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“Discretion” as a factor engendering inequalities in migration

By Dharshani Lakmali Jayasinghe | Issue 23

Image by Víctor Mendoza from Pixabay.

The right to freedom of movement is enshrined in Article 13 of the Universal Declaration of Human Rights (UDHR). However, rather than being an ‘inalienable’ and ‘universal’ right, it is a right enjoyed primarily by citizens from the Global North, while those of the Global South are compelled to earn only a conditional version of this right for restricted periods of time by obtaining visas.

The visa system disproportionately controls and limits the mobility of citizens from the Global South. While ‘[e]veryone has the right to leave any country, including his own, and to return to his country’, the visa system strictly regulates the ability to “arrive” in other countries, which is inadequately addressed in the UDHR and other international covenants on human rights. At the outset, given the demanding nature of the requirements and the Kafkaesque nature of the bureaucratic system, the visa process already favours a certain class of applicants based on wealth, language skills, and know-how. It precludes a large number of citizens from the Global South seeking to travel to primarily the Global North by preventing the former from even applying for visas in order to exercise their right to free movement. An aspect that requires closer attention when considering contemporary inequalities in immigration, particularly with regard to visas, is “adjudicative discretion”. The United States Citizenship and Immigration Services (USCIS) identifies two broad types of discretion that are exercised in the context of immigration: prosecutorial (or enforcement) discretion and adjudicative discretion. This article focuses on the problematic nature of adjudicative discretion, and how it constitutes a deep-rooted, racialised inequality in immigration, leading to the establishment and practice of discriminatory borders.

The officer training manual on discretion of the Refugee, Asylum and International Operations Directorate of the United States Citizenship and Immigration Services identifies discretion as the ‘[a]bility or power to decide responsibly’ and as ‘freedom or authority to make judgments and to act as one sees fit’. It is exemplified in the monopoly of power and authority that visa officers exercise at visa interviews, for instance, when evaluating and issuing final decisions on visa applications. Discretion ‘involves the affirmative decision of whether to exercise discretion favorably or not under the standards and procedures provided by statute, regulation, or policy that establish an applicant’s eligibility for the benefit and guide the exercise of discretion’. Once the threshold eligibility requirements are met, ‘it is legally permissible to deny an application as a matter of discretion without determining whether the requestor is otherwise eligible for the benefit’.

Discretion as an intrinsic feature of immigration became evident during WWII when a record number of refugees fled Nazi-controlled Europe. In her novel Transit, Anna Seghers depicts how immigration officers wielded absolute power over immigrant refugees’ right to free movement even at a time of unprecedented humanitarian crisis. Her novel lucidly portrays the arbitrary nature of discretionary power that immigration officers such as consuls held at the time who are depicted as ‘proud of being able to refuse… a transit visa. He’d tasted a bit of power with his tongue… and had liked the taste of it’.

Unfortunately, this monopoly of discretionary power held over those who seek to cross borders in times of crisis has not changed over the years. In August 2023, The Guardian reported how an Afghan refugee who had fled to Pakistan after the Taliban takeover of Afghanistan was denied a student visa twice despite being accepted to prestigious universities in the United States such as New York University and Columbia University. Stephen Yale-Loehr, an immigration law professor at Cornell University, pointed out that adjudicative discretion ‘really depends on the consular officer and whether they’re feeling generous that day or not’. Yalda Azamee was denied an American student visa twice because she failed to establish non-immigrant intent. In other words, she presumably failed to convince the visa officer of her intent to leave the United States and return to her home country after completing her studies. The “immigrant intent test” is frequently used by visa officers to deny visas to students from the Global South who have already been accepted to degree programmes, often with full funding packages. The penalisation of the desire to better one’s life by moving out of one’s country and the rejection of the right to cross borders to benefit from already secured opportunities in higher education due to the applicant’s failure to demonstrate “ties” to the home country in the form of assets, property, job prospects, fat bank accounts, family connections, etc., impinge on the letter and spirit of the right to freedom of movement.

Given that Yalda is already a refugee in Pakistan, which is known to crack down on Afghan refugees, it is little wonder that individuals like Yalda do not want to return to Afghanistan. By default, Yalda belongs to a large Afghan refugee community who are trying to resettle elsewhere due to the deteriorating conditions in Afghanistan, particularly the Taliban’s systematic restrictions on women’s access to work and education. However, Yalda’s existential condition has been used against her when she was denied her student visa despite her acceptance to prestigious graduate programmes complete with scholarships. At a time when the freedom to move across borders to a safe haven is needed the most, refugees such as Yalda, even when they have been offered life-transforming opportunities, are categorically denied one of the so-called “universal” and “inalienable” rights. The practice of discretion in this instance is in stark contrast to the ways in which the USA facilitated visas and free movement for Ukrainian refugees, along with some European nations. For instance, USCIS introduced the Uniting for Ukraine programme, while a number of American universities created special programmes to accommodate Ukrainian students and scholars. It is reasonable to assume that neither the “non-immigrant intent” test nor adjudicative discretion was applied as equally to Ukrainian refugees as it was/is to Afghan or other refugee students from the Global South.

Thus, while discretion can be understood as a key factor in any decision-making process, it is important to understand how discretion can obscure the role of racism and neocolonial approaches to mobility in immigration. In The Power of Racialised Discretion in Policing Migration, Alpa Parmar argues how discretion, which she identifies as ‘notoriously amorphous and inscrutable’, obscures the role that race plays in immigration-related decision-making. She argues how race functions as an ‘absent present’ under the veil of discretion, generating what she terms as ‘racialised discretion’. Parmar argues that ‘certain discretionary practices and decisions are animated because of race, through race and with the effect (intentional or not) of racially disproportionate outcomes’. Discretion results in targeting visible immigrant racial and religious minorities as potential “illegals”, “criminals”, or “terrorists”. The presumably “random” extra screening at airports and at border checks, particularly when travelling from a Global South country to a Global North country, based on racial profiling, is yet another example of how racialised discretion manifests itself.

Yet, the sonnet ‘The New Colossus’ written in 1883 by American poet Emma Lazarus and inscribed on a bronze plaque at the Statue of Liberty, the ubiquitous symbol of American Greatness and the American Dream, tells a different story. Contrary to the rampant exclusionism evident in aspects such as racialised discretion in the immigration system, it extends welcome precisely to the type of immigrant that the current system is designed to reject and exclude at the outset:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tossed to me I lift my lamp beside the golden door!

Given that discretion will continue to be a key factor in immigration decision-making, the challenge, then, is in recognising and legitimising, as Hannah Arendt would argue, the ‘mere humanity’ of immigrants seeking to better their lives by exercising their right to freedom of movement, when practising discretion.

Dharshani Lakmali Jayasinghe is Assistant Professor of Anglophone and World Literatures in the Department of English at Central Connecticut State University, USA. With a background in comparative literature, Lakmali’s interdisciplinary and cross-cultural research and teaching interests include themes in immigration, visa law and policy, LGBTQIA+ identity, Global South epistemologies, and translation studies in world literatures and film. Her work has appeared in publications such as Law and Literature, Dibur, Curated: Thinking with Literature, Routed Magazine, and Modern Fiction Studies.

Twitter - @LakmaliJd


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