Buying Time: The Non-ticking Clock of Asylum

• In Event: The Legal Construction of Time and Terminology in US Migration Policy

Abstract

Waiting is known to shape the experiences of those who try to navigate asylum and immigration systems. However, waiting does not capture all that time is and becomes within the bounds of asylum. Time is not only suspended for what seems, and sometimes is, longer than a decade, plunging asylum seekers into a liminal experience of being neither here nor there. Rather, time can be transacted, bought, and made use of. In this paper, I argue that time is a good, a resource, that sometimes is scarce, sometimes copious. To make that argument, I show how asylum seekers speed up and slow down the United States asylum clock. After that, I outline the normative consequences of the argument: if time is a good that can preclude or grant rights, then one ought to explore what the distribution of that good should look like.

Relying mostly on semi-structured in-depth interviews, this paper seeks to fill a gap in the migration studies literature on time and temporalities. Even though some do describe it as active instead of passive waiting (Lakha 2009), scholars have almost exclusively focused on people’s experience of “waiting” (Biehl 2015; Fee 2021; Jacobsen, Karlsen, and Khosravi 2021; Tsagarousianou 2022). This waiting time is characterized as a mechanism of control that is always and only in the hands of the state. However effective these arguments are in pointing out the injustices committed against migrant populations, this literature forecloses a broader account of time, of how ordinary actors, under conditions of oppression and, sometimes, against all odds, employ time to resist what is imposed on them. Differently, this paper argues that time is a good that asylum seekers and attorneys can use to their advantage. Consequently, one can exchange time for money to avoid waiting or buy time to spend longer waiting.

But how is time a good? And what kind of good is time? The term “good” refers to a tangible or intangible product or service that satisfies a desire or need, and it generally has an exchangeable value. Goods can also be traded through buying and selling transactions. In this case, time is an intangible good that can be exchanged for freedom, after serving in prison, for a green card or citizenship (Cohen 2018). But beyond the state, I argue that time is a good that ordinary people can employ to strategically secure their livelihoods. First, asylum seekers can pay to not wait. If they can afford it, they will be able to skip the asylum queue that forces them into the protracted situation that the literature has almost exclusively explored. Filing the expensive Writ of Mandamus is the paradigmatic way asylum seekers do that. Second, asylum seekers can buy themselves time to stay in the country for as long as possible while they save money in case of deportation or work on securing other legal pathways to stay. This is particularly the case in states where most asylum cases are being denied. Since asylum seekers are not going to win asylum in those states, the work of some attorneys has shifted towards a fight for time, and better time, so that they get to stay.

This points to the kind of good that time is. I defend that time is akin to a diminishing returns good, wherein the incremental benefit obtained from owning time decreases as one has more or too much time. In this way, time is useful when you have the right amount of it. If you have too much of it, time will easily become waiting. If you have too little of it, time will most likely be experienced as frenzy, leading, in the case of asylum, to usual violations of due process. But what “too little” and “too much” amount to also depends on the case and the resources one has. If you have already compiled all your evidence, are in a liberal state, or can afford a private attorney, you might not need that much of it. However, if you have a so-called “weak” case, you might want as much time as possible. Deviations from such levels may result in diminishing returns at best, and seriously harmful consequences at worst. Hence, the way time is distributed can preclude, delay, or grant rights.

Currently, the amount of time that people have is either arbitrary or a factor of the quality of their legal representation or their economic capital. However, if time is a good then this paper can open the space to explore normative arguments about its distribution. Some actors may need copious amounts of time, while others may need just a little. Some actors might deserve more time, while others less. In making these decisions, we should carefully consider the criteria of justice that ought to guide such distribution -whether it be need, desert or effectiveness-, and to determine among whom time should be distributed. As this paper concludes, failing to carefully reflect on the right distribution of time may lead to issues of not only inefficiency but inequity or injustice. It is time to situate time in the broader thinking of justice in migration systems.

Author

• Anna Closas, University of California, Berkeley