Nevertheless, Mukul Sharma finds himself questioned and detained by immigration authorities all over the world. Why is it that governments claim the right to exercise authority over their borders, but more often than not forget their obligation to respect the rights of people?
Migration is a fact of my life. I first moved to Delhi to pursue my education. Later, I often left my country to work abroad. Immigration increasingly became tiresome for me – various counters, security checks, scanning, and questions began to wear me down. I carry little baggage, but I believe that my family and I must carry all our rights with us when we move. I am a human being, whether I am documented or not. Immigration systems and detentions need reforms and alternatives to ensure that I am treated with full respect for my rights and human dignity. We need to support each other – otherwise tens of thousands of individuals will continue to be harassed and detained tonight, tomorrow, and the next day.
My fears are not imagined. They are based on ground realities. A number of official reports, by the United States Government Accountability Office and US Department of Homeland Security, tell me that more than 30,000 immigrants are detained each day in USA. More than 300,000 men, women and children are detained by US immigration authorities each year. This number is likely to further increase in the future. Their detention and harassment may be for hours or weeks or even years, as they go through various inquiry procedures. They are political activists, Muslims, asylum seekers, labourers, victims of human trafficking and others. It is the widespread use of immigration controls and detention that has forced US immigration authorities to contract with approximately 350 state and county criminal jails across the country to house individuals, pending deportation proceedings. Approximately 67% of immigration detainees are held in these facilities, while the remaining individuals are held in facilities operated by immigration authorities and private contractors.
I once heard James Pendergraph say: “If you don’t have enough evidence to charge someone criminally but you think he is illegal, we can make him disappear.” James is the former Executive Director of the Immigration and Customs Enforcement (ICE) Office of State and Local Coordination, and he was speaking on August 21, 2008 in Washington DC at the Police Foundation National Conference on ‘The Role of Local Police: Striking a Balance between Immigration Enforcement and Civil Liberties’. Another day a primetime programme on a national news channel, ‘Dobb’s Choice: CNN Host Picks Immigration as His Axe to Grind’ was saying: “Illegal aliens… not only threaten our economy and security, but also our health and well-being”.
Several of my college friends have been migrating to USA since a long time and have established themselves well over there. Even today, the Yearbook of Immigration Statistics 2007 suggests, approximately 1.8 million people migrate to the United States every year. The vast majority have official authorisation to live and work in the United States. A minority reach the country as unwanted, unauthorised, suspected or security threats. However all, irrespective of status, go through a rough immigration regimen. Governments claim the right to exercise authority over their borders; but they more often than not forget their obligations to respect the rights of people, no matter who they are, how and when they reach the host country, or what prompted them to leave their home country.
There are multiple arms of immigration control and detention, each getting stronger and wider. In 1996 itself, the US significantly expanded the categories of individuals who would be subject to mandatory detention to include a person convicted of a variety of crimes, including non-violent misdemeanour convictions without any jail sentence, and anyone considered a national security or terrorist risk. If already in the United States, a person is subject to mandatory detention if he or she is suspected of being a national security or terrorism concern, or is charged under immigration law with two “crimes involving moral turpitude”, an “aggravated felony”, a firearms offence, or a controlled substance violation. If he or she is “seeking admission” into the US, even as a lawful permanent resident, he or she is subject to mandatory detention if charged under immigration law with one crime involving moral turpitude, prostitution, domestic violence, or if he or she has received any number of criminal sentences totalling five years or more.
How broad and confusing terms like aggravated felony and moral turpitude can be, subject to different interpretations, is revealed by the following example. A 37-year-old lawful permanent resident, who had lived in the United States for 18 years, was deported to Haiti for two convictions for possession of stolen bus pass transfers. The immigration court found that these convictions constituted two crimes of moral turpitude, a decision that led to his deportation. Such immigration laws, almost unknown some years ago, have helped in the manufacturing of an almost transcendental entity, the nation-state.
Indian superstar Shah Rukh Khan was detained for a couple of hours at an airport in the US recently. His name caused the inquiries. My name is not Khan. I am an Indian, an Asian. And I am not the only one. There are hundreds of identified cases over the past 10 years in which even US citizens and lawful permanent residents have been targeted by immigration agencies. On one of my visits, I read the story of Sam Kambo. He was married with four children, all US citizens, had been living in the United States for 12 years and was applying to become a lawful permanent resident. He was detained in October 2006 by immigration authorities and charged with taking part in politically motivated executions in his native Sierra Leone. In June 2007, an immigration judge found that there was “no credible evidence” to tie him to crimes in Sierra Leone and ordered him released from immigration detention on bond. However, the ICE immediately appealed this order and Kambo remained in detention. A US district court finally ordered immigration authorities to release Kambo in October 2007, nearly one year after he was first taken into detention. The US government has appealed against his release.
I wanted to move around the world. Here I am, stopped by immigration authorities in different countries at different times, often not knowing what is happening and not understanding what my fault is. Unlike other areas of law and natural justice, I have the burden of demonstrating that I should not be deprived of my liberty, rather than immigration authorities being required to prove that their procedure is necessary and correct. I am the one who has to ignore, forget, forgive the excesses and illegalities, injury and insults of immigration.
Will border regimes ever change? In September 2008, ICE announced many voluntary guidelines that will be implemented in a few years to humanise the system. Will they work? Till they do, I can move only if I have the courage to challenge detention. Will I be able to remind the immigration authorities, including of the US, that entering or remaining in other countries, even without proper authorisation, is not a crime, it is a civil violation? And that my right to freedom, liberty and work cannot be taken away, as migration is intrinsic to my existence?
(Mukul Sharma is a writer and development professional. He has worked with Heinrich Boell Foundation, ActionAid International and Amnesty International)
Infochange News & Features, August 2009