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Neither Here Nor There: The Conceptual Paradoxes of Immigrant and Asylee Resistance

Robert W. Glover

CLAS-Honors Preceptor of Political Science University of Maine

Dept. of Political Science 5754 N. Stevens Hall

Orono, ME 04469-5754 Email: robert.glover@maine.edu

FORTHCOMING in The Aporia of Human Rights: Explorations in Citizenship in an Era of Human Rights (Continuum/Bloomsbury Academic, 2014).

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Introduction: Neither Here nor There

“…It is necessary to come to terms with the image of the immigrant as a weak subject, hollowed by hunger and misery and needing above all care and help…it is necessary to note that this image lends itself easily to the reproduction of paternalistic logics which renew an order of discourse and complex of practices that demote migrants to an inferior position, denying them all chance of becoming subjects.” -Sandro Mezzadra (2004, 267-8)

On May 21st, 2008, Obain Attouman was led aboard a plane in New York City by US

Immigration and Customs Enforcement (ICE) officials, bound for his country-of-origin, Cote

D’Ivoire (Vaznis 2008). Attouman had been deported, ending a battle to stay in the United States

lasting over a decade and provoking massive community mobilization. His case even prompted

the introduction of legislation in both houses of the U.S. Congress, and intervention by then-

Governor Mitt Romney, in an attempt to regularize Attouman’s immigration status (Stone 2012).

Attouman came to the U.S. in 1992, fearing persecution due to involvement in a politically active

teachers’ union, as well the main opposition party in Cote D’Ivoire. Seeking political asylum, he

established himself as a well-respected teacher at Fenway High School in Boston, Massachusetts.

However, in 2004, he misread a handwritten court date, and his removal was ordered (Stone

2012). Despite numerous efforts on his behalf, attempts to prevent Attouman’s return to Cote

D’Ivoire were exhausted. His current fate is unknown.

At first glance, the case seems to inscribe the familiar tropes we encounter when thinking

about asylum-seekers and undocumented migrants: helplessness, precariousness, vulnerability.

Yet, as Mezzadra reminds us above, we must avoid reducing such figures to states of

defenselessness, in need of paternalistic care. Those in such situations often engage in innovative

and unexpected political action. Furthermore, they enact forms of political subjectivity harboring

positive potentialities for how citizens think about their own political agency. Through this lens,

we can view migrants as “…a potentially creative social movement capable of confounding and

destabilizing the distributions and markings of sovereign power” (Walters 2008, 183).

Contemporary political practice undermines notions of a particularistic realm of inclusion for

citizens set against abstract domains of universalistic human rights appeals for migrant non-

citizens. In contrast, the argument presented here is that while these two domains frequently

operate in tension or outright conflict, citizenship and human rights are deeply co-dependent and

this conflictual space of cohabitation harbors radical democratic potential.

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This paper begins by examining how state migration policies define parameters of

political membership. I then explore two instances of migrant and non-citizen political

mobilization: the willful destruction of identity documents by asylum seekers facing deportation

in the European Union, and efforts by immigrant advocacy groups in the United States to fight

deportation by lobbying foreign consular officials to delay readmission. The conclusion suggests

ways that such forms of agency may help us rethink our own conceptions of power and

powerlessness, as well as cultivate less hostile, more agonistic political orientations towards

political subjects who defy easy categorization.

Conceptual Considerations: The Citizenship-Migration Nexus

In a lecture on Nietzsche, a colleague was trying to convey the human tendency to

understand phenomena through negation. He drew a black dot on a dry-erase board and asked

undergraduate students to imagine that this whiteboard was the only thing that existed, extending

off for limitless distance in every direction. My colleague then asked students to state where

precisely that black dot was. Puzzled stares. Furrowed brows. He then stepped to his left, drew

another black dot and asked the question again. With a second reference point, defining the

location of the first black dot ceased being a mind-bending and frustrating experience. The first

dot is not the second dot, qualitatively distinct from, but nevertheless defined in relation to, the

second dot.

This seems like a rather prosaic example, however it captures something important about

migration’s role in relation to citizenship. In order to have a positive sense of the substance of

citizenship, sovereign power must define the “inside” of the community relative to what Derrida

calls its “constitutive outside” (Derrida 1988). Attending to migration and entry/exit policies

involves the state’s direct intervention upon, and creation of, political subjects “whose

contending identity gives definition to contingencies in one’s own way of being,” the constitutive

others of our own political identities (Connolly 2002, 179). However, this process is dangerous.

Definitions of who is outside the political community foster both solidarity and demonization. As

Ignatieff notes, creating an “outside” to the political community is “probably the most common

form of tyranny in human history” (Ignatieff 1995, 56).

This process is rich with conceptual complexity. Unsurprisingly, numerous scholars have

turned to this interdependent relationship to critically analyze the character of the political

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community, notions of sovereign power in the contemporary era, as well as the possibility of

enacting rights-claims even from outside the traditional domains of national citizenship. I refer to

the co-constitutive and interdependent relationship between these two domains as the

“citizenship-migration nexus.”

I will briefly review three key conceptual strains of contemporary critical research on the

citizenship-migration nexus. First, I will examine research which, following Agamben, sees

contemporary migration policy manifesting a potent strain of decisionistic, sovereign power

capable of reducing subjects to “bare life”—a state of prepolitical biological necessity. I then

examine those who, following Seyla Benhabib, see the citizenship-migration nexus evolving in

the direction of a cosmopolitan “disaggregation of citizenship,” where rights-claims exist in a

transnational, politico-legal space beyond the traditional state system. Lastly, I turn to a diverse

eclectic scholarship that sees in the citizenship-migration nexus the possibility of an agonistic

form of citizenship where non-citizen subjects can, if momentarily, transcend traditional markers

of power and enact radical democratic citizenship. The paradoxical result is that non-citizen

political action has the potential to challenge and undermine democratic citizenship, while

simultaneously reaffirming it and inscribing it with new meaning. This last strain of thinking

informs my own analysis of non-citizen resistance.

For many who have critically analyzed the citizenship-migration nexus, the innovative,

influential work of Giorgio Agamben constitutes a point of departure (1999, 2000, 2005). This is

unsurprising, as Agamben probes the qualities of vulnerability and fragility mentioned at the

outset in a thought provoking, albeit unsettling, way. Agamben argues that, in contemporary

contexts, “…the normative aspect of law can…be obliterated and contradicted with impunity by

a governmental violence that—while ignoring international law externally and producing a

permanent state of exception internally—nevertheless still claims to be applying the law” (2005,

87). The contemporary political subject confronts the whims of sovereign power characterized

by “bare life”—a menacing form of ambiguity, a space devoid of rights, amidst a permanent

state of exception (Agamben 2005).

In thinking about the contemporary world, we see why Agamben has such an impact. In

just over a decade, we have witnessed disturbing trends in the exercise of sovereign power across

numerous settings: the creation of politico-legal settings seemingly subject to neither

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international or domestic law, the legitimation of torture, assassination, and kidnapping, as well

as the injection of the security imperative into virtually all policy domains. Seemingly, a space

has emerged where impulses of sovereign authority can run rampant, absent oversight or

democratic checks, and where the state’s discretionary authority ensures that those within the

crosshairs of the securitizing state are no longer certain of rights or protections. The political

subject is vulnerable precisely because of the ambiguity that now characterizes both state power

and the rights of political subjects. When we look at the condition of migrants and asylum-

seekers, their experiences seem to embody the bare life that Agamben articulates.1

Yet thinking critically about Agamben’s contributions to understanding the citizenship-

migration nexus, we must remain attentive to what Walters calls “…the sometimes hubristic and

vaguely apocalyptic nature of his enterprise” (Walters 2008, 187). He states,

In Agamben’s account, and even more so in much of the research that has explored its themes in the context of migration studies, refugees and migrants are depicted as cast into spaces at the limit of the law, contained outside the system of legal protection, trapped in zones of indistinction…In these kinds of accounts, they are subjects to whom all manner of things are done, often in arbitrary and violent ways, but rarely agents in their own right (187-188, emphasis in original).

Agamben’s analytical apparatus can blind us to the moments of agency and resistance enacted by

migrants. Furthermore, uncritically accepting Agamben’s notion of “bare life” and the “state of

exception” can obscure openings through which actors embedded within structures of sovereign

power might deploy resistance. Honig writes, “[i]nstitutions do set expectations, generate

grammars, and set out norms that are internalized by their members. But individuals then go on

to act variously upon those norms and, in their variety, they at some point decide” (Honig 2005,

228). That is to say, there remains a scope for individual judgment and agency, and subtle but

significant acts of resistance, even from within the institutional structures that enact sovereign

power (Honig 2009, Ch. 3).

Not all accounts of the citizenship-migration nexus spring from such a bleak standpoint.

Seyla Benhabib examines the citizen-migration nexus with a focus on global institutional

changes that open spaces for agency, democratic empowerment, and rights-expansion (2006, 18).

She argues that there is a growing “disjuncture” between the ideals of universal rights, equal

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treatment, and human dignity and the Westphalian sovereign state system with its notions of

inviolable state sovereignty and particularistic political communities.

The gap between cosmopolitan ideals and state-based realities is shrinking, according to

Benhabib (2004, 2005, 2007). She argues that we are witnessing a “disaggregation of citizenship

rights” in which civil, political and social rights associated with membership are increasingly

“unbundled” from one another, as well as from categories of national membership altogether.

Increasingly, “proto-citizenship” rights-claims can be made at local and supra-national levels by

diverse political subjects—long-term residents, undocumented migrants, refugees, or those with

multiple national memberships (Benhabib 2006, 172). Disaggregation is an “inescapable aspect

of contemporary globalization,” as international human rights regimes increasingly open spaces

where non-members push for inclusion, rights, and benefits within host polities (Benhabib 2005,

13).

Elsewhere, Benhabib suggests that political transformations fostered by disaggregation

produce a “dialectic of rights and identities [in which] both the identities involved and the very

meaning of rights claims are reappropriated, resignified, and imbued with new and different

meaning” (2006, 67). Though Benhabib admits clashes between universalistic and particularistic

principles are never “fully resolved,” these “democratic iterations” constitute new forms of

empowerment for those outside traditional bounds of the sovereign political community (2006,

35). The iterations are first steps towards a more “porous” notion of political membership—

transnational rights to hospitality which, irrespective of gaps in enforcement and observance, are

“indicators of a new sense of global justice and harbingers of new modalities of political agency,

perhaps heralding cosmopolitan citizenship” (2005, 12).

Yet complications arise in utilizing Benhabib’s approach to conceptualize contentious

political action by migrants and non-citizens.2 The false purity of the categories “particular” and

“universal” mischaracterizes established political communities, those struggling to redefine

notions of belonging within those communities, and the ways that the two interact. Particularistic

political communities ground notions of belonging in universal ideals. Similarly, those who

advocate for universal human rights often reinforce and re-inscribe particularistic patterns of

belonging. Examining legal and political personhood forces realization that “the universal is

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never really as we imagine it: truly unconditional, context-transcending, and unmarked by

particularity and politics” (Honig 2005, 228).

Through Benhabib’s framework, we expect a world of ”concrete” particularistic

communities seeking closure, while ”abstract” non-citizens struggle for inclusion. This risks

assigning those outside existing outside of formal membership a deracinated existence rooted in

abstract principles, absent concrete identities. In this way, Benhabib’s framework subtly supports

ideas of “outsiders” dismantling the apparatus of citizenship for “members,” as well as overly

rigid notions of the bonds shared between fellow citizens. Benhabib’s disaggregative model

upholds the notion of human rights and place-based citizenship as distinct orders, dampening

democratic potentialities that exist in their dynamic interplay. Ultimately, we need an alternative

framework to understand ways in which universalism and particularism inform simultaneous

construction of both citizenship and human rights, one that is attentive to the forms of solidarity

and fissure that shape non-citizen acts of resistance.3

Such a framework can be found in the work of scholars who critically analyze the

citizenship-migration nexus as the site of a radical, agonistic politics continually forcing

reconsideration of boundaries of citizenship and belonging.4 In articulating this last perspective, I

take liberties in explicating its underlying premises, in part because the standpoint informs my

own analysis, and also due to the diverse nature of the enterprise. I will provide a brief overview

of some conceptual constructs that undergird this scholarship. I then suggest how these premises

inform understandings of the citizenship-migration nexus as a space for radically democratic

forms of agonistic political mobilization.

The initial underlying idea evident in such scholarship is the notion of democracy as an

unfinished process. Through this lens, democracy is not merely a set of institutions, a regime

type, or a mode of political order. It is also the inherent, but unknowable, promise of a future

condition. Derrida refers to this as “democracy-to-come” or démocratie à venir (2005, 28-41).

This is not a future condition in the sense of, for example, a liberal cosmopolitan global order—

ideal institutions serving as a regulative ideal, against which we assess the existing reality. As

Frisch notes, for Derrida, democracy-to-come “…is not a promise whose fulfillment at some

future point in time can be expected, foreseen, or described. Democracy to come does not name a

future democracy, nor is its promise ever embodied by an empirical political regime. The

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promise will always remain a promise” (Fritsch 2002, 575-576). This future condition of

democracy is unknowable because, to the extent that we reach all-embracing consensus about the

proper vision for a democratic society, paradoxically, the demos would become irrelevant

(Mouffe 2000). Dissent operates as the condition of possibility for a truly democratic order.

This notion of democracy-to-come parallels Derrida’s concept of “undecidability.” If we

are to engage in ethico-political judgment, our decisions must occur against a field of

undecidability, a form of active decision-making where radical space for judgment cannot be

reduced to mere calculation or determination. This condition transcends mere formulaic

following of rules or adherence to guidelines. Derrida went so far as to suggest that

undecidability was the “necessary condition” for any free ethical and political action (Derrida

1988). He writes, “[a] decision which did not go through the ordeal of the undecidable would not

be a free decision. It would only be the programmable application or the unfolding of a

calculable process. It might be legal; it would not be just” (Derrida 1990, 267).

Derrida’s formulation suggests a conception of sovereign power that is more open to the

possibility of agency than those we encounter above. In this sense, there are parallels to recent

work delving into connections between sovereign law and human agency. Kristen Rundle has

mined the work of legal philosopher Lon L. Fuller, particularly his underappreciated notion of

the connection between law and morality (2012). Arguing against legal positivists of his time,

Fuller asserted that law’s distinctiveness is that the form itself “presupposes the legal subject’s

status as a responsible agent” (Rundle 2012). Rundle writes that, for Fuller, law is “intrinsically

moral for…if it is to function it must maintain and communicate respect for that status of

agency” (2012). Breaking with other positivist legal philosophers who adopted a widely

permissive conception of the boundaries of law, Fuller sought to distinguish law against other

forms of “managerial direction” or, in Derrida’s words, “calculable processes.” The form of law

itself presupposes agency in that legal subjects grant legitimacy to the law as well as embrace

individual responsibility for the application of law.

Of course, we should not conflate the tasks of the two thinkers. Derrida is drawing out

agency and undecidability as the basis for free and ethical action. Fuller (and Rundle) are

articulating sovereign law as an inherently agentic and moral realm. Yet the implications are

complementary. Sovereign legal power does not merely exist—it unfolds through the agency of

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government officials and its legitimacy presupposes agency among legal subjects. Through this

frame, we develop richer notions of the distinction between the mere ordering and administration

and the active decision-making and judgment that lie at the core of seeking justice and of law

itself. Sovereignty is law, and law presupposes human agency. In contrast to the hollow, agency-

depleted fiat we encounter in Agamben’s work, these thinkers recover notions of responsible

agents, operating from within institutions of sovereign power, applying law to equally agency-

rich legal subjects.

However, these understandings bear not only upon how we define democracy and seek

justice, but how we understand democratic citizenship as well. Keenan argues that a

“fundamental uncertainty” must haunt any democracy. In a democracy, identity, and the rights

associated with an identity, “…[are] never established once and for all” (2003, 7). Democracy is

partly about closure; we must, at some critical juncture or another, make decisions and political

identities will be constituted. Yet closure is based upon an “incomplete” and admittedly

“imperfect” conception of “the people.” Keenan writes, “the closure necessary to the people’s

identity and rule, then, in a paradox typical of democratic self-rule, means that the people never

in fact completely closes in on itself, never reaches completion or achievement” (2003, 11). In

fact, the very notion of the “people,” the closure it so seductively suggests, can change or unravel

as a result of the various democratic contexts in which it is invoked.

In relation to human rights then, we can partially untether the rights-receiving subject

from both the cosmopolitan order existing above the state and the particularistic domain of

sovereign state power. When viewed through the lens of “dissensus,” a core idea in the theory of

Jacques Rancière, the resistance by marginalized political subjects now takes on a productive and

performative character. Rancière writes,

There is no man of the Rights of Man, but there is no need for such a man. The strength of those rights lies in the back-and-forth movement between the first inscription of the right and the dissensual stage on which it is put to state. This is why the subjects of the Soviet constitution could make reference to the Rights of Man against the laws that denied their effectivity. This is also why citizens of states ruled by religious law or by the mere arbitrariness of their governments, even the clandestine immigrants in the zones of transit of our countries of the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of the rights they suffer (2004, 305-306).

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In a similar fashion to Derrida, Rancière contends that envisioning the “citizen” as the only

political subject who can legitimately press claims against the state is to “depoliticize” such

struggles. In contrast to dissensus, he writes that depoliticizing acts of consensus,

…attempt to get rid of politics by ousting the surplus subjects and replacing them with real partners, social groups, identity groups and so on…conflicts are turned into problems that have to be sorted out by learned expertise and a negotiated adjustment of interests. Consensus means closing the spaces of dissensus by plugging the intervals and patching over the possible gaps between appearance and reality or law and fact (2004, 306).

In making a rights-claim, all manner of political subjects who reside on the “margins” of the

political community expose gaps between rights and recognition. They distinguish between the

formulaic application of rules and the more dynamic and agency-driven domains in which we

enact claims to justice. It is in these latter settings that political subjects inaugurate new forms of

rights, in advance of their recognition.

Honig elaborates upon points towards which Ranciere only gestures, but retains his

emphasis on the possibility of anticipatory rights-claims advanced absent solid foundation, and

resisting universal (cosmopolitan) or particular (national) forms of political membership. In

dominant conceptualizations of political and social struggles, she argues that “…new rights

claims are judged in terms of the rights’ amenability to being subsumed under existing

constitutional or universal categories” (2008, 90). By contrast, she argues that,

there may well come what we will later call progress, new identities may be allowed or ushered onto the threshold of justice, but progress does not come with its own guarantee, nor is it a meaningful criterion to guide us. In the moment, we do not know in what progress might consist and new claims may seem laughable. Looking backward, we can say with satisfaction that the chrono-logic of rights required and therefore delivered the eventual inclusion of women, Africans, and native peoples into the schedule of formal rights. But what actually did the work? The impulsion of rights, their chrono-logic, or the political actors who won the battles…? (2008, 87).

Honig’s point is that dominant understandings of rights paper over the uncertainty, the fragility

of the rights-claim at the moment it is voiced. Dominant conceptions of rights submerge such

claims within a fictive, one-sided contest in which we already know the outcome. Furthermore,

these understandings construct unproblematic tales of victors and vanquished, purged of their

ambivalence. Lastly, dominant conceptualizations of rights risk minimizing the political agency

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of those who voice the rights-claim and who “usher” such demands “onto the threshold of

justice.” To adopt the “chrono-logic” of rights is to insist that successful attempts to establish a

new claim to justice “…were in nascent form always already somehow part of a rights machine,”

simply waiting to be uncovered, instantiated into law (2008, 104).

A more critical assessment recognizes that emergent and performative rights-claims, like

anything which enervates the existing order, also produce attitudes of “panic” and “reluctance”

(2008, 104). Such rights-claims make us aware that “…new and unexpected things are

occurring,” some of which “…fulfill what we think of as the promise of rights; others [that]

betray that promise in ways that we will regret and want to resist.” (2008, 105). This critical

perspective suggests the agonistic character of these sites of political claims-making. Initiating

rights-claims, even rights that transcend existing orders of recognition, embodies the inception of

a struggle over the meaning of those rights, as well as their potential claimants. Democratic

citizenship, from the agonistic perspective, is not simply the formulaic administration of a

political order, but rather this mode of democratic agency entails the creative utilization of

political space where unlikely agents (even, those inside the state) subject sovereign authority to

scrutiny. At times, they even devise innovative ways to subvert its effects. Advancing a rights-

claim from a position of non-recognition has an open-ended and unfinished quality. To invoke

rights, to make a claim to “freedom” is not an end in itself, but merely the beginning, a gesture

towards “democracy to come.” To the extent that agonistic democracy has a common core, it is

one that involves mapping out such moments of contestation.

Herein lies the link to migrant and non-citizen resistance. The very identity of the

migrant, the refugee, the asylum-seeker, the undocumented, the sans-papiers, force us to rethink

the moments of closure when encounter within the citizenship-migration nexus. These identities

resist a formulaic account of “inside v. outside” and “citizen v. non-citizen” boundaries. In

particular, non-citizen resistance which contests the closure of the community, or fights removal

from that community, moves beyond membership as a category to which sovereign power can be

applied, and forces us to rethink the limits of membership. Utilizing the theoretical and

conceptual frames above, such actions do not merely create the backdrop for application of

sovereign power, but instead constitute the condition of possibility for justice.

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Non-Citizen Forms of Resistance: Asylum-Seeker Identity Destruction in Europe

In exploring contemporary acts of non-citizen resistance, we can gain a greater sense of

how non-citizen resistance paradoxically subverts the categories by which we make sense of

contemporary sovereign practice and human rights. However, the value of examining such

actions extends beyond mere analytical or conceptual utility. Thoughtfully considering such

actions also helps reinforce the “meta-insight” that, even amidst seemingly powerless and

vulnerable populations, evasion and open resistance to state power remain possible. These sites

of dissensus can be generative in thinking about concrete political action, in the varied spaces in

which we seek to challenge and contest the status quo, and to advance new claims upon the state.

Both of the examples examined here involve resistance to deportation, one of the starkest

exercises of sovereign power deployed against non-citizens. In this realm, the post-9/11

securitized political climate in many states has led to increased scrutiny of asylum claims and

more extensive use of deportation as a means of expelling failed asylum-seekers (Gibney 2008,

146). Deportation is a complicated, costly, and tricky business. Furthermore, it often provokes

outcry as it is seen by many as “…a ‘cruel power’, one that sometimes seems incompatible with

the modern liberal state based on respect for human rights” (Gibney 2008, 147). Nevertheless,

deportation’s use has increased over the last decade in many key asylum destinations such as the

United States, Britain, Canada, Australia, Germany, and the Netherlands (De Genova 2002,

Harrison and Lloyd 2012).

In analyzing non-citizen resistance against deportation, I will first examine “identity-

stripping,” a process whereby failed asylum seekers and migrants actively “de-identify” in order

to prevent deportation to their country-of-origin. Unlike international migration, where

immigrant-recipient countries have been reluctant to ratify what few international conventions

exist, there are meaningful international legal protections related to asylum. The 1951 Geneva

Convention relating to the Status of Refugees and its 1967 Protocol hold signatories to standards

regarding expulsion or removal, namely that no person who reasonably fears persecution on the

basis of race, religion, nationality, or membership in a political or social group can be returned to

their country-of-origin against their will. This is known as the principle of non-refoulement (UN

General Assembly 1951). However, in securitized policy climates and with amplified fears about

“bogus asylum seekers,” asylum-seekers face challenging paths to residency from the outset. In

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the UK, for instance, Souter states “…[s]temming from [the Home Office’s] acceptance of the

widespread assumption that most asylum claims are groundless or fraudulent, the culture of

disbelief has led [it] to refuse many asylum seekers unjustly, which in turn has often resulted in

their detention, destitution and deportation to their highly volatile countries of origin” (Souter

2011).

For those whose claims are denied, either because their stories are not deemed credible or

because conditions in their country are not considered severe enough to merit asylum, few

options remain. Specific protocols vary, however, a negative decision usually means a short

period for appeal, with slim likelihood of reversal, and some time to put one’s affairs in order

prior to removal. Whatever state benefits one might have been receiving are suspended. These

could include temporary housing, economic assistance (as most asylum seekers are legally

prevented from working while their case is pending), language training, and non-emergency

medical benefits. Absent authorization to work or reside within the country, individuals usually

cannot apply for any alternative residency permit, as these must be filed from one’s country-of-

origin. Furthermore, those who defy a removal order could be subject to additional “re-entry”

bans of three to five years for non-compliance. In an informational pamphlet for failed

asylumseekers in Denmark, the reality of this life is spelled out clearly: a “devitalized” existence

in which many failed asylees begin experiencing physical and psychological distress (Refugees

Welcome 2011).

This is a situation where failed asylumseekers seemingly must accept the state’s decision

and return to their country-of-origin. However, strikingly, even here we see acts of resistance to

subvert removal efforts, or at the very least, to slow the process. Paradoxically, the absence of

positive rights and entitlements creates the space for resistance. It is, “…because the state has

revoked all rights and benefits it no longer can offer positive compliance incentives…this

absence of positive incentives also renders problematic the threat of sanctions as a way of

enticing individuals into compliance” (Ellerman 2010, 411).

Coupled with the lack of positive incentives is the fact that liberal states face restrictions

that limit their coercive power against non-citizens. While non-liberal states frequently deploy

extreme coercive techniques against uncooperative subjects in the country without authorization,

and engage in mass deportation with little to no legal procedure, liberal states lack recourse to

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such methods. As Ellerman states, in settings where legal norms limit coercive tactics against

detained non-citizens, “the state is powerless to elicit the voluntary compliance of those without

legal standing” (2011, 413).

The method of political resistance adopted here hinges upon the state’s limited ability to

identify those subject to removal. Those evading deportation can choose to undergo a process of

“identity-stripping” making deportation difficult or impossible for the state. As Broeders and

Engberson write, this strategy involves individuals “…obliterating their legal identity—more

particularly, their nationality. Thus, irregular migrants can obstruct deportation by destroying

their identification papers (e.g., their passports). Unidentifiable irregular migrants are the

“unmanageable” cases with which the immigration authorities have difficulty coping, and they

are seldom deported” (2007, 1598). If this person is detained and their removal ordered, the state

faces the challenge of proving both their identity and their nationality, so that they can seek

deportation authorization from countries-of-origin.

While such methods designed to obfuscate identity (falsified papers, lying about one’s

true identity or nationality) have long been used by undocumented migrants, the practice is now

being undertaken by asylum-seekers as well. For those who have gone through a formal asylum

procedure, particularly if they arrived with identifying documents from their home country or on

a temporary visa, this process of “obliterating” one’s identity is obviously difficult. The

receiving state will likely have logged identifying data in sophisticated ways including the use of

biometric data such as fingerprints or facial image. However, many asylees arrive absent

identity documents or with forged papers, and initial identification is based largely on oral

information they provide immigration authorities. In addition, failed asylum-seekers can claim

that their initial identifying documents were false or inaccurate. Arriving without documentation,

or with fraudulent documentation, is protected in international law, as it is recognized as

sometimes the only way for asylum seekers to successfully escape their country-of-origin

(UNHCR 2011). Ellerman writes, “…where migrants cross the border without identifying

papers, (unsuccessfully) file for asylum, and, after being issued expulsion orders, contest the

name and nationality on their asylum applications, state officers will struggle to convince foreign

diplomatic personnel to issue documents to individuals whose identity cannot be conclusively

established (2010, 417, emphasis added).

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With an individual’s identity and nationality in question, the state’s hands are tied in

terms of removal. Biometric identification is only useful to the extent that it can be linked to an

identifying document, such as a passport, in the asylee’s country-of-origin. This document may

not exist, or locating it can cause lengthy administrative delays. Some states, such as Germany,

have even attempted to circumvent this strategy through speech analysis (i.e. determining an

individual’s origins via language, dialect and pronunciation). However, many states will not

accept this as definitive proof of identity and will not authorize return (Ellerman 2010, 417-418).

In thinking about this example, we must be careful here to avoid “romanticizing

resistance.” The acts undertaken here are motivated by, and made possible through, desperation

and a lack of more “traditional” forms of mobilization (Nyers 2008, McGregor 2011). When

dealing with political subjects who truly have “nothing left to lose” in avoiding removal, the

lines between resistance and outright self-harm become difficult to discern. Such actions

constitute a strange form of empowerment, and one in which subjects engage in quite literal acts

of self-sacrifice via the destruction of their identity, and their subjection to an unfulfilling form

of deprivation.

These acts of resistance leave us with a sense of indeterminacy. Individuals engaged in

identity-stripping realize that the path to normalization and eventual formal membership in the

political community is unlikely. Those who have chosen to analyze identity destruction as a

strategy of resistance often employ James Scott’s framework of “everyday resistance” (Broeders

and Engberson 2007, Elleman 2011). Scott argues that even in conditions of extreme power

disparity, we see forms of resistance, “weapons of the weak,” which often exhibit the following

qualities: "…they require little to no coordination or planning; they make use of implicit

understanding and informal networks; they often represent a form of individual self-help; they

typically avoid any direct confrontation with authority” (Scott 1987, xvi). Obviously the

framework above is difficult to apply here, particularly the last criterion. Identity-stripping puts

the political subject into a direct and frightening confrontation with sovereign power. While

Scott’s study focused on forms of peasant resistance designed to go undetected such as foot-

dragging and petty theft from wealthy landowners, identity-stripping is a calculated and public

political act.

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Equally troubling is that “weapons of the weak,” as it is deployed in work on asylee

resistance, imparts a sense of futility and powerlessness to those engaged in such acts of

defiance. These authors would have us believe that, absent any other means to resist state power,

failed asylees engage in a contrarian but ultimately fruitless effort to slow the process of

deportation. However, these marginalized and oppressed political subjects may actually possess

a greater strength than those who enjoy formal protection, due to the fact that they operate

without illusions about some emancipatory endpoint. I do not mean to suggest that the condition

of these asylees is desirable. Rather, I am proposing that such subjects, uncovering spaces for

defiance and continuing to struggle against sovereign power despite pronounced challenges,

might make us rethink the possibilities of political agency in any situation, and what constitutes a

true condition of powerlessness.

The resistance undertaken here does not point to any future exalted state. Contrary to

Benhabib’s disaggregative account, heralding international asylum law as a promising step

towards universal rights to hospitality, these are individuals who reside in legal and political

space largely unspecified by both national and international law. It is difficult to know at present

how extensively such “identity-destruction” strategies are being utilized and to what effect.

Anecdotal evidence suggests that, as asylum decisions become more restrictive, such strategies

are becoming more prevalent. Furthermore, the issue has been taken up recently by the Council

of Europe, which has attempted to foster greater restraint in the use of detention in such cases,

stipulating that such measures ought only be employed when imperatives such as establishing

identity and protecting the public order could not be achieved utilizing other methods (Council of

Europe 2010). In addition, the European Parliament has established that the maximum period for

pre-removal detention ought not to exceed 18 months, with certain exceptions and qualifications

(European Parliament 2008). Admittedly, even if removed from detention, the restrictions

mentioned above remain in place. Asylees attempting to resist deportation cannot work, receive

state assistance or housing benefits, and their legal limbo can extend indefinitely. Nevertheless,

many individuals continue to remain within the country and continue to resist voluntary

compliance. Despite the harshness of the conditions even upon removal from detention, the

“…resilience and resolve of migrants to do whatever is in their power to evade deportation…” is

striking (Ellerman 2010, 419-420).

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Despite limitations upon length of detention, the restrictions upon release ensure that

failed asylees see no “happy endings” in their future. Nevertheless, from the agonistic

perspective, democracy is not the place where we expect such endings. Rather, the purpose of

democracy is to allow space for interruptions, acts of dissensus. Such protest actions remind us

“…that the always imperfect closure of political space tends to engender remainders and that, if

those remainders are not engaged, they may return to haunt and destabilize the very closures that

deny their existence” (Honig 1993, 15). These individuals remind us that even amidst difficult

circumstances, possibilities remain for political agency and action, and a performative and unruly

politics which seeks interruption rather than closure as its primary goal.

Enlisting Countries of Origin in Anti-Deportation Resistance

In the second example of non-citizen resistance, the country-of-origin is enlisted as a

partner in the struggle against deportation, as advocacy groups working with, and on behalf of,

non-citizens seek delay of travel authorization. For a variety of reasons, the country-of-origin

may be reluctant to authorize readmission of deportees. As such, a political space opens whereby

actors can actively solicit the cooperation of the country’s government in preventing removal. As

this strategy of non-citizen resistance is in many ways similar to the strategy of “identity-

destruction” noted above, discussion of its procedural aspects will be somewhat abbreviated.

Notable, however, are the transnational networks of resistance formed by involving both state

and non-state actors in anti-removal contestation.

While much has been made of the “deportation turn” in processing cases of asylum

seekers and unauthorized migrants, deportation requires cooperation with the migrant’s country-

of-origin. Ultimately, an individual cannot be thrust upon a receiving state absent consent.

Rather, the state must, “claim” the individual as its national and authorize his or her reentry. This

creates difficulties for immigration authorities when migrant origins are disputed (as is the case

above) or when the country-of-origin simply chooses not to cooperate in facilitating deportation

proceedings. Gaining the consent of the receiving state can be so challenging that Ellerman

writes, “…interior authorities consider the problem of international non-cooperation as the single

most intractable problem obstructing deportations” (Ellerman 2008, 174).

In an effort to circumvent non-cooperation, many states engineer bilateral agreements

making deportation virtually automatic. For instance, the U.S. and Mexico have done so for

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years. The most recent agreement clearly specifies the protocol for removal, the cost-sharing

burdens for deportation, and formalizes the process by which unauthorized migrants are returned

to their country-of-origin (Department of Homeland Security 2009). Given the extent that

Mexican and American authorities cooperate in immigration enforcement, a fairly concrete

protocol exists for deportation and readmission.

However, such a process is not always straightforward. Not all countries have such

bilateral procedures in place. Furthermore, for many states, it simply is not in their interests to do

so. Cassarino writes,

When dealing with readmission we have to take into consideration the fact that state -to-state cooperation is based on asymmetric costs and benefits, for it involves two contracting parties (i.e., the country of destination and the country-of-origin or transit) that do not necessarily share the same interests in pursuing cooperation. Nor do they face the same domestic, regional, and international implications (2010).

As a result, some deportations occur swiftly and easily, while others drag on for months or years.

There are many reasons why cooperation might not be forthcoming. Readmittance may

lag due to developing countries’ scant administrative and legal resources, or dysfunctional

institutions. Authorities may literally be unable to determine the identity of migrants slated for

deportation, and cannot authorize their readmittance in a timely manner. However, alongside

such procedural complications, are incentives compelling states to slow or suspend reentry.

States may be reluctant to see migrants reenter for economic reasons. Many rely heavily upon

remittances, with payments from abroad constituting significant percentages of their annual gross

domestic product. Beyond this, developing countries may not welcome the arrival of yet another

worker in already beleaguered labor markets. Though the most common reasons are economic,

there are other determinants of non-compliance. Deported migrants may have criminal histories,

as many immigration enforcement programs have focused on those deemed threats to the

community. Lastly, the individual might also be a member of a marginalized minority or a

political activist, who left the country due to hostility towards their identity or beliefs.

Many immigration advocacy campaigns have begun to use these incentives as leverage,

lobbying countries-of-origin to delay readmittance. This option cannot be employed in all cases,

as bilateral agreements limit flexibility, particularly in cases where identity documents clearly

establish nationality. Yet this is often not the case. Immigration activists in New York, for

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example, have begun lobbying foreign consulates when immigrants face deportation. In

particular, this strategy has been deployed on behalf of Dominican migrants, whose country

relies heavily upon remittances, and lacks a bilateral deportation and readmission agreement.

The director of a New York anti-deportation, immigrant advocacy organization that I

interviewed in 2009 noted that the impetus for the campaign actually came from deportees

themselves. The purpose of the campaigns is multi-faceted. In one respect, getting the foreign

consulates to slow deportation enables more time to determine whether all legal channels have

been exhausted. In addition, it secures those lobbying on behalf of potential deportees time to

mobilize a public campaign on their behalf. Research has found that campaigns and protests

undertaken at this stage of removal humanize the issue by attaching a face to deportation, which

can be more effective than protests confronting deportation abstractly. Anderson and co-authors

note that, “….[c]onfronted with the human face of deportation, public attitudes towards removal

are less affected by attempts to demonize and scapegoat migrants and often become far more

sensitive to the claims of those the state is attempting to expel” (Anderson, Gibney, and Paleotti

2011, 558). Lastly, even if deportation is imminent, delays enable the activists to ensure that

deportees will have some protections and opportunities when they return. The director who I

interviewed stated of the campaigns,

…we can intervene with consulates to verify that the person is their national, that they have exhausted all the legal options here, ensure that they have some kind of life to go back to in their home country, a whole bunch of other things. It is of use to people who are in detention. That will really raise the stakes for whether or not people are able to stay (Interview with the Author 2009).

Thus, space for resistance exists even for migrants who would appear to be “out of options.”

Lobbying consular officials to delay deportation opens the possibility for legal and political

challenges to deportation, community mobilization, and as a last resort, assurance that basic

rights and opportunities exist if individuals are returned to countries-of-origin.

As above, these attempts at stalling or subverting the process of deportation force us to

rethink notions of powerlessness and vulnerability. Paradoxically, it is the “lack of options” left

to these migrants opening political space by which they can resist removal. As was the case

above, the absence of any positive incentives for compliance and the liberal restrictions upon

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seeking compliance via physical violence, are what make such protest actions strategically

possible.

In addition, such acts of dissensus challenge stylized categorization of “universal versus

the particular” at play in the disaggregative account. In this instance, migrants simultaneously

resist and affirm the traditional sovereign power of the state regarding entry and exit. They resist

the power of receiving states to deport them by calling upon the power of their country-of-origin

to delay or block readmission. In part, then, they are affirming and pursuing universalistic

imperatives such as freedom of movement, rights to hospitality, protections against the coercive

force of the state. Yet, paradoxically, the strategy by which they pursue these rights calls upon

states to exercise their particularistic prerogative to regulate entry and exit.

Conclusion: Rights, Recognition, and the “Space Between”

In thinking about the ways that non-citizens engage in contentious political action, we

gain a greater sense of the fluidity that characterizes contemporary forms of membership. Rather

than an enduring political status, these examples draw attention to the ways in which the

citizenship-migration nexus is an evolving site of political contestation, an aporetic domain that

defies easy categorization according to the artificially separated logics of citizenship or human

rights in isolation. The rights and belonging attached to membership are subject to periodic

reconsideration. These actors press claims against a state reticent to accept even their right to

make such claims. They enact political spaces and points of struggle, spaces of empowerment,

where seemingly none exist.

In this era of human rights, we are more attuned to consider claims of injustice and to

think about ways in which we might rectify them. Yet there is the crucial problem of how we

judge such moments, the instances in which the marginalized and oppressed “stage dissensus”

(Frank 2009). At times, prevailing human rights discourse presumes to know in advance what

type of democratic action can achieve a shared realm of meaning. Such a position is subtly

hostile towards emergent rights claims and new specifications of injustice. At the moment a new

rights claim or exposition of injustice is invoked, it is fragile. We must avoid prematurely

assigning legitimacy or illegitimacy to these claims according to an already established logic of

citizenship. In so doing, we risk undercutting their emancipatory potential and normative force.

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The value of migrants and asylum-seekers here is that they possess the ability to foster

radical reconsideration of the ways in which we understand rights, belonging, and justice.

Particularly when engaged in political activism, migrants and asylum seekers offer powerful

reminders of the ways in which sovereign power can marginalize and dehumanize those deemed

outside our scope of concern. Such actors problematize seemingly neat categorizations of who is

“inside” the political community, and thus deserving of equality and justice, and those who fall

“outside.” Migrants, through their political actions, actively contest and interrupt these

boundaries. In so doing, they create the space for evolution and enlargement of our thinking in

relation to justice. It is acts of dissensus such as these that expose gaps between the space of

rights and the legal and political spaces in which such rights-claims are realized, the space of

recognition.

Furthermore, these instances make us question notions of power and powerlessness. The

individuals participating in the struggles above would be deemed by many to be powerless and

vulnerable, in need of our care. Yet none of the above actions should strike us as desperate and

futile flailing, absent profound political intent. Our contemporary societies present us with

endless inequities, injustice, and struggles for rights in which the space for meaningful change

may seem insurmountable. Being mindful of the spaces for political action and agency pried

open by even the most unlikely of actors reminds us of the fragility of any justice-based struggle

at its inception.

Lastly, these examples problematize the linearity of how we tend to conceptualize human

rights, the notion that the last few centuries have been a steady but inexorable march towards the

realization of equality and justice. In light of the narratives presented here, we realize that the

contemporary discourse of human rights is, and remains, a radically indeterminate and fragile

promise, one that we must continually revisit and reevaluate within radically democratic settings.

The founding moment of any new freedom possesses no other normative force than that which

we are willing to give it. Such foundations do not inhere within a universalistic and transcendent

logic, nor are they embedded within the dictates of the bland, all-encompassing rationality of a

state bureaucracy. Rather, they reside in every one of us, our notion of the promise of a desirable

future, our ability to engage in acts of promising to our fellow human beings, and our capacity to

periodically reimagine and reconstruct the boundaries and borders of the political.

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NOTES 1 For work which utilizes Agamben’s work in relation to the citizenship-migration nexus see:

Edkins, Pin-Fat, & Shapiro 2004; Muller 2004, 2008; Rajaram & Grundy-Warr 2004; Bell 2006;

Venator Santiago 2006; Landau 2006; Salter 2008; Schinkel 2009; Ajana 2012.

2 For recent analyses of migration that implicitly or explicitly employ the ideas of Benhabib, see:

Pajnik 2007; Bosworth 2008; Basok 2009; Østergaard-Nielsen 2011; Erman & Follesdal 2012.

3 I develop this line of critique in greater detail elsewhere. See Glover 2011.

4 For scholars who analyze the citizenship-migration nexus from this perspective, see: Honig

1998, 2001; Isin 2002; Nyers 2003, 2006; Walters 2004, 2008; Ellerman 2010; Beltran 2010;

Glover 2011; Nyers and Rygiel 2012.  

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