining basic standards of respect for the dignity of those detained by the immigration authorities and of obtaining homogeneity in their access to services and information. But it depends on activating Nicaraguan consular protection, a right contemplated in articles 23 and 63 of the Law of Executive Branch Organization, Competency and Procedures (Law 290), but which all interviewees considered nonexistent in practice. The impossibility of having a consular presence in all locations where there are immigration courts and detention centers means that strategies need to be designed. The first consists of creating—or converting—national consulates into consulates of the C4 agreement countries (Nicaragua, El Salvador, Guatemala and Honduras). These would thus become regional consulates that provide services to migrants from the four Central American countries most affected by deportations.

This option would have the advantages of multiplying the services without excessively increasing the costs and taking advantage of the long experience already built up by the Salvadoran consulates, which are ahead of their regional counterparts in consular protection, contact from lawyers, organization of cultural events and dissemination of information about the TPS and other programs. This strategy would also be applicable in Mexico, where threats from the criminal world and the abuse of authority make defending Central Americans a matter of urgency.

The second strategy consists of establishing alliances with NGOs, lawyers’ associations and university legal offices that provide free legal representation services to people facing trial in immigration courts. The consulates cannot provide all the services or follow up on the thousands of cases involved, but they can link migrants up with people or institutions at the service of migrants that can offer monitoring, legal advice and humanitarian aid in the four areas where our interviewees detected abuses and anomalies: capture, trial, detention and deportation.

Just victims?

Nicaraguan migrants are far from becoming what Marxist tradition calls a class “for itself,” despite so many common interests and experiences bringing them close to the profile of a class “in itself” that requires emancipation on the socio-political levels.

Unionism hasn’t been transnationalized. Not even in Europe have unions been able to promote initiatives with the same force in the European Union that their national struggles have. Proletarian internationalism is lagging way behind the internationalism of work force mobility. To the contrary, the Salvadoran associations and certain aspects of the 2 x 1 or 3 x 1 programs can be interpreted, from a certain point of view, as a symptom of how transnational capital has succeeded in making the vulnerable sectors abandon their attempts to take state power and resort to strategies that make them involuntary accomplices of the dismantling of the State’s social investments.

The germ of working class internationalism appears to have been frozen as a result of round-ups, walls and extortion. But we mustn’t reduce migrants to the condition of victims. Nothing could be further from the intention of this summary of the violations to which they have been subjected. There’s a strong rebellious streak in the stubborn efforts of undocumented migrants seeking to cross frontiers come hell or high water. And there’s a need to describe the provocative scope of that effort through an interpretation that redeems their illegality and opens the way to recognition of their potential legitimacy: viewing the irregular entry into a country as an act of civil disobedience in a transnational dimension.

Migrants vote with their feet

Why bring up the recourse to civil disobedience and the characterization of illegal entry into a national territory as an act of civil disobedience? Because the idea that national sovereignty has precedence over other principles is still widespread and most politicians “open” to immigration consider border divisions sacred.

But migrants vote with their feet against such deep-rooted social convictions, leaping over both the wall and the social construction upon which it’s based. While “sovereign¬ophiles” venerate borders as special and unquestionable screens that sieve out rights, migrants continue filtering through, sometimes drop by drop and sometimes in large groups, activating the countdown to the negation of their rights and to the culminating point in which each screen will change its nature, even if it doesn’t disappear.

The lamentable fact that the most “liberal” politicians in the United States advocate an amnesty for migrants already inside while insisting on reinforcing border control against new ones implies the need for a detached look and a new proposal that, by feeding off that liberal tradition, is better grounded in the constitutional soils of the United States and Costa Rica. Such a proposal would argue for the legitimate profile that deliberate and systematic violation of a legal precept, in this case that of not entering a territory without being legally admitted by the relevant authorities, could acquire.

It’s a question of justice

The liberal US philosopher John Rawls has incisively reflected on civil disobedience in his essay on “The Justification of Civil Disobedience”: “My thought is that in a reasonably just (though of course not perfectly just) democratic regime, civil disobedience, when it is justified, is normally to be understood as a political action which addresses the sense of justice of the majority in order to urge reconsideration of the measures protested and to warn that in the firm opinion of the dissenters the conditions of social cooperation are not being honored.”

So what is civil disobedience? Rawls defines it as “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” He adds that “It addresses itself to the common principles of justice which men can require one another to follow and not to the aspirations of love which they cannot.”

Migrants cross the border perfectly aware that their entry is not legally blessed by the authorities and does not enjoy the approval of a large part of public opinion. But they also know their act is ambiguous. On the one hand it is transgressing, but on the other it has the backing of a basic, founding principle: “We’re looking for a life.”

Their undocumented entry and insertion has a chance of success, not due to charity but because it appeals to a common principle of justice—the right to work and maintain one’s family—and to a market demand—their labor is needed in the society of destination. When they organize, they’re attempting to produce a change in general policy—either an amnesty or prolongation of the TPS, which are exceptions to the normal severity of the policies. As individuals they are seeking application of the policy to their particular case once they’ve squeezed through the gaps left open by the heterogeneity of state, settling in sanctuary cities, pitting the national level against the local level, procreating US children, joining an ethnic or religious community with well-oiled political links, all of which are situations, conditions and mechanisms with the potential to reverse their condition as transgressors of the law. Because, as Rawls points out, “While civil disobedience should be recognized… as a form of political action within the limits of fidelity to the rule of law, at the same time it is a rather desperate act just within these limits.”

According to Rawls, it doesn’t matter if democratically approved laws are broken, because in a liberal democracy “we are not required to acquiesce in the crushing of fundamental liberties by democratic majorities which have shown themselves blind to the principles of justice upon which justification of the Constitution depends.”

Rawls argues that civil disobedience appeals to the most fundamental principles violated by the very laws and policies it is attempting to abolish through its act of disobedience. In the case of migrants, they are attempting to suspend the application of certain laws. Migrants bank on the system reconsidering or taking exceptional measures that turn their legal status around. They bank on the system changing because in different ways they sense Rawls’ point that “legitimate civil disobedience properly exercised is a stabilizing device in a constitutional regime, tending to make it more firmly just.”

The ten commandments of
an act of civil disobedience

Rawls synthesizes an act of legitimate civil disobedience into 10 features:

1. Being convinced that the law,
system or policies are unjust
This is the most widespread conviction. “It’s not fair. We just want to work,” is a common statement in response to round-ups and deportations. Ivania, a migrant from Chinandega, Nicaragua, who was deported from Spain right at its doorstep—the Barajas airport—gave a brief analysis of the injustice and its roots: “Many people cried, many people felt really frustrated. It’s another society there. Although we speak the same language, you can see big differences. For them, money is worth a lot. Money is logically worth something; of course it is, there, here, everywhere. But for them, money is very, very important to be able to go to Spain. They’re also super racist. Their racism is really deep-rooted. I saw maltreatment. I wasn’t personally abused, but I did see it.”

Another woman from Chinandega, 30-year-old Rosario, was aware that her deportation was unfair and therefore refused to make it effective: “Yes, they deported me from Costa Rica, but I didn’t come. They made me a document, but as I’d already bought my ticket and didn’t have my suitcase when they grabbed me, they just made me the document and let me go get my case, without taking me. But since it was unjust for them to expel me, I didn’t leave the country and carried on working.”

2. Considering they are aided by a more basic
and foundational right of the human condition
They particularly appeal to the right to work, as Ulises argued: “In ’97 I went wetback. It was harder. We walked a lot, crossing the border using footpaths. There were six of us then and it took us three days to reach San José. After we got there, the immigration police got hold of us and expelled us, but we went back in. We went straight back in from the border, and they caught us again. They asked us what we were doing, if we were doing something bad. We told them, ‘No, all we’re doing is looking for work.’”

3. Knowing the risks their
act of disobedience entails
Watching out for immigration officials is a basic principle, as was the case for Samuel and many others: “I went through the bush. We went along the border, then paid a coyote to take us over and when we were going through some paddocks we had to pay more money to get through. The coyote gave money to the guard to let us pass. We were prepared to either pay or be deported.”

Like Samuel, Ivania also saw migrants who were strategically prepared: “They asked us a lot of questions, such as ‘If you say your salary is so much, why did you come here?’ And they answered, ‘Well, I’m on holiday in my country and as I’m a follower of the Virgin of Pilar, I’ve come to pay a promise. I’m indebted to her and I’ve come to pay off that debt.”

4. Performing a public act aimed
at the majority group’s sense of justice
Wilbert demonstrated this by accepting deportation at the same time he rejected it: “They treated me well because I accepted coming back deported. But I told them I’d enter again. ‘You’re deporting me, but I’m going to come back again,’ I told them, ‘because you know that a person can’t be without work.’ They told me they agreed, but that they had to deport me because that was the law. ‘Yes, that’s alright,’ I told them. ‘Don’t worry about it.’”

5. Being willing to transform a principle or law,
not just commit an isolated violation
Most migrants don’t fully comply with this commandment. But many harbor a willingness to defy general legal principles, such as those that deny family reunification or, as in Noel’s case, deny the issuing of documents to minors who have family to maintain: “I didn’t get documents because my dad wasn’t here; he didn’t live with us. I was in the process of getting the documents but they told me that my dad had to be here to sign because I was underage. But I had a family to maintain and I went because it was an urgent need.”

6. Accepting arrest and punishment
without resistance or violence and with
respect for the legal procedures, but with
rejection, aware you are suffering an injustice
Ivania was aware of her unfair treatment, but stoically accepted deportation: “When you’re predisposed it takes the edge off the fear. That’s what happened to me. It takes away the fear and you’ve practically worked out what you’re going to do and how you’re going to act, calmly, when they deport you.”

Some, like Felipa, who is a migrant, wife of a migrant and mother of two migrant children in Costa Rica, even face the situation with humor: “Yes, they deported me and it made me laugh. I just laughed out loud. I didn’t take it seriously. Was I going to say ‘those so and sos’ just because they’d grabbed me? Not me. I just laughed out loud. In the group I was in I laughed about them getting me. They sent me through Los Chiles in a little boat that comes out at San Carlos. Then they put us in a chicken coup. It was fun to be on the run. It’s their job to grab you and send you back.” With that light-hearted attitude, Felipa ignored the deportation, returned to Costa Rica, saved up her money and returned to Nicaragua to turn her little home covered in plastic-sheeting into a house with cinder block walls, sheet metal roof and tiled floor.

7. The act of disobedience must
not jeopardize the rights of others
“We haven’t come to steal,” say the migrants, alluding to an act universally recognized as criminal to contrast their behavior with such acts. Is theft an act of civil disobedience? In certain circumstances it could be interpreted as an act of protest and rectification of an unequal distribution of wealth. But it is also an act that implies direct jeopardy to third parties and therefore can be identified as genuinely criminal by migrants in contrast to their relatively innocuous irregular crossing of borders. The idea that their act damages national sovereignty is a complaint made in the name of an abstraction. Does it jeopardize governability? Rawls sustains that “if legitimate civil disobedience seems to threaten civil peace, the responsibility falls not so much on those who protest as on those whose abuse of authority and power justifies such opposition.”

8. Wanting to correct a repeated injusticeIn the case of the United States, Costa Rica and Spain, there’s not only a refusal to correct the injustice but also an intent to perpetuate, expand and reinforce it. Most legislative changes are aimed in that direction, as the Arizona law testifies. Rawls calls it a question not only of a grave injustice in the law, but also a more or less deliberate refusal to correct it.

9. Trying to produce a change
that eliminates substantial violations
The substantial part to eliminate would be the refusal of entry and legal status. Once this goal is obtained, the foundations would be established to eliminate the remaining injustices: access to a legal process with all legal guarantees, education, health services and work; wages not below the established minimum; and not reducing migrants to second-class residents in the countries of destination. The violations of justice that civil disobedience seeks to rectify are those whose disappearance will establish the basis for eliminating the remaining injustices.

10. Appealing to the country’s citizenry Rawls points out that “the final court of appeal is not the [Supreme] Court, or Congress, or the President, but the electorate as a whole. The civilly disobedient appeal in effect to this body.” Obviously migrants appeal to that final social court once they’ve evaded the immigration controls: businesses hire them, NGOs defend them, activists take to the streets to defend their rights, academics applaud the cultural enrichment their presence adds…

The great civil disobedients

The US lineage of civil disobedients includes emblematic personalities that have marked the country’s history. Henry David Thoureau, whom ecologists consider a kind of patron saint, not only wrote about civil disobedience, but practiced it, refusing to allow his taxes to contribute to the US war against Mexico to swallow up Texas and Arizona. Martin Luther King challenged racial discrimination and called on people to disobey laws that contributed to it. Both forced their country’s legislation to move towards a more equitable and just stage.

Linking illegal border crossings and irregularly settling in the territory of a Nation State with that tradition of civil disobedience implies a conceptual leap. Rawls’ charac-terization of civil disobedience was applied to questions of domestic policy. Civil disobedients who are citizens of a particular country have a socio-political status with respect to national legislation and authorities—as well as respect from public opinion—that’s very different from that of people who lack both citizenship and documents providing evidence of their legally permitted entry.

Rawls bases his argument on the theory of the social contract. What happens to those on the outside who want to enter into the contract, according to Rousseau’s heuristic construction? In the case of migrants, it’s not about certain individuals violating the contract as a way of renouncing it, but rather of forcing their inclusion against the contract’s reluctance to let them in. As a result, the argument for classifying migrants’ irregular entry as civil disobedience is framed in a paradigm in which such acts are set in the context of a transnationalization of civil disobedience. This cosmopolitan conception involves a transposition of civil disobedience to a transnational legal scenario.

That transposition isn’t based on a supranational authority to which migrants can appeal—the United Nations, for example, doesn’t defend them against abuses of the untouchable national legislations—but on one of the principles of universal law, which are the basis of national legal corpuses and make the system of inter-State relations possible.

For the liberal democracies, rights are played out in an inter-State system in which the Nation State is the only political and analytical unit. But such units and their interrelations aren’t politically viable without a mutual recognition based on more elemental principles, such as the right to hospitality and to a minimum group of unquestionable liberties. That’s why Rawls talks about liberties that define the common status of citizenship and insists that “the deliberate denial of these more or less over any extended period of time in the face of normal political protest is, in general, an appropriate object of civil disobedience.”

Pioneers, not victims

The communities of migrants have become aware that they are being victims of vexations that violate their basic rights. They have thus accentuated their protests, taking them to more explicit fields of civil disobedience, such as the boycott of the 2010 census in five US states. The refusal to provide the required information was a way of saying, “OK, you say we don’t exist, so don’t count on us; in fact, don’t even count us.” Breaking with the usual tendency of human rights monitors, there’s an urgent need to stress that migrants aren’t docile victims. Through the hammer blows of their illegal entries, they are building new legal horizons. They are pioneers of another form of civil disobedience.

José Luis Rocha is a researcher for the Jesuit Service for Migrants of Central America (SJM) and a member of the envío editorial council.

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