Spring Break in the Sonoran Desert

This guest post was written by Eli Braun, a law student at the University of Michigan.

“It’s not a trail of despair,” our guide John says. “For the migrants, it is a trail of hope.”

John volunteers with No More Deaths/No Más Muertes (NMD), a humanitarian aid organization that fights to end migrant deaths along the Arizona/Mexico border. Last year, the inhospitable frontier claimed the lives of at least 253 migrants – people young and old, male and female, who died from fatigue, injury, dehydration, and hypothermia. And those were just the recovered bodies, found by Border Patrol or NMD volunteers. Hundreds, maybe thousands, never arrive and are never found. “Disappeared,” in a way.

I spent this past week (my law school spring break) along the Arizona/Mexican border and in Tucson, volunteering with No More Deaths. From the look of NMD volunteers – often young radical-types in tight pants and dyed hair who would rather “fuck borders” than secure them – you might think the organization would be a little unwieldy. Not so. With a consensus decision-making structure, they manage a smooth operation, staffing a dozen desert campsites, keeping up a fleet of donated outback vehicles, preparing medical supplies for injured migrants, and most famously, dropping blankets, cans of beans, and gallons of water along the trails.

“I found your water,” successful migrants later tell NMD. “Wouldn’t have made it without it.”

That was our task. With ten other University of Michigan law students, I loaded up my backpack with my own provisions (sandwich, snacks, and water), then tossed in a blanket and a half-dozen cans of beans, then took a gallon of water in each hand and set out for the day. We left water and beans under trees, targeting areas just south of contaminated water holes (“cow water”) that thirsty migrants sometimes drink in desperation – which, for many, is the beginning of the end. Bad water leads to nausea and diarrhea, until people succumb to the sun, their bloated remains – or what’s left of them after the coyotes – becoming statistics.

Since 2000, 2,104 bodies have been recovered in the Arizona section of the border.

Discarded personal effects line the trails: a toothbrush, a child’s torn t-shirt (“Don’t touch,” John says, or you’ll find scorpions and spiders), high-heels. High-heels? Yes, many people crossing the border were told that Phoenix would be a few days’ walk, no biggie, so sure, bring everything.

Empty water bottles and cans of Red Bull also dot the trails. NMD actually has a litter removal project in an effort to appease critics (and some prosecutors) who accuse them of littering.

We visited shrines – wooden crosses in the dirt decorated with photos, trinkets, and necklaces – some created by volunteers and some by migrants themselves. They mark spots where earlier migrants died. One we visited marks the death site of a 14 year-old El Salvadoran girl, Josseline Jamileth Hernández Quinteros, who, with her 10 year-old brother, was trying to reach their mother in Los Angeles. She started vomiting and could not keep up. Their guide (a hired “coyote”) feared that Border Patrol would catch the whole group and decided to leave her behind. When her brother arrived in LA several days later, he sounded the alarm. It was too late.
Standing around the shrine, no one really knows what to say.  Even our guides, who had been there before, have trouble finding words.

Later we run into two Border Patrol agents. Are we US citizens? Yes. After that, there’s not much more they can demand of us. But we’re hiking with one Australian citizen who is also volunteering with NMD, and one of the agents rattles her: “I don’t like people coming into my country to help illegals,” he tells her. “They’re coming to ruin America.” I bite my tongue. In the end, it’s our country, too. So with the privilege of citizenship, we pass by, though not before he warns us of drug smugglers. “If you’re helping the drug mules,” he says, “I have no mercy.”

Border agents have been known, on occasion, to slash the water gallons that NMD volunteers have left out for migrants. On the other hand, they also administer medical assistance to injured migrants.

“It’s a war out there – the migrants, the agents,” I reflect one night. It’s corny, but I feel it: Arizona and its militarized border have become the frontline of a vicious battle.

At night, we huddle around the campfire, sharing warmth and the day’s emotions, hearing war stories from older volunteers (“I was charged with assaulting an officer’s boot with my face,” says John), and making smores. We find the Big Dipper and Orion’s Belt, concealed in the morass of stars that renders flashlights unnecessary and guides migrants through the night. Few migrants move in the daylight; discovery is too risky and the sun is too hot.

During the day, I hide under sunglasses, a safari hat, and layers of sunscreen reapplied every couple hours. Prickly desert plants tear at my pants and my skin. At night I hide under five layers of long underwear and sweatshirts, two hats (one a balaclava), wool socks, extra blankets, and a sleeping bag. When I rise, sleep-deprived from the shivering, the tent is covered in frost.

I awake to a Border Patrol helicopter flying overhead at 3 in the morning.

On our last morning at the NMD camp, just past sunrise, seven migrants walk in, completing their trek for the night and looking disheveled after four days of travel. They seem to know of NMD. The seven are young Mexican men seeking work in the United States. One has a brother in Phoenix. We offer them fresh cantaloupe and scrambled eggs. One looks sick, wrapping himself in a blanket and staring blankly ahead. We learn later that he turned himself in to Border Patrol for voluntary deportation. One NMD volunteer called his mother to say he’s on his way back.

The six others have several nights of walking ahead. Meanwhile, we law students who have “earned” our citizenship by birth pile into our van for the two-hour drive back to Tucson. The migrants will creep along as invisible as possible, trying to evade the infrared cameras on Border Patrol’s helicopters. After the journey, they’ll assume a new form of invisibility: the undocumented worker.

Before the trip, I feared I expected too much from Arizona; it’s just one state, while immigration is a national question. Undocumented people contribute to every state in this country (paying taxes to support social services they cannot enjoy), and a federal judge last year enjoined parts of Arizona’s SB1070 specifically because “the federal government has broad and exclusive authority to regulate immigration” (703 F. Supp. 2d 980). So why Arizona? Do we misconstrue a question meant for Congress by consigning it to a single state? And what do border issues have to do with the broader goal of immigration reform?  Yet Arizona delivered.

In Pima County Superior Court, we pack the courtroom to support two people who were convicted and are awaiting sentencing for the offense of working under fake work papers. They had purchased Social Security numbers. One worked as a diner cook; the other, named Gustavo, worked as a dish-washer at Hooters. Gustavo spent six months in jail awaiting a plea agreement (as if he needed to be incapacitated or rehabilitated for seeking to provide for his wife and their two young children, both American citizens). In jail, he was unable to make mortgage payments on the home they had bought ten years ago. It was seized. We wonder: Is that the new American dream, holding immigrants criminally liable for washing our dishes? Now when their probation terms end, they’ll be deported.

“Why didn’t they go to trial?” we ask their lawyer Margo, also with No More Deaths. “It was too dangerous,” she says. The evidence was too damning and the prison time was too risky.

It could have been worse. Both defendants avoided potential prison terms by taking pleas and presenting the judge with letters from employers and community leaders, all attesting to their hard work. As their lawyer reads the letters aloud to the court, it’s hard not to think: Why are we deporting these people again? Both defendants apologized profusely to the court as if they were criminals. But what about so many others, people who wash our dishes and pick our lettuce but aren’t charming enough to pack a courtroom with supporters at their sentencing? Prison, I guess?

It seems these migrants cross the desert at night, tiptoeing around cacti, to reach a destination – back-kitchens, washing dishes – where they face the same basic task: trying to stay invisible.

That was state court. Later we observed a criminal hearing at Tucson’s federal courthouse. Unlawful presence in the United States is not a crime (though it makes the person deportable) but unlawful entry is a misdemeanor under 8 U.S.C. §1325. And repeated unlawful entry is a felony under 8 U.S.C. §1326, carrying a minimum of two years, and a max of 20, in federal prison.

“If everyone pled guilty to the felony,” a federal public defender tells us, “it would bring down the system.” In 2008, the federal courts and Border Patrol implemented a ‘streamlined’ process whereby captured migrants take a plea bargain for the misdemeanor charge, receive a “time served” sentence, and then depart on a bus back to Mexico that very night.

In one swoop, “Streamline” takes a defendant from his or her initial hearing all the way to sentencing. And not just one defendant, but 70 defendants in a brisk 45 minutes. They have shackles around their wrists and ankles that jiggle through the hearing.  They wear whatever clothing they were captured in: usually jeans and t-shirts (Oakland Raiders, one says). Most look under 30. Two are women. All look scared and sleep-deprived. Most are first-time migrants looking for work, while others had been working in the U.S. for years. They had started families here before being discovered (“Make sure to use a left-turn signal,” says our NMD guide Lois) and deported to Mexico. When they were picked up in the Arizona desert, they had been trying to return “home.”

In the age of mass deportations and mass incarceration, we now have mass courtroom hearings. This rushed production, performed for hoards of non-English-speaking defendants who’ve met their lawyers only hours earlier, happens every single weekday.

For reasons no one seems to understand, not all captured migrants enter Streamline. Most are simply deported. The 10% who are channeled into Streamline, by contrast, get deported with a criminal record. Once they have a criminal record, if they cross again, then they’ll be subject to the harsher charge of repeated illegal entry, which carries a prison term of 2-20 years. With the plea bargain, they’ll take 20-180 days.

Ostensibly, the point of hauling these migrants into federal criminal court (instead of simply deporting them) is to instill in them the consequences of crossing again: prison time.  Yet the federal public defender says they get calls every month from deported migrants, asking: What the heck just happened? If 11 law students had to pause to understand this maze of federal statutes, sentencing schemes, and hastily recited Constitutional protections – somehow “knowingly and voluntarily waived” by non-English-speaking defendants – how could they?

So what’s the real point of this courtroom charade that distracts prosecutors and defenders from more serious violations? Maybe, as another federal public defender alluded, the criminalization of migrants is driven (dare I say it?) by profit. Migrants with prior criminal records face longer prison terms at the private facilities under contract with the federal Bureau of Prisons. Since private prisons get paid (our tax-money!) for each bed used, they seek to detain more people for longer periods of time. And their friends in elected government know it.

The federal public defender did not criticize the Department of Homeland Security for how it handles juvenile migrants, age 16 and younger. Some are actually sent to their families in the United States until DHS can locate their families in Mexico. And she was pleased that the courts had acceded to her office’s request and required the attorneys for these migrants (at $125/hour in taxpayer money) to speak Spanish.

The magistrate, a gruff round man easily in his sixties, heard that the people sitting in the back of his courtroom were law students. “So, any questions?” he asks us afterwards. “Does the punishment fit the crime?” we ask. “Well, no,” he says. “These guys are getting a deal. The felony would get them two years in prison but they take a plea bargain for thirty days. People say they want a just sentence, but really they want a lenient sentence.”

“But you’re defining ‘just’ from the perspective of the statute,” I protest. He replies, “What should I give you to read…. Yes, theEuthyphro. Have you read it? I reread it every two years.” Plato’s famous dialogue queries the source of justice: “Is the pious loved by the gods because it is pious? Or is it pious because it is loved by the gods?” His point: Who the hell knows.

“Do you believe these defendants are getting their day in court?” I ask. “Oh sure,” he says. The federal public defender behind him shakes his head and we try not to laugh. The magistrate continues: “They meet with their lawyer, they learn about the plea. But they’ve got this whole courtroom hearing. It sounds too good to be true. They fear prison time. I get them through it fast and they see the plea bargain is for real. It reduces the agony.”

The public defender later disagrees: “Yeah, he’s proud of his speed, but in our opinion, that’s not something to be proud of.” Why not? It’s not like these defendants would exchange the plea for a trial, which would expose them to prison time. Well, first, she explains, we’re worried about actually deporting American citizens in the rush. Some migrants can receive “derivative citizenship” if a grandparent was a citizen. Second, we have Constitutional requirements. Do these defendants really understand their rights under our law? Third, “if the point is to make an impression, to let them know what they’re facing if they return, why speed them through?” For their own purposes, it doesn’t make sense.

The magistrate suggests broader immigration reforms: “Americans presume that everyone wants to be a citizen and immigrate, but that’s not true. People actually like their own country and language. They come here to work and save enough money for a house or a family member’s operation or something, and then they want to return. So we need more work visas.”

Our other problem, he says, is our addiction to drugs. Mexican cops are dying because of it.

“Is it difficult to sentence people to prison time, given your ideas about what they’re coming for?” one of us asks. “It is never easy to send someone to prison,” he says. “If it is, you shouldn’t be a judge. They get medical care in prison, but that’s still 180 days that they’re not earning money for their family.” Yeah, he concedes after some nudging, it would at least be “simplest” if people avoided criminal charges altogether. But he’s not the only player, he explains; there’s the executive and there’s Congress. And they have ideas, too.

He sounds less like a judge, and more like a cog in vast, automated system.

A Border Patrol helicopter circled us for a while.

We also meet with Border Patrol (formally this time). They tell us that since 9/11, “we’re not interested in the poor guy who’s come to pick lettuce in California,” but they also tell us that in 2010, they apprehended 210,000 undocumented people in the Tucson sector alone. “You don’t know who people are until you arrest them,” one officer explains. The vast majority of migrants – all but 2.5% – are Mexican. The agents discuss their frustration with sending people back over the border only to catch them again – and again and again. So they’ve started “lateral deportations”: Some people caught in Arizona will be deported to the California border or even flown into Mexico’s interior. And of course, they’ve started prosecuting migrants, too.

“Is it your belief,” we ask, “that leaving food and water for migrants aids and abets illegal immigration?” The Tucson section chief, who oversees 700 agents, cuts the tension by saying: “Do I have to answer that?” After all their tough talk on border security and terrorist threats, we need the laugh. That’s for the courts, he says, and he names a 2-1 decision (621 F.3d 914) at the Ninth Circuit tossing out the littering conviction of a NMD volunteer for putting out gallons of water.

But the courts aside, does providing food and water to migrants “aid and abet”? (Those classic words are not actually in the statute, 8 U.S.C. § 1324, but they’re magical in a way.) Those six migrants who visited the No More Deaths camp and left re-hydrated had a better shot of reaching Tucson and evading Border Patrol. But that’s simply because they’re not going to die. Their successful entry into the United States might be seen as the byproduct of simply staying alive.

Mt. Baboquivari, the tall peak to the left, orients migrants.

Okay, well, do migrants embark on this trek because they know No More Deaths leaves water on the trail? Do NMD activities increase border crossings? Our NMD guide John part-laughs, part-laments in reply: “It’s a vast desert out there; a couple gallons is a drop in the bucket.” And it’s a rather empty bucket, we remember, knowing that another 40 bodies were recovered in the last four months of 2010. Whether NMD’s gallons actually increase the number of undocumented immigrants is an empirical question, and it will probably never be answered. But it seems plain to me that potential migrants, seeking a better life, don’t come because of NMD’s gallons, if they know about them at all. As the song says: “There ain’t no mountain high enough, ain’t no valley low enough, ain’t no river wide enough, to keep me from getting to you.”

NMD itself, as an organization, does not seem to worry about the “aid and abet” question: their work is humanitarian, the political ramifications be damned. But I think about it because, well, I am not an anarchist: I believe in the necessity of borders and the value of citizenship. Whether it’s schools or banking regulations, I don’t think we can build just institutions that represent us without imposing some restrictions to determine who’s in and who’s out. So the question for me is not the existence of such restrictions, but their fairness. How do our immigration laws measure up? Why should Mexican citizens have to wait decades longer to get legal residency than non-Mexicans?

Impatient with the pace of federal reforms, Arizona has embarked on its own anti-immigrant campaign, starting famously with SB1070. One provision, among others, requires a police officer to determine the immigration status of anyone stopped, detained, or arrested “if there is a reasonable suspicion that the person is unlawfully present in the United States.” (A federal court in July 2010 decided that this section was likely preempted by federal law and enjoined it.)

SB1070 was just the beginning. Arizona has become “Aryanzona” or “Errorzona” (according to activist buttons we saw) as anti-immigrant fervor takes over the Arizona statehouse. We analyzed 18 pending anti-immigrant bills for the Coalición de Derechos Humanos, a human rights legal organization in Tucson. Most of them teeter between laughable and terrifying. One would create a separate Arizona citizenship (for children of US citizens or legal residents only); one taxes international money transfers (penalizing migrants trying to send money home); and another amends the state constitution to prohibit judges from considering international law.

One “omnibus” bill, SB1611, makes it virtually impossible for undocumented people to exist in Arizona. It requires proof of legal status to enroll in any K-12 school or college; to buy, register, or even drive a car (or you go to jail for 30 days and forfeit your vehicle); or to obtain any license, including a marriage license. Another bill requires medical personnel to check and report patients’ legal statuses before treating them. (How many people will forego necessary medical care if this bill passes?) One bill, now a law, authorizes the Arizona Senate president and House speaker to hire lawyers, at taxpayer expense, to represent their respective chambers in defending SB1070.  All bills passed out of initial committees.  As of March 17, however, five of the major bills, including the omnibus bill, have been voted down by the AZ Senate.

We had tough moments: the death sites (“they knew it was her from the distinctive green shoes”), the jiggle of 70 leg shackles in the courtroom, the disgrace of locking people up to turn a profit. And there was the purely physical: frigid nights, makeshift bathrooms, heavy backpacks. “I can’t wait to get back to law school so we can sleep in again,” one person half-joked.

But we also hiked through stunning scenery, rode in the beds of pick-up trucks, made smores by the campfire, and tilted our heads back to the stars. We belted “my hips don’t lie!” with Shakira and Wyclef in our 15-person van, took midnight trips to taco-trucks, and played soccer at the NMD camp, at highway rest-stops, and outside our convent in the city. We danced at Tucson’s “Hotel Congress” nightclub for hours until one day turned into the next. “Stay fierce,” advised the singer.

I remember thinking as we danced: This morning I woke up in Arivaca, 12 miles from the Mexico border, and ate breakfast in the company of people who are now walking for the chance (nothing guaranteed) of a better life. They’re back on the trails, trying to avoid cacti, trying to stay invisible. And I am dancing at “Hotel Congress”; it’s my spring break; I’m tipsy; and my government has provided me with tens of thousands of dollars in loans to furnish an education.

The contrast is stark. So activists sometimes blame themselves, feeling guilty for their relative affluence and their fun. They think: How can we melt marshmallows over chocolate or dance in nightclubs when others are walking in the desert? Yes, these juxtapositions are real, but they don’t mean we must live in constant mourning or adopt aesthetic routines like desert migrants. That’s not what “solidarity” means. Feeling guilty for our fun saps our will to live. It hinders our ability to stand up for marginalized others and it makes a mockery of the life we desire for them.

It was not always obvious in the moment, since the desert sun makes it hard to think in complete sentences. But the work, I realize, is essentially hopeful, despite the morbid nature of our task (the organization, after all, is called “No More Deaths”). It is hopeful in reflecting not just the desperation of these migrants (what led them to make this desert trek?), but also their aspirations for a better life. No one believes in America quite like immigrants do.

Putting out water is not the solution to our immigration dilemma. But it does not purport to be. It’s just a simple idea that I can embrace without caveats: Let there be no more deaths.