crimmigration.com

The intersection of criminal law and immigration law

In the name of border security

Jennifer Chacón

On April 18, 2013, César did a masterful job of describing the “crimmigration provisions” of the behemoth comprehensive immigration reform bill that is currently wending its way through the Senate. He summarized the various sections of the bill, which begins with a sweeping set of provisions relating to “border policing and prosecution.” As César noted, the legalization provisions of the bill will not go into effect until certain “border security” benchmarks are met. The bill as initially drafted focused a significant portion of its security initiatives on the U.S.-Mexico border, requiring, among other things: 1) that DHS certify “effective control” – translated into a 90% apprehension rate for unauthorized crossers – in certain “high-risk” areas along the U.S.-Mexico border; 2) that $1.5 billion be allocated for a Southern Border Fencing Strategy; 3) a significant increase in funding for illegal entry and felony re-entry prosecutions along the Southern border, particularly in the Tucson sector; and 4) increased funds for “Operation Stonegarden,” which are used to pay state, local and tribal officials to participate in border security efforts. Of course, the bill’s drafters do have security concerns that extend beyond the Southern border, but the bulk of the resources and rhetoric are focused on that region. Subsequent amendments to the bill have hammered this home.

On May 17, 2013, the Washington Post published a summary of the various amendments that the Senate Judiciary Committee made to the immigration bill during its first three days of hearings. A few of the amendments relating to these “border security” provisions caught my eye. Here is a representative sample:

  • -First, S.B. 744 initially would have required “effective control” of “high risk” areas of the Southern border. An amendment by Senator Grassley of Iowa, which passed by voice vote, strikes all references to “high risk” sections of the border, and requires that 90% of unauthorized entries along the entire U.S.-Mexico border (but no other border or port of entry) be stopped before the legalization provisions go into effect.
  • -Second, as Dylan Matthews of the Washington Post notes, Senators Leahy and Cornyn proposed an amendment, which also passed by voice vote, and which would require DHS to “consult with the Secretaries of Interior and Agriculture, as well as state and local governments, in determining where on the Mexican border to place fencing.” Notably, the provision also “clarifies that no fencing will be placed on the Canadian border.”
  • -Third, by voice vote, the Committee approved an amendment by Diane Feinstein that limited the use of border patrolling aerial drones to within to three miles of the border in California.

The quality of life of U.S.-Mexico border residents has been sacrificed on the altar of border security since the mid-1990s, notwithstanding the lack of empirical evidence that the ongoing militarization strategies are effective, cost-effective or desirable. The recent amendments to the border security bill point out the degree to which the needs of these border residents continue to be traded off to achieve larger political and immigration policy goals.

These amendments suggest that we need “effective” control of the border – but only if that border is with Mexico. These amendments also assure us, lest we be worried that northerners and Canadians might have to confront the unsightly fences that already mar the landscape in California, Arizona and Texas, that this eyesore is reserved for the residents of southern border states and Northern Mexicans. As someone who grew up along the U.S.-Mexico border, I was struck by the fact that the Senators clearly recognize the harm of fencing when they passed these amendments; hence, their desire to shield certain geographies from fences and quotas. Yet, at the same time, the harms seem to be systematically underweighted when the conversation turns to the U.S.-Mexico border. These discussions reminded me of Pratheepan Gulasekaram’s article Why a Wall?, 2 U.C. Irvine Law Review 147 (2012), in the second issue of the U.C. Irvine Law Review, in which he chronicles the ways in which the southern border fence is an act of political theater with insufficient mooring to the realities of migration or border life.

Like the Grassley, Leahy and Cornyn amendments discussed above, Senator Feinstein’s drone limits acknowledge implicitly the costs of border militarization. But the drone limits that the Senate has thus far enacted will not do much for the people who live close to the border in cities outside of California. And even limiting the drones to three miles of the border still leaves hundreds of thousands of residents along the southern border exposed to the noise of drones, the eyesore of border fencing and floodlights, and the disruption and unease generated by the constant presence of Border Patrol trucks and armed guards. This is a sort of a geographically determined criminalization that extends far beyond those prosecuted, detained and deported for immigration offenses.
In reading S.B. 744 and these recent amendments, I was reminded of my 2007 visit to the museum at the infamous Checkpoint Charlie in Berlin, Germany, where I snapped a photo of a poster that proclaimed that “walls aren’t built for an eternity.” Here’s hoping.

Jennifer Chacón is a professor at the University of California Irvine School of Law.

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