When a Human Body Is “Illegal” Within Itself

By Maya Street-Sachs

“When undocumented migrants are criminalized under the sign of the “illegal alien”. Theirs is an “illegality” that does not involve a crime against anyone; rather, migrant “illegality” stands only for a transgression against the sovereign authority of the nation-state” (De Genova 175).

What Nicholas De Genova is stating above is that those who our society labels as “illegal aliens” or “criminal aliens” have not actually performed a crime against someone or something (i.e. murder or theft) however they have simply moved within the randomly, arbitrarily, created borders of our world. I think that upon moving to the borderlands, even for just a short time, this fact is all too clear in not only the legal proceedings that mix our criminal justice systems and immigration systems into one sweaty, packed, and fast paced court room, but also in the every day lives of people that have chosen/been forced to move to the United States, seeking work or simply a place to live in which they feel safe from prosecution and violence from the drug gangs.

To cross the US/Mexico border from Mexico for the first time is not a crime, but a violation of our country’s immigration policies.

To cross the US/Mexico border from Mexico for a second time is a criminal act followed by a court proceedings and time in detention, county jail, or prison, followed by deportation.

These might sound simple and objective but these policies function in exactly the opposite manner— they are confusing, arbitrary, and unjust when actually implemented into real life settings and with real life people.  Through the militarization of the border, and permeation of these policies into the everyday lives of immigrants in the United States, non-citizen individuals are no longer treated like humans first above all else, but instead as “illegals”.   There are many steps along the journey and policies that migrants jump through in order to reach the United States in which I feel that individuals are treated as “illegal” before they are treated as humans — from the moment they begin their journey, to arrest, to detention, to deportation.  Our country has policies that govern each of these steps of this inevitable process that strip migrants of their rights to “life, liberty and security of person” as stated by the Universal Declaration of Human Rights.  This 1948 document also states in Article 6 “Everyone has the right to recognition everywhere as a person before the law”.  Our immigrations system has completely disregarded these rights.  Below I will describe two out of many “spaces” within the migrant journey in which migrants’ “illegality” immediately strips them of their “human rights” in the eyes of United States immigration policy.

The Desert

Border Patrol agents act under the Department of Homeland Security and within that, the US Customs and Border Protection — employing more than 21,000 officers today.  As a federal law enforcement agency, Border Patrol agents actually do most of their work in an arguably law-less land (the desert) and concerning individuals who are deemed “illegal” in the eyes of the United States government, making it so that their policies and actions lack even less morality and accountability than actual police officers who at least, especially today, have more eyes from the public watching their day to day moves.

Above, we can see the guidelines that Border Patrol agents are trained to use psychologically and practically when it comes to their use of force out in the field — usually the desert.   Even though the Border Patrol agent that we spoke with at the Tucson Sector Border Patrol office — a man named Ricky Ortega — was well prepared and well versed on how to speak to a liberal and critical group of visitors, it was clear that Ortega has no moral qualms with acting within this top portion of the diagram — using deadly force towards individuals with substantially less power and force than the agents.  While meeting with agent Ricky Ortega I was struck by a number of sound bites that he threw at us.

Use of Force

Here are just a couple from our visit on Friday, February 12, 2016:

“…Let’s say we [Border Patrol Agents] were being assaulted…” / “…We don’t know what we don’t know…” / “…We aren’t trying to kill people…”  / “…10-20% [of people crossing the border] have some sort of criminal history. The vast majority of people crossing are good people… however we are always on a high threat level — everyone is that 20%…” / “…We can shoot into Mexico…”  / “…We are responsible for our bullets…”  / “… If we shoot, we don’t investigate…” / “…Officers are always innocent before proven guilty…” / “…Releasing names makes it seem like an [agent] is guilty…”  / “…We hope we don’t have to use firearms…” / “…All threats agency…” / “…you can exceed level of force…” / “…You can go beyond their [migrants] level of force…” / “…You never know what happens here…”/ “…Based on an officer’s perception…” / “…We are so used to people using force against us…”/ “…We don’t shoot to kill, we shoot to stop the threat…”

For me, I think what the above unorganized amalgamation of words that came out of Ricky Ortega’s mouth prove is how the desert becomes a kind-of anything goes land in the eyes of law enforcement. As Border Patrol agents physically and technologically stalk and detect “illegals” they then apprehend them in more or less any fashion that they deem necessary in the moment — verbally, physically, or both.  The power dynamic in these situations could not be more unequal.  Agents often speak very little or poor Spanish, they are in government-issued uniforms, half the time they are white, are mostly male, and most importantly perhaps, they are citizens and they love their country.  The migrants, on the other hand, often do not speak a word of English (or sometimes even Spanish for that matter), are in dirty, tattered, clothing that they have been wearing for days, they are non-white, sometimes they are women and children, they have no access to a weapon besides a rock, and most importantly perhaps, they are non-citizens, or “illegals”, “bodies”, and “aliens” as agents so love to call them.  They are “illegally” trying to enter the United States because life where they are coming from just doesn’t seem possible anymore.  What all of this comes down to is that agents do not need to have much, if any, moral, political, or social justification for anything that they do out in the desert, for in their eyes they are protecting our country from those that do not belong within our borders.  In this way, migrants lose all of their rights as people and humans within this initial step of their journey as they are solely and immediately labeled as “illegals” before they can even open their mouth to tell their story, not that anyone would listen.

The combination of agents’ and many government officials’ notion that migrants are dangerous and/or terrorists and need to be stopped at all costs in order to perform one’s job correctly, and our legal and immigration systems’ ability in general to organize policies and tactics in such a way that individual agents have the jurisdiction to decide in the moment what is best in that situation makes it so that the model above doesn’t really mean all that much.  What we can learn from the mindset of Ricky Ortega, the very existence of such a militarized, active, and large, Border Patrol faction, and the extreme lack of legal accountability for agents who have murdered someone in the desert or by the border wall, is that no matter what the situation might be, migrants traveling in the desert find themselves in this in between, law-less space where they are not looked at as humans who deserve protection under even universal human rights laws.  As Border Patrol agents are trained to view the status of these men, women, and children as first and for most “illegal”, they are stripped of any other identity such as refugee, migrant, farmer, father, or musician, and thus find themselves without any legal protection and in this face of imminent deadly force use against them.



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