The Bureaucratic Politics of Legal Reform: Chile as an Exceptional Case By Mayra Feddersen Martinez A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence & Social Policy in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Calvin Morrill, Chair Professor Rachel Stern Professor Irene Bloemraad Fall 2017 Abstract The Bureaucratic Politics of Legal Reform: Chile as an Exceptional Case By Mayra Feddersen Martinez Doctor of Philosophy in Jurisprudence & Social Policy University of California, Berkeley Professor Calvin Morrill, Chair This study is intended to gain a better understanding of the process of law-making in a presidentially-centric governmental structure, where the president holds legislative prerogatives. When a president retains and controls legislative priorities, participation in the making of laws is restricted to those actors who are close to the president or who hold positions of authority inside the executive. And in either case, to those whom they consult or invite to contribute, at their discretion. Despite pervasive regional reform of immigration laws and policies in South America, Chile continues to regulate its own immigration with a statute that dates back to the now-discredited military junta of the 1970s and 1980s. This lack of reform in immigration law by Chile is puzzling considering Chilean reform and participation in a variety of other legal reforms which strengthened the country’s free trade, human rights commitments, strong civil society, and liberal political order. Unlike what has happened in the liberal democracies of the North, immigration policies in Chile have emerged out of bureaucrats’ understandings about the role of the government in the management of immigration and their relative positions of authority and informal social connections inside the governmental structure. More specifically, high-ranking officials desire to maintain control over immigration law and policy, together with their hierarchical position inside the bureaucracy, have restricted mid-level bureaucrats’ attempts for comprehensive legal change at the presidential level. Change has occurred from the middle-out instead of the top-down. In the day-to-day implementation of policies, mid-level bureaucrats have created a reservoir of administrative practices, modifying the status quo and limiting top-officials’ reformist actions. The study builds on an in-depth, ethnographic case study of immigration policies in Chile developed between 2014 and 2016 during which time I spent twelve months acting as an active policy advisor to the Head of the Department of Immigration. I complemented my participant observation with 71 in-depth, semi-structured interviews with central and local public officials, congressional representatives, international organizations, pro-immigrants’ organizations, public interest lawyers, academics, and representatives from Chilean economic guilds. I further supplemented my fieldwork with evidence from official policy and legal documents and other secondary data. 1 To my parents, Patricia and Axel Whose support was always unconditional To my husband and daughter, Felipe and Leonor Who gave me the strength and energy to overcome the dark days i Acknowledgments First and foremost, I would like to thank all the people who made this dissertation possible. For those who believed in me when the project was still a set of ideas, for those who pushed me into making this an extensive research project, and for those who offered insightful comments throughout the different phases of the research, data collection, and data analysis. I am deeply grateful to all of you! I am especially thankful to my dissertation committee, in particular to my dissertation Chair, Prof. Calvin Morrill, who spent countless hours reading through my notes and early drafts. I also want to thank his patience and wisdom in guiding me through this long process. I am also grateful to Prof. Irene Bloemraad’s early interest in my research and for her sharp observations about my field notes and early versions of the dissertation chapters. I also what to thank Prof. Rachel Stern for her perceptive comments about the challenges of pursuing this type of field research and her intelligent suggestions about how best to conduct myself during my prolonged immersion. I am grateful to Prof. Cybelle Fox and to the graduate members of the Berkeley Interdisciplinary Immigration Workshop, in particular to Robin Savinar, Christian Philips, Dani Carillo, Vasanthi Venkatesh, Esther Yoaana Cho and Joy Milligan who provided comments on different portions of my research and who saw me grow as a social science scholar. I am very grateful to the Workshop and especially to the support group which emerged out of it and which was central during the early stages of my writing. In addition, I want to thank Gabriela Hilliger, Carolina Muñoz, Juan Pablo Carvallo, Marco Pfeiffer, Patricio Dominguez, Juan Pablo Atal and Miguel Ordenes of the Chilean Student Association for patiently listening to my ideas and for facilitating a place to present my work. I would like to express my deepest gratitude to my family who have remained a permanent source of emotional and economic support, without which I would not have been able to go through all this process. In particular, I want to thank my husband and friend, Felipe Castro, for believing in me and always pushing me to improve. A special thanks to David Kessler who encouraged me to swim twice a week and who later became an insightful and reliable editor of my work. Lastly, but definitely not least, I am grateful to my study respondents and informants: thank you for trusting me, sparing the time to respond to my inquiries and opening up your hearts and minds to me, but foremost, for sharing your stories, which make up the core of this dissertation. ii Table of Contents INTRODUCTION 1 The Bureaucratic Politics of Legal Reform: 1 Chile as an Exceptional Case 1 CHAPTER TWO 15 The Politics of Immigration: An Organizational Framing Approach 15 CHAPTER THREE 25 An Ethnographic Strategy for Studying Legal Reform And 25 Organizational Framing in the Chilean State 25 CHAPTER 4 54 Frame Inertia: The Persistence of the Security Frame 54 CHAPTER 5 71 Framing Human Rights in Immigration Law and Policy inside the Chilean Government 71 CHAPTER SIX 91 The Participation of Immigrant-Organizations at the Middle Level of the Bureaucratic Structure 91 CHAPTER SEVEN 109 Immigration Reform In A 109 Presidential-Centric Governmental Structure 109 CONCLUDING CHAPTER 131 Bureaucratic Creativity in the Middle Ranks of the Executive 131 REFERENCES 138 Appendix 1. Historical Timeline 166 Appendix 2. Law-making Timeline (2014-2016) 170 Appendix 3. The Interviewees: Who They Are? 171 Appendix 4. Interview Guide 175 Appendix 5. Data Sources and Procedures 180 iii Acronyms AOICH American Organization of Immigrants CIM Catholic Immigrant Service CMIIN Christians for Immigrant Integration CWB Children Without Borders IT Immigrants Together RADIX Non-governmental organization aiming at promoting the rights of children and women RIM Rights for Immigrants WFW Women for Women Glossary of Terms ACNUDH United Nations Human Rights Office of the High Commissioner CCPR Human Rights Committee CED Committee on Enforced Disappearances CEDAW Committee on the Elimination of Discrimination against Women CERSC Committee on Economic, Social and Cultural Rights CMW Committee on the Protection of the Rights of All Migrant Workers and Members of their Families CRC Committee on the Rights of the Child CRPD Committee on the Rights of Persons with Disabilities ILO International Labour Organization IOM International Organization for Migration MCI Ministerial Committee on Immigration MCI Ministry of Culture MDS Ministry of Social Development MERCOSUR Common Market of the South MFA Ministry of Foreign Affairs MH Ministry of Health MJHR Ministry of Justice and Human Rights ML Ministry of Labor NGOs Non-governmental organization NIHR National Institution of Human Rights OAS Organization of American States OECD Organization for Economic Cooperation and Development SACM South American Conference on Migration TCI Technical Committee on Immigration iv UN United Nations UNHCR United Nations for the Protection of Refugees UNICEF United Nations International Children's Emergency Fund v INTRODUCTION The Bureaucratic Politics of Legal Reform: Chile as an Exceptional Case On the afternoon of March 4, 2016, I received a facetime call from Hugo, the head of the Department of Immigration. Did you read the newspaper? He asked. He told me that he was happy that the immigration law draft was being considered among the government legislative priorities. He was not sure about this before. If the newspaper had printed it, it was enough. He felt pleased. Did you speak to your people at the Budget office? I asked. He replied, “things are good now. It is better not to shake anything.” What would happen if the Minister leaves? I inquired. I read in the newspaper that he had some disagreements with the President. In Hugo’s opinion, his departure should not affect the progress of the immigration project. He concluded, “I feel confident that our draft will move forward independently of what might happen inside the government. In any case, if the Minister leaves, I am on good terms with the Vice-Minister. They are close to us.” Despite this conversation, on the morning of April 6, 2016, I received another facetime call from Hugo. Worried, he told me that he had been very active because the Minister of Interior was setting aside the immigration draft. The government was re-evaluating its priorities, which meant leaving the immigration project on hold. I had to act, he insisted. Then, he asked for my help. I need a strategy to deal with the Ministry of Foreign Affairs. They want to have a bigger role in the definition of the immigration policy. Then, he came back to his previous point. The Minister of Interior is under the impression that the immigration draft is too favorable for immigrants.