1. A Press Conference
It’s January 2013, and I’m watching some political theater on C-SPAN’s website. Senator Charles Schumer leans over a podium in a Senate pressroom. His glasses sit low on his nose, and he looks more like one of my great uncles than someone reading a policy statement to assembled reporters. But he and seven other senators have hammered out an immigration reform proposal, so this is News. “We still have a long way to go,” he says, “but this bipartisan blueprint is a major breakthrough.”
I take Senator Schumer’s announcement personally. Over the years, I’ve known many people who’ve been in the United States when the law said they shouldn’t be. I’m a public interest lawyer, but I’m not talking about clients. My list includes friends, my husband, and even my father’s mother and aunt, who as teenagers landed at Ellis Island with documents that weren’t their own. Crowded in the steamer’s steerage hull, they must have wondered, “Will it work?”
My great-aunt and grandmother’s papers weren’t doctored or stolen, though—they’d switched with each other. Aunt Mary had stopped growing after falling from a tree, and her family was afraid she’d be rejected at the border as physically defective. Her parents decided she should pretend to be younger, hence the paper switch with my grandmother, her younger sister. The trick worked. My grandmother and Aunt Mary both made it into the U.S. and wound up working in the garment factories. My grandmother, who could sew anything, left the garment shops to raise her family, but Aunt Mary kept working, sealing box after box, inserting slips of paper atop the folded clothing: “Inspected by Number 9.” When finally it came time to retire, she asked my father for help with her Social Security application and handed him a clutch of documents. Each showed a different birthday. My father settled on one, and she started getting her checks.
“She was such a dear woman,” my father says. Holding his hand just above his abdomen, he adds, “She was only about this tall.”
I never met Aunt Mary, so all I know about her is that she was a tiny, unassuming woman who once did something brave and illegal, abetted by my grandmother. People leap into acts such as these when they know the rules don’t favor their survival but they want to live anyway. I have many friends who, like Aunt Mary, did whatever it took to get into the U.S. They plodded through the desert, scrambled over fences, convinced border inspectors at the airport that they were coming as tourists, not to stay. One friend spent the night in a safe house in Tijuana, where she met women who were fleeing the civil war in El Salvador and had traded sex for rides all the way through Mexico.
Then there was an acquaintance who told me his family’s story through choking tears. He and his brother-in-law were entering the country at El Paso, because both lived in the United States with valid papers. The rest of the family was crossing illegally, away from the border checkpoint. “Whose bag is that?” the officer asked the man and his brother-in-law, seeing a purse left on one of the seats.
“My mother left it by accident,” the brother-in-law said, as if she’d forgotten the bag while sending the young men off on their journey. “A woman never just leaves her purse,” said the officer.
But, in the rush to cross with the coyotes, she had left it in the van. His face red with panic, the brother-in-law explained, “I haven’t seen her for fifteen years.” He’d been living in central Washington, and she in a small town in Jalisco.
The officer took pity and said, “Hurry and find her before she gets caught.”
This family was lucky, and some other friends of mine have been lucky, too, falling through one trapdoor or another in our immigration law. They got their papers and eventually became U.S. citizens. But many of my friends haven’t had that chance. They’re still waiting.
So when I see Charles Schumer on my screen, I hope he understands. His proposal comes with a catch, though. The border would have to be stamped secure before anyone could get their papers. By June 2013, Senator Schumer and his colleagues have come up with a bill, which includes border enforcement metrics and timetables; an amendment adds fencing, high- tech surveillance, and electronic identity checks in workplaces—hardly a surprise as the title of the bill starts with the term “border security.”
But perhaps the tripwires and sensors are props in a border security dream, rather than a depiction of border security reality. As I write this essay, I run an online search and pull up images of the border that show corrugated metal fence cutting through the desert. That fence is the picture we put to the word “border,” helping us believe in it as something real and constant, if vulnerable. It provides a place for the border, which the border needs if it’s going to mark the line we think it marks. We want the border to be clear and provide clarity. For almost twenty years, though, I’ve been trying to figure out where the border is and what it does, and I still don’t know.
2. Seeking Asylum, Filling Out Forms
I didn’t grow up thinking of my family as refugees, but of course they were.
“They didn’t want to be drafted into the czar’s army,” I was told, or, “pogroms,” or “Grandpa’s older brothers and sister were revolutionaries.”
My family came with the stink of oppression on them. By the 1960s, we were upper middle-class, and I assumed that all American families followed this trajectory: the arc of the moral universe bends toward the suburbs. In those suburbs, my parents retained a sense of liberal responsibility. My father, a doctor, joined the nuclear disarmament movement and gave sidewalk talks on the medical effects of thermonuclear war. My mother opposed U.S. Cold War military interventions and on a file cabinet placed a bumper sticker that read, “El Salvador is Spanish for Vietnam.” It wasn’t really, but from this I understood that El Salvador was more than just a far-flung place.
In the 1980s, El Salvador was steeped in a civil war in which the Salvadoran government committed massacres, tortured and disappeared its victims, fired on demonstrators, and murdered priests, nuns, and union members. I learned from my mother that our government was sending military advisors and supporting government death squads, which she thought we shouldn’t do. People were streaming from El Salvador by the tens of thousands, but my mother didn’t tell me about these refugees, because they weren’t arriving in the Philadelphia suburbs. I wouldn’t meet any until years later, when I helped a few apply for asylum.
That happened in 1994. I’d recently graduated from college and moved to Seattle. My boyfriend—now my husband—had come to the city from northern Mexico, and he found an apartment above the restaurant where he worked. The building was shabby, with second-story front doors along the balcony, motel-style, and access to the interior hallway (and laundry machines) through doors that opened directly into the apartments’ bathrooms.
I was working as a receptionist, and one day I saw a poster for an organization called the Northwest Immigrant Rights Project (NWIRP), which provided legal services to immigrants. I called to see about volunteering. “We’ve got a training coming up,” the executive director told me. “Come by on Saturday.”
A paralegal, Julie, gathered us in the office’s dim conference room and taught us the basics of asylum law, showed us how to complete the forms, and told us what questions to ask the people we’d interview. She seemed to know everything. She explained that the circumstances of these asylum applications were unusual. Because the U.S. had backed the Salvadoran government—pressed it to continue the war, even—Salvadoran refugees had a very hard time getting asylum when they’d reached the United States. In fact, in the 1980s, immigration officials denied 97 percent of Salvadorans’ applications, even with all the murder and torture: bloody Cold War politics. Refugees and church groups sued, and the government finally agreed to give them another chance to apply.
The next weekend, I started interviewing applicants. The NWIRP headquarters was packed with men, women, children. I called the next person on the list into one of the offices and started asking all sorts of questions to make the application as strong as possible: the more terror a person had seen the better. But my interviewees didn’t easily produce stories of brutality. When I asked, “Why did you leave El Salvador?” they usually said, “Well, because of the war, like everyone else.” I didn’t know how to get them to say more, or know if there was more for them to say.
Across the hall, Julie stood in another office, tilting toward a seated client. She was saying, or I thought I heard her say, “Don’t you remember anything? You must remember something.”
She had a way of shaking out recollections. Maybe the Salvadorans’ memories lay beneath a tough rind of trauma that needed to be torn open. Or maybe they’d come to see horror as ordinary, not worthy of note. Either way, I learned that you can’t tell what people have been through by just looking at them. None of the people I interviewed came in maimed or disfigured, except for one man who was missing the top half of his middle finger. Instead of the digit, he had a smooth blossom of knuckle. He hadn’t lost the finger in the war, though. It had been lopped off when he’d reached his hand out of a moving car and caught it on a wire. I took his fingerprints for the application, and Julie told me to write in “missing finger” in the box where the print should have gone. The man and I shared a laugh over that. I was twenty-four when I did those interviews. Since then, I’ve met countless people who’ve been through hard things. I’ve met gay men raped by police in Latin America, Jamaican sugarcane cutters nickeled and dimed by rich growers in Florida, a woman who shot her stepfather, a woman who killed her own child in a drug fury. You learn to speak with people about difficult experiences.
But in 1994, all this was new for me. I began to get the hang of it, and when a Salvadoran interviewee said, “I just left because of the war,” I’d ask, “Did guerrillas or soldiers ever come to your house? Was anyone in your family ever killed?” And sometimes this helped people remember, and they’d say, “Oh, yes, there was that time …” I wrote in the answers, and in my memories I picture my interviewee and me in the dusty air of a dingy office, leaning over the application to review it together. The word “alien” appeared on the application in clear black letters, but I didn’t think of the Salvadorans as aliens. If an army bombs a person’s town with weapons provided by the United States, aided by training in the U.S., doesn’t that person have a relationship with the United States? How can we talk about that person as an alien, if there’s no border between us that really counts?
3. Making Our Map
And yet we have maps that neatly mark the boundaries and make them real.
But: there are parts of the United States that don’t appear on most maps of the United States. Pull up a map online, and you’ll get the contiguous forty-eight with Alaska and Hawaii shifted to the southwestern flank, as if pushed there by a finger of godlike proportions. You don’t see Puerto Rico, Guam, the U.S. Virgin Islands, or the other “unincorporated territories” of the United States. Although these places belong to our country—whatever the word “belong” may mean—the godlike finger has not moved them within our sight line.
Always get the last word.
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Which takes me to a photograph I’ve downloaded from the National Archives. In the photo, Teddy Roosevelt stands atop San Juan Hill in Cuba in 1898, surrounded by his Rough Riders. They’ve just overrun Spanish forces, having advanced behind a line of Gatling gun fire. They moved, in Lt. John Pershing’s words, “as coolly as though the buzzing of bullets was the humming of bees.” Now they’re posing for a photograph to portray their glory. That’s fine as far as capturing the triumph of that battle goes, but the photo also raises the question of border control. Because of the Spanish American War, the U.S. border was shifting again, and no one knew where it would make landfall.
It was the end of the nineteenth century, and the United States had taken it upon itself to liberate Cuba from Spanish tyranny. By the war’s close, we had a new set of territories, among them the Philippines, Puerto Rico, and Cuba. President McKinley couldn’t locate these places on a map, but the country still had to decide what to do with them. Should they eventually join the U.S. on equal footing with the states? Should they be treated like nations-but-not-quite-nations, as with the American Indians? Or should the U.S. just cast the new colonies off right away?
These questions concerned the identity of the United States, a country founded on the idea of self-rule, and they weren’t easy to answer. Political leaders and legal scholars began developing proposals and examining the Constitution, while Congress held heated debates. The Anti-Imperialist League roused a crowd of ten thousand at its convention in Chicago, where Massachusetts Senator George Hoar warned the country against descending into “the modern swamp and cesspool of imperialism.” At that point, he thought we still had hope.
But scholar Abbott Lawrence Lowell, future president of Harvard, where he was a professor of government, believed this hope was misplaced: the anti-imperialists had misperceived the essential nature of the U.S. “(T)here has never been a time, since the adoption of the first ordinance for the government of the Northwest Territory in 1784,” he reminded his readers, “when the United States has not had colonies.”
Yet Lowell still saw something different about the new possessions that meant they couldn’t just be fed into the country’s mill of expansion. “The settlers in the West carried with them the laws and customs of the East, and the precious habit of self-government,” he wrote in 1899 in the Atlantic Monthly. Puerto Rico and the Philippines: they were filled with people different from those settlers, who were us. They had no history of self-rule, and, being insufficiently civilized, couldn’t bear the burden of it. It would be “sheer cruelty” to foist it on the Filipinos, Lowell warned, and even for the Puerto Ricans, “self-government must be gradual and tentative.”
The year Lowell’s words were published, my family lived in czarist Russia. We weren’t yet part of this us. Still, in 2014, I can sit at my desk, sort through Lowell’s article, and wonder, as an American: what was it like for us to question the nature of our country in the wake of those foreign invasions? A century later, we have more experience with this sort of thing. We know that occupying Iraq for eight years doesn’t mean Iraq is part of the United States, and it doesn’t mean Iraqis become Americans. We can enact our will on people without feeling like those actions shift our borders. This wasn’t always so clear, and the debates continued. In 1901, fruit merchant Samuel Downes walked into this open question when he attempted to receive a shipment of oranges from the Port of New York. Downes was a founding officer of the city’s Wholesale Fruit and Produce Association and a donor to the Five Points Mission. Probably he was a businessman of some influence in the city.
However, when he tried to get his oranges—thirty-three boxes shipped from Puerto Rico—he learned that customs was charging him $659.35 in import duties. He protested: Puerto Rico was part of the United States. But the customs officials didn’t agree, so, instead of letting his oranges rot, Downes paid the duties and hired a lawyer, Frederic Coudert, who’d been gathering test cases to take to the Supreme Court. Coudert planned to argue that Puerto Rico belonged to the U.S., and the Constitution barred customs officials from treating it any differently.
Much was at stake in the decision—and not just national identity. Oranges and other commodities meant big money, so while almost no one knows about Downes v. Bidwellnow, the case was a national event back in 1901. When it got out that the court was about to announce its ruling, spectators swarmed into the courtroom, eager for the decision.
The justices issued a ruling that continues to confound. For one thing, the decision had no clear majority and was cobbled together from a series of concurring opinions. For another, the justices decided Puerto Rico may belong to the United States, but that doesn’t make Puerto Rico part of the United States. In the decision’s most famous phrase, Justice White called the island “foreign to the United States in a domestic sense,” and I don’t know how any cartographer could express that paradox on a map, godlike finger or not. At any rate, Samuel Downes wouldn’t get his $659.35 back. The duty remained on the oranges, which were foreign.
But what about the Puerto Ricans? Were they also foreign?
This takes us to the case of Isabel González, chronicled by legal historian Sam Erman. In 1902, González sailed to New York in search of her errant fiancé, who was working at a linoleum plant on Staten Island. When she landed at the Port of New York, she was pregnant—making her sexually suspect in addition to racially undesirable—so port officials wanted to block her from entering as an “indigent immigrant.” She found herself in the middle of the debate over the status of Puerto Ricans, and she took a position, arguing that she was a United States citizen. Even after she married her fiancé and became eligible to enter the U.S. through this marriage, she kept it secret so she could pursue her case.
A federal appeals court declared her an alien. Coudert, Downes’ lawyer, wrote, “(A)s the law stands to-day, we have a new and seemingly paradoxical legal category of ‘American Aliens.’” He represented Gonzalez before the Supreme Court, arguing, Erman writes, that because U.S. citizenship really didn’t guarantee much in the way of rights, there was no reason to deny it to the Puerto Ricans. The court wasn’t willing to go that far. It declared that González wasn’t an alien, but she wasn’t a citizen, either.
It took fifteen years for Congress to extend citizenship—statutory citizenship, meaning not guaranteed by the Constitution—to Puerto Ricans, and President Woodrow Wilson signed the bill on March 2, 1917. Later that month Puerto Rico’s appointed governor, Arthur Yager, appeared before the island’s legislators and addressed them as “fellow citizens of the United States.”
“I welcome you into our great national family with high hopes,” the New York Timesreports him as saying, and I imagine him standing grandly at the podium, arms spread wide in imperial embrace.
That November, Governor Yager gathered at San Juan’s Municipal Theater with his daughter, the president of the House of Delegates, and other political and military leaders. They were there to draw eight thousand draft numbers for World War I, making a public ceremony of conscription. Miss Yager picked the first number. The Puerto Ricans went off to war, but the island still wasn’t fully part of the United States and isn’t to this day. You may find Puerto Rico on some U.S. maps, at the tail end of a string of Caribbean islands. It will be marked as “Puerto Rico (U.S.).”
4. Origin Stories
No matter what dangers my family escaped in the early twentieth century, they couldn’t have predicted the greatest danger, which probably would have consumed them had they stayed in Europe. Just as there are still Jews despite genocide, there are still Indians. (When I was a child the idea of an Indian seemed magical to me. In one of my earliest memories, I’m sitting with my family at a Phillies game in Veterans Stadium, plastic seats crummy with peanut-shell dust, when my father says, “I think that man over there is an American Indian.” I searched for the Indian in the stands, but if I saw him I don’t remember it; I recall only the feeling of fascination and surprise. There were still Indians! Now I wonder if some Nazis dreamed of the day that a few leftover Jews would fascinate rather than repel—but I shouldn’t stretch this comparison, because like unhappy families each genocide is genocidal in its own way.)
We could ask many questions about our American genocide, among them questions about borders. On state maps now, sometimes you’ll see the boundaries of reservations marked out, and sometimes you won’t. This points to the unsettled status of Native nations. They’re sovereign nations, but they’re also tangled up in jurisdictional confusion—among the tribes, states, and federal governments—that compromises self-government and, to outsiders, may make them seem like something less. One example is that tribal courts may not prosecute non-Indians who commit crimes in their territory. When the victims are Indians, the federal government is supposed to handle these crimes, such as rape, but it has a history of overlooking them, so it’s as if every non-Native American on a reservation carries diplomatic immunity. In 2015, the law is changing. Native courts will be able to try non-Indians for some crimes of intimate violence against Indians, which seems like a good development, but it doesn’t make jurisdiction entirely clear—jurisdiction and territory still won’t be the same thing, as we often assume they are.
It’s impossible to separate violence from the writing and rewriting of borders. In 1831, amid machinations to expel the “Five Civilized Tribes” from the South, the Supreme Court decided it couldn’t hear a case brought by the Cherokees, who were challenging Georgia’s right to extend state law to their territory. The court’s refusal to hear the Cherokee claim rested on an interpretation of geography. Chief Justice John Marshall wrote, “The Indian Territory is admitted to compose a part of the United States. In all our maps, geographical treatises, histories, and laws, it is so considered.” And so, the court determined, the Cherokee represented not a “foreign state” but a “domestic, dependent nation” lacking the right to sue Georgia in U.S. courts. If a border existed between the Cherokee Nation and Georgia, in this instance it couldn’t keep Georgia out.
I’m looking at another photograph from the National Archives. It depicts the delegation led by Spotted Tail, a Sicangu Lakota leader, to Washington, D.C. The official record indicates the photo was taken sometime between 1871 and 1907, but since Spotted Tail was killed by Crow Dog in 1881 the date range must be too broad. I don’t know who else appears in the photo or what Spotted Tail and his delegation were doing in D.C. I’ve only just learned that he ever existed, and all I see in this photograph of bygone Indians—with their moccasins, blankets, braided hair, and pipes—is a representation of inevitability, which is my fault and not theirs.
Spotted Tail was born eight years before the Cherokee Nation v. Georgia decision. Crow Dog, the man who killed him, was born just a couple of years after. Both came to live on the Great Sioux Reservation decades later, following years of war. Spotted Tail had been imprisoned in Fort Leavenworth after fighting in the Sioux War of 1855. Traveling to the fort under military guard, he passed by so many white farms and towns that he came to believe there was no way to defeat the United States. Crow Dog had fought against the U.S., too, and he also had to make his peace, although I can’t fathom how complicated it must be for a person to negotiate with a society that has committed genocide against him.
The peace treaty that created the Great Sioux Reservation (and set its boundaries) was a nation-to-nation agreement, but it put the U.S. government deep into territory that supposedly wasn’t within U.S. jurisdiction. There would be a U.S. Indian agent on the reservation and an agency office, along with a school, buildings for a carpenter and blacksmith, and provisions to turn the Indians into farmers.
In the end, Crow Dog and Spotted Tail both wound up living here and assuming roles of political leadership. Crow Dog became a tribal police captain. Spotted Tail, a chief, carried a rifle and threw his weight around. He removed Crow Dog from his position twice, and Crow Dog may have suspected Spotted Tail of pocketing tribal money. There were factions, differences of opinion, tactics, and maneuvering. This is what I understand from my reading, although I can’t really understand—I’d have to travel to a different time, language, culture, set of politics.
But I can get a sense of the difficulties. Spotted Tail, Crow Dog, and other leaders had the railroad expansion bearing down on them, the crushing forces of assimilation policy, the U.S. Indian agent right there in his office, boring the American state into Lakota territory. Crow Dog is perceived as being less willing to make concessions to the Americans, Spotted Tail less reluctant.
Yet it will always be a mystery why, exactly, Crow Dog killed Spotted Tail that day. Spotted Tail had attended a tribal council meeting at the Rosebud Indian agency, where the council was planning another D.C. delegation, which Spotted Tail would head. When the meeting disbanded, he mounted his horse and started home. He saw Crow Dog crouched next to a wagon, apparently tying his moccasins but really lying in wait. Crow Dog raised his rifle and shot Spotted Tail through his left breast.
That’s one version of the event. In another I’ve read, the events go like this:
Crow Dog was fixing a bar above his wagon’s axle, while his wife, Pretty Camp, waited in the wagon with their child. Spotted Tail galloped toward them, stopped, and drew his pistol. Pretty Camp yelled a warning, and Crow Dog fired.
In both versions, the tribal council met the next day and, according to legal scholar Sidney Harring, ordered a payment to Spotted Tail’s family of $600, eight horses, and one blanket, which settled everything as far as the Lakota were concerned.
But even if they thought the case was closed, the story continued. In the killing of Spotted Tail, Harring explains, the Bureau of Indian Affairs (BIA) saw a test case for pushing its policy of assimilation and establishing criminal jurisdiction in Indian country. The BIA pressed the Attorney to prosecute Crow Dog—the idea being that he’d gotten away with murder—and he was sentenced to hang. With his legal fees paid by the BIA, Crow Dog petitioned the Supreme Court, and once again the court had geographic questions on its hands. Did the treaties and federal statutes allow the federal government to cross the border and convict one Indian for the murder of another? The court said they didn’t. As “aliens and strangers” in Indian country, they lived by their own laws—a victory for tribal sovereignty.
But the victory didn’t last. For one thing, a different sense of geography had taken hold among the citizens of the United States. “The Supreme Court has rendered a decision which will startle most readers,” the New York Times announced. “The decision is that there are persons living in the United States and not subject to the jurisdiction of any State or Federal Courts.”
I can’t imagine Crow Dog believed he was living in the United States, and he wasn’t, really—he was in Indian country—but it’s striking that two sets of people can look at the same piece of land and understand it so differently. This case, maybe more than any other, shows how much the history of the border is also a history of imagination. It’s a matter of who has the power to impose their imagination on the other.
The BIA and white reformers, who wanted the Indians fed into their civilizing machine, didn’t let the Supreme Court have the last word. They worked the legislative process, using Ex Parte Crow Dog as fodder. They had the Major Crimes Act slipped into an appropriations bill and won criminal jurisdiction after all, kicking off another reworking of geography. Ten years later, Congress decided to turn the reservations into individual plots, with “surplus” land to be sold off. The Supreme Court gave its approval in Lone Wolf v. Hitchcock, which permitted Congress to reach into Indian land to administer it as it saw fit. Ninety million acres were absorbed into the United States, reservations rendered patchwork.
Through separate legislation, the Great Sioux Reservation was divided into several smaller reservations and whittled down. Crow Dog continued as a traditional leader, joined the Ghost Dance movement, and for years refused to accept his allotment.
I thought this would be the last I’d read about him, and then I came across a New YorkTimes article from 1903. That was the year my grandfather was born in czarist Russia, the Supreme Court decided Lone Wolf, and the year after the U.S. defeated the Filipinos’ war for independence—a good time for empire. Crow Dog was about seventy and had just left the Rosebud Reservation for New York City. The Times headline announced: “Indians Call on Mayor; Mr. Low Cordially Greets Crow Dog, Who Bears Honors as an Assassin.”
Crow Dog had joined a delegation of fifteen Indians in traditional dress, and they stopped in on the mayor on their way to Coney Island, where they’d perform that summer for the city’s heat-drenched masses. An interpreter handled the introductions in the mayor’s office. “This is Crow Dog,” he said, “who assassinated Spotted Tail, chief of the Arapahoes, some years ago.” The mayor shook Crow Dog’s hand and, after enjoying the company of the costumed Indians, “bid them all adieu.”
5. Borders and Bodies
My favorite constitutional amendment is the fourth, which protects the people from unreasonable searches and seizures. The Bill of Rights overall limits how government intervenes in our lives, but the Fourth Amendment feels most personal, most visceral, because searches and seizures involve state incursions into our homes, our belongings, and even our bodies. The Fourth Amendment also works a kind of legal alchemy on the border, changing its substance.
In 1983, Rosa Montoya boarded a plane in Bogotá, having first swallowed eighty-eight balloons filled with cocaine. She carried in her body the balloons, potentially small bombs of poison, into the airport in Los Angeles. When she landed, she was questioned by customs officials, who locked her up for about twenty-four hours, until they got a warrant and a doctor performed a rectal exam. The doctor fished out the first of the bags, and the rest she passed. Her case wound up before the Supreme Court.
For Justice William Rehnquist, writing the majority opinion, Rosa Montoya was a criminal who during her detention refused food and drink, refused to use the bathroom, retracted her consent for an X-ray, then falsely claimed to be pregnant. Justice William Brennan, in his dissent, paints a different picture. He mentions the snapshots of Rosa Montoya’s children that she extracted from her purse whenever someone new entered the lockup room. He discusses the strip-searches she endured and writes that, when told she couldn’t leave until she excreted into a waste basket, she responded, “I will not submit to your degradation, and I’d rather die.”
I don’t know anything more about Rosa Montoya than this. But ultimately United States v. Montoya de Hernandez isn’t about her. It’s about what the government can subject a person to at the border, where usual Fourth Amendment protections don’t apply. That’s why the court found her detention reasonable, and why to this day people can find themselves locked up at the border, hours on end, with no idea what they’re suspected of having done wrong. I’ve become used to the idea that the government has more power at the border and people less, so stories like these don’t surprise me, and sometimes I find myself more astonished at people’s outrage when they’re put through extensive questioning than at the treatment itself. It’s the border. What did you expect?
To shake me back to reason, it takes a lawsuit like one filed by the ACLU of Texas in December, 2013. The ACLU’s client says that, after a drug-sniffing dog jumped on her at the border crossing, she was strip-searched, probed anally and vaginally, shackled to a hospital exam table and probed again, given a laxative that made her defecate, and put under X-ray and CT scans. She asked the border agents if they had a warrant. They told her they didn’t need one and asked her to sign a waiver if she didn’t want to be billed. She refused, and the hospital sent her a statement in the thousands of dollars. At every step, the men who searched her found no drugs.
Does the border mean that strange men can put their fingers in your vagina, again and again, without your consent? In his dissent in Montoya de Hernandez, Justice Brennan raised a warning about this kind of abuse—although he may not have imagined abuse of this magnitude. “Indefinite involuntary incommunicado detentions ‘for investigation’ are the hallmark of a police state,” he wrote, “not a free society.”
There’s another element of strangeness that isn’t acknowledged explicitly in the Montoya de Hernandez decision. The border that Rosa Montoya was trying to cross wouldn’t show up on the map as a border. It’s somewhere in the L.A. airport, not at the line between Juárez and El Paso, or at Peace Arch International Park, which links Washington and British Columbia. In legal terms, border points such as those at airports are called the “functional equivalent of the border.” They also include territorial waters, spots where roads coming from the actual border converge, UPS sorting hubs, etc.: places that aren’t exactly the border, but close enough.
In other words, to conduct a border search or detention you have to be at the border, but where is the border? On this question, one court has explained, “the border is elastic.” What’s important isn’t that the search takes place at the border but that the person or thing being searched be associated with the border. There’s a three-pronged test to see if this association exists. It asks: Can we be reasonably certain the person/object crossed the border? That the person/object didn’t materially change since crossing? That the search was carried out as soon as practical? Then there is the “extended border” doctrine, with its own approach. These are the kinds of legal tools that, after some time in law school, you begin to see as entirely reasonable. And maybe the tools do make sense, but at some point the inquiry should begin to feel a little metaphysical.
The border is elastic, like a rubber band? Such an idea should make the phrase “border security” evaporate into fantasy.
But if it’s a fantasy, it’s enacted in real life. The ACLU has identified a “Constitution Free Zone” radiating one hundred miles from the border. In this zone, law enforcement sets up checkpoints and patrols bus and train terminals, asking people for papers. And legal scholar Jennifer Chacón has written about border powers washing into the interior, becoming part of everyday policing. In Arizona, with their “papers please” law, state legislators have been explicit in their belief that everyone should be prepared to show the badge of their belonging. But they don’t really mean everyone, and the Supreme Court has held that government agents may consider race when deciding who to stop near the border. So, maybe the border isn’t just a place but also a trait some people take with them wherever they go.
6. Being and Not Being
Since three of my four grandparents passed through Ellis Island, I think of it as a symbol of belonging, but it also stands for a strange idea: that a person can be in the United States without being in the United States. In the 1950s, this happened to Ignatz Mezei, whose story is documented best by law professor Charles Weisselberg.
Born in Gibraltar, Hungary, or somewhere else—it’s never entirely clear—Mezei had moved to Buffalo in the 1920s, where he lived for more than twenty years, working as a cabinetmaker, selling war bonds, serving as an air-raid warden, and so forth. In 1948, with Europe still in turmoil after the war, he traveled to Romania to see his dying mother, but Romania denied him entry. He wound up stuck in Hungary for nineteen months, unable to obtain an exit visa. When he finally got the visa, he headed back home from France on a steamer, but immigration officials stopped him at Ellis Island. The government had received a confidential tip that he was a subversive. There would be no hearing in which he could argue otherwise. The attorney general declared his entry “prejudicial to the public interest” and ordered him permanently excluded.
Detained on Ellis Island, Mezei endeared himself to the people in charge. He fixed things—the pool tables, the couches—and later the guards and officials remembered him fondly to the New York Times, calling him “a nice man.” While he tinkered and waited, the government was looking for another country for him. “During his detention,” the Times reported, “he was twice put on French Line ships for return to Europe, but was rejected by England and France.” Hungary didn’t want him, and various Latin American countries didn’t, either.
Throughout, Mezei asked to be let back into the United States, where he was but wasn’t. He filed five habeas corpus petitions to at least get a hearing, and finally he won the fifth. He left Ellis Island under a $3,000 bond, and reported to immigration officials in Buffalo every week while his case continued. During this time in Buffalo, legally speaking he remained on Ellis Island, waiting to see if he’d be able to cross the border into the United States.
The government appealed the grant of habeas and won in the Supreme Court: because Mezei hadn’t entered the United States, the decision went, he didn’t have the same rights to a hearing as if he’d been in the country. It didn’t matter that he’d been detained for so long on Ellis Island, the court said, because “harborage at Ellis Island is not entry into the United States.” The time he spent out on bond in Buffalo didn’t count, either.
After the court’s decision, Mezei headed back to the island to resume his indefinite detention. A photo in the New York Times captured him on this journey: a man in late middle age with graying hair and a neat mustache, dressed in a suit with vest and tie, framed between two bars aboard the ferry. He looked almost jaunty, but the caption called this his “journey to nowhere.” He’d brought along “a bag of upstate apples in one hand and his tools and clothing in the other.” He still struggled with English and, through his Hungarian-speaking attorney, said, “I feel as if I was walking to death.”
His case got press attention. Finally, the U.S. attorney general decided to let him go before a board of special inquiry. The hearing revealed that Mezei’s life had some complications. First, there was a criminal conviction. Back in 1935, he’d bought seven bags of stolen flour and received a ten-dollar fine. His wife attempted to explain: he’d thought she’d ordered the flour, it was a mistake, but no matter—the conviction made him excludable. Then there were the political activities, namely his participation in the Hungarian lodge of the International Workers Order, which had been placed on a list of subversive organizations. Mezei denied being a communist; the government produced witnesses—one later revealed to be a paid perjurer—who testified that he was. On April 19, 1954, the board declared him a security risk, and it seemed he’d be on Ellis Island forever.
In August, though, the Justice Department granted him parole for reasons unknown. As a parolee, Mezei left Ellis Island and boarded a train for Buffalo, all still without legally being in the United States. Even in western New York—where, banned from the Carpenters Union, he subsisted on bottom-of-the-barrel jobs—he took the border with him and never managed to cross over.
A few years ago, I saw that Mezei’s name had come up in the case of seventeen Uighurs, Muslim refugees from China who’d been scooped up in the war on terror and imprisoned at Guantánamo. There they spent year after year in grim isolation, even after the U.S. government determined it had no authority to keep them locked up, because: where to send them? They couldn’t go back to China, which they’d fled and China was pressuring other countries not to take them. So, the Uighurs proposed making their lives in the United States, and why not? The U.S. had reached into Afghanistan and taken the Uighurs. The Obama administration considered the proposal, but the politics got messy. Elected officials from both parties objected, and then Senate Minority Leader Mitch McConnell told the Associated Press that Americans “don’t want these men in their neighborhoods.”
The Uighurs sued and won a favorable ruling from a district court judge, who ordered them released into the U.S. The victory was short-lived: the appeals court reversed with language that chills. “An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at the hands of the United States,” wrote Judge Raymond Randolph. “But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.” In this settled law, he included the decision that would have kept Ignatz Mezei confined to Ellis Island for the rest of his life, without so much as a hearing; many scholars had considered Mezei a legal relic.
I read Judge Randolph’s words and find them astonishing. Shouldn’t the Constitution protect these men—refugees from Chinese repression—from perpetual detention in a prison camp? No, said Judge Randolph, pushing the Uighurs beyond the edge of the Constitution. Despite recent Supreme Court decisions affirming the rights of Guantánamo prisoners, he declared that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”
In this case, I don’t know how to think of the border as anything but a bald exercise of power and a heartless practical joke.
The Uighurs aren’t on Guantánamo anymore. Their lives being not entirely their own, some were sent to Albania, others to Bermuda, Palau, Switzerland, and the last to Slovakia. In 2012, two were shipped off to El Salvador, the country that started me wondering about the oddity of borders.
7. Arrive and Forget
It’s the spring of 1992, I’m in my maternal grandparents’ apartment in Philadelphia, and my grandmother is commenting on the Haitians: specifically, the boat people we’ve seen on television lately, bobbing in overloaded vessels as Coast Guard officers lean from sleek cutters, poised for rescue.
In his working life, my grandfather was a neighborhood pharmacist who’d vaulted himself into the lower middle class. Now my grandmother and he live in a tidy apartment filled with family china and ceramic bowls generous with Pearson’s Coffee Nips and other wrapped candies.
“They’re so ragged looking,” my grandmother says of the Haitians, who are risking their lives to reach the United States.
The Haitian president, Jean-Bertrand Aristide, has been overthrown, and paramilitaries are beating people, killing them, taking over opposition radio, broadcasting threats on its own station. From what my family and I know of Haiti, this kind of violent repression is nothing new; we remember the days of the Duvalier dictatorship, before Aristide’s election, and in my mind I recreate an image of Michele Duvalier, slender and elegant wife of dictator Jean-Claude, smoking a long cigarette as her family flees to the airport in their Mercedes. But the boat people are not elegant, and my grandmother asks, “What can they possibly do here?”
She’s forgotten that she comes from boat people, too. She was born in the Lower East Side in 1908, months after her family landed, following a journey that must have involved trains, worrying, waiting, and bribery, all before the trip over the ocean. They traveled steerage, which reeked of vomit and shit, and they must have reeked themselves when they emerged into sunlight and squinted at their new city. They didn’t have a penny to their name. When my grandmother learned to speak, she learned Yiddish first. What did her family do here in the United States?
I suspect they did pretty much anything they could. They sewed and haggled. They were people in transition, and it’s this transition I see when I look at historical photos of the arriving Jews. I see both their dark foreignness and the Americans they will someday become, two inseparable qualities. For me, that’s the best of the United States: the constant change and renewal, not necessarily a Puritan move toward perfection as much as a fortunate inability to be a single, unchanging thing, no matter how much we may try to fix that. My family slipped past the border before it was drawn against them in 1924, when Congress said no more Jews.
Almost seventy years later, when my grandmother and I looked at the Haitians in their boats, we saw black people whom our government was trying very hard to keep from becoming Americans. I didn’t know then that it had been presidential policy since 1981 to have the Coast Guard net the Haitians before they hit our shores—in fact, before they even reached our territorial waters. Over the years, this policy took different forms. For a time, the Coast Guard was warehousing Haitians on Guantánamo, leaving them to languish in tent camps, if it thought they’d be persecuted in Haiti. The rest the Coast Guard ferried back. Then, in 1992, President George H.W. Bush decided there was no more room at Guantánamo and ordered that, from then on, all Haitians be sent back, refugees or not.
It seems to me that at the heart of Bush’s executive order lay a border control problem as—or even more—complex than the one he was trying to solve. The order announced that the United States had no legal obligations to refugees outside our territorial waters—their rights began only at the border. But what about the power that the U.S. exercised in the name of law enforcement? This didn’t stop at the border. The Coast Guard traveled into the high seas, stopped foreign boats, questioned passengers, demanded papers, and forced the Haitians back to Haiti.
Reaching Port-au-Prince, the Coast Guard had to hose some of the returning refugees off the boats—because the refugees knew what they were facing. As a writer for the Miami New Times, Steve Almond reported the stories that some repatriated Haitians had recounted to the United Nations High Commission on Refugees. They told stories of the military hunting returnees down, herding them onto trucks, shooting them to death. Many fled again.
Haitian community groups sued the administration. In March 1993, the Supreme Court heard the case challenging the new executive order, and the plaintiffs argued that the government was barred from repatriating any refugee, regardless of where it stopped them. The court ruled that the refugee statute and the U.N. treaty on refugees gave the Haitians no protection in international waters and also set no limit on what the U.S. government could do there. The relevant law, the court said, is “completely silent with respect to … possible application to actions taken by a country beyond its own borders.” Only Justice Harry Blackmun dissented.
I first read this decision in the 1990s and still struggle with it. The U.S. was venturing as law enforcers into a place where refugees had no rights. Was it a lawless zone or not? I know people will say this question is naïve. The government was dealing with reality, a challenging refugee crisis, etc.
But that’s not all that’s real. When the Haitians were heading toward Florida, I was a twenty-two-year-old college student and understood nothing about Haiti. I certainly didn’t know that, by 1992, Haiti and the United States had a “long, torrid relationship,” in the words of journalist Amy Wilentz. I don’t think that relationship began only in 1915, when the U.S. invaded Haiti, ostensibly to save it from chaos only to occupy the country until 1934 and establish what historian Donald Cooper called a “thinly-disguised military dictatorship.” Still, the occupation is a pretty significant element of our relationship with Haiti—the starting point for “treat[ing] Haitian governments, at best, as rubber stamps for U.S. policy and for American businesses working in Haiti,” as Wilentz argues—and yet something few Americans know anything about.
This is another thing about the border: it veils what we see and what we know, even about ourselves. It protects our sense of virtue, creates a world in which we can act as empire while believing that we don’t. So, if our law regards Haitian refugees as “strangers,” it may be telling the truth, but they’re only strangers to us; we aren’t strangers to them. And maybe my family and I carry the border, too, but not like the people who are racially marked by it. We’ve assimilated it into our Americanness, so that it changes what we see, and we don’t recognize any part of ourselves in the Haitians anymore.
8. Adorning the Fantasy
When I read the map-making judicial opinions, I fall into their funnel of logic. The justices examine statutory language and precedent, and their conclusions seem inevitable. In the Haitian repatriation decision, Justice John Paul Stevens devotes several paragraphs to discussing whether section 243(h)(1) of the Immigration and Nationality Act applies only to the attorney general or to the executive branch more broadly. Congress carefully drafted the statute, so the distinctions are important if we are to have a government of laws. I walk through the parsing of language and feel the weight of statutory grammar—I’ve drafted legislation, so I know the details matter.
But then I step away from the decisions, and rather than retaining their logic they become patches in a jagged whole. This is the opposite of what occurs with a pointillist painting, where distance produces clarity. Justice Henry Billings Brown seems to experience this incoherence, if for just a moment, in his opinion in Downes v. Bidwell, the Puerto Rican oranges case. He is reviewing the history of the country’s expansion, and he spends page after page examining the legal framework. He looks at the Constitution and its amendments, along with various treaties and statutes. Legally speaking, how has the country brought in new states and territories? His attention to this question is scrupulous and stultifying. Eventually, he turns to the case law and concedes, “The decisions of this court upon this subject have not been altogether harmonious.”
Although, let’s not be coy: this is about power, not just textual interpretation—power braided of words and violence. The words unleash the violence, American hoses pressing down on Haitians, washing them into the hands of military assassins. The Supreme Court said this was legitimate; the border put the Coast Guard beyond law. We used law to escape law. I want to ask how we can make sense of this, though I also don’t want to ask. There is a way to make sense, but that sense comes with its own brutality and silences.
It’s been more than a year since Charles Schumer announced the bipartisan immigration reform proposal. The Senate passed a bill, but nothing is happening in the House of Representatives; border security is a priority for Republicans, we hear. It’s important to Democrats, too, but neither party means border security for people who aren’t us.
I can’t imagine that Crow Dog, on his way to New York City to perform his Indianness, believed that the borders of the United States had provided him national security, or much security at all. And what about the Uighurs, who’d escaped persecution in China and initially had seen the American troops as liberators? “We were happy when we were handed over to the Americans,” Abu Bakker Qassim told the BBC in 2012. “They usually help Uighurs.” This time the American government didn’t help. It banished the Uighurs to a dismal detention camp on Guantánamo and then cast them out to Albania, Palau, and other places they had no reason to know anything about. The border didn’t protect them at all. It’s not “high-mindedness” to say that border security—or the meaning of the border itself—is a matter of perspective. It’s nothing so abstract.
The border isn’t a place. It’s a tool we put to use. As I write, the border is on the move, doing its work. Border Patrol agents and state troopers are roaming highways, demanding to see people’s papers, and the border is moving with them. The agents are sorting who belongs from who doesn’t. But the border doesn’t just divide us. It also connects us in ways that can be brutal, like a torturer’s line of electricity. It ties us to the Uighurs we confined in Guantánamo and the Haitians we repatriated. When I interviewed Salvadorans in Seattle, I saw the weight of the border on them: we can do what we want in your country, but you don’t belong here. The denial of a relationship is part of the relationship. So, it makes sense that we’d want to think the border is elsewhere, confined to a distant desert. We can adorn this fantasy with troops and electronic surveillance and place faith in it. But I doubt that will give us border security. Even in our most vivid imagination, we have no idea what a secure border would look like. We’ve never seen such a thing.
Julie Chinitz has worked in public policy and community organizing since 2000 and is the former policy director at Alliance for a Just Society in Seattle.