Panel Transcript: Illegal Immigration by Sea


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Event Summary

With the crisis in Haiti sparking fears of a new exodus and illegal crossings up in the Mediterranean, maritime illegal immigration is a challenge all destination countries are facing – one that is very different from the challenge of controlling a land border.

The International Network for Immigration Research (INIR) hosted this event to address this issue, entitled “Illegal Immigration by Sea: Challenges in the Caribbean and the Mediterranean”.


George Fishman, a Senior Legal Fellow at the Center for Immigration Studies in Washington, D.C., will discuss how the U.S. has responded to past Haitian migration crises;

Viktor Marsai, Director of the Migration Research Institute in Budapest, will discuss the European Union’s difficulties in dealing with illegal immigration across the Mediterranean; and

Eric Ruark, Director of Research at Numbers USA in Washington, D.C., will examine Florida’s recent moves as an example of what coastal states can do to limit maritime illegal immigration.

Moderator: Mark Krikorian, Executive Director, Center for Immigration Studies.

Date and Location:

April 11, 2024

Washington, DC

MARK KRIKORIAN: Good morning. My name is Mark Krikorian, executive director of the Center for Immigration Studies.

And the issue of illegal immigration is, obviously, constantly in the news, but it’s almost all – in the United States, the discussion is almost all about the land border, our border with Mexico specifically. The issue of illegal immigration by sea, whether – whichever side of the Atlantic or even out in the Pacific that it happens, doesn’t get the same level of attention. And yet, it’s extremely important and is very – and it presents really different challenges from dealing with illegal immigration on land.

And so this event is hosted by the International Network for Immigration Research, which is a collaboration of several independent organizations in many different countries that take a realistic costs-and-benefits approach to the immigration issue. And we’re going to be talking about what are the challenges, both in the Mediterranean and on our side of the Atlantic, to dealing with illegal immigration coming by sea, maritime illegal immigration.

If you have questions and you’re watching this live, feel free to submit them. You can email them to [email protected][email protected] – and we will look through them and ask some of them at the end of the presentations.

We have three organizations represented here as part of the Network. Not everybody was able to participate.

But the three who are going to be speaking about this are going to be, first, Viktor Marsai, who is director of the Migration Research Institute in Budapest. And he’s also an Africa expert, as well as a migration expert. And he’s going to be talking about, actually, the intersection of those two things, which is illegal immigration across the Mediterranean and the challenges this poses to the European Union, which are significant, and it’s one of the main ways that illegal immigration happens into Europe.

The second speaker is going to be George Fishman, senior legal fellow at the Center for Immigration Studies. And he’s going to talk some about what the legal issues are in the United States if we do have another significant seaborne/maritime illegal immigration crisis, which is something that is entirely possible given the unrest and really state collapse in Haiti. And we have had past incidents of significant seaborne illegal immigration from Haiti; it hasn’t happened yet this time, but it may very well. And George will talk some about that.

And last but not least, Eric Ruark is director of research at Numbers USA. And he’ll be talking about what are some of the options that states – U.S. states – have in dealing with the issue of illegal immigration by sea. This is, obviously, most salient for Florida, since it has an enormous amount of coastline but also the coastline facing the Caribbean, which is where a lot of the seaborne – in fact, almost all the seaborne – illegal immigration to the United States comes from.

So after Eric finishes his presentation, we’ll go to Q&A. And with that, let’s go to Viktor.

VIKTOR MARSAI: Thank you, Mark. Welcome, ladies and gentlemen. It’s great to be here in D.C. again, actually, the – already the third conference of the International Network for Immigration Research just within six months after the establishment. And, yes, I would like to speak a little bit about the Mediterranean migration crisis and how it affects Europe.

It’s very important to underline that, thanks to geographic reason, the European borders are relatively easily accessible both by land and sea, and it significantly shape the illegal immigration landscape of Europe. Yet, it became big topic only after the so-called Arab Spring, 2011, which led to the collapse of certain state and governments both in North Africa and the Middle East. And it led to the increasing number of irregular and illegal immigration towards Europe, partly by land but also across the sea.

And in 2013, mainly Italy could observe a huge rise of illegal immigrants. More than 150,000 people reached Lampedusa, the Italian shores. And in the last decade, we could see the increasing number of arrivals not only in the Central Mediterranean Sea, but also the other part of Mediterranean and the Atlantic Ocean.

It’s important to underline that Europe reacted relatively fast in the land borders with the construction of physical barriers. Before the rise of this new crisis, only 300 kilometers physical barriers – fences – we could find around Europe. But after the crisis, almost 2,000 kilometer new fences were erected all around Europe, as you can see in the first map, mainly the eastern part of Europe, in the Western Balkan(s), but not exclusively. For example, we could see in France to stop the crossing the channel and the tunnel towards the United Kingdom. So we can say it was a relatively quick reaction from the European actors, which was very important.

But in spite of the action of the land border fences, the number of people crossing the Mediterranean in the sea increased significantly. In the second map, we can see that most irregular arrival to Europe happens by sea, in the Eastern Mediterranean, the biggest number currently in the Central Mediterranean, the Western Mediterranean, and in the Atlantic Ocean. And last but not least, we have to emphasize the crossing in the British channel from France to the United Kingdom.

Closing and blocking sea borders was always a challenge for not only Europe, but all other actors because of different reasons. First and foremost, big part of them are international waters with shared responsibilities. So, with the exception of the territorial waters – which are very close to the certain states and which are part of the different nations – the high sea is an international area with many different actors who are operating on these areas with shared obligations and responsibilities, for example in the save-and-rescue operations. And besides states, we can find different actors – for example, NGOs, which play a significant role in the current crisis, even if we have to underline that they are rescuing only between 10 and 15 percent of all people in the Mediterranean. But actually, because of the rule of the sea, each vessels are obliged to save people who are in trouble in the waters. And it is utilized by human smuggling networks, which regularly use small boats with a lot of people, with bad shape – the boats – counting that they will start to sink and each vessels in the region will be obliged to try to save the people there.

If we are moving to the third map, in the Central Mediterranean as an example, we can see these overlapping responsibilities. Both Italy and later the European Union started different mission to save people who are trying to cross, but they try to do it mainly close to the Italian shores. Why? They try to cooperate with the Libyan coast guard to stop the boats to leave North Africa. But between the two zones, we could find NGO ships which served some kind of taxi service for the migrants and the human smuggling networks. Actually, it also increased the perception of human smugglers that they don’t have to use proper boats to transfer people from North Africa to Lampedusa and the Italian shores because they knew that – and they still know – that the NGOs will save people; and if not, it’s not their problem, it’s unfortunately the problem of the people who drown into the Mediterranean. So, actually, the gap between the EU operations and the national obligations for Italy and Malta are filled by the NGOs who are operating in the region.

If we move to the fourth map, it’s also very visible that the distance between North Africa – namely, Tunisia and Libya – is very small comparing the oceans here which protects the United States. For example, the distance between Sfax and Lampedusa is just 200 kilometers, so 130 miles. It’s relatively easily accessible by small boats. It’s not accidental that hundreds of boats are arriving annually to the small island of Lampedusa. And with the exception of the stormy weathers in the Mediterranean at the beginning and the end of – and the end of the year, actually, the crossing are ongoing in whole year. And last year, we could see more than 170,000 crossing in this small gap between Europe and Africa. Mostly but not exclusively African citizens, but we could see, for example, other nationalities: Bangladeshis; Syrians, who try to reach somehow African capitals and cross the Sahara, and then they try to reach Europe.

What can we – what are the solutions? In the Eastern Mediterranean, we can see that, for example, the Greek island and Cyprus itself, an independent country, even if it can’t be considered a destination, but they are close. So even if people arrive to the Greek islands, which are just a couple of miles from the Turkish shores, it’s not easy for them to move further. They can do it only if there is collaboration with the authorities, so it’s a problematic case. Why Cyprus? Well, still it’s the part of the Schengen – of the European Union. It’s not part of the Schengen Area, so it’s also hard for the people to move there from Cyprus to the European Union. But it’s not the case, for example, about Lampedusa and Italy. So the strategies of the recent years are mainly the externalization, the different forms of externalization of the combat against illegal immigration.

One is the cooperation with third countries, the so-called gatekeepers, to stop the embarkation from the North African and Middle Eastern shores. The EU established collaboration with Egypt, Morocco, the Libyan coast guard which are relatively effectively, but of course they can’t stop all crossing in the sea.

The other is other form of externalization is some kind of outsourcing asylum procedures. There are certain attempts by Denmark, EU country, and the United Kingdom – which is not an EU country – how they can outsource asylum procedures. This is the so-called Rwanda deal, which is under negotiation, but there’s no any achievement in this case. But what was an achievement – and perhaps it can be the next step which must be considered by the European capitals and Brussels itself – is the Italian-Albanian deal, because Rome made an excellent agreement with the Albanian parties: If they stop the boats in international waters far from the territory of the EU, they can transfer them to a third safe country, in this case Albania; and the first part of the asylum procedure is them going there, outside of the EU territory and outside of EU legislation, which make possible or more easy for Italy to relocate these people if they don’t have any chance to get international protection in the European Union. This is in an early stage, this cooperation, but it seems that even the EU and the Commission accepted it as a possible solution. A lot of member states are watching this closely, by the way, it can work or not. And according to my assumption, it can be a solution for boats besides the collaboration with third countries.

Thank you very much.

MR. KRIKORIAN: Thank you, Viktor.


GEORGE FISHMAN: Mark, thanks so much.

In 1993, the Supreme Court gave the executive branch the go-ahead to prevent a Haitian migration crisis by sea. Not mincing words, the Court concluded that it is perfectly clear that the Immigration and Nationality Act grants the president ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. I read this to mean that DHS can interrupt Haitian marine flotillas in international waters and return the intending illegal migrants to Haiti without having to entertain and adjudicate claims for asylum, for withholding of removal based on possible persecution. Thus, President Biden has the green light to prevent any new Haitian migration crisis by sea should he want to.

I’m going to briefly outline the history of the Haitian migration crises since George H.W. Bush’s presidency, and then discuss what exactly the Supreme Court ruled and why it ruled that way. I’ll also discuss the main legal issue that is still really undecided, which is: Does DHS have the same latitude to intercept boats from Haiti or other countries in U.S. territorial waters and return the occupants without screening them for purported fears of persecution and things of that nature? And that would affect areas between possibly three or 12 miles from the – from the U.S. coastline.

So in September 1981, President Regan issued a proclamation in which he found that the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern U.S. was a serious national problem detrimental to the interests of the United States. He suspended the entry of illegal aliens from the high seas, and ordered the Coast Guard to intercept vessels carrying them and to return them from whence they came. However, President Reagan’s order explicitly said no person who is a refugee will be returned without his consent.

The Supreme Court, in the 1993 decision Sale versus Haitian Centers Council, described what happened next. In the ensuing decade, the Coast Guard interdicted approximately 25,000 Haitian migrants. After interviews conducted onboard Coast Guard cutters, aliens who were identified as economic migrants were screened out and promptly repatriated. Those who made a credible showing of political refugee status were screened in and transported to the U.S. for formal applications for asylum. In September 1991, a group of military leaders displaced the Haitian government of Jean-Bertrand Aristide. Since the coup, hundreds of Haitians had been killed, tortured, detained without a warrant, or subjected to violence or the destruction of their property because of their political beliefs, in the words of the Supreme Court. During the six months after October 1991, the Coast Guard interdicted over 34,000 Haitians.

Because so many could not be safely processed on Coast Guard cutters, the Department of Defense established facilities at Guantanamo Bay in Cuba to accommodate them during the screening process for withholding of removal. Those temporary facilities, however, had a capacity of only about 12,500 persons. In the first three weeks of May 1992, the Coast Guard intercepted over a hundred vessels carrying over 10,000 illegal aliens or intending illegal aliens. In May 1992, the United States Navy determined that no additional migrants could safely be accommodated at Guantanamo. So what to do? What was President Bush to do? As the Supreme Court put it, he had a decision to make. With both the facilities at Guantanamo and available Coast Guard cutters saturated, and with the number of Haitian immigrants in unseaworthy craft increasing – many had drowned as they – as they attempted the trip to Florida – the government could no longer both protect our borders and offer the Haitians even a modified screening process. It had to choose between allowing Haitians into the U.S. for screening or repatriating them without giving them the opportunity to establish their qualifications as refugees.

In the judgment of the president’s advisors, the first choice not only would have defeated the original purposes of the interdiction program – controlling illegal immigration – but also would have impeded diplomatic efforts to restore democratic government in Haiti, and would have posed a life-threatening danger to thousands of persons embarking on long voyages in dangerous craft. So what did President Bush do? As the Court wrote, he adopted the second choice. He directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the U.S. and to return those passengers to Haiti without first determining whether they may qualify as refugees. And after assuming office, President Clinton decided to not modify that decision and to keep that policy.

I actually have a friend who told me he was in the State Department at the time and watched the Haiti policy come together, and during the election campaign they were attacked by the Clinton campaign. And then the Clinton campaign – or, the Clinton administration decided to keep the policy anyway, and my friend asked people within the Clinton administration what was going on. And the response was: Yes, we have the same policy, but we feel bad about it. So I guess that was the difference between the Bush administration and the Clinton administration.

In any event, President Bush issued an executive order relying on his powers under the Immigration and Nationality Act to suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose upon the entry of aliens any restrictions appropriate when he finds that the entry of such aliens would be detrimental to the interests of the United States. His order provided, in part, President Reagan’s proclamation suspended the entry of all undocumented aliens into the U.S. by the high seas. Appropriate instruction shall be issued to the Coast Guard in order to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined vessels carrying such aliens. It goes on, but in any event these actions are authorized to be undertaken only beyond the territorial sea of the United States. That was part of the president’s decision, and the order shall not be construed to require any procedure to determine whether a person is a refugee.

Obviously, litigation ensued. The administration was sued. Litigants were seeking a temporary restraining order to prevent implementation of the order contending that it violated the Immigration and Nationality Act’s mandate of withholding or removal, that no alien be returned, removed, to a country where their life or freedom would be endangered – essentially, where it was more likely than not that they would be persecuted. Got up to the Supreme Court and the Supreme Court ruled the president has directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti and to return those passengers to Haiti without first determining whether they may qualify as refugees. The question presented is whether such forced repatriation authorized to be undertaken only beyond the territorial seas of the U.S. violates the Immigration and Nationality Act’s withholding of removal provision. That was the decision for the Supreme Court.

In an eight to one decision, the Court affirmed the federal government’s ability to repatriate aliens interdicted on the high seas without having to screen them for withholding, ruling that neither the withholding statute nor the refugee protocol to which the U.S. is a signatory applies to actions taken by the Coast Guard on the high seas beyond the territorial sea of the U.S. That’s the go ahead, the green light, that President Biden has should he decide to utilize it. What was the Court’s rationale? Some of the Court’s rationales are still applying to current law. Some have been amended OBE – overtaken by events – because of changes in the law. But let me quickly summarize them.

The first, the withholding of removal statute, says the attorney general must – cannot return, remove, an alien in those circumstances and the Court ruled we cannot say that the interdiction program created by the president, which the Coast Guard was ordered to enforce, usurped authority that Congress has delegated to the attorney general alone. The reference to the attorney general in the statutory text is significant because that term cannot reasonably be construed to describe either the president or the Coast Guard. It’s interesting that since that decision the Department of Homeland Security was created and the Coast Guard was actually placed in the Department of Homeland Security. So that rationale would no longer suffice under current law.

But the Supreme Court’s main decision – main rationale was that the withholding of removal mandate only applies in areas where removal proceedings can be conducted because that is when people make application. That is where withholding of removal is considered. Removal proceedings occur in the United States, not outside the United States, and therefore nothing that occurs outside the United States is subject to the withholding mandate.

As I indicated, I’ll just briefly note that it’s still an open question as to whether the same policy can be undertaken in the territorial waters of the United States. But Walter Dellinger, President Clinton’s assistant attorney general for the Office of Legal Counsel and later President Clinton’s solicitor general, issued an opinion in 1993 that yes, the same rules apply in U.S. territorial waters.

Aliens can be returned, repatriated, without screening for withholding of removal for asylum. That’s never been tested in court. But Mr. Dellinger was a liberal icon. He has made a very compelling case and I would hope that courts would consider it.

MR. KRIKORIAN: Thank you, George.


ERIC RUARK: Thank you, Mark.

In the U.S. we aren’t facing the same challenges at the present time that they are in the European Union or in the U.K. when it comes to irregular migration across open waters because our southern border is so very easy for people to walk across. With Texas and now Florida and likely other states who are going to take steps to attempt to prevent illegal immigration this may change. It may change illegal immigration patterns. Certainly, political instability in Latin America and the Caribbean, particularly in Haiti at the moment, will also provide future challenges and when we talk about political instability certainly in Haiti that’s a long-standing problem that we faced – and George touched on a lot of issues that we faced in the ’90s.

So, you know, I would say that the United States is not well equipped to deal with this potential change in illegal immigration patterns and it’s a legal – excuse me, a political challenge more so than legal. We do have – the president of the United States, despite what he may say, has the legal authority to take action to stop this. Whether he will or not or whether he will be compelled to is the ultimate question.

And we were talking about what we’re going to – the topic of this panel would be. You know, the political situation in Haiti was at the forefront of the news and we were expecting to see more illegal crossings by boat, and Governor DeSantis certainly was anticipating this. Certainly, at least politically he was thinking he needed to get out in front of this by saying that he was going to take action or he was going to task Florida law enforcement to taking action to interdict boats that may come from Haiti.

As George pointed out, there are laws and legal protocols in place to deal with migrants who are attempting to land. The ultimate goal is to land within the United States coming by sea. Clearly, the United States has the authority to prevent this but there are questions about where you interdict these boats. Are you doing it in U.S. territorial waters or are you doing it on the high seas in international waters?

And again, the volume of illegal immigration that’s coming across the Caribbean is not as high as we’re seeing in the Mediterranean or the English Channel, though it has increased under the Biden administration compared to the recent past. What we now see is a few thousand people coming in as opposed to a few hundred previous to the Biden administration. But, again, this pales in comparison to the millions of people who are coming across or through Central America and Mexico and crossing the southern border of the United States and who are being released into the United States by our government.

We also see people who are flying in, and CIS certainly did a good job of publicizing what might not be a secret program but certainly is not well publicized by the Biden administration for obvious reasons. And, you know, I would raise the question has Biden’s humanitarian parole program stopped more boats from coming.

I would say probably. We can’t prove one way or the other. But I think it’s a reasonable thing to suggest that it’s sort of a pressure valve for people who weren’t coming in who want to come in are being allowed to come in through these programs, which we would – George would agree are an abuse of the parole – the president’s parole authority.

I would also suggest that if there’s one thing we want to credit the Biden administration for doing to stop illegal immigration we can say they prevented lots of boats from coming over. Whether that’s because people are finding other ways to get in is another question, but the Biden administration hasn’t had to deal with that what for previous administrations, the Bush administration and certainly the Clinton administration, were political headaches.

And, really, the task that the Biden administration has set for itself isn’t stopping illegal immigration. It’s managing its flow – how to best manage the flow and so that the political optics are, at least in their opinion, in their favor.

And I would also point out that there was an agreement with the Mexican president or the government of Mexico. We don’t know exactly what that agreement was but we do know that the Mexicans are doing something on their end and how long that will persist and how tough they will be in preventing illegal immigration I think is an open question. But if Mexico continues to prevent the flow through Mexico will people then feel the necessity to try to get here by sea.

Yes, there are obvious logistical challenges involve resources, manpower, command and control of sea borders. I think anyone’s who’s ever been on the open water understands how much more dangerous it is than being on land.

These dangers are compounded with, as George pointed out, many of the migrants who are coming aren’t traveling on necessarily very seaworthy vessels and so we have the obligation to make sure that these people are, if possible, that are rescued or at least conveyed safely somewhere so that they’re not drowning in the seas.

And the dangerous journeys – and we see it across land borders as well – the reason that people are making these journeys is because they believe quite rightfully when it comes to the United States that they’re going to be allowed into the United States.

The way to prevent boats is to stop – is to interdict them, first of all, in open waters and send them back. But the other thing is the people who do end up making it to the United States aren’t going to be released into the United States to reside, to work, to remain long term, that they will be detained until they have an immigration hearing. That will stop people from making the dangerous journey by land or by sea.

In our last panel I talked about how the majority of inadmissible immigrants who are entering the – inadmissible aliens who are entering the U.S. aren’t claiming asylum and those who do will – most of them will have their asylum claims rejected if they go through the adjudication process.

Despite this fact, illegal border crossers are still often portrayed in political debates and in media reports as somehow having the right under U.S. law to enter, to reside, and to work in the country, and I would borrow a famous legal phrase from the U.S., the penumbra.

They are coming under this penumbra asylum law and what I mean by that is this encompasses anyone coming from anywhere in the world who is trying to escape poverty or areas of high crime or referred to as climate refugees or simply want to come to work in the United States because they want a better life.

Not everyone is getting into the United States but almost everyone is getting in, according to the DHS Secretary. I think it was Woody Allen that said, well, 85 percent of success is just showing up. Well, that’s about what it is for people who are showing up at the U.S. border. Their success of getting into the country is very high, and so when people push back and say it’s not open borders, it’s pretty close.

The challenge of establishing operational control over our land and sea borders is real but it’s not the main impediment that we face. The main impediment is our federal government is run by one political party that acts as if the rule of law was irrelevant to the functioning of our immigration system and another party that complains a lot about the abrogation of law but then votes to fund its continuation.

In February the U.S. House of Representatives impeached Secretary of Department Homeland Security Alejandro Mayorkas, only the second time this has happened in U.S. history, and then two weeks ago voted to fund the very policies that he implemented for which he was impeached.

In January I spoke about how this is a genuine constitutional crisis they have to fix. I don’t think anyone can make a convincing argument that President Biden is faithfully executing his duties to carry out laws passed by Congress. And Mark asked me in January: What do you do when you have an executive who won’t enforce immigration law? And I think that’s the million-dollar question – or, I guess, in today’s inflationary terms, a trillion-dollar question – you know, what are we going to do about this?

And, you know, I want to touch on what George and Viktor have raised and sort of put that in the context of practical applications dealing with how to stop this. I’ll say, to compare it to what we see in the EU, we have individual countries who are trying to implement specific policy – immigration policies – to deal with specific national interests and challenges that they’re facing and a lot of pushback is coming from the EU government in Brussels. I think we can compare that somewhat to what’s happening in the United States. Immigration policy is set at the – in Washington, D.C., at the federal level but we see the effects felt at state and local levels and what is the role for state and local governments to play.

I ran this by George earlier this week and, you know, my argument is it’s very much an open question as to what states can do, and George said to me, well, you’re not wrong, which is about the highest praise, I think, you can have from a lawyer. (Laughter.)

So briefly, just to talk about – yeah?

MR. FISHMAN: You paid your bill on time. I think that would be –

MR. RUARK: OK. (Laughter.) Yeah. When we’re looking at Texas with S.B. 4, which allows Texas law enforcement to arrest people who are coming over the border illegally, or we’re seeing what Governor DeSantis does, which is to prevent people from coming into the state by boat, there’s a difference between what we do see the states being allowed to do which is to, for instance, mandatory E-Verify or deal with people and have consequences for people who are in the state already illegally as opposed to trying to prevent people from entering their borders – foreign nationals from entering their borders.

That’s a much – it’s a very different question and I think it’s very much open for the courts to decide, and the way we see the Supreme Court deal with these issues with Texas and other states I think will, largely, determine the future of immigration policy, particularly when we have an executive who doesn’t want to enforce the law.

So I would say my main point here is we’re not seeing a lot of boats coming from Haiti or elsewhere. That may change depending on what we see the Mexican government do or states do as well, and I don’t think that our immigration system is able to respond to a genuine crisis like we’re going to see continue in Haiti.

It would be very optimistic to think that Haiti is going to stabilize politically in short order. This is a problem we’ve been dealing with for decades. I think it’s a problem we’re going to have to deal with for many more years and our federal government at this time basically has set up a system which is unable to respond to acute crises but also is sending the message – has sent the message out that if you come to the United States we’re going to let you in as an economic migrant, and that hinders our ability to deal with refugees and asylees in a practical manner whether they’re coming by land or by sea.

MR. KRIKORIAN: Thank you, Eric.

As a reminder, you can send questions to [email protected]. I already have one but I wanted to ask a question since I own the microphones.

The question for you, Viktor, and this is the issue that actually relates both to the U.S. and to Europe, what – you talked about gatekeeper states and have written about that some for the Center as well – in other words, countries, you know, next to or near the destination countries and getting their cooperation and what have you.

But what do you do with – especially in the case of seaborne migration when there is no government because Libya, I mean, kind of – well, Libya doesn’t really have a government and Haiti doesn’t really have a government. Where do you – what do you do with people that you do, say, on the high seas, you know, you take – you interdict the boats and who do you deliver them to if you were going to do that?

Because you mentioned Albania but Albania has a functioning government. Libya doesn’t really and neither does Haiti. What do you do in those kind of cases?

MR. MARSAI: Yeah. First of all, I think it’s important to emphasize that human smuggling and organized crime is about money and benefits, and it’s very interesting to see that, well, there is no really functioning government in Libya but there is a somehow functioning Libyan coast guard – (laughter) – and even when the situation was much worse in 2017 somehow at a certain point the Libyan militias who previously controlled human smuggling they stopped to send the boats.

There were rumors – I don’t want to believe them – that the Italian government paid for the smuggling networks, that, OK, this is the money, they got some political concession to get some position in the government, which means possibilities to reach the assets of the Libyan state or et cetera, et cetera.

But anyhow, the –

MR. KRIKORIAN: So they paid the militias that were smuggling people to not smuggle them?


MR. KRIKORIAN: In other words, don’t get your money from the aliens – we’ll give you the money. Just don’t smuggle the aliens.

MR. MARSAI: At least according to rumors.


MR. MARSAI: Yeah, and I think it’s very important that you can use these political concessions also because just changing the money is not a solution. And I think this Albanian case is also very important because they are speaking a lot about these third countries as possibilities for cooperation and, of course, it’s always a tradeoff. And this is why everybody is very excited what will be the end of this Albanian collaboration, because if there is a possible collaboration with Albania if the U.K. managed to collaborate with Rwanda it means that there are perhaps possible third countries which can be places for asylum procedures.

And everybody’s speaking about how costly is it. For example, the United Kingdom paid 120 million pounds for Rwanda – for the Rwanda initiative, and it seems a lot of money and, of course, I would be happy to see this money in my bank loan.

But comparing the price and what illegal immigration means certain countries are – and I would like to refer to the analysis of Steve Camarota who wrote, I think, that one illegal immigrant cost $68,000 per year for the United States. So, comparing this money, I think it’s a really cheap solution.

MR. KRIKORIAN: It’s a bargain, yeah, at twice the price.

So here we have a question and I guess, George, this would be for you but anybody who wants to chime in. How does the wet – so-called wet foot/dry foot policy with regard to Cubans showing up in Florida that the Clinton administration put in place how does that relate to what you’re talking about? Isn’t that sort of – in other words, the idea was if Cubans got onto the beach so their feet were dry that they got to get in. If they didn’t they didn’t. And so presumably if their feet were wet, as it were, they would still be in U.S. territorial waters in many instances. How does that relate to what you were talking about?

MR. FISHMAN: The wet foot/dry foot policy related, as you said, to Cubans and essentially was if they reached dry lands on U.S. territory they were in and under the Cuban Migration Act, which has been the law since the 1960s, once they’ve been in the country for a year they then can become permanent residents, which is unique to Cubans. But if they were encountered on the seas they could be returned to Cuba or to a third country.

The issue – the legality of it I’m not sure was ever litigated but I’m sure the issues would be exactly the same and the principles the Supreme Court enunciated at least in terms of the high seas would be the same. They could be returned to Cuba without any sort of asylum screening or anything else should that be the – what the U.S. government wanted to do.

MR. KRIKORIAN: So nobody challenged the policy at the time. I mean, that’s interesting because –

MR. FISHMAN: I need to double check that, but I don’t remember legal challenges going on.

MR. KRIKORIAN: Interesting. OK. Interesting.

So I have another question and this is – sort of relates, whoever wants to take it, but it kind of relates to what you talked about, Viktor, because this – they’re asking about this – the deal Italy has with Albania and isn’t that kind of like our remain in Mexico program in the sense that they – it’s like remain in Albania but you can still apply for asylum in Italy, right?

So it’s very much similar and that really doesn’t solve the problem in some sense because they’re still able to apply for asylum whether they’re – it’s part of remain in Mexico, which this administration has discontinued but may start again, or they remain in Albania even if they’re not Albanian. They’re sent back there but can then apply for asylum.

So is that – I mean, is that the way it works for this Albanian deal? It’s the same kind of thing as remain in Mexico?

MR. MARSAI: A little bit, yes, but the difference is that similar to the United States one of the biggest challenge for the European asylum system that it’s highly overburdened and the procedures have years of backlog, and what’s happening or what will happen in Albania is actually a prefiltering process.

So asylum seekers will spend four weeks there. This is the maximum time, so 28 days. And during this time, the Italian authorities can precheck whether these people have any chance to get asylum in Italy, and if there’s a possibility they will be transferred for a regular procedure into the Italian territory.

The big question is what will happen if they are not, and it will be the cornerstone of whether it’s maintainable or not. Because if they spend four weeks in Albania and anyhow they will be transferred to Italy, or they will stuck there because Italy can’t repatriate them to the country of origin, then it will be the same case. And I’m not sure that then Albanian authorities will be ready to host 10,000, 50,000, 100,000, let’s say, economic migrants in their territories, not to mention that they are already on the land and, you know, crossing the Western Balkan(s), it’s relatively easy to reach the European land borders also.

MR. KRIKORIAN: Interesting. So just to put it in our context, they wait in Albania but rather than waiting there for a full asylum hearing they wait until they get what we call a credible fear interview to see whether they might qualify. That’s interesting.

MR. MARSAI: Definitely.

MR. KRIKORIAN: So, George, there’s a question for you but anybody who wants to take it. Eric, you too.

What – I mean, specifically, what kind of authority do governors have in dealing with seaborne immigration? Is this something that really hasn’t been litigated? What’s the story?

MR. FISHMAN: That is a(n) excellent question. I don’t think there really is an answer right now.

I think there may be an answer soon in the context of the Supreme Court’s considering the state of Texas’ S.B. 4 legislation which essentially in certain circumstances allows Texas officials to, quote/unquote, “deport” aliens back to Mexico.

I would think under the precedent of the Supreme Court’s Arizona decision of about a decade or so ago under Justice Kennedy’s opinion that the Supreme Court, if asked to decide a case, would say states don’t have the right to do that.

But, you know, that was the Supreme Court a decade ago. Who knows what it will decide now. But all eyes should be on how it rules in this Texas case.

MR. KRIKORIAN: Interesting.

MR. RUARK: One thing when I was looking at it I thought about was what other area of the law does the federal government not want states to help them. Talk about drug smuggling or whatever it is. Immigration is the one where they say to the states, please don’t help us.

And, you know, states, obviously, can patrol their own waters for law enforcement purposes but the issue is if you’re encountering someone who is an alien who’s inadmissible, the state has possession of them, detains them, the federal government says you must let them go, I don’t think the state really has a choice other than to let them go unless you have, like, a 287(g) agreement or something where the federal government says to the state, please help us, and I think that’s where you need to look at.


MR. MARSAI: Yeah. So just a small remark about this whole third country issue, Albania, Rwanda, et cetera, et cetera. There was a recent survey by a German think tank in Africa and they tried to figure out which policies has any effects for deterrence of people who are not asylum seeker, just economic migrant, and they want to leave for Europe for the greener pastures.

And it revealed that not the reduction of or accessibility of social services for asylum seekers or shortening asylum procedure or any other has any significant effect. Only one reveal that has very important effects, this outsourcing activity. Because if somebody heard about the possibility that making the route, paying thousands of dollars for human smugglers, and he will be returned to Rwanda for the whole asylum procedure, or Albania, that it has a(n) almost 30 percent deterrence factor in the survey.

So I think it’s very important to emphasize that the real case is not whether Italy will be successful to make this annual – now the annual cap is 36,000 procedure in Albanian areas. It’s a peanut. And in the case of U.K., if even they managed to fly – to manage to fly back to Rwanda some thousand persons annually, not – it’s not the real case. The real case is a deterrence effect of it.

MR. KRIKORIAN: Interesting. Yeah.

We have a question here. It’s sort of, again, on the Cubans in Florida issue and this is a political thing. Maybe, Eric, you would know about this. Is the Cuban lobby in Florida politics an obstacle to Governor DeSantis or whoever’s in charge of Florida acting on this? And I would just add before you have any comments, I just read a story yesterday about a bunch of Cubans who showed up in not Key West but one of the keys and – or at least was approaching it and apparently Florida, whichever the state agency is, it’s, like, I don’t know, wildlife or something like that, intercepted them, handed over them to the Coast Guard and that was the end of it and they were sent back. So it doesn’t seem that the, you know, important Cuban lobby in Florida sort of prevents any efforts on the state level to enforce their own coastline border.

MR. RUARK: It is the wildlife service. That’s one of the agencies that was tasked with turning people around.

I think probably the Cuban lobby is less influential than it was, say, 20 years ago or 30 years ago. I think another difference is a lot of people are coming from places other than Cuba and that determines their willingness to allow Governor DeSantis to stop it.

MR. KRIKORIAN: Right. Right. This is for me and it relates to Cuba but also relates to Europe, to some degree, this idea of the gatekeeper countries – in other words, in our context here the countries on the other side of the water.

Cuba is not a friend of the United States. I mean, we have a migration agreement so there is – we do have some kind of cooperation with them. But they’re not our friend and in fact they’ve launched, you know, migration attacks basically against the United States, instrumentalizing immigration.

We would – that’s the European term. We would call it weaponizing. As part of the, for instance, the Mariel boatlift.

But Europe has some degree – I mean, I don’t know. Viktor, you can fill in. It’s not the same degree of hostility but, you know, Turkey’s Erdoğan is not super friendly with Europe and is that a challenge when you’re dealing with the country on the other side of the water that isn’t really all that interested in stopping maritime illegal immigration unless you pay them to do so?

In other words, maritime illegal immigration is one of the ways migration can be weaponized against countries and, you know, how do you – how does a country deal with that? Any ideas?

MR. MARSAI: OK. Oh, then I will start.

Yes, of course, it’s a possibility. So it’s the gatekeeper countries are not only friends but possible actors which can blackmail Europe and – or the United States and it’s very visible. But again, ladies and gentlemen, there are bad and worse decisions.

So if you have a look at Turkey the current number of Syrian refugees in Turkey is 3.6 million people. There are, according to rough estimations, between half and 1 million other refugees – Afghans or Bangladeshi, other people. So let’s say more than 4 million people. OK.

So, yes, Ankara played this instrumentalization or weaponization story through 2020 and they let some tens of thousands people to try to cross. OK. But each month when this deal is working it means tens of thousands of people at least who didn’t cross the European borders.

So, yeah, it’s a very complex collaboration. We have to invest in it. It’s a possibility for blackmailing. But to tell you the truth, I don’t know at this point a better solution.

MR. FISHMAN: Mark – oh, I’m sorry.

MR. KRIKORIAN: No. No. Go ahead.

MR. FISHMAN: I just recollect that during the Trump administration President Trump’s solution was to threaten massive tariffs against imports from Mexico, which seemed to have influenced the Mexican government.

MR. KRIKORIAN: Right. But Mexico would be more comparable to Turkey in that sense in that they’re not really enemies but they’re willing to leverage their geographical position to get money and other benefits.

Cuba is more – I mean, Cuba is more, even with the end of the Cold War – and it’s no longer a Soviet colony – it still is more hostile to us than most other examples of nearby countries and since it’s the big country that’s relevant to maritime illegal immigration that’s potentially a problem.

Eric, did you have any thoughts?

MR. RUARK: If policies are put in place – a new president comes in or Congress stops funding what’s happening or if states have a bigger role – start playing a bigger role – smugglers are going to take any available avenue. And if that becomes by water, over sea, they’re going to do that.

And, as George pointed out, the president – the executive has a lot of authority to act but that doesn’t mean that there’s policies in place. You just can’t – you know, the federal government can’t turn on a dime and say, OK, we have these things in place to deal with it, and I think we have a federal government that’s unprepared if we were to see that challenge to have a response or at least one that would be effective immediately.

MR. KRIKORIAN: I mean, personally, it seems to me this is – the whole issue of maritime illegal immigration or the potential of it is a really strong argument for further normalization of relations with Cuba because Cuba really is, you know, potentially in the catbird seat in dictating – you know, in using immigration as a weapon against us and, you know, it seems to me that establishing a more normal relationship with Cuba is an important part of trying to limit the potential for future maritime illegal immigration.

I just had a last question. This one’s from me and this is a kind of broader thing, almost sort of the premise of what we’re talking about.

A couple of years ago I remember talking to Viktor about this issue of land borders versus sea borders and which is – which are easier to defend, and my sense had always been, well, it’s obviously better if you have a sea border because you can’t just walk across the water, and if it’s the Atlantic Ocean then that’s probably true.

But in cases where it’s, you know, a shorter area that is practical to cross, you know, it seems to me – I mean, Viktor has persuaded me that land borders are actually way better to have than sea borders. Anybody has any thoughts on that? Viktor?

MR. MARSAI: Yes, because, you know, we have, let’s say, not so friendly nations in the European neighborhood and it’s Belarus and Russia and they weaponized illegal immigration 2021-22 when they –

MR. KRIKORIAN: So not to interrupt but, in a sense, that’s the equivalent to Cuba for us.

MR. MARSAI: Yeah, in diplomatic –

MR. KRIKORIAN: Right. But it’s a land border.

MR. MARSAI: Or they are worse, I think. But it’s a land border, and it was very evident that Poland completely closed its land border and they launched this pushback practice, sending back everybody. And really – (inaudible) – it’s not a possibility to send tens or hundred thousands of people across the land borders because it was fortified by physical barrier.

The United States don’t have the similar possibilities in the sea because of Cuba, because, OK, even if you stop them the high sea, OK, what are you doing? You can bring back to Cuba if you’re going to the shore, but the Cuban navy will shot or something.

MR. KRIKORIAN: And, likewise, as you mentioned, in the Mediterranean if you have a rickety boat and they, you know, tow it out to the international waters from Libya and then leave it if they start thinking you have to go and save them. There is – you’re not going to drown on the border between Belarus and Poland. George?

MR. MARSAI: Yeah, it’s true.

MR. FISHMAN: This sort of, like, combination of land and sea in which, you know, the Biden administration or some future administration could again use Guantanamo Bay in Cuba as a place where tens of thousands of people can be held and both for processing and as a deterrent they’re not getting into the United States.

MR. KRIKORIAN: Right. Right. Yeah. And just as a last point, your combination of land and sea reminded me that we talk about illegal immigration from Mexico all the time, coming across the Rio Grande or coming across the land border. The Rio Grande is water but it’s essentially like a land border.

But you’re seeing – and this was just in the news recently – smugglers bringing people up the Pacific Coast on a boat and then putting them on small fast boats and getting them into, you know, San Diego area or L.A. or – well, maybe not quite as far as L.A. But that’s a kind of combination land and sea migration as well.

So, anyway, thank you, gentlemen, for participating in this. I think this was a really useful discussion. This is an issue that we really – that just hasn’t been talked about enough about the particular challenges that maritime illegal immigration presents even though we’re always talking about land-based illegal immigration.

So we will have the recording of this on our website and as a reminder, again, this is a(n) International Network for Immigration Research – INIR – event and so it will be on INIR’s website as well eventually once it gets up. I’m not going to give the web address yet because it still – it hasn’t been fully cooked yet.

In the meantime, thank you, everybody, for tuning in. Thank you, gentlemen, for participating and we hope you will come and listen to our next event.