Immigration Policy At The Edges: International Migration To And Through The US Island Territories
Recent developments have focused attention on US immigration policies as they relate to America's outlying island jurisdictions. A federal district court ruling in the US Virgin Islands, a controversy in American Samoa about the exclusion of Arabs, and the proliferation of sweatshops staffed by foreign workers in Saipan mean that these islands, usually of little interest to Mainland policy makers, cannot be ignored in the broader effort to overhaul our immigration policies and procedures.
As background, the United States relates – in quite different ways – to immigration from and through eight island jurisdictions. While all the islands are, to differing degrees, Third World jurisdictions, they can be grouped as follows regarding their impact on immigration to the Mainland:
Managing Islands-to-US Migration
Returning to the broader question of immigration policy, and given the different immigration policy arrangements in the various islands, one might imagine different management patterns for airborne migrants and one would be right. There are five patterns of immigration control.2
The Puerto Rican pattern is much like that of the American airports near the US-Mexico border. Departing passengers are not screened as they leave, but Border Patrol officers are sometimes present and can ask travelers of interest to show their documents. From time to time illegal entrants are identified in this way. If one feels confident enough, and hostile enough, one can refuse to respond to the agents.
The Virgin Islands pattern, the subject of the decision by US District Court Judge Thomas K. Moore (see below), is for all Mainland-bound passengers to go through INS departure checkpoints in Virgin Islands airports (the judge calls them "cattle chutes") just as one would go through an arriving checkpoint after the plane lands on the Mainland from, say, Europe. Some of these departing passengers in the Virgin Islands, including the subject of this case, have just been interviewed by INS inspectors3 as they arrived at the same airport.
The third pattern relates to passengers flying from Guam to the
United States; all flights pass through Hawaii (it is a seven-hour trip between
the islands) and all passengers are screened by INS before they board in Guam,
and after they land in Hawaii. The screening at Honolulu for passport-bearing
US citizens is less thorough than for others; the former simply need to show
in Hawaii that the INS had stamped their boarding passes with a red stamp prior
to leaving Guam.
The fourth pattern is for people flying from Saipan (the main
CNMI island) to Hawaii or to the US mainland. The only available route is
Saipan-Guam-Hawaii so the passengers are screened by INS: 1) as they arrive on
Guam, 2) as they leave Guam, and 3) as they arrive in Honolulu. CNMI, as noted
above, is outside the jurisdiction of the INS.
The fifth pattern applies to passengers arriving from American
Samoa and from the three freely associated states. Passengers, whether aliens or
US citizens or US nationals (a nearly equivalent status), simply go through
the normal inspection process for people arriving from a foreign nation. Again,
virtually all of the traffic from these places to the US is through Hawaii or
Screening of departing passengers by an
immigration-control agency, incidentally, is a much more efficient operation
than the screening of arriving passengers, just because of the inherent
logistics of the situation. For example, let's say we are dealing with a
fully-loaded, 200-passenger airliner flying into and out of the US Virgin
Islands. When it arrives from another country, everyone deplanes in a few
minutes and wants to go through immigration immediately. INS has to deploy three
or four inspectors right away or face criticism for long lines of passengers.
But when the same plane gets ready to depart, this time for Puerto Rico or the
US mainland, the 200 passengers do not descend on the checkpoint all at the
same time. Some are early, some are on time, and few make it just before the
gate closes. Because of this pattern, a smaller crew of inspectors can screen
the passengers, with less time pressure on the inspectors and less waiting for
the passengers. Given the greater amount of time available for the inspection of
each departing passenger, a more careful screening may result – which is exactly
what happened in the case described below.
The US immigration system is mostly a one-hull operation. But it does have, in two quite different spheres, dual checking operations, each designed to prevent the onward movement of illegal aliens who have already managed to enter the nation. One of these two practices (as it applies to the US Virgin Islands) is now under serious judicial attack.
Of the two processes, the better known is the set of traffic stops staffed by the Border Patrol on highways just north of the Mexican Border. While all northward-bound vehicles are potentially subject to inspection, most cars (certainly the newer ones with only a driver) are waved through, while those that might seem to be carrying illegal aliens are stopped and inspected. The idea is to apprehend people who have made illegal entries and are now seeking to enter the nation's interior. It is a recognition by INS that its control of the border and of the ports-of-entry is not perfect, and that mistakes are made.
Under judicial review at the moment is the smaller double-checking process – the practice of inspecting all persons leaving the US Virgin Islands and Guam on their way to the Mainland. While most residents of both territories are US citizens, flights from those areas to the Mainland are pre-screened by INS personnel, just as if the flights were leaving for the United States from an airport in the Bahamas or in Canada.
Judge Moore has ruled that inspecting people going to the Mainland from the Virgin Islands (i.e., from one part of the United States to another) is unconstitutional. His decision has been appealed by INS and is now before the Third Circuit.5
A couple of decades ago INS made some serious efforts to enforce the immigration
law within the country; industrial sweeps were made, and the Border Patrol would
visit the fields during harvest periods and carry away workers without
appropriate documentation. There is little of that these days, and INS
concentrates its enforcement efforts on the edges of the nation; it is always
easier to turn people away from entering the country than it is to locate them
in the interior and throw them out. The District Court decision, if upheld on
appeal, will be yet another setback for interior enforcement.
Ms. Pollard said she had been born in Queens, New York; Ms. Haywood, hearing something other than a New York accent, pressed a little further and asked what elementary school she had attended. Ms. Pollard said she forgot. Then she failed to remember the middle name of the man identified as her father on a birth certificate she was carrying. Ms. Haywood then turned the matter over to her supervisor who continued the questioning; he also checked his computer data base and could locate nothing on anyone named Katisha Kenya Norris. He then read Ms. Pollard her Miranda rights on the belief that she had made a false claim to US citizenship. Ms. Pollard then waived her rights, according to the Judge's decision, and admitted her true identity and citizenship.
She then sought legal assistance. She found Douglas Beevers, Assistant Federal Public Defender in St. Thomas, and he filed a motion saying that it was unconstitutional to inspect persons moving from one part of the US to another (citing the equal protection clause) and thus the confession that was obtained as a byproduct of such a process should be suppressed.
Judge Moore agreed with him, and the US Justice Department has appealed the verdict to the Third Circuit Court of Appeals. Three judges from the Third Circuit, sitting in St. Thomas, heard the case in November 2002. It is not known when a decision will be handed down.
Judge Moore cited the Fourth and the Fourteenth Amendments among the grounds for his decision, and launched into an intriguing history of the provision in the Immigration and Nationality Act (INA) that the INS said supported the exit screening procedure.8 The judge wrote that the provision (subsection 212d(7)) had its origin in the 1917 Immigration Act, written when the United States had jurisdiction over both the Philippines and the Canal Zone. At that time, in those two places, there were plenty of people who were legally there, but had no legal right to travel to the US mainland; hence it was sensible to impose exit screening on those traveling to the United States. He then said that for a while early in the 20th century that situation also had existed in the Virgin Islands (i.e., there were then Danish subjects in the islands who had not yet adjusted to US citizenship) but that had not been the case for many decades.
The judge also did not accept the government's effort to use the precedent of the traffic stops just north of the US-Mexico border, a practice that has passed judicial muster. He said that the flows of illegal aliens over the 85 miles of Virgin Islands beaches could not be compared with the flows over the 2,000 miles of the southern land border. He suggested that INS should dismantle its departure control at the airports and bring in the Border Patrol to watch for illegal aliens landing illicitly. (He did not explore the relative costs or efficiencies of these two approaches; using the Border Patrol to watch the 85 miles of shoreline would be much more expensive than using inspectors to work with departing passengers at the islands' two international airports.)
There has always been a noticeable but not sensational flow of illegal aliens
into the Virgin Islands, but most of it does not come from relatively nearby
Haiti. While Haiti is closer to the Virgin Islands than to Florida, the pattern
to date has been for Haitian smugglers to take the longer trip west (to
Florida), rather than the shorter trip east. The illegal alien traffic into the
Virgin Islands consists largely of people from the "Down Islands", the small,
mostly ex-British islands south and east of the Virgins, as well as ship-borne
Chinese. Small boats can move easily and safely through international waters to
either St. Croix or St. Thomas.
He, for instance, on several occasions noted that the Justice Department did not provide him the information he sought in the case, or did so in a clumsy and thoughtless way.9
On a more fundamental level, he felt that the Virgin Islands, with its largely black population (he himself is white), had been discriminated against repeatedly by the federal government. He wrote, for example: "Although I can find no evidence in the record that the departure control gate has a racially disparate impact on black Virgin Islanders, there is no denying that racial and cultural prejudice permeated the early years of, and still affects, the relation of the United States with the Territory of the Virgin Islands."10 He returned to this theme several times, expressing himself vigorously.
Then he moved from a general civil rights position, on how the Virgin Islands
were treated by Washington, to a much narrower one when he argued that lifetime
appointments to federal judgeships were the norm on the Mainland, but not in the
Virgin Islands, where he holds a 10-year-term that is expiring soon. He wrote:
"I touch on one last point of double discrimination by Congress against the Virgin Islands and its residents. In 1966, Congress made the Federal District Court of Puerto Rico an Article III court whose judges serve during good behavior [i.e., they have lifetime appointments] but left the District Court of the Virgin Islands an Article IV court whose judges now serve 10-year terms. This is double discrimination because Congress not only treats the Virgin Islands differently from all the states but also treats it differently from our fellow unincorporated territory of Puerto Rico, a differing treatment for which there is absolutely no conceivable rational basis.11
Meanwhile, it has been widely reported in the Virgin Islands that Judge Moore, though a Republican appointed to the bench during the first Bush Administration, is not expected to be reappointed by the current Bush White House.12 Perhaps this has something to do with the harsh language he used frequently in his decision.
A reading of the decision, without any other information, suggests that the
Justice Department did not handle this case very well at the trial level; maybe
its arguments were more vigorous and more on target at the appeals level.
Both sets of islands then created laws that were quite different from the mainland's Immigration and Nationality Act (INA). There is no such status as "immigrant" in either territory, nor is there a process by which an alien can become a citizen while living in those jurisdictions (or, in the case of Samoa, become a US national).13 So the only people who are allowed to vote and hold office are native-born islanders and the occasional mainlander who has US citizenship. As a result, the legislatures of both territories are racially pure – nothing but Samoans in Samoa and nothing but the Commonwealth-born in the CNMI.14 (In contrast, the legislatures of Hawaii and Guam are rich mixes of ethnicities.)15
In short, despite decades of contact with American political systems, the general concept of the equality of individuals and races is not well-established in these islands; the Civil Rights Revolution of the 1960s never reached this far west. 16
Both sets of island immigration laws, however, allow easy
access – but virtually no protections – for foreign workers who do the dirty
work of the islands. These island temporary worker programs make the mainland
non-immigrant programs, controversial though they may be, look like exercises in
benign, Scandinavian-style socialism. In general terms, the citizen islanders
work for the local government, or do not work at all; factory jobs and jobs
needing specialized education (physicians, scientists, and many teaching
positions) are filled by outsiders. Agriculture and fisheries are now very minor
economic activities in both jurisdictions, though they were the only pillars of
the islands' economies in pre-contact days (e.g., lettuce and bananas are
imported into American Samoa).
This odd situation has been more thoroughly utilized on Saipan than in Samoa. There are a couple of dozen garment factories on Saipan, all owned by Asian-controlled firms, all managed by Asians, all using Asian-made textiles, and all manufacturing clothing made almost exclusively for the mainland market. Neither Mainlanders nor Chamorros17 play significant roles in this billion-dollar a year business, and one cannot buy stock in these firms through one's broker, as these are all privately-held firms.
Further, with minor exceptions, all the workers are non-immigrants, mostly from China, recruited through provincial arms of the Chinese Communist government. All arrive in debt, because they have to pay a substantial sum to leave China to take a job elsewhere (and some of these payments may be bribes as well as advance income tax payments) and all find themselves working at miserable jobs with miserable pay. The INA does not apply at all, and there is only a minor role for the mainland minimum wage. (The minimum wage is set by the CNMI legislature but mainland overtime rules apply, a peculiar situation.) Meanwhile, in addition to the exploitation of the workers, the United States loses about $200 million a year in duties that would have been paid had the same employers, using the same cloth and the same workers, been operating from factories in China or Hong Kong.18
The non-immigrant program has been used extensively in the CNMI, not only for Chinese to work in the garment factories, but for widespread use of Filipinos in retailing, restaurants, hotels, and as household servants (remarkably common in this jurisdiction). The program is so large that a majority of the CNMI workforce consists of non-immigrants, people who cannot stay legally in the islands after their work permits expire, people who cannot hope to become citizens. The CNMI immigration policy is thus much like those of the Persian Gulf sheikdoms.
Until a couple of years ago one particularly nasty element of the CNMI immigration policy, as it applied to Chinese women but not Filipinas, was to impose a grim three-way choice on garment workers who became pregnant. They could: 1) have an illegal abortion on Saipan, a jurisdiction not covered by Roe v. Wade, thus losing the baby but keeping their job; or 2) be deported to China for a possible mandatory abortion under Chinese law; or 3) run away from the factory, losing their job and their residence and their legal status all at once, but keeping the baby.19 I have been told that the mandatory abortions are no longer part of the factories' policies, probably because of a class action law suit brought against the industry by a mainland law firm.
While the mandatory abortion policies were in place, scores and perhaps hundreds of the Chinese women involved managed to be smuggled from CNMI into Guam on small boats, winding up later in asylum proceedings on Guam, often securing legal status.
Efforts by the Clinton administration to extend the INA and the Mainland minimum
wage law to the CNMI were blocked in Congress, notably by then-House Majority
Whip Rep. Tom Delay (R-Texas), who, with his wife and aides, was a guest of the
CNMI government in the islands during the late 90s.20
I understand, but have no documentation, that the current Bush administration
has become concerned about CNMI's immigration policies, not because of worker
exploitation, but because of post-9/11 concerns about homeland security.
The newer, smaller, and more abusive pattern relates to the importation of Vietnamese women to work in garment factories, again owned by off-island corporations. The odious practices of Daewoosa-Samoa,21 now out of business, included, according to The New York Times:
It was the federal Labor Department that intervened in this situation, and it was the federal Justice Department that later allowed some of the women to be paroled into the mainland rather than either be forced to stay in American Samoa or be deported by Samoan authorities back to Vietnam for failing to obey their Korean bosses. Island officials – I have personal knowledge of this – refused to help these women and were furious about mainland interventions.
Usually Samoa's ham-handed immigration policies are ignored by the mainland press, but in December there was an exception. Several months after it had been implemented, an American Samoa policy to bar entry to anyone of "Middle Eastern descent" was reported in The Washington Post.23 Washington then apparently leaned on Pago Pago and the policy was quickly reversed. As the Post noted: "The territory of 62,000 gets relatively few visitors from anywhere, let alone the Middle East...."
In summary, the United States has long had special immigration procedures, and
sometimes policies, for managing immigration to and through its islands,
recognizing the existence of different dynamics than those operating in the 50
states. Sometimes these special arrangements, such as the preclearance of
departing passengers have been useful, and sometimes, such as the delegation of
immigration policy to Samoa and Saipan, they proved to be terrible mistakes.
For journalistic coverage, see, for example: Terry McCarthy
"Give Me Your Tired, Your Poor...And the Northern Marianas -- a US possession
-- will put them to hard labor," Time, February 2, 1998; William Branigin,
"Northern Marianas Not a Workers' Paradise," The Washington Post, October 14,
1997, and "US Pacific Paradise is Hell for Some Foreign Workers," August 29,
1994; and Philip Shenon, "Saipan Sweatshops Are No American Dream," The New York
Times, July 18, 1993.
David S. North has had extensive experience in both immigration and island policies; he is currently Washington correspondent of the Virgin islands publication St. Thomas Source, and formerly held the same role with the late Pacific Islands Monthly, a Fiji-based news magazine. For three decades he was an immigration policy researcher working with, among others, the Ford and Sloan Foundations and the US Departments of States, Justice, Labor, and HHS. This article originally appeared as a backgrounder for the Center of Immigration Studies.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.