U.S. Commission on Civil Rights

Presentation on the Civil and Human Rights Implications of U.S. Southwest Border Policy

November 14, 2002

Executive Summary

In step with the U.S. Commission on Civil Rights’ historical concern with the problems facing immigrant groups, on November 14, 2002, several local San Diego immigration advocacy group representatives prepared a presentation for the Commission regarding the civil and human rights consequences of U.S. border policy along the Southwest frontier with Mexico. The groups delivered their presentation the day before the Commission’s monthly meeting, which happened to be in San Diego for November.

The presentation highlighted the problems associated with the tightening of border controls under the Immigration and Naturalization Service’s initiative in southern California known as Operation Gatekeeper. Five panel members who had recognized expertise or experience regarding INS border control initiatives and Southwest immigration issues spoke to the Commission. The panel members testified generally on the humanitarian and civil rights impact that Operation Gatekeeper has had on cross-border traffic. This includes both the dramatic rise in deaths of migrants who cross extreme desert and mountain terrain to circumvent tightened border control in urban areas, and the rise of vigilante groups forcibly detaining suspected undocumented migrants on the U.S. side of the border. The panelists also offered policy recommendations as to short- and long-term solutions to the humanitarian disaster along the Southwest border. These steps include relaxing border controls, providing more resources to safety and rescue programs, instituting temporary guest-worker programs, and funding and developing microenterprise initiatives in the countries where immigrants originate.

At the conclusion of the presentation, the Commission expressed concern about the physical and mortal dangers faced by undocumented migrants under current U.S. border control policy. The Commission also took note of the contradictions between domestic labor and border enforcement policies, such that immigrants are enticed to enter the country to fulfill domestic labor needs, but forced to undergo a life-threatening trek to arrive in this country. Finally, the Commission agreed to call upon the U.S. Department of Justice to investigate the reported incidents of vigilantism against suspected undocumented migrants along the U.S.-Mexico border.

Presentation Introduction

The presentation was introduced and moderated by William Aceves, professor of law and director of the International Legal Studies Program at California Western School of Law, and a board member of the San Diego American Civil Liberties Union (ACLU). Professor Aceves stated that the primary focus of the presentation was to discuss Operation Gatekeeper, an initiative to prevent illegal border crossing, and its implications. Launched in 1994, Operation Gatekeeper has concentrated Border Patrol resources in parts of urban San Diego that were once popular crossing points because they offered relatively easy, low-risk access to the United States. It was expected that migrants would be deterred from trying to cross in these newly fortified stretches. According to Professor Aceves, Operation Gatekeeper was instituted with the knowledge that some migrants, intent on entering the country, would be funneled into inhospitable regions and placed in mortal danger. Since 1994, he said, there have been more than 2,200 documented instances of men, women, or children dying of heat exhaustion and dehydration, hypothermia, or drowning in the attempt to cross into the United States. Professor Aceves stated that organizations as diverse as the General Accounting Office and the Public Policy Institute of California have questioned the success of the border strategy in reducing illegal immigration and have pointed to the human costs involved.

Professor Aceves explained that the presentations by the panelists would include a discussion of the human toll of Operation Gatekeeper, the national implications of Operation Gatekeeper, the impact of Operation Gatekeeper on the Latino community, and the international implications of Operation Gatekeeper.

Human Toll of INS Border Policies

Wayne Cornelius, professor of political science and U.S.-Mexico relations at the University of California at San Diego, and also the director of the Center for Comparative Immigration Studies, as well as the director of the Center for U.S.-Mexican Studies, provided a quantitative analysis of Operation Gatekeeper, supplemented by a slideshow presentation. In Dr. Cornelius’ view, the current border patrol policies constitute “the most obvious, the most acute, and the most systematic violation of human rights occurring on U.S. soil today.”

Dr. Cornelius was highly critical of the four INS enforcement operations initiated in the 1990s to fortify the busiest, largely urban, entry points along the Southwest border: Operation Hold the Line in El Paso in 1993, Operation Gatekeeper in the San Diego area in 1994, Operation Safeguard in central Arizona in 1995, and Operation Rio Grande in the south Rio Grande Valley of Texas in 1997. The four operations have shored up less than 10 percent of the U.S. border with Mexico; however, they cover once heavily trafficked stretches. The construction of high-technology, concrete, bollard-type fences; 24-hour video surveillance; and infrared nightscopes has shifted illegal crossing activity away from urban areas such as San Diego into inhospitable mountain and desert regions such as the Arizona desert, where little or no fencing exists.

The most dramatic consequence of the current INS strategy, including Operation Gatekeeper, according to Dr. Cornelius, has been the rising mortality rate among undocumented migrants attempting to illegally enter along the Southwest border. Deaths have increased markedly in the desert areas of Arizona. Dr. Cornelius stated that death by dehydration occurs because it is impossible for migrants to carry enough water during the multiday trek across the desert, especially in the intense 115 degree heat of summer. Another peril facing migrants includes the All American Irrigation Canal parallel to the California and Arizona borders with Mexico, whose deceptively swift current contributes to migrant drownings. The contaminated New River also poses a health and drowning threat. According to Dr. Cornelius, after more than eight years and $20 billion expended on concentrated border enforcement, “basically what we have to show for it is more than 2,200 deaths.”

Thus, according to Dr. Cornelius, “what we have is a triumph of symbolic . . . politics and economics,” whereby the border is visibly fortified in urban locations, but ineffectual in deterring crossings elsewhere in inhospitable areas, thus leading to the deaths of migrants.

Claudia Smith, an attorney with the California Rural Legal Assistance Foundation, provided further details on the implementation of Operation Gatekeeper. The theme of her presentation was the human toll of “immigration control policies collid[ing] with the reality of our demand for low-skilled labor.” According to Ms. Smith, by November 2002 more than 350 people had already died, 200 during the summer and early fall months.

Ms. Smith supported Dr. Cornelius’ observation that the strategy was designed to push undocumented foot traffic out of urban areas and the public eye, into dangerous, remote regions. “It was not designed to seal the border—something that is not only unrealistic but probably undesirable from the perspective of both the U.S. and Mexico,” according to Ms. Smith. She reported that a former INS commissioner had acknowledged that “in a global economy a degree of undocumented labor must be tolerated in order for the U.S. to keep competitive.”

Ms. Smith claimed that more than a quarter of all border agents were assigned to just a 60-mile sector along the U.S.-Mexico border near San Diego. The sector also reportedly encompassed 75 percent of all fencing and 25 percent of all stanchion lighting. According to her, however, “all that has been achieved at an enormous cost in life is the appearance of a border under control.”

Ms. Smith also reported that three General Accounting Office studies have questioned the efficacy of the INS’ Southwest border control policy. Ms. Smith reiterated that a recent drop in border apprehensions is more attributable to economic recession than to border control policy. Moreover, Ms. Smith noted that the rate of deaths did not fall proportionately as fast as the drop-off in apprehensions. According to her, border control was becoming more deadly. The grimmest example was the Border Patrol’s Tucson sector, where apprehensions fell by 26 percent in fiscal 2002, but migrant deaths actually rose by 70 percent during the same period—that is, 55 more deaths in fiscal 2002 than the year prior.

In response to the question of what the INS response has been to the rise in border deaths, Ms. Smith contended that both the Mexican and the U.S. side have tried to avoid publicity, but that the U.S. has been “shamed” into integrating a search-and-rescue component into the Border Patrol. The border is too vast and wide, however, for the INS search-and-rescue component to successfully mitigate migrant deaths, she said. Dr. Cornelius added that the INS’ “knee-jerk response” has been that “coyotes,” or immigrant traffickers, are the heart of the problem, even though it is in the interest of coyotes to ensure that their human cargo arrive safely, since the coyotes do not get paid the bulk of their fees unless the client survives. In some sense, more coyotes may even be better, since unassisted crossings are the most dangerous.

Ms. Smith also explained that although the Border Patrol has blamed smugglers for the rising crossing deaths, the increased border tightening actually fueled the problem by forcing people to have to resort to smugglers in order to increase their chances of successfully crossing the border.

Roberto Martinez, former director of the American Friends Service Committee Border Project, also commented on the human toll of Operation Gatekeeper and similar strategies in Arizona. Roberto Martinez reported on first-hand observations that he garnered on a tour of the Arizona border region. In his opinion, Operation Gatekeeper is having a tremendous impact on deaths on the border in Arizona. Mr. Martinez stated that Operation Gatekeeper and Operation Hold the Line are “squeezing” migrants into the desert regions of Arizona, where not only do they have to deal with the elements, but also with bandits and wildlife, such as snakes and scorpions.

Mr. Martinez reported that at the location he visited, some 1,000 to 1,500 Mexicans—a majority from Chiapas—would gather every day to make the attempt to cross the border. The individuals appeared indigenous and small and were able to carry only two to four gallons of water with them. Mr. Martinez related an incident where his party came across a group of four people beaten, robbed, and in a state of dehydration near a 30-gallon water drum in the Ajo desert of Arizona, where the majority of people are dying. The group said it took them three days to travel 60 miles in the desert to reach that point and that they had each only brought two gallons of water with them.

Mr. Martinez also related the story of a Mexican woman whom he met on a Border Delegation to Washington, D.C., whose brother had died attempting to cross the border. The local authorities would not release the body for some two to three weeks. As she drove the body back to the border, she ran across groups of migrants and stopped to tell them, “Look, this is what’s waiting for you out in the desert.”

Professor Aceves reiterated that Operation Gatekeeper and the INS’ other border initiatives were designed to channel migrants away from populated regions into inhospitable ones, and that U.S. government officials had explicitly acknowledged this strategy. However, there were serious questions as to the efficacy of this policy in deterring migrants. He stated that “the United States has failed to take adequate steps to minimize the tragic loss of life” and hoped that by publicizing the human tragedy occurring, the U.S. government could be persuaded to reconsider its border enforcement strategies.

Rise of Border Vigilantism

Mario Obledo, a co-founder of the Mexican American Legal Defense and Educational Fund (MALDEF) and the National Hispanic Bar Association, as well as a former California secretary of health and welfare and current president of the National Coalition of Hispanic Organizations (NCHO), stated that “the border policy issue is a matter of civil rights, nothing else.” Mr. Obledo referenced the problem of vigilantes, such as ranchers along the Arizona-Mexico border injuring and killing migrants, and NCHO’s attempts to call the problem to the attention of state and federal officials.

Ms. Smith also highlighted the existence of vigilante groups in areas of Arizona who detain migrants at gunpoint and become physically aggressive. This type of activity “has all sorts of ominous civil rights implications which the authorities . . . have chosen to ignore,” she said. Mr. Martinez also voiced concern about escalating vigilantism along the border, noting recent reports of two migrants shot and killed by men clad in camouflage.

It was suggested that the Commission’s role could be to publicize more of these issues, and the Commissioners encouraged the panelists and their organizations to bring concrete suggestions and initiatives to the Commission’s attention. The panelists and several Commissioners endorsed the idea of asking the Department of Justice to initiate an investigation of the vigilante problem.

International Implications of INS Border Control Policies

Professor Aceves provided an analysis of Operation Gatekeeper and the INS’ other Southwest border initiatives from the perspective of international law. He stated that international law is important to consider because the supremacy clause of the Constitution recognizes treaties as part of the supreme law of the land, the United States recognizes and adheres to customary international law principles, and international law provides perspective on gauging the legitimacy of border control policies.

Professor Aceves noted that the United States is signatory to various international treaties and conventions, including those under the auspices of the United Nations and the Organization of American States that require states to respect the right to life and to protect human dignity and integrity. Under international norms, countries may use force to maintain security, but such force must be necessary and proportionate. Under international law, “countries are precluded from acting in a manner that may cause unnecessary injury,” and can engage in exercising rights only “in a manner that does not cause unnecessary injury or death,” according to Professor Aceves. Also integral to international law is the principle of “good faith.”

Accordingly, because the United States is aware that Operation Gatekeeper will lead to threats to life and threats to the integrity of individuals, but has failed to develop any effective response to the mounting death toll, the United States has violated international norms and international law. By adopting border control policies that it knows will lead to significant danger to people, the United States has violated international law by not ensuring that its actions are necessary, proportionate, and that there are no alternative policies available, he said.

Professor Aceves noted that various organizations had focused attention on the issue of U.S. border control policy, including Amnesty International and the United Nations Special Rapporteur on Migrants. The Inter-American Commission on Human Rights, which is an organ of the Organization of American States, has also accepted a petition by the California Rural Legal Assistance Foundation and the ACLU challenging Operation Gatekeeper. The petition acknowledges the right of the United States to adopt an effective border strategy, but that it must do so “acknowledging the principle of good faith, acknowledging the abuse-of-rights principle, and acknowledging that any policy must respect the right to life.”

Policy Discussion and Recommendations

Migrant Labor Policy Reform

One theme emphasized by the panelists was the need to explore reform of U.S. labor policy, such as considering instituting programs legalizing temporary use of migrant labor. Because the labor needs of U.S. businesses are the primary pull inducing migrants to enter the country, a temporary-worker program allowing legal migration would reduce the need for migrants to attempt crossings in environmentally inhospitable and potentially deadly areas.

The Commissioners raised the issue as to whether workplace enforcement was a politically practical and feasible option to discourage immigration. Ms. Smith recounted that several years ago, a bill was introduced in the California legislature denying children of undocumented workers the right to primary education. The bill was subsequently amended to include heavy penalties for those caught hiring undocumented people. Once the bill was amended, supporters fled from the bill and it died. Dr. Cornelius also noted that although vigorous enforcement of workplace rules would reflect a serious effort to discourage immigration, the government has shown no propensity to engage in such enforcement, which has remained quite lax.

Dr. Cornelius stated that he opposed employer sanctions under the 1986 Simpson-Rodino bill,[1] since such sanctions only discouraged big business employers, who actually provide the best working conditions. Mr. Martinez noted that the U.S. poultry and meat-packing industry actively recruit migrant workers, with some companies paying the migrant workers’ way, and others deducting transportation costs out of the migrants’ salaries. According to Dr. Cornelius, the risk to employers under the bill was negligible, but “a nontrivial proportion of undocumented workers were at risk of greater exploitation and abuse” because employers could use the law to intimidate workers.

 Dr. Cornelius reiterated “the utter futility of the current approach to immigration control,” and stated that “increasing the number of legal entry options of one form or another has to be part of a more constructive approach.” This includes considering reestablishing a temporary-worker program.

Dr. Cornelius stated that an appropriate and effective temporary-worker program should contain the following three elements: (1) worker contracts must be renewable; (2) the program cannot be tailored specifically to the agricultural sector, because the demand is overwhelmingly in nonagricultural areas; and (3) the immigrant worker must be a free agent and cannot be bound to a specific employer.

The long-term solution, according to Dr. Cornelius, however, lay in “a greater and more creative commitment to microenterprise development” in those countries where migrant workers originate. The U.S. and Mexico must engage in a serious commitment to such projects as microenterprise development in order to create attractive alternatives to immigration.

One Commissioner noted that part of the answer to the problem is, indeed, institutionalizing a process of regularizing the workflow, but that it has been difficult since the community and groups most interested in immigration issues have not been able to reach a consensus strategy that can be recommended to policymakers. The Commissioner also noted that border and immigration issues, such as the vigilante problem, have not been as broadly embraced by the civil rights community in the past as one would expect, but that hopefully, by putting a spotlight on the issue, the Commission would be able to help build bridges between the civil rights and traditional immigration communities.

Another consequence of the INS’ border strategy, according to Dr. Cornelius, has been the bidding up of smuggler fees. From 1993 to 1998, smuggler fees doubled and currently stand at between $1,500 and $2,500 per head, depending on the services provided and type of entry attempted.

Border control strategy, however, has had no discernible impact on the supply of immigrant labor, according to Dr. Cornelius. He stated, “There is absolutely no evidence that concentrated border enforcement has created an effective deterrent at the point of origin.” A reported decline in apprehensions by the Border Patrol reflected not just the softness of the U.S. economy, which lessened demand for immigrant labor, but also reflected an increased rate of permanent settlement induced by the border policy. Dr. Cornelius reported that there was a dramatic rise in bank and wire remittances from the U.S. to Mexico, as migrants opted to stay in the United States, rather than personally bringing back lump sum earnings and risk returning across the border.

Border Control Reform

With respect to stanching the flow of illegal immigrants, further militarization of the border was not the answer, according to Mr. Obledo, as no force would be able to prevent immigrants from being drawn to the United States by “hope, desire, and ambition to work.” Instead, Mr. Obledo proposed an open border between the United States and Mexico that would allow the free flow of human capital, just as with goods and services. People would be permitted to enter the United States with the understanding that they could stay only for a limited time, that children born of these people in the United States would not be considered U.S. citizens, and that people under this program would not be permitted to own real estate or other investments. According to Mr. Obledo, in the end, once these people amassed enough capital and savings, most would want to return to Mexico.

Ms. Smith also reiterated the theme that although the United States has a right to control its borders, it is not an absolute right, but must be reconciled with the obligation of states to protect lives. Furthermore, one cannot design a strategy that maximizes risk to life, especially when virtually nothing is done to counteract the employment magnet that the United States represents.

Mr. Martinez recommended that the current border control initiatives be abolished, at least on a short-term basis, in order to stem the tide of border deaths, and that the Commission or Congress review those policies.

In response to the question of why an “open border” policy has not been strongly advocated, Dr. Cornelius suggested that although it might make historical and economic sense, it is politically unrealistic. Short-term surges in migration, if such a policy were adopted, would surely provoke a backlash. Dr. Cornelius, however, was critical of demographic determinism, or the notion that if immigration restrictions were lifted, then the entire population of a country, or at least a vast proportion of it, would choose to uproot itself and move to the United States. He noted that in over 120 years of Mexican labor migration into the United States, only a minority of Mexicans have shown a propensity to emigrate. There are myriad other factors, other than just economic, that determine if an individual is willing to migrate or not.

In response to the question of how salient the migrant death and border control issues are to the local Southwest population, the panelists commented that, unfortunately, such issues are not at the forefront of people’s minds, other than those directly affected. Ms. Smith noted, however, that the issues do figure into U.S.-Mexico bilateral negotiations and cannot be ignored.

[1] The Simpson-Rodino bill, also known as the Immigration Reform and Control Act of 1986, requires employers to verify the citizenship or immigration status of new employees and imposes penalties on those employers found to knowingly hire unauthorized aliens.