Norm-busting: rightist challenges in US and Australian immigration and refugee policies

Abstract

Institutionalist scholars argue that international rights norms, judicial autonomy and discourses of immigrant nationhood constrain shifts to harsher immigration policies in liberal democracies, particularly settler societies. The Trump presidency and the Liberal–National Coalition government in Australia during the same period are occasions to test whether those norms functioned as expected in two paradigmatic country cases. Both governments attempted to undermine judicial autonomy, the illegitimacy of ethnic and religious selection of immigrants, the rights of detained children and families, and the principle of non-refoulement. A new institutionalist analysis of attempted norm-busting in each country specifies which norms were effective constraints. International legal and political constraints were weak. Domestically, norms obliging the protection of children were more effective than norms related to adults. Discourses favouring immigrant nationhood and opposing discrimination resonated, but were confronted by equally powerful discourses of insular nationalism and security that promoted restriction. While the judiciary moderately constrained new policies, particularly in the US, in neither country did the judiciary fully act in line with dominant theoretical expectations, because of both structural and normative weaknesses.

Keywords:

• Migration and refugees
• asylum law
• immigration law
• norms
• institutionalism
• judicial autonomy

Acknowledgements

The authors thank Katharina Natter, Feline Freier, Regina Jefferies, Cameron Doig and two anonymous reviewers for their comments on an earlier draft, and appreciate the support of the Monash Network of Excellence: Isolationist Domestic Policies and Global Refugee Protection.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 The Economist/ YouGov Poll, October 28–30, 2018, p. 78, https://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/p8wvf16d2j/econTabReport.pdf.

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3 “Democracy Index 2020,” Economist Intelligence Unit, 2021. https://www.eiu.com/n/campaigns/democracy-index-2020/.

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5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019).

6 EOIR Memorandum on “Case Priorities and Immigration Court Performance Measures,” January 17, 2018.

7 “NAIJ Has Grave Concerns Regarding Implementation of Quotas on Immigration Judge Performance Reviews,” National Association of Immigration Judges, October 18, 2017; “Civil Action No. 20-cv-731,” US District Court Eastern District of Virginia, Alexandria Division; “Decision and Order WA-RP-19-0067,” July 31, 2020.

8 “Courts in Crisis,” Hearings of the Subcommittee on Immigration and Citizenship, January 29, 2020.

9 “AAT Appointments Must Be transparent and Merit-Based,” Law Council of Australia, February 22, 2019.

10 Migration Act s 473BA.

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14 2 INA §202(a)(1)(A), 8 USC §1152(a)(1)(A).

15 State of Hawaii v. Trump 1:17-cv-00050 (D. Haw.); International Refugee Assistance Project v. Trump, 8:17-cv-00361-TDC (D. Md.).

16 Trump. v. International Refugee Assistance Project, 582 US ___ (2017).

17 Trump v. Hawaii, 585 US ___ (2018).

18 “The Administration of the Immigration and Citizenship Program, 4^th ed, February 2020,” p. 3.

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20 Patrick, O., “Australia’s Immoral Preference for Christian Refugees,” New York Times, May 3, 2017. https://www.nytimes.com/2017/05/03/opinion/australias-immoral-preference-for-christian-refugees.html.

21 “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Mendez,” UN Human Rights Council, March 5, 2015.

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24 “Inter-American Commission on Human Rights Resolution 64/2018,” August 16, 2018.

25 “Affording Congress an Opportunity to Address Family Separation,” June 20, 2018.

26 Jenny L. Flores v. Jefferson B. Sessions, III CV 85-4544-DMG (C.D. Cal. July 9, 2018).

27 Ms. L. v. US Immigration and Customs Enforcement, “Order Granting Plaintiffs’ Motion for “Classwide Preliminary Injunction,” US District Court, Southern District of California, No. 18-00428.

28 “CBP Separated More Asylum-Seeking Families at Ports of Entry Than Reported…” DHS Office of Inspector General, May 29, 2020.

29 Migration Act 1958 s 4AA.

30 “Human Rights Commission,” Essential Report, March 3, 2015.

31 “Asylum Seeker Babies,” Essential Report, February 6, 2016.

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33 94 Stat. 105, Sec. 208 (a).

34 “Public’s Priorities for US Asylum Policy,” Pew Research Center, August 12, 2019.

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36 84 FR 33829.

37 85 FR 16559.

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39 East Bay Sanctuary Covenant et al. v. Trump et al., DC No. 4:18-cv-06810- JST.

40 Wolf v. Innovation Law Lab, Supreme Court Order of March 11, 2020.

41 East Bay Sanctuary Covenant v. Barr. 588 US ____ (2019).

42 Al Otro Lado et al. v. Wolf et al., DC No. 3:17-cv-02366-BAS-KSC.

43 DHS v. Thuraissigiam. 591 US ____ (2020).

44 “Policy of Indefinite Offshore Detention of Asylum Seekers and Refugees,” Essential Report, September 17, 2019.

45 “Treatment of Asylum Seekers,” Essential Report, January 21, 2014.

46 Migration Amendment (Regional Processing Arrangements) Act 2015.

47 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

Additional information

Notes on contributors

David Scott FitzGerald

David Scott FitzGerald is Theodore E. Gildred Chair in US–Mexican Relations, Professor of sociology, and Co-Director of the Center for Comparative Immigration Studies at the University of California San Diego. His research analyses policies regulating migration and refugees in countries of origin, transit and destination, as well as the experiences of people on the move. His books include Refuge beyond Reach: How Rich Democracies Repel Asylum Seekers (Oxford University Press, 2019) – winner of best book awards from the American Sociological Association’s (ASA) International Migration Section, ASA Human Rights Section and the International Studies Association’s Human Rights Section – and the co-authored (with David Cook-Martín) Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas (Harvard University Press 2014), whose awards include the ASA Distinguished Scholarly Book Award. His seven co-edited books include Immigrant California: Understanding the Past, Present, and Future of US Policy (Stanford University Press 2021). His co-authored book (with Rawan Arar) The Refugee System is forthcoming with Polity.

Asher Hirsch

Asher Hirsch is Senior Policy Officer with the Refugee Council of Australia, the national peak body for refugees and the organisations and individuals who support them. Asher is also a PhD Candidate and Lecturer at Monash University in public law, human rights and refugee law. He holds a bachelor of arts, a master of human rights law, a juris doctor and a graduate diploma in legal practice. His articles have been published in the Human Rights Law Review, Refugee Survey Quarterly and Human Rights Review, among other places.