Friday, August 17, 2018

Venezuelans Living Abroad Can’t Get Their Passports Renewed. They Need a Humanitarian Status, Now.


Missing! Have you seen this booklet?
My Venezuelan friend sent me a text message the other day: “Can the UN help me get my passport renewed? Is there some kind of UN passport I can get? Mine expires at the end of the year and I can’t get a new one.”
In case you were wondering, no, the UN cannot help you get a passport. With the exception of the refugee travel document, passports are issued by states. UN staff members receive a light blue laisser-passer denoting their diplomatic status, but this document does not and cannot replace their passport. In the modern world of international travel, the passport occupies the place of a mythic, sacred object, a talisman of incredible power.
But why would my friend, a well-traveled and successful professional, be having trouble getting a passport?
Turns out the Venezuelan government has stopped issuing passports, or any documents for that matter, to anyone, abroad or in Venezuela. Oh, I’m sure if you know the right people, you can still get one. But most people are simply out of luck until the government decides to start doing its job again. Apparently, the Venezuelan government has signed legislation allowing expired passports to continue to be used for visa purposes, but it is unclear if such documents will be accepted by other countries. (The reasons for the sudden shortage of passports stem from the official claims of lack of paper and ink to rumors that the government wants to prevent people from leaving.) The Venezuelan government can sign whichever laws it wants, nothing can force, say, the government of the United States to put a visa in an expired passport.
In the meantime, other countries need to come up with a plan for any Venezuelans who are left stranded without documents.
Much of the news coverage of Venezuela and passports has focused on the mass exodus to neighboring countries, but the passport issue will effect Venezuelans living all over the world. It is problem for which all governments will have to find a solution. The Irish government is apparently already aware of the problem, but doesn’t seem to have come up with a solution yet.
The easiest solution would be to provide Venezuelans without documents a temporary humanitarian visa and travel document. But whatever the solution, governments should take steps to resolve this now, and not wait for large numbers of people to be left stranded without a solution.

Tuesday, July 24, 2018

There Is a War Coming Over “Birthright Citizenship” (jus soli) in the US and No One is Ready


Most Americans are shocked that 80% of the world’s countries do not let you be a citizen just because you were born in that country. When I traveled to Australia a few years ago while pregnant with my son, a friend, a lawyer no less, joked that if I had my baby there, “he will be Australian!” She actually thought that if I had my baby in Australia, he would be an Australian citizen.
Jus soli, or “birthright citizenship,” as Americans usually call it (reflecting the fact that it occurs automatically at birth,) is written into our Constitution, despite what some Trump administration officials would have you believe. I will not plunge into the logic of the argument that the 14th Amendment says something different from what it plainly says (plenty of others have done soalready), nor do I wish to spend the time to point out that the history of the Americas in general is one of automatic jus soli for countries that have so long received large numbers of immigrants, and that it is firmly based in the English common law, nor do I want to speak of the very real problems jus sanguinis countries are experiences today as they struggle with statelessnessand excluded minority groups.
While Trump administration official Michael Anton’s op-ed in the Washington Post came as a shock to many people, in reality he is merely putting forth the opinion of many far-right nationalists, an opinion they have been mulling over and working on for years. The fact that Michael Anton had a job in the Trump administration means that these views are no longer “fringe” as some people continue to hopelessly claim, but have very much entered the mainstream. At what point to we accept that a large number of Americans, both inside and outside of academia, support the end to jus soli? That many people voted for Trump to achieve just such an aim and that Trump is now searching for judicial appointments that will use the law to achieve these ends? Is anyone who believes in a multi-cultural, plural America prepared for the coming war?
We are lucky that the right to automatic jus soli is written so clearly into the Constitution and that we have prior Supreme Court cases, chief among them Wong Kim Ark, to support our view. Sure, history, facts and the Constitution are on our side. But laws can be changed and Constitution is always up to interpretation, no matter how strong a precedent may seem. The radical right has been working on this issue for years and they have long had a fair amountof support in the government. Yet while the radical nationalist movement in the United States has already placed champions in key positions in the Trump administration, academia and elsewhere, including people like Michael Anton and Steven Miller, there are few left-leaning civil society group in the United States working to protect jus soli.
Conservatives have been arguing about jus soli for quite some time and many prominent conservatives support it, or are at least having a dialogue about it as a matter of public policy, but neither the center-left nor the far-left are engaged. The issue might as well be invisible. While many civil and immigrant rights organizations and lawyers support jus soli, the issue barely registers for larger American advocacy groups, or within even the radical left wing of the Democratic Party, or among liberal activists who work outside the party. Nor is it a topic of conversation for more mainstream groups. It was not an issue raised by either Hillary Clinton or Bernie Sanders during the 2016 election. We are, quite frankly, asleep at the wheel.

Friday, July 6, 2018

Statelessness and ISIS

This week, the New York Times published a story on the women and children left behind by ISIS. With the destruction of much of the Islamic State, thousands of women and children have been left in limbo, their countries of origin refusing to take them back.


While armed conflict is always a cause of statelessness, the situation of many of these women is unique. Though they may not have formally renounced their nationality before joining ISIS, many joined the caliphate with the intention of becoming a member of an autonomous, Islamic society. Now, with the destruction of the Islamic State, they are being treated as though they renounced their original nationalities - as though they are stateless.


While the Western media depicted the Islamic State in wholly negative terms, particularly in regards to its treatment of women, many women saw an opportunity to help create a utopian, Islamic society devoid of western influence and interests and the globalization that has swept away traditional life across the world. While many may dismiss this goal as dangerously na├»ve, in the eyes of many recruits, the Islamic State offered an alternate society.


The limbo now experienced by many former female members of ISIS shows the enduring emotional and psychological connections that define membership in a state, beyond the fact of identity papers or registration. While technically foreign-born members of ISIS had a nationality in some state, in essence, they had renounced this nationality in order to take on the nationality of ISIS. Trust between these citizens and their former states has been broken, a trust that is fundamental to the relationship between citizen and state, and one that is not easily mended.

Thursday, June 14, 2018

Ending China's One Child Policy Is Only the First of Many Steps to End Statelessness in China

According to a noted Chinese expert's recent op-ed in the Washington Post, China may be considering ending its hated one child policy. Among the other abuses well documented by the media is the fact that many children in China are born invisible to the state and illegal under the law. These children are stateless or at risk of statelessness, unable to obtain documents such as the required hukou, or household booklet, and living in the shadows, unable to work or attend school.

Even if the policy ends, it will not be easy to obtain a citizenship for those "second children" who are living without documents. Governments around the world often struggle to rectify past registration gaps. Many governments fear the social and political impacts of mass enfranchising large groups. Families who end up with stateless members often come from poorer areas or minority ethnic groups. Sometimes, while a program may be created by the government, individual stateless people are told they don't qualify or are accused of fraud.

The best way for China to rectify the problem of statelessness for "second children" born under the One Child Policy would be to institute a period of blanket registration for families who can prove residency in China. Such an exception to China's nationality law would require a massive public relations campaign to inform families of their rights. Governments tend to not be very good at such programs. Will stateless people themselves be able to take part in crafting the solution? Governments often forget to consult the very populations they are trying to help.

The end of China's One Child Policy will not be the end of the suffering of stateless Chinese, unfortunately, but only the first step in a long journey towards acceptance. It will remain to be seen if the government is serious about redressing past wrongs, or merely wants to sweep the mistakes of the past under the rug.

Tuesday, June 12, 2018

Jeff Sessions Makes Himself The Biggest Threat To Women and Gay People Worldwide


Make no mistake: I am dangerous.
Jeff Sessions doesn’t look like a dangerous guy. On Saturday Night Live, he is often portrayed as a large rodent, or perhaps a possum; something with a long tail. Or alternatively, as an imp or Forrest Gump. Something annoying and gross, but not particularly dangerous. But while he may not seem like the most dangerous Trump appointee, make no mistake, he is.
Back when the 1951 Refugee Convention was drafted, despite the input of Eleanor Roosevelt, gender and sexual orientation were not thought of as a possible grounds for persecution. During the discussion on the grounds for persecution of people by their governments, the issue of gender persecution never came up, nor did the subject of homosexuality, which was a fertile grounds for persecution in most countries, including the United States. As a result, while the Nazis became famous for their persecution of Jews, Communists, dissidents, Roma and disabled people, their gender and sexual persecution was not acknowledged and continues to be under-explored today.
But as Jeff Sessions undoubtedly knows quite well, the Nazis persecuted both homosexuals and women on account of their perceived sexual deviancy and promiscuity. They also used gendered violence and rape as a means of persecution, particularly for gay people and strait women from targeted racial groups. Meanwhile, “Aryan” women were subjected to coercive programs to encourage them to have a minimum of four children and were bared from working, at least until they were needed to fill jobs. These facts have been largely obscured, unfortunately, because we continue to persecute women and gay people around the world, including in this country, for the same reasons.
To fix the lack of gender and sexual orientation as a grounds for persecution, UNHCR and the United States have begun using the “other social group” category to provide protection for women and gay men from gendered violence and persecution. Yesterday, Jeff Sessions just rolled back 20 years of progress in the United States on this issue. In so doing, he is taking advantage of the original oversight of the drafting committee of the 1951 Convention and, in Trump fashion, pretending that he is simply enforcing the law as written. The Nazis would be proud.
To do so, Sessions has made use of the inherent bias within the popular conception of a refugee to make it impossible to see the persecution of women, children and gay men as anything other than an accidental byproduct of instability.
Countries don’t have “problems” policing certain crimes, the police are used as weapons to keep certain populations in order and to control societal norms of behavior. Where the police stop performing this function, vigilante groups and gangs of strait men will be happy to do it for them and then be celebrated for it in popular culture.
Unfortunately for many women, minorities and gay men, the United States is no safe haven from gendered violence. In fact, the United States excels in taking a group of people responsible for persecution and flipping the story around to make them the victims. I’m surprised there isn’t a Hollywood movie about how the Nazis were misunderstood victims of globalization and technological change, but maybe Sessions and Steve Bannon can do that next.

Friday, May 11, 2018

What If Cities Issued Visas? Introducing the City Visa Program!

In 2017, the mayors of 130 cities around the world, including 18 in the United States, petitioned the United Nations to join the forthcoming Global Compact on Migration. A group of mayors also asked UNHCR to give input on the drafting of the Global Compact on Refugees. Neither compact is exactly innovative or earth-shattering, but at least the process has gotten the nations of the world to sit down and talk to each other about migration and displacement.

But why did the world's mayors have to petition the UN to be included? The compacts are being negotiated at the nation-state level in a time of increasing nation-state hostility to migration and refugees. Yet this hostility is not always reflected by the governments of the worlds' largest cities. As a spokesperson for the New York City Mayor's office put it; “(c)ities are pushing for a seat at the table at a time when many national leaders are increasingly isolationist – and even xenophobic – and disconnected from cities’ values of inclusivity and growth.”

Immigration has become the lifeblood of cities. In New York, for example, immigration is outpacing domestic migration. As the Rockefeller Foundation puts it in their report Global Migration: Resilient Cities at the Forefront; “(r)egardless of their reasons for arrival, the overwhelming majority of migrants (from abroad) now remain in cities, and are helping shape their future.” Today, cities house, transport and employ most of the world's migrants and refugees.

Yet it is exclusively national governments, not cities, who issue visas, police borders and airports, accept refugees and sign migration agreements. In this way, immigration policy is very different from environmental policy, which is an area where cities control many aspects of environmental law, such as limits on pollution or incentives for green technology. On immigration, by contrast, cities control almost nothing and states control almost everything. This skewed power dynamic has led to a global conflict within many states over immigration policy which threatens to tear the entire nation-state system apart.

This raises an interesting question: if immigration so deeply affects cities, should the Mayors of cities like New York be able to issue their own visas? If cities want to take the lead on migration policy, why don't we help them do so?

A System for States, Not Cities

Immigration controls and global migration policy are recent inventions. In 1861, the popularity of rail travel led France to abolish its recent passport system. Many other European countries did the same. Countries reintroduced a revamped and strengthened system of passports, visas and movement restrictions during World War One, which saw the introduction of the booklet passport. The League of Nations hoped that the new passport system would be “temporary,” a product of wartime necessity. They could not have been more wrong.

Today, passport checks, retinal scanners, customs forms, border checkpoints and immigration detention centers have grown up like weeds around the edges of the nation-state system. National governments enforce borders through a global system of laws backed by violence and fear. Much immigration policy is rooted in the end of the colonial period, when mass European migration, facilitated by Empire, shifted to what Leopold Sedar Senghor called the “balkanization” of the former colonies. Immigration restrictions prevented reverse migration back to Europe and, increasingly, migration between different parts of former colonial empires. Perhaps no group of people better symbolizes this shift than the UK's Windrush Generation, recently labeled as “illegal immigrants” by their own government.

The Rise of Global Capitals
Yet post-colonial borders have not halted migration. Far from it. Cities like Legos and New York are booming in large part thanks to international migration. In particular, rural-urban migration within and between countries has skyrocketed, creating global mega-cities. These global capitals contain populations of over twenty million people, a sizable percentage of which is foreign-born. They benefit economically, socially and culturally from immigration, even as rapid growth strains housing and infrastructure. Instead of halting this process, the global system of borders has simply served to push much of this mobility underground, fueling fraud and criminal gangs.

Yet highly restrictive policies on immigration continue to be set by nation-states around the world, while cities are often held hostage by the priorities of non-urban areas. The French immigration system ignores the fact that the immigration needs of Paris, France are totally different from those of Limousin, France. The conflict between states and cities can be seen around the world in countries from Malaysia to South Africa, where the need for workers has often clashed with concerns over changing demographics, economies and cultures to produce a contradictory hodge-podge of policies.

Of course there are a few exceptions: Singapore is both a city and a nation-state and, arguably as a result, has a relatively liberal immigration policy and an extremely high foreign-born population. As Migration Policy Institute put it in 2012, Singapore is a “transit point of the world” and its immigration policy reflects this fact. Like many cities, Singapore struggles with immigrant integration, but a liberal immigration system has allowed Singapore to manage its aging population and fuel its economic growth. Other cities do not enjoy such control over their own destinies.

New York: The Global Capital of a Nationalist State

New York City is a great example of the tensions between immigration policy in the United States, which is set by the US federal government, and the needs of its largest city. Unlike Singapore, New York is both a global capital and the largest city of a vast nation-state. Like most cities, New York has little control over the flow of immigrants attracted to its booming economy and rich culture.

Though New York is a so-called “sanctuary city,” it cannot unilaterally regularize the status of its undocumented immigrant population. Nor can it offer more H1-B visas to attract skilled migrants or ease the procedures for foreign students to attend its universities. It cannot create an exchange program with other cities with which it may have a particularly close relationship, nor offer dual citizenship to New Yorkers with significant ties abroad.

In fact, the New York City government has almost no role to play in immigration policy at all. Each year, American businesses, including those located in New York, go hat in hand to the Federal Government to request much needed H1-B (skilled labor) visas. In 2015, for example, all of the visas went to fourteen of America's biggest cities, including New York. From 2010 to 2016, New York City received by far the most H1-B visas of any location in the country. Yet the government of New York has no control over the H1-B program.

At the same time, the US government has recently sought to force so-called “sanctuary cities” like New York to comply with federal immigration policy, despite the fact that the local government of New York City does not see the deportation of its undocumented population as a priority. As of 2017, New York City had a 37% foreign born population, including over 700,000 undocumented immigrants. The lack of local control of immigration has led to a disconnect between the US federal government and the United States' biggest city.

New York City has done much to try to provide services to immigrants and ease their integration, including by creating the Mayor's Office of Immigrant Affairs. The city also issues a city identification card available to all. Yet New York cannot solve the underlying legal problems faced by the city's undocumented population or offer visas to families and businesses who wish to bring immigrants to New York. On most matters related to immigration, the Mayor's hands are tied.

The City Visa Program

But what if New York could issue its own visas?

Enter the City Visa Program. City Visas would give their holders all of the rights of national visas with one important exception: the holders of City Visas could only reside and work within qualifying cities. A City Visa holder would have to establish his/her principal place of residence and employment, if s/he is working, in a participating city. Employers of City Visa holders would have to certify that all City Visa employees are employed within a participating city. City Visas would automatically allow the holder to transit, visit and even stay temporarily in the rest of the United States, but residence and employment would be available only in a participating city.

City visas would be available in both immigrant and non-immigrant categories, including City Green Cards (Lawful Permanent Residence Status). City Visa holders who wished to become US citizens could apply for expedited Lawful Permanent Residence status under federal law.

But would such a program be constitutional? There is no doubt that the creation of a new class of visas can only be accomplished by the US Congress. The power of the US federal government to control most aspects of immigration law has been upheld repeatedly by the US Supreme Court, most recently in Arizona v. United States. US immigration is currently regulated by the US Immigration and Nationality Act, a federal law.

Yet, as the late Supreme Court Justice Scalia once argued, while the Constitution mandates that the Federal government control naturalization and foreign affairs, there is no clear Constitutional basis for the federal government assuming complete control of immigration. In fact, until the 19th Century, individual states used to employ immigration controls. Many conservatives in the US might welcome a program that would give cities more power over immigration to cities in exchange for more cooperation with federal immigration laws.

Under the proposed City Visa Program, Congress would grant the authority to issue City Visas to a panel of participating mayors. Participating mayors would meet once a year to set City Visa quotas in cooperation with the US Department of Homeland Security. The City Visa Program could be passed as a stand-alone law, or as part of Comprehensive Immigration Reform. One day, the US City Visa program might be linked to City Visa programs around the world.

Why City Visas?

If there is one thing that both pro-immigration and anti-immigration advocates can agree on, it's that the current global migration system is not working. A lack of consensus on migration policy is arguably tearing the nation-state system apart. But unlike past decades of burned fossil fuel emissions, migration law is something that can be changed.

Imagine a future where the world’s global capitals, from New York to Lagos, are connected together by a single visa system. Does this sound impossible? Now imagine traveling back in time and telling a British man he would one day need a visa to visit India. He would probably have been incredulous. The system of visas and borders we inherited from the end of the colonial period is neither set in stone nor necessary. And if the conflict over immigration to cities is pulling countries apart, who better than cities to fix it? Migration challenges will require innovative solutions. Who better than cities to lead the way?

***Update: It seems other city advocates have thought of similar ideas. See here from 2012.

Tuesday, May 8, 2018

A Creepy Tour Through the New State Department Website


Today I had reason to peruse the State Department website for the Bureau of Population, Migration and Refugees (PRM.) Most Americans have never heard of PRM. If you have ever been the recipient of US foreign aid, then PRM is where the money comes from. It’s the State Department bureau, along with USAID, that allots money for overseas refugee and humanitarian assistance. Much of its budget goes to UNHCR, but money is allotted to a smorgasbord of other UN agencies and NGOs, from the Red Cross to UNICEF. PRM also runs the overseas part of the refugee resettlement program. Each year, PRM and USAID are responsible for the majority of humanitarian assistance.
I couldn’t find what I was looking for (an initiative on gender equality in nationality law begun by former Sec. of State Clinton), so I went to the archive from the Obama administration to see if the info I needed had been erased. There, I was greeted by a posting devoted to John Kerry’s farewell, his face looking out at me like that of an ancient Egyptian pharaoh, so long ago does it now seem since his day and time. The CIA is Secretary of State now.
The archived PRM website from Kerry’s time contains a long list of things the Trump administration hates: Syrian refugees, LGBTQ refugees, gender-based violence prevention.
In the brave new world of the Trump administration, the first page of the PRM website is just a blank. The long list of Kerry initiatives and projects has been deleted. There is no mention of Syrian refugees. The Syrian refugee crisis is inconvenient to several of the world’s leaders, so it has been erased. The section on International Migration is also gone, similarly inconvenient.
All the Fact Sheets, Remarks and Press Releases of the previous administrations are also gone as though they never existed. While in 2016, PRM released over 20 Fact Sheets on topics ranging from the resettlement process to education funding in Somalia, today’s PRM has released only one, on what is left of the resettlement program.
In George Orwell’s classic book 1984, the main character, Winston, has a job at the “Ministry of Truth.” Winston’s job is to erase history by rewriting or destroying old newspaper articles. In Orwell’s book, the government makes its own truth by erasing anything that is inconvenient. Both inconvenient truths and inconvenient people are erased.
As I read the new PRM website, I can’t help but wonder whose job it was to erase the page on Syrian refugees from the PRM website and to wonder what his or her day to day life has been like in these past two years. Was it horrible for them to do that? Did they protest? Did they resign? I also wonder what Syrian refugees think about being erased from history by the world’s only super-power, wealthiest country and the location of the drafting of the 1951 Refugee Convention.
War is Peace. Freedom is Slavery. Ignorance is Strength.