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Guest Post: Texans in Purgatory as Immigration Debate Begins


by: Katherine Haenschen

Thu Apr 18, 2013 at 11:10 AM CDT


As Congress begins debate on comprehensive immigration reform, attorney Austin Kaplan brings us a guest post about why both Texas Senators and all of our Congressmembers need to support this reform.  


Texans in Purgatory as Immigration Debate Begins
By Austin Kaplan

Here is why everyone in Texas, especially our Senators, should support the bipartisan federal immigration bill that provides provisional status and a path to citizenship for undocumented people: unbeknownst to many Texans, more than an estimated 1 million undocumented people who live in Texas' Rio Grande Valley cannot leave it.  They are bounded in by internal highway "border" checkpoints - located miles north of the actual border on each highway leaving the Valley- at which every single car is stopped and its passengers questioned.  The effect of these checkpoints is to doom undocumented residents who already live here to a kind of Texas purgatory - they are neither fully in Mexico, nor fully in Texas.  They live in the Valley, which, for them, might as well be a third country.

The Valley is the southernmost portion of Texas, located along the 1,254 mile border with Mexico.  This is the longest border with Mexico of any state.  The border region, or bounded area in which checkpoints can operate, stretches as far as 100 miles north of the actual border.  So, it follows that Texas would have the largest population bounded in by function of checkpoints.  

Continue reading below the jump...  

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This issue, and the harm it causes, was addressed at the recent New Leaders South Texas Summit by U.T. Pan-American President Robert Nelson.  He used a simple example: a nursing student, who grew up in the Valley and studied her whole life to become a nurse, was prepared to take the required nursing licensure exam.  Of course, it is well documented that Texas desperately needs nurses.  But, there was a problem.  The nursing exam wasn't given anywhere in the Valley until 2011.  In fact, the closest testing locations were in San Antonio or Corpus Christi - both of which were located beyond checkpoints.  This student would risk deportation by driving to the locations to sit for the test, so she didn't take it.

Nelsen also told a story about a legislator in Austin, who once asked Nelsen to invite a group of undocumented university students come to the Capitol to testify.  Austin, however, like Corpus Christi, and like San Antonio, lies beyond the checkpoints; the students simply could not risk the trip; they could not get to Austin.  The well-meaning legislator had asked the students to do something they simply could not do.  

Examples like this abound in Texas from the mundane to the critical.  At one end of the spectrum, children who live in the Valley cannot do something as innocuous as visit Dallas or Houston, or even see the Alamo.  More seriously, however, Texas Child Protective Services Caseworkers - who are required to care for children regardless of their immigration status - no longer move undocumented children through checkpoints, regardless of what treatment they need.  And, since 2003, Texas has required women seeking abortions in their second trimester to go to ambulatory surgical centers, but none exist in the Valley.  Undocumented women who seek second trimester abortions must either risk deportation at a checkpoint, cross into Mexico for an illegal procedure, or acquire abortion-inducing drugs from unregulated pharmacies.  

Of course, so many of these people are, as far as anyone can tell, honest-to-goodness Texans.  They have lived in Texas for as long as they can remember, they have never been to Mexico, they have families in Texas (which usually include a mix of citizens and non-citizens), they pay sales tax in Texas, they purchase their cars in Texas, and they do their food shopping at a Texas supermarket.  But, just as they can't visit Monterrey, they also can't visit the State Fair of Texas.  

Checkpoints create this purgatory.   The checkpoint at Falfurrias, located 80 miles due north of the actual border between the U.S. and Mexico, is a fixed, 24 hour a day checkpoint at which officers of the U.S. Customs and Border Patrol check every single vehicle for undocumented persons and illegal drugs.  According to CBP's own published statistics, which they have ominously posted on a sign welcoming all drivers heading north, the Falfurrias checkpoint has, in this calendar year alone, captured nearly 10,000 undocumented immigrants. That amounts to more than 3,000 undocumented immigrants a month.  What's shocking is that this checkpoint sits along a mere two-lane highway - a tiny road by Texas standards.  

Every car heading north must stop at this checkpoint, and every passenger is at least briefly questioned.  The process is simple and familiar to anyone who's driven to South Padre Island from points north.  The driver rolls down the window, and the officer asks the following question:  "U.S. citizen?"  If the officer sees anything he or she doesn't like, he or she has the right to detain you for further questions and ultimately to search your vehicle. Of course you can try to avoid answering the initial question.  But, if you happen to be undocumented, this is not a place to try your luck protecting your rights.

Normally under the Fourth Amendment to the Constitution, any person physically inside of the United States has protection against just such arbitrary stops.  The border area is an exception, however, and the prevailing view is that authorities do not need a warrant to conduct one of the stops for brief questioning routinely conducted at permanent immigration checkpoints.  U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976) (finding warrantless vehicle stops at the the Sarita Checkpoint, 90 miles north of Brownsville, consistent with the Fourth Amendment); U.S. v. Machuca-Barrera, 261 F. 3d 425 (5th Cir. 2001) (finding the same with regard to the checkpoint near Marfa).

What's more, racial profiling and other discriminatory reasons can be, and absolutely are, employed in deciding who to search.  The Supreme Court said this about such profiling at checkpoints:  "even if it be assumed that [referrals to secondary inspection] are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation."  Martinez-Fuerte, 428 U.S. at 563.  And, according to the ACLU, if you are selected for a longer interview at the border, you generally do not have the right to an attorney.

Right now, there is no solution to this problem.  President Obama's deferred action program helps - it allows qualified young "dreamers" to gain work permits and avoid deportation.  But, it doesn't cover enough people, it costs $465 just to apply, and as of March 2013 there were only roughly 73,000 applicants from across all of Texas (a small number compared to the estimated one million plus undocumented persons living the in the Valley alone).  

The proposed immigration reform bill moves toward a solution.  Is it a panacea?  No.  Does it address the issue of otherwise law-abiding undocumented people who currently do not have the freedom to travel within Texas?  Yes.  It provides a method for undocumented people to attain "provisional" legal status, which should be enough for them to cross these checkpoints and finally escape from Texas purgatory.  For this reason alone, Texans should support the proposed bipartisan immigration bill.



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