The Limitations of Transgovernmentalism: Summer 2017 at the San Ysidro, California Port of Entry

Guest blogger: Vanessa Saldivar, Masters in Migration Studies, graduate student, University of San Francisco:

The world is at a global governance crossroads. Territorial borders no longer contain the challenges facing nations and there is an urgent need for collective action at the regional and global levels. However, the international institutions charged with addressing these challenges are often criticized as ineffective and the centralization of power and authority is met with widespread concern. This paradox leads to confusion about the way forward; leaving questions regarding what effective collective action should actually look like.

Models of international governance abound, from liberal internationalism, emphasizing a centralized rule making authority, to new-medievalism, rallying for the end to the nation-state all together. In between these two paradigms, transgovernentalism, characterized by the disaggregation of a state into functionally distinct parts and the networked collaboration of states with their foreign counterparts, emerges as a potentially bipartisan global governance solution.[1]

Transgovernmental cooperation is not new but its prominence has grown in recent years. The technology revolution, increased interdependence, and an expansion of domestic regulatory law have all contributed to its rise as one of the most promising models of global governance within the field of international relations. Proponents argue that networks of bureaucrats are faster, more flexible, and more effective at addressing on-the-ground problems than international institutions and that the most effective way to combat network-based problems, such as organized crime, is to use networks as well. The bulk of the studies evaluating transgovernmental action have focused on judiciary, antitrust, financial, and most recently, the security realms.[2] Regarding the usefulness of transgovernmentalism in a migratory context, the literature is virtually silent. An analysis of the events that took place at the San Ysidro port of entry in the summer of 2017 reveal salient limitations of transgovernmentalism in the context of a migratory challenge. Transgovernmentalism ignores power asymmetry and the role that the culture of a bureaucratic agency plays in its behavior, all while giving unelected officials an excess of power. These conditions can lead to an environment fraught with diminished transparency and accountability, as was the case in San Ysidro, California.

In recent decades, but particularly in the last five years, migration has become one of the most prominent and pressing global challenges. With multiple crises worldwide, the number of people displaced from their homes by conflict and persecution reached an all-time high.[3] At the San Ysidro port of entry on the Southern border of the United States, two major migratory streams have created substantial pressure and challenges for both the U.S. and Mexican governments: asylum seekers from Central America and Haiti.

In the spring and summer of 2014, the number of Central American asylum seekers, the majority women and children, increased drastically, sparking a “humanitarian crisis” that lead to the resurgence of heavy-handed enforcement practices, such as family detention. Though the number of families apprehended on the Southern border has leveled out since it peaked in 2014, the flow has not stopped and families continue to present themselves at ports of entry everyday seeking the protection of the United States. Simultaneously, by mid-2017, tens of thousands of Haitans arrived in Tijuana, Mexico, seeking a safe place to live after the 2010 earthquake and the subsequent economic crisis in Brazil.[4] Shelters quickly filled, leaving thousands on the streets outside the port of entry to the United States. The situation at San Ysidro was dire and the United States and Mexican immigration agencies responded with an unprecedented amount of cooperation, at the most basic bureaucratic levels, to combat the chaos and enforce immigration law.

Transgovernmentalism rests on the assumption that transnational cooperation emerges from a “like-minded commitment to getting results” and “enhancing the enforcement of national law”[5] Given this, one would assume that transgovernmentalism would support the enforcement of the laws that establish the right to seek asylum, however, this has not been the case on the ground. The right to seek asylum is definite and unequivocal. The United States acceded to the 1967 United Nations Convention Relating to the Status of Refugees and the Refugee Act of 1980 brought much of domestic refugee law into conformance with the protocol. Of note, the Refugee Act of 1980 established a clear procedure for any individual to seek asylum at a port of entry, regardless of their status. It also codified the mandatory duty of non-refoulement. 

In 2017, officials from U.S. Customs and Border Patrol and from the Mexican National Institute of Migration joined efforts to address the influx of individuals seeking entrance into the United States in unparalleled and illegal ways. Reports abound regarding the manner in which the U.S. and Mexican immigration officials deterred or completely prevented individuals from seeking asylum. One Mexican asylum seeker reported that after a U.S. Customs and Border Patrol agent interviewed her regarding her asylum claim, she was led to another room and informed by Mexican immigration officials that the United States had denied her request to enter the U.S. to seek asylum. This woman was returned to the country she was fleeing, a blatant violation of the international obligation of non-refoulement.[6]

Furthermore, Mexican and Central American asylum seekers were systematically excluded from even interacting with U.S. immigration officials by coordinated efforts from both Mexican and U.S. immigration authorities. Attempting to bring order to the San Ysidro port of entry, immigration officials from both sides of the border created a metering system that limited the number of individuals allowed to present themselves at the U.S. border and seek asylum on any given day. The system required individuals to secure an appointment from the Mexican immigration authorities in order to present themselves at the U.S. border. However, the system was only meant for Haitian asylum seekers, therefore asylum seekers from any other country were turned away by both U.S. and Mexican immigration officials, even after expressing a fear of return and/or a desire to seek asylum. At the time, U.S. Customs and Border Patrol officers admitted that the two agencies were coordinating and working together “to improve the processing and humanitarian assistance of those individuals with no legal status to enter the U.S.”[7], yet the reality on the ground said otherwise.

The egregious legal and human rights violations that took place at the border last year suggest that transgovernmentalism is not the global governance silver bullet that some scholars believe it to be. A large reason for this is that transgovernmentalism assumes that countries engage with each other from a level playing field, “based on the like-minded commitment to getting results”.[8] However, this is far from reality. The concept asymmetrical power relationships is absent from the literature on transgovernmentalism. The relationship between the U.S. and Mexico is marked by clear interdependence and a stark imbalance of power.[9] Mexico has long depended on the United States economically. With roughly 80% of Mexico’s exports going to the United States, the United States wields a significant amount of influence over Mexico, both economically and politically. It is unrealistic to assume that the power dynamics between countries do not affect the interactions between bureaucrats on the ground. The dynamics between immigration officials at the San Ysidro port of entry paralleled the power asymmetry between the two nations. The burden of managing the crisis at the border undeniably fell heavier on Mexico as they played crowd control and managed appointments for the United States.

Another concept that is missing from the literature on transgovernmentalism is culture. Transgovernmentalism does not take into account that when the state disaggregates into functionally distinct parts, its agencies develop their own unique culture, which influences their policies and practices. Studies often highlight the judicial system when claims are made regarding effectiveness of transgovernmental networks, but the values and culture of a judicial system are very different from the values and culture of Department of Homeland Security, and its sub-agencies. After September 11, 2001, the U.S. experienced a powerful cultural shift towards securitization. The U.S.-Mexico border became the frontline in the fight against terrorism and lead to the widespread demonization of migrants.[10] The massive bureaucratic restructuring of the federal government that lead to the creation of the Department of Homeland Security, cemented this shift. Immigration and Customs Enforcement and Customs and Border Patrol are responsible for the enforcement of immigration laws; however, their culture emphasizes national security and keeping threats out, as opposed to higher ideals such as justice or inalienable rights. The culture of the agencies responsible for upholding humanitarian laws, such as refugee and asylum laws, do not align with the values underlying such laws. Furthermore, the Trump Administration has emboldened Border Patrol Agents to act out the culture of their agency vigorously and with the full support of the Administration. Ignoring the culture of agencies and operating under the assumption that national regulators will do the right thing is both unrealistic and dangerous. 

Another concern regarding transgovernmental networking is transparency and accountability. Transnational cooperation can range in formality, from bilateral or multilateral treaties to Memorandums of Understanding to informal collaboration on the ground[11]. As such, informal cooperation at the most basic bureaucratic levels can take place covertly and off the record, with little to no oversight. In the case of San Ysidro, there was no written policy or agreement for the use of the metering system, and it took months before Mexican and U.S. officials finally admitted that it actually existed. The number of appointments distributed to Haitian asylum seekers every day is still unknown, as reports have ranged from twenty to one hundred. When no one knows what is happening and limited records exist, it can be difficult to hold those responsible accountable when deficiencies and violations surge.

Lastly, the amount of power that unelected national regulators hold in transgovernmental regimes is worth mentioning, and the fact that national regulators may possess very limited education and experience only makes matters worse. There are no minimum educational requirements to become a U.S. Border Patrol Agent, yet, under a transgovernmental model, bureaucrats such as Border Patrol Agents are empowered to address complex problems without sufficient oversight or training. Migratory streams stem from complicated global forces and a holistic understanding of interlaced factors is necessary to understand and address the issue in a meaningful way. In a disaggregated state, agencies with limited experience and education may employ a tunnel vision approach to challenges, focusing exclusively on the small issue in front of them, without taking into account the broader context. Without a deeper understanding of the root causes of a migratory crisis and a commitment to address those issues, bureaucrats on the ground will look for the quick fix, which will likely be both ineffective and unlawful.

In the world today, challenges are abundant but solutions are scarce. Unprecedented migration has emerged as one of the greatest of those challenges, but finding an effective model of international governance from which to engage with such challenges has been difficult. For many scholars transgovernmentalism is a promising path forward. However, the summer of 2017 at the San Ysidro port of entry revealed significant problems with transnational cooperation at the bureaucratic level, leaving much to be examined by scholars hoping to address global problems with this model. Transgovernmentalism may be effective in other regulatory arenas, but within the migratory context, the way forward is still unclear.

[1] Slaughter, Anne-Marie. 1997. “The Real New World Order.” Foreign Affairs 76, (5): 183-97.

[2] Aydinli, Ersel and Hasan, Yon. 2011. “Transgovernmentalism Meets Security: Police Liaison Officers, Terrorism, and Statist Transnationalism.” Governance 24 (1): 55-84.

[3] Edwards, Adrian. 2016. “Global forced displacement hits record high.” UNHCR, June 20.

[4] Knoll Soloff, Andulusia. 2017. “Between Two Worlds: The Haitian Migrants Stranded at the US-Mexico Border.” Broadly, Jan. 13.

[5] Slaughter, Anne-Marie. 2005. “Introduction.” In New World Order, 1-35. n.p.: Princeton University Press, 2005.

[6] Inter-American Commission on Human Rights. 2017. Policies That Prevent Access to Asylum in the United States of America, Hearing, March 21. Washington: Women’s Refugee Commission.

[7] Partlow, Joshua. 2017. “U.S. border officials are illegally turning away asylum seekers, critics say.” The Washington Post, Jan. 16.

[8] Slaughter, Anne-Marie. 1997. “The Real New World Order.”

[9] Diaz-Caveros, Alberto and Selee, Andrew. 2010. “Mexico and the United States: The Possibilities of Partnership.” The Center for U.S.-Mexico Studies, April 21. 

[10] Mabee, Bryan. 2007. “Re-imagining the Borders of US Security after 9/11: Securitisation, Risk, and the Creation of the Department of Homeland Security.” Globalizations 4, (3): 385-397.

[11] Slaughter, Anne-Marie. 2005. “Introduction.” In New World Order.

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