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From Deportation to PrisonThe Politics of Immigration Enforcement in Post-Civil Rights America$

Patrisia Macías-Rojas

Print publication date: 2016

Print ISBN-13: 9781479804665

Published to NYU Press Scholarship Online: May 2017

DOI: 10.18574/nyu/9781479804665.001.0001

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The Citizen and the Criminal

The Citizen and the Criminal

The Overreach of Immigration Enforcement

(p.132) 5 The Citizen and the Criminal
From Deportation to Prison

Patrisia Macías-Rojas

NYU Press

Abstract and Keywords

New enforcement targets and deployment of more border patrol to Arizona-Sonora border communities has inadvertently involved agents more directly in local crime control. This is the flip side to the more familiar scenario of local police and sheriffs who carry out immigration enforcement. This chapter considers the overreach of enforcement priorities and what some refer to as “net widening” in predominantly Latino border communities where border residents, mostly Mexican American citizens and legal permanent residents, are routinely arrested, prosecuted, sentenced, and, in some cases, deported for violations of immigration law.

Keywords:   Arizona border communities, U.S. Border Patrol, border policing, crime control, Mexican Americans, civil rights, human smuggling, net widening, vigilantism, border activism

In Douglas, Arizona, a Mexican American woman explains that she never visits Mexico anymore even though she has relatives there and lives only a few blocks from the international border.

“Why not?” I ask.

“‘Cause of this,” she says, raising her wrist to show a black clunky band around it. “I’m under house arrest.” She tells of how she had been an informant for the Border Patrol’s antismuggling operations. “I used to work for them. But I knew too much so they set me up.”

“Who’s they?” I ask.

“The Border Patrol. Sometimes I’d be out there,” she continues, “in my car with my camera and they’d stop me. ‘What are you doing out this late?’ I’d tell them who I was working for and they’d let me go.”

She reported on smuggling activity regularly until she witnessed Border Patrol agents involved in the very smuggling activities they were charged with policing.1 “They work together,” she explains, referring to border agents and smugglers. “They’re not all like that. Some of them are though. … I saw agents letting people go and guiding them [migrants] to the holding houses. So they set me up.”

She believes she was “set up” one day when an “illegal” came to her house asking for food and water. “I wasn’t gonna to turn them away. And got arrested for smuggling.”

Two hours have passed and she looks like she still has much more to say. It’s dark, and I ask if I can come back to hear more of her stories. “I’m home all the time,” she laughs, pointing to the police band on her wrist.2

There was something about this Mexican American woman’s story that startled me. It was not the accounts of corruption. What disturbed me was her quasi-legal status and that border residents, mostly citizens (p.133) and legal permanent residents, are being arrested, prosecuted, sentenced, and in some cases deported for immigration offenses.

That border policing inflicts collateral damage on Mexican and Native Americans living in the border region is not new or surprising. There is a long and violent history of Border Patrol agents targeting persons of Mexican ancestry and Native peoples regardless of citizenship status.3 The forced expulsions of Mexicans in the thirties and fifties are woven into countless family histories. During Operation Wetback in 1954, when the United States expelled over one million Mexicans, immigration agents deported U.S.-born members of my own extended family. Even today various human rights reports and congressional hearings continue to document violations of the rights of citizens and legal permanent residents by Border Patrol agents.4

When I agreed to go door to door for a Border Patrol–community relations survey, I questioned why abuse documentation projects often focus on citizens and upright legal residents. Most people assume that border controls are there to protect the citizens’ rights and to keep out “illegals.” Protecting the rights of citizens and residents, in fact, is a major rationale for increasing border security. Highlighting the rights violations of the native born or morally upright serves as leverage to challenge the overall practices of immigration enforcement. But it also reinforces a citizen/noncitizen divide in matters of rights and equality.

Yet citizens’ experiences with border policing are critical to understanding how criminalization works. The literature on racial profiling and immigration law enforcement suggests that agents racially target Latinas/os because they share the ethnicity of undocumented migrants.5 This was one of the biggest critiques in debates about Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (SB1070), signed into law on April 23, 2010. SB1070 required that state and local officers check a person’s immigration status and make arrests without warrant where there is probable cause that the person is subject to removal from the United States.6 Opponents argued that the “papers, please” section of the law, which the Supreme Court upheld, would subject Latina/o residents of Arizona to systematic discrimination. Supporters of the law dismissed these critiques. Governor Jan Brewer’s public statement about SB1070 stressed, “There is no higher priority than protecting the citizens of Arizona” from crime and criminals.7 Local police and sheriff’s (p.134) departments prepared civil rights training videos to preempt antidiscrimination litigation.8

What I witnessed in border communities, nearly a decade before the passage of SB1070, was more insidious than the overtly racial practices I had come to expect of border security. Residents of Douglas and Nogales, whose testimonies I helped document, were not pulled over explicitly on questions of race and alienage but on criminal grounds. In border communities, agents were not necessarily stopping Latina/o residents and asking for their papers, as they had done in the past. This still happens, but the more common practice is to target residents as suspected smugglers, and not just on the basis of their Mexican ancestry.

Moreover, federal border agents had become more directly involved in local crime control, as opposed to the more familiar scenario of local police and sheriff’s deputies enforcing federal immigration law. In border towns like Nogales and Douglas, agents often prioritized “criminal networks” over “catching” individual migrants. “If all we did was catch people [undocumented migrants],” explained an agent, “we wouldn’t fix the problem. We need to get the smuggling element out of here, to focus on them, make an example of them.”9

Agents know better than anyone that migrant smuggling routes run through the West Desert, not border towns. Agents often explained that undocumented migrants in border towns are transient and don’t stay because “[i]n border towns like Douglas, people [migrants] aren’t coming here to work. There is no labor force. There are no jobs.”10 Yet the Border Patrol directly targeted border communities in their antismuggling operations.

This chapter documents what some scholars have described as “net-widening,” resulting in border residents, who are mostly citizens, being prosecuted for immigration offenses. Most of the residents of the U.S.-Mexico border areas are not, in fact, immigrants.11 Ninety-five percent of the residents of Nogales, Arizona, are of Mexican or Latin American ancestry. The majority are U.S. citizens. Others are legal permanent residents. In Douglas, Arizona, 82% of residents are Latina/o. Over 70% are U.S. citizens.12

In border towns, agents often stopped and searched residents whom they suspected to be involved in smuggling, the majority of whom were of Mexican descent. Most of those who are stopped are citizens and (p.135) legal permanent residents. An agent explained that “50% of people there are pro–law enforcement. The other 50% are criminal elements against law enforcement. There’s nothing else to make a living off of. Take the average-looking house and the people living there will be driving an Escalade. … [P]unishment for human smuggling is less severe than for drugs, unless you injure or kill someone.”13 Another agent noted that “[t]he unemployment rate is around 13%. There’s no big industry. [Smuggling] is how a lot of families make ends meet. The majority are going to be nationals from Mexico, citizens here, and legal permanent residents.”

Studies examining local law enforcement’s growing role in immigration control document how noncitizens in the interior are brought into the criminal justice system through arrests and stops. At the border, this is precisely what criminal enforcement priorities (rooted in the Criminal Alien Program) allow agents to do to U.S. citizens. In prosecutorial approaches to migration, harsh punishment goes hand in hand with protecting victims’ rights. National rhetoric portrays U.S. citizens as “victimized” by unauthorized migration. In border communities, residents get branded as the “perpetrators” and “criminals” not only through stops and arrests. Criminalizing processes go beyond this to actually brand residents as criminal through prosecution, sentencing, imprisonment, and even wrongful deportation.

Border Security and Domestic Policing

Every day, twenty-four hours a day, in the border towns of Nogales and Douglas, Arizona, Border Patrol vehicles patrol each street. Indeed, it is uncommon to walk for more than five minutes in either town without encountering a Border Patrol agent. Since Operation Safeguard, a high-profile Border Patrol operation launched in 1995, the number of agents in the Tucson Sector has more than doubled.14 Many agents reside in the neighboring towns like Fort Huachuca or Tucson, but some agents live in the communities they patrol. When I began my fieldwork a decade ago, there were 2,200 agents. Today there are 4,200 for the entire sector, a 90% increase. In Douglas, Arizona, alone there were 550 agents; today that figure has almost doubled. With a population of 17,000, that number translates to approximately one agent for every 17 residents, which is (p.136) lower than the average public school student-to-teacher ratio. Nogales, Arizona, has 20,000 inhabitants and over 700 agents.

Border security and human smuggling are now major sources of employment in places like Nogales and Douglas. Border agents acknowledged that people smuggling, like law enforcement, has become a major source of income in border towns because human smuggling had become more lucrative than drug smuggling. As one agent stated, “[I]t’s big business now. It’s bigger than drug smuggling. If a drug smuggler is caught, we get the drugs. They are confiscated. They won’t get them back. If we apprehend a smuggler, we’re talking about people. We send them back. The smuggler is there waiting for them to try to get them across.”15

These are predominantly low-income border communities hit hard by global economic restructuring. Douglas, Arizona, was a smelting town for the Phelps Dodge Copper Mining Company. The mine has since closed. Nogales was once an agricultural produce distribution hub, when agriculture was still a dominant industry in the region. The maquiladoras (assembly plants) in the Mexican free trade zones of Agua Prieta and Nogales, Sonora, have also declined as manufacturing contracts have moved overseas. The poverty rate in Douglas is 31% higher than the national average.16 In Nogales it’s 23% higher.17 The per capita income is fourteen thousand dollars in Nogales and thirteen thousand dollars in Douglas. On the Mexican side, the figures for poverty rates and income are even starker.

Border security is ubiquitous now, but this was not always the case. In fact, for most of their history, social and cultural life in these border towns has been organized around international commerce and cross-cultural exchange. The official ports of entry, constructed in the 1960s, were designed for this purpose—to facilitate economic and cultural exchange rather than for security.18 Historian Geraldo Cadava notes that in the postwar years, political support for cross-border economic development overshadowed concerns about marijuana busts, prostitution, and black markets. Even today, the local economies of Nogales and Douglas still depend on sales tax from Mexican shoppers. Many Korean-owned discount shops line the business districts of Nogales and Douglas, selling all sorts of colorful plastic products manufactured in China for a mostly Mexican clientele. And the economies of Nogales and Agua Prieta, Sonora, (p.137) depend on U.S. visitors who cross the border to buy sex, alcohol, affordable medicines, and other cheap goods and services.19

These cross-border ties are still vital to the region’s identity. Residents recall the days before the wall went up and more Border Patrol agents came in, when they crossed the border informally through a hole in the fence. “When I was twelve or thirteen, I crossed with my cousins,” recounts one resident. “It was like a game, you know, since we were from Nogales. They’d keep us for about four hours, and then let us go. They didn’t take our fingerprints. They didn’t photograph us. They just made us sign a paper [voluntary return] and let us go.”20 Residents liken their interactions with Border Patrol agents to a “game” played on a national stage, but with different meaning for locals with an understanding of the historic cross-border linkages in the borderlands.

Another native of Nogales, Sonora, explains how after the buildup those interactions no longer felt like a “game” but instead felt like “criminal persecution.”

Back then we’d cross for an infinite number of reasons. We’d cross through the hole in the fence to play basketball. We’d cross to make payments on something my mother had purchased on layaway. We’d cross to buy bread and milk. You’d look around and if the Border Patrol wasn’t around, pum, you’d jump the fence and run to the store. Back then when the Border Patrol caught you they’d take you right back to the border crossing and return you to Mexico. And it was like a game, not the criminal persecution that exists today. Not a state of war.21

The border security buildup began gradually and then accelerated. Border Patrol operations in El Paso (1993) and San Diego (1994) shifted human smuggling routes to Southern Arizona.22 In 1995, the Border Patrol launched Operation Safeguard to intercept the traffic on the Arizona-Sonora border. Safeguard provided the staffing and resources to multiply the number of agents, to construct border fencing in Nogales, Douglas, and the neighboring town of Naco, Arizona, and to strengthen “criminal alien removal” efforts.23

By 1998, Arizona had become the busiest crossing point along the entire border. In Douglas alone, Border Patrol agents were apprehending an average of three thousand people a day. Residents describe the endless (p.138) sound of helicopters flying overhead, of Border Patrol agents chasing migrants through their homes, or of migrants running over their lawns and hiding on their property. As one local put it, “It was like a war zone here. Forty to sixty people running through at one time and the helicopters flying all night and shining the lights through here and they’d [Border Patrol] be chasing them like rabbits.”24 The former mayor of Douglas recounted that

[t]he indocumentados would come through town until they put all this Border Patrol down here. … [Y]ou could see them walking through the town with their backpacks in groups of ten to fifty. They were all over town. They would walk up the alleys, walk up the streets. … [I]t was quite an impact. … When the Border Patrol came in here in force and they knew they had to stop it … the immediate strategy was to keep them out of town and push them into the desert on the east and west, and they did that and they did it effectively.25

Under the old strategy, a typical workday for Border Patrol agents involved “trying to catch as many illegals as they could during a shift.” Now, border agents explained to me, they focus on preventing entry by “targeting an area” or “bringing an area under control.”26 To do this, the Border Patrol implemented a three-tiered policing strategy. Forward deployment is the first tier; it stations Border Patrol vehicles along the border facing Mexico. Second-tier enforcement involves agents patrolling the streets of border towns and outlying dirt roads and providing backup to the agents in tier one. Tier three includes managing checkpoints on the major highways.

This strategy pushed migrant flows out further, away from Arizona border towns to remote areas of the desert. With fewer migrants crossing through border towns, agents admitted that forward-facing deployment along the border wall could get “boring,” especially during daytime shifts. Border Patrol agents did what anyone being asked to stare at a wall for extended periods of time would do—they occasionally fell asleep. A local street vendor describes watching agents sleeping as marijuana packs fly over the border wall. “I have cart that I push along the line [border]. Every day I see something new. Someone whistles and next thing you know a pack this big [arms outstretched] of marijuana (p.139) gets thrown over the fence. It happens all the time. One time one hit us on the head, right m’ija?” She nods to her teenage daughter and they smile at each other. “I even want to start carrying a basket to catch some of it. Then I’ll really be rich,” she laughs. “The Border Patrol doesn’t do anything. Nothing. They’re just asleep in their trucks a lot of the time.”

Her neighbor nods and adds, “Yes, they just fall asleep and in the summer, when they’re in that nice air conditioning, there’s nothing that’s gonna get them out to chase after nobody.”27

Despite the drastic reduction of migrant traffic through border towns, Border Patrol agents remained there. And as the number of migrant apprehensions declined in those towns, border agents came to play a greater role in local crime control, mostly antismuggling operations. By 2005, a decade after launching Operation Safeguard, the Border Patrol officially revised its national border security strategy to include, along with deterring illegal immigration, fighting terrorism and smuggling and “reducing crime in border communities.”28 According to one agent, “Rural areas don’t have twenty-four-hour police and sheriffs on duty.” He continued to explain that

[a]fter midnight, officers and deputies are on call. When they get calls, they call us for burglaries, domestic violence, or disturbances. We work with the local sheriff and police. We have general arrest authority but don’t enforce local laws. We are expected to intervene. If I see a guy beating his girlfriend, I’ll stop and intervene. If I’m getting coffee somewhere and I see someone shoplifting, I intervene. If there’s a traffic accident, we’ll be the first on the scene.29

This aim differs from enforcement practices in the U.S. interior, where local police have come to play a greater role in immigration law enforcement. In border communities, it’s the opposite—immigration agents are directly involved in local crime control.

Generating Consent

Residents have pushed back against this onslaught of hyperpolicing, but most vigorously against the construction of the border wall, in part because it disrupts generations of cross-border cultural, political, and (p.140) economic ties. Proposals to build a border wall in Nogales, Douglas, and Naco near Bisbee surfaced in 1993. Business and political leaders vehemently opposed it, fearing that the wall would negatively impact cross-border consumption, on which local economies so heavily depend. The City Council of Douglas voted it down unanimously. Nogales, Arizona, while split over the issue, voted against it in a referendum. Public officials in Naco, Arizona, also opposed it. The proposals eventually won support when presented as a form of crime control. By 1994, the Army Corps of Engineers began to install segments of a corrugated metal wall in Naco, Arizona, made of excess landing strips left over from the first war on Iraq. Shortly after its construction, smugglers used welding torches to burn a hole through it. Sections of the wall were eventually destroyed in a flood, but it was promptly replaced as a security measure. In Nogales, the County Board of Supervisors rejected the negative results of the referendum, and a border wall was built there a year later. In Douglas, officials eventually settled on a wrought iron fence, not as an anti-immigration initiative, but as a form of crime control. The fence looks less like rusted corrugated metal strips of excess military landing mats and more like prison bars. According to one official,

They tore the old fence down, which had gaping holes in it. They were going to put landing mats as they did in Nogales and Naco. … They were going to ugly up the border. We dealt with head of the Border Patrol and convinced them to put up the aesthetically pleasing fence we have down there now, five miles east of town, three miles west.30

The Border Patrol’s public relations office shifted public perceptions of the wall by adjusting its messaging to fit local conditions. It carefully avoided framing the project as anti-immigration, as anti-Mexico, or as a barrier to cross-border exchange in a region whose economic existence depends on it. The Border Patrol spearheaded a youth explorers program, organized donation drives, invited the participation of residents in antismuggling operations, and recruited community leaders for its citizens advisory council.31

Its local public relations campaigns moved away from the racial language so prevalent in national public discourses and drew on the apparently (p.141) “race-neutral” language of “safety,” “security,” and “crime control.”32 At that time the Mexican economy was in a state of crisis and border communities felt its impact intensely because, as a native of Nogales, Sonora, explains, “One lives on what Mexicans buy.” During the Mexican economic crisis of the mid-1990s, the value of the Mexican peso plummeted, while the value of the dollar shot up. She adds that “[p]eople stopped buying and many people lost their jobs. Businesses closed that had been around for fifty or sixty years. Prices shot way up, unemployment rose, and crime went up. I don’t believe it’s a crime to steal when you’re hungry. And this is what happened. People began to steal. There was more crime.”33

Residents expressed feelings about the economic insecurity they experienced as social anxiety about migration.34 On the Mexican side, the maquila boom in the seventies and eighties stimulated massive internal Mexican migration to the border region. Agua Prieta’s population grew to around 150,000.35 The population of Nogales, Sonora, is approximately 200,000.36 Many residents from Nogales and Agua Prieta blamed migrants for the crime. On the U.S. side, border towns experienced white flight after the mines closed. Seasonal Mexican migrants settled permanently as citizens, or as legal permanent residents who were able to adjust their immigration status when legal channels to do so still existed. Border Patrol operations in other places also pushed new waves of migrants from “the South” to cross clandestinely through Arizona border communities. U.S. border residents came to associate crime, mostly property theft, with waves of newcomers.

The Border Patrol played on people’s fears and insecurities by framing border security as local crime control, which diffused local opposition to their operations. By the time I interviewed residents, almost a decade after the border buildup, the Border Patrol had won support for border security as a form of crime control, with no public discussion of how locals—mostly Latina/o citizens and legal permanent residents—would also become its targets.

Federal immigration agents’ involvement in local crime control complicated relations between Border Patrol agents and local residents, who for generations had crossed the border daily—with a border crossing card or through holes in the fence—to shop or visit relatives and return to Mexico by day’s end. On the Mexican side, border security disrupted (p.142) traditional cross-border flows and provoked violent clashes between agents and border residents in Mexico. “I actually had a passport,” recalled one native of Nogales, Sonora:

but my sister didn’t so I’d put the document in my shoe and cross with her. It was becoming harder to cross. We had to cross through the arroyo, through tunnels.37 It was completely dark under there. We’d go through a ton of puddles and we were afraid.

Another time I crossed [through a tunnel] with my brother. We set off a motion sensor and they [Border Patrol] sent someone to pick us up. My brother was really afraid and pleaded, “Man, man, just basketball. Friends alla [in Nogales, Arizona].”

The agent had a cara de pocos amigos [an unfriendly face] and told him, “Shut up. And don’t call me man.”

I got mad and said to my brother, “He doesn’t want to be called a man, so call him a woman then.” The agent got pretty angry and was about to hit me. “Go ahead,” I said. “Hit me, and I’ll sue you. I have your name and your plate number.” He left us alone after that. He detained us for five hours. They interrogated me and accused me of carrying drugs. I talked to the supervisor and said, “Look, in all the time I’ve been stopped, I was never treated so badly,” and he said, “OK, I’ll talk to him.”38

The border wall made it much harder for locals to go back and forth and also increased injuries—mostly sprains and bone fractures from the failed attempts of local youth to scale the wall in order to shop or visit friends and relatives. According to locals, people began to respond with violence, and it was common to see new Border Patrol vehicles with smashed-in windows or scrapes and gashes across passenger doors. The Border Patrol also reported a rise in “rocking” incidents in which local youth fling rocks and debris at Border Patrol agents stationed along the wall. In rock-throwing incidents, border agents have retaliated by shooting and killing local residents. During an alleged rock-throwing incident in 2012, a Border Patrol agent shot a sixteen-year-old Nogales, Sonora, resident in the back eleven times. Mexican officials reported that the teenager carried only a cell phone.39

On the U.S. side, locals also grappled with the heightened security. A Douglas resident living with her elderly mother recalls how every night (p.143) they’d get groups of twenty to thirty migrants running through their yard at once. “We’ve never had any problems with them [‘illegals’],” she says, “but my mother worries that they might do something. … You just never know.” She recounts an incident when a Border Patrol agent arrested someone in her yard.

He’d been lost [in the desert] for four days and was very weak. My mother offered him some water, but the agent wouldn’t let her give it to him. It’s our property, you know? We never used to have these problems until they put up the fence and the lights. It seems like the Border Patrol brought the problem to the area. The more they try to do, the worse it gets.40

Mounting resentment and fear mixed with support for crime control. Local residents took pride in living in border towns with some of lowest crime rates in the country. They reported feeling safer and often credited the Border Patrol with bringing security and safety to the area and stamping out crime. “Love them. They come right away,” says a fifty-something-year-old Douglas resident.

Someone tried to break in once and I called Border Patrol. … [T]hey came within minutes. … Three or four years ago we used to get a lot of migrant traffic. Not so much anymore. I feel sorry for people crossing. … [T]he coyotes are to blame. The problems began when they started making money. … Ten years ago we didn’t have to lock our doors. Now you can’t do that—too many foreigners from down south. Agua Prieta has also changed. It’s not safe anymore.41

Another thirty-nine-year-old Douglas resident agreed that “[t]he presence and the lights and walls help I guess.” She manages a dollar store in town and works sixteen-hour shifts daily. She’s never personally had any problems with crime, but hears stories about assaults and car theft. “I’ve never had any problems with the Border Patrol because like I said, I’m always working.” I ask her if she knows how to contact the Border Patrol if she ever needs to file a complaint.

“Yes,” she replies. “It’s 911.”

“911?” I ask.

, 9-1-1.”

(p.144) “You mean you call the police?”

“No, the Border Patrol, 911 connects you with the Border Patrol,” she says matter-of-factly.42

Suspected Smugglers

The homes along International Boulevard in Nogales, Arizona, face the corrugated metal border wall. Nogales is set on hills, and many of the wooden frame houses are up high. You have to climb a flight of rusty metal stairs to get to them. “Beware of dog” signs hang from almost every gate. The sun is bright and the pedestrian traffic, mostly shoppers from Mexico, gives it a lively feel. The first home, an old adobe structure covered in overgrown vines, is completely abandoned. The alley next to it leads to a courtyard and other homes—small shacks with metal doors. A Border Patrol agent on a bicycle follows me as I walk along. He calls out to me in Spanish, but I ignore him. He calls out in English. “Where are you going?” he asks.

“Doing a survey,” I respond.

His tone changes from one of suspicion to one of concern. “That’s one of the biggest dope houses in Nogales, so I wondered why you were going in there,” motioning that I should keep moving.43

I was questioned a lot when walking along the streets of Nogales and Douglas, Arizona, and when driving back from Agua Prieta with my then six-month-old in tow. When I met with the Mexican consul, he recounted the number of cases of Mexican American women charged with smuggling children through the ports of entry.44 Like the border residents, I fit the profile of a human smuggler.

Border communities boast of some of the lowest crime rates in the country. Among immigration crimes, smuggling constitutes only a very small percentage, yet considerable energy went to antismuggling operations under the mandate of targeting criminal aliens. In pursuing smugglers, agents inadvertently targeted border residents, many of whom were U.S. citizens and legal permanent residents with a long history of settlement in the borderlands.

Border agents interrogated, arrested, and confiscated the property of border residents with alarming regularity. The interrogations and arrests were not based on whether targets were perceived as non-citizens but (p.145) on whether or not they were criminals. In other words, agents arrested, prosecuted, incarcerated, and even deported residents for immigration crimes, specifically on suspicion of smuggling. “They hang out at the restaurants and grocery stores to see what people are buying,” explains one forty-two-year-old native Douglas resident. His partner finishes his sentence. “If they catch you buying a lot of food,” she said, “they think you are a smuggler.”45

“It’s gotten to a point where you can’t even help someone because then they think you are a smuggler,” explained a schoolteacher from Douglas. She is hesitant to talk to me at first. We chat about gourds, which she grows in her garden, that make good bird feeders. We chat about housecleaning and she apologizes for the mess even though her house is tidy.

The woman next door had pigs so she built a pen out in back. Well, the smugglers would hide people out there and she got punished for it. We had to get dogs for the back because we don’t want anyone back there. They’ll take you to jail. Take your house, your car, and your papers. The other day, a woman came to my door and asked if I could give her some water. She had a baby bottle so I filled it and she drank it and she asked me for more. She asked me to fill it like four times. I felt bad for her and asked her where the baby was. She said she left the baby hiding with someone else. I filled up a gallon for her and a Border Patrol passed by and picked her up. He started yelling at me that I couldn’t do that and I said to him, “If someone comes to my house and asks me for water I will give it. I don’t work for the Border Patrol. That’s your job.”46

In one home, a forty-four-year-old woman invites me in but hesitates to speak. She doesn’t make eye contact and looks down. I share some of my visits from the migrant shelters and some of the other stories I’ve heard, and this puts her at ease. She recounts an incident in which she loaned her car to a relative to go to Agua Prieta. “When he was coming back over, they [Border Patrol] stopped him. They saw it wasn’t his car and found my papers [documents] in the glove compartment.” The agents impounded her car, confiscated the documents, and sent an agent to her home to apprehend and deport her.

(p.146) I told them I was legal, but they told me I had to leave. They wouldn’t give me back my papers or my car. They said I had to take a voluntary departure and leave. I was going to until a friend told me to talk to a lawyer. I got my car and my papers back but I still had to pay the lawyer four hundred dollars.47

Walking through the neighborhoods along the border wall in Douglas, I notice a woman in a Border Patrol uniform walk into a house across the street. Border Patrol agents live alongside suspected smugglers and sometimes are even members of the same family. Everyone seems to be watching everyone else.

I visit the home of a resident who reports that the Border Patrol accused his neighbor of smuggling, confiscated his car, and threatened him with deportation.

He was driving his pick-up and some migrants asked him for a ride. He was talking to them, telling them that he couldn’t and an agent passed by and stopped them all. The agents made the migrants climb onto his truck and accused him of being a coyote. My friend told the agent that he wasn’t doing anything wrong, but the agent threatened him. The agent told him, “You can go to court and tell a judge, but they will only take away your papers.” The agent took his car and the migrants and left him stranded there.48

In more extreme cases, some female residents confided to having been cavity searched for drugs. Others spoke of beatings or shootings by Border Patrol agents.49 A Douglas resident told me that her relative had been shot by an agent and “the family two houses down, their son was killed.” She later confessed that her husband had warned her against saying too much.

That was four or five years ago. She’s eighteen now. You know how kids are. She and her brothers set their tents back there and were playing camp. At about three o’clock in the morning she heard dogs and got scared. She was running back home with her backpack and a Border Patrol shot her in the knee from behind. She doesn’t remember anything but the heat on her leg. She passed out. The Border Patrol said she was carrying drugs (p.147) in her backpack, but all she had were clothes. Her family complained, but they didn’t get anything—nothing. ACCESS [state insurance plan for children] paid for her medical treatment. She’s had four surgeries. She’s married now and doesn’t qualify for the insurance and she still needs another surgery to replace her knee. The other kid was twenty-one when he was shot. They accused him of stealing. They [Border Patrol] shot him five times. They [the victim’s family] didn’t get anything either.50

It’s deathly hot, the border only one block away. I see a Border Patrol truck parked along the wrought iron border fence in Douglas. I keep walking and notice a Latino Border Patrol agent in uniform walk into a house on one of the side streets. I arrive at the home of a thirty-five-year-old Mexican woman, who lets me interview her while she bathes her six-month-old baby in the kitchen sink. Two other children are playing, and a young teenage girl comes in and walks through the house. She’s on probation and isn’t allowed to leave Douglas.51

In border towns, agents often prosecute residents for immigration crimes like smuggling. Like most law enforcement agents, they prioritize cases most likely to be prosecuted. And at the border, human smuggling now has a much higher prosecution rate than drug possession. Because of harsh federal and state antismuggling laws, prosecutors are more likely to convict human smugglers.52 One law enforcement official explained that because of the backlogs in the criminal justice system, federal prosecutors often dismiss many cases of border residents charged with low-level drug offenses.53 Since human smuggling has a much higher prosecution rate, border agents (and law enforcement) prioritize human smugglers, the majority of whom are U.S. citizens of various backgrounds.

In fact, many smuggling cases are now prosecuted at the state level, particular since Arizona’s enactment of a harsh state-level antismuggling law in 2005. Since then, state and county-level prosecutions for alien smuggling now exceed federally prosecuted cases. Before the passage of Arizona’s 2005 smuggling law, the federal district court handled a quarter of all smuggling cases nationwide—most of which involved U.S. citizens and some of which involved cases of Border Patrol agents indicted for smuggling. Since 2006, Maricopa County handles the largest number of smuggling cases, most of which apply the smuggling statute (p.148) more loosely to include migrants in conspiracy to self-smuggle. Many of these prosecutions target low-level smugglers and, significantly, those of federal agents indicted on smuggling charges.54

Over the course of my fieldwork, I encountered numerous residents who were formal citizens but had been criminally prosecuted and charged with immigration violations, most having been accused of being low-level employees of human smuggling organizations. The Federal Bureau of Justice Statistics reported that in 2010, 50% of those charged with alien smuggling offenses were U.S. citizens, as the following account from a Douglas resident illustrates.55

In January [2002] a friend of mine came across two migrant women and their children. They looked hungry so he picked them up and took them to get food. A Border Patrol [sic] stopped him. They put him in jail, accusing him of being a coyote. How could he possibly be a coyote if they were sitting in full view? All the seats were there. It’s not like he had taken the seats out and was hiding them in the back the way coyotes do. He was in jail for three months for that.56

Often residents recount how their relatives lost their legal residency status and were deported after serving time for human smuggling.

My brother served time and got deported after five years to Nogales, Sonora. The judge told him he couldn’t come back. But he had never lived in Sonora. He’s lived here his whole life. They deported him en la madrugada [at dawn], and he was terrified. He stayed in a hotel for a week and didn’t come out, because he was afraid. After a while he got a fake Social Security and green card and just went back and forth for eight years until he got pulled over with some friends who didn’t have papers. His friends got out of the car and started running. He told them not to run, but they did and so they took him como traficante de ilegales [as a smuggler]. Now they are going to give him ten years. And my concern is that that is too long. I’m not saying he shouldn’t be punished, but they should just deport him. Why do they have to send him to prison again and for so long?57

That respondent’s brother was a legal permanent resident, but I also learned of the deportation of U.S. citizens. I first heard of such cases during (p.149) a visit to the immigration court within the detention facility in Florence, Arizona. An attorney with the Florence Immigration and Refugee Rights’ Legal Orientation Program mentioned that she had just testified in Congress about the dozens of cases involving citizens in deportation proceedings. Jacqueline Stevens has written about this at greater length, citing over eighty cases in Arizona alone.58 These are mostly people who have been incarcerated for drug offenses and who, for various reasons, are unable to prove their citizenship. They are misclassified as criminal aliens and put in removal proceedings, without the opportunity to come before an immigration judge.

Through the State Criminal Alien Assistance Program, which reimburses state and local law enforcement agencies for costs associated with noncitizen offenders, local jails and prisons typically refer cases to ICE for deportation directly from prison, in what are known as expedited removals.59 Busloads of deported prisoners are dropped off regularly in Nogales, Sonora. “You can tell they’re prisoners, too,” a local resident explains,

because they still have the prison clothes, light blue shirt, dark blue pants. They all carry a little cardboard box with their things. They drop them off en la madrugada. It’s very disorienting to be dropped off at two in the morning. Everything is closed.

They’re not from Nogales [Sonora] or have never lived in Mexico and they’re terrified. The prison gives them each a check for fifty dollars. Where are they going to cash a check at one, two, or three in the morning? The taxis are all there waiting for them; they know they are from the prison. They drive them all the way to God knows where to cash their checks—all because they drop them off at that hour. Why can’t they drop them off at a decent hour? Someone should tell them that it doesn’t make sense to drop them off at that hour.60

Search-and-seizure practices, criminal prosecution and incarceration, and deportation reclassify native-born and legal permanent residents as “criminals,” less deserving of the rights of citizenship. In the legal literature, citizens are guaranteed rights under criminal and immigration law enforcement. Yet criminal history appears to trump legal status. In the United States criminal stigma has lasting effects. These include family (p.150) separation, as well as barriers to employment, voting, public housing, and financial aid for higher education, and, in the case of legal permanent residents—deportation.61 Like the undocumented migrants whom border agents pursue, citizen border residents with criminal convictions experience actual constraints on their physical and social mobility.

Though I’ve likened these effects on convicted citizens to imposition of noncitizen status, the residents I met don’t necessarily see it this way. They are not quick to define their situation as a negation of their citizenship and rights. Nor do they regard their systemic mistreatment as a form of racial profiling. “It’s not discrimination. It’s how we perceive it. Sometimes we use discrimination as an excuse to be victims,” explained a woman from Nogales.62 Many do not see the Border Patrol enforcement actions as motivated by race. “It’s not like when I was a kid or when my father was kid,” explained a thirty-year-old Douglas resident. “They’d say things like ‘Are you wet?’ ‘Are you a wetback?’ ‘Hey Beaner.’ They’re more PC [politically correct]. Now they just ask a bunch of unnecessary questions about where you’ve been and where you’re going.”63

Residents did not necessarily perceive their negative experiences with border security as rights violations or constraints on their citizenship, and yet they often expressed consciousness about rights and their entitlement as citizens or legal permanent residents. Collectively, they made use of legal channels formally available to them by, for example, filing complaints about misconduct; making phone calls to various officials to complain about the noise level of helicopters; joining the Border Patrol’s citizens’ advisory council; initiating lawsuits; or circulating petitions, as some did when a local vigilante handcuffed two migrants to a bench outside a local Wal-Mart.

Residents also resorted to more subtle forms of contestation, such as being noncompliant, talking back, or even using humor. Residents’ accounts of mistreatment almost always included stories about Border Patrol follies. For instance: a Border Patrol agent stops a pizza delivery driver and asks what’s in the box; a Border Patrol agent runs after a group of local kids (U.S. citizens) who amuse themselves by pretending to be undocumented and making the agents chase them; Border Patrol agents use civilians as human shields between themselves and migrants “because they’re scared”; Border Patrol agents fall asleep in vehicles while packs of marijuana get flung over the border wall.

(p.151) Challenging border-policing practices that disproportionately target Latina/o residents is difficult. It is not easy to name and confront shame, mistreatment, and fear produced by activities carried out in the name of safety, security, or crime reduction. Understandably, rather than questioning the roots of criminalization or the criminal classifications that mark them, residents blamed the criminality of smugglers, even as they themselves have become the primary suspects.

“Do you want to know what I think should be done to them [smugglers]?” a seventy-four-year-old Douglas resident asked.

“What?” I replied.

“They should be stripped down until they are completely naked. And they [authorities] should grab a wet whip and give them lashings.” I laughed nervously, glancing at a Bible on her coffee table. She said, “You think I’m kidding, don’t you?”64

Outside a Nogales resident’s home, a middle-aged woman draws my attention to parked vans that shuttle residents between Nogales and Tucson and Phoenix and says she hates them. “They transport them [migrants]. They wanted to park their trucks in my neighbor’s lot across the street and he said no. I don’t want anything to do with it. I don’t want to get involved in that [smuggling]. They bring people then leave them to die. They harm them in the desert. Yes,” she continues, “we are all accomplices, we are all accomplices.” She repeats this several times.65

Punishing Activists

As residents, local activists both challenge border agent misconduct and maintain regular, cooperative communication with the Border Patrol in matters of migrant deaths, vigilante assaults, and detention and deportation. Through an established Legal Orientation Program, DHS allows certain NGOs to offer pro bono legal services and to conduct “know your rights” presentations for detained migrants. Other groups known locally as the “Samaritans” negotiated an agreement with the Border Patrol to provide humanitarian assistance to migrants in distress by placing water stations in the desert or by administering first aid under Arizona’s Good Samaritan laws, which protect from liability anyone who renders care in an emergency situation.66

(p.152) While border agents and NGOs shared a common goal of “reducing migrant fatalities,” the Border Patrol has drawn on prosecutorial rhetoric in order to arrest activists on smuggling charges. In an early case on October 19, 1976, ten Border Patrol agents and one Tucson police officer raided and charged members of the Manzo Area Council with alien smuggling and document fraud.67 Manzo was a Tucson-based War on Poverty Program focused on social services. During the mid-1970s, it shifted its focus more to immigrant legal advocacy, in response to raids and sweeps in the Tucson area. The Border Patrol confiscated eight hundred files containing information about the immigration status of Manzo’s clients. A few weeks later, the Border Patrol arrested and deported 150–200 former Manzo clients. It also charged its executive director, Margo Cowan, along with three volunteers, with transporting aliens and aiding them in eluding inspection, entering false statements, perjury, and conspiracy to smuggle. They faced prison sentences totaling seventy-seven years and ninety-eight thousand dollars in fines. Manzo organized press conferences challenging the classification of its clients as “illegal.” Cowan defended her organization, stating that “most of our clients have never been to a deportation hearing, nor have they had their status defined. They find themselves without documents, but they do not find themselves in an illegal status, technically speaking. This is at the heart of our defense. Furthermore,” she added, “20% of our clients are U.S.-born but can’t prove it. Some of them are forced to live in Sonora, Mexico, until they can prove their U.S. citizenship. We are saying that people are not here illegally until they have been adjudicated in some kind of hearing or court of law.”68 As part of the campaign, former clients of Manzo filed a class action lawsuit against the Border Patrol, on grounds of “illegal search and seizure, illegal questioning of clients, and improper deportation procedures.” Mobilizations against the prosecution of the “Manzo 4” pressured the U.S. Attorney’s Office to eventually drop the charges.69

During the Sanctuary movement, the former INS investigated and charged activists on human smuggling charges. At the time, several churches declared themselves public sanctuaries, operating as an “underground railroad” that brought refugees across the border through Nogales, transported refugees to other parts of the United States, provided social services, and helped with asylum applications. After several (p.153) years of covert government investigations, fourteen members were indicted, eleven were prosecuted, and eight were eventually convicted on conspiracy and smuggling charges in 1986.70

At the time of my fieldwork, the Border Patrol arrested and prosecuted two twenty-four-year-old humanitarian workers, Shanti Sellz and Daniel Strauss, on smuggling charges.71 On July 9, 2005, they had been out in the desert doing relief work when they encountered three seriously ill migrants who had drunk contaminated water from a cattle tank. They were driving them to a medical station in Tucson.72 The defendants faced up to ten years and thousands of dollars in fines because smuggling is a felony. Local activists mobilized under the slogan, “humanitarian aid is never a crime.” After a long, grueling year, prosecutors dropped the charges against them.73 By distancing rescuers from “real” criminals (i.e., smugglers), the slogan inadvertently and implicitly draws on a prosecutorial framework that interprets humanitarian assistance as legitimate work supporting victims’ rights and opposing migrant victimization.

As these cases show, the Border Patrol also targets white, middle-class activists as suspected smugglers. The justification is that crime-centered approaches to immigration enforcement treat everyone equally. One local white resident and activist shared his own experiences of being pulled over several times. He was once pulled over when he was driving with his Mexican wife, and another time for giving some church members from Agua Prieta, Sonora, a ride to Douglas, Arizona. And he was pulled over yet again for picking up some strangers on the side of the road. “I’m from [the South] and these kinda things don’t happen [to people like me] there. When I get stopped I just think that’s the way things are here. They [Border Patrol] know who I am,” he says calmly. He has a friend who is an agent who told him the Border Patrol had a file on him. “I’m always watching my back. I think I’ve been taking the situation here for granted.”74

Prosecuting Patriots

The drive into Douglas is peaceful and scenic, except for the handmade anti-immigrant billboards that line the barbed wire fences along Davis Road. I notice a middle-aged white man with a stout frame dressed (p.154) in military fatigues and carrying a rifle over his shoulder as he walks along the edge of the road. Up the road there are four other men, also dressed in fatigues and also armed.75 On the outskirts of Southern Arizona border towns, some residents engage in vigilante activity along the border, in which individuals and armed militia groups take the law into their own hands by intercepting migrant routes on public and private lands. Here I do not focus on high-profile groups like Ranch Rescue or American Border Patrol, since their leadership is not from Arizona, nor is much of their funding. Anti-immigrant groups like the Federation for American Immigration Reform fund them externally.76 Arizona has its own homegrown vigilantism in which private citizens mimic Border Patrol arrests.

At its core, vigilantism is a form of what the sociologist Emile Durkheim calls “moral outrage” directed at those who offend the “common consciousness.”77 Early expressions of vigilantism targeted “outlaws” and violators of social law. Later forms of vigilantism, which emerged after the U.S. Civil War, targeted groups (i.e., racial minorities, labor radicals, civil liberties advocates) who challenged race and class hierarchies.78 Arizona vigilantism certainly expresses aspects of earlier forms. Vigilantism in Arizona is a reaction to and directly challenges the extension of social citizenship and rights to racial minorities in the post–civil rights era. Following passage of the 1965 Immigration Law and again with passage of the Immigration Reform and Control Act in 1986, many families legalized their immigration status. Many of the seasonal migrants whom ranchers and growers once depended on so heavily are now permanently settled residents. Like much of the country, Arizona is experiencing major changes in its ethno-racial composition. Vigilantism expresses the ambivalence and anxiety of dominant groups in one of the fastest-growing states in the country.

And yet vigilantism in Arizona has adapted to a post–civil rights enforcement terrain. This post-1960s vigilantism entails “cooperation with police” and parallels law enforcement.79 Indeed, what I observed in Southern Arizona is that vigilantism draws on both crime control and “color-blind constitutionalism” for legitimacy.80 Like the Border Patrol, local vigilantes draw on a message of crime control and security. In news interviews they frame their work as “restoring the rule of law.” Chris Simcox, the founder of the Minuteman Project, describes its work as (p.155) “operating within the law to support the enforcement of the law.”81 The common justification is that their vigilante actions are citizen’s arrests, in which the vigilante serves as the patriotic citizen and migrants are the alleged criminals.

But local vigilantes also draw on a (victims’) rights rhetoric. They affirm their right to make citizen’s arrests, their right to bear arms, and their right to defend private property. They are also forced (by law) to recognize, albeit reluctantly, some basic constitutional protections to which migrants are entitled.82 Local vigilantes, particularly the Minuteman Project, made conscious efforts to avoid being labeled as a hate group and recruited African American and Latina/o supporters.83 The Minuteman Project website states that “the Minuteman Project has no affiliation nor will we accept assistance from separatist, racist or supremacist groups.”84 Local vigilantes like Simcox have referred to themselves as the “White Martin Luther Kings” and have compared the Minuteman Project to the civil rights movement.85

Yet even as they draw on a language of rights and crime control to justify their actions, local vigilantes, too, have also on occasion been criminally charged.

When I was out in the field, the local paper covered an incident in which a twenty-four-year-old army reservist, Patrick Haab, held seven undocumented migrants at gunpoint at a rest stop on Interstate 8 and then called the Border Patrol. Impersonating a Border Patrol agent, he ordered the migrants to squat and threatened to shoot them. When the Border Patrol arrived, they apprehended and processed the migrants. They also arrested Haab, a U.S. citizen, for aggravated assault with a deadly weapon, which outraged anti-immigrant groups.

Although the U.S. Attorney’s Office tried to justify Haab’s actions as a citizen’s arrest, the argument did not hold up in court because in Arizona citizens can only make arrests for a felony. Unlawful entry is a petty misdemeanor. Law professor Ingrid Eagly has written about this case in her study of immigration prosecution in Arizona.86 What interests me about the case is how prosecutorial approaches to migration can extend to citizens, in this case for detaining migrants at gunpoint. In this case, Haab was the perpetrator and migrants were the crime victims. In fact, since they had no prior record, the migrants were processed administratively and never criminally charged for illegal entry.

(p.156) That year, Arizona had just passed a law that made smuggling a felony. The county attorney’s office drew on that law to make the case that the migrants were in a conspiracy to “smuggle themselves.”87 The seven migrants were never actually prosecuted, but the threat of prosecution was enough to alter their status from that of crime victims to that of criminals and to make a case that Haab’s holding them at gunpoint was a citizen’s arrest rather than a state crime. On April 28, 2005, criminal charges against Haab were dropped. Because criminal status was displaced onto the men he assaulted, Haab walked away with his status as a noncriminal patriot intact.

In a similar case, local activists drew on prosecutorial rhetoric to criminally charge a local vigilante and rancher, Roger Barnett. In the 1990s, Barnett and his brothers made international news for apprehending migrants and turning them over to the U.S. Border Patrol. Roger Barnett credits himself with apprehending over fourteen thousand undocumented immigrants using techniques borrowed from the U.S. Border Patrol.88 He founded the Arizona Ranchers Alliance in 1999 and the Shadow Border Patrol in 2000 and is a member of a local group, Concerned Citizens of Cochise County, which was founded in 1999.

Between 1999 and 2002, when I began my fieldwork, the Mexican Consulate had documented forty-three cases of armed U.S. citizens forcibly apprehending undocumented migrants in Cochise County, many of which involved Roger Barnett and his brother.

  • April 4, 1999: Roger Barnett and others, all of them armed, apprehended twenty-seven people near Interstate 80.

  • October 10, 1999: Roger and Donald Barnett, accompanied by Larry Vance from Ranch Rescue and a television crew, apprehended twenty-one immigrants. Barnett threatened the group with his rifle.

  • November 20, 1999: Roger Barnett and his wife apprehended twenty-seven persons at gunpoint.

  • February 13, 2000: Roger Barnett apprehended eighteen undocumented immigrants at gunpoint near Interstate 80, and photographed them before turning them over to the Border Patrol.

  • February 25, 2000: the Barnett brothers apprehended twenty-three Mexican nationals at gunpoint. This time they threatened them with dogs.

  • April 9, 2000: Roger Barnett intercepted two vehicles transporting (p.157) sixteen migrants on Interstate 80. Barnett ordered the vehicles to pull over, demanded the keys to the vehicles, insulted the group, and then photographed them before calling the Border Patrol.

  • August 16, 2000: Roger Barnett apprehended undocumented migrants on Interstate 80. The apprehension occurred before an ABC television crew. Barnett ordered the group, in Spanish, to sit on the ground while the reporters interviewed him, after which he called the Border Patrol.89

On October 30, 2004, Barnett and his brother Donald stopped four members of a Mexican American family from Douglas, including two children ages nine and eleven, and their eleven-year-old friend. The family was on public land leased to Barnett for cattle grazing. Barnett yelled racial obscenities, pointed an AR-15 assault rifle at one of the children, and threatened to kill them all.90 The Cochise County prosecutor declined to file charges against Barnett, arguing that “no jury in Cochise County will ever convict Roger Barnett.”91 The family filed a civil law-suit and won $98,750 in damages for false imprisonment and emotional distress. Despite attempts to prosecute Barnett, he walked away without a criminal conviction and with his status as noncriminal citizen intact.

In an earlier high-profile case, local civil rights activists pressed for criminal charges against two local vigilantes.92 On August 18, 1976, Patrick and Thomas Hanigan, sons of a local rancher just outside Douglas, Arizona, forced three Mexican migrants into their truck, drove them out to a field, hung them from a tree, burned their feet, then told them to run back to Mexico while they fired shots at them. The county prosecutor declined to file charges on grounds that the migrants trespassed on the Hanigans’ private property. It took political pressure from immigrant-rights and civil rights groups to bring the Hanigans to trial. In 1976, an all-white jury acquitted Thomas and Patrick on all counts of assault, kidnapping, and robbery. In 1980, after intense political pressure from civil rights groups, federal prosecutors reopened the case, on appeal, and failed to convict the Hanigan brothers. During the third and final trial in 1981, federal prosecutors acquitted Thomas Hanigan but convicted Patrick Hanigan on all three counts. Thomas Hanigan was convicted of smuggling 574 pounds of marijuana a few weeks later.93

These high-profile cases illustrate a particular interplay of rights discourses and crime control. They also convey the ways in which local (p.158) vigilantes have distanced themselves from overt racial discourses. In these cases, local vigilantes affirm their “rights” as citizen victims to engage in violent attacks and kidnapping, by conferring criminal status on those they assault—as trespassers on private property or as smugglers.94 Migrant and civil rights advocates, in turn, also get pulled into crime-control frameworks by mobilizing to prosecute vigilantes in order to protect rights.

The Overreach of Enforcement Priorities

The criminal alien mandate, which prioritizes criminal arrest and prosecution for immigration offenses alongside criminal deportation, has transformed border policing. Federal immigration agents not only arrest and expel criminal aliens; they are also involved in local crime control. Though the escalation aroused tensions between agents and border residents, the Border Patrol diffused this with the promise of “public safety.” According to an agent, “When the Border Patrol experienced a growth spurt,” referring to the massive escalation of policing under Safeguard,

there was some resentment. There were only forty agents in 1995; that’s an average of four to five people a shift. Now there are over four hundred. But now, if we were to pull back, resentment would be strong. The chief of police would have to deploy [more officers] and expand the police force. They wouldn’t want us to leave. Some do. But we have no plans to downsize.95

This blend of immigration control and domestic policing extends its reach beyond undocumented migrants and targets the very citizens it is supposed to protect. Agents stopped, searched, interrogated, and arrested border residents on suspicion of smuggling with alarming regularity, often for giving water to distressed migrants or having someone who might be undocumented in their vehicles. Border residents often do not have the economic and political capital to challenge the charges brought against them. For those citizens who cannot or do not fight their case, a criminal mark justifies violence, constraints on mobility, constraints on the right to vote, access to public housing and other social safety net services, and an overall stigmatized social status.

(p.159) Citizen activists charged with human smuggling were able to deflect criminal status by highlighting the victimization of the migrants they aided and the humanitarian nature of their advocacy work. They also drew on financial resources and social capital to challenge their cases and were never officially branded as criminal. Vigilantes used their connections to law enforcement, prosecutors, and anti-immigrant advocates to contest criminal charges, partly by deflecting criminality onto those they assaulted and portraying themselves as citizen victims. These subtle actions normalize a prosecutorial rhetoric that reinforces the personhood of “crime victims” and the second-class citizenship of those stigmatized as criminal.

Prosecutorial approaches that uphold rights and aggressively punish differ from the traditional ways that agents enforced immigration law. Historically, the Border Patrol overtly targeted persons of Mexican ancestry through violent means, without regard for rights or the Constitution. Because crime control engulfs everyone—even White citizens who are not the typical suspects—the racial underpinnings of immigration law enforcement are less visible. This captures the way a 150-year history of racial and exclusionary violence on the U.S.-Mexico border can be retold and normalized as part of the inevitable cost of security and crime control.

Enacted on the ground, on a daily basis, such enforcement actions extend the collateral consequences of a conviction to an immigration and border context. The lasting stigma of a conviction, in this case an immigration conviction, justifies a negation of personhood and rights for those with a criminal record, regardless of citizenship. The diffusion of DHS enforcement priorities, rooted in the Criminal Alien Program, institutionalizes a linkage between citizenship and criminal history, whereby the citizen becomes the antithesis to the criminal.


(2) Fieldnotes, Douglas, AZ, October 3, 2002.

(3) For a history of policing and expulsion of Mexicans from the United States, see Hernandez, Migra!; García, Operation Wetback; Balderrama and Rodríguez, Decade of Betrayal.

(4) See American Civil Liberties Union (ACLU) Statement on “Human Rights Violations on the United States–Mexico Border,” submitted to Office of the United Nations High Commissioner for Human Rights, 67th Session of the United Nations General Assembly, October 25, 2012; Amnesty International, In Hostile Terrain; No More Deaths Coalition, A Culture of Cruelty.

(6) Among its most controversial provisions are those that make failing to carry registration papers, performing unauthorized labor, and transporting unauthorized persons a state crime.

(7) “Statement by Governor Jan Brewer,” State of Arizona, Office of the Governor, April 23, 2010.

(8) Fieldnotes, July 2010. See also “Declaration of Tony Estrada, Santa Cruz County Sherriff,” U.S. District Court for the District of Arizona, U.S. v. the State of Arizona, June 28, 2010; Associated Press, “Arizona Immigration Law SB 1070: State Spends $640,000 on Police Training.”

(9) Author interview, circa January 14, 2004.

(10) Author interview, January 5, 2004.

(11) For accounts of policing on the Tohono O’odham reservation see Todd Miller, Border Patrol Nation.

(12) U.S. Census Bureau, U.S. Census 2010.

(13) Author interview, July 16, 2010.

(14) See Meissner et al., Immigration Enforcement.

(15) Author interview, January 5, 2004.

(16) U.S. Census Bureau, U.S. Census 2010.

(17) Ibid.

(19) Ibid., p. 381.

(20) Author interview, Tucson, AZ, November 15, 2002.

(21) Author interview, Tucson, AZ, January 20, 2003.

(23) Immigration and Naturalization Service, “Programs and Activities (INS) Operation Safeguard,” USCIS Library, Washington, DC, 1995.

(24) Author interview, Douglas, AZ, November 11, 2002.

(25) Author interview, mayor of Douglas, AZ, January 13, 2003.

(26) Author interview, U.S. Border Patrol, January 4, 2004.

(p.198) (27) Fieldnotes, Nogales, AZ, December 14, 2002.

(28) U.S. Customs and Border Protection, National Border Patrol Strategy (Washington, DC: Office of the Border Patrol and the Office of Policy and Planning, 2004).

(29) Author interview, January 15, 2004.

(30) Author interview, Douglas, AZ, November 6, 2002.

(31) The Border Patrol continues to foster community support through outreach programs. In 2012, the Border Patrol established a Citizen’s Academy in which participants learn about “the history of the Border Patrol; criminal and immigration law; tracking skills; firearms, as well as horse patrol and interdiction scenarios.” See Maldonado, “Local Citizens Graduate.”

(32) For analysis of national coverage see Chavez, Covering Immigration.

(33) Author interview, Tucson, AZ, November 15, 2002.

(34) On crime and insecurity in Nogales, Sonora, Mexico, see Rosas, Barrio Libre.

(35) Southeast Arizona Economic Development Group Report, on file with the author.

(36) Nogales Chamber of Commerce Report, on file with the author.

(37) Two main drainage systems link Nogales, Sonora, and Nogales, Arizona, which also serve as throughways for clandestine crossing. During my fieldwork, the papers regularly reported on the discovery of new tunnels. See Stellar, “Nogales Tunnel Opens into Grave”; Swedlund, “Tunnels Found in Nogales Tied to Smuggling”; Gutierrez, “Illegal Traffic in Tunnels.”

(38) Author interview, Tucson, AZ, January 20, 2003.

(39) The Southern Border Communities Coalition reports that since 2010, there have been six fatal Border Patrol shootings in Southern Arizona alone, some involving rock-throwing incidents, and three nonfatal shootings. See also Santos, “Shootings by Agents”; Trevizo, “Mexican Government Objects.”

(40) Fieldnotes, Douglas, AZ, September 28, 2002.

(41) Fieldnotes, Douglas, AZ, October 19, 2003.

(42) Fieldnotes, Douglas, AZ, October 17, 2003.

(43) Fieldnotes, Nogales, AZ, January 4, 2003.

(44) Author interview, Douglas, AZ, January 13, 2003.

(45) Fieldnotes, Douglas, AZ, October 3, 2002.

(46) Fieldnotes, Douglas, AZ, November 9, 2002.

(47) Fieldnotes, Douglas, AZ, October 17, 2002.

(48) Fieldnotes, Nogales, AZ, November 7, 2002.

(49) A shooting of a nineteen-year-old native of Douglas, Arizona, in 2011 suggests that such incidents are recurring. See “Border Patrol Agents Shoot Douglas 19-year-old.”

(50) Author interview, Douglas, AZ, November 11, 2002.

(51) Fieldnotes, Douglas, AZ, September 28, 2002.

(53) Author interview, January 14, 2003.

(p.199) (54) Telephone interview with federal public defender, District of Arizona, March 29, 2013; see also Lucas, “144 Border Agents”; United States Government Accountability Office, “Border Security.”

(55) See Table 6: Demographic characteristics of federal defendants charged in US District Court with Criminal Immigration, in Motivans, “Immigration Offenders.”

(56) Fieldnotes, Nogales, AZ, November 7, 2002.

(57) Author interview, Nogales, AZ, December 14, 2002.

(59) The EIOR website explicitly states that “[i]n coordination with DHS and correctional authorities in all 50 states, Puerto Rico, the Commonwealth of the Northern Mariana Islands, the District of Columbia, selected municipalities, and Federal Bureau of Prisons facilities, immigration judges conduct on-site hearings to adjudicate the immigration status of alien inmates while they are serving sentences for criminal convictions.” See Office of the Chief Immigration Judge, http://www.justice.gov/eoir/ocijinfo.htm, accessed May 9, 2013.

(60) Author interview, Nogales, AZ, December 14, 2002.

(62) Fieldnotes, Douglas, AZ, November 5, 2002.

(63) Fieldnotes, Douglas, AZ, October 17, 2003.

(64) Fieldnotes, Douglas, AZ, September 28, 2002.

(65) Fieldnotes, Nogales, AZ, February 1, 2003.

(66) See Arizona State Legislature, 32–1471: “Health care provider and any other person; emergency aid; nonliability. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/32/01471.htm&Title=32&DocType=ARS, accessed January 4, 2016.

(67) Although this case occurred well before I conducted my own fieldwork, I include it because it highlights shifting practices of border security in the post–civil rights era.

(71) Huicochea and Barrios, “2 Samaritans Charged in Transporting Entrants.” On September 1, the charges were officially dropped after a court ruling that the defendants had not violated the law and that further prosecution would violate their due process rights.

(74) Fieldnotes, Douglas, AZ, October 3, 2002.

(75) Fieldnotes, Douglas, AZ, November 9, 2002.

(81) Minutemen Project website.

(83) Despite the racial rhetoric, investigations of the Minutemen Project have found no direct links to hate groups. See Doty, Law into Their Own Hands, p. 59; Hammer-Tomizuka and Allen, “Hate or Heroism,” p. 9.

(84) Minutemen Project website.

(89) Author interview, Douglas, AZ, January 13, 2003. Document on file with author.

(90) Border Action Network, Press Release, Tucson, AZ, November 22, 2006, on file with author.

(92) What interests me about this disturbing case is the way it captures the blending of elements of overtly racially motivated vigilantism with a post–civil rights variety of vigilantism that draws on rights frameworks and crime control.

(93) U.S. v. Patrick Hanigan, U.S. Court of Appeals, Ninth Circuit, No. 81–1262, 681 F.2d 1127, 10 Fed. R. Evid. Serv. 1553, July 19, 1982. See also Cadava, “From Hanigan to SB 1070.”

(94) Cacho refers to this as “an ideology of white injury.” See Cacho, Social Death.

(95) Author interview, January 15, 2004.