(DIS)PLACING THE LAW: LESSONS FROM SOUTH AFRICA ON ADVANCING U.S. ASYLUM RIGHTS.

Author:Amit, Roni
 
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TABLE OF CONTENTS INTRODUCTION I. The Power of Law in Adverse Sociopolitical and Policy Contexts II. Asylum Law, Policy, and Practice in South Africa A. The Legal Framework B. Judicial Rights Enforcement C. Policy and Practice 1. Policy Preferences 2. Street Level Actors and Policy-Gene rating Processes 3. Executive Intransigence III. The Changing Immigration Landscape in the U.S. A. The Legal Framework B. U.S. Policy and Practice 1. Policy Preferences and National-Level Changes 2. Street Level Actors 3. Executive Intransigence IV. Drawing Comparisons and Differences CONCLUSION INTRODUCTION

Outside of a migrant processing area, individuals and families with small children, some of them babies, have set up a makeshift camp:

[Individuals] weaved among sleeping babies, stepping over a Peppa Pig lunch box, a Moana coloring book, and dwindling stacks of bread and diapers. Fathers doled out powdered milk mixed with water in bottles to whining toddlers. Mothers strung underwear up on the cyclone fence sides. (1) Left to fend for themselves, these men, women and children live and sleep outside for days or even weeks as they wait for a chance to apply for asylum. While asylum seekers sleeping outside of refugee reception centers is a familiar scene in South Africa, the account above describes the situation at a U.S. border crossing. (2) U.S. efforts to deny access to the asylum system parallel earlier efforts in South Africa, giving rise to similar scenes of desperation. Responding to a localized migration crisis, South Africa was an early adopter of heightened asylum restrictions. As such, it may provide important lessons for advocacy efforts in the U.S.

Restrictions on asylum, as well as the controversial family separation policy, are just some of the changes under the Trump administration that have reshaped the immigration landscape. As I will argue, these changes underscore the limits of formalistic understandings of asylum protection, what Stuart Scheingold termed "the myth of rights." (3) Advocates employing a language of legal rights and obligations turn to the courts to enforce these concepts. These legal battles may stop the most egregious violations, while also raising awareness and elevating public scrutiny. But court victories must contend with the reality that outside of formal legal spaces, the law operates within a sociopolitical context. Actors in these non-legal arenas generate their own legal interpretations and implement practices based on their understandings. These practices take place in spaces that may fall outside of the reach of formal law. As a result, formal legal protections may tell us little about the lived realities of migrants, and legal challenges aimed at enforcing formal protections may have a limited impact.

This argument applies to the law generally, but it carries particular weight in the asylum context. This is because, in practice, rights are held against the state and are negotiated through the political process. What sets asylum apart is that fact that an asylum seeker by definition has no state against which to make rights claims. Asylum seekers lack what Hannah Arendt termed "the right to have rights," which is premised on belonging to a political community. (4) Claims that are negotiated outside of citizenship are more likely to be contested in multiple spaces at the national and local level. The rift between the rights holder and the state creates a space for competing understandings of law, rights and justice to displace the legally based rights around asylum. These contested spaces mediate rights enforcement and render asylum as an extra-legal space by effectively placing the asylum seeker outside of the reach of formal law.

Building on existing understandings of courts and change, this paper explores the impact of these contested legal spaces. It employs a street level organizational approach in combination with frameworks categorizing executive non-compliance to explore the power of law in an adverse sociopolitical and policy context. The argument highlights two factors that may affect the outcomes of legal advocacy around asylum: autonomous bureaucratic or "street-level" actors (public service actors who are directly interacting with citizens) who are pursuing decentralized policies that diverge from legal norms and an intransigent executive pursuing policy initiatives that similarly diverge from the legal framework. These centralized and decentralized policymaking processes show that the power of law rests not on the institutionalization of the rule of law alone but is also contingent on the sociopolitical context in which the law is embedded. In the case of asylum, these processes take on added significance because the asylum seeker occupies an exceptional space removed from the entitlements that accompany citizenship. In this space, the asylum seeker can hold neither the street level bureaucrat nor the policy maker accountable through the political process.

As the U.S. increasingly adopts immigration policy decisions that directly confront legal protections and the rule of law, the experiences of a country where the law has been similarly contested can provide important lessons on future developments and effective advocacy strategies. This paper uses a case study of South Africa to contextualize recent developments in the U.S. and to understand how centralized and decentralized processes can displace formal legal protections. Relying on empirical research I conducted over several years in South Africa, this paper suggests that the U.S. is poised to follow a similar path as street level and centralized dynamics play out.

South Africa has one of the world's most progressive refugee protection frameworks, enacted as part of the country's democratic transition and reflecting a commitment to human rights. The new democracy advanced a legal system founded on fundamental and universal rights. But the democratic transition also embraced a transformative component aimed at overcoming years of racial injustice. In pursuit of transformation goals, a previously excluded majority began making demands on the state based on more localized and nationalistic understandings of entitlement. (5)

The South African example is instructive for exploring recent development in U.S. immigration policy and practice. South Africa, as a new democracy emerging from years of extreme racial segregation may seem an inapt comparison with the long-institutionalized democracy of the U.S. But parallels do exist, giving rise to similar processes that can affect the implementation of legal rights.

In both countries, political changes created space for a portion of the citizenry to more openly express localized and nationalistic understandings of rights and justice. These views have been reinforced and encouraged at the national level. The convergence of these centralized and decentralized processes alters the ways in which the law is implemented, affecting the reach of legal protections. While these dynamics are at play in both countries, the ways in which they interact may differ. In South Africa, developments were as much from the bottom up as from the top down, with the executive regularly defending and refusing to reform challenged practices that street level actors had developed autonomously. In the U.S., recent developments have arguably been driven more from the top down, but street level actors have also acted autonomously in response to the new policy space at the same time that they have implemented specific directives.

As immigration events in the U.S. continue to change rapidly, the convergence of the centralized and decentralized processes identified above are beginning to alter the ways in which the law is implemented, affecting the reach of legal protections as happened in South Africa. Such processes are constitutive of the sociopolitical context in which the law is embedded and may operate independently of judicial interventions. By examining these processes in both a newly and a long-established democracy, the discussion highlights that the limits of rights enforcement through the courts cannot be understood solely by looking to the degree of the institutionalization of the rule of law. This argument also informs global discussions around refugee protection as countries around the world adopt similar strategies to limit asylum rights. The South African example is particularly instructive in this regard because the country's own migration crisis, sparked by events in Zimbabwe, preceded the global migration crisis. As a result, South Africa was the world's top recipient of asylum seekers between 2006 and 2011. (6) Finally, the argument points to the need for more empirical research in the U.S. on the ways in which practices on the ground are shaping rights realization in the current immigration context.

To better understand these dynamics, Part I brings together literature examining courts and change, street level dynamics, and executive compliance with the law to frame the argument. Part II examines how these processes played out in South Africa, rendering legal protections virtually inaccessible to asylum seekers there. Part III turns to an exploration of these emerging processes in the United States, highlighting similar policy directions and exploring how the gap between law and policy may hinder the efficacy of judicial interventions in the current immigration landscape, calling for responsive advocacy solutions. Part IV then discusses similarities and differences between the two countries that could affect how these processes take shape.

  1. THE POWER OF LAW IN ADVERSE SOCIOPOLITICAL AND POLICY CONTEXTS

    Socio-legal scholars have long debated the role of the courts in rights protection. This debate has centered on the direct effects of judicial victories on public policy (7) and on the power of law to regulate politics, (8) as well as on the "radiating effect" of these...

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