Immigration Law Essays
The Current State of Our Failed Border Policy, Brian Wolf
I. Current Overview of the U.S. – Mexican Border:
The current U.S. - Mexico border policy of militarization has failed; as the amount of human and financial resources being poured into border security increases to grow exponentially, the influx of undocumented immigrants into the U.S, the amount of human trafficking, and the number of border-crosser deaths continue to grow along with it. This paper will argue that increasing the amount of Mexican immigrants granted employment and family based visas, combined with allowing "safe" immigrants without criminal histories greater access into the U.S. through official points of entry will positively impact the aforementioned problems.
Over the past 10-15 years the issue of immigration has been a very heated one, resulting in the government taking a more hard-line approach. The Clinton Administration introduced the more aggressive "prevention through deterrence" immigration policy in 1994. 1 This plan sought to deter immigrants from crossing by cutting off the traditional crossing routes in the Southwest and funneling border-crossers into harsher terrain. Enforcing this policy required significant increases in border security resources at the major ports of entry in the Southwest, including San Diego, California, El Paso, Texas, Southern Arizona, and Brownsville, Texas. Furthermore, in the wake of the 9/11 attacks the national security argument has been used to justify increasingly extreme militarization border policies such as actual military deployment and the construction of a 2000 mile-long fence extending from Southern California to the Gulf of Mexico. Between the years of 1993 and 2004, the federal government increased its spending on border enforcement four fold, from $740 million to $3.8 billion and increased the amount of Border Patrol agents nearly three fold, from 3965 to 10, 385. 2 The strategic objectives of this policy were to decrease the amount of border crossers and crime, thereby strengthening our national security.
Title VII of the Immigration and Naturalization Act (INA) provides that any person not a citizen or national of the U.S. who "(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers" is violating the law. 3 Title VII, as applied though the "prevention through deterrence " policy framework views immigrants crossing the border as threats to national security; accordingly, militarizing the border is the appropriate response. However, those behind this policy turn a blind eye to the fact that most undocumented workers who enter the U.S. from Mexico or other Latin American nations are interested in finding jobs and reuniting with their families not in launching terrorist attacks against the U.S.
II. The Current Border Policy's Failures:
The underlying "deterrence" rationale behind this policy has proven to be wholly erroneous and unsound. When enacting this policy, it was believed that making it more difficult and costly to cross the border would result in fewer aliens trying, thereby decreasing the amount of undocumented immigrants. When enacted the "prevention through deterrence" policy was successful only in lowering the amount of border-crossers at the heavily urban areas in the Southwest (listed in the previous section); however, it did not succeed in lowering the total amount of border-crossers. From the years 1993-2004, the amount of undocumented immigrants more then doubled from 4.5 million to 9.3 million, 57% of whom are Mexican while an additional 23% are from other Latin American nations. 4 In effect, this failed policy has only served to funnel the border-crossers to more remote and dangerous crossing areas, largely removed from the public eye.
Another unforeseen consequence of the current border policy has been a significant increase in the amount of human trafficking crime. As many of the crossing points switch from cities to remote areas situated in dangerous mountainous and dessert terrain, the border crossers often require the help of guides to cross. A large market of undocumented immigrants for human traffickers has been created by the new policy. According to Border Patrol statistics, the percentage of undocumented immigrants apprehended along the southwest border who were reportedly smuggled into the US rose from 5.5% in 1992 to 22.2% in 2004, from 62,909 to 252,651 apprehensions. 5 Human trafficking rings are heavily connected to organized crime and drug trafficking. Accordingly, there is a direct correlation between the government's new border policy and the sharp increase in the amount of crime along the border; another strong indication that this policy has failed.
Perhaps the most unfortunate result of border militarization has been the escalating numbers of border-crosser deaths. As stated above, the fortification of the main urban crossing centers has pushed the border-crossers into more extreme and dangerous terrain. For example, the Sonora desert, stretching through parts of California, Arizona, and New Mexico contains many isolated and remote regions that are popular crossing points. In the summer, the highs can exceed 120 degrees and the temperatures may top 100 degrees for 90 to 100 straight days. 6 The harsh desert landscape provides little to no shade or any respite from the heat, thus many border crossers die of heat exhaustion and dehydration. According to a 2006 Government Accountability Office (GAO) report, the number of border cross deaths a year has almost doubled from 254 in 1998 to 472 in 2005. 7 These statistics also demonstrate that by 2001 heat exposure deaths accounted for more then 30 percent of all border-crossing deaths. 8 Pursuant to this, there is a strong argument to be made that the current border policy is inherently violative of border-crossers right to life.
III. Proposed Remedies:
Perpetuating the current militarization border policy creates neither a humane nor a secure border. By allowing a greater number of Mexican immigrants entry through family-based and employment-based visas and allowing an increased amount of "safe" immigrants without criminal histories into the U.S. via official ports of entry along the border, Border Patrol will be free to allocate its resources in a manner that better protects U.S. security interests.
Increasing the amount of employment and family-based visas granted to Mexican nationals would alleviate a lot of the problems currently plaguing the border. According to Department of Homeland Security (DHS) statistics, as of January 2006, 6.6 million of the estimated 11.6 million undocumented immigrants living in the United States are of Mexican descent. 9 The majority of those immigrants entered U.S. seeking employment due to the difficult economic situation they face in Mexico or seeking to reunite with their families already living in the U.S. DHS statistics further provide that in 2006 173,753 Mexican nationals were granted legal permanent residency (the large majority of those through employment-based and family-based preferences) and granted 225,680 temporary worker visas to Mexican nationals. 10 This demonstrates that the supply of both green cards and temporary work visas made available to Mexican nationals doesn't even begin to meet the demand and in turn has created huge backlogs. Currently, visa allotment to Mexican nationals requires individuals in some cases to wait for ten or thirteen years. 11 Clearly, family reunification and the need to work for a livable wage coupled with the severely inadequate amount of visas has led to the huge influx of undocumented Mexican immigrants into the U.S.
Allowing "safe" immigrants without criminal histories into the United States through the official ports of entry now shut off to them would similarly mitigate many of the problems created by the current border policy. By reopening the San Diego, El Paso, Southern Arizona, and Brownsville official ports of entry to a greater number of "safe" immigrants the problems caused by funneling the border-crosser traffic into the harsher terrain would be significantly lessened. It could be argued that this policy proposal would in effect open the floodgates; however, it doesn't appear as though these floodgates were ever closed as evidenced by the 6.6 million undocumented Mexican nationals currently living in the United States. 12 By easing restrictions in this manner, seasonal workers would be able to freely enter the U.S. and leave once the season is over; allowing them to circumvent the dangers involved in crossing illegally while at the same time benefitting the U.S. economy. This proposal would require reallocating resources to monitor these immigrants while inside of the United States. If efficiently administered this policy would only minimally offset the incredible amount of resources spent preventing their entrance in the first place. Pursuant to this, opening the official ports of entry along the Southwest border to "safe" immigrants who pose no threat to security would allow the border control officials to refocus their efforts on preventing criminals and terrorists who do threaten national security from crossing.
The current U.S. - Mexico border policy of militarization is not working; since the inception of the "prevention through deterrence" policy there has been a significant increase in the amount of border-crossers, in border-area crime, and in border-crosser deaths. The policy is based on national security concerns; accordingly, allowing passage to "safe" immigrants with no criminal histories seeking to work or reunite with their families will allow border officials to reallocate their resources in a manner more conducive to protecting the welfare of the United States and positively impact the aforementioned problems created by the current policy.
1. Bill Ong Hing, The Dark Side of Operation Gatekeeper, 7 U.C. Davis J. Int'l L. & Pol'y 121, 128 (2001).
2. Ewing, Walter A., Symposium: Globalization, Security & Human Rights: Immigration in the Twenty First Century: From denial to acceptance: Effectively Regulating Immigration to the United States, 16 Stan. L. Pol'y Rev. 445, 454 (2005).
3. 8 U.S.C. 1325 (2003)
4. Ewing, Walter A., Symposium: Globalization, Security & Human Rights: Immigration in the Twenty First Century: From denial to acceptance: Effectively Regulating Immigration to the United States, 16 Stan. L. Pol'y Rev. 445, 454 (2005).
5. Ewing, Walter A., Symposium: Reforming U.S. Immigration Policy: Beyond Border Enforcement: Enhancing National Security through Immigration Reform. 5 Geo. J. L. & Pub. Pol'y 427, 433 (2007).
6. The Sonoran Dessert Naturalist available at http://arizonensis.org/sonoran/
7. United States Government Accountability Office: GAO: Report to the Honorable Bill Frist, Majority Leader, U.S. Senate: August 2006: Illegal Immigration: Border-Crossing Deaths Have Doubled Since 1995; Border Patrol's Efforts to Prevent Deaths Have Not Been Fully Evaluated, footnote 14,available at http://www.gao.gov/htext/d06770.html
8. Id. at figure 3.
9. Hoffer, Michael, Estimates of the Unauthorized Immigrant Population Residing the in the United States, Department of Homeland Security, pg. 1 (January, 2006) available at http://www.dhs.gov/ximgtn/statistics
10. 2006 Statistical Yearbook of Immigration Statistics. PERSONS OBTAINING LEGAL PERMANENT RESIDENT STATUS BY BROAD CLASS OF ADMISSION AND REGION AND COUNTRY OF BIRTH: FISCAL YEAR 2006, Table 10, pg. 29 NONIMMIGRANT ADMISSIONS (I-94 ONLY) BY CATEGORY OF ADMISSION AND REGION AND COUNTRY OF CITIZENSHIP: FISCAL YEAR 2006, Table 33 pg. 85, available at http://www.dhs.gov/ximgtn/statistics/
11. Medina, Isabel M., Crossing the line: Examining Current U.S. Immigration & Border Policy: At the border: what Tres Mujeres Tell Us About Walls and Fences. 10 J. Gender Race & Just. 245, 260 (2007).
12. Hoffer, Michael, Estimates of the Unauthorized Immigrant Population Residing the in the United States, Department of Homeland Security, pg. 1 (January, 2006) available at http://www.dhs.gov/ximgtn/statistics