In November 2018, a young girl from the Indigenous village of San Antonio Secortez in Guatemala got her very first pair of shoes. Her father, 29-year-old Nery Gilberto Caal, bought them for a special occasion: the 2,000-mile-long trek they planned to make across two borders to the United States.
A week later, a U.S. Border Patrol spokesperson announced that a Guatemalan girl had died in its custody. She and her father were arrested near the Antelope Wells port of entry in New Mexico, and, within a day, she’d fallen ill. The two were flown to a hospital in El Paso, Texas, where, according to the Border Patrol, she “was revived.”
But the next day, she died as a result of a serious bacterial infection. Had the Border Patrol given her a physical examination when they found her, they probably could have done something about her high fever. Neither her name nor the news of her death were made public by the Border Patrol until the Washington Post broke the story a week later. A family photo taken shortly before the ill-fated journey shows a pint-sized Jakelin Caal Maquin standing awkwardly, looking straight into the camera, wearing her new pink shoes. She would celebrate her 7th birthday on the journey north.
Border Patrol agents took more than 160 migrants, including the Caals, into custody that December day; that month, they apprehended a record 25,172 so-called “family unit members” — parents with their kids, or kids traveling alone. In years past, such especially vulnerable migrants would have been considered for asylum, depending on their particular case and the situation they faced in their home countries. According to U.S. law, anyone is eligible to apply for asylum, and all asylum seekers should be able to stay in the country without fear of deportation while they wait for a hearing. Yet today, people like the Caals are portrayed as criminals, regarded by some as a mass of people trying to game the system — “undesirables” who should be prevented from coming here in the first place.
Evidence has shown that tough barriers to immigration do not work and often have tragic consequences. Migrants will scale border walls, sneak in through underground tunnels, pay expensive smuggling fees and traverse dangerous terrain to get to the U.S. Yet regardless of the evidence, current U.S. immigration policy centers around establishing barriers and enforcing them to the extreme. And it is being carried out at an increasingly unbearable human and moral cost.
People like the Caals are portrayed as criminals, regarded by some as a mass of people trying to game the system — “undesirables” who should be prevented from coming here in the first place.
Such draconian practices didn’t come out of nowhere. They can be explained by our society’s long-running binary view of the rule of law: You either follow it, or you’re a criminal. In an effort to deter illegal immigration, however, the federal government could itself be breaking U.S. law. But more importantly: What’s being done to migrants and asylum seekers in the name of national security is certainly, under global human rights principles, both wrong and intentionally cruel.
DETERRENCE THEORY IS EMBEDDED in American thinking. It started out as a military and criminal doctrine, designed to discourage people from committing crimes out of fear of punishment. Now, however, for more than two decades, deterrence has been used to shape the way Americans see migrants and how those migrants are treated by law enforcement. This theory assumes that the punishment will prevent the crime: The bigger the infraction, the more severe the punishment will be. The theory also assumes that the potential perpetrators understand the rules.
Criminal justice experts, including Kevin C. Kennedy of Michigan State University’s College of Law, say deterrence theory is intrinsically flawed: In order to “secure obedience to the law, the public evil of punishment must be accepted.” But deterrence fails to instill fear among most people because they have no idea how law enforcement and criminal justice systems work.
U.S. authorities haven’t always viewed migration through a criminal lens. Yet the Trump administration has not only done so, it has chosen to apply deterrence theory to an extreme degree. Whether a person is an undocumented migrant, or a child seeking to reunite with her parents, or an asylum seeker with credible persecution claims makes no difference to our current administration, which considers them all “illegal.”
The harder it is to enter the country, the harder it becomes to request asylum. This has forced an estimated 60,000 people back to dangerous cities along the U.S.-Mexico border, where they are vulnerable to extortion, rape, robbery and kidnapping. Desperate families follow dangerous smuggling corridors from Central America to the U.S. Southwest. Once here, they are separated and sent to overcrowded, inhumane border facilities that have little to no oversight. Caal Maquin was one of six children who died in Border Patrol custody in 2018 due to insufficient medical care or neglect. Yet when news of her death became public, then-Homeland Security Secretary Kirstjen Nielsen defended the government’s harsh border policies, blaming Caal’s father for the death instead.
As the driving force of our current immigration enforcement, deterrence has been tweaked by policymakers for years. According to Geoff Boyce, academic director of the Border Studies Program at Earlham College, a critical turning point came in 1994, when the Border Patrol laid out its first national strategy and established what’s known as “prevention through deterrence” — the idea that the border “can be controlled if you increase the stress, harm and suffering that unauthorized migrants are exposed to, so it reaches a point where it has a deterrent effect.”
Deterrence has grown since 1994, Boyce says, when the U.S. saw a buildup of enforcement in the Southwest, including surveillance towers and checkpoints along the U.S.-Mexico border. “This pushed some people to travel further into the desert, shifting the geography of their travel so that they can’t enter as easily,” he says. By 2012, the Border Patrol introduced the wonky-sounding “Consequence Delivery System,” which basically punishes repeat border-crossers — thereby punishing working-class migrants for wanting to enter and stay in the U.S.
“(The Border Patrol) intends to end people’s desire to unlawfully enter the United States,” Boyce says. “It’s a form of social and psychological engineering.”
IN 2010, DURING PRESIDENT Barack Obama’s first term in office, I covered the San Diego-Tijuana border as a reporter for public radio. Deterrence was not a commonly heard term in those years, but it was standard practice.
At least once a month, I’d cross into Tijuana to visit the migrant shelters just south of the border. There, I’d talk to people who’d recently been deported to Mexico, or who were planning their journey north. I recognized a common trend: Deported immigrant mothers of American children were filling the shelters while their kids stayed in the U.S. That year, Immigration and Customs Enforcement (ICE) carried out almost 400,000 deportations under Obama — a record that separated countless families.
“We’re seeing a lot more women who have been in the States for more than 20 to 30 years,” Mary Galvan, a social worker at the Tijuana shelter, told me. “Once they’re deported, the only thing that interests them is finding a way to get back to be with their children again.” Most of the dozen mothers I met during one of my visits to the shelter had previously been deported and were trying to save up the thousands of dollars necessary to pay a coyote — a smuggler who takes migrants across the border — to help them cross illegally again. Some said they would cross illegally as many times as necessary in order to be reunited with their kids.
Back in 2010, I reached out to Robin Baker, then-ICE field office director for detention and removal operations in San Diego, to understand the reasons behind the increasingly aggressive deportation policies. “We always give them the opportunity to make the decision on their own: ‘Do you want to take the kids with you, or what do you want to do?’” Baker told me. “But we are not taking sole caregivers or both a mother and a father and leaving kids in an empty house. It does not happen.”
And yet, even in those years, it did happen. I met deported mothers and fathers in Tijuana who were desperate to be reunited with their children, who said their kids had been left alone at home and had no idea how they would manage without them. Kids were ending up in the U.S. foster care system even as their parents navigated a Kafkaesque system to try to get them back.
I TRIED TO SPEAK TO ICE and the Border Patrol for this story, but neither agency responded to multiple requests. Immigration enforcement agencies have become increasingly secretive in response to public criticism as their deterrence policy grows harsher; recently, there have been calls to abolish them altogether.
Last year, in response to outcry over a series of ICE raids that targeted migrant families, acting ICE Director Mark Morgan said the agency was simply following the law. “My duty is not to look at the political optics or the will of the American people; that’s for the politicians to decide,” Morgan told NPR. “What the American people should want us to do as law enforcement officials is to enforce the rule of law and maintain the integrity of that system.”
“Immigrants must follow the law” is a common refrain today. It implies that unlawful immigration itself is a crime. Yet many Americans fail to understand that immigration law is constantly changing, and that increasingly this is happening at a pace that confuses lawyers and legal scholars alike.
Take what’s widely considered one of the landmark pieces of immigration reform: the Immigration Reform and Control Act, signed by President Ronald Reagan in 1986. It made it possible for approximately 2.7 million undocumented workers to find a path to citizenship through paying back taxes and a naturalization fee. It also established detention and raids as standard procedures for immigration enforcement.
“The 1986 act changed immigration from what was basically a civil issue into a criminal issue.”
Yet the law also made it increasingly difficult for the rest of the undocumented population, an estimated 2 million, to get a job in some of the industries — like construction, agriculture and landscaping — that rely most on immigrant labor. Policymakers believed that this segment of the immigrant population would grow frustrated and return to their home countries. But instead, employers simply began breaking the law to hire undocumented people, typically underpaid contractors and subcontractors.
“The 1986 act changed immigration from what was basically a civil issue into a criminal issue,” says Ava Benach, a partner at immigration law firm Benach Collopy LLP who specializes in the immigration consequences of criminal convictions. “That cruelty took center stage then, when the government began to see immigration more like a criminal than a social or civil problem.”
Since then, the U.S. has passed laws that make it illegal to cross the border without papers, or to return after a deportation. Today, when ICE and the Border Patrol state that 40% of the people they arrest have a criminal record, this does not mean that half of all immigrants who come into contact with law enforcement are a threat to public safety, according to Benach. Rather, it means that almost half of those arrested are immigrants whose only crime was to cross the border without proper documents. “What’s illegal has changed over time,” says Benach; 20 years ago, she says, it was much easier for migrants to fight deportation proceedings, and families were not separated at the border or detained for as long as they are today. “So, is (the current practice of) family separation child abuse? Is what they’re doing to detained immigrants forced labor? You need a prosecutor who’s willing to say what it is.”
In March 2018, the American Civil Liberties Union, Human Rights First and the Center for Gender and Refugee Studies filed a suit against DHS regarding its use of a deterrence strategy to target asylum seekers. According to the lawsuit, DHS is violating laws that prohibit the detention of asylum seekers who pose neither a flight risk nor a danger to the community. Most importantly, however, the suit claims that DHS is violating the Due Process Clause of the Fifth Amendment, which requires the federal government to follow fair procedures.
“So, is (the current practice of) family separation child abuse? Is what they’re doing to detained immigrants forced labor? You need a prosecutor who’s willing to say what it is.”
Today, there are many lawsuits against the Trump administration seeking damages on behalf of thousands of children who were separated from their parents at the border. There are also legal challenges to policies that deny bond hearings to asylum seekers as well as to so-called fast-track deportations, which deny immigrants a court hearing or access to an attorney, among others.
Eventually, many of these cases are likely to end up in the U.S. Supreme Court. But even then, Benach is not confident we’ll get a definitive answer on whether current extreme efforts to deter immigration are true to U.S. laws. In an era of conservative lawmakers and judges who cater to political whims, fairness has become a fuzzy concept.
“Right now, there is a Supreme Court that seems quite willing to accept the excesses of this government, and that sets a terrible precedent,” Benach says. “A lot of these rulings are going to be really hard to undo.”
Perhaps the question we should be asking is not whether what’s being done to migrants and asylum seekers in the name of national security is legal — but whether it is right. After some thought, Benach says, “I imagine there’s a point when you can be sufficiently cruel to have people reconsider coming.” But she is incapable of describing what that type of deterrence might look like.
Some years ago, most of us would never have imagined that our government would permit migrant children to suffer or die from medical neglect, or that we would be separating toddlers from their parents at the border. Yet here we are today, accepting these tragedies as the inevitable consequences of a system that has long benefited from the cheap labor of undocumented immigrants. What we are witnessing today in the name of law and order should force us to question America’s moral values and loudly demand human rights reparations, both here and abroad.
IN 2018, THE DAY AFTER Jakelin Caal Maquin’s death was announced by the Border Patrol, a class action lawsuit was filed by the National Immigration Law Center, the American Immigration Council, the ACLU of Arizona, Morrison & Foerster LLP and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, challenging the inhumane conditions in Border Patrol holding facilities in the Tucson Sector.
“We shouldn’t have to sue our government to force it to abide by our laws and treat people with dignity.”
“The death of 7-year-old Jakelin Amei Rosmery Caal Maquin is a tragic reminder of a longstanding pattern of systemic cruelty and secrecy at CBP (Customs and Border Protection) and its parent agency, DHS, and underscores the stark need for greater transparency and accountability at these agencies. … We shouldn’t have to sue our government to force it to abide by our laws and treat people with dignity,” read the statement accompanying the lawsuit.
A year later, an Inspector General report concluded that there had been “no misconduct or malfeasance” by U.S. immigration officials in Caal’s death. Her body is buried in her native village in northern Guatemala. Her dad, Nery Gilberto Caal, has opted to stay in the U.S. He’s requested a credible fear interview: the first step in the long and difficult process to obtain asylum in the U.S.
Contributing editor Ruxandra Guidi writes from Tucson, Arizona. Email her at ruxandrag@hcn.org or submit a letter to the editor.
This article appeared in the print edition of the magazine with the headline Certainly cruel and possibly illegal.
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