"The Pains of Seeking Asylum: Punishment from Border Crossing to the Cold Hieleras": (by Nancy Rios-Contreras) Review 2

Vote: Publish pending major changes.

The qualitative study has produced interesting and compelling data supporting arguments against both the current system of migrant detention facilities as applied to asylum seekers and the now-defunct Migrant Protection Protocols (MPP) program. This on-the-ground data obtained during the first year of the MPP program, with the last interviews carried out just two months before the program’s suspension, make it especially significant for understanding that particular period of intensified implementation of migrant deterrence policies in reaction to the arrival of a series of highly sensationalized migrant caravans at the US southern border beginning in November of 2018. The specific data cited in the study strongly support the author’s arguments regarding the inhumane and unjustly punitive treatment of asylum seekers arriving at the US southern border. This study represents a potentially important contribution to a critical body of work on the US asylum process for migrants arriving by land to the US; some key works of this literature are indeed cited here (Abrego, García Hernández, Heyman/Slack/Guerra, Menjívar/Abrego, among others).

The article’s weakness lies in its heavy-handed framing, which focuses mainly on other studies. The introductory framing of the data itself is cursory and confusing.

The initial framing includes a series of sometimes inaccurate, hyperbolic, or reductive declarations, a tendency that extends throughout the article in the author’s commentaries. These statements, taken collectively, give the impression that the study is not objective but that its conclusions are predetermined based on the author’s beliefs and political biases. Since the data is presented as a series of quotes, with very little summary data presented, the reader has the impression that the study’s conclusions may be preconceived; i.e., it is not clear that they have been derived from the data.

While the article’s larger argument that the US immigration detention system is an extension of the US as a “carceral state” may be supported by some of the data, its use in framing the data ends up nearly drowning out the voices of the migrants by creating the impression that the author may be cherry-picking data to support preconceived arguments about larger ideological issues.

A few examples might help to clarify:’

• “The rise of the War on Terror is grounded on the idea that terrorists are crossing the Mexico-United States border, thereby criminalizing any migration regardless of whether it is authorized or not” (p. 2)

It is not true that “any migration” was criminalized due to the War on Terror. Nor is it true that the War on Terror “is grounded on” a fear of terrorism emanating from the US southern border. This argument is hyperbolic and imprecise. It might be said that an offshoot of the War on Terror (which perhaps is grounded on a fear that Muslim radicals may be in the US, or may enter the country, whether by air or by one of the US land borders) focuses on the mostly Mexican and Central American migrants seeking to enter the US from its southern land border. However, it should be noted that there was very little attention to asylum seekers in the early 2000s – in fact, the vast majority of migrants arriving at the US southern border until at least the 2010s were assumed to be (and almost always represented themselves as) “economic migrants.” Asylum-seeking did not become a major resource for migrants at the US southern border until the mid to late 2010s.

• “Asylum deterrence practices include the implementation of metering, Migrant Protection Protocols, and the Third Country Rule, to bar current asylum applicants and others from even considering migration” (p. 3)

None of these policies can “bar” people from “even considering” migration; rather, they seek to discourage migration. The latter policy is usually known as the Third Safe Country rule.

• “Global deportation regimes are enforced through border patrols, detention, and incarceration” (p. 3)

It is not clear what incarceration has to do with global deportation regimes. Most convicted criminals (including those sentenced to incarceration) are not deported, and most migrants who get deported are never incarcerated.

• “An explanation as to why this wasteful and useless practice [immigrant detention] continues may be its popularity among some voters” (p. 4)

The author here implies that it is “useless” to detain migrants who cross the border without authorization (without a visa or at an unauthorized crossing point along the border) and also implies that “some voters” who believe at least some of these migrants should generally be detained are utterly wrong in their thinking. While it might be true that detention is costly and that it does not deter many asylum seekers, the fact that all those crossing the border without authorization are not legitimate asylum seekers (others may commonly range from “economic migrants” who cannot legally justify initiating an asylum claim to drug smugglers). The rhetoric of “uselessness” and the accusatory language directed toward “some voters” end up sounding more like the rhetoric of political discourse than academic reason.

• “Ideally, the initial encounter [with Customs and Border Protection or other US authorities] should be a positive and productive humanitarian experience considering migrants are fleeing violent conditions in countries of origin and are in situations of heightened vulnerability during transit” (p. 4)

This declaration makes sense for migrants fleeing violence. However, it may not make sense for other categories of unauthorized border crossers. The author seems to take for granted that all those arriving at the US southern border are refugees fleeing mortal danger. I think this position is hard to sustain – however, the author might have looked to their data to make the case but did not do so. It is unclear from the data presented here what proportion of migrants interviewed claimed to be fleeing violence. Still, I know of no study that effectively argues that all migrants crossing illegally into the US are fleeing danger. A less hyperbolic argument might be that CPB ought to generally treat migrants respectfully and acknowledge that many may have legitimate asylum claims.

• “California has a problem with prison overcrowding that suggests the state, in particular, is not addressing mass incarceration in the criminal justice system and in migrant detention centers as well” (p. 14)

Whether or not California has a problem with prison overcrowding seems irrelevant to a study on immigrant detention, as immigrant detention centers are not managed by the state but rather by the Department of Homeland Security. This is one of a series of peripheral comments on the carceral state that distract and detract from the author’s otherwise compelling arguments.

There are many more imprecisions of this kind throughout the article, but this sample gives an idea of some generalized tendencies.

I believe this article could be improved by focusing more specifically on the use of detention centers for asylum seekers and the encounters of migrants with CBP officers. I don’t think it is helpful to cite studies on the use of detention centers for purposes relating to the deportation of undocumented migrants or migrants convicted of aggravated felonies (e.g., studies by Golash Boza, De Genova) since the data here do not offer any insights regarding any migrants other than those arriving at the US southern border to seek asylum. Nor is it helpful to frame this study within larger arguments against the US systems of incarceration; again, the data addresses only asylum seekers, and the arguments being made here to link these two (related) themes are stated with affirmations that are imprecise and often hyperbolic – and distract significantly from what the data offers.

In other words, I think the initial framing (pp. 2-3) should be condensed, while the lit review on immigration detention (pp, 4-5) should be reviewed for precision.

The author should also be more clear in discussing the sample for the study. The article states that 40 participants out of 100 had spent time in a detention facility. This would seem to imply that the other 60 migrants had not (yet) crossed the border to the US; in other words, the relevant sample for this article would appear to be the subset of 40. If this is the case, it would be interesting to know the breakdown by nationality and gender of those 40 migrants. If this is not the case, there should be some clarification regarding the experiences of the other 60 migrants. There should also be some clarification of why the sample included mainly women (81%). This obvious gender bias in the sample is not explained nor reflected in the analysis.

It would also be interesting to know what kinds of claims these migrants plan on making. It is probably impossible to determine through a study of this type what proportion of the participants have personal histories that may align with US asylum law. However, a survey conducted by COLEF in Dec. 2018 of 907 caravan migrants in Tijuana indicates that over 50% had left their country primarily due to “falta de empleo o medios económicos.” It seems unlikely that all 100 migrants in this sample were fleeing violence (unless the author implemented some procedure to exclude economic migrants from the sample), and it is inappropriate to imply, as the author does, that all of them are refugees from violence if that is not the case.

It would also be helpful to understand any nuance the data may imply. I mean that while the quotes selected make a strong case, some comments imply that the author’s arguments may be overstated. For example: “More than half of migrants who were detained or who turned themselves in to border patrol were treated well by border enforcement officials” (p. 8). It would be interesting to know more generally what proportions of migrants referred to the different issues presented – e.g., deprivation of care, racism/colorism. In the latter case, if the hypothesis/conclusion is that darker-skinned migrants are treated worse than lighter-skinned ones, is that tendency reflected somehow in the data? Do the darker-skinned migrants of the study report greater mistreatment? More overt racism?

I hope that in a future draft, the author can resist inserting opinions (e.g., “Since the border crossing aim is to claim asylum and requesting asylum is protected under international law, time in detention should not be punishment-based”), but rather limit the body of the article to summarizing, clarifying or synthesizing the very compelling data presented by the informants – i.e., that the author will resist allowing their own larger ideas from muffling the articulations of the migrants. (Some of these larger ideas can be added later in the article).