U.S. Commission on Civil Rights

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

November 14, 2002


CHAIRPERSON BERRY: I want to welcome everyone and thank you for coming this morning.

The Commission, as many of you may know already, decided back in May that we would, as often as possible, meet outside of Washington so that we could interact with local people and our State Advisory Committees [SACs] insofar as possible to hear from people on the ground, where they are, about the issues that they’re concerned about.

And we have been several places since then. And today we are here in San Diego. The State Advisory Committees in Arizona and in California have been very concerned about the issue of border crossings and what happens to people who cross and also the people who live in the area and the impact on them of the federal policy. And so we are having our meeting, our official business meeting tomorrow morning, but we decided that this day early we would come so that we could hear from the people who the SAC thought it was important for us to hear from about these concerns.

And this presentation will be focused, as I understand it, on the impact of federal policy in San Diego and the Southern California region and to the extent that you wish to talk about anything else related to it, that will be fine.

The organizations, I understand, that are here today are the American Civil Liberties Union, the American Friends Service Committee, the California Rural Legal Assistance Fund, and the Center for Comparative Immigration Studies at the University of California San Diego. They all responded positively and wanted to come to make this presentation. And we thank you for coming here.

And I want to introduce now Professor William Aceves, who is in charge, who will be moderating as well as speaking on the subject. He is a professor of law. When I first saw him out there and introduced myself, I thought he was a law student, but then—


CHAIRPERSON BERRY: I think one of my old high school teacher’s granddaughters, who is a law professor,  teaches at your law school. Her name is Andrea Johnson.

DR. ACEVES: Absolutely, yes.

CHAIRPERSON BERRY: Yes. I always think of her as a small child, but of course she’s a woman in her late 40s, or something.

VICE CHAIRPERSON REYNOSO: You’re getting old, Mary.

CHAIRPERSON BERRY: Yeah. And so you may give her my regards, please, when you see her.

DR. ACEVES: I will do that.

CHAIRPERSON BERRY: Professor Aceves is professor of law and director of the International Legal Studies Program at California Western School of Law. And he is also a member of the ACLU board.

And he writes and works and teaches international law and human rights and works with all of the organizations, international and national, in this field and has presented amici briefs to the courts on this subject. And he was the principal author of the 2002 Amnesty International Report on Torture in the United States.

And so I will turn it over to you and we wait to have you introduce the other panelists and proceed in whatever way you wish, Professor Aceves.

Introduction by Professor William Aceves

DR. ACEVES: Good morning. Buenos dias. Thank you for coming today.


DR. ACEVES: I think I always tell my students that we’re all students of the law, regardless of which side of the podium we stand on.

I’d like to take this opportunity to welcome the Commission on Civil Rights here. I also want to take this opportunity to thank the Commission and the California State Advisory Committee for taking this opportunity to meet with us today to discuss as an important issue as Operation Gatekeeper and its implications on human life.

In October 1994, Operation Gatekeeper was launched by the Border Patrol in the San Diego sector. The purported goal of Operation Gatekeeper was to deter migrants from entering through the urban areas of San Diego County. And to accomplish this goal, Operation Gatekeeper sought to channel the migrants eastward, out of the urban areas and into the more inhospitable and dangerous terrain in east San Diego County and Imperial County.

The border enforcement plan recognized that migrants would be placed in mortal danger as a result of this border strategy. Nonetheless, the planners acknowledged—recognized—that migrants would continue to make the effort of moving through those inhospitable regions. Subsequently, Operation Gatekeeper was extended to the El Centro sector.

And it should also be noted, and it will be mentioned on several occasions, that similar border strategies have been developed in the other border states.

Since Operation Gatekeeper was adopted in 1994 over 2,200 individuals—men, women, children—have lost their lives crossing over into the United States. But those are the only figures that have been documented. We have no way of knowing how many more people perished in the crossing.

Some of them died in the mountain regions as a result of hypothermia. Some died in the deserts as a result of heat exhaustion. Some drowned in the canals that line the U.S.-Mexico border.

As I mentioned, we simply do not know the actual number of victims. Recent studies have raised serious questions about the efficacy of Operation Gatekeeper. Organizations as diverse as the General Accounting Office, as diverse as the Public Policy Institute of California have questioned the success of the border strategy and have also questioned the human costs associated with the strategy.

Despite these findings, one can argue that Operation Gatekeeper has been extraordinarily successful. Its goal was to channel migrants out of the urban areas of San Diego and into the inhospitable regions of east San Diego County and Imperial County. And in this respect Operation Gatekeeper has been brutally successful.

Some commentators have argued that Operation Gatekeeper and similar strategies have improved the quality of life for U.S. citizens living on this side of the border. I think that misstates the issue. It’s not about the quality of life. It’s about life itself.

The following presentations we’re going to have for you this morning will discuss the establishment of Operation Gatekeeper. It will discuss the human toll of Operation Gatekeeper, the human suffering of the survivors and the family members, the deaths. It will discuss the national implications of Operation Gatekeeper. It will discuss its impact on the Latino community. It will also discuss the international implications of Operation Gatekeeper, the implications with respect to the international community.

Each speaker will speak from 10 to 15 minutes, and that will leave ample time for questions at the end.

We have five speakers today. The first is Mario Obledo. Mr. Obledo has been a prominent activist in the Latino community for over 30 years. He co-founded the Mexican American Legal Defense and Educational Fund in 1968 and the National Hispanic Bar Association in 1971.

He has served as a secretary of health and welfare in California. In 1998, he was awarded the Presidential Medal of Freedom by President Bill Clinton. He is the current president of the National Coalition of Hispanic Organizations.

I would now like to introduce Mario Obledo.


Mario Obledo, President, National Coalition of Hispanic Organizations

MR. OBLEDO: Thank you very much, William.

Good morning, Commission members. First I would like to start off by introducing my beautiful wife Keda Alcala-Obledo, without whose assistance and care I wouldn’t be here today. So, Keda.

MS. ALCALA-OBLEDO: [Stands briefly.]


MR. OBLEDO: Since I’ve become the president of National Coalition of Hispanic Organizations, we have become involved in immigration work to some extent. We are studying the border issues and immigration policy throughout the country, et cetera. And I’ve been involved in civil rights work, as mentioned before, for over 30 years. So this border policy issue is a matter of civil rights, nothing else.

If you will stop and reflect for a minute, most of the illegal immigrants in the United States come to California and Texas, which happen to be the richest and most prosperous states in the country. I would recommend that perhaps we ought to ship some of the illegal immigrants to Iowa, North Dakota, South Dakota, Idaho, Montana—states that need a better economy, because it’s been proven time and again that illegal immigrants add to the economy of a state. And California and Texas stand out for that reason.

Another thing is that since the border issues developed, in 1994 really, with Operation Gatekeeper—and I’m not going to address Operation Gatekeeper because we have an expert here on the panel, Claudia Smith, who’s not only an expert on Operation Gatekeeper but Operation Safeguard and Operation Rio Grande and all of the border issues. She will speak about the statistics, the outcome, all aspects of Operation Gatekeeper.

I will say this, that I and the organization and members of the organization picketed in Nogales, Arizona, concerning the vigilantes. We wanted to call it to the attention of state and federal officials. But that situation still persists in Arizona.

And even though the Commission does not really interfere with immigration, naturalization policies, you can get involved because this is a civil rights issue. People are getting killed down there by the ranchers. People are being brutalized. That’s human life. Over 2,000 human lives have been lost. There’s no reason for it. There shouldn’t be a human life lost crossing the border.

Let’s talk about the border for a minute. You know people have studied this issue for years and years. Some people have called for militarization of the border. Put in the Army and the National Guard down at the border to protect the border, to not allow people to come into this country.

No army, no navy, no force is going to prevent the illegal immigrants from coming into this country, because they come into this country full of hope, desire, ambition to work, et cetera.

I recommend an open border, much as we do for services and goods. We ought to have an open border on capital—human capital. The government of Mexico and the United States could sit jointly and work out a proposal, to let people come into this country, to convert the Border Patrol into an information and referral service, to where they could direct people to places where jobs are available, where schools are available, where housing’s available, et cetera; and work out a plan for permanent stay of so many of a time limited.

And I’ve thought about this issue a long time. And I think that children perhaps born in the United States out of these people coming into this country should not be U.S. citizens. They shouldn’t be allowed to own real estate or to own other investments, et cetera. They could only stay in the country several years and report periodically to the INS or other federal agencies and law enforcement agencies. And then most of them want to go back to Mexico in any event. And once they have the capital and the savings they can go back to Mexico. That’s the only way to work things out.

There wouldn’t be one life lost. There would be mutual cooperation between the two countries. Our states could develop economically. We’d all be better off because of it.

So I call for an open border. I think it makes sense. I think it can be worked out, et cetera. And I would like the Commission to voice their opinion on such an idea, because we’re not ever going to prevent illegal immigration into this country, no matter what we do. So why don’t we work out some sensible solution to the problem and allow people to come into this country, live without fear, work, contribute to the economy, and then return home. I think something like that can be worked out.

At one time I went to the Mexican government and I recommended it turn communist because this country allows asylum to people fleeing communist nations. So I figured, well, if Mexico says, “We’re communist,” that means the U.S. would have to allow all the illegal immigrants in and we’d offer them immunity. But obviously my recommendation was not taken up and the issue still exists.

With that I think I’ll close and listen to the real experts on the border issues.


MR. OBLEDO: Thank you.


DR. ACEVES: Thank you, Mr. Obledo.

Our next speaker is Dr. Wayne Cornelius. Professor Cornelius is professor of political science and U.S.-Mexico relations at the University of California at San Diego. He is also the director of the Center for Comparative Immigration Studies and the director of the Center for U.S.-Mexican Studies.

Professor Cornelius has taught at Harvard, MIT, Princeton, Stanford, and Oxford Universities. He is the author or editor of over 200 publications, many of these publications involving immigration issues or cross-border issues.

Professor Cornelius will provide a quantitative analysis of Operation Gatekeeper.

Wayne Cornelius, Director of the Center for Comparative Immigration Studies and Director of the Center for U.S.-Mexican Studies, University of California, San Diego

DR. CORNELIUS: Thank you very much, Will.

I appreciate very much this opportunity to address the Commission. Let me begin by stating my personal view that the subject under discussion today, this morning represents the most obvious, the most acute and the most systematic violation of human rights occurring on U.S. soil today.

We’re talking about the consequences of four so-called concentrated border enforcement operations, beginning with Operation Hold the Line in the El Paso metropolitan area in 1993, followed by Operation Gatekeeper here in the San Diego area in 1994, Operation Safeguard in the central Arizona area beginning in 1995, and Operation Rio Grande in the south Rio Grande Valley of Texas beginning in 1998.

It’s worth pointing out that these four operations have succeeded in fortifying less than 10 percent of the entire 2,000-mile border with Mexico, but it’s a critical 10 percent because those segments of the border represented the low risk, easy access to the U.S. corridors.

What we have created along these highly fortified segments of the border is a high-tech Maginot Line against illegal immigration with fences, conventional fences of the type that you see here in Tijuana [referring to the slide presentation] extending into the Pacific Ocean at its western terminus.

These conventional fences can be vaulted, can be climbed over, and in fact this happens every single night within the urbanized areas. They are being replaced by higher-technology versions, concrete bollard fences of the type that you see here.

Video surveillance systems. Televised video surveillance systems operating 24 hours a day along these heavily fortified segments, which are linked to Border Patrol dispatching centers and which can dispatch Border Patrol vehicles precisely to the areas where illegal entries have been detected.

Infrared night scopes, both fixed, mounted on the platforms of the type that you just saw, as well as mobile units like this which detect the presence of illegal entrants by their body heat.

What are the consequences of this strategy? This is the 32-year apprehension trend. The first point that I would like to emphasize is that the total number of apprehensions recorded by the Border Patrol in the fiscal year just concluded was virtually the same as in fiscal 1994, at the beginning of implementation of this strategy.

We have had a significant decline in apprehensions during the last three fiscal years, as you can see in the graph. Almost all of that decline, in my best professional judgment, can be attributed to two factors. One, the success of the concentrated border enforcement strategy in discouraging undocumented migrants from returning to Mexico, as they would traditionally do at the end of the year or for various kinds of family situations. If they are not returning to Mexico they are not at risk at being apprehended. So that accounts for a significant share of the decline.

And the rest can easily be explained by the softness of the U.S. economy, the weakened of demand for Mexican and other undocumented immigrant labor in this country.

What we have succeeded in doing most dramatically with this strategy is to redistribute illegal-entry attempts away from the San Diego corridor and urbanized areas like El Paso into the mountains and the desert, particularly the Arizona desert.

You can see how Arizona has dramatically increased its share of total apprehensions during this period of implementation of concentrated border enforcement. California, the gold line in the middle, has dropped significantly, to third place. And Texas maintains its second largest share.

The decline in entrant apprehensions affects all segments, but clearly the bulk of the traffic is now occurring in the Arizona desert, where you don’t have heavily fortified border corridors. In fact, typically you have no fence at all or a fence of the type that you see in this slide which can be easily circumvented by both people and animals.

Another clear consequence of the strategy has been to bid up the fees charged by professional smugglers. I don’t have more recent data than 1998, but you can see that the cost charged per head by a professional smuggler at least doubled between 1993 and 1998. Today it’s somewhere between $1,500 and $2,500, depending on the services offered and the area in which entry is being attempted.

So concentrated border enforcement has been a bonanza for the professional smuggling industry. They have not by any means priced themselves out of the market.

There has been no discernible impact on the supply of immigrant labor in labor markets and in industries where these types of workers have traditionally been clustered. Here you see the results of a survey that we did in San Diego County of employers who depend heavily on immigrant labor, we found that well over two-thirds of the employers in San Diego County had experienced no change in the number of immigrant job seekers showing up at their doors. Only 8 percent had noticed a decline in applicants. And more than one out of five actually have noticed an increase in the supply of foreign-born job seekers.

I’ve already mentioned the decline in trend in apprehensions as an indicator of greater permanence of Mexican migrants in the United States. It’s very clear from a large number of survey studies that have been done both on the U.S. side and at points of origin in Mexico that concentrated border enforcement has increased the rate of permanent settlement in the United States. And even among those who consider themselves temporary migrants, it has lengthened the average stay in this country.

Another indicator of this phenomenon is the dramatic rise in the amount of money being remitted by migrants from the U.S. to Mexico. Why is that an indicator of greater permanence? It reflects the fact that migrants are staying in the United States and sending more of their earnings to relatives in Mexico through bank wires and other kinds of electronic transfers, which is what is captured in these data, rather than bringing it back to their relatives in lump sums at the end of their working sojourn in the United States.

There is absolutely no evidence that concentrated border enforcement has created an effective deterrent at the point of origin. There is no evidence that it is discouraging would-be undocumented migrants from leaving their home communities in Mexico and at least trying their luck in running the gauntlet at the U.S. border.

The most dramatic consequence and a subject of today’s discussion of this strategy is the rising mortality rate among undocumented migrant attempting illegal entry along the southwest border. The trend, the borderwide trend in migrant deaths has been clear since the late 1990s. The final figure for 2002 was actually 320 rather than 311. These data were only as of the 26th of September.

And you can see from this graph that Arizona, the bottom line, the yellow line, deaths occurring in the Arizona sector have increased most markedly in the last two or three years. Texas remains in second place, but Arizona has surpassed Texas as a killing field. And California continues to decline.

Operation Gatekeeper was implemented in three phases, beginning in the western most sector, the Imperial Beach sector, proceeding into the mountains in Phase II, the Tecate Mountains. And in Phase III into the desert of Imperial County and into the Yuma desert in Arizona.

This is the kind of terrain that undocumented migrants are transitting in San Diego and Imperial Counties. You can see the Salton Sea, that green blob directly north of the border.

I’ve gotten ahead of myself here.

Deaths occurring as a result of dehydration are inevitable under this kind of strategy. It is impossible for migrants to carry enough water for a two- to three-day trek across the desert to prevent dehydration. And of course some of them, even though they try to hydrate themselves as well as possible, as you can see in this slide, are unable to do that and actually are very near death by the time they are detected by the U.S. Border Patrol.

And those that misjudge the duration of the trek, the intense heat that they will encounter in the Imperial Desert temperatures frequently, routinely rise above 110, 115 degrees in the summer months, can easily succumb to that miscalculation.

Another clear and present hazardous is the All American Irrigation Canal which marks, parallels the U.S.-Mexico border both in the Imperial Valley and the Arizona sector. The All American Canal at places is almost as wide as a football field. The current is extremely swift, deceptively swift. It poses a mortal danger even to young healthy males who consider themselves to be strong swimmers.

You can see in these two slides how The All American Canal presents the primary barrier to crossing into the U.S. in the Mexicali area as well as in the Yuma, Arizona area.

Crossings are made at night. There is a well organized industry of ferrying migrants across the All American Canal in rubber rafts. Frequently those rafts are overloaded. They capsize, dumping their human cargo into the canal. A lot of drownings occur for that reason.

The Border Patrol has posted signs along the canal: “Stay out”; “Don’t Swim”; “Dangerous.” But of course that does not deter migrants from trying. Bodies are routinely fished out of the canal lock system that manages the water level along the All American Canal.

Migrants also float into the United States on the New River which is the most contaminated free-flowing river in the Western world. Every toxin and bacteria known the man flows through the New River. And, again, people swim it. People typically go through floating through lashed to rubber intertubes, as you can see this group was doing on the night that they were photographed here.

The redistribution of deaths occurring at the border parallels the implementation of Operation Gatekeeper. At the outset of Gatekeeper in 1995 most deaths were occurring in the San Diego corridor as a result of traffic accidents. Migrants being mowed down on the freeways as they attempted to cross in the urban area. And I’ll fast-forward through these subsequent years. You can see the deaths moving into the mountain area of San Diego County, beginning to show up in the Calexico desert area as well in ’96. In ’97 even more of the deaths occurring in the desert area, relatively fewer in the mountains.

In 1998, the overwhelming majority occurring in the desert as far as north as the Salton Sea. And now into the Yuma desert in Arizona. ’99, 2000, and 2001.

This is actually one of the most useful indicators that, in fact, the strategy of concentrated border enforcement is producing, has produced a significant increase in the mortality rate among undocumented migrants. At least a third of them end up unidentified in potter’s fields like this one at the Holtsville Cemetery near El Centro, California.

Again Arizona has become are primary killing field in recent years, but deaths are also occurring away from the border, such as this highly publicized incident just last month in which 11 undocumented migrants were found inside, trapped inside a railroad car in a small town in Iowa. They had bordered in Texas and had not been released in time to prevent them from dying from dehydration and starvation.

This is also, I would argue, directly attributable to the strategy of concentrated border enforcement. Migrants in general are taking much greater risks, physical risks to secure access to the labor market in this country.

So what do we have after more than eight years and more than $20 billion expended on concentrated border enforcement? Basically what we have to show for it is more than 2,200 deaths. It could hardly have been otherwise. If we were serious about reducing illegal immigration to the United States we would of course be vigorously enforcing the immigration laws in the workplace.

In fact what we have seen during this same period in which concentrated border enforcement was implemented is a collapse in the workplace enforcement effort on the part of the federal government. Since 1998 only about 2 percent of the entire INS effort has been expended on worksite investigations. The number of workplace inspectors has fallen to 300 compared with 9,500 Border Patrol agents.

The number of employers fined for hiring illegal migrants dropped to fewer than 200 throughout the country in the year 2000. The total number of illegal migrants arrested at their workplace in the same year was only 953, when approximately a million were being apprehended at the border.

So what we have is a triumph of symbolic politics and economics. We have a symbolic show of force at the border, reflecting the priorities that Congress has given the INS, which are, number one, fortify the border in a highly visible though ineffectual manner; and dispose of so-called criminal aliens who commit other violations of federal law, round them up, when they have served their sentences, then deport them. These are the overriding priorities that Congress has dictated to the INS, and they are fulfilling their mission.

Meanwhile we have what I called at the outset of this presentation an ongoing clear systematic and acute violation of human rights in the form of a rising tide of death at the border. Thank you.

PROFESSOR ACEVES: Thank you, Professor Cornelius.

Our third speaker is Claudia Smith, who is an attorney with the California Rural Legal Assistance Foundation. She is a tireless advocate, and I would underscore tireless in this respect, working on behalf of immigrants and farm workers here in the United States.

She has been a leading activist in the campaign against Operation Gatekeeper in the effort the publicize the human consequences of this border enforcement strategy. She has appeared before the Inter-American Commission on Human Rights, the United Nations Special Rapporteur on Migrants, where she addressed the issue of Operation Gatekeeper.

Claudia Smith will provide details on the implementation of Operation Gatekeeper.

Claudia Smith, California Rural Legal Assistance Foundation

MS. SMITH: The Border Patrol calls these operations work in progress. I call them deaths in progress.

Welcome to what I call the border of hypocrisy, where our immigration control policies collide with the reality of our demand for low-skilled labor.

Almost 2,200 migrants have died along the Southwest border, as you’ve heard, since the Border Patrol switched strategies in late 1994. That figure includes almost 350 dead so far this year, according to the Mexican government’s count —not counting the 11 found in the train in Iowa.

Regardless of whose numbers you use, this summer migrants died in record numbers: Approximately 200 migrants just died in the last four months.

We didn’t want the migrants to be an abstraction so I have brought you a long list of their names, starting with Victor Nicolas Sanchez, who was 33 years old when he drowned in the Tijuana River in January of 1994, and ending, for now, with the Cleto Godinez, whose age has not been determined yet, and who died of heat stress in Carrizo Wash, not 60 miles from here, just about a week ago.

The strategy of Operation Gatekeeper in California as well as Safeguard in Arizona and Rio Grande in Texas has been to push the undocumented foot traffic out of the urban areas and into ever more remote and dangerous places. The strategy was designed to move the crossings out of the public eye, starting with America’s finest city. 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.

As former INS Commissioner Doris Meissner herself explained earlier this year, in the global economy a degree of undocumented labor must be tolerated in order for the U.S. to keep competitive.

Crossing the border illegally has never been risk free. The Border Patrol will tell you that there are no more deaths now than before, but it can’t back up that assertion. Although the strategic plan adopted by the Border Patrol in 1994 recognized that the new routes were fraught with mortal dangers, the Border Patrol did not even bother to keep a body count until 1998.

Mexican government figures show that migrant deaths have soared in the last eight years by as much 500 percent on the California border and by as much as 1,000 percent on the Arizona and Texas borders.

The San Diego sector, where nearly half of the crossings used to take place, mostly in a relatively safe coastal corridor, about 14 miles wide. The Border Patrol’s resources are concentrated here. This was really the pilot program, the testing ground for Operation Gatekeeper.

We now have, just on a 60-mile sector—we have a 2,000-mile border, and just on a 60-mile sector we have a quarter of the more than 8,000 agents along the entire border; 75 percent of the fencing, some of it triple fencing; and 25 percent of the stanchion lighting.

Not surprisingly, apprehensions in this sector are at a 25-year low, but eight years and billions of dollars later all that has been achieved at an enormous cost in life is the appearance of a border under control. In a classic squeeze-and-bulge effect, the migrants are walking across the mountains and the deserts to the east of San Diego.

Three GAO studies, the most recent dated August of last year, have questioned the efficacy of Gatekeeper and its counterparts. The Border Patrol will tell you that its strategy is finally working because the number of apprehensions at the Southwest border fell by 25 percent each of the last two fiscal years.

As Wayne has explained, the drop is for reasons largely unrelated to the strategy, for example, the recession. Immigration flows respond to underlying economic conditions.

What I want to drive home is that the deaths did not fall in proportion to the apprehensions, that this is getting deadlier.

Borderwide the deaths fell by only 5 percent in fiscal year 2002, down slightly more than the year before. We’re talking 320 deaths instead of 336, but still up sharply from other years.

The deaths and the apprehensions did not fall proportionately in fiscal year 2001 either. The apprehensions fell by 24 percent, the deaths fell by 11 percent. What that tells me is that the three operations are getting deadlier. Migrants are being channeled to ever more remote stretches where the possibility of rescue is minimal.

What is happening is that the Border Patrol is fanning out east and west of the border cities, which drives the migrant foot traffic not only into the desert, but the most remote parts of the desert, the farthest places away from roads.

And in the maps that Wayne showed you, one of the —I don’t know if we could go back to the map of 2001, but what you will see there is that—first the map of 2000, if we could.

DR. CORNELIUS: I’ll get it.

MS. SMITH: What it will show you is that a lot of the deaths in the year 2000 were taking place right near the border city of Mexicali and of Calexico. By the year 2001, as the Border Patrol had fanned out, where the most of the deaths were taking place is the area of Ocotillo. They went from nine there in the year 2000 to 36 last year. And that is where the mountains end and the deserts start. You will also see that the deaths even in the All American Canal, the drownings, are happening at the other extreme near Yuma. And that’s because as they light up parts of the canal, people just go to other parts of the canal where there is no lighting, so that they can get across undetected. It is getting deadlier.

Until last year most of the deaths occurred in California’s Imperial Desert. Now the grimmest example is in the Tucson sector, a vast expanse of hell. There, the apprehensions fell by 26 percent in fiscal year ’02, but the migrant deaths actually rose by an astounding 70 percent, which translates into 55 more deaths in fiscal year 2002 than the year before in the Tucson sector. And some of them were children as young as 11 years old.

After September 11, as the controls at the ports-of-entry get stricter, it is much more difficult especially for children to get across with false papers, false declarations of citizenship, or hidden in cars, and so the children are also now taking to the desert.

The Border Patrol will put all the blame on the smugglers. I’m not apologist for smugglers. It’s not a humanitarian service. It’s a very lucrative business and it’s being carried out in more and more heartless a way. But the truth is that smugglers have been made indispensable by these operations. You cannot get across without a smuggler any longer.

And it’s also counterproductive. Because, although it may sound counterintuitive, what the experts say is that the more that you are forced to resort to smugglers, the better chance you have of getting across undetected, and that the possibility of apprehension may have fallen from 30 to 20 percent during the course of the last eight years.

Another buildup is sure to redirect the migrant foot traffic into even more punishing places. The flashpoint right now is Tucson, and not just because of the death figures. That is where self-appointed guardians of the border are detaining migrants and holding them at gunpoint until the Border Patrol arrives.

I hope you go there. I have read the transcript of an August 23 hearing by your state advisory board in Arizona. The vigilante activity has picked up since then with the advent of groups like the so-called American Border Patrol.

A Douglas rancher allied with that group recently bragged to the New York Times that he and his brother had detained 8,000 migrants over the past four years. That’s probably an exaggeration, but according to the Mexican Consul in Douglas, with whom I spoke yesterday, at least 40 migrants were detained at gunpoint by the Barnett brothers just in the last few days.

I quote from a New York Times story that goes into an interview with the Barnetts. In it Barnett said, “He said that the migrants, who are made to sit on the grounds, sometimes get mouthy with us and that he was forced to become physically aggressive to control them.”

All in all this deputizing oneself as Border Patrol agents has all sorts of ominous civil rights implications which the authorities there [ . . .] have chosen to ignore.

The vigilantes mask their anti-Mexican animus by talking about the border as a national security issue. But it seems that Solo son los pobres diablos que vienen buscar trabaja . . . , “It’s only the poor devils that come looking for work that die in the desert,” the terrorists get in the legal way.

Be that as it may, if the United States wants to put the Southwest Border in the national security context and wants to seal every inch of the border, it is free to do so. What it cannot do as an alternative is keep funneling economic migrants to their death.

Thank you. 


William Aceves, Professor of Law and Director of the International Legal Studies Program, California Western School of Law; Member, American Civil Liberties Union Board

PROFESSOR ACEVES: I’ve been asked to comment on Operation Gatekeeper and international law. And while we recognize that the Commission’s primary goal is to examine the status of these border enforcement strategies with respect to United States law, it would be my position that international law is an important factor to consider for several reasons.

First, international law is part of the law of the United States. Article VI of the supremacy clause recognizes the status of treaties as part of the supreme law of the land.

Similarly, customer international law, which consists of state practice, is also recognized as an integral part of law of the United States. And there have been countless executive, legislative, and judicial decisions recognizing the status of international law in this country.

Second, international law provides us with a perspective on how to gage the status of Operation Gatekeeper, the legitimacy of Operation Gatekeeper. Beginning with our own Declaration of Independence, we have long recognized that we should all respect, we should acknowledge decent respect to the opinions of mankind.

Reference to international law can inform our own purely domestic analysis.

Let me say a few background words about international law, the relevant international standards that may apply here.

First, international law requires states, countries to respect the right to life and protect human dignity and human integrity. This has been recognized in the United Nations Charter, the International Covenant on Civil and Political Rights. Both of those documents are treaties that have been signed by the United States, ratified by the United States. And so therefore under the Supremacy Clause both the UN Charter and the Covenant on Civil and Political Rights are the supreme law of the land.

Respect for right to life is also recognized in other sources of international law. The American Convention on Human Rights, a treaty signed by the United States; the American Declaration on the Rights and Duties of Man, a document prepared by the Organization of American States, an organization that the U.S. is a prominent member of as well.

What are the implications of these international norms? Well, for example, international law acknowledges the right of countries to use force in the maintenance of state security. However, the use of force must always be necessary. It must be proportionate. And there must be no alternative policies available. Thus international law requires countries to respect and protect life, even if they have an independent right to undertake state action, to undertake the use of force, or to develop border enforcement strategies.

This reasoning has been acknowledged by the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, and countless other United Nations’ institutions.

Second, countries must not abuse their rights under international law. Countries are precluded from acting in a manner that may cause unnecessary injury. Even if a country has a recognized right under international law, this right must be implemented in a manner that does not cause unnecessary injury or death. This Abuse of Rights Doctrine is recognized in numerous civil law countries. It is also an integral part of international law.

Third, international law recognizes the principle of good faith. The principle of good faith is an integral component of numerous international instruments, including the United Nations Charter, the American Convention on Human Rights.

What does this all mean for Operation Gatekeeper and these border enforcement strategies? When countries adopt policies that may lead to the loss of life, they must act to minimize threats to physical integrity and well being. Countries must ensure that their actions are proportionate, necessary, and that no alternative action is available.

The United States is aware that Operation Gatekeeper will lead to threats to life, to the integrity of individuals. There is a history of over 2,200 individuals that have lost their lives of the past eight years as a direct result of the border enforcement strategies.

The U.S. has failed to develop any type of an effective response to the mounting death toll. Thus the United States has violated international law.

What are the implications of these international rules? Well, I’ll briefly highlight three situations where these international violations have had an impact on the United States.

First, Amnesty International adopted a resolution two years ago expressing significant concern about the status of Operation Gatekeeper and its impact on human rights.

Second, the Inter-American Commission on Human Rights has taken action in this regard. In February of 1999 the California Rural Legal Assistance Foundation, the ACLU of San Diego and Imperial Counties filed a petition with the Inter-American Commission on Human Rights challenging Operation Gatekeeper.

The commission is an organ of the Organization of American States. The commission has the authority to investigate violations of international human rights norms, including against the United States.

The Gatekeeper petition raised three issues. First, the petition acknowledged that the United States does have a right to adopt an effective border strategy.

Second, that the United States must do so in a manner that complies with international law, acknowledging the principle of good faith, acknowledging the abuse-of-rights principle, acknowledging that any policy must respect the right to life.

In November of 2001, last year, the commission held a hearing in Washington, D.C., to consider the admissibility of this petition. Claudia Smith of the California Rural Legal Assistance Foundation, Jordan Budd of the ACLU of San Diego and Imperial Counties and I appeared before the commission to discuss Operation Gatekeeper.

The petition is currently under review by the Inter-American Commission. Two months ago the United States government was asked to provide a response to this petition.

Third, the United Nations Special Rapporteur on Migrants has addressed Operation Gatekeeper. Earlier this year Professor Cornelius, Claudia Smith, and myself appeared before the Special Rapporteur on Migrants to discuss the status of Operation Gatekeeper and to provide similar information to the Special Rapporteur that we have provided to you this morning.

As part of her mandate, the Special Rapporteur has visited the U.S.-Mexico Border to review the implementation of Operation Gatekeeper. And we presented to her the same concerns that are expressed to you today.

When countries adopt policies that may lead to the loss of life, they must act to minimize threats to physical integrity and well being. Countries must ensure that their actions are necessary, proportionate, and that there are no alternative policies available that would not lead to the loss of life that we are seeing here on the U.S.-Mexico Border.

By adopted border control policies that the U.S. knows and intended to lead to significant danger being posed to migrants, seeking family reunification or employment opportunities, the United States has violated international law.

Our final speaker is Roberto Martinez. Mr. Martinez has been a prominent activist in human rights and immigration for the past 30 years. In 1992 he was the first U.S. citizen acknowledged by Human Rights Watch for his courageous work in monitoring human rights.

In December 2001 he retired as the director of the American Friends Service Committee Border Project. He is currently writing a book on the U.S.-Mexico Border. He just got back from Arizona a few hours ago.

Mr. Martinez will provide comments on the human toll of Operation Gatekeeper based upon his interaction with border crossers and their families. And he will also comment on Operation Gatekeeper and its similar strategies in Arizona.

Roberto Martinez, Retired Director, American Friends Service Committee Border Project

MR. MARTINEZ: Thank you, William.

Good morning.  Thank you for this opportunity to address this ever escalating problem that is just impacted so many areas of the border. And, as William mentioned, I actually just got off the plane about an hour ago from Arizona. I spent a week there.

 I have been doing research on the impact of Operation Gatekeeper in the Arizona Border and also on the escalating vigilante problem, where just in the last few weeks two migrants were shot and killed by two men in camouflage uniform, which of course they’re still investigating as to who these people are. But there are witnesses.

 In my opinion in what’s happening on the Arizona border is that Operation Gatekeeper is having a tremendous impact on the deaths on the border there in Arizona, particularly in the Sasabe part of the border.

I’ve been there twice in the last month—two months, actually, and the first time I took a trip down to Altar, which is about 200 miles south of Sasabe, which is a border town in Arizona. And I went down there because I had information that Altar is a gathering point for tens of thousands of migrants heading for the United States.

I went with a group of people down to this church called Our Lady of Guadalupe, which has a big plaza on one end of the church. And this is where they all gather. And I mean it’s just an incredible sight to see bus after bus, people gathering. And they estimate that anywhere from a thousand to 1,500 migrants gather every single day, come through there every single day.

Astonishingly enough, 60 percent—according to the workers there, 60 percent of the migrants are from Chiapas. So consequently a good number of the people dying at the border in Arizona are from Chiapas. And this demonstrates again the motives for coming here, which they confess are economic but also related to drought, to environmental devastation, to the hurricanes, and everything that displaces workers. So there’s a lot of factors involved in economic and political and natural factors that are contributing to the moving of people from the south to the north.

As I watched them leave in groups of 15 to 20 heading for the border, the only thing they carry—or the lucky ones get to carry four gallons of water. The unlucky ones, two, and their backpack and a sheet of paper from the workers with a list of all the consulates in the U.S. and their rights once they cross the border.

These are mostly indigenous people and they’re very small. And to carry four gallons of water, much less five, which would probably get them further, is impossible.

There’s a lot of other things that we found out, but I’d like to move to this week. I just came back from the Ajo area of the desert in Arizona where the majority of people apparently are dying. And we drove down Highway 86 west towards Ajo and got off on a dirt road where there’s a ranch.

We traveled a few miles, about five miles. We stopped at a water station that has two 30-gallon drums of water and a little flag. So we stopped there and we were talking. And then we heard a voice cry out from the bush, Por favor ayudame. Por favor ayudame, “Please help us.” So we walked several feet under this kind of a brush that was for migrants, indigenous type, three young men and a young woman. And they were apparently in a state of dehydration. They had said that all their water was gone, their food. They had no covering. Two of the men had been beaten and robbed because there are some criminal activity on the border in Sasabe.

And so they were in very desperate situation there. Fortunately the people we were with had a first aid kit. And they weren’t seriously injured by the beating, but they were suffering from dehydration. Of course the water station is keeping them alive.

They said it took them three days to get, travel the approximately 60 miles from Sasabe to that point of the Ajo Desert. And they only brought two gallons of water each, which was consumed quickly with the heat.

And of course the food ran out, so we provided as much food and water as we could. We didn’t have very much. And we called ahead for help from a Samaritan group. I can’t mention any names because obviously they would be investigated, but nevertheless there is some good work being done out there in terms of trying to help the migrants through that area, which is probably the most dangerous area.

Two months ago I went on the Border Delegation to Washington to do some lobbying with some people. And a lady from Mexicali named Anna Hernandez went with us, and she was talking about how her 25-year-old brother left Sasabe for the United States and traveling with, I think, about eight. There was a about a total of nine of them. And they only got as far as that area where the water station is and three of them died, including her brother, and nobody ever found the other six. Basically she said they disappeared. She doesn’t know if they made it or they died, or whatever. But it’s a long trek from Sasabe to any civilized part of the desert. Probably takes about four or five days of walking at night because of course in the day it’s tremendously hot.

And so her concern and anguish was that the local authorities would not release her brother’s body to her, and it took about two or three weeks going back and forth from Mexicali to the sheriff’s station in that area.

When they finally did release the body they just wrapped him up and put him in the back of her pickup truck. And she had to drive the body back toward the border, where he lived in Sonoyta, where his wife and children live.

She turned a very tragic loss into a teaching lesson for the migrants along the way. She said she ran across groups of migrants. And she would stop and tell them, “Look, this is what’s waiting for you out in the desert. It’s not worth it.” And she would do this wherever she saw groups of migrants until she was able to return the body home.

But my information is that as of October ’01 up to this year, they told me that 169 people have died, men, women and children, in that area of the desert.

And as far as I’m concerned this is all impacted by of course Operation Gatekeeper. They said if they were to add the deaths in Yuma, it would be dramatically higher.

So the squeeze is between Operation Hold the Line in El Paso and Operation Gatekeeper, which is squeezing them into that area of the desert. They have to fight not only the elements, they have to fight the bandits in that area. And just in the couple or two hours that we were in that area of Ajo, we saw wild deer, wild javelina. They said it’s infested with rattlesnakes and scorpions. So when they’re sleeping at night down there they’re exposed to all kinds of dangers.

And, as was mentioned, they never recover all the bodies. As one gentleman said, the desert is an expert at cleaning itself, and I won’t go into the gory details, but I’m sure many, many more are never found. And so I’d like to close with that and turn it over to William.

PROFESSOR ACEVES: In designing Operation Gatekeeper and related border enforcement strategies, the U.S. specifically set out to channel migrants away from the populated regions of the Southwest and into the inhospitable regions of the desert and mountains.

Statements made by U.S. government officials acknowledge that that was the explicit design of Operation Gatekeeper. And in this respect Operation Gatekeeper and related strategies have proven extraordinarily effective, as we’ve seen well over 2,200 men, women and children have died over the past eight years.

However, serious questions have been raised about the efficacy of this border enforcement strategy in terms of its ability to deter individuals seeking to enter the United States.

Despite the increasing deaths, the United States has failed to take adequate steps to minimize the tragic loss of life. We hope that this Commission can take appropriate steps to further publicize this human tragedy and urge the United States government to review and reconsider these border enforcement strategies.

Let me reiterate our appreciate to you for your time and your attention to this serious issue. We also acknowledge and appreciate the California State Advisory Committee for putting this together. And at this time we would be happy to answer any of your questions. Thank you.

CHAIRPERSON BERRY: Thank you very much, Professor Aceves. Thanks to all of the panelists.

Do my colleagues have any questions for the panel? Yes, Commissioner Braceras.

Question-and-Answer Session

COMMISSIONER BRACERAS: Thank you all very much for coming. I confess I learned a great deal from listening to you today.

My question is, and I know it cannot be answered in just a few moments, but I’d like to hear from each of you what your recommendations would be to us as a body or to the INS, were you to be advising them directly, and what suggestions do you have for us specifically as to how we can play a constructive role in reforming some of the problems you’ve highlighted here today?

MS. SMITH: Well, I say unapologetically that I am not an expert in the macro. I have had my head in the micro, which is the deaths.

The demographics, if anything, the migration pressures are going to be reduced I think primarily by demographics in Mexico over the next 10, 15, 20 years. In the meantime even if you adopt a guest-worker program, which is one of the solutions that’s being touted, although that may reduce the deaths, let’s say you have a program of 25,- to 250,000 visas, well, that may reduce the deaths, it’s still not going to take care of the problem.

Because the estimates are that in a normal year anywhere from 400,000 to 600,000 Mexican nationals—forget the Central Americans that are behind them, although Mexico has now taken a page or two from Gatekeeper and is implementing it on its southern border—nevertheless, we’re talking 400,- to 600,000 in a normal year that will try and cross. So that’s still, if you do the arithmetic, still leaves at least 100,000 trying to get through illegally.

And what we’re basically saying is we recognize the right to control the border, at least I do. But it is not an absolute right. It is a right that has to be reconciled with the obligation of states to protect lives, be that the lives of undocumented people or citizens.

And you cannot design a strategy that maximizes the risk to life, especially when you do virtually nothing to counteract the employer magnet, and I think that that’s the key. That’s why I keep calling this the border of hypocrisy.

I really go back to when Operation Gatekeeper started. You have to look at it in that context. It was 1994, the year of Proposition 187. Immigration, illegal immigration was very visible, particularly in this area. It was the backdrop for political ads, anywhere from Barbara Boxer to Patrick Buchanan, I mean all strips along the political fault line. And this was designed at least in the short run and possibly in the medium run, if not in the long run, to be a strategy of getting the illegal crossings out of the public eye and of coming up with the appearance of a border under control.

CHAIRPERSON BERRY: Mr. Obledo, you already made a suggestion. Do you want to reiterate it or do you have another suggestion?

MR. OBLEDO: No. No, I have another suggestion.


MR. OBLEDO: I think it was mentioned here previously, but I would recommend that the U.S. Commission on Civil Rights hold a hearing in either Tucson or Nogales to ascertain whether there’s been a violation of human rights or civil rights.

I called the Mexican American Legal Defense Fund to file a lawsuit against the ranchers in question here, because I understand that they don’t own the land they occupy. They lease it from the federal government or the state government. And the leases provide that no violence shall take place on the properties.

And obviously they admit to committing violence, so the Mexican American Legal Defense Fund is looking at the situation to find out whether they’re going to file a lawsuit or not.

CHAIRPERSON BERRY: Yes, Professor Cornelius.

DR. CORNELIUS: I go back to the severe imbalance between the effort that we are making to symbolically fortify the border relative to what we are doing in workplaces.

One approach of course to reducing undocumented traffic in general, and this is the only approach that most immigration experts feel would have any success, any possibility of appreciably reducing the traffic, would be systematic, vigorous, consistent enforcement of employer sanctions, laws in the workplace. That would not eliminate the demand for undocumented labor. It would take a chunk out of it. It could reduce the most egregious forms of exploitation by those employers who do abuse workers simply on the basis of their immigration status. But it is the only approach that has a realistic chance of reducing demand on the U.S. side of the border.

The long-term solution to this problem does not lie in the United States, however, it lies in Mexico and other points of origin, countries of origin. And it takes the form of doing things to create alternatives to immigration in the first place. And that requires a much greater and more creative commitment to microenterprise development in the most important sending localities and regions. That is an approach that has never been seriously attempted. A lot of lipservice is paid to it regularly, including by U.S. government commissions, but there has never been a serious commitment on the part of the U.S. government to assisting Mexico, even in developing pilot projects of this nature.

It is not rocket science. We know what needs to be done in these places to create attractive alternatives to immigration. It’s simply a question of will.

PROFESSOR ACEVES: I think some of my suggestions overlap with what my colleagues have said here. And there is unanimity in terms of the possible actions that can be taken: Increased workplace enforcement here in the United States; promoting guest-worker programs that provide more opportunities for individuals to come into the U.S. legally; increased medical assistance and safety patrols; further publicize the dangers of crossing in cooperation with the Mexican government; acknowledge the economic realities in terms of what’s happening in the U.S., what’s happening in Mexico, and other countries in Latin America; deter vigilante action; address the smuggler problem.

There are a whole host of issues here that can be addressed and that have been addressed to some extent, but it sure could use a lot more publicity on the part of the United States and more action to increase a response to this human tragedy.

CHAIRPERSON BERRY: So that so far what you have is, in terms of what we might do, is to publicize more of these issues and, secondly, Mr. Obledo’s suggestion about the vigilantes and the violence, seeing whether there is some way to—

MR. OBLEDO: Ms. Berry, I have an additional recommendation.


MR. OBLEDO: We spent approximately $20 billion along the Mexico-U.S. border. I recommend that that money be donated to the illegal immigrants. That way they could probably stay in Mexico with a type of Social Security.

CHAIRPERSON BERRY: I forgot the other one, that the Mexican government—

MR. OBLEDO: And no deaths would occur.

CHAIRPERSON BERRY: Right. The other one was the Mexican government should become communist.

COMMISSIONER BRACERAS: I’m also interested. I mean the Chair mentioned two things that weren’t legislative in nature, and I’m interested, if we were going to make recommendations to Congress, for example, which is one of the things that this body is charged with doing, I would certainly welcome your concrete suggestions as to what those recommendations would be.

And it’s certainly not something you have to come up with right now. If your organizations have initiatives that you’d like to bring to our attention, I encourage you to send them to us so that we can further educate ourselves and incorporate that into anything we might in the future decide to recommend legislatively.

CHAIRPERSON BERRY: Yes. And then—yes, I’ll recognize you in just a second. And then of course we can ask the general counsel’s office to look into this business about the vigilantes and the question that you raised about whether something should be done there and whether we ought to recommend that or whether we ought to go there and have a hearing, or whatever. Recommend the Justice Department do something.

I’m going recognize the Vice Chair, but just so I don’t forget, when you were making your recommendations I just wondered how likely it is that employer sanctions would be—this failure seems to be bipartisan.


CHAIRPERSON BERRY: I was sitting here thinking about  it in season and out. And as a historian, I know this and teaching about the legal aspects of these matters, that in season and out you have whatever political parties are involved. Attitudes about immigration that are a fertile ground for this kind of thing to happen to people.

So I was just wondering, and you don’t have to answer it yet, but just put a pin in it, how likely is it that anybody is going to enforce employer sanctions strenuously. And if they did what would happen.

For example, if sanctions were imposed so strenuously that people in San Diego County—If they didn’t have any maids or gardeners, or whatever, or people to work in the factories or the fields up and down in the valley and so on. I mean what would people who cry out about migrants coming across and so on, what would they do.

Those vigilantes out there and wherever this place is where they’re shooting people or holding them, or whatever they’re doing, I mean if you really did get rid all of the undocumented workers.

And then I was thinking, going back to Mr. Obledo’s first suggestion, the one about open borders, I mean when you really think about it, what sense does it make for us not to have open borders between the United States and the south and the north. I’m talking about the Canadians and the folks on our borders going back and forth in the way that he described.

And I was remembering finally, and then I’ll turn to someone else, when Mr. Giuliani was mayor of New York and we had a hearing there, and he was talking about—Cruz, you may remember this—


CHAIRPERSON BERRY:—how many undocumented or illegal migrants there were in New York City. And he said, “We probably have more than anybody, but nobody ever talks about it. They’re always talking about the folks down on the border and the folks here and there.” Remember that?

VICE CHAIRPERSON REYNOSO: Yeah. He said one other thing, and he credited the immigrants, both documented and undocumented, with the economic revival of New York.

CHAIRPERSON BERRY: Right. And so you don’t hear a lot about that. But somebody else had questions. Who had? Were you next? Who’s next?

VICE CHAIRPERSON REYNOSO: Well, I have questions. I want to pick up on the issue that the Chair just mentioned in passing but I think is crucial and has been crucial, and that is what are your professional opinions in terms of the political liability of workplace enforcement?

I say that because I started practicing law in 1959 in El Centro, California. And even then there were issues of workplace enforcement sometimes pitting local immigrants who lived in this country with those who had migrant papers but continued to live in Mexicali. And the immigrants who were in Imperial County felt that they were being undercut by those who lived in Mexicali who had a lot less expense in terms of rent and schooling and so on.

So they’re having these conflicts between those who are here and those who are in Mexico in terms of workplace enforcement.

Later Cezar Chavez and the farm workers movement initially tried to control the Bracero program and other programs of competition with local workers. But because there was such poor workplace enforcement, eventually the farm workers union changed its policy to incorporate the undocumenteds within the union because it found that politically it could not exclude them.

I myself was active with a group called Community Service Organization, where initially we supported the government’s effort at workplace enforcement, but as the years went by concluded that the government was unwilling to have workplace enforcement because those who use the undocumented were those that had political power and political money.

And so since it was politically impossible, we concluded, to have workplace enforcement, then many of us shifted our views to try to protect the undocumented while they were here since it was politically impossible in our view and the groups that I was associated with to have government enforce the law. Because those who were in charge of politics controlled the politicians who passed the laws but were unwilling to enforce them.

So my question to you is: Have things changed in the last 40 years? Do you think there’s a possibility that government actually would enforce the safety rules, the health rules, and the immigration rules in terms of workplace enforcement? Each one of you mentioned that as a possible solution. But I’m asking the question: Is it viable politically speaking now?

MS. SMITH: I did mention work enforcement as a possible solution because of all the panoply of the discriminatory effects and all the other problems that go with it, but I do think it’s a very interesting juxtaposition to realize that we’ve had just along the California stretch of the border over the last eight years about 850 migrant deaths, and there have been less than half a dozen prosecutions of employers.

Certainly there are problems with prosecutions, but you put together a case like you do any other. and if you really wanted, you could. Again it’s not something I’m advocating, but now I’ve spent 30 years in legal services representing farm workers. And I always thought that I probably more in a day than half a dozen Border Patrol agents to discourage the hiring of undocumented workers, not simply because I made employers really pay. I mean not just the cost of doing business, but on top of that, penalties and the rest for violating labor standards. And nobody really wants to put money into just regular enforcement of health and safety standards and labor standards.

Now that can be a little too simplistic, because that’s not the only reason that people hire undocumented workers. Some people hire undocumented workers and give them minimum wage and give them overtime, and they just prefer them as a workforce because they bring in network. They don’t have to go out and recruit. One brings another. They work hard and scared, on and on. But nobody ever wants to put their money in enforcement of basic health, safety, and labor of standards.

Just a very quick anecdote, of how you call people’s bluff. Around the time of Proposition 187, it was before that, there was a bill in the California legislature to deny undocumented children the right to a primary education. And to call their bluff, I think it was John Burton, amended the bill to say, hey, if you are caught hiring undocumented people, you know, we are going to—you know, there goes your ranch, there goes your restaurant, there goes your hotel, et cetera.

And everybody, the most avid proponents of a bill to deny children a primary education just fled from the bill. And so I think it’s always going to be that type of a mix. And that’s why I go back to it. It’s just the fundamental hypocrisy of it. And people are dying because of that hypocrisy, in large numbers.

DR. CORNELIUS: Could I add something?


DR. CORNELIUS: You’ll all remember the great debate of the Simpson-Rodino bill. That fundamental change in our immigration law back in 1986. Employer sanctions was touted as the magic bullet. It was the center piece of that legislation. Congress never got around to enforcing it.

I opposed employer sanctions at that time. I lobbied against that provision of the bill mainly on the grounds that it would be migrant workers rather than employers who would pay the heaviest price.

What employer sanctions would do, if they were stringently uniformly enforced, is to discourage a minority of employers who now use such labor, but that minority would be the largest businesses that actually offer the best working conditions, the highest wages, that generally obey the safety standards, and so forth, and push the hiring down the hierarchy of firms into those that are more likely to exploit and abuse their workers.

The objective risk of the employer being fined and penalized under the 1986 law as it eventually emerged from Congress was negligible. However, a nontrivial proportion of undocumented workers were at risk of greater exploitation and abuse simply because employers can use that provision of the law as a club. And there’s no way to get around that.


CHAIRPERSON BERRY: Commissioner Edley.


CHAIRPERSON BERRY: I heard a phone go off.


CHAIRPERSON BERRY: Oh, you were about to say something? Oh, I’m sorry.

MR. MARTINEZ: No, I have a couple of comments. But, go ahead.

COMMISSIONER EDLEY: Well, I wanted to pursue this a little bit. And in line with Commissioner Braceras’ question on legislative approaches, I think that there’s—at least there was before last Tuesday; I think it’ll pick up again—a fair amount of discussion in Washington about what shape a new immigration legislative package ought to take.

And, as most of you may know, I think there’s been a fair amount of progress over the last year or two in trying to negotiate something affecting agricultural workers, which is allegedly within a stone’s throw of some kind of an agreement.

So perhaps there will be legislation next year on at least that piece of it. And, of course, there’s always argument about whether to just do something in the agricultural sector or to wait and try to do something that would be broader, and people have different views.

One of the sticking points, however, for the broader topic is some kind of temporary-worker program with, I think, many people arguing that you have to accept the reality of the population flows, you have to accept the economic reality that undocumented workers are so vitally important to many employers. And so the issue is how to regularize this flow in a way that makes civil rights sense, humanitarian sense, economic sense.

And I have to say frankly that from where I sit, one of the major difficulties in trying to define a temporary-worker program that would make sense and trying to come up with a border strategy that would make sense is that there’s so many different opinions, there’s so much lack of consensus even among Latino groups, immigrant rights groups, civil liberties groups, and the like, there isn’t a strategy. There is deep division within the labor, within organized labor, between farm workers, SCIU, hotel workers on one side, and trades, some of the trade unions on the other side.

And just to play out the political point a bit, I think it makes it very—I know that it makes it very, very difficult for Democrats certainly in Congress to try to—who to listen to. There’s a strong argument, for example, that if we have a temporary-worker program and we start thinking about more effective regulation in the workplace of all of this, can you do that without some kind of a national ID card. Can you do that in a way that doesn’t create all kinds of problems with racial profiling and harassment, et cetera, in the workplace.

Well, if you start going down that trail then the ACLU and others, MALDEF, raise substantial questions about that.

So I think there are a lot of people on both sides of aisles, not just Democrats. It’s just that I happen to know the dynamic within the Democratic Party far better than I know the dynamic within the Republican Party, which is to say not at all.

So I think there are a lot of people who want to try to figure out what’s the right thing to do, quote-unquote, and have trouble getting coherent consensus advice from groups like those of you.

So that’s my first point—or maybe my second one. My first point is that it does seem to me, it does strike me as completely right that part of the answer here is a strategy for regularizing the work flow.

But my second point being it’s very difficult to do if some of the groups most interested in immigrant rights and immigration haven’t themselves done the hard work of coming up with a consensus view about a strategy that they could collectively recommend to policymakers.

It is tough. And precisely because it’s tough I think we ought to have pretty low expectations about what elected leaders are going to be able to come up with. They need to be guided. They need to be led. Our leaders need to be led by folks like you who are intimately familiar with the issues and who are prepared to make some suggestions about how the difficult trade-offs can be made.

CHAIRPERSON BERRY: What about your third point? You always have three points.

COMMISSIONER EDLEY: Well, I do. Thank you.

The third point is that—


COMMISSIONER EDLEY: The third point, frankly, is that I think that—one reason I’m glad we’re here is because a bunch of—these issues have not been embraced, in my view, have not been broadly embraced by the civil rights community as civil rights issues.

And if you had this kind of vigilante activity going on affecting some other group of people of color, not around the border, we would just be galvanized to action. The civil rights community would be galvanized to action. It would have been all over it. There would be protests in front of the Department of Justice saying: Why aren’t you prosecuting. Why aren’t you investigating, et cetera.

And I think to some extent that is just a symptom of a little bit of a disconnect between border policy and immigrant rights policy, on the one hand, and more traditional civil rights advocacy on the other.

And, Madam Chair, I just want to say I think that our being here today, I hope that’s going to help build some bridges between those two communities of concern and those two areas of concern.

CHAIRPERSON BERRY: Okay. You want to comment before they answer?

COMMISSIONER BRACERAS: I just want to respond to some of the things.


COMMISSIONER BRACERAS: Or not respond, but agree with some of the things that Commissioner Edley has said. From a Republican standpoint the same issues come into play, of course, that he highlighted. But I think that that’s why this Commission can actually play an important role in sorting through, in soliciting and sorting through some of the proposals and coming up with a coherent recommendation that hopefully would be free of interest-group politics and could cut across party affiliations and find support on both sides.

I think this is really an issue where we can come together and make some constructive recommendations—that there are going to be interest groups on the right and the left that don’t like them, but maybe, you know, we can help to push the debate forward that way. So I hope that’s something that we’ll be able to do.

And on Commissioner Edley’s last point about the vigilante ranchers and recommending investigations, and so forth, we could talk about this I suppose tomorrow at our business meeting, but we might want to consider meeting with or writing a letter to, you know, Ralph Boyd or someone at the Civil Rights Division to talk about this issue and put it on their radar if it’s not already there.

So it’s just something I would mention that we might want to talk about again tomorrow.

CHAIRPERSON BERRY: Okay. Remember that. We’re going to talk about it later. I don’t know who was first, so let’s —who was first?

VICE CHAIRPERSON REYNOSO: Professor Cornelius I believe.

CHAIRPERSON BERRY: It is, and then we go—yes, please. Go ahead.

DR. CORNELIUS: Let me try to a crack at some of Mr. Edley’s concerns.

There is bipartisan support for what we are doing now. More on the Republican side than on the Democratic side, but still you can say there is a substantial bipartisan base of support for the current strategy of immigration enforcement.

The one conclusion that I would like you to take away from this hearing today is the utter futility of the current approach to immigration control. It is not working in the terms that have been set forth by the Border Patrol, by the Justice Department, et cetera. And it’s the migrants who are paying the price of that failure with their lives.

Increasing the number of legal entry options of one form or another has to be part of a more constructive approach. The temporary-worker program is the first thing that is brought up as the most appropriate instrument for increasing the number of legal entry options, partly because it is the course of political least resistance, much less politically sensitive than increasing the quota of permanent legal resident visas for Mexicans or other nationalities.

So let us posit that creating some sort of temporary-worker program is the only politically feasible approach to increasing the number of legal entry options in the short to medium run. It’s not a magic bullet, but there is substantial political support for it, especially among Republicans in the Bush administration. Even Democrats and their labor union allies I think could be brought aboard for the right kind of a temporary-worker program.

It is worth doing if you have a well‑designed program that protects worker rights. It is not worth doing if you’re simply supplying cheap, exploitable labor—


DR. CORNELIUS:—for agribusiness or some other industry.

In 1979 the Select Commission for Immigration and Refugee Policy, another one of these bipartisan federal government commissions, Cruz Reynoso remembers it, asked me to design a temporary-worker program. I fulfilled my assignment. The plan was filed away, published in the 16 volume proceedings, and was never seriously entertained.

But there were three elements that I considered to be key to an appropriate and effective temporary-worker program.

One is to make the contracts of the workers who participate in such a program renewable. And that’s terribly important because the vast majority of the jobs that they would be filling are not temporary jobs. They’re jobs that exist year‑round. If workers were here on a fixed‑short contract, as they were during the Bracero program of 1942 to ’64, you would be rotating different workers in and out of those jobs constantly. That applies even to agricultural jobs today. But, of course, overwhelmingly to urban nonagricultural jobs.

Only about 15 percent of the jobs held by undocumented workers in the United States today are agricultural jobs. So you have to design a program that has a good enough fit with the nonagricultural labor market if it’s going to have any chance of success. Workers have to have the right to renew their contracts in agreement, of course, with the employers. The number of consecutive renewals, that can be debated. But a fixed short contract would be deleterious.

The second key element: It can’t be tailored specifically to the agricultural sector, again because that’s not where the vast bulk of the demand in our economy is anymore for this kind of labor. It is in urban services; it is in construction; it is in retail and manufacturing.

Third, the immigrant worker has to be a free agent. He cannot be bound to a specific employer—


DR. CORNELIUS:—as an indentured servant, as was the case under the Bracero program. If a worker came up under a Bracero visa and found himself exploited, wanted to quit, find another employer, he couldn’t do that. His only option was to return to Mexico. And that was a prescription for exploitation.

The immigrant has to have free agency within the labor market, the freedom to change employers, to contract with a different employer, without having to return to his place of origin.

So if those three key elements are somehow honored and reflected in the design of the program, it would do more good than harm.

COMMISSIONER BRACERAS: Do you have a copy of that report that was filed away?

DR. CORNELIUS: I’d be happy to send you one. It’s on my bookshelf.

COMMISSIONER BRACERAS: I’d love to see that.


MR. MARTINEZ: Yeah, I had a couple of comments.


MR. MARTINEZ: I wanted to speak directly to the operations on the border and make a specific recommendation that given the ineffectiveness that has been demonstrated here in the reports of these operations, that short of abolishing these operations, which I would recommend on the short term to possibly slow down or stop the deaths on the border, but that this Commission ask for an immediate review of the effectiveness of these operations and weighing the human cost against what they’re trying to accomplish which, of course, has led to nothing in terms of controlling the illegal immigration that was spoken about today, that it’s not there to seal the border but control it; and the fact that the strategy is to funnel people into the deserts right now that—and I think we’ve demonstrated effectively here today the terrible tragedies that are taking place in the desert and will probably continue unless an immediate review maybe in the form of a suspension until it can be reviewed by this Commission and maybe a congressional panel of some kind that would address it directly.

My second comment is the role of the employers, another role that the employers play in this issue. And one of the things that was very disturbing to me when I was in Altar speaking to the workers as well as the migrants is the tremendous amount of recruiting that employers in the big factories, the big manufacturing companies or production companies, like the poultry, because I was going to say first that the majority of migrants that I interviewed headed for Florida and North Carolina and the Midwest, to the poultry industry in the South and the meat-packing companies in the West, and were being actively recruited by employers and even had some of their transportation paid by the employers.

So to me in a sense the employers are some of the biggest traffickers in illegal immigration in this country. And then some of these workers are forced to give up most of their salary for a year in order to repay the transportation costs of the employers. So that’s another area of employer sanctions that I think has pretty much failed.

Thank you.


MS. SMITH: Of course we haven’t even mentioned legalization, which is the real sticking point to all of these negotiations in terms of Latino groups and what do you do with the 8 million undocumented people that are already here at this point.

But one of the questions even in terms of—even if you were to exclude them, and it was only—

COMMISSIONER EDLEY: Well, it’s not just those who are here, but there’s the added question of if you have a temporary-worker program can you construct in that also earned legalization or earned permanent—

MS. SMITH: That’s right.

COMMISSIONER EDLEY:—residence. And I think that’s—it’s—

MS. SMITH: If you had just a guest-worker program, one question that I have always had is: Would people who have been apprehended, sometimes at the border, would they be excluded from it? Would people who are already illegally here right now be excluded from the possibility of being a guest worker, especially when we’re looking at the fact that if you really enlarge it, it’s going to be an urban program more than a rural program.

But going back to your point that there’s something about the border that makes the civil rights community and the human rights community sort of uneasy. It’s sort of a no-man’s land in terms of civil rights and human rights, because everybody thinks that you’re going to get tagged as an open-borders person if you start criticizing any elements of it. And I think we’re beginning to overcome that some, in being able to say, “No, we’re not advocating open borders,” but we do not believe that the right to control the border is absolute. There are limits beyond which you cannot go in order to achieve this if you’re achieving anything, which is really what sticks in my craw.

But in any event I think that that’s—on the vigilantes, I wrote a letter to Commissioner Meissner two years ago, when the vigilante activity in Arizona started, outlining a lot of concerns having to do with also what I thought was Border Patrol complicity, that I thought that the ranchers were acting as agents of the Border Patrol and how I felt that they should handle—dispatchers should handle calls that they got from ranchers saying, “We’re holding somebody,” you know, “a bunch of” quote-unquote “illegals here,” and saying, “Well, you know, that’s false imprisonment. If you’re holding them for trespass, then we’ll call the sheriffs and then the sheriffs maybe will be able to ask but, you know, we’re not supposed to go and you’re not supposed to be holding at gunpoint anybody in terms of illegal entry and re-entry type of violation.”

So I’d like to leave that with you. But I think that is the flashpoint, very, very worse.

VICE CHAIRPERSON REYNOSO: Okay. Commissioner Meeks has a question, I believe, and then our Chair has a question.

COMMISSIONER MEEKS: Yes. To just sort of bring us back to the meeting. I mean I think these have all been good suggestions, but has the INS had any response to the deaths? I mean have they been doing anything differently because of that?

MS. SMITH: Well—

COMMISSIONER MEEKS: We’re going to go to the border later—

MS. SMITH: Yeah, right.

COMMISSIONER MEEKS:—and this would be a good thing to—

MS. SMITH: Well, they were pretty much shamed—the deaths, nobody really wanted to publicize them. Neither on the Mexican side nor the U.S. side wanted to really publicize the deaths.

When the deaths could no longer be hidden, which was in January of 1997 when over a dozen migrants froze to death in the mountains, then the Border Patrol was pretty much shamed into putting together a search-and-rescue component. I’m not going to minimize that. If they saved one life, it’s worth it. But it’s not the answer.

As you can see, the deaths keep multiplying and there are no amount of rescue towers or water jugs that one can leave out there. Those are vast expanses have hell that are the desert that could really offset this kind of a policy.

There are warnings but, hey, what the workers will tell you if you are there are at the border when they came through is, you know, la necessita. “It’s necessity.” And that’s a tough one to—it’s very tough to—although you have to be respectful of people’s needs and you say—you need to inform them of the dangers and you need to say, hey, only you can weigh the dangers against your needs.

But these are times to weigh and to weigh it more carefully than you ever have before because this is the reality at the border. But even at that—you know, and most of them think it’s not going to happen to them and, in fact, it doesn’t happen to most.

DR. CORNELIUS: Could I add something quickly?

The Border Patrol’s knee-jerk response to the deaths is to blame the “coyotes.”


DR. CORNELIUS: I mean that is the first thing that you will hear on your tour. The coyotes are the heart and soul of the problem of border deaths because they have no regard for human life; they’re willing to take whatever risks are necessary.

What they don’t say is that it is completely in the interest of the coyote to deliver their human cargo safe and healthy. They don’t get paid if they don’t.

MS. SMITH: It’s c.o.d.

DR. CORNELIUS: It’s c.o.d. The bulk, if not the entire payment, is received from relatives or friends on the U.S. side of the border once the immigrant is out of harm and in the place of residence or employment. So it is utterly illogical for the coyotes to be deliberately hazarding the lives of these people.

Of course, deaths happen because people get lost; coyotes underestimate the physical stamina of the group for whatever reasons.

But this is, as far as I can tell, not a systematic practice of endangering human life. And, of course, the coyotes are there doing their land‑office business because the Border Patrol is putting so many new obstacles in the paths of the migrants.

So I think that’s really a red herring—


DR. CORNELIUS:—but you will hear it constantly from every spokesman of the Border Patrol that I have ever encountered.


CHAIRPERSON BERRY: In other words, I guess you’re saying that there should be more—for the safety and health and welfare of the migrants, there should be more coyotes? I mean logically that makes sense, given what you said about what happens.

DR. CORNELIUS: Unassisted crossings are the most dangerous.

CHAIRPERSON BERRY: Right. So that makes sense.I guess I had a few questions, just trying to understand the subject much better.

What kind of policy would actually deter people from attempting to migrate illegally? When you say open borders and that everybody wants to make sure nobody thinks they’re for open borders, it’s like nobody wants people to think they’re a liberal, because that’s supposed to be a dirty word, so people call themselves all kinds of other things.

When one says, “open borders,” in the context that I think Mr. Obledo was talking about, and he didn’t use that word earlier, we were talking about more open flows across the southern border of the United States, and I added the northern border, and why that shouldn’t be the case. It was not completely unregulated flows, but letting people come temporarily and go back to the extent that they wanted to, as long as you verified who they were.

In the first place, what’s wrong with that?

Secondly, what’s wrong with that as a policy? And if most of the Latino groups and even the Asian American groups that are very concerned about the Chinese migrants, for example, trying to come to the United States and what’s happened to some of them in those container ships, and everything else, and people in the other civil rights communities who may not be concerned about migration as their first number one issue but who could get concerned, what’s wrong with that as a policy? And wouldn’t most groups say that that policy made sense? That is, if they could say what they wanted to say, wouldn’t they say that that policy makes sense, given the history of the country, this country, and the history of Mexico and the history of the whole Southwest and who lives where and who has lived where, and given the benefits that migrants bring to a society in terms of its productivity and that it doesn’t undermine the productivity of the society, then what’s wrong with having a policy of letting people come, stay, as long as you figure out that they’re not terrorists, or something, and stay here until they work, make some money, go back and forth, because you’ve pointed out from your data that people are staying here now instead of going back. I heard that from at least a couple of you and what you said.

And if the folks were—

DR. CORNELIUS: We’re keeping more migrants in the country than we’re keeping out.


So they come and they stay instead of going back when they should. And if the policy was designed to keep undocumented people from being here, then all the policy is doing is ending up with more undocumented people being here, if I hear you rightly, as well as killing people, which just doesn’t seem to make sense.

So what would be wrong with the civil rights groups or us recommending to Congress that there be a policy—not that they would pass it—that simply said that if you wanted to make sense of policy, this is what would make sense, and why is it no one will recommend except you, you recommended it, Mario—no one will recommend this, is it because it’s considered to be politically unpalatable or wacky, or is there something conceptually wrong with it that I just don’t understand?

MS. SMITH: Well, I think we do have an open border. It’s just that we—for all practical purposes as many—almost as many people as—I can’t imagine that there would be a lot more coming. Perhaps from Central America, if you didn’t have Mexico now holding the line there. But I can’t imagine that many more people would cross than are already crossing.

I think I’ve been consistent in the sense that before Gatekeeper was the strategy, I didn’t criticize the strategy; I criticized abuse by individual agents to the arrest of workers, of migrants, but not the strategy itself.

And so what I’ve always said is: Why not go back to the old strategy? It was no less effective when you look at the numbers and people weren’t getting killed. Of course they’re going to be visible at that point and that is political dynamite. But truthfully I mean that’s sort of been my answer, is go back to the old strategy.

CHAIRPERSON BERRY: It’s also the case—Mr. Cornelius. Professor Cornelius, go ahead.

DR. CORNELIUS: Well, I have tried to distance myself from open borders as a policy prescription, partly because it’s so patently politically unrealistic in my view.

Secondly—and this is related—at least in the short term it would undoubtedly provoke a surge in migration from Mexico simply because if we take away all obstacles, there’s a certain proportion of discretionary migrants, especially women and children, dependents of men in the United States, who would feel that if they did not have to put themselves at physical risk by running this gauntlet that we have created, that now is the time to try to reunify their family on the U.S. side of the border.

So there would be in the short term, in my judgment, a surge in migration. That would be seized upon by anti-immigration groups as proof positive that we were opening the floodgates and could open the door to much more retrogressive restrictionist legislation in the Congress. That’s one of the worst case scenarios that I could envision from this.

If we had an economist sitting here today he would say: Of course, in fact, your prices will equalize.

CHAIRPERSON BERRY: It would be great.

DR. CORNELIUS: At some point supply and demand will equilibrate; the situation will be stabilized; there will be no unwanted migration; and everyone will benefit. Of course, the political traffic is not likely to bear that in the short to medium term.

So logically, conceptually, it makes eminent sense. Politically it probably makes little or no sense, but those are the poles of the debate.

CHAIRPERSON BERRY: Which is why, if I understand the Wall Street Journal editorial page, which—


CHAIRPERSON BERRY:—has had on occasion to say things about me, so I read it every now and then, they would have probably endorsed that idea that you just expressed—

DR. CORNELIUS: Yes. I mean that’s the pure libertarian—

CHAIRPERSON BERRY:—because it’s the pure free market—

DR. CORNELIUS:—approach. Exactly.

CHAIRPERSON BERRY:—you know, idea to immigration. And I think—

DR. CORNELIUS: Not what the Wall Street Journal does not endorse is greater rights and protections—

CHAIRPERSON BERRY: For the people who are there.

DR. CORNELIUS:—for the people who are there.

CHAIRPERSON BERRY: Well, that’s because of the free market. But, in any case if you—and then what I guess policymakers are saying or the citizens who want tightened restrictions while they don’t impose employer sanctions so they can have the best of both worlds, is that there is no limit on the number of people who would come if you let everybody come.

In other words, all of Mexico would be emptied of people immediately and all of Central America, and they’d all come to the United States. It’s the same argument that’s made in Miami about the Haitians, when we were done there.


CHAIRPERSON BERRY: That if you were to treat the Haitians like the Cubans are treated, all the people in Haiti would leave, there would be nobody left in Haiti except Aristide and his wife, the premier, but everybody else would come to the United States, so you have to keep regulating them to keep them from coming, because they’re economic refugees.

So I guess the argument then is that everybody would come. You know, it’s—

DR. CORNELIUS: Well, it’s demographic determinism. If you have x number of poor people in Mexico or Haiti, or whatever, as soon as you take away the obstacles, they would be here.

What they ignore is that there are far more nonmigrants than migrants. Even in the case of Mexico with a 120-year tradition of continuous labor immigration to the United States, it is still a minority of the population that has any propensity to migrate to the United States. Not because they don’t have economic reasons for it, but because they don’t have contacts in the United States. They don’t have a social network here. They have all kinds of family circumstances that prevent them from taking the financial risk of migrating to the United States. They don’t speak the language. There are vast cultural differences. They frequently see Mexico as a better place to raise their children than the United States. So there are all kinds of psychological impediments as well as economic ones to mobility.

And I mean to me as an immigration specialist, what I find more difficult to explain is why so many Mexicans are still sitting in their places of origin rather than the immigration of those who do come.

CHAIRPERSON BERRY: The last question I guess I have or sort of the last question maybe—it’s either the last or the next to last, depending on the answer, is how salient politically or how important in terms of public consciousness do you think this issue is in the locale where you live?

I mean, is this an issue in San Diego and is it an issue in Arizona—


CHAIRPERSON BERRY:—among people who are not Latinos who are not going across the border or who aren’t concerned about their families. If you were to list five issues that people are talking about, would this be one of them or is it below their radar screen, more or less, or they don’t really care one way or the other?

DR. CORNELIUS: They more —we’ve solved it here.

CHAIRPERSON BERRY: That’s the people coming across the border are dying or whether the immigration policy is fair or what the Border Patrol is doing—I ask this because I ask a sample of one, which is a professor I know at the University of Arizona, before I came here yesterday how much press was there about this issue and how concerned were people in his community.

And really—admittedly, he’s a professor so he’s at a university, and he said, “Well, not much.” He hadn’t heard anybody really talking, but they know it’s going on. But they figure, well, these people are getting what they deserve because they shouldn’t be coming across the border.

MS. SMITH: You have to die in groups of 14 for it to really get on the radar screen, but most of the migrants won’t accommodate that. They die in ones and groups of twos and threes and fours.


MS. SMITH: And so, no, people don’t pay much attention to it at all.

On the other hand, it’s not an issue that can be completely ignored any longer either. It does figure in the bilateral negotiations. It’s had to be addressed all the way from Castaneda and Colin Powell to Fox and Bush, have actually had to make some statements. What that amounted to is something else. But in eight years at least it’s gotten to the point where people have to pay some lipservice to it.

PROFESSOR ACEVES: And that’s one of the reasons why organizations have gone before international entities, whether it was the Inter-American Commission or the UN Special Rapporteur to try to highlight this issue at an international level, to raise this issue and encourage organizations to put pressure on the United States government to respond.

I guess for my final comment I would say we’ve identified a number of broad, long-term strategies that might be available. I think it’s also important to recognize the short-term realities. It is quite likely that at this moment in time there are groups of individuals, one person, two person, larger groups, that are leaving right from Mexico trying to cross through the mountains, through the deserts. And it is quite likely based on past experience that one or more of those people will die in the short term.

CHAIRPERSON BERRY: Well, I asked that last question because we were in Miami to talk about and listen to people talk about the Haitian refugees and make a site visit. They’re having similar problems, dying on the boats and so on.

I wondered what good it would do. And insofar as I can tell, it did help with the pressure that is being brought by people in the communities. The Cuban American community is very supportive of the Haitians. And all the people there who have been coming out trying to do something about the policy, it seems like there may be some kind of movement on the subject.

So perhaps, just your coming here to tell us about this today and us going on the site visit, may illuminate the issue somewhat for people locally so that they know that this still is an issue, it hasn’t gone away. And to the extent that they might think about it, and we will think about what we can do, and so if no one else has any questions, does anyone have any? Yes. There is one, yes.

COMMISSIONER EDLEY: Yeah. Well, it’s more in the nature of a concluding comment. I may have a somewhat different view of the politics of this and a substantially less hopeful view of the politics of this.

I was working in the White House and at OMB in the ’93 to ’95–96 timeframe and was very much involved in some of the immigration issues from OMB and was, I think it’s fair to confess, very central in the decisions, proposals, to dramatically increase the funding of INS, including the Border Patrol. And it may be instructive just to explain part of how that came about.

In mid-’93 there was what felt from the White House perspective like a crisis,  particularly in the refugee and asylum area. Haitians, Chinese. And there was a groundswell of virulent restrictionist, anti-migrant sentiment on Capitol Hill and in California.

I don’t want to anthropomorphize the White House, so let me just say that there were some people who were single-mindedly focused on: How do we make sure that the President has a good shot of getting reelected and so he’s got to carry California, therefore he must be seen as being vigorously engaged in trying to do something about, quote, the problem, close quote, in California.

But there was also I think a very progressive or, if you will, liberal view that we had to do something to fend off a rising tide of restrictionist anti-immigrant sentiment nationally. And I think in a more tactical sense, we had to do something to try to moderate the crackdown legislatively on refugees and asylum seekers.

And the policy formula for accomplishing all of that was to try to dramatically increase the investment in services at INS and in social and other services for resident migrants at the price, if you will, of dramatically increasing investments in border enforcement, the Border Patrol.

And I can tell you at OMB the basics, my basic strategy which Leon Panetta, the OMB director, and the President embraced was: Let’s put as much money into INS as we can plausibly claim that INS is capable of spending without scandal, you know, burning-bucks-in-the-backyard kind of thing. Because there are limits on how fast can you hire people, how fast can you train people, how fast can you buy computers and all the rest of it. So there are limits on how fast you can ramp up. But with the notion that it would be a balanced investment between enforcement and services, that we wanted to get down the backlog so we wanted to do better visa processing, et cetera, et cetera.

Now of course that policy was distorted quite a bit by the time it worked through Congress and the appropriations process and all the like. But the basic point I’m making, and this goes back to Professor Cornelius’ comment a couple of minutes ago, is that based on my experience on this issue there is a very delicate political balance. And what one can do in terms of what I think of is in a humanitarian and welcoming and sensible direction has to be balanced with what other people will demand politically in terms of what are the rules and what are we doing to make sure that people play by the rules.

Part of the rules involve the sovereignty of the border and doing something that will regularize workflows and the like. So I think that I agree with Professor Cornelius that erasing the border is not politically tenable. I even have doubts as to whether or not it would be good economic policy, certainly in terms of the distributional consequences for people in the U.S. now, but it’s a political nonstarter.

Instead the question is, I think, how to have the right kind of balance that’s informed by civil rights and humanitarian concerns as well as by the economic realities.

And the last point I make—and I apologize if I’m longwinded here, the last point I’d make is that a couple of you have said Operation Gatekeeper, et cetera, is not working, it’s a failure. And I guess I just want to tell you that while I’m pretty inclined to agree with you, I think we have a long way to go or you have a long way to go to prove that point. Because there will always be the argument made by Border Patrol, by everybody, lots of other people, “Well, but you don’t know how bad the situation would have been but for Operation Gatekeeper,” et cetera.

And we have such poor data about what’s happening, especially away from the border, such poor data about what these migrant flows are, et cetera. And also we don’t really know what the deterrent effect is.

We see the scads of people assembling in the plaza south of Arizona, but without this aggressive border enforcement, that kind of assembling, that kind of staging pattern might arguably simply be more broadly distributed, less visible. And so how do you know.

One of the things we ought to think about, I think, therefore, is what kind of research would need to be conducted by whom in order to produce answers that might persuade all but the resolutely unpersuadably. So let’s just—I mean you peel off 35 percent on both ends of the spectrum. Right, the folks who are unalterably for open borders and the folks who are for militarizing the border.

And in the middle there are a bunch of folks who are just trying to figure out what’s the best thing to do. And I’m not sure that we’ve really assembled—maybe I’m not well informed enough—I’m not sure that we’ve really assembled the social science case to demonstrate to people that their current strategies really are failed, that we’re looking at all the variables and all the contingencies as best we can. I know the methodologies are very complicated. Maybe it’s something we ought to try to get the National Academy of Sciences to take a look at.

But I just put that to you. I don’t think the case is proven. I understand what advocacy is. And I understand if I were litigating this in the court of public opinion I would stand up and say, “It’s a failure,” but I also think that there’s a lot more work to be done to persuade people that it is.

CHAIRPERSON BERRY: Before I let you respond let me just say that, Professor Edley, you know better than anyone that you can never prove that something would have happened otherwise or would have happened even if this had not happened. That that’s not possible to prove.

It’s like the conference I went to, and another one I’m going to next week, where the theme is: If there had been no Civil War would slavery have been abolished anyway. There’s no way for anyone to prove whether or not slavery would have been abolished in the absence of a civil war.


CHAIRPERSON BERRY: No matter how many researchers you get and how many billions of dollars you spend, all we can do is sit around and speculate.

COMMISSIONER EDLEY: I agree. This isn’t about proof, this is about persuasion.


COMMISSIONER EDLEY: And obviously one uses as many methodologies as you can to get as class you can—

CHAIRPERSON BERRY: Right, to persuade.

COMMISSIONER EDLEY: —to the proof.

CHAIRPERSON BERRY: Right. So I’ll let you—anybody, yes, Mr. Obledo.

MR. OBLEDO: You mentioned the economics and the open border. All you need to do is to point out the states of California, the state of Texas, the city of New York, and the city of Miami to counter that argument. Which, in fact, shows that an open border would improve on the economics of the United States.

What I think we ought to do is just advice the illegal immigrants to go to North Dakota and South Dakota and Montana and Iowa and all those—and improve their economies.

CHAIRPERSON BERRY: They were trying to get there, the ones that were on the train, one day in Iowa.

MR. OBLEDO: Well, all those populations are increasing. It’s surprising where you find Hispanics in America today, almost anywhere you go. Even in a small town in Georgia, the majority of the school population is Hispanic.

CHAIRPERSON BERRY: And someone did —apropos to what you said, Mr. Obledo, someone did a little newspaper article recently in which they talked about the increase in economic productivity, where the places were, that you didn’t expect it, and they were all places where there had been an increase in Hispanic immigration to work in various areas.

MR. OBLEDO: That’s right.

CHAIRPERSON BERRY: In states like Tennessee and North Carolina. And there were some other places that I hadn’t even thought about it.


DR. CORNELIUS: This is actually happening. During the 1990s and increasingly, the migrant population from Mexico is disbursing throughout the United States. The growth rate of the population today is much higher in small and medium-sized cities in the Midwest and the South than it is in places like Los Angeles and Houston and Chicago.

What kind of research needs to be done? The most direct evidence, the best evidence would be gathered in places of origin—


DR. CORNELIUS:—high immigration areas and localities. It’s not a fancy methodology. I’ve done sample surveys of this type five times since the mid-1970s. I haven’t done it in the last eight years, however, so I have no direct evidence from that kind of sample survey research on how people are perceiving Gatekeeper and these other impediments.

What you do is you ask people who have gone recently to the United States and returned. You ask people who are thinking about going to the United States, prospective migrants. And you ask people who have no intention of going to the United States, at least stated intention. And you try to ascertain how important, what relative weight they assign to the U.S. border enforcement strategy.

And we need enough investment in that kind of research to produce a credible result, but you give me $200,000 and a couple of years and I’ll provide you the data set.

COMMISSIONER EDLEY: You know this is a strange question. Does the INS have a research budget to do things of that sort?


CHAIRPERSON BERRY: No, they don’t. And we’re out of time, so I want to thank you. But let me say—we’re beyond the time actually, but this was so interesting.

I did want to point out that all during the ’90s when these developments were taking place, and the ’80s, the Commission on Civil Rights in the ’90s had a consistent policy of being opposed to the absence of services, led by the Vice Chair who talked all the time about INS and its complaint processing, its naturalization processes, all the rest of it, as they were doing these various enforcement techniques. That was before Mr. Edley was on the Commission.

But, in any case, I want to thank you for coming, and say that Mr. Phil Montez, who’s our regional director for this region, and has been for 30-something years is here today and will be here tomorrow with us.

And the chair of our Arizona SAC, June Webb-Vignery, who I saw over there just a minute ago, she’s still here, is here. And the chair of the California SAC will be in later today. He was very much involved in this, but couldn’t be here. That’s Fernando Hernandez, who is at Cal State, Los Angeles, and will be here tonight and tomorrow.

I want to thank you for coming. We now have a brief time set aside for us to have some further discussions when this is over, this meeting. But thank you very much.

MR. OBLEDO: Ms. Chairperson, I have one additional recommendation and one question.


MR. OBLEDO: I recommend that you cancel one of your meetings and donate that money to Professor Cornelius to carry out that research.

CHAIRPERSON BERRY: So he can do that research he talked about. We’ll take that under advisement. A great idea, Mario. We’ll close.

[The briefing was adjourned at 11:27 a.m.]