Trust, privilege, and discretion in the governance of the US borderlands with Mexico

Canadian Journal of Law and Society

Volumn 24, Issue 3, 2009, Pages 367-390

  Heyman, Josiah McC ^a  

^a UNIVERSITY OF TEXAS AT EL PASO   (United States)

Author keywords

Borders; Discretion; Migration; Mobility; Risk; Trust

Indexed keywords

EID: 77951431122     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100010085     Document Type: Article

References (96)

1. Genevieve Bouchard and Barbara Wake Carroll, "Policy-Making and Administrative Discretion: The Case of Immigration in Canada," Canadian Public Administration 45 (2002), 239;
2. Loraine Gelsthorpe and Nicola Padfield, "Introduction," in Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond, ed. Loraine Gelsthorpe and Nicola Padfield (Cullompton, UK: Willan, 2003), 1;
3. Janet A. Gilboy, "Deciding Who Gets In: Decisionmaking by Immigration Inspectors," Law and Society Review 25 (1991), 571;
4. Janet A. Gilboy, "Penetrability of Administrative Systems: Political 'Casework' and Immigration Inspections," Law and Society Review 26 (1992), 273;
5. Keith Hawkins, "The Use of Legal Discretion: Perspectives from Law and Social Science," in The Uses of Discretion, ed. Keith Hawkins (Oxford: Clarendon, 1992), 1;
6. Keith Hawkins, Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency (Oxford: Oxford University Press, 2002);
7. Laura Pottie and Lome Sossin, "Demystifying the Boundaries of Public Law: Policy, Discretion and Social Welfare," UBC Law Review 38 (2005), 147;
8. Anna Pratt, "Dunking the Doughnut: Discretionary Power, Law and the Administration of the Canadian Immigration Act," Social and Legal Studies 8 (1999), 199;
9. Anna Pratt, Securing Borders: Detention and Deportation in Canada (Vancouver. UBC Press, 2005);
10. Lome Sossin, "Discretion Unbound: Reconciling the Charter and Soft Law," Canadian Public Administration 45 (2003), 465.
11. Pratt, "Dunking the Doughnut" 220.
12. Hawkins, Law as Last Resort.
13. To be precise, an exception is those situations where front-line officials must act on all applicants for a legal benefit, which may also entail decisions about punitive actions. Relevant examples are Bouchard and Carroll's study of applicants for Canadian immigration ("Policy-Making and Administrative Discretion") and Weber's study of applicants for asylum in the United Kingdom: Leanne Weber, "Decisions to Detain Asylum Seekers-Routine, Duty or Individual Choice?" in Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond, ed. Loraine Gelsthorpe and Nicola Padfield (Cullompton, UK: Willan, 2003), 164.
14. Hawkins, Law as Last Resort, ix, 17, 19, 425.
15. See the voluminous citations in Gelsthorpe and Padfield, "Introduction," 7;
16. this is a central theme in Jerome H. Skolnick, Justice without Trial: Law Enforcement in Democratic Society (New York: John Wiley, 1966).
17. The fundamental work on front-line bureaucrats is Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage, 1980).
18. Bouchard and Carroll, "Policy-Making and Administrative Discretion,"
19. and Sossin, "Discretion Unbound," emphasize the importance of understanding the practices, training, guidelines, and so forth of street-level bureaucrats for the study of discretion in law.
20. The key work is Steven Lukes, Power: A Radical View (London: Macmillan, 1974), and previous studies of non-decision-making cited therein.
21. Much the same point is made in Gilboy, "Penetrability of Administrative Systems," 300.
22. Peter Adey, "Secured and Sorted Mobilities: Examples from the Airport," Surveillance and Society 1 (2004), 500;
23. Oscar H. Gandy, The Panoptic Sort: A Political Economy of Personal Information (Boulder, CO: Westview Press, 1993);
24. David Lyon, "Airport Screening, Surveillance and Social Sorting: Canadian Responses to 9/11 in Context" Canadian Journal of Criminology and Criminal Justice 48 (2006), 397.
25. This analysis of policing as assessing the social-constructing signs of risk benefits from Richard V. Ericson and Kevin D. Haggerty, Policing the Risk Society (Toronto: University of Toronto Press, 1997), although my analysis does not address the wider web of risk communication that they explore (but see the brief discussion of electronically accessible watchlists at ports of entry and checkpoints).
26. Pratt, Securing Borders. Trust (contrasted with risk) also lurks behind the scenes in Hawkins' magisterial work, without ever being explicitly interrogated-for example, in health and safety officers' decisions to use informal negotiation and education with businesses that they trust to comply.
27. See Hawkins, Law as Last Resort.
28. The social scientific literature refers either to interpersonal trust (e.g., Carlos G. Vélez-Ibáñez, Bonds of Mutual Trust: The Cultural System of Rotating Credit Associations among Urban Mexicans and Chicanos (New Brunswick, NJ: Rutgers University Press, 1983)) or to trust in overarching social institutions
29. (e.g., Anthony Gidde Consequences of Modernity (Stanford, CA: Stanford University Press, 1990)). My use of trust points instead to inequalities in trust accorded to specific social "types," a middle ground between the other two usages.
30. Michael S. Kimmel and Abby L. Ferber, eds., Privilege: A Reader (Boulder, CO: Westview Press, 2003).
31. Adey, "Secured and Sorted Mobilities";
32. Louise Amoore, "Biometric Borders: Governing Mobilities in the War on Terror," Political Geography 25 (2006), 336;
33. Matthew Sparke, "A Neoliberal Nexus: Economy, Security and the Biopolitics of Citizenship on the Border," Political Geography 25 (2006), 151;
34. Mark B. Salter, "Passports, Mobility, and Security: How Smart Can the Border Be?" International Studies Perspectives 5 (2004), 71;
35. Dean Wilson, "Biometrics, Borders and the Ideal Suspect," in Borders, Mobility and Technologies of Control, ed. Sharon Pickering and Leanne Weber (Dordrecht: Springer, 2006), 87;
36. Dean Wilson, "Australian Biometrics and Global Surveillance," International Criminal Justice Review 17 (2007), 207;
37. Dean Wilson and Leanne Weber, "Surveillance, Risk and Preemption on the Australian Border," Surveillance and Society 5 (2008), 121.
38. The literature's concentration on increasingly explicit and powerful formal programs inadvertently gives the misleading impression that differential sorting and treatment in mobility is new or is more markedly unequal than in the recent past. Consideration of informal sorting practices shows that such features are deeply rooted and that they have significant effects even without networked and computer-processed databases and without formal trusted-traveller programs. Furthermore, formalized programs do not simply eliminate discretion but rather, combine in new ways (as discussed in the text) important continuing elements of officer- and management-level discretion with more explicit forms of differential treatment.
39. Pratt, Securing Borders.
40. It is well known in criminology that the level and focus of policing, including discretion exercised by street-level officers, have profound effects on apparent crime rates. See Peter K. Manning, Police Work: The Social Organization of Policing (Cambridge, MA: MIT Press, 1977), 131-32, 279-293
41. Hawkins, Law as Last Resort, 42-59.
42. About 90% of all migration arrests are made by the Border Patrol, and over 98% of those are made at the south-west border, almost entirely of EWIs, while demographers estimate that about 45% of all unauthorized migrants come to the United States through legal modes of entry and only later violate the terms of their visas. See Modes of Entry for the Unauthorized Migrant Population (Pew Hispanic Center fact sheet, May 22, 2006), http://pewhispanic.org/files/ factsheets/19.pdf
43. Aaron Terrazas, Immigration Enforcement in the United States http://www.migrationinformation.org/USFocus/display.cfm?ID=697#11 (Migration Information Source, October 2008).
44. Guillermina Gina Nunez and Josiah McC Heyman, "Entrapment Processes and Immigrant Communities in a Time of Heightened Border Vigilance," Human Organization 66 (2007), 354.
45. See United States v. Martinez-Fuerte, 428 U.S. 543 (1976);
46. United States v. Massie, 65 F.3d 843 (10th Cir. 1995);
47. United States v. Rascon-Ortiz, 994 F.2d 749 (10th Cir. 1993),
48. and the discussion in Bill Ong Hing, Defining America through Immigration Policy (Philadelphia: Temple University Press, 2003), 140-142
49. United States v. Brignoni-Ponce, 422 U.S. 873 (1975);
50. also see United States v. Almeida-Sanchez, 413 U.S. 266 (1973).
51. Robert Lee Maril, Patrolling Chaos: The U.S. Border Patrol in Deep South Texas (Lubbock: Texas Tech University Press, 2004).
52. On this phenomenon see Skolnick, Justice without Trial.
53. On unauthorized residency see Modes of Entry; also see Michael Quintanilla and Peter Copeland, "'Mexican Maids': El Paso's Worst Kept Secret," in U.S.-Mexico Borderlands: Historical and Contemporary Perspectives, ed. Oscar J. Martínez (Wilmington, DE: Scholarly Resources, 1996), 213.
54. See SENTRI Program Description: Secure Electronic Network for Travelers Rapid Inspection (US Customs and Border Protection, 2009), http://www.customs. gov/xp/cgov/travel/trusted-traveler/sentri/sentri.xml.
55. I make this generalization about the composition of SENTRI participants with confidence, based on my "local knowledge," but it has no rigorous empirical verification.
56. Most people who cross the border are entered into deportation proceedings, an administrative (not criminal) process; they may be offered and accept voluntary departure, which bypasses formal deportation (and thus truncates any further review); some are formally deported, a choice that involves complex discretionary decisionmaking at several immigration policing and judiciary levels. Illegal entry is the criminal form of entry without inspection (8 U.S.C § 1325) that can be proposed by Border Patrol officers, with the approval of managers, for prosecution by federal attorneys. Until recently, it was a rare charge, sometimes used to discipline perceived bad actors, smugglers, and so on. Recently, it has been applied by policy uniformly to all arrestees in certain low-volume sectors of the border region and at the discretion of Border Patrol managers and federal prosecutors in some higher-volume sectors. The misdemeanour charge is used for first-time offenders, but repeat unauthorized crossers are sometimes charged with felony illegal entry. See the data compiled by Transactional Records Access Clearinghouse (TRAC), Immigration Enforcement: The Rhetoric, the Reality (Trac Reports Inc., 2007), http://trac.syr.edu/immigration/reports/178/; and TRAC, Surge in Immigration Prosecutions Continues (TRAC Reports Inc., 2008), http://trac.syr.edu/immigration/reports/188/.
57. On everyday Border Patrol tactics near the boundary see Maril, Patrolling Chaos.
58. Maril, Patrolling Chaos.
59. Timothy J. Dunn, Blockading the Border and Human Rights: The El Paso Operation That Remade Immigration Enforcement (Austin: University of Texas Press, 2009).
60. Timothy J. Dunn, Blockading the Border and Human Rights: The El Paso Operation That Remade Immigration Enforcement, 2009, Ibid.
61. See Quintanilla and Copeland, "Mexican Maids," and
62. Gilboy, "Penetrability of Administrative Systems," 302.
63. Local law-enforcement entities (city police departments, county sheriffs, state police) represent a significant presence in these zones of everyday life in the borderlands. These entities vary m terms of whether or not they try, during minor contacts such as traffic stops, to insist on identification of nationality and immigration status and to hold possible unauthorized immigrants for turnover to federal authorities. Local jails also vary in their policies of identification and turnover for various levels of crime. And federal officers have discretion as to whether or not to accept inquiries/turnovers from non-federal lawenforcement personnel. See Mathew Coleman, "Immigration Geopolitics Beyond the Mexico-US Border," Antipode 38 (2007), 54, who discusses these issues for the interior of the country.
64. Minor border laws (e.g., unauthorized pharmaceutical importation) are enforced sporadically, either by specialized investigations, because of obvious nervousness on the part of a border crosser, or by an attentive officer who cares to make the extra, largely unrewarded effort.
65. On officer frameworks see Josiah McC Heyman, "Putting Power into the Anthropology of Bureaucracy: The Immigration and Naturalization Service at the Mexico-United States Border," Current Anthropology 36 (1995), 261;
66. Josiah McC. Heyman, "Respect for Outsiders? Respect for the Law? The Moral Evaluation of High-Scale Issues by US Immigration Officers," Journal of the Royal Anthropological Institute (n.s.) 6 (2000), 635;
67. Josiah McC Heyman, "Class and Classification on the U.S.-Mexico Border," Human Organization 60 (2001), 128.
68. On ideologies in the wider society see Jonathan X. Inda, Targeting Immigrants: Government, Technology, and Ethics (Oxford: Blackwell, 2005);
69. Joseph Nevins, Operation Gatekeeper: The Rise of the "Illegal Alien " and the Making of the US-Mexico Boundary (New York: Routledge, 2002);
70. Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modem America (Princeton, NJ: Princeton University Press, 2004).
71. On the concept of "symbolic assailant" in policing see Skolnick, Justice without Trial.
72. Robert S. Leiken and Steven Brooke, "The Quantitative Analysis of Terrorism and Immigration: An Initial Exploration," Terrorism and Political Violence 18 (2006), 503.
73. See Maril, Patrolling Chaos.
74. This discussion is based on my ethnographic research (see note 36 above), supplemented by Gilboy's work, which was done mostly at an airport not located on a border (see note 1 above).
75. US Government Accountability Office, Border Security: Despite Progress, Weaknesses in Traveler Inspections Exist at Our Nation's Ports of Entry (Report 08-219, 2007);
76. also see Nicholas Dudley Ward et al., "Observed and Perceived Inconsistencies in U.S. Border Inspections," Journal of Homeland Security and Emergency Management 5, 1 (2008), art. 17, http://www.bepress.com/jhsem/ vol5/iss1/17.
77. A (then) Border Patrol officer described his sorting task at a highway checkpoint as follows: "We stopped cars from the south [Mexico] or U.S. border states with Hispanic people in the car. We were not trying to discriminate, but the numbers of Hispanics you catch are tremendous; really, it's almost only Hispanics." He subsequently sought to separate his personal identity from the discriminatory implications of this organizational imperative. This highly interesting interview is reproduced in Josiah McC Heyman, "U.S. Immigration Officers of Mexican Ancestry as Mexican Americans, Citizens, and Immigration Police," Current Anthropology 43 (2002), 489.
78. For simplicity of presentation, I have listed individual characteristics, but another layer of decision making has to do with combinations of individuals and the officer's socially based stories about what such a group might be doing together (e.g., a darker-skinned and/or poorer family group may be targeted as a possible case of transporting unauthorized children, whereas an apparently richer or whiter family group is highly unlikely to be stopped, thanks to a mental interpretation about their more likely social legitimacy as travellers within the United States).
79. E.g., Gilboy "Deciding Who Gets In."
80. Non-US, non-Mexican nationals are sorted in complex ways; for example, officials might not be highly suspicious of Europeans or Canadians (who are presumed to be tourists) while being very suspicious of Middle Easterners and South Asians (as potential terrorists).
81. This concept is discussed in Heyman, "Class and Classification" ;
82. similar observations are offered by Gilboy, "Deciding Who Gets In."
83. On "belonging" and "belongers" see Bill Maurer, Recharting the Caribbean: Land, Law and Citizenship in the British Virgin Islands (Ann Arbon University of Michigan Press, 1997);
84. also see "circles of membership": T. Alexander Aleinikoff, "The Tightening Circle of Membership," Hastings Constitutional Law Quarterly 22 (1995), 915.
85. E.g., nationality in Nevins, Operation Gatekeeper,
86. class relations/surplus value transfer in Heyman, "Class and Classification"; legality in Inda,
87. Targeting Immigrants; and race in Hing, Defining America.
88. Josiah McC. Heyman, "Constructing a Virtual Wall: Race and Citizenship in U.S.-Mexico Border Policing," Journal of the Southwest 50 (2008), 305.
89. Jason Ackleson, "Border Security in Risk Society," Journal of Borderlands Studies 20 (2005), 1;
90. Peter Andreas, Border Games: Policing the U.S.-Mexico Divide (Ithaca, NY: Cornell University Press, 2000);
91. Peter Andreas, "A Tale of Two Borders: The U.S.-Canada and U.S.-Mexico Lines After 9-11," in The Rebordering of North America: Integration and Exclusion in a New Security Context, ed. Peter Andreas and Thomas J. Biersteker (New York: Routledge, 2003), 1;
92. Josiah McC Heyman, "Why Interdiction? Immigration Law Enforcement at the United States-Mexico Border," Regional Studies 33 (1999), 619;
93. Nevins, Operation Gatekeeper.
94. Gilboy, "Penetrability of Administrative Systems."
95. On the topic of inequality in mobility, including its governance, see Hilary Cunningham and Josiah McC Heyman, "Introduction: Mobilities and Enclosures at Borders," Identities 11 (2004), 289;
96. Robert Pallitto and Josiah McC. Heyman, "Theorizing Cross-Border Mobility: Surveillance, Security and Identity," Surveillance and Society 5 (2008), 315, http://www.surveillance-and-society.org/articles5(3)/mobility.pdf (last accessed Jan. 12, 2009).