In a post last week, I detailed my recent trip to the border, and in particular the Rio Grande Valley (RGV) and Del Rio, Texas. That trip, and a recent article that has gained a level of attention in conservative media, underscore the danger that reporters run into when they try to write about immigration issues without understanding the immigration process itself.
As Hurricane Harvey nears the Texas coast, thousands of people are evacuating along the state's major highways to escape 125 mile per hour winds and "catastrophic flooding" that the US government predicts will accompany the storm.
In an unusual move, Border Patrol checkpoints, which check individuals' documents to make sure they are legal residents of the US, will stay open as the storm approaches, the Customs and Border Protection agency said Friday in an emailed statement:
U.S. Border Patrol checkpoints in the path of Hurricane Harvey in Texas will close as state highways close. These closures will occur in a manner that ensures the safety of the traveling public and our agents. Border Patrol checkpoints that are outside of the path of the hurricane will remain operational. CBP will remain vigilant against any effort by criminals to exploit disruptions caused by the storm.
U.S. Customs and Border Protection's (CBP) highest priorities are to promote life-saving and life-sustaining activities, the safe evacuation of people who are leaving the impacted area, the maintenance of public order, the prevention of the loss of property to the extent possible, and the speedy recovery of the region. Anyone in the path of this storm should follow instructions from their local officials and heed any warnings as this dangerous storm approaches.
It would gild the lily to deconstruct this article any further than John Daniel Davidson did in the Federalist. It is sufficient to quote the following passage: "Set aside the tendentious claim that 'the Trump administration' is responsible for the specific policy decisions of every federal agency, the article produces zero examples of anyone's papers being checked by Border Patrol during the evacuation."
With respect to the first point, I will counter that because of the unfortunate politicization of immigration enforcement under the last administration, from now to the immediate future the implementation of the Immigration and Nationality Act (INA), vel non, will be deemed to reflect the attitudes of the administration rather than the basic obligations of executive branch officers in a federal republic sworn to uphold the Constitution. Whether we have a "government of laws, not of men" will, with respect to 8 United States Code, be dependent on which section of the INA you are referring to.
The second point is more interesting, because it explains why I went to the border.
I got into immigration law by accident, but have now practiced it, in various ways and at many levels, for more than a quarter century. Every day, however, I learn something new about the law that I did not know before.
The only reason that I bring this up is that in the public discourse over immigration, most people (including some experts) don't know (or care about) what they don't know, and fall back more on sanctimony and sentiment than on fact. Want proof? Check to see how many times pundits and politicians bring up "The New Colossus" when the issue of immigration is raised. If the title is unfamiliar, that sonnet reads as follows:
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
So ingrained is this poem in immigration generally that the virtual assistant that appears when you search the website of U.S. Citizenship and Immigration Services (USCIS) is called "Emma," after the author of "The New Colossus," Emma Lazarus. As the USCIS website states:
Meet "Emma," a computer-generated virtual assistant who can answer your questions and even take you to the right spot on our website. Emma is named for Emma Lazarus, who wrote the poem inscribed at the base of the Statue of Liberty about helping immigrants. Inspired by her namesake, our Emma can help you find the immigration information you need.
As an aside, perhaps the best rejoinder to "The New Colossus" came from the late New York Democratic Sen. Daniel Patrick Moynihan, who stated: ''Emma Lazarus, wherever she is in heaven, has a lot to account for. They weren't the wretched refuse of anybody's shores.''
Right now, the biggest issues in popular immigration discourse are whether we need a "wall" (and if so, what kind of wall we need), and what to do with the so-called "Dreamers", aliens here illegally who arrived as minors who are (still) covered by the Obama administration's Deferred Action for Childhood Arrivals (DACA). Some have suggested that a good compromise would be to trade one for the other. Mark Krikorian aptly notes, however, that trading the wall for DACA legalization would be insufficient to address the issues that such amnesty would incur. In this context facts matter, and the complicated interplay among various immigration proposals requires an understanding of the ramifications of each to avoid unintended consequences.
The need for a wall, and the current cross-border immigration situation in the RGV and Del Rio, were the reasons that I went to Texas. If I expect to give an informed opinion about the border, I have to go to the border.
Which brings me back to the Quartz article. The author states therein: "Several of these evacuation routes go right through Border Patrol checkpoints, including one on Route 44 in Corpus Christi and another on Route 35 heading up to San Antonio." As Davidson notes, however, the author:
[R]uns into trouble in her description of the evacuation routes in question, writing that "Several of these evacuation routes go right through Border Patrol checkpoints, including one on Route 44 in Corpus Christi and another on Route 35 heading up to San Antonio." What she calls "Route 44" is actually Texas State Highway 44, better known to residents of Corpus Christi as Agnes Street. "Route 35" is in fact Interstate 35, one of the major north-south transit corridors in America.
She then relies upon what appears to be a crowdsourced Google Map of Border Patrol facilities in south Texas, but does not grasp that not all the listed sites are "Border Patrol checkpoints." The one on Texas 44 just outside Corpus Christi is not a checkpoint at all but a combination office facility and vehicle/equipment depot. A brief look at local geography suggests that no one would ever place a checkpoint along this section of Texas 44, as the major corridor for entry and exit to the Corpus Christi area is Interstate 37, a short distance to the north.
Likewise, her reference to the Interstate 35 Border Patrol presence seems to refer to the Border Patrol station at Cotulla, which is, like its counterpart in Corpus Christi, an operations and depot facility, not a checkpoint. There is a Border Patrol checkpoint much further south, at Encinal, but it is only for northbound traffic, so anyone from the San Antonio region fleeing the storm and flooding would not be affected by it.
To anyone who has been to the border, or its adjacent area, these facts are fairly obvious. Are there checkpoints? Yes. But not throughout southern Texas as the map that the Quartz author uses suggests. And, as Davidson suggests (and logic dictates) they generally lead away from the border, not toward it. Headed to and around the border, I drove past several going the other way. And the Border Patrol doesn't set up checkpoints at its stations in East Texas; in fact, the Rio Grande City Station sits at the end of a dead-end road.
The illegal movement of people, drugs, and contraband over the Southwest border is one of the major issues that decision-makers and the public need to understand when considering what our immigration policies should be. I understand that not everybody needs to go to the border to come to a conclusion about the construction of a wall, or how the Border Patrol carries out its responsibilities. As Will Rogers (often) said, "Well, all I know is what I read in the papers", and that is likely true and sufficient for most people, updated to modern media. If you want to inform others about this issue, however, you really need to see the border yourself.
Similarly, in considering other issues that relate to immigration — who should be admitted, who should be allowed to stay, and who must be forced to go — emotion and cant are poor guides. As John Adams said: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."