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Undocumented immigrants in an era of arbitrary law: The flight and the plight of people deemed "illegal"

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Abstract

This book describes the experiences of undocumented migrants, all around the world, bringing to life the challenges they face from the moment they consider leaving their country of origin, until the time they are deported back to it. Drawing on a broad array of academic studies, including law, interpretation and translation studies, border studies, human rights, communication, critical discourse analysis and sociology, Robert Barsky argues that the arrays of actions that are taken against undocumented migrants are often arbitrary, and exercised by an array of officials who can and do exercise considerable discretion, both positive and negative. Employing insights from a decade-long research project, Barsky also finds that every stop along the migrant's pathway into, and inside of, the host country is strewn with language issues, relating to intercultural communication, interpretation, gossip, hearsay, and the challenges of peddling of linguistic wares in the social discourse marketplace. These language issues are almost always impediments to anodyne or productive interactions with host country officials, particularly on the "front-lines" where migrants encounter border patrol and law enforcement officers without adequate means of communicating their situation or understanding their rights. Since undocumented people are categorized as 'illegal', they can be subjected to abuse and exploitation by host country officials, who can choose to either tolerate or punish them on the basis of unpredictable, changeable, and even illusory or "arbitrary" laws and regulations. Citing experts at every level of the undocumented immigrant apparatuses worldwide, from public defenders to interpreters, Barsky concludes that the only viable policy to address prevailing abuses and inequalities is to move towards open borders, an approach that would address prevailing issues and, surprisingly, provide security and economic benefits to both host and home countries.
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... What distinguishes "arbitrary" violence from violence simpliciter is that the violence is often unanticipated, unforeseeable, or unknowable in advance by those upon whom the violence is ultimately inflicted. My understanding of "arbitrary" here draws from Robert Barsky's (2016) characterization of "arbitrariness in law" (which itself is, he acknowledges, contextually and contingently indexed) as a counterpoint to legal discretion. Discretionary decision-making-characterized principally as some sort of reasoned evaluation-"has to be undertaken in a reasonable manner, consistent with the statutory powers of the agency in question" (20, emphasis added). ...
... Arbitrary political decision-making may thus include political decisions or policies that are motivated by the biases and whims of the relevant party, without appeal to past precedent, procedural norms, or reasonable evidence. 2 Taking undocumented immigrants as the emblematic modern figure upon whom arbitrary law is applied, Barsky (2016) observes that their preemptive "undocumented" status allows law enforcement officials to stop, detain, or charge them by singling out individuals who bear the "mark" of the stereotyped "illegal alien," "by their skin color, their accent, their inability to speak the language of the host country or by their license or ID (or lack thereof)" (2). The strength of executive power under these circumstances is heightened when subjects are rendered "illegal" or, as Agamben (2005) states in the case of Guantánamo detainees, "legally unnameable and unclassifiable" (3). ...
... Barsky (2016) himself lists racism and xenophobia as possible dimensions of such biases (18). ...
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This article examines the lasting phenomenological consequences of inhabiting “spaces” of exception by rethinking the operation of sovereign violence therein. Taking as its point of departure Giorgio Agamben’s suggestion that the ‘state of exception’ is the ‘rule’ of modern politics, I argue that arbitrary sovereign violence has taken the place of the ‘sovereign decision’ of Carl Schmitt’s original theory. However, recognizing that it is neither enough simply to articulate the institutional grid of intelligibility of the state of exception nor expose the logics of sovereignty that make possible arbitrary violence, it draws on phenomenology, affect theory, and trauma studies to reorient our focus from the sovereign to the subject upon whom sovereign power is executed. Ultimately it proposes a new understanding of modern subjecthood as one of existential insecurity generated by the ‘new age of anxiety’ permeating social and political life today.
... I Barsky (2016), som sammanfattar mycket av den i huvudsak intervjubaserade forskning om asylprocessen som han genomfört, citerar författaren en tolk som han intervjuat. Tolkens ord får illustrera en särskild egenskap som Barsky (och den citerade tolken) anser att en tolk behöver ha för att garantera effektiv kommunikation mellan vad Barsky beskriver som ett misshandlande (abusive) system och dess offer (asylsökande), nämligen en empatisk förmåga och "en intuitiv förståelse av meningen bortom de enskilda orden" 15 (Barsky 2016:93). ...
... Laster & Taylor, 1994;Hale 2008;Hale et al. 2019;Skaaden 2013Skaaden , 2019Skaaden , 2020. Det finns även forskare, exempelvis Barsky (1994Barsky ( , 2016, som studerat tolkfunktionen i asylprocessen, som behandlar frågan om vad tolkning är (och bör vara) som något utav ett moralfilosofiskt problem. Utan att använda termer som professionalism eller professionalitet, menar Barsky att tolkar gör (och bör göra) mer än att översätta. ...
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This literature review aims to give an account of earlier studies in the field of interpreting in the asylum determination process, with a particular focus on the interviews and negotiations that take place when authorities process asylum cases. The review is based on articles, reports and books that discuss interpreting in institutional contexts in general and interpreting in the asylum process in particular. The focus lies on studies of meetings between migration authorities and asylum-seekers and, more specifically, asylum determination meetings. Theoretically, we approach interpreting as a type of communication between (at least) two individuals who need to get in touch with each other but have no access to a common language and therefore communicate via a third party – an interpreter. The interpreter-mediated situation is our primary study object. In order to explain this situation, we ask questions about participants and contexts, that is to say, questions about social, linguistic and other types of relations. From this perspective, the interpreters’ utterances in interpreter- mediated interaction are not examined only as renditions in relation to utterances voiced by others in a source language but also in relation to their organizational, coordinating function in interaction. We argue that it is highly relevant to examine how the presence of an interpreter affects the unfolding of interaction regarding both content and progression. Chapter 2 is a short account of how the asylum process is organized in Sweden today. The chapter includes a description of central moments in the asylum process: the registration interview, the asylum interview, decision- making and appealing. Further, the public counsel’s role in the asylum process is explained, as well as the Migration Agency’s guidelines regarding the assignment of interpreters. In chapter 3, we present a simplified picture of interpreting that is painted in many studies of asylum determination where the function of interpreting is raised as an issue, but only marginally, if at all, explored. Descriptions of interpreting, the role of interpreter and the prerequisites for evaluating interpreter-mediated statements’ reliability are explained in relation to various perceptions of language and communication. In chapter 4, we scan the literature that focuses on how conflictual institutional and cultural frameworks contribute to the hybrid character of asylum interviews and the resulting demands placed on interpreters and other participants. Some of the dilemmas discussed in relation to the institutional frameworks and interpreting are the case-officer’s reliance on the interpreter’s knowledge of language and facts, the (insufficient) trust between interpreter and asylum-seeker, and the (inadequate) access to interpreters with the right combination of languages and relevant educational background. Concerning cultural frameworks, we consider difficulties that may arise as a result of the fact that many languages occur in different varieties. Other problems may be the effects of the participants’ different expectations in relation to what the asylum interview can be about or its form and structure. Some of the studies we have found show that asylum interviews can be affected by a monolinguistic ideology (the idea of a strong link between one language and one nation and that each national language takes one standard form), and we discuss the problematic implications of such an understanding of language. In chapter 5 follows a detailed account of the dynamics of interpreter- mediated encounters and of the documentation of interaction as a part of this dynamic. Here, we report on studies that examine interaction in asylum interviews in detail, with a focus on how turn-taking is organized. For example, these studies show how turn-taking can have an impact on the participants’ apprehension of each other and of the communicative situation. Turn-taking in asylum interviews is shaped, to a large extent, by the fact that it is documented in writing simultaneously as the interview evolves. In detailed studies of authentic, recorded asylum interviews, it becomes clear that interpreters take and are given responsibility for what is included in the written report. Turn-taking is also affected by the use of video technology, something that is discussed in a handful of studies presented here. In chapter 6, the main theme is the professionalization of the interpreting profession. In this chapter, we describe how attitudes on interpreters’ professionalism can be associated with perspectives on language and social interaction. Which language understanding(s) may lie behind the statement that “interpreters should only translate”? We also discuss the psychological implications involved in taking part in and reproducing narratives of persecution, violence and torture and the effect this might have on case- officers and interpreters. In the last chapter of this review, chapter 7, we summarize existing knowledge and identify some of the exposed knowledge gaps. Finally, we suggest possible ways to strengthen the function of interpreting in the asylum process. Some of the results drawn in this chapter will be shortly accounted for in the remaining of this summary. The most important result that can be drawn is that improving and professionalizing the function of interpreting in the asylum determination process is necessary and urgent. Many studies come to the simple but important conclusion that the interpreters engaged in the asylum process need access to adequate training. Advanced interpreter education is not available in all countries where it is required, but training material has been created and translated in many languages both by the EU (more specifically EASO) and other organizations (e.g. UNHCR). Many studies argue that those who handle asylum cases also need access to training on working with interpreters. In the studies we have read, it is far from always clear how the individuals who acted as interpreters have been prepared for the assignment and if they at all have had any interpreter training. To strengthen the interpreting function in the asylum process, further research into the field seems all the more important. A professional interpreting role can hardly be based upon how lay interpreters perform assignments. Further, we believe that defining a specific interpreter role for interpreters in asylum interviews – as some researchers have suggested – would reduce rather than increase the professional status of interpreting. Moreover, it would also reduce the asylum-seekers’ legal certainty. The alternative we suggest is to strengthen the professional status of public service interpreting, to make the established ethics of interpreting more widely known and to give interpreters and other participants in asylum interviews access to training of communicative strategies in order to secure and enable thorough and impartial performance. The participants’ expectations of what an interpreter does and can do in an interaction are strongly dependent on how they apprehend what it means to speak a language and to communicate in in-person interactions, as well as in interactions that take place via digital technology. A rather basic but crucial insight for the participants is that turn-taking in interpreter-mediated interactions, with certainty, differs from monolingual interactions, and this is a fact that has a substantial impact on coherence and spontaneity in interpreter- mediated interaction. There is a need for a thorough knowledge on how interpreting and interpreters can shape an asylum interview’s content, progression and the resulting decision document, in order for a long-term policy on the function of interpreting in asylum determination to be made. So far, the existing research is limited. What is of particular interest is that there are relatively few detailed studies of authentic interpreter-mediated asylum interviews, in particular of those interviews where the interpreter participates via telephone or video technique. Unambiguously, the studies accounted for here point to the fact that deficits in the functions of interpreting can jeopardize the rule of law in asylum determination. However, we have relatively little knowledge of how deficits in interpreting impact upon the efficiency of the asylum process in terms of waiting time, investigating resources, etc. Finally, we find almost no descriptions in the literature concerning the extent to which communication between asylum-seekers and the public counsel – as well as the one preceding the selection of refugees for resettlement – takes place via an interpreter and the forms that interpreting takes in these cases. There is always a degree of unpredictability when it comes to future migration and the implications for different countries and regions. Is it possible to be prepared? An essential part of this, we argue, is to make the interpreting profession more firmly established, not least through educational programs. It is also important to sharpen the knowledge demands in languages and about languages and about interpreting and asylum-related issues for those employed as interpreters in the asylum determination process. Similarly, we call for an improvement of the case workers’ and other relevant parties’ knowledge on how interpreter-mediated interaction functions as a specific form of communication and on which demands can be placed – and cannot be placed – on qualified interpreters. We believe that a vital interpreting profession favors mutual respect between interpreters and other professionals and, thereby, sets the conditions for an effective and secure asylum determination process.
... Även om asylintervjun är en specifik verksamhetstyp, något som framhävs i studier av asylintervjuer, t.ex. av Linell och Keselman (2011) och Barsky (1994Barsky ( , 2016, har den vissa likheter med polisförhör. En likhet av intresse här är att den som leder en intervju samtidigt för protokoll. ...
Article
I ett protokoll fört under en asylintervju återfanns en obegriplig mening som den asylsökande inte kände igen. I denna artikel undersöker vi vad som ledde fram till denna mening. Med sam­talsanalys som teoretisk och metodisk ansats går vi igenom en 3,5 minuter lång sekvens hämtad från den ljudinspelade, tolkade asylintervju där den obegripliga meningen fördes till proto­kollet. Språken som talades var svenska och ryska. Protokollet skrevs på svenska. Under­sök­ningen visar hur flera faktorer och samtliga deltagare i asylintervjun, på olika sätt, styr och for­mar framväxten av den asylberättelse som manifesteras i protokollet. Generellt för tolkade samtal gäller att tolkens återgivningar av det som sagts på det andra språket möjliggör parternas delade förståelse – samtidigt som de skapar ett icke-konventionellt turtagningsmönster. Specifikt för asylintervjuer är att ett detaljerat protokoll av det som sägs förs, samtidigt som intervjun pågår. Hur det samtidiga protokollskrivandet påverkar turtag­nings­­mönstret har inte undersökts i någon större utsträckning i tidigare forskning. Artikeln visar på svårigheter som kan uppstå när en institutionell berättelse samkonstrueras när den parallellt dokumenteras i ett protokoll. Kunskap om detta är av vikt för såväl praktiker inom asylprocessen, som för vidare studier av tolkning i offentlig sektor.
... SLWs have to negotiate this balance in their everyday work. Juggling between policy implementation, arbitrary and abstract legal frameworks (Barsky 2016;Eule et al. 2019) and often very emotional and personal encounters (Borrelli and Lindberg 2018;Lipsky 2010) pushes SLWs to find ways in which the job can still be done but are acceptable to them. However, because the presented narratives and observations happen within the broader framework of public policies, it can be argued that migration enforcement can be done in a «humanitarian way». ...
... Verbal communication between asylum seekers and host-country authorities has been studied in a number of adjacent disciplines. For example, valuable research has been done in the field of sociolinguistics (Maryns and Blommaert 2006), linguistic anthropology (Jacquemet 2013), critical discourse analysis (Barsky 1994), and border and communication studies (Barsky 2016). We approach the topic from the point of view of Translation and Interpreting Studies, which in the last two decades has produced a number of studies on the complex and paradoxical issues of neutrality and role expectations in translator and interpreting practices for asylum seekers (Inghilleri 2011(Inghilleri , 2005Pöllabauer 2007Pöllabauer , 2004Tryuk 2005). ...
Article
Short-time migrants, who stay in the host country from one to 12 months, use mediation strategies including lingua francas, public-service interpreting and translation, translation technologies, intercomprehension, and learning the host country’s dominant language. The choices made by asylum seekers in Slovenia, a country of transit for the majority of asylum seekers, are analyzed on the basis of questionnaires answered by 127 current and former residents of the Slovene asylum seeker centers in 2016, followed up by semi-structured interviews with a representative group of 34 asylum seekers. The results show that the majority of newly arrived migrants regard the use of lingua francas as a helpful but not desired long-term strategy. They define host-country language learning as the most desirable strategy for linguistic and social inclusion. Surprisingly, they are reluctant to use translation technologies and interpreters because they either doubt the accuracy of the transfer or they consider such mediation (interpreting in particular) a hindrance to their independence.
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The illegal migration of Basotho women to South Africa in order to render domestic service is alarming because they are subjected to harsh treatment. This is a pastoral and theological concern for the church. As migrants, their struggle begins from the household circumstances that often force them to leave and seek job opportunities undocumented or without following prescribed migration procedures. They are then subjected to migration processes and procedures: for example, corruption and bribery by migration officers and illegal dealers (lirurubele). The working and living conditions in South Africa are often unconducive for illegal migrants. As economic and illegal migrants, they are often considered as lesser by prejudiced employers who treat them inhumanely. Accessing essential services also imposes a significant threat to their lives. Contribution: Through this study, the article will reveal the vulnerability faced by illegal migrant Basotho women as domestic workers in South Africa.
Article
Borderlands are spaces of uncertainty and constant change, where decisions on the welcoming or refusal of migrants are taken. Today those spaces are far less defined by geographical borders, and thus allow for forms of exclusion to emerge in various moments and places. Often it is street-level bureaucrats who encounter migrant individuals and who base their decisions on their experiences, training and personal values in the context of restrictive policies and laws. This contribution argues that studying the training of migration agents facilitates an understanding of how a professional habitus is shaped, and of how othering comes into being. Organizational socialization reproduces and sustains institutionalized social interactions between the bureaucrat and their clients. The ethnographic data, collected through participant observation and semi-structured interviews with Swiss and Swedish migration authorities, will critically discuss learning processes in government agencies dealing with the detection, detention and deportation of migrants with precarious legal status.
Chapter
[The] ‘correct understanding of something and misunderstanding of the same thing are not entirely mutually exclusive’.
Article
Geographical limitation, ostracism and deportation are defined as state practices that try to handle the unwanted arrival and stay of irregularized migrants in Europe. However, the enforcement of ever‐more restrictive policies in order to regain control over a mobile population is limited by several factors, which at times restrict the state. These limits not only derive from the agency of individuals excluded by the state, but also because of the inherent attributes of the state itself. The inhibiting mechanisms studied, including discretionary practices, often neglect the crucial role played by communication in understanding the contestation of policy implementation. This work discusses how the phenomenon of ‘whispering down, up and between the lanes’ challenges policies and legal outcomes. It tries to explain why state practices often appear to be illegible, not only to the outsider but also to the bureaucrat, with the help of ethnographic research in European migration enforcement agencies.
Thesis
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Stratified systematic grounded theory qualitative investigation involving 18 published researchers with unique repertoires of languages and research across the fields of neuroscience, psycholinguistics, sociolinguistics, and education research who were residing in the countries of Europe, Asia, North America, North Africa, and the Middle East. The study yielded integrated macro, meso, and micro models based on the emerged principles comprised in a multilingual model of education: curriculum cycle (macro), student (domains of learning), and multilingual processing in the brain. Tools for each of the models demonstrate the usefulness of the models in designing curriculum, instruction, assessment, evaluation, and feedback, as well as demographic and metalinguistic analysis.
Article
Movement is an integral part of human existence. While talking about transborder migration from Bangladesh to India, we are, however, aware that this is a controversial subject. The partition of Bengal in 1947 was the cruelest partition in the history of the world and caused forced illegal migration from erstwhile East Pakistan. It is estimated that there are about 15 million Bangladeshi nationals living in India illegally. West Bengal has a border running 2,216 km along Bangladesh. The present study highlights push-pull factors of illegal Bangladeshi migration based on perceptions of respondents obtained from a qualitative survey done on the basis of purposive sampling in Kolkata and 24 parganas and two districts of West Bengal (WB), an Indian State. The economic push factors that motivate people to leave Bangladesh are instability and economic depression, poverty, lack of employment opportunity, struggle for livelihood, forced grabbing of landed property from minority group, and lack of industrialization in Bangladesh. About 56% of the respondents expressed that lack of industrialisation/lack of employment/economic insecurity would be the probable cause of this migration. Among the demographic factors, population explosion in Bangladesh and lowest human development index may be the most important cause of illegal migration from Bangladesh to West Bengal. Hindu minority group faced problems in connection with matrimonial alliances. Educational curricula, which were framed according to Islamic preaching and curtailment of facilities enjoyed by Hindu minority group, were responsible factor for illegal migration of Hindu minority population. Another cause is social insecurity. Political instability, fear of riots and terrorism in Bangladesh, inhuman attitude and activities of the political leaders, absence of democratic rights, Muslim domination, religious instigation by political leaders, insecurity feeling of Hindus, are the major crucial issues that require to be mentioned as political push factors. About 59% of the respondents are of the opinion that religious fundamentalists/insecurity of the minority group/discriminating law and order against Hindus may be the factors that motivated migration from Bangladesh to West Bengal. In terms of ethnic cleansing, one can witness elimination of groups of minorities by dominant ethnic group, curbing their rights controlling their influence in a state’s system. Double standards are observed in punishing criminals. Police officials do not record complaints from minority community. According to 85% of the respondent economic opportunity in terms of job opportunity, economic security prevailing in West Bengal worked as pull factors for migrants to West Bengal. Geographic proximity of Bangladesh and West Bengal, the linguistics and cultural similarities, same food habit, homo-ethnic climate, belief of getting shelter, cordiality, fellow-feeling, acceptance power of people of West Bengal have contributed to the movements of population from Bangladesh to West Bengal.