Immigration Clampdown

News: Last summer, two aid volunteers saved some desperately ill Mexicans who'd crossed illegally into Arizona. For their troubles they may end up in jail.

By Andrew Gumbel
Photo: AP/Wide World Photos

January 18, 2006

TOOLS E-mail article Print article BACKTALK E-mail the editor RELATED ARTICLES Scrimmage on the Border: Minutemen Down South, Standoff in Washington

On July 9 last year, a group of eight Mexican migrants made the hazardous journey across the U.S. border into Arizona and, after three days of walking through the blistering desert heat, stumbled into a group of humanitarian aid volunteers near the farming village of Arivaca, about 60 miles southwest of Tucson.

Five of them needed no more than rest, food, water and relatively minor treatment for blisters on their feet before they were on their way again. But the other three were in altogether worse shape. According to several eyewitnesses, they were badly dehydrated and vomiting repeatedly after drinking contaminated water from a cattle trough. One of them, Emil Hidalgo-Solis, later told investigators he was unable to keep anything in his stomach, solid or liquid, and noticed that his diarrhea was streaked with blood.

The aid volunteers, representing a group called No More Deaths, brought the three to their camp in Arivaca and, following standard protocol, discussed the men’s symptoms over the telephone with a registered nurse, who consulted in turn with a physician. Together, they decided the men needed to be brought to Tucson for further examination and treatment.

So far, this was nothing out of the ordinary in a border region where undocumented migrants have lately been crossing—and dying—in record numbers. (More than 280 bodies were recovered from the border region in 2005 alone, up from the previous year, and there is every expectation the number will increase in 2006.) No More Deaths was established in 2002 in direct response to what its members see as a shocking and needless loss of life arising from the inconsistencies and contradictions in U.S. immigration policy. Over the past three years, the group and its dozens of volunteers have established a modus operandi with the Border Patrol permitting it to carry out its mission of distributing food, water, and medical aid more or less unmolested.

But on that day last July something very unusual happened. The two volunteers who drove the sick migrants to Tucson were flagged down by the Border Patrol and arrested along with their charges. According to the Border Patrol, the three men sitting in the back seat of their car were not sick at all—or at least not sick enough for the assistance they received to be regarded as strictly humanitarian in nature.

The volunteers, Daniel Strauss and Shanti Sellz, both 23, were hauled into custody and later indicted on two felony counts carrying a potential sentence of up to 15 years in prison—“transportation in furtherance of an illegal presence in the United States” and “conspiracy to transport in furtherance of an illegal presence in the United States.” In blunter language, they were accused of aiding and abetting a cross-border racket in illegal human smuggling.

The accusation is unprecedented, and has triggered a furor among No More Deaths activists and a growing band of supporters, who see the case as a crucial test of basic human values at a time when immigration is becoming an ever more prominent political issue, and the swelling population of undocumented Mexicans—an estimated 2 million make the crossing each year—is prompting a severe backlash in several border states including Arizona.

For the activists, the charges filed against Strauss and Sellz are an indication that anti-immigrant sentiment is now out of control. “The United States is trying to criminalize the administering of life-saving aid,” said Margo Cowan, a lawyer with No More Deaths who is leading a campaign to exonerate Strauss and Sellz. “We are here to state unequivocally that humanitarian aid is never a crime.”

Barring a last-minute change of heart by the U.S. attorney for Arizona, Sellz and Strauss will stand trial in Tucson in the next two or three months. (The date, originally set for December, has repeatedly been postponed.) For the past several weeks, No More Deaths has convened weekly news conferences at the Southside Presbyterian Church in Tucson—the closest thing the group has to a headquarters—at which religious leaders, lawyers, environmentalists, academics and a former U.S. attorney for southern Arizona have taken turns standing up and condemning their prosecution.

On the other side, U.S. Attorney Paul Charlton has explored various avenues to avoid a trial. Early on, he offered the two defendants a plea deal whereby they would admit their guilt and avoid serving prison time. (They turned him down cold.) More recently, he has been in contact with the No More Deaths leadership to see if they, rather than the two defendants, might be willing to take responsibility for the crimes his office is alleging. One thing Charlton has shown no indication of doing, however, is dropping the charges.

It is far from clear whether Charlton is standing on solid legal ground—many experts who have looked at the charges believe them to be tenuous at best and more than likely, at least under the current statutes, to lead to acquittal. But he has certainly captured the prevailing mood at a time of growing anti-immigrant sentiment across much of the country. A bill sponsored by Wisconsin Republican James Sensenbrenner, the chair of the House Judiciary Committee, would make it a felony offense, not just a violation of immigration law, for foreigners to be present in the United States without the proper papers. The bill, which passed in the House last month and is due shortly before the Senate, would also criminalize anyone rendering assistance to those foreigners—a provision that could well outlaw the entire No More Deaths operation.

Sensenbrenner's is only one of a clutch of new, hard-line proposals. Among other measures being considered by Congress are a fence stretching the full 2000-mile length of the U.S.-Mexican border, from San Diego on the Pacific to Brownsville on the Gulf coast, and a change in rules of U.S. citizenship essentially scrapping the principle, enshrined in the 14th Amendment, that anyone born on U.S. soil has an automatic right to U.S. nationality.

In Arizona, where the passage of Proposition 200 in November 2004 has thrown up barriers to undocumented migrants seeking access to public services, the prosecution of Strauss and Sellz has stirred little public outrage outside a relatively restricted circle of church-based humanitarians with a distinctly anti-authoritarian take on policing the border. Their upcoming trial has been greeted with quiet satisfaction, meanwhile, by the growing number of anti-immigrant groups and would-be vigilantes now setting up operations in the state’s border region. To groups like the Minutemen—and the U.S. Border Patrol, for that matter—cracking down on No More Deaths can only be a good thing because it is one more way of stemming the migratory flow.

“I believe [the volunteers] were aiding and abetting illegal immigration and they were helping those people into the country,” said Glenn Spencer, leader of the well-funded volunteer surveillance group American Patrol, whose house overlooks the border at a remote spot in Cochise County, southeast of Tucson. “We shall see.”

The defendants themselves are more bewildered than alarmed by what is happening. “We don’t know why we were arrested,” said Sellz, a native Iowan who has been coming to Arizona as a volunteer for the past two years. “No volunteers were ever arrested and charged before us, and even after us our volunteers continued to do similar sorts of work.”

According to the defendants’ lawyer, Bill Walker, the case law is entirely on their side. In a 1977 immigration case, the Ninth Circuit Court of Appeals explicitly stated that transporting migrants for the purposes of medical treatment was not a crime. The defense has also produced two letters in which No More Deaths lays out its policy for offering assistance to migrants in trouble, based on what it says were verbal agreements with the Border Patrol and the U.S. Attorney's office. Both offices were invited to offer comments or objections, but do not appear to have done so.*

Walker said he thought the arrests were principally a matter of incompetence. Humanitarian volunteers had been detained in the past, he said, but were usually released immediately once the circumstances were explained to the arresting officer. On this occasion, though, the arrests occurred on a weekend, and the decision on what do about them fell to a duty attorney who had been working in the border region for just three months. “She validated the arrests and the next thing you know they were charged,” Walker said. “I think they made a terrible mistake and now they feel they can’t back down.” The duty attorney, Irene Feldman, is now the lead prosecutor in the case.

The Border Patrol, naturally, sees things rather differently. At a pre-trial hearing, the chief of the service’s Tucson sector, Michael Nicley, explained that he had introduced an explicit change of policy several months before the arrests requiring church groups and other humanitarian volunteers to inform the Border Patrol any time they wanted to lend assistance to sick migrants. This, he said, was something Sellz and Strauss did not do, and as far as he was concerned they deserved “no special dispensation.”

The U.S. magistrate presiding over the pre-trial proceedings, Judge Bernard P. Velasco, indicated strongly that his sympathies were on the government’s side. It was one thing to offer medical assistance in the desert, he said in a ruling denying a motion to dismiss the charges ahead of trial, but quite another to drive people into a big city. “The issue… is whether the illegal aliens treated at Southside Presbyterian Church and thereafter allowed to melt into Tucson, Arizona, have been assisted ‘in furtherance’ of their illegal entry,” he said. “The answer is yes.”

Whatever the legal justification for such an opinion—something the trial judge will have to decide along with the jury—it certainly marks a sharp departure from even a couple of years ago, when the Border Patrol itself would routinely escort sick migrants to hospital and then allow them to “melt” into the general population. Several hundred new recruits have swelled the Border Patrol ranks since then, in Arizona and elsewhere, and with them has come an unmistakable hardening of attitudes. One of the issues likely to be passionately debated at the trial of Strauss and Sellz is whether the behavior of the new officers is an overzealous interpretation of official policy, or a sign that the policy itself has changed.

In an interview, Sellz gave a gripping account of what she regarded as the shocking mistreatment of migrants apprehended at the border, and the lackadaisical attitude of the officers who acted as their jailers. She said she overheard one Border Patrol officer boasting: “You think we treat them bad in Guantanamo Bay—you should see how we treat them in the Border Patrol.” She said she, Strauss and the men arrested with them were held without food or water for several hours at the Border Patrol’s Tucson headquarters. The migrants were offered no medical assistance.

In the middle of the night, she and Strauss were transferred to a short-term holding facility where she said she had to crawl over the bodies of her fellow detainees to find a space to sleep on the floor. The only food available there were day-old burgers supplied by local fast-food restaurants. “It felt like a prisoner-of-war camp to me,” she said. “I felt appalled that’s the way my country treats people.”

Strauss and Sellz were released as soon as they were arraigned, and two of the migrants arrested with them, a father and son, were deported almost immediately. But the third, Hidalgo-Solis, was held as a material witness in the case and detained for about a month before he, too, was deported. In his deposition, Hidalgo-Solis not only described the precarious medical condition he was in when he was found by No More Deaths. He also said that without them he believed he would not have survived.

*CORRECTION: The second half of this paragraph originally read: "The defense has also produced two letters, one from the Border Patrol and another from an assistant U.S. Attorney, essentially approving No More Deaths’ policy for offering assistance to migrants in trouble." In fact, No More Deaths was the source of the two letters. This was based on information provided by Bill Walker, the volunteers' defense lawyer. We regret the error.

Andrew Gumbel is a U.S. correspondent for the London newspaper The Independent, based in Los Angeles, and the author of the newly published Steal This Vote: Dirty Elections and the Rotten History of Democracy in America. He also writes the award-winning American Babylon column for the alternative Los Angeles weekly LA CityBeat.

Comments: