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Abstract

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

This article examines the political rationales at work behind the particularly repressive 2006 Costa Rican immigration law and subsequent immigration reform process and resulting 2010 law through an analysis of two rival framings of immigration in Costa Rica. First, I examine how the rushed nature of the 2006 law constructed a crisis in which migrants, particularly Nicaraguans, represented urgent threats to national security. Next, I examine the 2010 law that emerged from the reform process and the alternative framings of immigration as an issue of human rights and integration that migration advocates contributed to the new law. I argue that the juxtaposition of integration and security frameworks in the new law reinforces the law's most repressive measures, contributing to an overall project of securitization and marginalization of immigrants.

…Costa Rica continues being Costa Rica, although we have been bombarded by brothers from third countries and our borders have remained open, unfortunately, for many who do not come to Costa Rica to do good, but rather to do bad, many of them come to kill our women; many of them come to rob our banks; to rob our sons and daughters in the streets […] the moment has arrived for making decisions to not continue with the windows and doors of our house open so that anyone can enter, and although we give them our heart, although we care for them, they come in to our house to rob us, to rape us. […] Mr. President, fellow Congressmen and women, […] why continue opening [the country, the border] to those who come to do harm, to collapse our education system, to abuse our medical services?”

Costa Rican Congressman, Ricardo Toledo (28 March 2005).2

In 2005, just months before the 2006 Presidential election, a new General Law of Migration and Alien Affairs (No. 8487) was drafted and passed in Costa Rica, despite controversy and vociferous opposition from immigration and human rights groups. The law, which went into effect in 2006, framed immigration in terms of criminality and national security, focusing on repressive police measures that some human rights groups argued violated the Costa Rican constitution and international treaties signed by Costa Rica (Karin Fonseca Vindas, 2007). Just months later, in a dramatic reversal, newly elected President Oscar Arias characterized the law as “draconian,” called for immigration reform, and, at the end of 2006, demanded new legislation both to correct inconsistencies and soften its repressive tone (Karin Fonseca Vindas, 2007; Reformas a la Ley, 2006). The new law that was finally passed in 2009 went into effect in 2010. How did the 2006 law, and widespread support for “draconian” security measures, originate? And what prompted Oscar Arias to send the already passed law back to the legislature?

Although, historically, Costa Rica has welcomed migrants, the 2006 migration law focuses on restricting legal migration and policing undocumented migration within a framework of national security. The repressive tone of the new migration law, with its emphasis on national security and immigration control, represents a notable shift in policy for Costa Rica, where a tradition of hospitality and refuge for displaced populations from Latin America have dominated political rhetoric and notions of national identity (Hayden, 2003). The law's emphasis on measures that disproportionately affect Nicaraguan migrants, who at 8 percent of the Costa Rican population represent both the largest immigrant group and the largest number of undocumented migrants (Sandoval, 2013), throws into relief the long-term presence of Nicaraguans in Costa Rica and historical tensions between the two countries.

While the history of Nicaraguan migration to Costa Rica is tied to Costa Rica's economic development and Nicaraguan political conflicts, current Nicaraguan migration is marked by prolonged economic crisis in the wake of war, economic restructuring, and natural disasters (Mahler 2000; Nowalski 2002). The U. S. was once a favorite destination of political émigrés, but today the majority of Nicaraguan migrants travel over the southern border to Costa Rica (Lundquist and Massey 2005), where they face intense xenophobia and discrimination despite a shared colonial history and language.

Since the 1990s, this migration has seen a series of dramatic shifts from political émigrés in the 1980s to primarily the temporary movement of male laborers to, recently, increased migration of both men and women, long-term settlement, and the establishment of family ties, including having children in Costa Rica (Chen Mok et al. 2001). Today, Nicaraguans, many of them undocumented, fill low-paying jobs that form the basis of the country's agricultural and service sectors (Castro Valverde 2007; Sandoval, 2002). The high volume of Nicaraguan migration combined with a decline in public services in Costa Rica over the last twenty years has renewed anti-immigrant sentiments among many Costa Ricans who stigmatize migrants as criminals and abusers of their country's social services (Sandoval, 2002). Parallel to this, immigration policies have shifted from an openness to refugees and other migrant populations in the 19th and 20th centuries, to an increasingly securitized stance oriented toward keeping out unwanted migrants and protecting national borders (Alvarenga 2007). Then, in 2006, the new Costa Rican immigration law dramatically limited the opportunities for Nicaraguans to live and work legally in Costa Rica and expanded police and border control activities.

This increasingly restrictive stance on migration parallels global trends in migration policy, in which host countries have become more concerned with restricting legal migration and the policing of undocumented populations (Cornelius et al., 2004; Calavita, 2005; Inda, 2006). The Costa Rican case, then, provides an opportunity to examine how such a process of securitization unfolds in legal reform within the developing world. By exposing the contested framings of immigration law in Costa Rica, though, I show how such processes represent negotiated, fraught processes rather than the wholesale imposition of a unitary state power.

This paper examines the political rationales at work behind the 2006 Costa Rican immigration law, the subsequent reform project, and resulting 2010 law through an analysis of two rival framings of immigration in Costa Rica. Combining ethnographic methods and legal and institutional analysis (Conley, 1990; Nader, 2002; Calavita, 2005; Holzmeyer, 2009; Inda, 2013) I analyze discourse observed among migrant advocacy groups between 2009 and 2012, in the texts of the 2006 and 2010 Costa Rican General Migration and Alien Affairs Laws (No. 8487, No. 8764), and in academic and news sources about the law, Costa Rican national identity, and immigration. My interest in Costa Rican immigration law and policy stems from long-standing concerns with Nicaraguan migration to Costa Rica, xenophobia, and transnational families. In this paper, however, rather than draw on ethnographic fieldwork among Nicaraguan migrants and their families, focus is given to the legal texts that structure and frame their experiences as undocumented migrants.

I begin by providing the broader context for the analysis of the 2006 and 2010 laws. I draw upon scholarship on the political origins of Costa Rican immigration law, recent global trends in the securitization of migration, and historical notions of Costa Rican identity. What this examination reveals is existence of a discourse of immigrant threat and an immigration crisis in Costa Rica. Such discourses, like Congressman Toledo's speech in the epigraph, construct an immigration crisis that positions the nation as under threat from an invasion of problematic immigrants. I then subject the 2006 and 2010 immigration laws to a discursive analysis and a close reading of the texts, focusing on how issues were framed and identifying references to immigrant characteristics, concerns for national security, and characterizations of Costa Rican national identity and exceptionalism. Also, by reading between the lines of these laws, the analysis highlights how certain rationalities animate particular policy framings and problematizations. In this sense, the article provides an “emancipatory reading” of Costa Rica's migration laws, viewing the legal texts not as simply the codification of policy objectives, but as rival analyses of the reality of immigration in the country (Apthorpe 1996). In this sense, the article builds on work that has examined the construction of immigrant threat narratives (Sandoval, 2002; Santa Ana, 2002; Gerstle, 2004; Lucassen, 2005; Chavez, 2008), by analyzing how such narratives are incorporated into legal texts and become part of law.

The article then turns to the contested reform process, which provides insight not only into how political rationalities become incorporated into law, depoliticizing social issues while producing new social realities (Kairys, 2000; Inda, 2006) but into law itself as “undetermined struggle” (DeGenova, 2004). The problems with the 2006 law and the subsequent reform process, in which immigrant rights advocates and academics offered alternative framings of immigration as a human rights issue, show how law-making does not end with the passing of legislation. Rather, the development of regulations and their implementation offer new arenas for competing analyses and interests to enact their visions of immigration law and policy.

Analysis of the final text of the 2010 law demonstrates how advocates’ alternative framings were incorporated into the new law. The result is a focus on security tempered by a rhetoric of integration. Rather than see these two framings as mutually exclusive, I argue that the integration framing serves to legitimize the new law, muting human rights’ advocates concerns with policing, detention, and other repressive measures. It transforms the notion of national security in the 2006 law to a concept of security that incorporates the health and welfare of the population. It generates a new focus on security in a biopolitical sense – that is, in terms of the well-being of the population and the nation – encased in a neoliberal logic of individual responsibility. In this way, integration becomes part a project of security, forming part of a system that makes documentation, legality, and, thus, integration more difficult for Nicaraguan migrants.

The case of Costa Rica is particularly important because it is one of the few well-documented migrant destination countries within Latin America (Mahler 2000) and because, through the analysis of the new immigration law, we can observe the ways in which historical concerns with Costa Rican national identity become linked to new global preoccupations with “national security.” Indeed, though the shift in Costa Rican immigration law reflects historical concerns with Nicaraguan otherness, it is also part of an international convergence of policies targeting the securitization of migration (Cornelius et al., 2004). Thus, tracing these two moments in Costa Rican immigration law provides insight into not only current trends of securitization and criminalization of migration but how such discourses become incorporated into law.

“We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

Immigration law and policy are particularly fruitful sites of analysis because, as an administrative tool to categorize and manage outsiders within the national territory, they are the site of contentious debates over who belongs to the nation and who should and should not be allowed to enter and remain in that national space (Hing, 2004; Ngai, 2004; Johnson and Hing, 2005; Newton, 2008). That is, immigration law not only defines the physical and geographic boundaries of the nation-state, but the legal, social, and moral limits of belonging to the imagined community of the nation (Anderson, 1991; Yuval-Davis, 2006; Tormey, 2007). In this, immigration law reflects broader debates about national identity and belonging linked to race, ethnicity, and class and contributes to shaping public conceptions of national identity. At stake in who belongs to the nation are not only the rights to enter space, but to remain there, live, work, and plan a future as well as emotional attachments and identifications with particular places (Yuval-Davis, 2006). Thus, immigration policy forms part of “the administrative imperative to optimize the health, welfare, and life of populations” (Dean, 1999). As such, it entails not only border and visa controls but decisions over access to public benefits and resources, like education and healthcare. Thus, the framing of immigration – that is, how it is conceptualized in political and public discourse, as well as in legal texts – reflects highly charged debates over the meanings of nation, belonging, and citizenship.

The framing of immigration policy debates are linked to historical relations between countries as well as historical notions of national identity. In the U.S., for example, scholars have examined how immigration policy became defined in relation to particular immigrant groups, including Asian immigrants the 19th century (Hing, 2004; Ngai, 2004), and relationships with particular sending countries, for example with Mexico (DeGenova, 2002, 2004). Prominent in these studies is an examination of U.S. discourses of national identity that privilege Eurocentric visions of America tied to race, language, and cultural origins and immigrants as a threat to that identity (Chavez, 1991, 1997, 2008; Santa Ana, 2002; Hing, 2004; Johnson and Hing, 2005). In Costa Rica, like in the U.S., discourses of exceptionalism have been an important element of national identity. Hegemonic notions of Costa Rican national identity emphasize the country's exceptionality in the region: as an island of peace, democracy, and natural beauty, in an isthmus of violence, dictatorship, and underdevelopment, Costa Rica has risen above its Central American neighbors.

Important features of this myth of Costa Rican exceptionality are racial homogeneity, colonial isolation, and identification with certain geographic regions: the Costa Rican as a white, “small peasant landowner” (today, middle-class) from the Central Valley (Giglioli, 1996; Sharman, 2001; Sandoval, 2002). While there are certainly a proliferation counter-hegemonic readings of these dominant narratives and counter-identities that problematize these notions of “whiteness” and exceptionality, underscored here are the prevailing notions of Costa Rican identity as they are projected in the Central Valley. The most salient aspect of this “exceptional” national identity is its racial element. Costa Ricans have long seen themselves as “whiter” than their Central American neighbors. Histories of the “discovery” and colonization of Costa Rica emphasize the presence of few indigenous groups and the inheritance from Spain of its “blood, spirit, and temperament” (Giglioli, 1996, 176). “Whiteness” is linked to other “desirable” characteristics, while the rest of Central America is seen as “undesirably mestizo” (Sharman, 2001, 47). Today, race, remains the invisible hallmark of Costa Rican identity. Mestizo is a term used infrequently by Costa Ricans to describe themselves; indeed, “they consider themselves white and the term mestizo is not heard frequently” (Bustos Mora 2000: 17).

Internal geographic conceptions of the nation, which incorporate popular histories of colonial settlement and isolation from the rest of Central America, link racial homogeneity to the Central Valley. According to historical accounts, “the Central Valley gave rise to Costa Rica, that is, to what is particular to Costa Ricans” (Lascaris cited in Giglioli, 1996: 186). Costa Rica's nickname as the Switzerland of the Americas not only emphasizes the country's difference from the rest of Central America, but also establishes a cultural and racial identification with Europe (Sandoval, 2002). This image links physical and geographic similarities between Costa Rica's Central Valley and Europe with sociopolitical characteristics, making the nation's closest neighbors European instead of Central American. Combined with race, this geographic notion creates the basis for social equality, peace, and democracy considered fundamental to the national story – a small, isolated group of hard-working peasants, the Costa Rican colony never developed sharp class distinctions or large land-owners as in other Central American colonies, allowing democracy to flourish since independence.

These hegemonic notions of Costa Rican identity rely on explicit contrasts to Nicaraguan neighbors to the north and Nicaraguan immigrants in Costa Rica (Sandoval, 2002). Negative perceptions of Nicaraguans serve to highlight and reinforce positive aspects of Costa Rican identity. In Costa Rica, such stereotypes include the notion that Nicaraguans, or “Nicas,” are violent and come to “use up” Costa Rican natural resources and social services (Arce Sandi, Roldan, & Villegas Herrera 2001; Sandoval, 2004). Where Nicaraguans are “inherently violent,” Costa Ricans are peace-loving; where Nicaraguans are poor, illiterate, and uncultured, Costa Ricans are middle-class and educated; where Nicaraguans are mestizo and dark-skinned, Costa Ricans are “white.” Thus, Nicaraguan migration represents a demographic, cultural, and racial threat to Costa Rican national identity, and its exceptionality in the region. These “threats,” reproduced and disseminated through television and print media, contribute to a generalized anti-immigrant environment in Costa Rican society.

While scholars note that there have always been debates over immigration and exclusion in immigrant receiving countries like the U.S. (Gerstle, 2004; Hing, 2004), in recent years, such debates have become more volatile, violent, and visible not only in the U.S., but in new countries of destination around the world, including France (Raissiguier, 2010), Spain (Suárez-Navaz, 2005), and, in this case, Costa Rica. In part, the vehemence of such debates may be linked to a perceived crisis of citizenship in these countries, that is, a perceived “dilution of the rights and privileges of U.S. citizenship because of massive immigration” (Chavez, 2008). This perceived crisis, in which the meaning of citizenship is at stake, is not only about high levels of migration, but about economic, social, and political shifts that are transforming the meaning of formal membership and access to what were once substantive elements of national belonging. As Ong (2006, 6) has argued, formal citizenship rarely guarantees the full benefits of citizenship as social rights become disaggregated from the nation-state, creating gradations of citizenship: “The elements that we think of as coming together to create citizenship – rights, entitlements, territoriality, a nation – are becoming disarticulated and rearticulated with forces set into motion by market forces.” In both Europe and the Americas, this has happened through the dismantling of welfare state systems and the implementation of neoliberal reforms.

Thus, although Nicaraguans have been constituted as “other” throughout the country's history, the latter part of the 20th century has seen an increased identification of Costa Ricans in explicit contrast to Nicaraguans (Sandoval, 2002). Costa Rica is home to 68 percent of all Central American migrants and has experienced large numbers of arrivals of migrants and refugees from throughout Latin America since the 1980s in response to regional instability and conflict, including up to 20,000 Salvadorans (Basok, 1990; Hayden, 2003). However, it is primarily Nicaraguans who are represented in media and political discourse as a threat to the nation. This explicit othering of Nicaraguans is due to a number of factors, including the growth of Nicaraguan migration and decline of other Central American migrant streams after the end of civil wars in the region, perceptions of Nicaraguans as primarily economic migrants rather than political refugees, and class and ethnic differences between Nicaraguans and other Latin American migrants and between Costa Ricans (Basok, 1990, 1993). This increase in Nicaraguan migration after the end of the Contra conflict coincided with a crisis of the Costa Rican welfare state (Sandoval, 2004). The weakening of the welfare state in Costa Rica and the decline of the middle-class represent threats to the basis of Costa Rica's exceptionality in the region.

Immigrants have been figured as various kinds of threats to host societies – from economic and political to cultural and social. Chavez (2008), for example, and others (Massey and Pren, 2012) have traced the emergence of a Latino Threat Narrative in the U.S. This narrative figures Latino immigrants in particular as unassimilable, unable, or unwilling to integrate into U.S. society. In this narrative, Latino immigrants represent a cultural and ethnic–racial and even religious threat to an otherwise white Protestant Anglo-Saxon nation (Johnson and Hing, 2005; Chavez, 2008). Such concerns over immigrants’ radical difference and willingness to integrate into the nation are not new; other scholars have demonstrated that similar concerns circulated in U.S. public and political discourse over the arrival of Irish and Chinese immigrants in the 19th century (Hing, 2004). Further, in the 19th and early 20th century, Irish immigrants in England were “generally detested because they were poor and nationalistic, but predominantly so because they were Catholics” (Lucassen, 2005). Today, concerns over race have been codified in discourses around language, religion, and national origins, and specific cultural traits considered incompatible with the host country (Johnson and Hing, 2005; Lucassen, 2005; Chavez, 2008; Newton, 2008). For example, in the U.S., Latina's “out of control” fertility is figured as a demographic threat to the nation (Chavez, 2008).

Today, political discourse, fueled by sensational media coverage, figures various immigrants groups not only as culturally different and unassimilable, but as bringing particular social problems to the host country. Thus, immigrants are often defined as threats to public health, carriers of disease and pollutants (Markel and Stern, 2002; Santa Ana, 2002; Chavez, 2008). In such discourses, migrants literally threaten the nation by bringing with them diseases that have been nearly eradicated in the host country, but also metaphorically threaten the body of the nation as they are portrayed as germs that infect the otherwise healthy national body (Chavez, 2001, 2008). Such threats to the health of the nation emerge in immigration regulations that require physicals and TB tests of immigrants entering the U.S. and European countries. Such examinations are not new: at Ellis Island and Angel Island, immigrants were screened for a long list of physical and mental diseases. During the Bracero program, Mexican laborers were “disinfected” before entering the U.S. More recently, the association between HIV/AIDS and Africa has generated fears over African immigration as a public health threat to (white) European nations (Raissiguier, 2010).

Further, in discourses on access to social services, immigrants become figured as parasites that suck dry the resources of the nation by taking jobs from citizens and using and abusing public services (Chavez, 2008; Newton, 2008). Thus, in times of economic downturn or social crisis, anti-immigrant discourses gain new purchase (Pedraza and Rumbaut, 1996). Concerns over immigrant “deservingness” and services and resources emerge in legal restrictions on their access to public welfare programs and social safety nets, as in the case of 1996 welfare reform in the U.S. and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Bitler and Hoynes, 2013). Current immigration policies in the U.S. include “public charge” clauses to exclude immigrants who might become dependent on state or federal welfare programs. And yet, to avoid being public charges, immigrants must work – another threat to the American labor force (Chomsky, 2007).

In Costa Rica in the 1990s, the end of the Contra conflict and the decline of the Costa Rican welfare state intensified Costa Rican identification in explicit contrast to Nicaraguans (Sandoval, 2004). This period coincided with the implementation of structural adjustment policies in Costa Rica that both encouraged Nicaraguan migration through the promotion of an export sector that demanded large-scale manual labor and reduced the Costa Rican state's capacity to attend to the social needs of its population. While Costa Rica has already higher levels of social spending buffered the negative social impacts of adjustment, by the mid-1990s, the impacts of declining public investment began to emerge (IDESPO, UNFPA, and Foro Permanente sobre Población Migrante 2000; Nowalski and Barahona 2003). Today, crowded classrooms, understaffed public schools, and an overworked and underfunded health system point to the strains on public services. These crises threaten the Costa Rican discourse of exceptionality. In this context, Nicaraguan immigrants have become the “other” upon which anxieties about the deterioration of social services and rising insecurity have been projected. “[The] undermining of public services and public investment cutback are usually represented, not as a consequence of neo-liberal policies, but as a result of Nicaraguans’ migration to Costa Rica” (Sandoval, 2004). Thus, as Congressman Toledo Carranza (2005) argued, they “come to do harm, to collapse our education system, to abuse our medical services.” It is, at least in part, this perception of declining quality of life that has created the urgency in such regulationist discourses that advocate closing the border to further Nicaraguan migration and “cleaning-up” the country.

If such rhetoric has positioned immigrants, and Nicaraguans in particular, as outsiders who use and abuse services, discourses linking immigrants to crime offer another threat to Costa Rica's exceptional status as a country of peace and human security. Sensational news coverage that links Nicaraguan immigration to crime has facilitated the replacement of the political threat of “communism” with the social and cultural threat of “Nicas” since the end of the Sandinista Revolution (Sandoval, 2002). Between 1994 and 1996, a series of kidnappings committed by several ex-Contras made big headlines, helping to criminalize the Nicaraguan population as a whole. The media “did not emphasize this relation between Contras and kidnappings as the most prominent feature of said events,” instead emphasizing criminality and nationality (Sandoval, 2002). More recently, in March 2005, as the 2006 immigration law began to be debated in the National Assembly, live news footage of a bank robbery in Monteverde, a popular tourist destination in the mountains, featured a standoff between Nicaraguan bank robbers and Costa Rican police (Vizcaíno, Arguedas, and Moya 2005). The coverage featured grisly shots of the robbers’ bodies, lying on the steps of the bank, and emphasized their Nicaraguan nationality and previous criminal activity (Vargas, Otto and Rodríguez 2005; Vizcaíno, Arguedas, and Moya 2005). Indeed, it is to this specific incident that Toledo refers to in his speech just weeks after the standoff, when he warns about “brothers” who come to rob and kill.

Although the association of Nicaraguan immigrants with crime is tied to earlier framings of Nicaraguans as political threats, the association of immigration with criminality is also an effect of immigration law. Thus, “illegal” immigrants’ “criminality is generally attributed to the simple fact that they have no legal right to be in” the nation (Inda, 2006, 108; Newton, 2008). According to neo-liberal discourses of individual responsibility, by not respecting the law such immigrants are inherently criminals and therefore unethical, irresponsible subjects, or “anticitizens” (Inda, 2006:110). Inda argues that beyond not being able to live up to the obligations of citizenship, “illegal” immigrants are seen as “[eroding] respect for authority” and in this way represent a threat to the social body (2006:110). Their construction as unethical subjects is reinforced by language that portrays them as job takers and public burden – as people who take things that do not rightly belong to them and in the process hurt Americans. Further, immigration law literally generates illegality by criminalizing migrants’ undocumented status and the ways in which migrants navigate this status, by using fake documents to gain employment or driving without a license (DeGenova, 2004; Gonzales, 2011; Gonzales and Chavez, 2012). For undocumented migrants, everyday activities become criminal acts.

If anxieties over the meaning of citizenship and differences represented by immigrants lend themselves to the development of threat narratives, immigration law seeks to protect the nation and the national body from what is often envisioned as this flood or invasion of threatening immigrants (Chavez, 2001; Sandoval, 2002, 2004). In Costa Rica, the urgency and magnitude of Nicaraguan immigrant “threats” are reproduced and disseminated through television and print media that emphasize that the country is being “flooded,” “bombarded,” and “invaded” by “illegal” immigrants who are characterized as the primary cause of the deterioration of the country's social services and its increased crime rates (Sandoval, 2002). The urgency of these threat discourses, in turn, justify immigration policies focused on increasing restriction of immigration and framed in terms of national security.

A number of scholars have noted the convergence of immigration policies in various migrant-receiving countries around restrictive policies and discourses of national security (Cornelius et al., 2004; Calavita, 2005; Inda, 2006). This emphasis on border control and discourses of national security has been especially prominent since September 11, 2001 (Tirman, 2004). And yet, as scholars have noted, this trend toward the securitization and criminalization of migration was in motion long before 2001 (Cornelius et al., 2004; Gerstle, 2004; Inda, 2006). This convergence has taken place in the context of four key developments: high emigration from less-developed countries encouraged by economic and demographic factors, demographic trends in receiving countries that increase the demand for foreign-born labor, coupled with continued demand for low-cost flexible labor, and the increasing frequency of “largely symbolic efforts” to stop immigration and deter permanent settlement that coincides with increasingly hostile public opinion about migrants (Cornelius and Tsuda, 2004).

National security, then, is about containing and reducing risks to the national body or population. Here, several conceptions of security emerge that translate into different policy options. First, to protect the nation from unwanted outsiders, immigration law contemplates national security in the sense of sovereignty and territorial integrity – in measures for border control and the regulation of entrances and exits. But national security also takes a biopolitical form, especially in the context of neoliberal forms of government. That is, in addressing the social and cultural threats of immigrants inside the nation, states have come to rely on “a biopolitical mode of governing that centers on the capacity and potential of individuals and the population as living resources that may be harnessed and managed by governing regimes” (Ong, 2006, 6). Thus, immigration policy seeks not only to control movement but to shape human conduct and subjectivity through the optimization of capacities. Those who cannot or do not fulfill their potential as ethical subjects/migrants become subject to “anticitizen technologies” of “incapacitation and containment” (Inda, 2006:127).

The state ensures security not only through “anticitizenship technologies,” like border control and incarceration, but also through self-policing and integration measures that ensure migrant populations’ compliance. For example, DeGenova (2004, 2005) argues that the production of illegality in U.S. immigration law has not restricted Mexican migration, but rather sustained such migration while creating a “spatialized sociopolitical condition” of deportability. Thus, scholars have noted the contradictory convergence of policies focused on both restriction and integration in host countries around the world (Cornelius and Tsuda, 2004; Calavita, 2005). The contradictory but simultaneous incorporation of security and integration frameworks in immigration law points to the ways in which regimes of government, though they work through particular logics, are heterogeneous and multiple (Dean, 1999). They have an orientation or intentionality that is irreducible to the intentions of any one actor. Thus, rather than examine policy intentions and outcomes, in terms of immigration and integration policies, it is useful to look at the unpredictable consequences of law.

Integration programs serve to reinforce security framings by managing immigrant otherness without resolving their legal and social exclusion (Calavita, 2005). In my analysis of the two Costa Rican immigration laws, I argue that the incorporation of integration as a primary element of immigration law serves to legitimize the law, defusing criticism of policing and enforcement measures. Integration policies, then, represent part of the apparatus of illegality in Costa Rica, making regularization and integration more difficult for migrants.

The case of Costa Rica demonstrates how such concerns with security, which are prominent features of immigration discourses and law in traditional destination countries in the North, like the U.S., are being incorporated in receiving countries in the south. These discourses reflect Costa Rican social fears about declining social services and rising insecurity in Costa Rica against historical constructions of national identity but also regional and global discourses on security. Indeed, over the past decade government, international, and other organizations have directed increased attention to Costa Rica's role as a country of transit for drugs in Latin America (Sandoval pers. comment 2009; Bunck and Fowler 2012). The perceived urgency of the immigration “crisis” and the threat of criminal Nicas, in particular, allowed Costa Rican lawmakers to push forward a law that read more like “a few emergency actions” than a comprehensive immigration package (Borge, 2006). In the next section, I trace how the discourses of threat examined here emerge in the framing of Costa Rican immigration problems and the restrictive solutions outlined in the text of the 2006 law.

Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

Given the representations of Nicaraguans in news media, the association of Nicaraguans with criminality and illegality, and the upcoming presidential elections, it was not surprising that the law passed in 2005 focused almost exclusively on border control to stem the “tide” of Nicaraguan migration. Here, I focus on the ways in which these discourses about Nicaraguan immigration are incorporated into the 2006 law, which governs all immigration, and the “work” that these discourses do, namely justifying border and security measures to limit immigration. In the text of the law, these immigration threats emerge in discourses of criminality, abuse of social services, and disease.

First, potential immigrants are characterized as potential criminals. The law explicitly lists all the crimes for which would-be immigrants may be barred from entry:

…for willful crimes against life, genocide, acts of terrorism, trafficking drugs or psychotropic substances, trafficking of people, fraud, illegal association [for criminal purposes], illegal carrying and activity of guns or explosives, crimes of sexual abuse of minors, trafficking of cultural, archeological or ecological patrimony, tax evasion or crimes against minors, senior citizens, the handicapped, or for domestic violence.”

(Art. 54)

In addition, the following section goes on to add restrictions to all those whose “criminal history make it likely that they could compromise public security, public order, or the state of law,” though how such “likelihood” should be defined is not addressed (Art. 54). This comprehensive list targets a wide range of “problematic” immigrants – including those mentioned by Toledo and made visible in the national news – but also expanding the notion of criminal immigrants to include groups associated with drug trafficking, convenience marriages, and terrorism. This text also reflects a concern with regional and global discourses on security, particularly Costa Rica's role as a country of transit for drugs and human trafficking in Latin America (Bunck and Fowler, 2012; Seelke, 2012). Thus, while such a focus on crime and preventing the entrance of dangerous immigrants reproduces national discourses on identity, it also echoes rhetoric borrowed from U.S. immigration policy, and regional discourses of terrorism, crime, and security (Borge, 2006).

The phrasing and tone of the law also assume that immigrants continue to represent criminal threats once inside the country. Indeed, detained immigrants are referred to as “presumed offenders” (Art. 18), and articles on the implementation of sanctions assume that immigrants have broken the law. They never explicitly mention, for example, that a sanction such as deportation will be imposed only once a violation is proven (Fonseca Vindas, 2007). Ironically, the focus on the criminality of migrants obscures the victims of some of those very crimes. As immigrants are presumed offenders and already possible criminals (even before entering the country), they need not be considered victims of sex trafficking or other human or labor rights violations.

The law also presumes that immigrants are “users” of the social services offered by Costa Rica who contribute little to the social security system. Thus, in terms of planning, the law exhorts the Migration Department to take into account: “The reports of the Costa Rican Social Security [Fund] (CCSS) about the capacity of the Social Security System to attend to the immigrant streams” as well as the “local capacity” of educational institutions (Art. 8). Although these passages do not explicitly state that immigrants are overwhelming social services in Costa Rica, they do focus on “immigrant streams” and imply that such services should be able to meet the needs of Costa Rican users first. Like public charge criteria in U.S. immigration law, the law positions immigrants as a threat to the public welfare system, focusing on the capacity of social services as criteria for the entrance of immigrants rather than on how these services respond to the needs of the immigrant population. Similarly, in terms of employment, the law again frames immigrants as individuals who take that which is not theirs, threatening the livelihoods of Costa Rican workers. Thus, immigration policy is also oriented to ensuring “the no displacement of national labor by the incorporation of immigrant workers” (Art. 7).

Finally, immigrants represent a significant danger to the national body in terms of health. The law restricts entry to those who “carry, suffer from, or have been exposed to infectious or transmissible diseases that could signify a risk for public health” (Art. 54). However, it does not establish how threats to public health will be determined or who or what might qualify as such a threat. This formulation of immigrants as threats draws on discourses that figure migrants not only as parasites that suck dry the resources of the nation but also as germs that infect the otherwise healthy national body (See Chavez, 2008).

In this logic, certain immigrant groups threaten the cultural, social, and economic integrity of the Costa Rican nation. Thus, migration policy is oriented toward protecting the nation by minimizing this threat. Such a notion of national security depends on what Feldman describes as “a territorial imaginary that is a horizontal grid of culturally particular units in which a state is authorized to protect the identity of the titular nation” (Feldman 2005). The 2006 law states that immigration policy should be directed toward “the protection of the customs and the peaceful coexistence of the country's inhabitants, as well as the respect for the rights of minors and women, which will be reflected in policies restrictive of the entrance of foreign persons when this alters the elements and values of coexistence cited in this section” (Art. 7). Here, we can see, almost in a legal translation of Congressman Toledo's words, that immigrants threaten the rights of children and women. Further, the entrance of immigrants threatens the customs and unique way of life of Costa Ricans.

Thus, national security measures are directed against “security threats from individuals uprooted from elsewhere and now an alien presence in a putatively homogenous state” (Feldman 2005). The state's responsibility, then, is to protect the nation (in which people and territory are conflated) from such invasion, maintaining Costa Rica's integrity and exceptionality in the region. Its authority is focused on controlling the entrance of foreign bodies in the national space and aligning people with their corresponding states. Thus, in addition to deportation measures for immigrants, the 2006 law seeks to encourage the return of Costa Ricans living abroad (Art. 6), again leaving little room to incorporate emigrants into national development policies in any other way than through their physical return to the nation.

Of course, not all the characterizations of immigrants in the 2006 law describe their negative characteristics. An immigration law based on regulation and restriction is, after all, just as much about who should be allowed “in” as who needs to be kept “out.” Thus, regulation of migration should also be oriented to “selecting migration flows, with the objective to increase the investment of foreign capital and strengthen the technological, cultural and professional knowledge, in the areas that for the State are defined as priorities” (Art. 6). Some migration flows – that is, those that come from wealthy countries and bring with them capital for investment or technology for the economic development of the country – should be openly encouraged. Thus, the law also urges consulates abroad to provide information to prospective immigrants on the “profile of specific projects for the installation of small and medium sized enterprises that may be attractive to immigrants with capital” (Art. 20). The tone of articles and sections dealing with immigrants with capital, which, given public discourse in Costa Rica, may be assumed to be European and North American immigrants, is markedly different from the rest of the law. Here, we find no reservations about the characteristics of these immigrants, as long as they have money to invest. Indeed, because the law sharply increased the fees associated with applying for residency, in effect, if not in its explicit framing, it discourages the legalization of low-income immigrants, while facilitating the residence of immigrants from wealthier nations.

The threats posed by immigrants, then, orient migration policy as part of a project of governmentality that “seeks to enframe the population within what might be called apparatuses of security,” (Dean, 1999). If immigration itself represents a threat to national security, then the role of immigration policy should be to minimize this threat. Security, here, emerges as an issue of regulating entrances and exits, minimizing immigrants’ impacts on social services, crime, and national identity, and ensuring the integrity and sovereignty of the nation-state through the state's power to discipline the bodies within its borders. Immigration policy is envisioned as a responsibility to “regulate migration flows that favor the social, economic and cultural development of the country, in concordance with public security” (Art. 5). Thus, the major provisions of the law increase the budget for the professionalization and expansion of the migration police and modernization of border control. It also provides expanded powers for police enforcement. For example, the law allows for indefinite detention of migrants (Art. 18; Fonseca Vindas, 2007).

However, in focusing on the control and repression of immigration itself, the law offers no way to deal with immigrants’ incorporation in society other than policing them through sanctions, detention, and deportation – that is, through their ultimate exclusion from Costa Rican society. These policing measures, though, risk contradicting Costa Rica's own constitution as well as international treaties such as the Rights of the Child (Fonseca Vindas, 2007). For example, despite national and international protections against arbitrary detention, the 2006 law allows migration police to confiscate a person's identification documents and detain a person for “the time necessary” to “determine his migration status and to process and execute the pertinent sanctions” (Art. 18).

Further, the narrow framing of immigration as a problem of crime and excess that requires a solution dedicated to border and police activities excludes immigration from being contemplated in other public policies in Costa Rica (Borge, 2006). As an issue of criminality, illegal actions, and excess immigrants who overwhelm the nation, migration to Costa Rica requires restrictive policing measures and administrative sanctions. This framing further limits the kinds of information considered by the state to determine specific policies to data on economic impact and resources used and available.

For example, the composition of the National Migration Council, charged with reviewing and proposing new migration policies, reflects this absence of immigration in other policy areas. The Council is headed by the representative of the Ministry of Governance and Police; a representative of the ministry of public security; representatives from the ministry of justice, foreign affairs, employment and social security; the Costa Rican Tourism Institute, and the director of Migration. The law stipulates that no one on the council can have a “conflict of interests in migration activities” (Art. 10). In this case, it appears that any interest besides that of government would represent a conflict. Thus, the absence of social institutions and groups that represent immigrants’ interests, including human rights organizations, reflects “strategic silences” around other possible framings (Riles, 2006). In this case, these silences obscure the contributions of immigrants to Costa Rican society and the ways in which the Costa Rican economy depends on migrant labor. They thus allow the nation to continue benefiting from migrant labor while disciplining that labor through a rhetoric of criminalization, eschewing responsibility for the social costs of labor reproduction.

Consultation but not Consensus: Immigration Reform in Costa Rica

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

The perceived urgency of the threats outlined above not only justified stricter controls on migration and increased costs for residency but allowed lawmakers to push through a law riddled with errors and contradictions. Indeed, the text of the law is riddled with typos, poor grammar, and internal contradictions. For example, in establishing the minimum monthly income needed to apply as an immigrant under the category of “financier” (rentista), article 77 establishes $1,000 while, for the same category, article 79 says $2,000. Other articles omit nouns or are grammatically unclear with respect to subjects or pronouns (Art. 86). Although the final version of the law went into effect in August 2006, internal contradictions and concerns over the economic costs of implementation prevented the General Direction of Migration and Alien Affairs (DGME) from crafting regulations. Although this situation allowed the Department to function through decrees and internal directives to resolve particular cases, it also created a generalized atmosphere of uncertainty, with consular officers and migration police unsure of how to enforce or implement contradictory and unclear articles of the law.

In the absence of regulatory laws, the DGME resolved cases on an individual basis and functioned through a series of executive decrees (Fonseca Vindas, 2007). This confusion and continued political debate in light of the 2006 Presidential election fueled calls for reform. Within government sectors, opposition to the bill – which was also ineffectual – reflected economic concerns. Mario Zamora, the Director of Migration, expressed concern over the lack of police, equipment, and installations to implement the new law and resources to enforce it (Murillo, 2006). However, then Costa Rican President Abel Pacheco refused to veto the law because it had the support of the majority of lawmakers: “If I veto a law like that, I expose myself to the [possibility] that the representatives re-seal [approve] it, and I wind up looking ridiculous” (Alvarado 2005). The refusal may also reflect Pacheco's political opposition to Oscar Arias's candidature. Indeed, former president and 2006 candidate Arias asked Pacheco to enact a partial veto to resolve the most repressive measures.

While campaigning in an informal settlement on the edge of San Jose that is home to many Nicaraguan migrants (and to many naturalized Nicaraguans, who might be potential voters), Arias “[accused] the new legislation of being draconian and attribute[d] it to a growing wave of xenophobia that does not [fit] with the best Costa Rican values. In support of his argument, he [invoked] our ample tradition of asylum and then [placed] the issue in today's reality to ask, ‘What would our economy be without the Nicaraguans?’” (González 2005). Arias's argument, whether a clever election ploy playing on his own historic role in regional Peace Accords or reflecting alternative understandings of immigration and regional history, highlights other aspects of national identity that position Costa Rica as a historic receiver of “less fortunate” foreigners, whether they be political refugees during his last tenure in office or economic migrants seeking a better life in Costa Rica today.

In the end, Arias did win the election. Although a manual vote recount and looming debates over the Central American Free Trade Agreement took some focus off the immigration law, Arias took steps to initiate reform. Mario Zamora, the Director of Migration, framed the reform as an opportunity to strengthen border control, professionalize the migration police force, and introduce high-technology equipment in immigration control (Reformas a la Ley, 2006). For others, like the Jesuit Migrant Services (SJM), the promise of reform offered an opportunity to talk publicly and to consider legally the “great vicissitudes that the migrant populations in the country face, as well as the urgency of having an integral normative framework that respects the fundamental human rights of foreign persons” (Fonseca Vindas, 2007).

These conflicts over implementation and the demands for reform just months after the law went into effect show that law-making does not stop with the drafting and passing of legislation. Rather, both framing and implementation are fraught processes in which various actors attempt to enact their vision of social reality. The reform process and the alternative framings offered by immigrant advocates show that the incorporation of immigrant threat narratives into law is not an inevitable outcome. Rather, as scholars have shown, rationalities driving immigration policy oscillate between restrictionist and more open visions of what it means to belong (Hing, 2004). Others have shown that immigrants themselves have asserted social, economic, and cultural forms of belonging to demand political and legal rights as in the case of the Immigrant Marches of 2006 in the U.S. (Ong, 1996; Chavez, 2008; Gonzales and Chavez, 2012). Who belongs in the nation and who does not is never a fully settled question.

The reform process in Costa Rica highlights this struggle among competing visions or framings of migration. If the 2006 law represented the exclusion of other viewpoints in the interest of national security, the reform process was hailed by many as “reaching a consensus” among broad political and social sectors (Fonseca Vindas, 2007). The Department of Migration circulated drafts of the new proposed law to social groups and human rights organizations working on immigration and even invited feedback from them. Organizations run by migrants, including the National Network of Civil Society Organizations for Migrations, played an important role in offering alternatives. However, as Karina Fonseca Vindas, director of Jesuit Migrant Services noted, the suggestions were just that – suggestions, in no way binding on either the Department of Migration or the final text as presented in the National Assembly (Fonseca Vindas, 2007). It is a text that was “consulted, but not made in consensus” (Fonseca Vindas, 2007). Indeed, the text largely did not change the security focus of the law, although it expanded that focus to include the security and rights of certain migrants.

Despite the resiliency of the security framing which constrained the ability of human rights groups to change the terms of the debate, academics and activists were able to offer some alternative problematizations of and responses to migration. Fonseca Vindas (2007) notes as major achievements in the reform process the incorporation of language promising “respect for diversity and customs”; “recognition of multicultural richness”; and the orientation toward “promoting the integration of migrant persons and the compliance of the legislation in human rights material.”

Under the alternative framing offered by human rights organizations, immigration represented “a human challenge” related to development rather than crime (Borge, 2006). For proponents of this framing, the challenges of migration are the economic contribution of Nicaraguans to the Costa Rican economy and economic dependence of Costa Rica on migrant labor; the respect for human rights and cultural diversity; and the lack of effective public policies in Costa Rica. These framings serve to dismiss arguments enshrined in the 2006 law – that immigrants come to take Costa Ricans’ jobs and abuse social services – by justifying Nicaraguans’ presence and urging tolerance and acceptance on the part of Costa Ricans. They also refocus anxieties about failing social services back onto the state, asserting that it is state failure (and the private sector's non-compliance) rather than immigration that has created chaos and crisis within the health, education, and housing sectors (Mojica Mendieta 2003). In some ways, the marked contrast between the framings incorporated in the 2006 and 2010 laws reveals how alternative “ways of naming and framing set policy agendas differently” (Apthorpe 1996). In the next section, I turn to the new law, passed in 2009. This new law reflects clearly the rival analyses of immigration as a security threat versus a human rights issue. However, as I show below, the scope of integration has been quite limited and actually reinforced a view of migration as primarily a security issue.

Integration and Security: New Forms of Securitization in the 2010 Law

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

The influence of these alternative framings is clear in the text of the revised law, passed in September 2009 and put into effect in 2010 (No. 8764). The new law explicitly recognizes the importance of immigration for the country. Instead of calling for the regulation of migration flows as the previous law did, it enjoins the state to “regulate the integration of migrant persons, respect their culture and favor the social, economic and cultural development of the country, in concordance with public security; it [the State] will also watch out for social cohesion and the legal security of foreign persons that inhabit the national territory” (Art. 5). In this logic, migration flows are not streams to be stopped, restricted, or cut off, but rather represent opportunities for development and cultural diversity. Though public security remains a major theme throughout the law, it is tempered by an equal emphasis on human rights and the legal and civil rights of migrants. Thus, migration policies under the new law should focus on “orienting and ordering the dynamics of immigration and emigration in such a way that they contribute to national development” in an economic, social and cultural sense (Art. 6).

A focus of the new law is not only integration but the building of strong links between Costa Rica and its emigrants abroad (Art. 6). The explicit need to maintain links with emigrant communities is more than just a shift away from repressive border control measures. It signifies an acknowledgment that Costa Rica is not simply a receiving country – bombarded by less fortunate migrant neighbors – but is also a country of emigrants, whose development depends on migration flows both in and out of the national territory. This entails an understanding that the alignment of national bodies with their respective national territories is impractical and unrealistic under current economic and social conditions in the region, and recognizing not only Costa Rica's dependence on migrant labor, but also the migration of Costa Ricans abroad.

In framing migration as an issue of development and integration, the 2009 law mutes some of the rhetoric of criminalization so prevalent in the 2006 law. The final text contains no list of supposed crimes of potential immigrants, and it contains clauses that stipulate the sanctions will be imposed in the case of violations, rather than presuming the guilt of immigrants (See Art. 31). It also imposes a 24-h limit on immigrant detentions (Art. 12), which under the 2006 law could be indefinite. Further, the new law explicitly protects migrants from violations of their human rights. Sex trafficking and the trafficking of minors are explicitly mentioned, not simply as crimes committed by foreigners, but rather as crimes from which vulnerable migrant populations must be protected by the Costa Rican state (Arts. 18; 249).

And yet, rather than signify a whole-hearted shift from restrictive immigration policy to a focus on immigrant integration, the new law represents the simultaneous if contradictory incorporation of integration with the repressive and exclusionary elements of the 2006 law. In this, the law reflects a growing trend of the increasing correspondence between restrictive orientations and integration programs for migrants in host countries around the world (Cornelius and Tsuda, 2004; Calavita, 2005). Indeed, in some ways, the integration framework deepens and expands the securitization of migration in the new law.

First, the rhetoric of integration serves to legitimize the 2010 law, even though it leaves intact a number of troubling elements from the earlier 2006 law. For example, although technically the new law limits detention times to 24-h, it also expands the discretionary power of immigration authorities; the DGME may extend detentions without limit (Arts. 12. 31; Sandoval, 2013). Sandoval (2013, 1434) notes that the expansion of police authority and power represents not only a troubling development in immigration law in Costa Rica and other countries (DeGenova, 2005; Inda, 2006) but also “the erosion of the rule of law through the greater discretion granted to police authorities” in other realms, the consequences of which “could be far-reaching.”

Further, the concept of integration in the new law has been limited to legalization or regularization – indeed, the two are nearly interchangeable in the law, which calls for “the regularization and integration of immigrant communities in Costa Rican society” (Art. 6). However, at the same time, the law retains high application fees instituted in 2006, particularly a $100/month fine for each month a migrant has been in the country in “irregular” status. But the average Nicaraguan migrant only earns somewhere between $160 as a domestic worker to $390 in certain construction jobs (Leon Segura, 2012). Further, applicants must present a number of documents, emitted and authenticated in their home country, all of which can cost hundreds of dollars. For Nicaraguans, this requires a trip back to Nicaragua, wages lost for missing work, and, often, losing their jobs because of these absences. These incredible costs relative to income coupled with the expensive and complicated process of obtaining documents and applying for residency make the law a bureaucratic labyrinth that is difficult for low-income Nicaraguan migrants to navigate. Thus, though in its framing the law appears to eliminate the differential treatment between poor immigrants and potential investors, in practice, it reinforces these differences.

By linking integration to legalization and tying both to a series of bureaucratic and administrative requirements migrants must fulfill, the new law refashions the 2006 law's focus on security and territorial sovereignty into a concept of security within a neoliberal framework of personal responsibility. Here, immigration policy becomes part of a larger project of governmentalization in Costa Rica aimed at the “responsibilization of the subject” (Inda, 2006, 18) and the dismantling of the social welfare state. Migrants must act as responsible/ethical subjects to gain recognition and legal status from the state. So, for example, the 2010 law requires migrants to pay into the social security system (Art. 7, 78, 97), but does not impose new requirements or enforcement measures to ensure that employers fulfill their obligations to pay into the system. Much like IRCA in the U.S., which required employers to verify immigrants’ legal status by checking their documents, but included a “good faith” defense that allowed employers to avoid sanctions by making migrants responsible for presenting documents, the Costa Rican law puts the onus of compliance on migrants rather than on those who hire them (Coutin, 2003; DeGenova, 2004).3 This link between integration and legalization, then, makes individual migrants responsible for their legal status without recognizing the structural and institutional barriers that block access to both legal status and social integration.

For example, the requirements to pay into the social security system are such that migrants cannot do so without having residency, but they cannot gain residency without paying into the system. An immigration lawyer, who works for a national immigrant advocacy organization, explained to me, “And it's not so simple to go to the bank [to pay the fee] because they don't have social security. The law before 2010 didn't require it, but starting in 2010, the law demands [applicants have] social security. So, they arrive at the bank and [bank employees] tell [the migrants] that they can't [pay] because they don't have social security. And when they go to the social security office, they say [the migrants] can't [get social security] because their residency is expired.” As each step in the process requires migrants to have fulfilled other requirements, a lack of coordination between banks, the social security institute, and DGME offices has created unresolvable conflicts in the process of obtaining residency.

However, this confusion between immigration offices, banks, and social security agencies, serves not to weaken state control on migration, but to disperse the production of knowledge and government of migration across a range of governmental and non-governmental institutions and actors. As a project of governmentalization, the 2010 law represents a disarticulation of the analysis and management of migration from the formal apparatus of the state. The National Migration Council, while still headed by the Ministries of police and public security, now includes the ministers of National Planning and Economic Policy; Health; and Education (Art. 10). Most importantly, the Council must now include two representatives from civil society organizations with links to migration issues, named by the Ombudsman Office (Art. 10).

Such comprehensive management of migration requires comprehensive information about migrant populations. Thus, the law requires a large range of institutions, including public universities, to contribute technical information on immigration, emigration, the population's characteristics, and needs (Art. 8). Instead of reports about the “capacity” of the health and education systems to withstand the pressure of migration streams, under the new law, these reports should detail “the demand in services, and compliance of employer contributions, in the case of the contracting of foreign workers, and the voluntary insurance of independent workers” (Art. 8). The planning process demands data that details the characteristics of migrants, demands on and capacities of state institutions and services, as well as contributions of both national and foreign workers and employers to the national insurance system. The law thus seeks to render the social landscape, inhabited by both citizens and immigrants, visible, knowable, and manageable. Finally, the law requires public institutions to “establish programs and strategies that permit the realization and execution of public migration policy defined by the Executive Branch” (Fonseca Vindas, 2007; Law 8764, Art 2). Because the regulation of migration is no longer envisioned in terms of entrances and exits, it can (and must) now be incorporated into a diverse set of institutions that participate in the project of governance of migrant and national populations.

In the expansion of migration management to a range of institutions, the focus on the optimization of national development, and the responsibilization of migrants, the 2010 law transforms the focus on security and sovereignty in the 2006 law into a framework that understands security as biopolitical – that is linked to the well-being of the nation – in a neoliberal framework that prizes market rationalities and individual responsibility. The 2010 law aims to produce certain kinds of legal subjects who can be socially, economically, and legally incorporated into the national body.

This new security project is part of a larger transformation of government in Costa Rica, characterized by the dismantling of the social welfare state, introduction of market rationalities, and increased policing and militarization. In Costa Rica, the dismantling of the social welfare state and emergence of what Inda (2006, 12) calls the “post-social state,” has displaced the responsibility for dealing with the need for security, health, and welfare onto individuals. Indeed, it is this very dismantling – the consequent crises in the healthcare and education systems – for which Nicaraguan migrants have been blamed in Costa Rica (Sandoval, 2004). This displacement, then, demands the creation of ethical subjects tasked with ensuring their own security and welfare (through the market) and the displacement of governmental activities from the formal government apparatus. The government's role, then, becomes managing these ethical subjects and policing those migrants who do not or cannot fulfill their responsibilities. The 2010 law, then, retains policing and detention measures – “anticitizenship technologies” (Inda, 2006, 21) precisely to contain the threats posed by irresponsible subjects. Integration and security are thus not mutually exclusive or even contradictory framings. Rather, the integration framework mutes some of the hostility of the policing and detention measures in the 2006 law, while retaining expanded police powers for migration authorities. Further, discourses of integration reinforce the security framing, by expanding it across a range of institutions and making migrants themselves responsible for ensuring their legal status and other public institutions responsible for managing the impact of migration on the nation. Indeed, the dispersion of responsibility for reliable data on immigration among various public and state agencies risks solidifying this security focus across a wide range of social institutions.

Implementation: Contesting Costa Rica's Migration Law

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

Thus, although the language of the newly passed law represents a marked break with the repressive tone of the 2006 law, migration activists and academics are still critical of its achievements in light of implementation. Although the new law incorporates new perspectives on human rights, details responsibilities of protecting migrants from crime and especially trafficking, and recognizes the cultural diversity that migrants bring to the country, it does not change the fundamental orientation toward national security. Fonseca Vindas (2007) cautions against “the seductive employment of a more inclusive language and the incorporation of notions of inter-culturality and human rights” that may not materialize in the implementation.

Indeed, for the most part, the law's promise of integration has not materialized; although between 2008 and 2010, when the 2006 law was in place, numbers of residency applications continued at a steady pace, in 2011, when the new law came into effect, applications decreased by half (Fonseca Vindas, 2013; Press Conference, 2012). This reflects not a decrease in immigration but a decrease in the number of people applying for legal status. In other words, an effect of the new law has been increased illegality for migrants rather than integration.

And yet, the reform process has widened the legitimate discursive field, creating political opportunities for contestation and argumentation among new actors that were previously unthinkable. In September 2011, an alliance of activists and academics challenged the constitutionality of the law's most repressive and punitive measures in the Costa Rican Supreme Court (Acción de inconstitucionalidad 2011). In December 2012, the Court rejected the challenge, reaffirming migration authorities’ powers of policing, including the authority to extend the 24-h detention period and confiscate identity documents. (Poder Judicial de Costa Rica, 2012; Resolucion 201217060, 2012). Despite this setback, the organizations and actors involved in the legal challenges continue to work collectively toward new interpretations of the 2010 law. Indeed, before the writ of unconstitutionality was ruled on, advocates argued that costs for documentation should be reduced and were able to get the DGME to agree to their suggestion to extend the validity of documents so that migrants would not have to renew them annually (Sandoval, 2013). Though the impact of advocates’ legal and policy influence may be small at the moment, these experiences represent important gains in legitimacy in policy circles and state institutions, which they are using to urge further reforms both of the law itself and of the regulations that guide implementation.

However, it seems unlikely that advocates’ and academics’ call for another comprehensive immigration reform will materialize. Instead, like in the U.S., we see a move toward executive decrees, administrative actions, and other temporary responses through which policy is created, interpreted, and implemented. In 2012, as President Obama introduced Delayed Action for Childhood Arrivals (DACA) in the U.S., the DGME announced a series of “transitorios,” or temporary measures that provided a temporarily streamlined process for certain immigrant groups including, among others, migrants who arrived as children.4 As a measure aimed at integration, the transitorios nominally provided a way for undocumented migrants to regularize their status without paying higher fees, thus creating an opportunity for large numbers of Nicaraguans to gain legal status. However, the poor publication and dissemination of the program and lack of coordination among government agencies involved created confusion and uncertainty that replicated the lack of coordination and confusion of the original 2006 law. Although the programs offered lowered fees for applicants and excused migrants from paying fees for changing their migration status, measures designed to make legalization possible for low-income migrants, those fees had not been approved by the Ministry of the Interior, which collects them.

In other words, there are a plethora of directives under these temporary measures, but they do not follow normal legal or policy channels, and there appears to be little communication among government ministries and agencies. Further, some migrant advocates noted that migration officials had distributed information on the 4th “transitorio,” for domestic and agricultural workers at meetings with construction workers and others, who are ineligible for the program. Further, the category that provides legal status for childhood arrivals, the elderly, and those with disabilities provide a special humanitarian condition, not residency. This status does not allow such applicants to work (an important consideration for young adults who arrived as minors) and can be revoked. It is unclear whether or how such categories would be renewed when their initial period expires.

In effect, the lack of coordination, the creation of thousands of applications that cannot be resolved because of lack of agreement on fees and fines, and the creation of “special categories” have effectively created a series of “black lists” that identify the names and exact addresses of undocumented migrants, the majority of whom are Nicaraguan. This concern over “black lists,” expressed by a number of migration activists and immigrants themselves reflects their preoccupation with the original 2006 law's repressive measures and their distrust of the new framings of the 2010 law. Indeed, it is the lack of comprehensive, coherent regulations that justify the continued reliance on both temporary administrative measures and policing activities.

As the temporary measures ended in November 2012, academics, activists, and migrants have been holding their breath, waiting to see what the ultimate consequences will be. Will deportations increase now that migrants have, nominally at least, been given the opportunity to get their documents in order and status legalized? Will the applications opened in the Department of Migration be resolved or will the lack of coordination among government agencies continue to haunt the residency process for these applicants?

Conclusion

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References

If the rapid pace of immigration reform points to the urgency of defining and addressing immigration problems in Costa Rica today, the resulting 2010 law and the problems with its implementation represent a prime example of how immigration receiving countries around the world simultaneously have promoted integration while solidifying a focus on security and policing. As the Costa Rican case also shows, these are not uncontested processes. Rather law-making is a fraught process that extends beyond drafting legislation to implementation and demands for reform. As the growing legal skills of Costa Rican academics and activists show, when we think of law as “undetermined struggle” (DeGenova, 2004), it opens up the possibility of changing the terms of the debate and the framing of policy issues. In Costa Rica, it remains to be seen whether activists’ challenges to the constitutionality of the law or outcry over the temporary measures will be able to shift the policy focus further and whether these alternative framings will gain wider purchase in the public imaginary.

However, the case also points to troubling developments in immigration law more generally. The contradictory framings of integration and security have served to reinforce migrants’ marginalization, exclusion, and vulnerability in two ways. First, by linking integration to legalization and making migrants responsible for complex, institutional processes of documentation and residency, the integration framing legitimizes a law that, in effect, makes both legalization and integration more broadly envisioned more difficult for low-income Nicaraguan migrants. Second, through the incorporation of broad police and administrative powers to address the security threats that migrants pose to the nation, the 2010 law retains the earlier law's most punitive measures. Further, if the present analysis of the competing framings of immigration in Costa Rican law provides insight into the political rationalities at work in crafting law and policy, this combination of security and integration (Cornelius et al., 2004; Calavita, 2005; Inda, 2006) points to broader transformations in government.

In the double shift to creating ethical subjects and dispersion of governmental activities across a range of actors and institutions, the kind of security outlined in the 2010 law represents a major shift in not only the rationalities, but programs and technologies of government (Inda, 2006). Indeed, the law points to a more general shift toward policing and militarization and away from provision of security – in terms of welfare – for Costa Ricans. These changes are visible in the political apparatus of the DGME itself. Kathya Rodriguez, who until 2010 was an official in the Costa Rican Ombudsman, and the director of the Special Protection area of that institution, which dealt with migration issues, is now the director of the DGME. But Mario Zamora, who in 2006 was the head of the DGME, is now minister of Governance and Police, the ministry charged with ensuring public security. The ever-deeper incorporation of police and repressive measures into Costa Rican society writ large should be of special concern in a country where the absence of a national military has been a point of national pride and a fundamental element of national identity.

But it also highlights points of tension in the rule of law beyond Costa Rica. Elsewhere, as in Costa Rica, administrative decrees and temporary measures have become important instruments not only in creating ad hoc migration policy but in governing more generally. For example, given the doubtfulness of comprehensive immigration reform passing in the U.S., we have seen more administrative and executive measures, like DACA, that rely on administrative discretion in immigration enforcement. When such measures allow for legalization and reprieve from the most punitive measures of immigration law, they are celebrated by immigration advocates. But the other side of such discretion is the expanded policing, detention, and enforcement powers under such laws. Given the criminalization of migrants and the resiliency of immigrant threat narratives (Inda, 2006; Chavez, 2008; Gonzales and Chavez, 2012), such discretionary powers can also lead to increased detentions and deportations without much oversight.

Thus, the case of Costa Rica also points to new directions in the study of immigration and law. It highlights how transnational processes of securitization and militarization take place within particular histories of immigration, nationalism, and development. Tracing the form securitization takes in different host countries around the world, and especially within the developing world, provides insight into the multiple processes at work in constructing immigration law. In this case, the process of law-making in Costa Rica points to how security and integration may be not only simultaneous and contradictory framings (Calavita, 2005) but also mutually constitutive processes that serve to reinforce migrant vulnerability. Focusing on the creation of law – from the drafting of legal texts to contests over reform or implementation – provides a window into how such struggles over the meanings of immigration problems, security, and integration are not fully settled questions but rather objects of debates and negotiations. Law-making, broadly speaking then, represents a key site for understanding processes of securitization that result in migrants’ marginalization (Asamblea Legislativa de la República de Costa Rica, 2005, 2009).

Notes
  1. 2

    Translations my own unless otherwise noted.

  2. 3

    Indeed, in 2013, the Costa Rican Congress announced further reform that would reduce the fines faced by employers who hired undocumented immigrants (Ruiz Guevara, 2013).

  3. 4

    The transitorios allowed a streamlined regularization process for 4 categories: (1) those with expired residency; (2) parents of Costa Rican born children; (3) “special categories” of young adults who entered the country as minors, people with disabilities, and the elderly; and (4) agricultural and domestic workers.

References

  1. Top of page
  2. Abstract
  3. “We Have Been Bombarded by Brothers”: Constructing an Urgent Immigration Problem
  4. Sorting out the Good from the Bad: Discourses of Migration in the 2006 Immigration Law
  5. Consultation but not Consensus: Immigration Reform in Costa Rica
  6. Integration and Security: New Forms of Securitization in the 2010 Law
  7. Implementation: Contesting Costa Rica's Migration Law
  8. Conclusion
  9. References
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