Migration Control in Germany and the United States
Author(s): Dita Vogel
Source: International Migration Review, Vol. 34, No. 2 (Summer, 2000), pp. 390-422
Published by: The Center for Migration Studies of New York, Inc.
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Control
Migration
the
United
in
Germany
and
States1
Dr. Dita Vogel
Carl von OssietzkyUniversit'dtOldenburg
Both Germany and the United States make effortsto ensure that only those
considered eligible by their laws immigrate. This article develops a frame?
work for the systematic analysis of migration control and comparatively
surveys German and U.S. efforts step by step. Most differences can be
interpreted as the choice between conflicting policy objectives. In high?
lighting these choices, the article aims to increase sensitivity for gains or
losses in other arenas due to certain migration control measures. Specifi?
cally, the trade-off between international economic integration, discrimi?
nation prevention, crime prevention and tax collection on the one hand are
discussed with migration control discussed on the other hand.
Both Germany and the United States carefully select those whom they allow
legal immigration and make it virtually impossible for the majority of the
population. But there are large numbers of ineligible persons who
would like to migrate into Germany or the United States, at least for some time.
They want to flee persecution, war or harsh economic conditions, and they nat?
worlds
urally turn to countries where they can hope for aid, employment and a better
future for their children. Others simply look for the opportunity to participate
in the Western culture, education and wealth which is advertised world-wide
via television. Many of them consider ways to come to the richer receiving
countries in spite of laws that seek to keep them out.
Thus, the receiving states have developed measures to enforce their immi?
gration laws. They have built up bureaucracies and police units with the sole or
main task of preventing unwanted immigration and have developed rules and
procedures discouraging unlawful immigrants or their helpers resident in the
receiving countries.
These policies can be called "migration control policies." They form one
element of all comprehensive migration policies (Monar, 1997). To define it
more explicitly, migration control policies encompass all governmental efforts
*Byreadingcomparativestudies,the authorwas satisfiedthat it was stillusefulto speak of a
national migrationcontrol regime in Germany and thus to compare Germany (and not
Europe) to the United States.Althoughtherewas a lot of harmonizationand integrationof
visa, bordercontroland asylumissueson the European level (Santel, 1996; Widgren,1994),
the implementationof common groundsstillvarieswidely,and thereis no harmonizationas
faras internalcontrolsare concerned.
? 2000 bytheCenterforMigration
reserved.
StudiesofNewYork.Allrights
0197-9183/00/3402.0130
390
IMR Volume 34 Number 2 (Summer 2000): 0390-0422
Migration Control in Germany and the United States
?
391
to prevent access to seemingly legal entry, residence or work by for?
eign nationals who are not eligible by law, especially if they try to
gain access under false pretenses, identities or with fraudulent docu?
ments,
-
to prevent illegal entry, residence
nationals.
or work by ineligible
foreign
Germany and the United States are not only different with respect to
their immigration traditions and admission policies, but also with respect to
their control policies. A number of comparative studies about U.S. and Ger?
man or European migration control regimes have been undertaken, and this
study heavily draws upon them (especially Cornelius et al, 1994; Hailbronner et al, 1998).2 It is widely agreed that the United States focuses more on
external controls and Germany on internal controls (see, United Nations,
It is argued that the enforcement of employer sanctions is the core
1998:213).
of a more successful European migration control regime (U.S. Commission
on Immigration Reform, 1997a:XXXV;
Miller 1995:27) and that Germany
does not have a big problem with undocumented migration due to its labor
and residence monitoring systems (Hailbronner et al, 1998).
Still, these studies left some puzzles which inspired this article. The Unit?
ed States puts more effort into external controls than into internal controls but do they put more effort into it than Germany? Why are there so many
tax-paying undocumented
immigrants in the United States, and virtually
none in Germany? Germany and the United States obviously have different
laws and cultures as far as discrimination is concerned, but is there also a rea?
son in the structure of the control regime that accounts for U.S. concerns that
employer sanctions induce discrimination?
The methods of finding information differed between the two countries.
In the United States, the author could rely on a large range of literature con?
cerning different aspects of migration control and illegal immigration,
on Immigration
including materials gathered by the U.S. Commission
Reform. A research visit to Washington, D.C. in March 1998 mainly served
to fill the gaps in the literature and gain a better and more reliable under?
standing of some issues through discussion with academic migration experts
and government officials in migration control and related fields.2
2I am gratefulto the German Marshall Fund of the United Statesand the Centre forSocial
PolicyResearchforfundingand support.I am also in debt to all thosewho helped me in Ger?
manyand duringmy visitin the United States,especiallyto David Martin,membersof the
Urban Instituteand the Instituteforthe Studyof InternationalMigration.
392
International Migration Review
In Germany, there are few studies on this subject. Most studies which
address migration control either cover control aspects as a side topic of anoth?
er problem or exclusively discuss legal issues without empirical references.
Therefore, the author first surveyed migration control practices in the City of
Bremen (Vogel, 1998a,b). A recent study which focuses on Leipzig in the East?
ern part of Germany (Alt, 1999) supplemented this information. Further analy?
sis mainly relied on government documents and interviews with government
officials. As a countercheck for this somewhat one-sided approach, the author
followed newspaper reports of problematic cases and discussed issues with prac?
titioners in migration counseling likely to know about the problems of migra?
tion controls.
This article is structured as follows. First, some general aspects underlying
migration control are described. Some indicators put the size and the sociogeographic position of the countries in perspective. Also, the laws that govern
migration, the organizations which serve to implement the law, and the gener?
al rules for registration and documentation which are crucial for all controlrelated areas that involve status determination are described comparatively.
This section is followed by the main analysis. A framework for comparing
migration control policies is developed which is more detailed and comprehen?
sive than some previously developed approaches (Hailbronner et al, 1998) and
more structured than others (United Nations, 1998:213ff). Using this frame?
work, control policies are compared step by step. Not all steps were studied in
the same
depth, so that the presentation includes some rather tentative
hypotheses and others which can be characterized as conclusions.
Using this framework, the analysis is specifically strong in showing the
mutual dependence of measures within a migration control regime and in
showing how migration control measures depend on and interact with regula?
tions and organizations which are mainly responsible in other sectors (e.g., tax
control).
At the same time, this approach implies some major limitations. Focus?
ing on the 1990s, it takes a flat ahistoric perspective, ignoring the politics of
specifically the questions of how and why regimes devel?
migration control
Not
is whether policymakers really intend to reduce the gap
discussed
oped.
between legal and actual migration with laws in the field of migration con?
trol. There is good reason to believe that this has not always been the case.
Zolberg (1990) argues that U.S. immigration policy has long been character?
ized by a well-regulated 'front gate' and an intentionally less-scrutinized 'back
door.' Calavita (1992, 1994) has shown that laws and enforcement against
Migration Control in Germany and the United States
393
responded considerably to the demands of agricul?
tural employers. Similarly, Alt (1999) argues that German efforts to curb ille?
gal immigration and residence are symbolic rather than effective, especially
with regard to undocumented
labor in the construction sector. Employer
undocumented
Mexicans
interests in cheap labor and consumer interests in low prices can be served by
applying controls only in a lax manner, allowing immigrants' entrance while
excluding them from substantial rights.
Although acknowledging this, the author agrees with Freeman (1994:29)
that "the long-term trend is undeniably toward greater, not less government
effort and capacity to control international migration." The study confirms
and specifies that Germany and the United States vary considerably with
regard to these efforts. As many differences result from the type of integration
of migration control with other policy fields, it seems reasonable to discuss
the side effects of migration control measures on other policy objectives. The
concluding section is devoted to this discussion. In highlighting trade-offs
between different policy objectives, this contribution aims to increase sensi?
tivity for gains or losses in other arenas due to migration control measures.
GENERAL
ASPECTS
Sociogeographic
Situation
The most obvious difference between Germany and the United States can be
discovered with a single glance at a world map - the United States is larger.
To be exact, with an area of 367 square kilometers, Germany today has less
than 4 percent of the area of the United States (9373 km2). On the other
hand, Germany is much more densely populated. Its population of 82 mil?
lion in 1996 is only three and a half times smaller than the U.S. population
of 265 million, a less striking difference. Immigrants are more likely to live
where other immigrants already live as network migration generates or facil?
itates entry and survival. Therefore, it is important that both Germany and
the United States have been large immigrant receiving countries in the recent
past. The United States has a foreign-born population of approximately
percent, and the percentage for Germany may be even higher.
9
Both countries are rich, with a GDP per head of more than $25,000
per
year in 1994, especially in comparison with some neighboring countries:
Mexico ($3,940) and Cuba ($2,025), Poland ($5,336) and the Czech Repub?
lic ($7,824) (U.S. Department of Commerce, 1996:835).
Labor market conditions are crucial for the integration of undocument?
ed immigrants. The availability of jobs attracts immigrants, and even if an
394
International Migration Review
undocumented
immigrant has come for some other reason, he or she usually
needs a job to survive. Labor market conditions differ in a number of aspects
between Germany and the United States, but these conditions may already be
influenced
by the availability of undocumented
immigrants (endogenity
problem). Nonetheless, a less regulated labor market, somewhat lower unem?
ployment (although differences are not large in standardized rates), and a
much higher share of the services sector in the economy indicate that there
may be more demand for the work of undocumented
immigrants in the
United States than in Germany.
Basic Features of Immigration
Regulation
The United States regards itself as a nation of immigrants - a fact that favors
a more open and sympathetic debate on immigration and mirrors the struc?
ture of its immigration rules. Immigration is a centralized function. Nearly all
rules concerning legal immigration and immigration control can be found in
the Immigration and Nationality Act (INA). Nearly all functions in the law
are implemented exclusively by the Immigration and Naturalization Service
- a federal
agency which consists of regionally and functionally diversified
sub-units with a considerable degree of discretion in many areas of law imple?
mentation. Only the processing of visas is in the hands of the State Depart?
ment with its embassies and consulates, and there is some responsibility shar?
- as in
Germany and
ing with customs and the Coast Guard at the border
most other countries. Immigration is not a centralized function in Germany.
Germany has rather seen immigration as a side effect of other policy objec?
tives, such as compensation of post-war refugees of German ancestry, protec?
tion of asylum seekers or European integration. Most rules concerning entry,
residency and work of foreign nationals are included in the Auslandergesetz
(Aliens' Law), but this law makes frequent cross-references to other laws and
administrative regulations, especially as far as work and the issue of asylum
seekers are concerned {see Cremer, 1998). The immigration of ethnic Ger?
mans from the former Soviet Union is dealt with in a completely separate law
{Kriegsfolgenbereinigungsgesetz of 1993, the law compensating for the conse?
quences of war) which also effectively closed the door for German immigrants
from other formerly communist countries.
The implementation of migration control rules is highly fragmented if
Federal
1998:207).
(Hailbronner,
compared to the U.S. implementation
agencies deal with the admission of ethnic Germans {Bundesverwaltungsami)
and with asylum applications
{Bundesamt fiir die Anerkennung Ausldndischer
Migration Control in Germany and the United States
395
Fluchtlinge), and another federal agency deals with border control (Bundesgrenzschutz) very much like the border patrol of the INS. But many imple?
mentation duties rest with aliens' authorities and with naturalization author?
ities at the local level. The aliens' authorities have to be thought of as merely
administrative units which rely on the enforcement activities of the police
(under state control) and the labor and tax authorities (under federal control).
On the other hand, Germany seeks coordination of control policies within
the European Union (Santel, 1995).
high degree of functional and regional fragmentation may have
the
development of a central database which is accessible to all local
spurred
aliens' authorities and other enforcement authorities such as the embassies
The
and the police. The Central Aliens Register is an automated database which
receives about one million inquiries per month (Bundesregierung, 1995:2). It
includes basic personal and status-related data on all foreign national resi?
dents and other foreign nationals of some importance for the administration,
especially asylum seekers (who are not considered residents) and expelled per?
sons (seeStreit, 1996).
The American equivalent is the Central Index, which contains basic per?
sonal data for all persons the INS has created a file on so that it generally cov?
ers the same population as in Germany. Similar to the German database, its
function is to locate the office which keeps a file on a certain immigrant, but
contrary to the German database it is not considered a basis for primary sta?
Special databases were developed for the verification of
benefit eligibility and pilot programs to check employment verification.
There are efforts to improve databases by means of a combination with other
tus determination.
databases (U.S. Commission on Immigration Reform, 1994:72ff).
Unlike the United States, Germany requires all residents - not only for?
- to
register their residency with a local authority. This local
eign nationals
authority issues national identity cards which all adult citizens are required to
possess, voting authorizations, as well as tax cards which have to be handed
in for all employment above a threshold of about $350 monthly. The foreign
national's residence status is checked before registration, and aliens' authori?
ties are routinely informed.
Although the United States has neither a national identity card nor an
address registration requirement (both regulations being strongly opposed by
part of the liberal polity), subsidiary systems evolved in reaction to market
and security needs. As drivers have to be registered, the state drivers' license
turned into the main identifying document. It is often supplemented by state
396
International Migration Review
IDs which serve as a key to personalized services, especially bank services, for
nondrivers. In addition, the social security number is a more universal iden?
tifier in the United States than in Germany, where people usually have a
whole range of numbers for different purposes.
MIGRATION
CONTROL
A Structure of Migration
- AN
OVERVIEW
Control
Issues of migration control are usually identified by enumeration (United
1998:213; Monar 1997:57). This is an effort for a more systematic
approach in order to make sure that current policy pressures do not dictate
Nations
which questions are asked. A structure to work out differences between the
two countries has been developed along the following lines.
First, it differentiates between controls directed at illegality (illegality pre?
vention) and controls against access to a legal status by ineligible persons (eli?
gibility checks).3 This makes sense, as there are often different authorities and
procedures involved. In addition, restricting the analysis to controls against
illegality could blur the comparison because the two types of controls are
complementary. The easier it is to become (seemingly) legal against the inten?
tions of the law, the smaller the incentives for proper illegality and controls
against it, and vice versa. Keeping an eye on both aspects simultaneously is
useful in an international comparison, because if countries perceive different
problems in illegality prevention, this may well be caused by differences in eli?
gibility checks. Sometimes it is difficult to allocate a control measure to a cat?
egory. The decisive criterion for categorizing measures was whether they are
directed at a migrant who comes forward to present himself or herself to the
authorities to get something, or whether they are directed at persons who
avoid contact with the authorities.
The second categorization could be called longitudinal as it follows the
possible hurdles encountered by a hypothetical person who is interested in
immigrating but is not eligible {see Martin, 1998). It starts off with the ques?
tion of visa requirements before entry and ends with the procedures to ensure
the return of a detected undocumented immigrant or ineligible worker. In
line with common language usage in this field, control measures are split into
two groups: external controls are applied before and at entry; internal controls
deal with the limitation of opportunities during residence and the enforce3Forthisclassification,
it is not importantwhetherthe personis consideredillegalby law once
it is discoveredthathe or she has achievedsuch statusby fraudulentmeans or underfalsepre?
tenses,but thatthe personactuallyenjoysthe privilegesof the regularaccess if not detected.
Migration Control in Germany and the United States
397
ment of return. As Brubaker (1992) points out, nation-states are simultane?
ously territorial and membership organizations, membership being more
closely defined than territorial access. Thus, internal control measures are not
only directed at undocumented immigrants with no right to territorial access,
but also against people who lack the membership of the receiving state - i.e.,
noncitizens with limited or conditional rights. Tourists, for example, gain ter?
ritorial access on the condition that they do not work. This contribution con?
centrates on undocumented immigrants.
The structuring is presented in the form of a table with key words which
are explained in the comparative analysis below.
_Migration
external
before
entry
at entry
internal
during
residence
TABLE 1
Control byArea_
checks
eligibility
prevention
illegality
SectionA:
SectionB:
interdiction
visaprocedures
carrier
sanctions
oforiginandtransit
country
countries'
cooperation_
SectionC:
SectionD:
checksat portofentry bordercontrols
outsideports
identity
to dealwith
ofentry
procedures
casesand asylum
problematic
seekers
SectionE:
SectionF:
statuschecksto prevent
illegal
legalization
procedures
to prevent
falseclaims residence
orwork
procedures
forlegalworkorwelfare_
SectionH:
SectionG:
exitcontrols
andother
detention,
deportation
to enforce
procedures
return_
Before Entry Eligibility
Checks: Visa Procedures and Carrier Sanctions
Visa policies define who is eligible for entry and who is not. Both countries
have developed elaborate control systems to ensure that only eligible persons
can receive visas for immigration and for long-term stays. There are consid?
erable differences in detail, but in effect both countries seem to be able to
make false claims very difficult. Nonetheless, most border-crossing traffic
consists of travelers for short-term stays (tourists, businesspersons, visitors).
Consular posts have to decide on large numbers of applications with little
to be accepted under these categories are
generally easier to fulfill so that these categories are most prone to being used
time for each one, and conditions
by ineligible persons.
Both countries bestow a high degree of discretionary power on their con?
sular officers so that a good overview of control practice could only be
International Migration Review
398
- a difficult and
costly
acquired by an empirical study in different countries
enterprise which has rarely been attempted. In Germany, it is also sufficient to
have a visa for another European state which fulfills the conditions of the
Schengen Agreement. Visa issuance criteria are harmonized, but implementa?
tion still follows national guidelines (Alt, 1999:343). Large differences between
consular posts and even single officers can be expected due to this discretionary
power. This is confirmed for the United States in field observations in six U.S.
consular posts in the late 1980s (Nafziger, 1991). Nonetheless, there are some
indicators that the United States is more restrictive than Germany.
First, Germany grants visa waiver programs - meaning that the credibility
of claiming to be a tourist can only be challenged at the border - for a longer
time and for more countries (42 plus EU countries versus 22 countries) (home?
pages of INS and Auswartiges Amt, July/1998). Specifically, tourists from the
neighboring country of Poland, with a high incidence of illegal labor migration,
can enter without prior acquisition of visas. The only comparable facility in the
United States is the border crossing card which enables the holder to travel into
the United States, but usually only for three days. It is only granted after an
interview, record check and proof of residency and solvency, and a significant
percentage of applications are rejected (U.S. Commission on Immigration
Reform, 1994:25).
Second, quantitative data - although not altogether comparable and rough
- indicate a
greater openness of Germany. The INS estimates about 470 mil?
lion entries of foreigners and citizens in 1996, and it is most probably an over?
stated estimate (interview with John Bjerke, INS Statistics Branch, March
1998). For Germany, a number of at least 666 million entries can be estimat?
ed.4 Bearing in mind its considerably smaller population, this indicates a big
difference (8 per head of population in Germany, 2 in the United States).
Third, the decisions of German consular officers can be reviewed admin?
istratively and challenged in administrative courts. Although the latter proce?
dure is rarely used and even less successful, it may have a preventive influence
on the decisions of consular officers. In the United States, there are only
informal ways to challenge
the decision
of a consular officer about a visa
(Nafziger, 1991).
4For Germany,entrydata can only be estimatedon an even more uncertainbasis, as traffic
overthe EU bordershas last been counted in 1990 (Hellenthal, 1995:2). Publisheddata on
entriesand exitsare based on counts.The estimateis based on thefollowingcalculation:1990
EU borderentriesand exits(417 mill.) plus 1996 outsideborderentriesand exits(915 mill.)
by 2.
Migration Control in Germany and the United States
399
If lack of or forged papers are only discovered at ports of entry, the ques?
tion arises of who is supposed to organize the return and pay for it. To avoid
this situation, receiving states have introduced carrier sanctions which confer
this obligation to the transporting airline or shipping company. They impose
penalties for the transport of people without papers to the border. This gives
transportation companies an incentive to check their passengers' papers
before leaving. Although there are some differences in detail, carrier sanctions
seem to function similarly in the United States and Germany and are not fur?
ther discussed.
In addition,
the INS
also makes preflight inspections at some foreign
airports, i.e., INS inspectors check passengers' admissibility
before they leave for the United States (U.S. Commission on Immigration
German border policemen and American INS officers
Reform, 1997b:315).
international
are ordered temporarily to foreign airports to instruct airline personnel and
consult foreign border police (Severin, 1997:17).
Before Entry Illegality Prevention:
International
Control Cooperation
Enforcement measures before entry are difficult to carry out because before
that point the person has not done anything illegal to the destination coun?
try. Nonetheless, destination countries can use interdiction policies before the
coastal borders and induce countries of origin and transit countries to coop?
erate and guard their own border, e.g., by offering cooperation, training, sub?
sidies and future political and economic advantages. Germany has put more
emphasis on strengthening transit countries' border controls than has the
United States - both on its own and as part of the European Union. It has
paid large subsidies to Poland and the Czech Republic to help them build up
border controls in the East (Santel, 1995:219).
Although the United States
also cooperates with Mexico on the issue of human smuggling of Third
Country Nationals (U.S. Commission on Immigration Reform, 1994:31),
they are comparatively much more concerned with illegal migration of Mex?
icans.
Nonetheless, the United States has negotiated with Cuba and Haiti, two
countries from which many people try to enter illegally by boat (Navajas,
This policy of negotiation is combined with
1992:38, Zolberg, 1995:143).
interdiction, meaning that vessels with potentially illegal immigrants are
stopped during their passage to Florida, the nearest U.S. state, and returned
to their country of origin. Policies towards asylum seekers arriving by boat
have changed, but they were generally more favorable for Cubans than for
400
International Migration Review
Haitians. After the military coup in Haiti in 1991, interdicted Haitians were
brought to a U.S. military base in Guantanamo, Cuba. Later, the United States
negotiated with other nations to offer temporary safe havens in the region, with
no access to admissions to the United States (U.S. Commission on Immigra?
No comparable policies exist in Germany.
tion Reform, 1994:170).
At-Entry Eligibility
Checks: Controls and Procedures at Ports of Entry
Controls at ports of entry aim to prevent regular entry by foreign nationals who
are inadmissible according to the law. There can be many reasons why some?
body can be refused entry at the border: He or she may have no or forged doc?
uments, may be on a look-out list because of a criminal record or prior depor?
tation, or simply give the impression that he or she seeks entry for another rea?
son than stated. Tourists can be asked to show the money they want to spend
during their journey, and if they have insufficient funds without a good expla?
nation, entry may be refused. As far as this general scenario is concerned, there
are no important differences between Germany and the United States. But the
way arrivals are checked is more rigid and comprehensive in the latter than in
the former. Naturally, the European Union makes the German situation differ?
ent. There is no attempt to inspect all entries, but only all entries from non-EU
countries, which excludes a large amount of entries from general inspection.
The U.S.-Canadian
border is the U.S. border which comes closest to this
model, but everybody at least passes an inspection point and may be stopped
(U.S. Commission on Immigration Reform, 1994:23).
Apart from EU borders, there are some similarities in the border inspec?
tion process. Inspection at the border consists of a short inspection that every?
body has to undergo and a closer inspection for entrants who do not give sat?
- in the
isfactory documentation or information at the primary inspection
United States this is a strictly formalized procedure (U.S. Commission on
whereas in Germany de facto procedures
Immigration Reform, 1994:10),
be
in such a way. Passports of nearly all over?
can
described
(Alt, 1999:346)
seas arrivals are automatically compared with information on a look-out list,
whereas this is not the case at busy land border ports of entry.
The United States inspections at entry are also more comprehensive
because they involve the registration of some data for all nonimmigrants
except for Mexican and Canadian entrants, who come only for short visits in
the border zones. Although this border traffic makes up the bulk of all
approximately 470 million inspections, there are still 25 million people
whose names and some personal details are entered into a large databank
Migration Control in Germany and the United States
401
(U.S. Department of Justice, 1997:110).
Ideally, every one of these 25 mil?
lion nonimmigrant entrants is deregistered on return, but this does not work
out properly. Current efforts aim at an even more comprehensive entry and
exit registration, including improved return data collection and improved
countings at the U.S. and Mexican border. There is nothing comparable in
Germany. Visa data exist and show expiration of visas but give no clue
whether the person actually entered or returned. For countries with visa-free
entrance there is not even a stamp on the passport, so that the migration con?
trol regime offers no way of knowing whether a person is in the country for
It seems that people with
days or for years (Jordan and Vogel, 1997:12).
insufficient documents and a seemingly bona fide claim to entry are treated
more favorably in Germany, but data allow no direct comparison.
Both countries have developed special procedures for people who ask for
entry on humanitarian or asylum grounds. Until 1993, asking for asylum was
a reason to request entrance to Germany and to get into proceedings inside
the country. After the change of asylum laws in 1993, asylum seekers travel?
ing through safe haven states including all neighboring states can be refused
entry at the border, so that asylum seekers can only enter illegally or via ports
and airports (Hailbronner, 1994:55ff).
An abbreviated asylum procedure has been implemented in large inter?
national airports for those asylum seekers who have overcome before-entry
controls. Whoever requests asylum at the airport is firstkept in a transit zone.
After a first hearing by asylum officers, asylum seekers are either allowed to
enter and follow regular proceedings or else are subjected to severely abbrevi?
ated proceedings in the transit zone when the application seems to be mani?
festly unfounded (Hailbronner, 1994:84ff).
A similar procedure called expedited removal' was introduced in the
United States in 1997, which is valid for all airports and land borders (U.S.
Before that, anybody
on Immigration Reform, 1997:109).
refused entry had the right to be heard by an Immigration Judge, but could
be detained.
Commission
The new U.S. procedure is more welcoming for asylum seekers than the
German one in the sense that border inspectors have to ask explicitly for any
fears on return and refer the person to an INS asylum officer if this is the case
1999), whereas in Germany there are no such questions and
at land borders may be refused entry without any proceedings.
seekers
asylum
Abbreviated (airport) procedures in both countries make legal counseling of the
(Coven,
applicants very difficult because of short time limits.
402
International Migration Review
In general, at entry eligibility checks are more restrictive in the United
States.
At-Entry Illegality Prevention:
Securing the Border
Those who do not see a chance to enter at a port of entry or have tried without
success may take the risk to try and enter outside the designated gates.
The German and American border situation - although completely differ?
ent in absolute terms - can be described in a comparable way as far as migra?
tion control is concerned. In the United States, the 3,226 km land border to
Mexico (CIA, 1995) marks the line to a continent with populations which are
large and much poorer but do not suffer from direct government persecution
any more. It also links some densely populated border regions. The same is true
for the 1,353 km German border to Poland and the Czech republic (Hellenthal, 1997:48).
Both countries also have a border separating them from other rich coun?
tries (Switzerland and EU versus Canada, respectively). As eligibility checks
have been eliminated between EU countries in the course of the realization of
a European Single Market, border police forces at the German-EU borders have
not been lowered but redirected and built up to prevent illegal entries (Bun?
desministerium des Innern, 1998:17). Border patrol officers have the right to
ask for identification within 30 kilometers of the border.
In both countries, the border towards the poorer part of the world is the
main focus of attention. Both countries have raised personnel and material
resources for this function considerably in recent years, making individual bor?
der crossing attempts without smugglers more difficult. Nonetheless, there are
substantive differences.
The first and main difference lies in the relation to the immediate neigh?
boring country. The main focus of U.S. border patrol efforts are Mexican
nationals, whereas by waiving visas for Polish and Czech citizens they are only
of minor importance for Germany. The main focus of German border patrol
effortsare citizens of Eastern Europe, Asia and Africa, seeking to enter illegally
either in order to live and work illegally or to gain legalization on asylum or
humanitarian grounds.
It could be argued that the United States would hardly have any border
control problem if it followed the German approach of allowing legal entry for
the citizens of all neighboring countries, a policy option which seems to be
unthinkable to Americans. Generally speaking, easy access for a poor neigh?
boring country raises the probability of illegal work but lowers the probability
Migration Control in Germany and the United States
403
of illegal settlement by reducing the costs and risks of border crossing. Ameri?
can effortsto improve border control had the opposite effect. 'Operation Hold
the Line' in El Paso, which involved officers posted in sight of each other,
deterred short-term visits for work and petty crime, but at the same time Mex?
icans working illegally extended the duration of their stays (Bean et al, 1994).
It is hard to say whether the Eastern border of Germany is more heavily
guarded than the American southern border. The geography is quite different:
There are stretches of desert along the American border and populated territo?
ry all along the German border. A physical wall like the one the United States
built in the densely populated San Diego/Tijuana area does not exist along the
German border and is not likely to be built as it would remind people too much
of the wall that East Germany had put up to prevent German emigration (and
which, by the way, guarded the Federal Republic's eastern border quite neatly
and without extra cost against unwanted immigration). Nonetheless, an invisi?
ble wall is built up with high tech equipment like helicopters, sensors and the
like, as is also the case in the United States. Resources in border guarding are
also hard to compare, as the organizational structures are different in both
countries. Cooperation arrangements with customs and other organizations in
the border region exist in both countries to different extents. Therefore, Table
2, which presents crude numbers of personnel and apprehensions,
interpreted with great care.
must be
TABLE 2
control outside ports of entry1996_
(borderto Poland
Germany
and theCzechRepublic)
UnitedStates(borderto Mexico)
borderlengthin km_1,353_3,226_
levels
5,281b)
3,213a)
staffing
27,024c)
l,507,020b)
Apprehensions
staff/km
1,6
2,4
Apprehensions/staff_8_285_
Sources:
1997:49
a) Hellenthal,
Oct.1998
branch,
b) information
byINSstatistics
desInnern,
1998:19
c) Bundesministerium
_Border
Some differences are so striking that these data incompatibilities do not
that the total number of apprehensions in the border
matter. It is obvious
region is much higher in the United States, not only absolutely, but also in
relation to the number of officers at the border (285 versus 8 per officer).
Most apprehended foreign nationals are quickly handed over to the country
from which they came. But whereas 98 percent of those apprehended in the
(possibly including some Latin Americans who
of Justice,
off as Mexicans)
(U.S.
Department
United States were Mexicans
could
pass
themselves
404
International Migration Review
1997:192),
only 3 percent of those apprehended at Germany's Eastern bor?
der were from Poland or the Czech Republic (Lederer, 1997:322),
so that
numbers
from
than
countries
are
less
30,000
apprehension
non-neighboring
in both countries.
Staff was built up in both border regions. In 1996, the crude number of
border patrol officers per kilometer border in the United States was two thirds
of the German number (1.6 versus 2.4). Conceding problems of comparabil?
ity owing to the less difficult landscape in Germany, it indicates at least that
Germany does not put less effort into guarding the land border.
Guarding the seacoasts against smuggling vessels is a task which is in both
countries integrated in broader coast guarding responsibilities. These tasks are
fulfilled by the Coast Guard and Border Patrol in the United States and the
water police and customs authorities with some border police support in Ger?
many. There are not many incidences of smuggling by sea in Germany (some
vessels in the Baltic) (Bundesministerium des Innern, 1996:7). Border police
attribute this to the fact that landing by ship inside the EU can be arranged
with less risk and cost in the Mediterranean countries, especially Italy. The
mere distance is not necessarily an argument that this will not change in the
future as the famous arrival of a large smuggling vessel with Chinese immi?
grants in New York illustrated. In the United States, the Coast Guard has a
major task in the interdiction of smuggling ships from the Caribbean
tries which has been discussed above.
coun?
Generally speaking, border guarding is at least as intensive in Germany as
in the United States. The statement that the United States puts more effort
in external control than does Germany is not adequate as far as illegality pre?
vention at the border is concerned,
but surely with respect to other external
control measures discussed above.
Eligibility Checks during Residence:
Work and Welfare
Legalization
and Access to Regular
At first sight, the question of legalization within the country seems to be easy
to answer: The United States did have temporary legalization programs and
permanent legalization provisions and Germany did not. But if legalization is
defined as any procedure providing access to an officially recognized status,
the differences are not as clear cut. Moreover, both countries have developed
procedures to prevent false claims to legal work and welfare in order to restrict
integration opportunities of undocumented immigrants. These control mea?
sures do not guard access to a legal status, but with access to these societal
Migration Control in Germany and the United States
405
spheres an undocumented immigrant can live a life which is not much dif?
ferent from that of any ordinary citizen or legal resident so that the notion of
clandestine, hidden, underground immigrants does not fit.
Regarding proper legalization programs, indeed, the United States legal?
ized a large number of more than 3 million undocumented immigrants in the
course of the 1986 IRCA legalization program and put them on the track for
permanent residence and naturalization (Gonzalez Baker, 1997). Nothing of
this kind has ever happened in Germany. The United States also had a per?
manent legalization provision enabling any undocumented immigrant who
had stayed for at least seven years and would face extreme hardship on return
to seek legalization. This provision was largely eliminated in 1996. Germany
has avoided such provisions as they are regarded as an encouragement for ille?
gal migration.
Legalizations in the course of status adjustment are also more difficult to
obtain in Germany than in the United States. The general rule in both coun?
tries is that whoever needs a visa has to apply for it and pick it up abroad. If
somebody is already illegally in the country and has the chance of a legal stay,
e.g., because of a marriage or a job, the person first has to leave the country
to apply for an adjustment to status. From 1994 to 1998, undocumented
immigrants were able to adjust status inside the United States if they paid a
fine.5
As far as legalization programs on humanitarian grounds are concerned,
there is more similarity between Germany and the United States. Both coun?
tries accept asylum applications inside the country, and both countries
streamlined definitions and procedures in order to restrict access to asylum in
recent years. The definition of political persecution is somewhat narrower in
Germany, but social rights for asylum seekers and for those accepted as
refugees are more favorable than in the United States. In the first six months
after their applications, asylum seekers in the United States neither get the
permission to work nor any public transfers so that they have to rely on pri?
vate welfare (or illegal work) to support themselves (Legomsky, 1998:133).
Their German counterparts get housing and transfers, although on a much
lower standard than poor German people (Roseler 1998). Asylum seekers are
5
in different
categoriesprofitfromthisprovision,it mainlyaims at close
Althoughimmigrants
members
of
family
legalizedimmigrantswho were not legalizedthemselvesand had to face
long waitingtimesbeforefamilyreunification.Instead of being phased out as was planned,
theprovisionwas prolongedand gainedimportancewithlaw changes1996, whichmade leav?
ing the countrymore riskybecause of reentrybars (U.S. Commission on Immigration
Reform,1997a:63f).
406
International Migration Review
fingerprinted and fingerprints cross-checked in order to avoid multiple appli?
cations (Wecker, 1995:4lff).
Recently, the United States has required that asylum must be sought with?
in one year after entry. This measure, which came into force in 1998, aims at
- i.e., in reaction to the detection of a lack?
preventing late and defensive claims
ing status. Late claims are no issue in Germany, but since late 1997 asylum
seekers with defensive claims are supposed to be detained during their pro?
ceedings.
In addition to asylum, both countries have some provision allowing a tem?
porary protected status for illegal entrants escaping civil war and disaster
regions. However, there is also the vast gray area of toleration (Bocker and
Vogel, 1997). The legal constructions differwithin the countries over time and
between the countries, but the commonality is that there is a large population
of undocumented immigrants whose presence is known to the state but which
are nonetheless neither legalized nor deported. In other words, part of the
population is not hidden, and the legitimacy if not legality of
undocumented
their stay is disputed.
The United States recently has been much more generous as far as legaliza?
tion (or status adjustment) of their large tolerated minorities is concerned. In
several acts, large numbers of Nicaraguans, Salvadorians and Guatemalans have
been put on the track for permanent residence, and Haitians have been
promised a similar provision, but the Bosnians as a comparable minority in
Germany are encouraged to return with a mixture of financial incentives,
deportation threats and deportations.
The legalization discussion would not be complete without some remarks
about marriage as a way to regularize status inside the country. Both countries
have tightened their controls against marriages of convenience or sham mar?
riages as a means to enter and as a means to regularize. In both countries, binational couples may face personal interviews by immigration officers in which
the seriousness of their marriage decisions is questioned. But in Germany, coop?
eration requirements in the German immigration law may even prevent a mar?
riage as employees in the marriage offices are supposed to inform the aliens'
authorities about a lacking residence status. Since July 1998, marriage officers
are supposed to interview fiancees themselves if they doubt that the marriage
involves any form of cohabitation.
Cooperation requirements are also of major importance for procedures
aiming to prevent false claims for welfare or regular work in Germany. Gener?
ally, the Aliens' law requires all public employee to inform the aliens' authori-
Migration Control in Germanyand the United States
407
ties if they come across a lacking residence status in the course of their work
(Cremer, 1998:55). This deterrence mechanism is the main means to exclude
immigrants from school and welfare. It also deters them from
seeking emergency health care (Cyrus, 1997), which hospitals cannot reject.
Although they are not included in the cooperation requirement, hospital
undocumented
employees may inform authorities in an effortto cover costs.
Welfare participation has been one of the most debated aspects of undocu?
mented immigration in recent years in the United States. Undocumented
immigrants have been formally excluded from more and more welfare services
except schooling and emergency health care. A computerized verification sys?
has been introduced so that employees can check the eligibility of
a foreign national for some transfers (Zimmermann, 1991). This verification
system has been introduced with an explicit prohibition against providing
tem (SAVE)
information which may lead to deportation. Therefore, undocumented immi?
grants in the United States are also deterred from seeking welfare or social ser?
vices, but it involves generally only the risk of being excluded from participa?
tion and not the risk of being detected.
From the point of view of the immigrant, these arrangements may not make
much difference as they both result in an exclusion from the benefit. As the rules
are not strictly administered in both countries and immigrants may not know
them, even the perception of risks may be similar. Still, it is interesting to note
that an independent status verification system has been created for benefit eligi?
bility purposes (although naturally relying on INS data sources and coopera?
tion) in the United States whereas in Germany all doubtful cases are referred to
the aliens' authorities.
The extensive outsourcing of status verification responsibilities in the Unit?
ed States has more important consequences in the case of employer sanctions.
Employer sanctions are directed against employers of foreign nationals without
labor permit, whether they pay taxes and are thus part of the 'regular' economy
or not. In this section, controls to guard access to regular tax-paying employ?
ment are compared, whereas controls to prevent unauthorized employment in
the underground economy are discussed below. It is important to make this dis?
tinction in order to understand differences between the German and the Amer?
ican enforcement regime.
Today, employers in Germany and the United States have to check whether
a hired employee is eligible for work. In spite of this parallel arrangement, a Ger?
man employer is not really the institution who fulfillsthe status verification task.
408
International Migration Review
The German employer has to register his or her employee with the social
security administration. An ineligible employee may receive a valid social
security number in the course of this registration. But there is an immediate
computerized cross-check for false or misprinted social security numbers
which makes invented numbers improbable and document forgery more dif?
ficult. A quarterly cross-check of national employment data with national
labor permit data identifies cases in which there is no matching labor permit
for a social security number of a foreign national and submits this informa?
tion to the local employment administration (Liipke, 1997:28).
In both cases, the employer will usually get a letter asking to clarify the
issue. The employer usually will face no sanctions in first and inadvertent
cases (Vogel, 1998a). Although employers must check employment autho?
rization, the real verification function is fulfilled in the social security tax and
employment administration.
The preventive effect cannot
be overestimated.
Both
employer and
employee know that unauthorized tax-paying work can be detected. There?
fore, undocumented work usually requires open compliance between employ?
er and employee and results in employment in the underground economy.
In contrast, U.S. studies indicated that more than half of the undocu?
mented immigrants worked in the regular tax-paying economy and not in the
The imple?
underground economy (U.S. Department of Labor, 1996:46).
mentation of employer sanctions did not change this substantially. Employ?
ers do not fulfill their verification duties very efficiently because they know?
ingly or unknowingly accept forged documents (U.S. Commission on Immi?
Contrary to Germany, registering an employee
gration Reform, 1997a.Tl4).
with the tax authorities involves no extra risk of detection but reduces the risk
of being checked for tax-related reasons. The Internal Revenue Service, as the
authority to collect payroll taxes, does not cooperate with the INS. At the
same time, data exchange capacities for tax purposes are more developed than
in Germany, and millions of standard letters resulting from these procedures
are sent in order to ask for clarification and ensure compliance.
Additionally, by fulfilling verification tasks loosely, employers avoid the
risk of being blamed and eventually sanctioned for discriminatory hiring
practices. Employers can be fined under anti-discrimination legislation if they
take their verification duties more seriously with foreign-looking or sounding
persons. They must accept any apparently genuine documents (Martin,
1998:7).
Migration Control in Germany and the United States
409
In Germany, there are no anti-discrimination laws which protect foreignlooking or sounding residents. Employers are advised to check foreign nation?
als more thoroughly by asking for passports. Discriminatory identification
procedures are widely practiced in Germany, and this is hardly an issue of dis?
pute. Discriminatory identification practices are the rule rather than the
exception in Germany. On the other hand, employer sanctions do not seem
to induce discriminatory hiring practices. As the main verification task is ful?
filled within the public sector, there is hardly any risk in hiring a foreign-look?
ing or sounding person who produces social security and tax cards. As
employers fulfill the main verification task in the United States, they would
incentive to hire discriminatingly if their verification
duties had not been watered down in order to avoid this.
have a considerable
The American way to think about improvements is to enable employers
to better fulfill their verification duties (U.S. Commission on Immigration
Reform, 1997a: 114). In the Employment Verification Program, a pilot pro?
gram with voluntarily participating employers, a direct hotline is available for
confirmation of eligibility for employment - a way to prevent employers from
unknowingly hiring unauthorized foreigners for a regular job.
Summarizing these different aspects of eligibility controls for legal status
or rights, it can be said that Germany controls more strictly against undocu?
mented immigrants than does the United States.
Illegality Prevention During
Cooperation
Residence:
Status Checks and Internal
Whereas the above section reviewed measures of gatekeeping to a legal status
and access to welfare and tax-deducting work, this section deals with status
checks which may result in detection and eventually deportation.
The question is, who checks the residence status of a foreign national in
order to detect illegality? Using similar terminology as in the case of border
controls, one can identify two steps. The primary inspection involves the con?
trol of identity and residence permits. Those who are suspected of illegal res?
of lacking, apparently fraudulent or insufficient papers are
to
a
secondary inspection. The foreigner may come forward with
subjected
further documentation or explanations, and the authorities will check their
idence because
databases and files for verification.
In Germany, only secondary inspections are fulfilled by the aliens' author?
ities. Primary inspections are fulfilled by a whole range of enforcement offi?
cers who refer suspects to the aliens' authorities. Without
going into the
International Migration Review
410
details of the complicated German enforcement structures, two types of pri?
mary inspections can be characterized: police and labor market inspections.
In general, police officers only have the right to ask identification from a
person suspected of a law violation, which can be anything from a trafficvio?
lation to murder. As identification usually requires a national identity card or
a passport in Germany, the police will learn about a lacking or unclear resi?
dence status in the course of the investigation. They will either seek consent
of a judge to detain the undocumented immigrants, if they are seriously sus?
pected of a crime, or bring them to the aliens' authorities. In 1996, police
departments (including border police) recorded the location of 137,232
immigrants suspected of criminal activities. This number
includes illegal entrants and internal suspects whose only criminal activity is
their presence.
undocumented
checks at the discretion of the state police are introduced
in more and more states. In addition, the (federal) border police received the
Documentation
right to check papers at airports, railway stations and in trains in 1998.
The second type of primary inspection has to do with the tax enforce?
ment regime in Germany. The enforcement units of the employment author?
units go on worksite raids to check workers and
employers for social security tax evasion, unemployment benefit fraud, and
the employment of unauthorized foreign nationals at the same time. They
have virtually free rein in their choice of worksites, but they react mainly on
ities and some customs
information
and
concentrate
on the construction
sector (Vogel, 1998b;
Liipke, 1997). They ask for identification and, in the case of non-EU foreign
nationals, for work authorization. If they suspect illegal residence, they pass
the person on to the aliens' authorities, usually with the help of the police.
About 3,500 inspectors checked identity papers of more than 600,000 per?
sons on worksites during such raids (based on a three year average, see Bun?
desregierung, 1996b:54; Liipke, 1997:31).
In the United States, both types of inspections are fulfilled by the inves?
tigations units in the INS (formerly also Border Patrol units in the border
area). These units usually collect information, prepare a case, get a warrant
and search a worksite where they suspect that undocumented
immigrants
work. For years, these units were the only ones who would check residence
status inside the United
States. With 245
worksite investigators in 1994
this situation has been characterized as the
(Migration News, 2, Aug. 1995),
virtual absence of internal controls.
Migration Control in Germany and the United States
411
Neither labor inspectors nor tax inspectors control individual employees
but rather take them as informants for employers' violations of labor stan?
dards and tax laws. Labor inspectors from the Department of Labor (Wage
and Hour) also check whether the employer complies with verification paper?
work, but they do not enforce sanctions against employees. Those employers
who hire unauthorized workers in order to avoid taxes and labor standards
may be deterred by this type of inspection. With 804 investigators who con?
ducted about 60,000 worksite visits in 1995 (U.S. Commission on Immigra?
tion Reform, 1994:94),
the quantitative importance of the DOL
is much
larger than that of the INS worksite investigations, but taken together they
are still significantly smaller in absolute and even more in relative terms than
the German control forces.
Table 3 contains a stylized version of U.S. and German cooperation struc?
tures in internal detection and apprehension. In both cases, it hides a lot of
regional variation but visualizes suitably the general principle.
TABLE 3
U.S. and GermanModel of the Internal Detection and Apprehensionof
UndocumentedImmigrants
UnitedStates
if
information general
Primary
public,publicagencies,
notprohibited/discouraged
from
as in somehigh
cooperation
states
immigration
INS investigation
unit
Primary
inspection
Apprehension
INS investigation
unit
unit
Secondary
inspection INS investigation
Germany
public,somepublic
general
basis,
agencieson a standardized
forsomepublicagencies
on request
obligatory
internal
customs
laborinspectors,
statepolice;border
inspectors,
service
policeon internal
stations)
(railway
statepolice,borderpolice
(since1998:customsofficers)
aliens'authorities
The U.S. cooperation situation definitely changed in recent years as far as
convicted criminals are concerned. Cooperation arrangements between the
INS and prisons have been built up so that the residence status of convicted
criminals can be checked during their prison sentence. In general, police offi?
cers do not necessarily detect a missing residence status if they check some?
body's identity. In some high immigrant states, police are prohibited from
cooperating with the INS, and only recently new competencies were intro?
duced which enable but do not force the state and local police departments
to cooperate with the INS (McDonald,
1997).
As a result of these structural differences in internal status checks, the
probability that someone has to identify himself or herself to an enforcement
412
International Migration Review
officer and that the enforcement officer will detect an illegal status and iden?
tify the person for further proceedings is much higher for Germany than for
the United States.
Eligibility
Checks at Exit: Security Checks
Exit controls have a strange role in a regime of control measures directed
against illegal residence because exit ends illegality and is thus the desired
result of all measures against it. However, if an undocumented immigrant is
already on a look-out list for deportation he or she may be deported to the
country of origin instead of being allowed to travel to a neighboring country.
Secondly, the illegal residence may only be discovered at the border when
somebody leaves the country. If the person can leave uncontrolled, he or she
may enter the country legally at a later point in time. If the person is con?
trolled, he or she may face a reentry bar resulting in ineligibility for a later
legal residence.
So far, both countries do not check exits consistently. Exits over EU bor?
ders are especially easy in Germany, spurring discussions on closer police
cooperation between EU states. Although there are efforts to inspect the
papers of all those who leave Germany to non-EU countries, there are no
efforts to introduce any entry-exit monitoring systems.
Contrarily, the United States both introduced high reentry bars and
demanded consistent exit controls for all borders so that visa overstayers could
be detected in 1996. Such a measure can easily have a lock-in or check valve
effect for undocumented
immigrants. Some may choose to stay illegally
although they had the chance to adjust status in case their illegal residency
was not detected. For others, the reentry bar may turn the balance against a
return decision.
Illegality Prevention at Exit: Detention,
Deportation
and Forced Return
Restrictive immigration policies need a way to enforce the exit of a foreign
national who is not eligible for staying. This 'sword' of immigration law
(Klos, 1998:219) does not hit consistently in both countries, but it hits more
often in recent years than before. On the other hand, deportation is an ulti?
mate means. Many migrants leave voluntarily if they are faced with the alter?
native to go or to endure lengthy court proceedings with uncertain results,
even though they might have wanted to stay.
To highlight differences, the three main groups who may face deportation
are compared: apprehended undocumented aliens; former asylum seekers and
Migration Control in Germany and the United States
413
others with rejected affirmative claims for a residence status; and foreign
national convicts.
Differences are most obvious as far as convicted criminals are concerned.
They may either be deportable because they had no residence status prior to
their conviction, or they may lose their residence status because of the con?
viction. In Germany, aliens' authorities are notified by the police about these
prisoners and arrange a deportation after the sentence. There is no need for a
hearing unless the convict contests the decision of the aliens' authority.
In the United States, immigration authorities have more trouble in
detecting deportable convicts, arranging hearings and deportations immedi?
ately after the prison sentence because prisons do not automatically identify
deportable aliens and notify the INS, and because INS officers sometimes
have to travel long distances to ensure a deportation hearing for every pris?
oner. These removal problems have been tackled in recent years, with the con?
sequence of rising numbers of deported criminal foreign nationals (U.S.
Commission on Immigration Reform, 1997a: 128; see Table 4).
The second group consists of asylum seekers and other foreign nationals
who had come forward for a residence status. Once
their claims have been
rejected or their temporary tolerations run out, they must leave the country
Their last address is usually known to the authorities, and in Germany it is
often a publicly financed facility. Knowing that, they have the possibility to
abscond, or they may hope that deportation threats are not enforced. U.S.
data show (U.S. Commission on Immigration Reform, 1997a: 127) that up
to 50 percent of final removal orders are being followed through. In Ger?
many, there are no data about the whereabouts of all foreign nationals with
enforceable deportation, but only for asylum seekers. About one quarter of all
deportable asylum seekers were actually deported, for less than a quarter a
voluntary return was confirmed, and the residual of more than half could not
be located (letter from Bundesministerium des Innern). German deportation
data show that the deportation of former asylum seekers has become a prior?
ity, especially to reduce a backlog after the change in asylum laws in 1993
(Table 4). Some of the deported former asylum seekers also had to face crim?
inal charges, but there are no data to verify this.
The third group is apprehended undocumented immigrants. In the Unit?
ed States, an apprehended undocumented immigrant may be detained until
departure or, if he or she contests deportability, until the end of proceedings.
Since the INS
undocumented
does not have sufficient detention space for all apprehended
immigrants, the agency decides whom to detain according to
414
International Migration Review
a priority list, with highest priorities for criminals, and it may release some?
body on bond (Martin, 1998:13). The lack of detention space has been iden?
tified as the principal reason why it is so difficult to enforce return from the
interior of the country (Martin, 1998:31).
TABLE 4
in Germanyand the USA_
UnitedStates
Germany
forcriminal
convicts
asylum
rejected
totalc)
total(byair)a) seekersb)
ornarcotic
violations
1992
38327
10,798(54%)
l<?82l
22,383 (58%)
1993
37,238
36,165 (76%)
47,070
25,188 (67%)
1994
39,623
36,183 (68%)
53,043
28,257 (71%)
1995
41,819
21,487(58%)
36,455
29,145 (69%)
1996_32,100_15,774(41%)_50,064_32,869
(65%)_
Sources:
Bundesministerium
border
data
desInnern,
a)
police
state
desInnern,
data
b) Bundesministerium
oftheINS 1996:183
Yearbook
1997:Statistical
c) U.S.Dept.ofJustice
FortheUnited
toforced
returns
after
more
thansixmonths
Comment:
German
datarelate
after
entry.
deportation
match
at
I tookdeportation
thanremoval
datatohavea closer
fortheGerman
returns
rather
dataandexclude
States,
theborder.
_Deportations
In Germany, the states themselves and the local aliens' authorities within
the states are responsible for detention and deportation. If the authorities esti?
mate a high probability of absconding, they ask a judge for detention prior to
deportation. There is a high degree of discretion on the state and local level
to decide upon indicators of this probability, and the availability of detention
Only defensive asylum seekers
space influences this decision (Alt, 1999:331).
are supposed to be detained during proceedings (since 1997).
The destruction of documents
and noncooperation
in nationality and
in
are
obstacles
German
verification
identity
principal
deportation proceed?
ings which are discussed in the press and among experts (see Cremer
1998:86). This does not seem to be a major problem in the United States.
In both countries, immigrants may be allowed to leave voluntarily but
with a certain degree of control, instead of being deported. Voluntary return
usually saved U.S. deportable aliens from reentry bars until 1996, whereafter
reentry bars of up to ten years were introduced depending on the length of
(over)stay. In Germany, these bars are usually connected to expulsion. How?
ever, the reentry bar can be removed more easily by the issuing local author?
ities (usually after two years).
In general, the German removal system is comprehensive for criminals
and quicker for apprehended aliens than is the U.S. system. The U.S. author?
ities have greater power to impose detention, and they need it more, as resi?
dence monitoring in Germany makes absconding somewhat more difficult.
Migration Control in Germanyand the United States
415
In the United
States, it is clear that detention space limits deportations,
whereas in Germany this is hidden under different local decisionmaking prac?
tices.
SUMMARY
AND
CONCLUSION
In this concluding section, important differences between Germany and the
United States are summarized and interpreted from a policy perspective. This
involves the analysis of policy objectives and their relations: Does a measure
to ensure the realization of one objective also change the realization of some
other policy objectives, and how? Does it improve it, or is there a trade-off?
This study identified some distinctive differences between Germany and the
United States in the migration control regime. It is argued that these differ?
ences can be interpreted as (not necessarily conscious) policy choices. By
favoring one enforcement measure over another, the countries do not only
influence the effectiveness of their migration control regime but also favor the
realization of other objectives in a kind of joint production, or endanger
them.
Many migration experts have analyzed a central trade-off: the trade-off
between the protection of internally valid moral or social values and migra?
tion control. This trade-off is always triggered when the entry and residence
of asylum seekers and other cases of humanitarian concern are touched upon.
This article confirms this pattern. This conclusion
trade-offs where the two countries clearly differ.
concentrates
on other
As far as external controls are concerned, the bottom line is that Germany
puts at least as much effort into controlling against illegal entry as does the
United States, but there are some indicators that eligibility checks before and
at entry are stricter in the United States. This is most pronounced with regard
to the immediately neighboring low-income countries: There is little enforce?
ment against Polish and Czech citizens, whereas Mexicans are one of the pri?
mary concerns of external migration control in the United States.
By favoring Polish and Czech citizens, Germany also traded less control
over these migrants (specifically a lot of illegal labor by 'tourists') against more
controls over migrants from other states by negotiating favorable agreements
for the readmission of transit migrants to their territory.
Short-term travelers are generally considered economically
favorable for a
country. They come as tourists, businessmen, needed experts or students who
finance themselves and further the economic development of the receiving
country. Furthermore, the promotion of short-term visits can be seen as a
416
International Migration Review
of trade agreements and friendly diplomatic relations (Zolberg,
1993:70). All eligibility checks before and at entry do not only make it more
difficult for ineligibles, but also for eligible travelers. They may be deterred by
concomitant
controls (i.e., not wanting to apply for a visa beforehand) or be mistakenly
rejected as ineligible. By making regular travel easier, Germany has favored
the objectives of promoting international trade, tourism and economic inte?
gration over restricting migration.
As far as other internal controls are concerned, the statement can be con?
firmed that Germany is putting much more effort into enforcement than is
the United States. It is more difficult and risky to pass eligibility checks for a
legal status within Germany.
German enforcement against illegal residence and work is characterized
by cooperation between different authorities, which multiplies the number of
potential
enforcement officers and enforcement activities, even if intrans-
parencies and transaction costs are created at the same time. But there is a
- the
cooperation dilemma
agencies which cooperate with the aliens' author?
ities must sacrifice part of their other objectives. This is a general pattern
which can be exemplified by the police and the authorities responsible for the
collection of payroll taxes.
The police are responsible for the prevention and detection of crime - in
the ordinary sense of the word as unlawful activities which are directly harm?
ful to others such as theft, fraud, robbery and murder. Other activities are
considered indirectly harmful, although there is no immediate victim. They
are therefore declared illegal, for example tax-evading labor or illegal immi?
gration.
There is a trade-off between crime control and immigration control. If
immi?
police routinely check residence status and pass on undocumented
grants to the immigration authorities, as they do in Germany, crime control
suffers as undocumented
immigrants do not come forward as victims and
witnesses. This rationale has been behind the noncooperation
policies in
many immigrant communities in the United States which were instituted in
the 1970s and are now being challenged by restricted cooperation agreements
(McDonald,
1997:5). With comprehensive obligatory cooperation structures
in Germany, the country has made a choice for immigration control and
against crime control. But the effect is selective. Cooperation policies may or
may not reduce the overall level of crime in a society (depending on how
much crime is reduced by higher deportation rates), but it definitely hampers
police efforts to protect undocumented immigrants from crime and to detect
Migration Control in Germany and the United States
crimes involving undocumented
nesses.
417
immigrants who could come forward as wit?
The
of the Social Security Administration concerning
cooperation
data
employment
gives an interesting example of three conflicting aims. The
German approach to check social security numbers and compare employ?
ment and employment authorization data effectively limits the extent to
which undocumented immigrants can perform tax-paying jobs. At the same
time, it alleviates employers' verification burdens and thus lowers their incen?
tives for discriminatory hiring practices. The measures work both against
unauthorized employment and against hiring discrimination by employers so
that objectives do not conflict, but tax collection would be higher with a noncooperation policy.
At the same time, the United States has a much more elaborate system of
data exchange and comparison for tax purposes, so that American tax inspec?
tors would not gain as much as German authorities by worksite raids. These
worksite raids where identification serves the purposes of detecting benefit
fraud, social security tax fraud, and unauthorized immigration at the same
time are another part of the cooperation between labor and tax authorities
aliens' authorities which reinforce the above-described
incentive to
and
employ undocumented aliens only in the underground economy. As far as the
trade-off between tax enforcement and immigration enforcement is con?
cerned, Germany has chosen migration control and the United States has
chosen tax control.
A smaller incentive for discriminatory hiring is the positive side effect of
the cooperation between social security and labor administration for the pur?
poses of immigration control. Compared to the U.S. situation, there is hard?
ly any awareness that the unequal treatment of people with different looks or
accents poses any problems, and there is a complete lack of anti-discrimina?
tion legislation. Status verification is enforced discriminatingly, and this is
openly admitted by law enforcement officers.
For two combined reasons, it can be hypothesized that discrimination by
public officers will become a more important topic in Germany in the future.
First, recent changes in the law to enforce migration control introduce
measures which are more prone to discrimination, for example the general
right for identity checks at railway stations which was introduced in July
1998. Such laws offer more opportunities for discriminatory controls.
Second, immigrant minorities may raise their political voices to stop dis?
criminatory practices (Zolberg, 1993). Naturalization rates of second and
418
International Migration Review
third generation immigrants from the former cguestworker countries' are ris?
ing and will go up even further since the partial introduction of a jus soli in
1999. At the same time, a large population of foreign-sounding citizens
results from the policy to accept a quota of settlers of German ancestry from
the former Soviet Union who are immediately recognized as German citizens.
Therefore, the population with a political voice who may be singled out for
more intensive status verification because of their 'foreignness' is growing.
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