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Migratory Federalism in North America after NAFTA
Adriana Sletza Ortega Ramírez
Rafael Velázquez Flores
Content
1. Introduction
2. Regional migrations
3. Migration Policies, national debates and reforms
4. Local governments: federalism & migration issues
5. Conclusions
Abstract
Subnational governments (states, provinces and municipalities) in the North America
Migration System composed by Mexico, the United States and Canada have increased
substantially their policies, programs and regulations on migration due to the growth and
diversification of migratory flows in the transition from XX to XXI century caused by
NAFTA trade liberalization and investment in the region.
The main argument of this paper is that Migratory Federalism in the region is on the
rise because local governments in North America are challenged to re-organize their
communities and deal with the demographic, socio-economic and ethnic diversity posed by
migratory flows and implement various responses to these flows such as restrictive
legislation, selectivity, promoting the integration of migrants and protection of their rights.
Proposals from local alternatives evidence the limitations of unilateral federal policies on
migration in Mexico, the United States and Canada as well as the NAFTA and the
Temporary Guest Worker visas.
1. Introduction
This paper presents the main problems of people cross-border mobility and migration
control in the region of North America considering that the region retains the highest non-
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authorized number of migrants in the world (10.8 million people in 2011) and there are a
limited international cooperation for migration governance between Mexico, the United
States and Canada.
NAFTA regime since 1994 provides preferential facilities to travel and work for
certain professional workers and investors, and there are some limited number of visas and
work permits for certain seasonal workers most of them in the agriculture sector. Currently,
Mexico, the United States and Canada face their own migratory problems and priorities
regarding transmigration, immigration, asylum y refuge respectively.
In this complex regional context, the actual responses of international migrations are
located in the local arena where migratory contradictions are reflected and the tensions
arise and should be solved. The migratory federalism as the activism of local governments
in this matter reveals that migrations are a pending issue in the national, bilateral and
trilateral agenda of the countries of North America.
In order to describe this state of affairs the text is divided in three sections. The first
one presents broadly the migratory flows in North America. The second considers the
migratory policies, debates and reform possibilities in the three countries. The third,
presents an explanatory model of migratory federalism in the region in order to compare the
local government actions on migration issues in México, Canada and the United States.
2. Regional migrations
The NAFTA agreement since 1994 intended to build a North America region composed by
Canada, the United States and Mexico. Free trade and investment were the main priorities
of NAFTA and labor mobility was considered partially. People, goods and capitals are
basic economical factors. The increasing flow of goods and investment in the three
countries lead to the consolidation of the historical migration corridor between Mexico and
the United States and the rise of Canada as a new destination for Mexican migrants from
1994 to 2009.
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In the sub-region, the United States and Canada are countries of immigration, accounting
both 50 million of foreign born: 38.5 million in the United States and 7.2 million in
Canada, representing 21 % of its total population. 1
Mexico is a country of historic
emigration with 11.9 million of born Mexicans living abroad, 98% of them in the United
States.
In the world and in the region, the United States are the major pole of attraction of
immigrants, being for Mexicans and Canadians international migrants their principal
destination. According to the data of the World Bank, Mexico-USA migratory corridor is
the largest in the world with 11.6 million of migrants and the migratory corridor Canada-
United States encompass 835 thousand people. 2
Top Migration Corridors, 2011*
*number of migrants, millions.
In Canada, the two larger groups of temporary residents are Americans and
Mexicans. Each year 30 thousand Americans and 18 thousand Mexicans are temporary
residents in Canada . Of those Mexicans in Canada, each year approximately 15 thousand
1 International Organization for Migration (2010). World Migration Report. Geneva: IOM,
http://publications.iom.int/bookstore/free/WMR_2010_ENGLISH.pdf 2 World Bank (2011). Migration and Remittances 2011,
http://siteresources.worldbank.org/INTLAC/Resources/Factbook2011-Ebook.pdf
11.6
3.7 3.6 3.3 2.7 2.6 2.2 2.2 2.2 1.7 1.7 1.7 1.7
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are seasonal workers in the framework of bilateral SAWP between Canada and Mexico. 3
Canada is the second destination for Mexicans emigrants, after the US. About 95 thousand
Canadian people define themselves as from Mexican Origin or Mexican Background.
Additionally, about 50 thousand Mexicans born in México live permanently in Canada.4
According to Migration System Theory, because of the high volumes of migrant
international mobility, Mexico, the United States and Canada form a regional migratory
system, as proposed by Douglas Massey.5 In the world, there are five regional migratory
systems: North America, West Europe, Persian Gulf, Asia-Pacific and the Southern Cone
of the Americas. Each system is characterized by a solid stability of migration flows
through time and space, in other words, volume, history and corridors define international
migratory systems. In these systems, “the flows of people within these systems parallel
flows of goods, capital, and information that are partially structured by international
politics”6.
The international mobility of economic factors such as land and natural resources,
agricultural products, capital, goods and services are directly correlated. These factors rise
or diminish in a direct proportion. However, the management of these factors mobility
depends on decisions of national and international politics that result in the structure of
political economy of international regions.
Considering international comparison, the migratory system of North America is
older, larger than the rest of migratory systems and built-in just by three countries.
Nevertheless, the circularity of people in the region was included partially in the
negotiations of the North America Free Trade Agreement (NAFTA). The result was the
chapter 16 titled “Temporary Entry for Business Persons”; this chapter proposes to
3 Statistics Canada (2009). Canada – Total entries of foreign workers by source country,
http://www.cic.gc.ca/english/resources/statistics/facts2009/temporary/07.asp 4 Statistics Canada (2009). Facts and figures 2009 – Immigration overview:
Permanent and temporary residents, http://www.cic.gc.ca/english/resources/statistics/facts2009/index.asp 5 Massey, D., et al. (2005) Worlds in Motion. Understanding International Migration at the End of the
Millenium. Oxford, U.K. and New York : Oxford University Press; Massey, D. (2003). Patterns and Processes
of International Migration in the 21st Century. Paper prepared for Conference on African Migration in
Comparative Perspective, Johannesburg, South Africa, 4-7 June, 2003,
http://pum.princeton.edu/pumconference/papers/1-Massey.pdf 6 Massey, D. (2003). Patterns and Processes of International Migration …
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facilitate the mobility of business persons7 and also certain professionals listed in the
appendix 1603.D.I.8 Consistent with this chapter, the United States creates TN, The Non-
Immigrant Status for NAFTA Professional (TN) for certain professionals of primarily
Canadian or Mexican citizenship who meet the criteria and requirements to work in the
United States under NAFTA. Additionally, TD status is provided to the economic family
dependents of the TN professionals. The U.S. State Department reports annually NAFTA
non-immigrant status as Non-Immigrant Visas Issued. During fiscal year 2011, 8 thousand
NAFTA visas were issued by the U.S. government.9
Other mobility schemes are those for guest workers or seasonal workers in the region. The
United States government issues visas H according the requirements of the Department of
Labor. H1A are dedicated to high qualified workers required in very specialized sectors and
H2A are designated for agricultural seasonal workers and H2B are for non-agriculture guest
workers. Approximately, about 400 thousand Mexican workers use the H visas each year.
In addition, Mexico and Canada, operate jointly the Seasonal Agricultural Workers
Program (SAWP or PTAT in Spanish) since 1974. Mexico has sent during the last decade
between 10 and 15 thousand workers each year to Canada under this scheme.10
Currently,
Canada allows other proportion of Mexicans under a new bilateral scheme called Labor
Mobility Mechanism (LMM) that allows Canadian employers to contract Mexican workers
for up to 4 years in any economic sector and any province. The job offers depend on
Canadian employers and Mexican workers are included in the Temporary Foreign Workers
Program (TFWP) of Canada. Additionally, in Mexico the official recruiter is the Mexican
Secretariat of Labor and Social Welfare (STPS).11
7 The agreement defines business person as someone “who is engaged in trade in goods, the provision of
services or the conduct of investment activities”. 8 “NAFTA, “Chapter Sixteen: Temporary Entry for Business Persons”, http://www.nafta-sec-
alena.org/en/view.aspx?x=343&mtpiID=147#A1601 9 U.S. State Department. (2012). “Nonimmigrant Visas Issued by Classification and Nationality (Including
Border Crossing Cards): Fiscal Year 2011”, http://www.travel.state.gov/pdf/FY11AnnualReport-Table%20XVII.pdf 10 Massey, D. & Brown, A. (2011). New Migration Stream between Mexico and Canada. Migraciones
Internacionales, 6 (1), 119-144, http://www2.colef.mx/migracionesinternacionales/revistas/MI20/MI_20-119-
144.pdf 11 Secretaría del Trabajo y Previsión Social (2012). Labor Mobility Mechanism,
https://simolint.stps.gob.mx/Temporary_Employees/
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These temporary of seasonal worker programs have been seriously criticized.
Organizations for worker´s rights protection, especially Unions, in both Mexico and
Canada, have complained about the exploitation system that supposes this scheme because
they generated a sub-class of foreign workers that assume heavy labor conditions that
Canadian workers don´t accept, even in condition of “indentured servitude”. 12
Employers
use the foreign workers as a strategy to maintain low wages and the international
competitiveness prices of their products, especially in the agriculture sector. However,
Mexican consular official minimize the complaints and avoid the workers being unionized
because they don´t want to criticize the “successful” SAWP and LMM schemes or even
affect their relations with Canadian authorities. 13
Complaints about the unfair and unequal labor conditions of foreign workers as
seasonal and temporary workers in the United States and Canada are frequently exposed by
human and labor rights organizations, the press and scholars.14
Temporary workers are
vulnerable and dependent of a possible continued contract offered by their employers.
In the case of the United States, H Visas are issued for Mexicans by American
consulates and there is a growing proliferation of private brokers and agencies. Mexican
authorities are not involved in the recruitment and selection of workers; these processes are
left to private agencies. Many frauds are committed by supposed agencies that promise to
get American H visas for a temporary job in the United States. This is unsolved problem in
Mexico-US relations.
Moreover, in the Canada-Mexico relations regarding migration it is important to
mention the controversy over the imposition of the Canadian visa to all Mexicans visiting
Canada since 2009. Prior to that year, Mexicans tourists didn’t need a visa to travel to
Canada. But Canadian government argued that Mexicans caused “a crisis” in its
refuge/asylum –seekers system, because during 2008, Mexicans did more than 9,400
12 UFCW Canada, Report on the Status of Migrant Workers in Canada 2011, Toronto, Ontario. 13 “Ordenaron SRE y STPS a consulado en Canadá hacer una campaña antisindical”, La Jornada, lunes 19 de
marzo de 2012, http://www.jornada.unam.mx/2012/03/19/politica/015n1pol 14 Canadian Council for Refugees, http://ccrweb.ca/en/migrant-workers; Hennebry, J. (2008). Bienvenidos a
Canadá? Globalization and the Migration Industry Surrounding Temporary Agricultural Migration in Canada,
Canadian Studies in Population, 25 (2), pp. 339-356; Preibisch, K. (2012). Migrant Workers and Changing
Work-place Regimes in Contemporary Agricultural Production in Canada, International Journal of Sociology
of Agriculture & Food,19 (1), pp. 62–82.
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refugee and asylum claims in Canada, representing 25% of all claims received by Canadian
authorities. Of all refugee/asylum claims by Mexicans, 90% were found to be false. From
2005 to 2008, Mexican requests were trebled from about 3 thousand 400 during the year
2005 to 9 thousand 400 in year 2008. As a result, in the following year the Canadian visa
for Mexicans tourist was imposed; and during year 2009 Canadian authorities just received
159 refugee/asylum claims by Mexicans.15
In order to complete the broad outlook of the migratory flows in North America, is
necessary to mention the people who travels in the region for temporary tourism and
business. In Mexico, the Americans and Canadians are the largest groups of foreign
nationals as temporary visitors. During 2010, 17 million Americans and 1.46 million
Canadians visited Mexico. In the other hand, in the United States, the largest foreign
visitors are Canadians and Mexicans.
Between Canada and the United States, the flows of tourists and visitors are bi-
directional. Approximately, the total numbers of Americans visiting Canada are equal to the
total of Canadians visiting the United States: 14 million people. In Canada, Americans are
the most important foreign group of visitors, British and Japanese are the following.
Similarly, the Canadians tourist’s main traveling destinations are: the United States, Great
Britain and Mexico.16
Even though NAFTA formally don´t intend to facilitate a high mobility of people
just business people, investors and certain professionals (NAFTA visas –TN and TD-
issued by the United States government), in practice the three countries -Mexico, the
United States and Canada- have been forced to rather facilitate the tourism and the
temporary travel between the three countries because of the increasing volumes of intra-
regional visitors and tourist flows in North America since 1994. Although, each country
applies unilateral migratory controls and the regional priority of security.17
15 Citizenship and Immigration Canada (2009). Backgrounder. The visa requirement for Mexico,
http://www.cic.gc.ca/english/department/media/releases/2009/2009-07-13.asp 16 Statistics Canada (2007). Travel and Tourism, http://www41.statcan.gc.ca/2007/4007/ceb4007_000-
eng.htm 17 Tras los atentados del 11 de septiembre de 2011 y la imposición de la agenda estadunidense en materia de
seguridad internacional sobre sus vecinos México y Canadá, entre los tres países existe cada vez más
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The most restricted migration in the region is for labor with low and medium
qualifications, where Mexico has a comparative advantage, while Canada and the United
States prefer to limit and select through the schemes of foreign temporary and guest
workers. Visas and work permits for those temporary workers are issued according to the
demand in the labor market and certain specific sectors.
Summarizing, in North America trilaterally the schemes for people mobility across
the borders are limited by NAFTA. Bilaterally, just Canada and the Mexico cooperate
through the SAWP and the new “Labor Mobility Mechanism” even though both depends
on the Canadian employer’s offers to Mexican workers. In the region, dominates the
unilateral management of the people flows, national policies, regulations and control in
each country. The result is a regional migratory panorama with high volumes but
segmented, differential and problematic because of the irregular migrations between
Mexico and the United States.
3. Migration Policies, national debates and reforms
In North America, patterns of international cooperation on migration flows are very
limited, only exist visas NAFTA as a trilateral initiative and the SAWP and LMM as
bilateral migratory schemes by Canada and Mexico. However, in the three countries are
deep discussions on migration issues often controversial and exacerbated in the context of
the global economic crisis since 2008.
The main migration issues for the three countries are as follows:
a) In Canada, federal migratory policy focuses on attracting high qualified and
educated immigrants. However, in the Canadian economy persists a high demand of
workers of technical and low qualification. Most of the immigrants in Canada are
coordinación en materia de seguridad fronteriza, controles anti-terroristas y uso de bases de datos migratorios
con información personal de los viajeros. En esta área hay cooperación a dos velocidades, Canadá y Estados
Unidos cooperan intensamente incluso en territorio canadiense opera personal de inmigración y aduanas
estadunidense que certifican el arribo a los Estados Unidos antes de que personas o mercancías realmente
estén territorio estadunidense. Con México la cooperación es más restringida. Las autoridades estadunidenses
solamente cooperan con las mexicanas a través de inteligencia y uso compartido de bases de datos para el
control anti-terrorista y la seguridad fronteriza.
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legal. However, there is an estimation around 200 thousand of non-status
immigrants in Canada, 50% of them living in Ontario and including 10 thousand
people working in the building and construction sector. Precarious migratory status
according to Luin Goldring et al.18
is one of the main problems in Canada.
In the United States there is about of 10.8 million of unauthorized immigrants using the
official data of the Homeland Security Department.19
In contrast, in the European Union the
number or irregular immigration is calculated between 1.9 and 3.8 million people.20 Since
the 9/11/2001 terrorist attacks the United States government had increased migratory
controls and reinforced security in customs and immigration. Additionally, proposals of a
“comprehensive immigration reform” had been postponed and even bills such as the
DREAM Act that would help to regularize the immigration status to young undocumented
immigrants who had been studying in the United States and AgJOBS (the Agriculture Job
Opportunities, Benefits and Security Act) for undocumented agricultural workers. As a
result, there is a proliferation of local initiatives and laws from cities, countries and states
regarding migration and immigrants.
b) In México, emigration is the main problem. There are an increasing number of
detentions and deportations of Mexicans by the northern border, between 200 and
300 thousand each year, as well as an increasing number of Mexicans leaving
Mexico because of violence. Besides there is a “humanitarian crisis” with transit
migrants as victims of kidnapping, robbery, extortion, rapes and murdering. The
mass murder of 72 immigrants from Central and South America in Tamaulipas in
August 2010 is just an example of the current situation. National Commission of
Human Rights (CNDH) reported 11 thousand kidnapping of migrants during 2010.
18 Luin Goldring, Carolina Berinstein, C. & Bernhard, J. (2009). Institutionalizing precarious migratory status
in Canada”. Citizenship Studies, 13 (3), 239-265. 19 Hoefer, M., Rytina, N. & Baker, B. (2011). “Estimates of the Unauthorized Immigrant Population Residing
in the United States: January 2010, Population Estimates, Department of Homeland Security, February,
http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf 20 Kovacheva, V. & Vogel, D. (2009). The Size of the Irregular Foreign Resident Population in the European
Union in 2002, 2005 and 2008: Aggregated Estimates. Database on Irregular Migration, Hamburg Institute of
International Economics, http://irregular-
migration.hwwi.de/typo3_upload/groups/31/4.Background_Information/4.7.Working_Papers/WP4_Kovachev
a-Vogel_2009_EuropeEstimate_Dec09.pdf
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21 Mexico has been forced to attend a hearing before the Committee of Protection of
the Rights of All Migrant Workers and their families of the United Nations because
of the mass killings in San Fernando Tamaulipas during August 2010 and the later
discovery in 2011 of mass graves with 193 corpuses in the same region of transit to
the United States, which presumably included migrants.
In the United States, both President Bush and President Obama had recognized that
America has a “broken migration system” because of the high bureaucracy to get legal
permanent residence & citizenship but also the high number of unauthorized immigrants
already in the United States. Since 2001, both administrations had tightened the security
control as well as an increasing number of deportations, from 165 thousand in year 2002 to
396 thousand in 2011. Additionally, the National Guard is deployed in the border with
Mexico to reinforce “border security”. Those measures, however, do not solve the central
problem that there are over 11.2 million “unauthorized” immigrants in the United States
and the debate on what are the elements that must contain the so called “immigration
reform”.
The last major “immigration reform” in the United States occurred in 1986 with the
Immigration Reform and Control Act (IRCA) that legalized 2.7 million undocumented
immigrants and to numerous siblings who are still benefiting from this legalization, which
is the reason why the opponents of a new “amnesty” reject an immigration reform similar
to IRCA.
Meanwhile, the government if Mexico is lobbying from a minimalist and “low profile”
perspective and avoids being interventionist in the U.S. political process in favor of the
legalization of undocumented immigrants in the United States. However, in the domestic
arena, in order to be in a better moral position against the United States to demand respect
21 Comisión Nacional de los Derechos Humanos (2011). Informe Especial sobre secuestro de migrantes en
México, http://www.cndh.org.mx/sites/all/fuentes/documentos/Index/InfEspecialSecuestroMigrantes_8.pdf
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for the rights of migrants, in May 2001, Mexico adopted its first Federal Migration Law 22
in order to lay the groundwork for a national migration policy.
This law updates the legal framework in the field, simplifying administrative
procedures especially for foreigners living in Mexico. Usually they go through a long
bureaucratic-administrative process in order to prove they have a legal residence in the
country and a long path to their naturalization; their treatment depends heavely on their
economic and social class. However, the discussion on that law in 2010 between
government authorities and civil society organizations created an atmosphere of debate in
necessary institutional reforms to prevent the continued and systemic rights violations of
foreigners in Mexico as well as of migrants passing through Mexico.
The transmigrants had to go by a long overland crossing to meet its goal of reaching
the United States and suffer discrimination, abuses, rights violations, arbitrariness of
various police corporations and they have become victims of kidnapping, extortion, torture
and killing by organized crime gangs. The new Mexican Federal Migration Law recognized
the rights of all migrants (emigrants, immigrants, returnees and transmigrants). However,
until today is not clear that law itself will solve the structural violence against migrants in
Mexico.
In Canada, on the other hand, there is a continuing labor demand of low-skilled
immigrants and the federal government takes steps to reduce the possibility of an increase
in irregular migration. This was the main reason why the Non-Immigrant Visa was imposed
to Mexicans in order to travel to Canada. Mexicans have the potential to be a majority
group of migrants, as occurred currently in the United States. To obtain Canadian Visa,
Mexicans must pass a rigorous examination of original documents, and pay $150 Canadian
dollars, that most Mexicans intending to stay in Canada without documents can’t afford to
waste under the high possibility of being rejected.
The heart of the debate in Canada about immigration is the differentiation of
immigrants in terms of rights and access to services. Differentiation relates to migratory
status, race and gender. People “without status” or “precarious status” are a sub-class in
22 Ley de Migración (2011), http://www.diputados.gob.mx/LeyesBiblio/pdf/LMigra.pdf
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Canada with high vulnerability. In Canada, the process of the “adjustment of status” is
continuous. Since 2004 there is a regularization program “Humanitarian and
Compassionate” (H & C) that allows people to adjust immigration status. However, the
possibility of being regularized under this program is 5%. In the other hand, the current
economic crisis is likely to reduce the spaces of greater opportunities for immigrants and
their children.
The well-being of immigrants in Canada relates with their integration and access to
services. However, the access to public services is determined by immigration status. For
example, in Ontario health services are available only to legal immigrants if he/she is
eligible for Ontario Health Insurance (OHIP). There are Community Health Centers
(CHCs) for uninsured people, but only providing basic emergency health services and some
laboratory tests, additionally have long waiting lists. People holding a tourist or student
visas can’t access to health services in these Community Health Centers. And the children
of people with tourist visas can´t enter into the school system. A common strategy used by
people who want to stay in Canada is to overstay and lost their status in order to declare
without immigration status and gain access to school in some cities.
4. Local Governments, Federalism and Migration
In practice, local governments (states, provinces, cities, counties and municipalities) in
North America are coping with the problems of migration in each of their countries. In the
United States, this is more visible due to the lack of resolution of high volumes of
undocumented migration at the federal level and given the persistent high number of
immigrants in the last three decades, state governments as well as cities and counties have
been establishing ruling on migration and immigrants even beyond its constitutional
functions. 23
23 La sección 8, artículo 4 de la Constitución establece que el Congreso de los Estados Unidos tendrá
facultad para establecer un régimen uniforme de naturalización de los inmigrantes. Y la sección 9, artículo 1
señala que el Congreso de los Estados Unidos a partir de 1808 podrá prohibir la inmigración y la importación
de personas. Ambos artículos, revocan estas facultades a los estados y las otorgan al poder legislativo federal.
Varsany, M. (Ed.) (2010). Taking Local Control. Immigration Policy in U.S. Cities and States. Stanford,
California: Stanford University Press.
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In the United States, since 2005 an increasing number of bills regarding migration
issues were introduced in state legislatures. During 2005, 300 bills were introduced and the
number rise to 1,562 bills during 2007. 24 In the past couple years, in 2010 and 2011, 1,400
and 1,607 bills were introduced respectively. A majority of these bills didn´t become law.
During 2010 and 2011, approximately each year from the total of initiatives 200 became
law, between 10 and 20 were vetoed and approximately 120 resolutions were approved. 25
These data reveals how sub-national governments are strongly reacting to
international immigration in the United States in many different areas of their competence,
such as required valid IDs to undocumented migrants, driver’s licenses, employment,
education, health, utilities, legal services, local security, election and voting rights,
cooperation with federal authorities and even in trafficking not only as a federal crime, but
also as a state and local offense.
In Canada, immigration federalism reveals that there is a clearer division between
the jurisdiction of the federal and provinces government on migration issues. Ottawa is in
charge of control and the selection of immigration, as well as the mechanisms and permits
of legal residence of immigrants. In each province, except for the territories, there are
offices for immigrants and new citizens and through civil society organizations (community
organizations) implement programs and provide services to immigrants and their families.
These community organizations provide services for immigrants sponsored by different
tiers of government and private founds as well.
The federal government has the formal jurisdiction on the definition of migration
policy and its operation under the point system, except the province of Quebec that
historically has had its own immigration policy parallel to that of Ottawa and its own point
system. The Quebec government had implemented its own regularization processes for
certain immigrants, such as the Special Procedure for Haitians Regularization residing in
24 Morse, A. (2009). Política de inmigración en Estados Unidos. En Figueras, E. (Ed.) La Incidencia local
como parte de una estrategia migrante binacional. Memoria de la Reunión de legisladores estatales y
organizaciones civiles México-Estados Unidos, Morelia, Michoacán, 27 y 28 de agosto de 2009,
http://www.iniciativaciudadana.org.mx/images/stories/incidencia.pdf 25 National Conference of States Legislatures (2012). State Laws Related to Immigration and Immigrants,
http://www.ncsl.org/issues-research/immig/state-laws-related-to-immigration-and-immigrants.aspx
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Quebec in 1981, and in 2002 the Special Procedure for Algerians Regularization living in
Quebec.
All provinces and most of the territories, except the Northwest Territories, have
immigration offices, most of them Ministry or Department. The function of these offices is
to provide services and implement programs to new immigrants and their children.
Newcomers settlement programs, language programs, interpreter services, job training,
child support, are their main tasks.
Additionally, Canadian provinces and territories collaborate with the federal
government to nominate persons to immigrate to Canada according to the requirements of
labor of the provinces through the Provincial Nomination Program (PNP). Each province or
territory can establish the number of immigrants required as well of the labor categories.
Each PNP is different, because it is an agreement between the province or territory and the
federal government and it is designed as required. The labor categories most commonly
required are: qualified immigrants (professionals), international student or international
graduated and business immigrants.
In the case of Mexico, given that the majority of migratory volume is the emigration
flow, a large majority of the states (29 of 32) have state offices for migrants. Most of them
focused in the relationship with their émigrés in order to provide documentation services of
civil registration, support and legal advice to migrants and their families, investment of
remittances, counseling and temporary work visas in the U.S. and Canada, founding
hometown associations, etc.
Each state offices of migration in Mexico try to target the requirements of the state
migration phenomenon (emigration, immigration, transmigration, returnees, etc.). For
example, in the case of Chiapas, the Ministry of Development of Southern Border and
Liaison for International Cooperation, has three focus groups: Chiapanecos abroad, Central
American migrants and Guatemalans temporary workers in Chiapas. In the case of Sonora,
for example, the Sonora´s Office for International Migrant focus on offering services for
Mexicans and Central Americans deported along the border with Arizona. And in the case
of Mexico City, on the one hand the primary care group are migrants outside the capital
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which are a very diverse diaspora and, on the other hand, the various immigrant groups in
the Mexican capital, ranging from the historical diasporas in Mexico City such as the
Spaniards to groups with high vulnerability such as Haitian refugees after the 2010
earthquake, the humanitarian catastrophe and the subsequent health problem.
Constitutionally in the three countries, international migrations is a matter of federal
jurisdiction only for the national government because involve foreign policy and
international relations with other countries. But in practice, in response to inefficient or
insufficient federal action and the limited international cooperation schemes between the
three countries with different migration flows, states/provinces and localities also are
responding to their own international migrations and the presence of foreigners in its
territory.
Considering migratory federalism, distinct areas, models and issues define the
interactions between the different tiers of government regarding migration flows and
migrants. The major areas are: migratory criteria, migratory enforcement, migrant´s human
rights and benefits; and three models of federalism: hegemony of the central government,
cooperative federalism and devolutionary federalism. 26
Additionally, different issues regarding migration and migrants correspond to the
jurisdiction of each tier of government. The federal government usually is responsible for
migrant admission, migratory status, naturalization, employment permissions, family
reunification and deportation. State and provincial governments are responsible for
education programs, health services and social security, in some cases also, access to
employment and labor market. Localities and cities governments are responsible of
housing, public transportation and security, and also local programs of education, health
and employment for migrants in order to promote their integration and social cohesion.
Consequently sometimes, there are issues such as education, health, employment and social
security of share jurisdiction between state/provincial and local governments.
26 Spiro, P. (2001). Federalism and immigration: models and trends. International Social Science Journal, 53
(167), 67-68, http://onlinelibrary.wiley.com/doi/10.1111/issj.2001.53.issue-167/issuetoc
16
The following matrix, inspired in the work of Peter Spiro27
but modified to be more
comprehensive considering different migratory flows (immigration, emigration,
transmigration and returnees), illustrate the possible interactions and disputes regarding
migration issues in the different models, areas and issues. In the model “central government
hegemony” there are undersized spaces for action of the local governments. In model of
“cooperative federalism”, national government retains most of the control and enforcement
but cooperates with provincial/states and local government to determine volumes,
establishes agreements and decide in collaboration regarding migration issues. In
devolutionary federalism, states/provinces and local government exercises complete
authority.
Matrix of Migratory Federalism
Models
Areas
Central government
hegemony
Cooperative
Federalism
Devolutionary Federalism
Migration Criteria National government
sets migration levels
and criteria.
National levels and
criteria supplemented by
sub-unit input.
Sub-units sets migration
levels and criteria.
Migration
Enforcement
National government
executes all border
control and interior
enforcement.
National governments
maintains primary
responsibility, as
supplement by
voluntary subunit
contributions; and/or
control of targeted
migration.
Sub-units enforce migration
controls.
Migrant Rights and
Benefits
All rights and social
services set at national
level; sub-units are not
permitted to
discriminate against
not citizens.
National governments
sets the floor on rights
and benefits, but allows
some discretion by sub-
units to use migratory
status as eligibility
criteria.
Sub-units are not
constrained by national
government (but may be by
international law).
Source: Peter Spiro (2001) but modified.
27 Spiro, P. (2001). Federalism and immigration…
17
Considering the matrix in North America region, Mexico has a more centralized
model of migratory federalism, in other words, the central government exercises more
prerogatives on migration issues. Legal criteria and bureaucracy process are determined by
the federal government without any process of consultation with sub-national governments.
The same applies to migratory control and enforcement because it is reserved to federal
government. And the local and state governments are formally prohibited to accomplish
federal responsibilities such as deportation, although informal collaboration may occur.
The area of human rights and migrant benefits is the only one where Mexican states
and local governments are more active implementing programs and providing services.
Since the year 2000, programs and services for migrants has become common in the state
governments. And in recent years, the legislation, regulations and procedures to implement
migrants access to state programs and services. In Mexico City, a Law of Interculturality
and Human Mobility was approved on 2011 and includes obligations for public officials
about no to discriminate by migratory status as an obstacle to provide services to migrants
and their incorporation to public programs provided by the city. None other state legislation
in Mexico explicit the rights of migrants to access to public services and programs, but the
federal migration law establishes that education and health services shouldn´t be denied for
any migrant. In addition to Mexico City, Michoacán, Chiapas and Durango had approved
recent laws recognizing rights for migrants and their families.
In the case of Canada, a model of cooperative federalism prevails on migration
issues. The federal government in Ottawa retains the power to design and implement the
Canadian migratory policies, except for Quebec, that exercises its own parallel migratory
policy. The case of Quebec has been used by the rest of the provinces and the territories to
demand a role in the design and implementation of federal migratory policy. The
mechanism of Provincial Nomination Program (PNP) allows that provinces and territories
participate in the setting of immigration criteria and conciliate with federal government
their interest, needs and migratory workers preferences.
In the second area of migratory federalism, the migratory enforcement, it is reserved
to Canada’s federal authorities. Canadian Sub-national governments such as provinces,
territories and localities (municipalities and cities) do not have a jurisdiction about it.
18
However, in practice sub-national governments assume that all immigrants in Canada are
legal; in order to provide services for an immigrant is necessary to demonstrate their legal
migratory status. Although sub-national authorities do not remit non-status immigrant to
federal authorities, because it is not a responsibility they assume. In this issue, cooperation
or collaboration with federal authorities is limited, in contrast to what occurs in the United
States. But the main reason is that the majority of volumes of immigration to Canada are
legal and the federal authorities exercise a generally efficient migratory control to avoid
increasing illegality.
In the area of migrant rights and benefits, in the Canadian case a “collaborative
federalism” of “complementary federalism” takes place. Provinces, territories and localities
provide benefits and services to immigrants either directly or through community
organizations, including the protection of their human and labor rights, assuming that the
Canadian federal authorities should accomplish migratory criteria, enforcement, control of
the process of naturalization and migratory status. So, the sub-national governments take
over their tasks to facilitate the integration of immigrants through offices, programs and
services sponsored by the provinces and territories as well as the main cities attracting
immigrants: Toronto, Montreal and Vancouver. Access to health services, education,
access to labor market, training for employment, language training, cultural and religious
activities to preserve heritage and identities of migrants, benefits for housing and public
transportation, all of these issues are in the jurisdiction of sub-national units in Canada.
In the case of the United States, the “formal” model of migratory federalism is the
hegemony of central government. However since 2005 as a response to the inefficient
migratory and border control by the federal authorities, some states and cities justify their
legislation and policy regarding migration and immigrants. As a result, high tension and
conflict characterizes the relations between the federal government and some states and
cities. Polarization also rises between some states and cities that are implementing anti-
immigrant legislation and policies but at the same time, some cities and states declare
themselves as “sanctuary” or “immigrant friendly”.
Those states and cities that in recent years are approved their own migratory laws
and policies are asserting “devolution” of their faculties regarding migration issues. As the
19
U.S. Constitution disposes before 1808 migratory regulations were defined by the states; in
this base some states are claiming the devolution of their powers prior-1808.
What are the dispute areas between the federal government and the states? The area
of immigration criteria is not a dispute area. In the case of the United States, criteria are
defined only by the federal authority without consultation with the states. The dispute areas
are enforcement, migrant’s rights and benefits. In the case of Arizona, counties such as
Maricopa and the state legislation approved in the recent years directly conflicts the federal
jurisdiction regarding deportation powers, the arbitrary questioning by local and state police
about migratory status and the denial of basic services such as education for undocumented
immigrants which results in challenging the constitutional boundaries between the state and
federal powers.
The U.S. federal government is challenging the most anti-immigrant laws in courts
on the base of unconstitutionality. Federal judges had blocked some provisions of these
laws and case by case, and provision by provision are being revised by courts. In the past
months the most controversial has been Alabama HB 65, Hammon-Beason Alabama
Taxpayer and Citizen Protection.28
Alabama founded this law in the impact of the not lawfully aliens as a burden to
taxpayers. The primary concern it raised is that undocumented immigrant children are
attending to schools. Even though, the law do not prohibit provide education to these
children, it requires that the State Board of Education accurately measures and assess the
population of these students. 29
In the original version this law included provisions such as the prohibition that
undocumented immigrants receive any state or local public benefits, prohibition of
transportation and harbor of undocumented immigrants, prohibition for undocumented
immigrants to apply for jobs. It mandates that contracts made with a person who is an
illegal immigrants would be null and void. Also it mandates that if police have a
“reasonable suspicion” that a person is an undocumented immigrant, police can do
reasonable attempt to determine that´s person legal migratory status. It mandates to all
28 Alabama H56, Act No. 2011-535 (2011), http://www.ncsl.org/documents/statefed/AlabamaH56.pdf 29 Alabama H56…
20
employers in Alabama the use of the federal E-verify system to accomplish with the federal
Immigration Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In the
last months, five provision of this law was blocked by three federal courts. 30
But not all cases in the migratory federalism in the United States are conflicted. In
fact, the federal government had promoted extensive cooperation of the Attorney General,
the Homeland Security Department and the U.S. Customs and Immigration Services with
state and local governments. The federal agencies had sign Memorandums of
Understanding, agreements and partnerships with state and local governments to train and
collaborate to investigate with local authorities in the cases of undocumented immigrants,
an also to promote the use of the E-verify system. This federal electronic system is used by
employers to determine the eligibility of an employee to work in the United States and
supposes to be a voluntary program.31
However in some states and cities had become
mandatory by state and local laws, such as the Alabama HB 56. The E-verify program
validates the social security number of the employee in order to avoid that non-authorized
immigrant workers with false social security numbers were contracted.
Contrasting migratory federalism in the U.S., Mexico and Canada, it is remarkable
that in the case of the United States the arena is contested between open conflict and
cooperation between the federal government and the state and local authorities, and there’s
an increasing pressure from a “formal” model of federal government of central hegemony
towards a devolutionary federalism model.
In a summary view, migration issues supposed to be a “federal issue”, however in
practice, local governments (states, provinces, cities, counties and municipalities) in North
America are dealing with the migratory problems in each country. Sub-national
governments are strongly reacting to international migration either to constrain immigration
or to help migrants and protect their rights and access to public services, through legislation
or policies. Migratory federalism raises the question about what local governments could
do regarding immigration issues.
30 Alabama H56… 31 E-verify Program, http://www.dhs.gov/files/programs/gc_1185221678150.shtm
21
There are constitutional boundaries and exclusive immigration procedures reserved
to federal authorities, however what local governments do directly affects the daily lives of
migrants, because they can provide or deny public services used by migrants. Local
governments can facilitate the integration of migrants or make them life impossible. In
practice, these governments can have their own migratory policy rather in coordination or
in conflict with central government. Respecting their constitutional limitations or
challenging them.
5. Conclusion
North America migratory system presents high volumes of transborder mobility both legal
and irregular. The system is highly segmented and differential to distinctive categories of
migrants. Trilaterally the people’s mobility schemes are very limited and are managed
unilaterally. North America Free Trade Agreement (NAFTA) grants preferential treatment
to the circulation and cross border mobility of investors, business people and some
professionals which represent very little volume of the labor mobility in the region.
NAFTA or TN visas, to certain professionals listed in the agreement of 1994, are issued
only by the U.S. government to some Canadians and Mexicans professionals, in practice
trilateralism transform into unilateralism. Facilitate and increase trade and investment is the
priority of NAFTA region, not people’s mobility.
As a systemic constrain, the fact that the United States is the major pole of attraction
of world and regional migration cause that its migration policies and regulations became
predominant in North America migratory system, including the priorities of security and
border control that the United States had imposed to Mexico and Canada. American
migratory priorities, policies and regulations are dominant in the region.
Bilaterally, Mexico and Canada operate jointly the SAWP and a new Labor
Mobility Mechanism (LMM) for temporary workers; and the United States had increased
the number of visas H. The scheme of temporary workers, that probably will expand in the
future, had been highly questioned by unions and labor right’s defense associations.
22
Ultimately, these workers are used to maintain low wages in non-qualified jobs and key
sectors such as agriculture, in order to maintain the international competitiveness of the
products through a law wage system of foreigner workers. 32 This logic increases even more
when undocumented or unauthorized immigrant workers are contracted because they are
willing to accept even worst labor and wage conditions.
The problem of unauthorized and irregular immigration is persistent in the United
States: 10.8 million unauthorized immigrants lived in the United States in the year 2011.
The policy of deportations conducted by the administration Bush and Obama had caused
that the highest score of unauthorized immigration in year 2007 with 11.8 million was
reduced in 1 million people in just three years.34
However, the stock of unauthorized
immigrants remains the highest in the world.
The contradictions of the regional migratory system are reflected in the local arena.
This occurs in the context of the federal political system in the three countries and results in
an increasing sub-national public policy action regarding migration issues. Formally,
migration should be a federal matter; however, in the federalism there exist a scope for sub-
national action.
The major area reserved for federal government is execution, migratory control and
final enforcement. However, federalism allows a leeway for sub-national migratory actions
regarding migration criteria and volumes in cooperation with the federal authorities. The
major area for state and local actions is that regarding migrant rights, benefits and public
services for migrants. The federal government can mandate guidelines; however migrant
rights, benefits and access to direct services are mostly determined by sub-national
governments. Housing, transportation education, health and employment are issues
determined mostly by local authorities. And they can rather facilitate or difficult the daily
lives of migrants. Sub-national governments can execute their own migratory policies
32
Piore, M. (1980). Birds of Passage: Migrant Labor and Industrial Societies. Cambridge, UK: Cambridge
University Press. 34
Hoefer, M., Rytina, N. & Baker, B. (2011). “Estimates of the Unauthorized Immigrant Population Residing
in the United States: January 2010, Population Estimates, Department of Homeland Security, February,
http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf
23
rather coordinated or in conflict with the federal government, challenging constitutional
limitations, assuming partially the migratory governance in the region.
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