By Alan Bean

“Is there any way that I could get a permit that would let me stay in this country?”

The question came from a young man who, the day before, had been nabbed by Border Patrol officers as he waded the Rio Grande River.  Like most of the men in the courtroom, the questioner was short, thin and young.  I guessed his weight at 120 pounds, but it could have been less.

Like the thirty-five men and women standing with him in the magistrate court on the fourth floor of the federal courthouse in McAllen, Texas, the man asking the question was pleading guilty to a charge of entering the United States illegally.  Most of the defendants had been deported on multiple occasions, but this young man was apprehended by Border Patrol on his first attempt to enter the country illegally.

And yet he asked an innocent question; innocent in the sense that children are innocent.  He meant no one any harm.  He was just looking for a chance to earn a decent living.  He was ready to work long and hard.  He was eager to contribute to the greater good.  He entered the United States for the purest of motives, and yet he was being prosecuted as a criminal.

The magistrate judge responded with all the compassion the situation allowed.  Apart from Nancy and Alan Bean (the lone observers this Friday morning) and a court reporter, the judge appeared to be the only Anglo in the room.  The half dozen people with the US Marshalls Service and an equal number of Border Patrol personnel all appeared to be Hispanic, as were the public defenders and prosecutors involved in the process.

The judge addressed the young man in English, the Spanish translation coming through the headsets the defendants were wearing.  He explained that immigration was a civil matter and since this was a criminal court, he could only deal with criminal matters.  When the young man arrived back in Mexico, the judge suggested, he could contact the US consulate and ask about ways in which he could enter the United States legally.

Like everyone else in the room, the judge knew this wasn’t going to happen.  As Jose Antonio Vargas explained in a celebrated article in TIME, for most people who wish to enter the US, there is no process:

Obtaining a green card means navigating one of the two principal ways of getting permanent legal status in the U.S.: family or specialized work. To apply for a green card on the basis of family, you need to be a spouse, parent, child or sibling of a citizen. (Green-card holders can petition only for their spouses or unmarried children.) Then it’s time to get in line. For green-card seekers, the U.S. has a quota of about 25,000 green cards per country each year. That means Moldova (population: 3.5 million) gets the same number of green cards as Mexico (population: 112 million). The wait time depends on demand. If you’re in Mexico, India, the Philippines or another nation with many applicants, expect a wait of years or even decades. (Right now, for example, the U.S. is considering Filipino siblings who applied in January 1989.)

The young man asking the question could marry an American citizen, but that was hardly an option if, as the law demands, he remained in Mexico.  Getting a workers visa without family endorsement requires the kind of specialized skills the questioner will likely never possess.

So, as a practical matter, the questioner had no legal path into the United States.  He could remain in Mexico, or he could enter the US illegally.  Those were his options.

Nancy and I had just watched Judgment at Nuremberg, the 1961 film loosely based on the trials of Nazi judges and Reich ministry officials in 1948 (a film recommended by my friend, Canadian author Richard Sherbaniuk.  One of the jurist defendants, Hans Janning (played by Burt Lancaster), admits his guilt in open court.  Janning has an international reputation as a man of integrity and a legal genius, yet he played his part in the Third Reich.  After being sentenced to life in prison, Janning requests a meeting with Judge Dan Haywood (played by Spencer Tracy) the American jurist who passed sentence.  When the two men are face-to-face, Janning assures Haywood that he never intended that his actions would “come to that”.  By “that”, of course, he meant the death camps.

Haywood is unsympathetic.  “Herr Janning,” he says “it came to that the first time you sentenced a man to death you knew to be innocent.”

Was the magistrate in the McAllen courtroom like Dan Haywood, the crusty American judge who insists that the rule of law must never be compromised by sentimentality or political opportunism; or did he resemble Hans Janning, the internationally acclaimed German jurist who, with the best of intentions, cooperated with the Nazi’s because he didn’t think it was the role of a judge to challenge the entire system of justice?

The magistrate who fielded the defendant’s innocent question was probably an odd mixture of both; refusing to bend the rules for a sympathetic defendant but also complicit in a warped judicial proceeding that criminalizes the human longing for a better life.

It all depends what we mean by “innocence” I suppose.  The young man asking for permission to stay in America was legally guilty but psychologically and morally innocent.  When the legal system transforms an innocent soul into a criminal, something has gone very wrong.

The dozen or so defendants who had were being deported for the first time were sentenced to time served and deported immediately.  Those who had been deported previously but had clean criminal records, were warned not to return to the United States and sentenced to three or four weeks in a US Marshalls Service facility operated, in most cases, by the private prison industry.

The majority of the defendants in the courtroom had previously been deported at least once, and many had extensive criminal records (normally for driving under the influence or for the illegal possession of a gun, drugs or a driver’s license).  These defendants received longer sentences, in the 35-60 day range.

One defendant had just completed his fourth unsuccessful attempt to enter the United States; I suspect he will soon be making his fifth.  Another gentleman had five deportations on his record.  That should have automatically triggered a charge of illegal re-entry, a felony carrying a sentence of between six months and twenty years (depending on criminal history).  The judge asked the prosecutor to explain why a man on the verge of being deported for the sixth time wasn’t being prosecuted for illegal re-entry.

The “prosecutor” was actually a Border Patrol employee with little or no legal training.  The sheer volume of illegal entry and re-entry cases being processed through the federal courts in border regions has overwhelmed the capacity of the Assistant US Attorneys who once handled these cases.  To cope with the avalanche of cases, BP personnel put together a profile and ask an AUSA to suggest a sentence.

“The AUSA told me he was too busy to prosecute this case,” the faux-prosecutor explained with a verbal shrug.

“The AUSAs are too busy?” the judge asked in mock amazement.  He informed the five-time loser that he was a lucky man and imposed a sentence of 120 days, the maximum sentence at his disposal.

The thin young man who asked for a permit to remain in the US wasn’t the only defendant with a question for the judge.  A woman raised her hand and informed the judge that she had crossed the border illegally because a recent deportation separated her from her daughter.  Having been born in the United States, the child was an American citizen.  “I just wanted to see my child,” she explained.

These words, even in monotone translation, made me gasp.  My chest heaved.

The judge confronts this kind of issue on a daily basis, but the pathos got to him nonetheless.  “I realize,” he said softly, “that most of you came to this country for work or to be close to loved ones.  Those are honorable and understandable motivations, I understand that.  But the simple fact is that you all chose to enter the country illegally and that is why you are in this courtroom today.”

The logical disconnect was patent and painful.  The judge had to know that if a border separated him from a tiny child he would cross that border, legal or not.  But he couldn’t allow that fact to alter his judgment.  He didn’t make the rules; that wasn’t his job.

Unfortunately, the people responsible for cobbling together American immigration policy are never confronted by an innocent young man longing to live and work in the United States.  The politicians don’t have to face mothers who have been separated from their children by arbitrary and often contradictory immigration laws.

One defendant informed the federal public defender that he had crossed the Rio Grande because he wanted to attend his son’s first birthday party in Oklahoma City.

The day before, Nancy and I met with an undocumented woman whose son had been picked up by an off-duty state trooper who thought he looked suspicious.  The young man came to America as a child, graduated high school and enrolled in the computer tech program at the local community college.  He was headed for class when the off-duty cop pulled him over.  When he couldn’t produce a valid driver’s license, the officer called ICE (Immigration and Customs Enforcement) and the young man was taken into custody.

Days passed before the family located their missing son.  With the help of Juanita Valdez-Cox, a local organizer with LUPE (La Union del Pueblo Entero), the boy’s mother was able to secure legal representation and the young man was eventually released.

“When my boy got out of prison,” the mother told me, “I got my heart back.”

The folks in Congress don’t want to separate parents from their children, they just want a secure border.

That is why President Obama just closed down nine border patrol offices in places like Lubbock and Amarillo so more officers can be transferred to the US-Mexico border.  As things presently stand, the number of Americans travelling to Mexico equals the northern flow of Mexicans to the United States, but we seem determined to transform places like the Rio Grande Valley into virtual police states.

As the deportation proceeding wound down, Nancy and I vacated McAllen’s Bentsen Building and crossed the street to our car.  My phone rang the instant I picked it up.  A young officer with the US Marshall’s Service wanted to “visit” with me about an incident at the federal courthouse in Brownsville, which Nancy and I had visited the day before.

“Well,” I said, “I was standing on the courthouse steps when three large men with guns surrounded me.  They wanted to know what I was up to, but I think the real purpose was intimidation.  One of them took my driver’s license and returned it five minutes later.  Someone else wanted to know if my wife and I had any plans to travel to Mexico in the near future.  That’s about it.”

“Well, thank you sir,” the polite voice replied, “since 9-11 we just have a policy of following up whenever people take pictures of a federal courthouse and we thank you for your cooperation.”

I’m not sure what any of this has to do with securing the homeland against terrorists.  As Tom Barry points out, “Despite the border security buildups and $100 billion spent along the southwestern border, no terrorists or terrorist weapons have been seized.”

I told the USMS officer that I was interested in Operation Streamline, the “cattle call” legal proceeding in which dozens of people charged with illegal entry or re-entry are prosecuted en masse.  “I’ll be visiting you in the near future,” I said.  “In the meantime, if you want to know what I’m about, you’ll want to check out Friendsofjustice.net where you’ll find more information about me than you’d ever want to know.”

A few moments later, Nancy and I were at Chili’s, a franchise restaurant that serves a decent hamburger and a passable grilled chicken salad.  Examining the modest surroundings, I wondered if any of the defendants we had witnessed moments earlier had ever had enough money to afford a meal at a place like Chili’s.

An hour later, we encountered one of the highway check stops you inevitably encounter about forty miles north of the Rio Grande.  Nancy and I watched Border Patrol personnel with drug sniffing dogs pace menacingly in the 100 degree heat.

We had nothing to worry about.  “You American citizens?” the officer asked.

Of course we were American citizens.  We’re white.  Had we looked like the young man who interrupted a deportation proceeding to ask the judge if he could stay in America, things would have played out differently.  A large sign assured law-abiding citizens that the five minutes waiting in line at the checkpoint was worth the trouble.  In the first six months of 2012, “thanks to your support of America’s frontline,” the Border Patrol had confiscated 120,250 pounds of illegal drugs and arrested 9,433 illegal aliens.

That’s a lot of drugs, but to the cartels, drug seizure is factored into the business model and has no bearing on the street availability of drugs.

And what about the 9,433 souls arrested at checkpoints 50 or so miles from the border, is that a good thing?  (The checkpoints are legitimated by the idea that the US border actually extends across a 100 mile frontier.  In which case, over 80% of the American population lives on the border.)

Has the arrest and (one assumes) deportation of 9,433 people in six months been a good thing?  It certainly isn’t good for the people arrested.  If they had wanted to be in their country of origin, they wouldn’t be here.  But what about folks like you and me, is the mass arrest of undocumented aliens improve our quality of life?

The answer to that question ebbs and flows with the perceived strength of the American economy.  In the wake of the twentieth century’s two world wars when America was building and bodies were in short supply, we put out the welcome mat.  In the decade following the great depression, mass deportations were the order of the day.  We might be inclined to blame the current enthusiasm for “border security” on a lousy job market; but the anti-immigrant war drums started beating in the mid 1990s, a period of rapid economic growth.

The upsurge in concern followed the 1995 bombing of the Murrow federal building in Oklahoma City (a tragedy staged by a home-grown patriot).  The meltdown of the financial sector and a corresponding plunge in real estate values has deprived millions of American citizens of work and revived the ancient cry: “they take our jobs!”

But do they?  In 1950, little Tulia, Texas (to site but one example) boasted a population of 5,000 and non-whites were rare.  Tulia still has around 5,000 residents, but now half of them are black and brown.  Has the Hispanic presence, documented and undocumented, helped or hurt the local economy?  Would towns like Tulia still be economically viable without the influx of African-American and Hispanic residents?  I doubt it.

This isn’t a zero-sum game.  More for them doesn’t necessarily mean less for us.  The US population in 1900 was 77, 584,000.  By 2000, there were 272,690,813 of us.  How did we possibly find jobs for almost 200 million people?  It’s simple; new people don’t just take jobs, they create jobs.  Ten thousand new residents in a community creates a need for more retail stores, more restaurants, more service professionals, more police officers, and so it goes.

Why do we think it would be any different if we handed the young man in the courtroom a work visa and, eventually, a pathway to citizenship?

Could this have anything to do with the fact that he doesn’t look like a standard American . . . that is, he’s not white.  Might our problem be that he doesn’t speak standard American English?  A loyal reader of the Amarillo Globe-News responded to the story about the closing of the local Border Patrol office with a predictable rant:

The cockroach wetters can crawl in a swarm across the state and now there is nothing law enforcement can do until they commit their second crime.  The only country on the planet where any trash heap or terrorist, crook and drug dealing thief can walk across the border, become a social parasite then scream about their rights.

Is this perspective unusual?  Or is this species of paranoid bigotry the primary force driving current immigration policy?

Xenophobia isn’t the only factor in this equation.  Check out Tom Barry’s “Border Security After 9-11“.  The ocean of money currently inundating the border region, in Barry’s considered opinion, has far more to do with political opportunism than a practical concern for public safety:

The post-9/11 imperative of securing “the homeland” set off a widely played game of one-upmanship that has had Washington, border politicians and sheriffs, political activists and vigilantes competing to be regarded as the most serious and hawkish on border security. The emotions and concerns unleashed by the 9/11 attacks exacerbated the long-running practice of using the border security issue to further an array of political agendas – immigration crackdowns, border pork-barrel projects, drug wars, states’ rights and even liberal immigration reform. Yet these new commitments to control the border have been largely expressions of public diplomacy rather than manifestations of new thinking about the border.

Can anyone tell me why we are funneling billions of dollars into a program designed to separate families, crush dreams and stifle ambition?  Thanks largely to the recession, the number of people entering the US illegally has dropped drastically in recent years.  Many undocumented residents would head back to Mexico if they could do so without being detained and humiliated.  Traditionally, Mexican nationals would cross the river for work when jobs were plentiful, and return when times were tough.  The panic at the border has slowed movement in both directions.

Our border hysteria has also created a market for the “coyotes” who, for a price, move people across the border at remote, unmonitored locations.  As a result, the number of deaths associated with illegal entry has skyrocketed.  According to official records (which are almost certainly conservative) 87 people died crossing the border in 1995; ten years later, the number was 500.

Which brings us back to the young man’s question: “Is there any way that I could get a permit that would let me stay in this country?”

Do we really have an answer that makes any practical or moral sense, or all we all just talking?