Monday, July 1, 2013

On-Line Symposium: Comprehensive Immigration Reform: Is the Cure ("The Border Surge") Worse Than The Disease? by Geoffrey A. Hoffman, Director, University of Houston Immigration Clinic



I was heartened to learn that the Senate had passed a comprehensive immigration reform bill, S. 744. Shortly thereafter, I learned the Corker-Hoeven Amendment had been tacked on just before its passage, basically supplanting the bill in its entirety. The new amendment shows significant changes with potentially severe and devastating consequences. A variety of thoughts coursed through my mind. Perhaps dramatically, I thought immediately of the "bait and switch," the Trojan Horse, and other historical conspiracies. This led me to a close and exhausting examination of these additional border security measures.

Not to put too fine a point on it, but this amendment (and by extension the new bill) is extremely frightening and will degrade our civil liberties. If one looks at a helpful guide, for example the American Immigration Lawyer's Association (AILA) section-by-section analysis of S. 744, with the Corker-Hoeven provisions overlaid, a pattern emerges. The provisions are staggering in their effects. In addition to the increase to 46.3 billion dollars in "initial" funding to implement the Act, and "no fewer than" 38,405 border patrol officers are tasked with patrolling and managing the Southern border. That "no fewer" language is interesting in and of itself. That means the lowest number is nearly 40,000 officers at our Southern border? How many in reality? How many will be actually patrolling in our Southern towns, highways, public lands and other areas in and around the border?

Surveillance of 100% of the Southern border is mandated, to be accomplished with "unarmed, unmanned aerial systems and unarmed, fixed wing aircraft." Think routine and pervasive "aerial drones" over a large swath of our border states. Moreover, the Border Surge includes "a minimum" - there it is again the minimum, the lowest threshold set up - of 700 miles of border fencing, some of it double fencing. In excruciating detail, the Border Surge amendment to S. 744 enumerates all manner of projects, tools, and other "systems" that will be utilized and implemented at a variety of specific locations on the Southern border, mostly in Texas, as well as California and Arizona. I can just imagine how ecstatic the construction, surveillance, and prison industries must be to have a federally mandated list of projects in specific locales now built-in to this bill with a 40+ billion dollar initially mandated funding.

Of crucial importance is the definitional section. It defines the so-called "Southwest border region" as the area “in the U.S. that is within 100 miles of the Southern border." Did everyone catch that? 100 miles from the border. If you read closely, what can be implemented in this 100 mile zone (not just increased search and seizure as currently exists under the regulations) you will find that the bill now authorizes "additional, and upgrades [of] existing forward operating bases in the Southwest Border region to surveil and interdict people entering the U.S. immediately after crossing the border." Let’s read that again. "Forward Operating Bases," FOBs, (think Iraq and Afghanistan), are now authorized at any point within 100 miles of the border?

The National Guard gets its own subsection, section 1103. The Bill authorizes "state Governors to utilize the National Guard of that state to assist CBP in securing the Southern Border by constructing fencing and checkpoints; increasing mobile surveillance systems; deploying manned and unmanned aircraft; deploying and providing radio communications between CBP and state and local law enforcement; constructing checkpoints until there is a permanent checkpoint; and assisting CBP in rural, high-trafficked areas." I am now certain there will be a high presence of both federal border patrol agents and National Guard personnel involved in policing our Southern border. If this does not qualify as a "militarization" of our border I do not know what would.

If you are not convinced by the increased use of new drones, 100% surveillance, additional checkpoints, 700 miles of fences, a floor of at least 38,405 officers, and the use of the National Guard, 90% interdiction rate, I don't know what more would be needed to convince you of the severity of these measures. One of the lessons of the post-9/11 Bush era war on terror was that terrorists win if we let them diminish our civil liberties and the war causes us to lose our moral compass in the paradoxical effort to combat terrorists by simultaneously violating our Constitutional values. As the Christian Monitor reported in April 2012, net illegal migration from Mexico is now zero. If net illegal migration is zero, due to boosted interior efforts at deportation, detention, and enforcement, as well as economic and other factors, why are we wasting 40 billion dollars on militarization measures that will (there can be no doubt) make living along the Southern border a nightmare for residents and immigrants alike?

Perhaps you are not convinced. Perhaps you think that this amendment is worth it. You are not convinced because you think that the Border Surge is a necessary albeit bitter pill to swallow. A necessary evil which outweighs the benefits of a path to citizenship, a merit-based system of immigrant visas, an agricultural worker program and due process protections. On the other hand, perhaps you don’t think any measure to provide a path to citizenship is worth sacrificing a swath of territory along our Southern border to a level of military and governmental intrusion that has never been attempted in the history of the United States. I believe the costs of this amendment in human life and civil liberties could actually outweigh and overshadow the benefits of immigration reform. I hope I am sorely wrong.

Geoffrey A. Hoffman, Director, University of Houston Immigration Clinic

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