ADMINISTRATIVE PROCEDURES AS TOOLS of SELECTIVE IMMIGRATION POLICY by KAROLINA M

Unmasking Chile: Administrative Procedures as Tools of Selective Immigration Policy

Karolina M. Dos Santos

Master’s Thesis

Submitted in partial fulfillment of the requirements for the Degree of Master of Arts in the

Department of Sociology at Brown University

Providence, Rhode Island

May 2019

Acknowledgements

I would first like to thank my advisor, Andrew Schrank, who has given me substantial guidance on this Master’s thesis and has been immensely supportive throughout my time here at Brown University. I would also like to thank my reader, Nitsan Chorev, for pushing me to think through my findings and always having a hot cup of espresso when I needed it most. Many thanks to José Itzigsohn and the members of his writing class (Salma, María, Clare, Jocelyn, Laura, Renetta, Acosta), who always had such constructive comments to help move this thesis along.

Next, I would like to thank my parents, David and Elena, whose determination has always motivated me to keep going despite challenges. Thank you to the Tinker Field Research Grant Program, the Graduate Program in Development, and the Graduate School for funding this research. I also thank Pilo Mella, at the David Rockefeller Center for Latin American Studies (DRCLAS) in Santiago, Chile for welcoming me to the city with open arms and facilitating my research endeavors. And last but not least, I thank James Saintlouis and each one of my interview respondents, who took time this summer to share with me their experience of immigration in Chile.

Table of Contents

List of figures and tables Abstract Introduction 1 Historical Streams of Migration to 3 Chile and the Creation Myth of Mestizaje Contemporary Migration to Chile 5 The scope: Visa restrictions and 6 administrative tools for filtration Diverging opinions on visa policy restrictions 7 and practices of immigrant selection Methods 14 Findings 15 Background checks 17 Visa Restrictions and Visa Policy Change 27 Getting Away with it 34 Conclusion 39 Works Cited 40

List of Figures and Tables

Figure 1: Immigrant groups in Chile 6 Figure 2: Total Number of Granted Visas and 19 Permanent Residencies for Peruvians, 2005- 2014 Figure 3: Total Number of Granted Visas and 21 Permanent Residencies for Colombians, 2005-2014 Figure 4: Deportation Trends from 2005-2014 23 Figure 5: Total number of granted visas and 25 permanent residency applications for Dominicans, 2005-2015 Table 1: Timeline of changes to Chilean 16 migration policy Table 2: Parallelism within Chilean Visa 28 Table 3: Comparing Arguments between the 36 State and Requirentes

Abstract of UNMASKING CHILE: ADMINISTRATIVE PROCEDURES AS TOOLS OF SELECTIVE IMMIGRATION POLICY By KAROLINA M. DOS SANTOS, Degree A.M., Brown University May 2018

A state can restrict and select its immigrant pool through a variety of mechanisms such as immigration bans, quota systems, and most recently—visa policy restrictions. Though immigration bans fell out of vogue after the end of World War II, they are becoming increasingly common in the present day. Buttressing this surge of immigration bans is administrative discretion, which uses changes in bureaucratic procedure to make visa application processes more difficult for certain ethnic groups (Fitzgerald and Cook-Martín 2014). Using Santiago, Chile as a case study I ask, “How can a state restrict and select its immigrant pool without displaying overt discrimination?” Chile represents a country in the Global South, a region in which migration policy is relatively understudied, and more important—it is host to a racially diverse immigration wave that started in 2005 and lasts until the present day. I use primary document analysis of Chilean visa policy and interviews with Chilean bureaucrats to better understand Chile’s administrative discretion. I argue that seemingly innocuous administrative tools such as background checks, visa policy restrictions, and an overhaul of visa application procedures serve to filter out Caribbean immigrants from the immigrant pool. This move to administrative discretion provides an efficient vehicle for immigration control because it restricts immigration while paying lip-service to international human rights norms by the creation of new, more selective visa options. Most important, administrative discretion is difficult to argue against in court because each state has the sovereign right to create its own procedures. This study adds to the literature on migration within the Global South and it documents how states can effectively use administrative discretion to achieve their goals of immigration selection without falling into the pitfall of overt discrimination.

Introduction As the borders to the United States of America and Europe become increasingly restricted, potential immigrants are looking at stable countries in the Global South as possible migration destinations (Abel and Sanders, 2014; Ratha and Shaw 2007; Carette 2013). One of the emerging receivers of this South-South migration stream is Chile. It has become an attractive destination for immigrants from other South American, Caribbean, and Asian countries because it is economically and politically stable (Dittborn and Valdés 2017).

The largest stream of migration to Chile has come from Venezuela. Due to the economic and political upset the country has experienced recently, there has been an influx of Venezuelans within the past three years. Venezuelans have become the largest immigrant group in Chile, with a community numbering over a quarter of a million people (Instituto Nacional de Estadísticas

2018). A close runner-up to the Venezuelans is the Haitian migration chain to Chile. It began shortly in earnest in 2013 and peaked in 2016. Haitians are now the third largest immigrant group in Chile, with a community reaching almost 180,000 constituents (Ibid).

At present, it is common for receiving countries to impose visa restrictions on sending states in an effort to curb immigration (Czaika and Neummayer 2017; Czaika and de Haas 2017;

Fitzgerald and Cook-Martín 2014; Avdan 2012; Joppke 2005). Scholars of migration find that concerns with the potential for immigration is a major factor for the implementation of visa policy restrictions (Fitzgerald and Cook-Martín 2014; Joppke 2005; Ellerman 2007; Salter 2006; Freier

2017; Czaika and Haas 2016; Gülzau et. al 2015; Aygül 2014; Margheritis 2012). If mass immigration were a major factor in the implementation of visa policy restrictions, we would expect to find that the Chilean state imposes a visa restriction on both Haiti and Venezuela. However, this is not the case. The Ministry of the Interior is the bureaucratic agency responsible for both Chile’s homeland security and all matters related to immigration. In April 2018, it imposed a unilateral

visa restriction on Haiti, requiring that all potential tourists from Haiti apply for a visa before visiting Chile (Ministerio del Interior y Seguridad Pública, 2018a). Even though Venezuelans far outnumber any other immigrant group, Chile’s Ministry of the Interior has not imposed any tourist restrictions on the country.

How can a country filter out immigrants without using overt immigration bans? Joppke

(2005) and Fitzgerald and Cook-Martín (2014) find that immigrant bans are declining as a filtration tool because there is a greater possibility of attracting negative publicity and backlash, given the international human rights discourse where overt discrimination is no longer permissible. I argue that despite the decline of bans, ethnic selectivity continues, albeit in new ways that are not overtly discriminatory. I foreground the analysis of soft methods to ethnic selectivity, such as implementing background checks for specific nationalities, creating new visa restrictions and overhauling visa policies, to demonstrate that these seemingly innocuous administrative tools actually function as filtering mechanisms. Just as individuals have modified the explicit, racist language of the past into color-blind, neutral terms (Bonilla-Silva 1997), the nation-state has also adapted its strategy for ethnic selectivity.

To make this argument, I first review the historical immigrant context of Chile to demonstrate how it has painstakingly created its foundational myth of being a homogenous, white nation. Analysis of Chile’s homogeneity myth is important to understand how it selects its immigrant groups in the present day. I then transition into explanations other scholars have offered in understanding why states impose visa restrictions on one another. The examination of visa policy restrictions has traditionally occurred between the Global North and South migration chains, but remains relatively understudied within South-South migration chains. The second part of this paper draws upon an extensive document analysis of Chilean visa policy (and its changes) and

interviews with three key informants that are government bureaucrats in Chile’s Ministry of the

Interior to draw conclusions about the effects of using administrative policy to control immigration influx.

Historical Streams of Migration to Chile and the Creation Myth of Mestizaje

Chile is a settler state bounded by the Atacama Desert to the north, the Patagonia to the south, the Andes in the east, and the Pacific Ocean to the West. Due to its relative geographical isolation, it does not become a major hub of the slave trade (Mellafe 1959) or voluntary, overseas migration (Gutiérrez 1989; Soffia et al. 2009). An integral part of the Chilean state-building project was to increase miscegenation between European immigrants and indigenous people, which both

“whitened” and populated the territory at the same time with mestizos. Across Latin America, national progress and modernization was tied to how successfully a state was able to whiten its population (Loveman 2014: 123). Chile was one of many countries in Latin America that created a national identity of mestizaje (Richards 2013; von Vacano 2014; Loveman 2014). A racial hierarchy undergirded mestizaje, which established those of European heritage at the top, mestizos to follow, indigenous descendants below, Asians close to the bottom, and Afro-descendants at the very bottom (Loveman 2014; von Vacano 2014). Thus, mestizos were the closest position to whiteness—which made them “almost white, but not quite” (Loveman 2014: 155).

In 1845, Chile’s Ministries of Migration and Agriculture created a centralized program that offered land, cash grants, and free healthcare to Europeans, particularly those in the German provinces, to come to Chile (Gutiérrez 1989). It took several years for the program to scale up and come into effect and the first immigrants slowly started arriving in 1855 (Soffia et al. 2009). The first Chilean migration stream lasted approximately from 1865 to 1960. The Chilean Ministry of

Migration favored the Germans because they were thought to have a higher work ethic; other

Europeans who immigrated to Chile were the English, Irish, Scottish, Italian, French, and Spanish

(Gutiérrez 1989). Parallel to the active recruitment of European immigrants was the creation of

Argentine, Bolivian, and Peruvian migration chains to Chile’s mining regions. Unlike the

Europeans, they were not given any grants for immigrating. This intraregional migration far outnumbered the European migration, where Peruvians were the largest group of foreign-born people in the 1885 census (Ibid).

The first step in creating the white-mestizo identity was to bring the European immigrants to Chile and the second step was to erase any evidence of miscegenation with Africans from

Chilean history and identity. In 1883, Chile officially received the Afro-majority city of Arica from

Peru as part of its victory spoils in the War of the Pacific. Even though free and enslaved Africans and their mixed-race descendants lived and actively contributed to major Chilean cities such as

Valparaíso and Santiago as far back as 1536 (Segura 2013; Espinosa 2018; Mellafe 1959), nationalist politicians took advantage of this war victory by associating blackness with Peru (and by implication, treason). Thus, it became impossible to be both black and Chilean (Campos 2017).

This was a crucial moment for Chilean identity because it marks the completion of the creation myth of the Chilean people as homogenous, white-mestizos. This white-mestizaje remains central to Chilean identity of being a homogenous, (almost) white nation. It continues to be the ethnoracial cornerstone of membership.

Chile experienced an increase in migration between 1920 and 1940, but not of Europeans or fellow South Americans. Hundreds of Arab Christian families immigrated to Chile because of their persecution within the Ottoman Empire (Agar 1983). While Arab immigrants were initially considered the bottom of the immigrant hierarchy due to their ethnic origin (Soffia et al. 2009), they were eventually able to assimilate due to their Christian roots and their success as

entrepreneurs in the textile industry (Agar 1983). Migration leveled off during the 1940s and stopped completely during the Pinochet dictatorship in the 1970s, where Chileans became emigrants and political exiles themselves (Soffia et al. 2009).

Contemporary Migration to Chile The historical South American migration chains of Peruvians, Bolivians, and Argentines to Chile recommence in the 1990s with Chile’s transition to democracy (Steffoni 2001). To date,

Peruvians are the second largest immigrant group in Chile (Dittborn and Valdés 2017). The migration influx starts to deviate from its historical, Andean pattern in the early 2000s with the mass immigration of racially diverse Colombian immigrants (Barbieri and Suárez 2017).

Colombians are the fourth largest immigrant group in Chile and given the prevalence of Afro-

Colombians, presents a new phase of voluntary, racially diverse immigration for the country

(Instituto Nacional de Estadísticas 2018).

The trend of racially diverse immigration continues with the uptick of Dominican immigration in 2010 (Galaz, Rubilar, and Silva 2017) and the Haitian immigration which begins in 2013 and reaches its peak in 2016 (Pedemonte et al. 2016). A mass influx of Venezuelan immigrants occurs after the Haitian migration stream, and peaks in 2017 due to the escalating political and economic turmoil in Venezuela (Instituto Nacional de Estadisticas 2018).

Venezuelans have surpassed Peruvians to represent Chile’s largest immigrant group, almost one fourth of all immigrants (Ibid). Figure 1 demonstrates the prevalence of these new migration streams.

Figure 1: Immigrant groups in Chile

NUMBER OF IMMIGRANTS

288233

223923

179338 146582

107346

74713

69959

36994

21147

18185

17959

16337

15837

13528 8975 8515

Source: Department of Foreigners, 2018

Chileans are having particular difficulty adjusting to the racially diverse Colombian

(Barbieri and Suárez 2017), Dominican (Galaz, Rubilar and Silva 2016), and Haitian (Pedemonte et al. 2016) immigrants. As part of its creation myth, Chileans consider themselves to be a homogenous, white-mestizo nation and thus feel threatened by the influx of racially diverse immigrant streams. All three reports by the Department of Foreigners find discrimination on the basis of race as a major impediment to the economic and social incorporation of these groups into

Chilean society. Chile’s Ministry of the Interior imposes visa restrictions on the Dominican

Republic in 2012, shortly after the uptick in Dominican immigration to Chile occurs in 2010

(Galaz, Rubilar and Silva 2016). In April 2018, the Ministry of the Interior imposes visa restrictions on Haiti (Ministerio del Interior y Seguridad Publica 2018a). Despite being the largest immigrant group, Venezuela does not have visa restrictions imposed by the Ministry of the

Interior.

The scope: Visa restrictions and administrative tools for filtration What are ways in which the state is able to restrict and select its immigrant pool? The literature on visa policy restrictions demonstrate that as migration increases, the more restrictive practices become (Freier 2017; Czaika and Haas 2016; Gülzau et. al 2015; Aygül 2014;

Margheritis 2012; Ellerman 2008; Salter 2006). I add to the literature by studying both restrictive visa practices and other subtler mechanisms for filtration such as background checks and the tinkering with visa and legalization procedures. There is evidence of a tendency among countries in the Global North and wealthy countries in the Global South to disproportionately impose visa restrictions on citizens from the African and Asian continents (Freier 2017; Gülzau et. al 2015,

Czaika and Hass 2016). There is less known about how states in the Global South filter immigrant groups that are geographically and culturally proximate, albeit less desirable as immigrants.

Scholars have identified that immigration authorities do exhibit bias toward specific immigrant groups (Rissing and Castilla 2014; Ramji-Nogales 2007; Ngai 2003; Gilboy 1991). What remains to be clarified is the administrative mechanisms countries use to exclude certain immigrant groups by imposing visa restrictions and inciting deportation. Using theories on visa selectivity from mainly the Global North and on past administrative tools Latin American countries have used for ethnic selectivity, I will present scholars’ answers to this question below.

Diverging opinions on visa policy restrictions and practices of immigrant selection Semi-structural characteristics Some scholars argue that the reason governments impose visa restrictions is based on semi- structural reasons relating to socioeconomic characteristics of nation-states. Mau et. al (2016) find that countries in the Global South who have less visa restrictions tend to have higher GDP’s and are more democratic (2016:1203). Host countries are more likely to be welcoming of immigrants who come from countries that are politically and economically similar to their own (Gülzau et al

2015). Stephen Castles (2004) finds that mobility restrictions tend to be placed disproportionately upon countries that are highly underdeveloped and unequal. Encompassing all the previous semi- structural accounts, Neumayer (2006) finds evidence for per capita income, repression of political freedom, and bilateral trade influencing a government’s decision on whether or not to impose visa

restrictions. He also finds that “regional, civilizational, and commonwealth links” have an impact upon visa policies (2006:81). If we follow the semi-structural account, countries that are rich, democratic, and culturally proximate to the destination country are most likely to travel visa-free.

These accounts are useful for thinking of rich countries in the Global North traveling to the Global

South for business or tourism. They are less useful when the case is not as clear-cut, such as in

South-South migrations where both sending and receiving countries might still be transitioning to full democracy and have economic troubles. I aim to clarify this lacunae in the literature by researching how the Chilean government is dealing with the immigration of Caribbean and other

South American immigrants.

Executive decision-making Given that visa policies are inherently bilateral, political projects have an important impact upon visa restrictions. In her study on migration policy within the Mercosur, Margheritis finds that a president’s specific political projects influence a state’s attempt to regulate human mobility

(2012). Presidents have the ability to create and legitimize “ideologically-loaded political projects” through discourse that then gets institutionalized through the domestic and foreign policy

(2012:552). This affects visa selectivity because if a president has a particular political project advocating for (or against) bilateral relations with another country, it is possible to start the process of eliminating (or enacting) visa restrictions. For example, former president Rafael Correa of

Ecuador needed to uphold his image of being a promoter of human rights for both emigrants and immigrants. Thus, he unilaterally lifted all visa requirements for entering Ecuador without consulting the congress or his own political party (Freier 2017). These presidential decisions, such as the Trump ban against Muslims in 2017, are relatively short lived because they warrant both domestic and international attention. Both in the Correa and Trump case, the programs did not reach their ultimate goals because they were ultimately blocked by pressure from opponent groups.

Geopolitics Laube and Heidler (2016) and Aygül (2014) take the focus away from the state and into broader, geopolitical arrangements. Studying Turkish visa policies, the latter finds that Turkey embarked upon restrictive visa policy to its longtime regional partners and allies pending possible entrance to the European Union (EU). Once that possibility of admission was dashed, Turkey reverted to its original stance of maintaining open borders with Eastern Europe and other Middle

Eastern countries, much to the chagrin of EU member states (Aygül 2014). Using a revised world systems theory framework, Laube and Heidler (2016) take an isomorphic approach, arguing that countries can be classified into specific groups and their individual visa policies tend to follow the leader of the groups.

Fitzgerald and Cook-Martín turn the isomorphism concept on its head. They argue that formal ethnic selectivity on the basis of race was not eliminated by strong democratic states in the

West that then diffused this policy to the rest of the world, as argued by Joppke (2005). Rather, the geopolitical banding of weak states in Latin America through transnational actors (namely, the

United Nations) were responsible for pressuring the United States and other strong nations into removing race and ethnicity as outright selection tools for state membership (2014: 30). The repercussions of getting caught performing overt ethnic selectivity, a practice that has fallen out of fashion given the international condemnation of any form of discrimination, would mean embarrassment on an international stage (Fitzgerald and Cook-Martín 2014: 345). Thus, geopolitics is crucial because it creates the incentive for states to filter their immigrant populations through seemingly innocuous policies and superficially neutral language rather than opting for the hardline policies of the past.

Until now, the literature (Joppke 2005; Fitzgerald and Cook-Martín 2014; Loveman 2014) has focused on analyzing the formal methods of ethnic selectivity. Assuming that geopolitics is a

constraint on a state’s domestic immigration policy, I argue that the state has evolved its practice of ethnic selectivity from formal bans to subtle filtration mechanisms through administrative practices. I argue that it is necessary to foreground the analysis of soft methods of selectivity in order to better understand the state’s practices.

Administrative practices A subtle manner in which to achieve immigration goals is by delegating tasks to the bureaucratic apparatus, which tends to be less public than a unilateral presidential decree. Studying differences in Swiss and German guest-worker programs, Ellerman (2013) finds that the degree to which bureaucratic authorities are insulated from the public and the executive explain the variation in immigration policy (2013; 2008). If bureaucratic authorities are more insulated from the public and the executive, the visa restriction process becomes much more selective because bureaucrats can impose visas and deny visa applications, achieving their restrictive migration goals without having to respond to public outcry (Ibid).

Fitzgerald and Cook-Martín term this bureaucratic insulation from the public

“administrative discretion,” and they find that it is one of the most common techniques for veiled ethnic selection (2014: 35). Using historical analysis, they find that Brazilian diplomats did not issue visas to African-Americans in the 1920s on the basis of race. The mechanism through which they achieved this ethnic selectivity was by creating a narrative of political undesirability, citing that African Americans were likely to be followers of Marcus Garvey and thus upset the racial democracy in Brazil through their black nationalist politics (2014: 274). The gap between superficially neutral language and selective practices is also analyzed. In 1938, Brazilian diplomats pledged their full support to help Germany and Austria deal with their urgent Jewish refugee problem. In practice, Brazilian bureaucrats denied visas to Jewish foreigners who were suspected to be refugees and not tourists. Additionally, bureaucrats specified that eighty percent of the

refugees had to be agricultural workers—an employment that European Jews were historically excluded from and thus one in which they were underrepresented (2014:288). This gap between rhetoric and practice has been studied by Arcarazo and Freier in contemporary Argentina and is still being used as a bureaucratic tool for managing immigrant flows (2015).

Loveman (2014) finds Latin American states were able to hide their African and indigenous origins by using the national census as a whitening tool. Nation-states were able to disappear their internal diversity by subsuming them into a vague “mixed” category. This “mixed” category is crucial because it denoted the ethnoracial foundation for membership of a state (2014: 232). It meant that in order to have full inclusion within the nation-state, one had to be as close to whiteness as possible. Census taking is one example of an administrative tool being manipulated to maintain whiteness. I argue that an analysis of current administrative tools within immigration is crucial because it could elucidate other mechanisms for maintaining whiteness within the nation-state.

Ethnic selectivity There is evidence that an immigrant group’s cultural and ethnic characteristics influence a government’s policy for admission (Freier 2017; Rissing and Castilla 2014; Salter 2006; Wang

2004; Ramji-Nogales 2007; Ngai 2003; Gilboy 1991). Studying the labor certification applications employers filed on behalf of citizens from 190 countries, Rissing and Castilla (2014) find that immigration authorities are more likely to accept applications from Asian origins as opposed to

Latin American origins because of associations with the “model minority” stereotype. Their quantitative data demonstrates positive associations between a labor certification application and its approval rate for applicants from China, Taiwan, and India while predicting a negative association for applicants from Mexico, Brazil, Ecuador, and other Latin America countries (Ibid).

Interviewing Taiwanese passport-holders and travel agencies who submit visa applications on behalf of their Taiwanese clients, Wang (2004) finds that passports trigger hidden assumptions

and cultural stereotypes that immigration officials rely on to make their decision for admittance or exclusion. Wang (2004) speaks to a broader idea of the inherent value of certain (Global North) passports over those from the Global South.

Salter (2006) focuses on this idea of certain types of citizenship holding more worth than other and applies it to the individual. States are able to sort “risky” and “trusted” travelers away from their borders through the visa application process using ethnicity, race, gender, and religion to inform that decision (2006: 175). Freier (2017) finds evidence for ethnic selectivity in

Ecuadorian visa policies. By interviewing Ecuadorian bureaucrats in the Ministry of the Interior and analyzing data on net immigration to Ecuador disaggregated by country of origin, Freier finds that the government specifically imposed visa restrictions on African and Southeast Asian countries once immigration from these regions increase over a period of eighteen months (2017).

Internal political agencies and external actors (namely, the United States) pressured then-president,

Rafael Correa, into re-instating visa restrictions on the basis of securitization and risk management.

Ultimately, there seems to be an unstated consensus among government bodies on who constitutes a “risky” traveler. The “risk” wealthy countries in the Global South face is not necessarily related to security threats, but rather the possibility of mass migration of poor citizens from predatory and developing states that are racially, ethnically, and religiously different from the context of reception.

Is liberalism incompatible with racism?

Within this review of the visa policy literature I have shown that semi-structural accounts do not properly account for the diversity of the South-South migration context. The theory of executive decision making as a driver of immigrant selectivity is not plausible because it attracts too much attention to fully implement the goal. The fear of being caught in flagrant ethnic

selectivity could mean geopolitical repercussions and thus presents an incentive for nation-states to discontinue outright ethnic selectivity and switch to subtler forms of immigrant filtration, which

Fitzgerald and Scott-Martín term as “administrative discretion” (2014: 35). Some forms of administrative discretion include discursive policy gaps and census taking. I argue that background checks, visa policy restrictions and the tinkering with legalization procedures are other methods of administrative discretion that contribute to subtle ethnic selectivity.

Joppke (2005) has argued that liberalism is inherently incompatible with racism because there is a moral framework undergirding the democratic system. In his view, racism is a wrinkle within the liberal-nation state that works itself through the mobilization of advocacy groups.

Eventually, democratic states realize (without pressure from transnational advocacy networks or other nation states) that ethnic selectivity is morally reprehensible and they discontinue the practice.

I find Joppke does not take into account the importance of racial hierarchies in building a democratic, settler-colonial state. Joppke creates an analytic bifurcation between European immigrants juxtaposed against a foreign, “other”. He generalizes that these “others” were all treated the same by the European settler. Nakano Glenn (2015) finds that indigenous peoples,

Mexican laborers, and enslaved Africans served different purposes for the colonizer in the United

States and thus were treated differently. The construction of the settler-colonial racial hierarchy precedes the founding of the liberal democratic state. Thus, racial hierarchy is the ethnoracial foundation of the state and the basis of membership (Loveman 2014). The following section discusses the methods I used to understand the administrative methods the Chilean Ministry of the

Interior is using to filter its immigrant pool—along not only racial, but also socioeconomic lines.

Methods

The preliminary findings of this paper are based upon qualitative interviews and document analysis. First, I delved into the project by conducting two months of preliminary fieldwork in

Santiago, Chile. I conducted in-depth, semi-structured interviews with three bureaucrats working at Chile’s Ministry of the Interior. I gained access to this bureaucratic agency through connections with the David Rockefeller Center for Latin American Studies (DRCLAS), an academic extension of Brown University that connected me with two bureaucrats. One of my interview respondents connected me to the third bureaucrat. The interview questions were centered upon their experience working in the Ministry of the Interior, given the radical migration policy changes that had occurred within the scope of a few months. I began each interview asking about the visa restriction on Haitians and the new visa offered to Venezuelan immigrants as a starting point for conversation and allowed them to walk me through the other changes that had taken place.

None of the interviews were recorded, I asked all three participants for permission to take handwritten notes. Immediately after each interview was completed, I typed the fieldnotes and wrote corresponding memos on a computer. All interviews lasted between one to three hours and were coded using Atlas.ti software. My positionality as a doctoral student from Brown University provided me with some cultural affinity with the government bureaucrats I interviewed because they had either participated in American graduate programs, or were looking to do so.

The second method of my research was based on primary document analysis. Andrea,1 one of the government bureaucrats, informed me there was a case submitted to the Chilean Supreme

Court by a group of Congress members that contested the constitutionality of the tourist visa restriction imposed on Haitians. She provided me with the case number, to make it easier to follow

1 All names used in this study are pseudonyms to protect the privacy of the interviewees

the case online, and with a printed copy of the court case. Upon returning to Brown University, I close-read the court case and all of its additional addendums. Additionally, during my fieldwork I had acquired a 2017 hard copy of the Department of Foreigners, “Guide for Immigrants” that detailed the legalization procedures for immigrants. I close-read this document, which is no longer available online, and compared it to the new legalization procedures instituted in 2018. Finally,

Andrea also provided me with the internal government memos announcing the visa restriction on

Haitians and the implementation of background checks for Peruvians, Colombians, and

Dominicans. I close read these official government documents and used empirical data gathered by the Department of Foreigners; available on their website, to draw my conclusions on the effect of background checks on immigrant influx.

Using a combination of document analysis supported by interviews with key informants is a viable method for answering the question, “How can a country filter out the immigrants it does not want when overt discrimination is no longer acceptable?” because it corroborates the experience of the bureaucrats with the physical evidence2 that lead up to the Chilean government’s overhaul of visa and legalization procedures. Interviews were especially useful for this project because observation of confidential meetings among bureaucrats was not possible (Lamont and

Swidler 2014). Thus, interviewing provided me with a behind-the-scenes look into the workings of the Ministry of the Interior and I triangulated the interview findings with the analysis of both confidential and publicly available government data on visa policies and immigration data. My findings will be discussed in the next section.

Findings Using both interviews with key informants and primary document analysis, I found that

Chile is starting to select its immigrants using the administrative measures of implementing

2 Official government memos, publications, and data

background checks, implementing new visa restrictions, and changing their legalization procedures. Other, more overt, methods of selectivity include a government-subsidized plan of voluntary “return” specifically geared toward Haitian immigrants to return to their country of origin. All three informants agree that deportations of undocumented immigrants will occur after the amnesty policy is completed.3 Table 1, at the end of this section, chronologically organizes the changes in Chilean migration policy.

This turn to administrative discretion has not gone unnoticed. Chilean members of

Congress have contested this new practice of selectivity by submitting a case to the Supreme Court that questions the constitutionality of the tourist visa imposed on Haitians. Their case is struck down because the Supreme Court finds that the Ministry of the Interior is not banning Haitian tourists from coming to Chile outright—even though the tourist visa functions in practice as a filter. These findings represent the move away from overt selectivity, such as immigration bans, and to administrative discretion that can stand court scrutiny.

Table 1: Timeline of changes to Chilean migration policy

Change 2008 Background checks on Peruvians May 2012 Background checks on Colombians and Dominicans September 2012 Tourist visa restriction on Dominicans

April 9th, 2018 Tourist visa restriction on Haitian immigrants; migration policy overhaul4

May 17th, 2018 Supreme Court case investigating the constitutionality of the visa restriction for Haitians. July 19th, 2018 Court case resolved in favor of the State

3 The Chilean government does not refer to this as an amnesty. It calls it the “Process of Extraordinary Regularization”, that allows all immigrants who entered Chile before April 8th, 2018 to apply for a one-year temporary visa, renewable up to one year. The registration for that amnesty ended on July 23rd, 2018. Immigrants who entered Chile after April 8th 2018 or those who never registered for the policy will be subject to deportation (Ministerio del Interior y Seguridad Publica 2018b). 4 Changes to migration policy include: new family reunification visa for Haitians; creation of democratic solidarity visa for Venezuelans; background checks for all immigrants; amnesty policy; elimination of visa for work reasons; creation of Opportunity and Orientation visas. It should be noted that while specific policies were changed, the original 1974 migration law remained intact.

Background Checks The 2017 “Guide for Immigrants,” issued by the Department of Foreigners explicitly states,

“When realizing [immigration] procedures by mail, do not send original documents: instead, send a photocopy signed by a notary (with the exception of the certificate of criminal record required of the citizens of Peru, Colombia, and the Dominican Republic which should be original)” (2017:

27). It is important to note the use of the term “required” and the emphasis on having original documents instead of photocopies. Both serve as a literal marker of difference between the group of immigrants (Peruvians, Colombians, and Dominicans) who must prove their innocence in order to access visa and permanent residency applications and those who can directly apply for documentation.

What is the purpose of requiring these three nationalities to submit the original documents of their criminal record? I argue that these requirements coincide with an uptick of immigration from these groups and are used as an administrative tool to curb immigration. The effects of these administrative tools are mixed, due to geopolitical constraints, as seen in the cases of Peru and

Colombia. The case of the Dominican Republic represents a successful curbing of immigration because it does not hold geopolitical clout in the region, thus Chile can impose harsher restrictions without political and economic repercussions.

The advent of criminal background checks has deep roots in Chile’s migration law of 1975.

The Migration Law of 1975 makes it mandatory for the Ministry of the Interior to request the

National Police to perform background checks of each individual applying for a temporary visa or legal permanent residency (Ministerio del Interior y Seguridad Publica 1975). According to the law, the National Police have fifteen days to conduct the background check for all foreigners to then submit their results to the Ministry of the Interior. Individuals with prior criminal records in

their home country, or those who have committed crimes in Chile will not be approved for a visa and will be subject to deportation (Ibid).

Despite the fact that the National Police are specifically named as the entity responsible for performing the background checks, in 2008 Chile’s Department of Foreigners issued a notice that required all Peruvians in Chile to procure their consulate and provide certification of their background checks as part of their documentation process (Departamento de Extranjería y

Migración 2008). The Department of Foreigners, National Police, and Peruvian Ministry of

Exterior Relations outsourced the burden of background checks, switching the administrative burden from the Chilean state and onto the backs of individual Peruvian immigrants.

The Chilean National Police works with Interpol’s I-24/7 Global Communications system to conduct background checks on all immigrants applying for documentation (Policia de

Investigaciones). The I-24/7 system was developed in 2003 (Parliament 2004) Within this system, individual countries allow Interpol to access their criminal records data to create a streamlined, international criminal record database. When conducting a background check of foreigners, a country can access the Interpol system directly, without going through foreign governments, to ascertain whether the foreigner has a criminal record in other countries. In 2008, Interpol informs the Chilean National Police that Peruvian national law has changed and Chilean police may longer have access to Peruvian criminal records. Subsequently, the Chilean Ministry of Foreigners and the National Police requires all individual Peruvians to go to their consulate, request a background check, and pay the Peruvian consulate’s mandatory fee for this service (Departamento de

Extranjería y Migración 2008).

Given that Peruvians represented the largest immigrant community in Chile at the time of this notice, there is an incentive for the Peruvian Ministry of Exterior Relations to require their

diaspora to use the consulate and pay for their background checks.5 Thus, the background checks represented not only a potential cash windfall for the Peruvian government but also a concern for the Chilean Ministry of the Interior due to the exponential increase in Peruvian immigrants. The

Peruvian Ministry of the Exterior had to act fast in order to capitalize their gains and the Chilean

Ministry of the Interior had to curb the exponential migration pattern. The result is the 2008 notice mandating that all Peruvian immigrants pay for their own background checks.

Figure 2: Total Number of Granted Visas and Permanent Residencies for Peruvians, 2005-20146

63,723 56,517 47,260 49,645 48,519 38,036 40,633 40,685 32,649 25,874

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Source: Departamento de Extranjeria y Migración 2016

Placing the administrative burden on the individual, in addition to implementing a fee for conducting a background check, raises the barrier to accessing visa and permanent residency applications. Is there a decrease in the number of approved visas and permanent residencies within the Peruvian community after 2008? The short answer is: yes. The data presented in Figure 2

5 In 2007, there was a total of 63,723 visa and permanent residency applications that were approved. This is a ninety- five percent increase in applications from the year before (See Figure 1). Not only does this present essentially a doubling of the Peruvian immigrant community for the Chilean Ministry of the Interior, it also presents an opportunity for the Peruvian state to capitalize from its significant diaspora in Chile. The Peruvian consulate in Chile charges twenty-five American dollars per background check (Consulado General de Perú en Santiago 2017). If you multiply this fee by the number of visa and permanent residency applications issued in 2007, this represents over one and a half million dollars in potential revenue for the Peruvian state. 6 Graphic created by author; data taken from Departamento de Extranjería y Migración. The Department of Foreigners publishes the data, but it is disaggregated by visa category. I added the visa categories together to create an aggregate to observe the total number of visas granted to the Peruvian community in Chile.

demonstrate that while approved documentation processes actually increase by almost twenty percent after the implementation of individual background checks for Peruvians; the overall trend is a leveling off in approved visas and permanent residencies. The number of granted applications never surpass the 2007 peak and are consistently level off at close to fifty thousand from 2010 to

2014.

Given the limitations of the data, I cannot make any causal explanations between the imposition of Peruvian individuals paying for their own background checks and the gradual leveling off of granted applications. A counterfactual could be that the Chilean Ministry of the

Interior circulated an internal memo; unavailable to the public, that set a cap of fifty thousand granted applications for Peruvian immigrants. Nonetheless, the key point remains: administrative actions comes on the heels of the exponential increase of Peruvian immigration in 2007.

The Chilean Ministry of the Interior cannot impose visa restrictions on Peruvian nationals because it is a powerful geopolitical ally. Both countries are founding members of the Pacific

Alliance, an international trading block founded in 2011.7 Thus, it must settle for implementing administrative mechanisms, such as raising the barriers to accessing visa and permanent residency applications. The implementation of background checks for Peruvians sets the precedent for using administrative mechanisms for curbing the migration processes of geopolitical political allies. The tactic is implemented again on Colombian and Dominican immigrants in May of 2012. I will discuss the implementation of each, in turn.

As demonstrated in Figure 3, Colombian visa and permanent residency applications slowly pick up throughout the early 2000s and then increases significantly after 2010. Currently,

Colombian immigrants represent the fourth largest immigrant group in Chile. Due to Colombia’s

7 The founding countries within this block (Chile, Peru, Colombia, and Mexico) are working together to move closer to “the free mobility of goods, services, capital and people” (Alianza del Pacífico).

publicized history with the production and distribution of narcotics, there is a stereotypical association between Colombian immigrants and narcotrafficking in Chile (Barbieri and Suárez,

2017). This stereotype holds important repercussions for how the Chilean Ministry of the Interior deals with the influx of Colombian immigrants into Chile, associating deportation with criminality—particularly around drug-related offenses.

Figure 3: Total Number of Granted Visas and Permanent Residencies for Colombians, 2005-20148

33,940 30,138

20,876 14,261 7,663 8,910 4,740 5,525 2,136 3,130 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Source: Departamento de Extranjeria y Migración 2016

Similar to the Peruvian case, Chile’s Department of Foreigners publishes a memo that the

National Police cannot access Interpol’s Global Communications system because there are no agreements between Colombia and Chile that allows for an exchange of information. Colombian nationals are now required to visit their local consulate in order to procure and pay for the background checks that are necessary to process their visa and permanent residency applications.

The memo states,

Now, given the document indicated in point one [necessity of a background check for obtaining a visa or permanent residency], the National Headquarters of the Immigration

8 Graphic created by author; data taken from Departamento de Extranjería y Migración (2016). The Department of Foreigners publishes the data, but it is disaggregated by visa category. I added the visa categories together to create an aggregate to observe the total number of visas granted to the Colombian community in Chile.

and the Chilean National Police reported that there is no such agreement between Chile and Colombia [to share criminal record data via Interpol], which prevents access, in this way [emphasis added], to police and judicial information of the country of origin of Colombian citizens who apply for a residence permit or nationalization in Chile. --Departamento de Extranjería y Migración 2012a

Note the phrase, “…There is no such agreement between Chile and Colombia” (Ibid). There is no indication that there was a change in Colombian national law that had allowed Chile access before and then subsequently revoked it. Rather, it states there was never an agreement to share information between Chile and Colombia in the first place.

As noted by Figure 3, the Chilean Ministry of the Interior was granting thousands of visas and legal permanent residencies each year. It begs the question, “If there was no previous agreement to share information between Chile and Colombia, how was the National Police conducting the mandatory background checks prior to 2012?” The term “in this way,” signifies the possibility of other ways to get the information.

It is also interesting to observe that the requirement for background checks occurs simultaneously with a 60 percent increase in granted visa and permanent residency applications from 2010 to 2011.9 The year 2011 is the first significant peak in the granted Colombian visas and permanent residencies since the data begins in 2005. Similar to the Peruvian case, the increase of granted applications in 2011 highlights the rapid acceleration of the Colombian community’s growth and raises a red flag to Chile’s Ministry of the Interior.

Unlike the Peruvian case, the implementation of individuals procuring their own background checks does not present a significant deterrent to the granting of visas and permanent residencies. For example, 2012 to 2013 demonstrates a 44 percent increase in granted

9 From 8,910 granted applications in 2010 to 14,261 applications in 2011 (Departamento de Extranjeria y Migración 2016)

applications.10 Other modifications had to be made. In June 2012, Chile’s Ministry of Justice revises its penal code to include deportation as a penalty for criminal conduct (Ministerio de

Justicia 2012).

The revision to the penal code states the following, “If the person condemned to a penalty equal to or less than five years of prison or probation as a maximum sentence was a foreigner who does not reside legally in the country, the judge, at the request of the party, may substitute the fulfillment of said penalty for the expulsion of the former from the national territory” (Ibid). It is important to highlight that the sentence in question here is of five years or less. A sentence of five years indicates this is either lower or mid-level crimes, such as robbery and drug trafficking charges. The new law further stipulates that the penalty for drug trafficking charges will no longer be subject to community service, but must be faced with jail-time, probation, or deportation

(Herrera, 2016). Andrea11, a key informant from a sub-secretary of the Ministry of the Interior states, “In Chile, committing a crime as an immigrant will almost inevitably result in deportation”.

Figure 4 represents the trend in deportations from 2005 to 2014.

Figure 4: Deportation Trends from 2005-201412

Source: Departamento de Extranjeria y Migración 2016

10 From 20,876 applications in 2012 to 30,138 applications in 2013 (Departamento de Extranjeria y Migración 2016) 11 All names used here are pseudonyms. 12 The y-axis corresponds with number of people deported each year (represented on the x-axis)

The Department of Foreigners finds that the three groups most represented in the deportation statistics are Bolivians, Peruvians, and Colombians (Departamento de Extranjería y

Migración 2016: 188). Both Bolivians and Peruvians experience a decrease in deportation rates from 2005 to 2014; whereas Colombians experience an increase in deportation rates. The Chilean

Ministry of the Interior is deporting an average of 2,500 immigrants each year and there has been a twenty-five percent increase in deportation rates from 2013 to 2014 (Ibid). However, this is still a small proportion in comparison to the total population of Colombian, Peruvian, and Bolivian immigrants which together numbers 477,851 people as of 2018 (Instituto Nacional de Estadisticas

2019). Similar to Peru, Colombia is a country that holds geopolitical clout for Chile. Juan; another key informant, states, “There is an Alliance of the Pacific in place that does not allow the Chilean government to place restriction on Colombian immigrants. They [Colombian narco-traffickers] have installed themselves in neighborhoods in Antofagasta and the state cannot get there. Despite these tangible relations to crime, Colombians have not faced any immigration penalties.”

Geopolitics is a real constraint in the curbing of immigration influxes. Given their mutual membership in the Pacific Alliance, imposing outright migration restrictions for Colombians and

Peruvians would have a negative impact on economic and political relations between these countries and Chile. The tension between accepting unwanted immigration and maintaining geopolitical relations has an effect on administrative policies, raising the barrier to applying for visas and tightening the link between criminality and deportation. Though these policies have had mixed effects in curbing Colombian and Peruvian influx to Chile, it signals to the sending-country governments and their immigrants that this is a reluctant acceptance of unwanted immigration.

What happens when the geopolitical constraint is reduced? The case of the Dominican

Republic demonstrates that states have greater success in curbing immigration from geopolitically

weak countries. Similar to the Colombian case, the citizens of the Dominican Republic are also required to procure their own background checks in May 2012. The Department of Foreigners announces that Chile and the Dominican Republic do not have agreements in place that would permit the sharing of criminal record information via Interpol. As observed in Figure 45 the

Ministry of the Interior has been granting both visa and permanent residency applications to

Dominican immigrants since at least 2005. Thus, the National Police was obligated by law to conduct background checks on this immigrant group without access to Interpol data—indicating there is the availability of other methods. This is also indicated by the same wording used in the

Colombian case, “there is no such agreement between Chile and the Dominican Republic [to share criminal record data via Interpol], which prevents access, in this way [emphasis added], to police and judicial information of the country of origin of Dominican citizens” (Departamento de

Extranjería y Migración 2012b). The demand for Dominican immigrants to procure their own background checks comes slightly after a significant increase in their immigration to Chile, as noticed by the increased in granted visa and permanent residency applications.

Figure 5: Total number of granted visas and permanent residency applications for Dominicans, 2005-201513

4,655 4,117 3,604 3,518

1,956 1,150 679 174 204 350 413 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Source: Galaz, Rubilar, and Silva 2016

13 Graphic created by author, data taken from Boletín Informativo Nº2, Migración Dominicana en Chile created by the Departamento de Extranjería and Migración, (Galaz, Rubilar, and Silva 2016). The Department of Foreigners publishes the data, but it is disaggregated by visa category. I added the visa categories together to create an aggregate to observe the total number of visas granted to the Dominican community in Chile.

There is a seventy percent increase in Dominican immigration to Chile from 2010 to 2011, and a 138 percent increase from 2011 to 2012. Of the three cases that have been examined thus far, the Dominican Republic is the only case that demonstrates a continual decrease in granted visa and permanent residency applications. This is noted by an eleven percent decrease in granted applications from 2012 to 2013 and a twelve percent decrease from 2013 to 2014.

Six months after individually procured background checks for Dominican immigrants are instated, the Chilean Ministry of Exterior Relations issues a unilateral visa restriction on

Dominican tourists. Thus, in 2012 Dominican immigrants are required to submit their own background checks to the Ministry of the Interior and Dominican tourists require a visa to enter

Chilean territory. It is acceptable within the international community to impose a visa restriction and the Dominican Republic does not represent a strategic trading partner or political ally in regional conflicts. Thus, the visa restriction on Dominican tourists was an option for Chile because it would not lead to significant repercussions (Tribunal Constitucional 2018: 45).

The selective effect of these administrative policies has not gone unnoticed within the immigrant community in Chile. There has been an appeal submitted to Chile’s oversight committee14 alleging the requirement of background checks for Peruvians, Colombians, and

Dominicans is discriminatory based on nationality (Controlatoria 2012). The oversight committee struck down the appeal, citing that Peru, Colombia, and the Dominican Republic do not have agreements in place to warrant background checks via Interpol and thus their citizens must individually procure their own background checks (Ibid). As we have seen in the Colombian and

Dominican cases, the Chilean National Police never had an agreement with these countries to

14 Chile’s oversight committee is called the Controlatoria, it is basically a check on the Executive and Legislative branches. It is responsible for “auditing the administration of the State,” by assessing the legality of administrative acts and protecting the correct use of public funds (Controlatoria).

access their criminal records data on Interpol. Yet, the National Police had to conduct background checks on Colombian and Dominican immigrants since at least 2005 in order to allow the Ministry of the Interior to grant them their visa and permanent residency applications.

It is not a coincidence that both groups are suddenly required to conduct their own background checks in 2012, shortly following an uptick in immigration in between 2010 and 2012.

Though Peru actually changed their national legislation preventing Chilean access to their criminal records, I have argued that increased immigration was an incentive for both Chile’s Ministry of the Interior and Peru’s Ministry of Exterior Relations to switch to individually procured background checks. The case of the Dominican Republic, which holds less political clout in the region, represents an example of when administrative measures can be combined with visa restrictions to effectively curb documented immigration. Throughout this section, I have argued the Ministry of the Interior upholds individually procured background checks for Colombians and

Peruvians as a way to signal resistance, in light of geopolitical constraints, to the unwanted immigration of these groups. In conclusion, I have found the Chilean government implements two strategies. For geopolitically weak countries, such as the Dominican Republic, it is more effective to implement tourist visa restrictions to curb immigration influx. For geopolitical allies, signaling resistance through deportation works in conjunction with a “cleaning up shop”: selecting the most educated and trained individuals from the immigrant pool by changing visa policies. These strategies are discussed next.

Visa Restrictions and Visa Policy Changes With the onset of Haitian immigration that picks up in 2013 and exponentially increases in

2016, implementing a visa restriction is a viable strategy for curbing the influx (Tribunal

Constitucional 2018a: 21). What is interesting about the implementation of a tourist restriction on

Haitian citizens is that it occurs in tandem with a “new” visa for family reunification, allowing for

Haitian immigrants in Chile to bring their family members. While effecting barring new Haitian immigrants from entering the territory, the new policy maintains Chile’s discursive commitment to immigrant rights by reuniting current immigrants with their families. This feature of Chilean immigration policy—closing one door, while slightly cracking open another—is a feature I call

“parallelism”. The table below summarizes the parallelism present in Chilean migration policy, where each change to visa policy will be detailed in turn.

Table 2: Parallelism within Chilean Visa Policy Policy prior to 2018 2018 Policy Changes Parallel Policy Tourist Haitians do not need Haitians must present a tourist Haitians can apply for the Family Visa additional visa when entering Chile Reunification visa if they have a documentation to enter spouse, partner, or parent in Chile Chile Changing Immigrants can enter as Option to change visa status once Implementation of Temporary status tourists and change in Chile is eliminated Residence Visa (24 to 48 months) their visa status (to a that can only be applied for prior working resident) later to migration, from your country of origin

Temporary Immigrants who find Temporary visa for work reasons Visa Oportunidades (for working visa for formal employment can is eliminated professionals), Visa de Orientacion work apply for a temporary Nacional, and Visa de Orientacion reasons visa for work reasons Internacional (for students) are created

Though the visa restriction, in addition to other migration measures, were circulated confidentially throughout the government agencies on April 9th, 2018 these changes were not open to the public until about a week later.15 It is important to take note of the opening line of the notice,

“I must inform you that in consideration of the high migratory influx of Haitians toward Chile has resulted in situations of vulnerability, problems of local coexistence, and problems of human trafficking and illicit migrant trafficking, the decision has been adopted to establish the

15 The changes were publicly circulated on April 17th, 2018 (Tribunal Constitucional 2018b).

requirement of the consular visa to the Haitian citizens who wish to visit Chile for motives of tourism…” [emphasis added] (Ministerio de Relaciones Exteriores 2018a). The high influx of

Haitian immigrants is strategically placed as the first issue addressed by the Department of Foreign

Affairs and is considered to be the cause of the aforementioned social ills—including “problems of local coexistence”, which is not explicitly defined in the text. The Department of Foreign Affairs essentially paints Haitian immigrants and their decision to immigrate as responsible for the social problems currently faced by Chile. The logical solution to these problems is to implement a tourist visa restriction that essentially closes the door to entry into Chile.

Where one door closes, another opens—but does it open all the way? Within the same circular, the Ministry of Foreign Affairs implements a new visa for Haitian citizens, called the

“Humanitarian Visa for Family Reunification”. This visa allows Haitian immigrants in Chile who have a temporary visa or permanent residency to bring their spouse, partners, or children (below the age of 24, if they are currently studying). The visa may only be solicited from the Chilean embassy in Port-au-Prince. The document states, “In turn, to regulate the flow of people and to guard their conditions of mobility to Chile, [this policy] is oriented to family reunification”

[emphasis added] (Ibid). The Ministry of Foreign Affairs effectively bars future Haitian immigration to Chile, but it allows current immigrants to bring their family members. Creating a family reunification visa creates the illusion that the door is not being closed to Haitians and supports the discursive commitment to promoting immigrants’ human rights.

In practice, the family reunification visa application is confusing and riddled with obstacles.16 Andrea comments,

I heard that the Chilean consulate in Haiti receives about 200 calls per day from Haitian people asking about how to apply for the family reunification visas but the Chilean

16 As of April 2019, there are no official government publications that detail the application process for family reunification.

consulate officials do not have the answers to the questions: they themselves do not know the intricacies of the policy. It is as if they are figuring out the rules as they go along… [The family reunification policy] has a lot of roadblocks.

One of the roadblocks she mentions is having the Haitian immigrant in Chile mail an original letter of invitation from Chile to Haiti, an emailed electronic copy will not suffice. Ultimately, the imposition of tourist visa restrictions on Haitians in tandem with a simultaneous introduction of a confusing family reunification policy serves to restrict the movement of certain immigrants while upholding an illusory commitment to supporting immigrant’s rights.

The second parallelism present within Chilean migration policy overhaul has been the elimination of a change of status from a tourist to a temporary resident. As noted by the Ministry of the Interior, 71 percent of all temporary residence visas granted in 2017 went to people who had entered Chile as tourists and wished to remain (Ministerio del Interior 2018b: 4). In tandem with the elimination of status changes is the creation of the new visa categories for temporary residency and definitive residency, both of which cannot be applied for while living in Chile but must solicited from abroad. The official migration policy only alludes to the fact that too many immigrants were entering Chile as tourists; only to change their status afterwards, as a reason for the elimination of status change. Interviews with key informants confirm this reasoning. As

Francisco states, “Haitian immigrants enter the country as tourists knowing full well that they are coming to work…The purpose of this policy is to ensure that those who are coming to Chile as tourists are actually tourists and those who are coming to work can immediately have a temporary visa and access to a social security card in order to avoid being put into a situation of vulnerability.”

Ultimately, The Ministry of the Interior does not present the elimination of status changing as a restriction to immigration, but focuses on the implementation of two new visas as adding to Chile’s

menu of visa options. Since Chile cannot implement visa restrictions upon its regional allies who also happen to be major immigrant-sending countries, it does the next best thing by discouraging their immigrants from coming in the first place by preventing their status change from tourists to working residents. Simultaneously, this policy upholds Chile’s discursive, international commitment to immigrant rights by opening up other visa options that are harder to apply for.17

In a third example of parallelism, the Ministry of the Interior eliminates the temporary visa for work reasons18 and implements three new visas—Opportunity, International Orientation, and

National Orientation (Ibid). The Ministry of the Interior found that of the 74 percent of tourists that applied for residency visas, 71 percent of all residency visas were those for work reasons and cites this overuse as the main reason for eliminating the policy.19 The temporary visa for work reasons was overwhelmingly used by blue-collar immigrant workers to find employment in the agricultural and services industries because it did not require a university degree (Departamento de Extranjería y Migración 2017). The elimination of this visa option makes it harder for blue- collar immigrant workers to legalize their status.

The new visa options do not redress this selectivity by education because they all require post-secondary education. The opportunity visa is for “professionals, technicians, and people with

17 As of April 2019, there is no information regarding how to apply for a temporary residence or a permanent residence from abroad. It is possible that one can follow the stipulations for “Visa subject to contract,” which implies a white- collar employment because the Chilean company has to hire you from your country of origin and commit to paying your (and all of your dependents’) transportation back to the country of origin. Additionally, those applying for this type of visa are only eligible if they have technical expertise that Chileans do not possess which would require a university degree (Ministerio del Interior y Seguridad Publica 1975). 18 The temporary visa subject for work reasons and the visa subject to contract are not the same. The temporary visa was acquired by arriving in Chile, procuring formal employment, and signing an official work contract. It does not require a university degree. Once the work contract was signed, it was possible to apply for a temporary visa based on this. The visa subject to contract, as previously explained, originates in Chile’s migration law of 1975. It only employs foreigners who possess expertise not available in Chile and it obligates employers to provide for transportation back to the foreigner’s country of origin in case the contract is terminated. In short, the visa subject to contract is much harder to apply for than the temporary visa for work reasons (Ministerio del Interior y Seguridad Publica 1975). 19 Another important reason is that immigrant applicants were applying for the visa using fake work contracts (i.e. working at companies that did not exist) both knowingly and unknowingly (Tribunal Constitutional 2018a).

accredited trades” which all imply accreditation by post-secondary institutions (Ministerio de

Relaciones Exteriores 2018b). The international orientation visa is for “licensed professionals who possess a graduate degree in one of the 150 best academic institutions abroad” (Ibid). Finally, the national orientation visa is for professional foreigners who have received a masters or doctorate degree by an accredited Chilean university (Ibid). Again, the changes to migration policy restrict the migration of certain types of immigrants—in this case, those without post-secondary education—while superficially promoting a commitment to immigrant’s rights by creating new visa options aimed at highly educated professionals.

There are some measures taken by the Ministry of the Interior that do not have parallels and are not subtle. These include the “Humanitarian Plan for Organized Return” and imminent deportations. The plan for organized return is headed by the Department of Foreigners and it allows immigrants and their families to sign up for free transportation back to their country of origin, with the condition that they may not return to Chile for nine years. To qualify, immigrants must not have any judicial proceedings, court orders, or dependents that they are leaving behind in Chile

(Departamento de Extranjeria y Migraciones 2018a). What is interesting about the measure is that

“…During the first phase priority will be given to Haitian citizens. Foreigners from other countries will be subject to evaluation” (Chile Atiende 2018). The Ministry of the Interior is subsidizing entire flights for Haitian immigrants and their families to leave Chile, but there is no similar program for any other nationality. The Ministry of the Interior is literally selecting its current immigrant pool by offering a free ticket home for Haitian candidates who self-select out of Chile.

The plan began registering participants in October 2018, but there is no empirical data as of yet regarding the number of Haitian immigrants who have chosen this option.

What has yet to occur, but is imminent, are increased deportations for undocumented immigrants. All immigrants who entered Chile before April 8th, 2018 qualify for a one-year visa, which can be renewed for a second year. It is essentially a two-year pass to find employment or some way to legalize one’s status. It is not free. The cost for the visa is ninety U.S. dollars to be paid in one lump sum (Departamento de Extranjería y Migración 2018b).20 Given that blue-collar immigrants without a post-secondary education can no longer legalize their status through employment,21 there is a possibility that two years may not be enough time to find an alternative stable employment within the formal economy or an alternative method of legalization.

All three key informants from the Ministry of Interior I interviewed mentioned that deportations were the next step following the government’s one-year amnesty policy of 2018 (that could be renewed for a second year). Francisco notes an important caveat to Chile’s deportation policy, “We will never do what Trump is doing—separating families. There will not criminalize migration. There will not be jail time [associated with immigration], there never will be and we will not have detention centers. What we are doing is the opposite of what the United States is doing. We are not putting the brakes on migration; we are just ordering the process.” This juxtaposition of the Trump-era immigration politics to Chilean policy highlights an important aspect of this study: states are moving away from the showy demonstrations of sovereignty and moving immigration policy into the black box of administrative discretion. This move to administrative policy provides an efficient vehicle for immigration control because it restricts immigration while paying lip-service to international human rights norms by the creation of new,

20 This is a large sum for some immigrants, especially those who work in the informal economy. For comparison, Chilean minimum wage is approximately 450 US dollars per month (CNN Chile 2019). Thus. 90 dollars represents almost 25 percent of a month’s wages. 21 Immigrants can still legalize their status if they are married or partnered with a Chilean or have children who were born in Chile (Departmento de Extranjeria y Migracion 2018b)

more selective visa options. Most important, administrative discretion is quite difficult to argue against in court as the next section details.

Getting Away with It—the Constitutionality of Imposing Visa Restrictions by Nationality Not everyone agreed that these administrative policies—background checks, visa restrictions, and changes to visa policy—were totally harmless. As previously mentioned, one

Peruvian immigrant sued the Ministry of the Interior for imposing background checks on

Peruvians, Colombians, and Dominicans, but ultimately lost the case (Controlatoria 2012). The tourist visa restriction imposed on Dominicans in 2012 worked seamlessly, without political backlash. This was not the case for the tourist visa restriction imposed on Haitians on April 9th,

2018 (from here on known as Decree 776). Approximately one month after the visa restriction was imposed, a group of Chilean Congress members (from here on known as requerientes) requested that the Chilean Supreme Court investigate whether or not Decree 776 was constitutional.22

The requirentes argued that the visa imposition on Haitians was unconstitutional because it 1) posed arbitrary discrimination, 2) does not clearly justify why it is Chile’s national interest to impose a visa restriction on Haitians, 3) is not based on reciprocal visa requirements, and 4) violates the Constitutional stipulation that all people are equal before the eyes of the law without distinguishing between nationals and foreigners (Tribunal Constitucional 2018b: 7-8; 19).

Throughout the text, the requirentes ask the Court to investigate why Haitians are being singled out for a visa restriction when Peruvians, Colombians, and Venezuelans present greater numbers of immigrants. They ask the Supreme Court,

Why do Haitians come to be a part of the minority group of Latin American countries for whom we ask additional procedures? What relates Haiti with the Dominican Republic and Dominica, and at the same time, separates or distinguishes it—objectively—from Costa Rica or Argentina? We have already seen that the singularizing factor cannot be their numbers, because with this arithmetic logic, the citizens of Colombia, Peru, and Venezuela should also be submitted to a special visa requirement.-- Tribunal Constitucional 2018b: 20

22 Their request for investigation was submitted on May 17th 2018 (Tribunal Constitucional 2018b)

Here the requirentes disband the notion that the visa restriction is imposed solely because of immigrant influx, as Venezuelans have immigrated to Chile in larger number than Haitians, and allude to the presence of other factors. They ask the court specifically, “What relates Haiti with the Dominican Republic and Dominica, and…distinguishes it…from Costa Rica or Argentina?”

Haiti, along with the other Caribbean nations, represent a black-majority, geopolitically weak subset of countries upon which the Ministry of the Exterior can impose visa restrictions without repercussions. Costa Rica and Argentina represent white-mestizo majority nations that have some geopolitical clout and can present future socioeconomic opportunities (Tribunal Constitucional

2018c:45).

The Chilean President, directors of the Ministries of the Interior, and Exterior, and the secretary general (from here on known as “the State”) responded to this investigation request aggressively, stating that there “is no constitutional transgression in any form in the supreme decree

[776]” and that the requirentes “genuinely direct themselves to question the merit or sufficiency of the regulation, not its conformity with the political constitution of the republic” [emphasis added] (Tribunal Constitucional 2018a: 1-2). The state names four of the requirentes and remind them of their past calls to improve Chile’s migration influx, almost as if to say “we fixed the problem, why are you complaining?” Throughout the text, they refer to the requirentes’

“desperation” and “pretext” to instigate an inquiry into whether or not Decree 776 was constitutional (Tribunal Constitucional 2018a: 35-38). Ultimately, the State argues that the requirentes use the inquiry into the constitutionality of the decree as a pretext to judge the normative aspect of imposing a visa restriction on Haitians. They argue that the Supreme Court is not in the position to make normative judgments on legislation. I summarize the arguments supplied by the State, and juxtapose them with those of the requirentes in the table below.

Table 3: Comparing Arguments between the State and Requirentes Requirentes (group of The State (President, Minister of Chilean Congress the Interior, Minister of the members) Exterior, Secretary General of the Republic) Argument 1 Imposing visa restrictions Nationality is not an arbitrary on Haitians is an arbitrary discrimination discrimination Argument 2 Decree 776 does not It is in the national interest to have an clearly justify why it is in immigration that is “ordered, secure, Chile’s national interest to and regular” impose a visa restriction on Haitians specifically Argument 3 There are no reciprocal Chile imposes visa requirements on visa requirements imposed 104 other countries by Haiti on Chilean tourists

Argument 4 The Chilean constitution Equality before the law does not apply finds all people are equal to foreigners before the eyes of the law without distinguishing between nationals and foreigners Source: Tribunal Constitucional 2018a and 2018b

For the purposes of this paper, I will not focus on the intricacies of Chilean constitutional law and will leave aside the discussion of arbitrary discrimination and equality before the [Chilean] law. I will focus on the more generalizable findings of administrative tools such as migratory policy (“ordered, secure, and regular”) and visa requirements. The state does not explicitly answer the requirentes question as to why impose a visa restriction on Haitians and no other immigrant groups. It states, “This is what the inquiry points to: only questions, no arguments” (Tribunal

Constitucional 2018a: 89). To make their case for why it is in Chile’s national interest to have an immigration that is secure and ordered, the State uses statistics from the Ministry of Foreigners to

paint Haitian immigration as increasing exponentially,23 overwhelmingly undocumented,24 and criminal25.

In terms of visa restrictions, the State points to the fact that it is not alone in implementing visa restrictions against Haiti—most of the world’s governments do so already. Furthermore, Chile imposes visa restrictions on 104 countries in addition to Haiti. They argue, “It is not the case to create extensive analysis of this list, but none of these countries have a medium or intensive link with our country…Haiti’s case is not isolated [within the Americas] but is accompanied by a set of countries (Cuba, Dominica, Dominican Republic, Surinam) with respect to which it is not the goal of this Court to examine but situates it as an exception” (Tribunal Constitucional 2018c: 45).

Thus, the Court recognizes that geopolitical arrangements play into the decision of whether or not to impose visa restrictions. Haiti is the newest addition to a list of Latin American countries that must require a visa to enter Chilean territory, but the Court refuses to address the reasons for this— treating them all as “exceptions” to the rule of regional solidarity and cooperation.

Finally, the State recognizes the fact that it has signed numerous treaties supporting international migration. However, they argue that recognizing every human’s right to leave their home country is not the same as recognizing the state’s obligation to accept every immigrant into its national territory (Tribunal Constitucional 2018a: 63-65). They argue that if Decree 776 were to be found unconstitutional, it would lead to a “migration crisis of monumental proportions”

23 The state shows that Haitian migration increased by 6,717 percent between 2014 and 2017. It focuses on this statistic, but does not discuss how Venezuelan immigration has increased by 1,580 percent, Colombian immigration by 480 percent, and Peruvian immigration by 100 percent (Tribunal Constitucional 2018a: 22) 24 The state finds that in 2017, approximately 97.45 percent of Haitians who entered Chile did not leave the country. Between 2016 and 2017, only 39 percent of Haitians applied for documentation. Thus, the State estimates about 61 percent of Haitians are undocumented (Tribunal Constitucional 2018a: 21) 25 Of the 39 percent of Haitians who did apply for documentation, the State finds that many of these visa applications were rejected for presenting false information (specifically, fake work contracts). Haitian immigrants were found to account for over seventy percent of the investigations into fake work contracts (Tribunal Constitucional 2018a: 22)

because it would imply that every Haitian person could be free to immediately travel to Chile and it would put in jeopardy the visa restrictions on the other 104 countries (Tribunal Constitucional

2018a: 76).26 Thus, the State fears an influx of migration—particularly from developing countries in the Global South.

The Supreme Court decides in favor of the State, thus upholding the tourist restriction on

Haitians. It argues that Haitian tourists are not effectively banned and tourists can apply for a visa to enter. The Court finds, “The Decree does not prohibit entry to Haitian citizens. It establishes something else: that those who wish to come as tourists register their passports beforehand, as is referenced in the Law regarding foreigners when it is central to ‘national interest’” (Tribunal

Constitucional 2018c: 13). The method of visa restrictions was deemed rational because “the registration is one of the alternatives to achieve compliance to the migration legislation, in addition to being less drastic, in comparison to other methods contemplated in the law such as the prohibition of immigration…” (Tribunal Constitucional 2018c: 21). Since there is not an outright ban on Haitian immigrants and the decree was deemed constitutional, it is thus legal to impose a visa restriction even if it effectively serves as an immigration filter.

This point was not lost on the dissidents within the court. The dissidents argue, “[The tourist visa restriction] is not ideal because we do not find ourselves in front of a restrictive measure but rather an authentic regulation that prohibits entry into the country…The measure has implied a huge reduction in the Haitian migration, operating in practice as a prohibition” (Tribunal

Constitucional 2018c: 56). Ultimately, neither the dissidents nor I can prove intentionality on behalf of the State to effectively ban Haitians (and Dominicans for that matter) from Chilean

26 The 104 countries are primarily in Asia and the Middle East (37) and sub-Saharan Africa (50), but as previously mentioned, the State argues that it is because Chile does not have geopolitical ties with these countries—not because they are developing countries from the Global South (Tribunal Constitucional 2018a: 14).

territory. What can be observed are the effects of the administrative measures such as background checks, visa restrictions, and visa policy changes to whittle down the migration flows of certain groups. Immigrants themselves have noted these effects and have filed several lawsuits against the state in recent years.27 However, these lawsuits generally tend to go in favor of the State— upholding its selective migration via administrative policies. In conclusion, it is difficult to throw a wrench in the state’s migration policy. As I have shown here, the Tribunal ruled in favor of the

State because it found it was in the national interest to regulate and; by implication, select migration.

Conclusion Up until March 25th, 2019 the Department of Foreigners featured studies on Dominican

(Galaz, Rubilar, and Silva 2016), Haitian (Pedemonte et al 2016), and Colombian (Barbieri and

Suárez 2017) immigrants in Chile. Not all of the findings were peachy: the researchers found ample evidence of race-based discrimination that impeded the incorporation of Dominican, Haitian, and

Afro-Colombians into Chilean life. Entire books on the general state of migration in Chile and reports on deportation statistics were also available on the website. None of the studies remain on the website; in fact, these reports can no longer be accessed by search engine.

The only thing that remains on the site is a study on human trafficking and demographic information on immigration. Ultimately, the pieces for the findings in this study were mostly gathered from publicly available data that has been deleted in recent weeks. This absence represents the State (by way of the Department of Foreigners) tightening its grip on information.

Too much attention has already been drawn to the visa restriction imposed on Haitian nationals

27A Peruvian woman filed a lawsuit that asking Peruvians, Colombians, and Dominicans for background checks was unconstitutional (Controlatoria, 2012). A Haitian immigrant man sued the State, arguing that the National Police did not completely investigate his situation before issuing a deportation order (Tribunal Constitucional 2012a). A Haitian immigrant woman argued a case similar to this (Tribunal Constitucional 2012b).

and even the visa restriction on Dominican immigrants that passed relatively quietly was dredged up in the process.

This occurrence elucidates broader arguments I make within this study: immigrant bans are no longer the primary method of migration control. Rather, migration prohibition and selectivity are being done quietly: through seemingly innocuous administrative action. With the prevalent discourse on human rights and repudiation of discrimination, migration selectivity is being increasingly pushed into the underbelly of the state. Immigration policy is being relegated to administrative discretion that is hard to argue against in court, as noted by the failed lawsuit against the visa restriction against Haitians.

There are limitations to this study, primarily centering on the fact that I cannot prove the

Chilean government’s intention to discriminate against Haitian immigrants. However, it is not necessary to prove intentionality to observe the effects that administrative policies (background checks, visa restrictions, visa policy changes) have on reducing migration inflows. The administrative policies put in place for some immigrant groups—such as Haitians and

Dominicans—are effectively serving to diminish their immigration flows. The Chilean state acknowledges this when it states, “In this sense it is interesting to understand what would have happened if Chile had not decided to impose tourist visas on Dominican immigrants in 2012…the results demonstrate…Chile would have been positioned as the preferred destination in Latin

America for Dominicans” (Tribunal Constitucional 2018a: 63-65). Considering that visa policy restrictions were implemented for Haitians in 2018, there is no data available as of yet to discern whether migration flows have decreased. I hypothesize that this is the case, but will analyze the data for confirmation once it becomes available. While this study features a comprehensive analysis of primary documents regarding Chilean migration policy and its changes, interviews with

key informants were used to highlight the findings within the document analysis. Future studies, such as that of Freier (2017) on ethnic selectivity in Ecuadoran migration policy, could focus exclusively on interviewing Chilean government bureaucrats on their understanding of these administrative procedures to curb immigration flows.

Ultimately, the Chilean government seems to be open to immigrants. This is noted by their

“menu” of options for temporary visas, discursive commitment to international treaties on the rights of immigrants, and their commitment to forging a migration that is “ordered, secure, and regular”. However, this does not mean Chile is open to all immigrants. As Andrea states, “They

[Ministry of the Interior] want immigrants that don’t want to come to Chile—they want Europeans with doctorates. It [the Chilean state] wants to reach 13 percent, but with Venezuelan, not with

Haitian migration.”

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