"The Pains of Seeking Asylum: Punishment from Border Crossing to the Cold Hieleras": (by Nancy Rios-Contreras) Review 1

Vote: Publish pending minor changes.

In The Pains of Seeking Asylum, author Nancy Ríos-Contreras presents the findings of a qualitative study examining migrants’ experiences with immigration detention in the United States. This is an important topic in the academic literature and political and legal developments. The paper’s greatest strength is its analysis of the various forms of violence reported by the study participants. The paper’s weakness lies in its underdevelopment of some of the author's theoretical interventions. On that note, the paper would benefit most from defining what is meant by “violence.” The author is clearly deploying a broad understanding of the term, including time in detention centers (page 3) and family separation (page 9). These are quite different phenomena that must be linked by some clear definition. Relatedly, the author does not define the term “punishment.” One common definition is that punishment involves an expressive function. See Joel Feinberg, The Expressive Function of Punishment, The Monist (July 1965). I don’t see any suggestion of that or even grappling with the possibility. On this point, the author claims that family separation is the greatest punishment that migrants suffer (page 15).

While intuitive, I didn’t find support for this proposition in the data. In addition, the author’s claim that migrants are “denied the right to be treated as human” (page 16) could benefit from grappling with Hannah Arendt’s “The Origins of Totalitarianism.” There Arendt claims that to be treated as a human is worse than to be treated as a citizen. A person is only treated as a human once denied the right to be treated as a citizen. The treatment that Ríos-Contreras describes fits neatly into Arendt’s claim that being treated as human is not a positive development. As a human, but not a citizen, they are denied the right to make a claim on the state. Here, perhaps the human rights framing that appears at the beginning of the paper (page 3), but isn’t developed later, might be helpful. One final minor point: "Crimes against humanity" has a particular meaning under international criminal law, so be careful with using this phrase in other ways (page 16). Under the Rome Statute, for example, it has an 11-part definition. See Part 2, article 7 of https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf. I’m not clear how it’s being used in this paper, but certainly not in that well-understood way.