U.S. Border Patrol Abuses, Undocumented Mexican Workers, and International Human Rights JORGE A. VARGAS* TABLE OF CONTENTS 1. INTRODUCTION ................................................................................................. 3 A. Long Journey From the South to "El Norte" Seeded with Hope and Dangers.............................................................. 5 1. History, Geography,and Economics: The Three FundamentalReasons for Mexican Migration...................... 5 * Professor of Law, University of San Diego School of Law. Visiting Scholar, Center for U.S.-Mexican Studies, University of California, San Diego, Fall 1999; Visiting Scholar, New York University School of Law, International Global Program, October 1999. LL.B., summa cum laude, Mexico's National Autonomous University, Mexico City; LL.M. and J.S.D. (Candidate), Yale Law School. Prof. Vargas served as Legal Advisor to Mexico's Secretariat of Foreign Affairs; Secretary, Mexican Section, International Boundary and Water Commission between Mexico and Guatemala; Professor at Iberoamericana, UNAM and Anldhuac Law Schools; founder and former Director of USD's Mexico-United States Law Institute 1983-1987. Lecturer, Fulbright Border Lectureship Program in 1992. The author would like to express his personal thanks to Professor Daniel B. Rodriguez, Dean of the University of San Diego School of Law, for his generous research grant for the preparation and completion of this article. The author would also like to extend his personal recognition to Maureen Arnn, Angela Mullins and Carlos Guzman, USD law students, for their diligent research assistance to this article, and to Ms. Magali Garcfa, who efficiently prepared the final version of this work. The author verifies the accuracy of the Spanish language cites and all English translations. Since 1995, Prof. Vargas has maintained a website on Mexican Law, available at http://www.mexlaw.com. To my dear friend, Roberto Martinez, a pioneer in the defense of human rights along the U.S.-Mexican border. 2. Mexico: The Leading Source Country of Undocumented Immigration to the United States ........................ 7 3. The Remote Origins and PeriodicCauses of Mexican Migrations to "El Norte ............................................ 10 4. Tijuana is the "Magnet City"for Potential Undocumented Entrants ................................................................ 17 5. Why Do Mexicans become "Undocumented Aliens" in the United States?....................................................................... 19 B. Two Categoriesof Undocumented Persons.......................................... 21 /. The Undocumented Temporary Agricultural Worker ..................... 21 2. The Undocumented Worker Who Intends to Remain in the United States ....................................................................... 25 C. Strategies Used by Undocumented Persons to Cross the B order............................................................................................ 26 /. El B rinco ...................................................................................... 27 2. El B ordo ....................................................................................... 28 3. El Camp de Futbol ......................................................................... 28 D. Reflections About Undocumented Migrants ......................................... 28 1I. ORIGIN AND EVOLUTION OF THE U.S. BORDER PATROL .................................... 31 A. Origins of the U.S. Border Patrol.......................................................... 33 B. Enforcement Powers of Border PatrolAgents ...................................... 36 C. Training of Border PatrolAgents .......................................................... 37 III. ABUSES AND VIOLATIONS INFLICTED UPON UNDOCUMENTED PERSONS BY U.S. BORDER PATROL AGENTS ...................................................... 37 A. Selective Narratives of Abuses Inflicted by U.S. Border PatrolAgents to Mexican Undocumented Entrants................... 42 1. Shootings .........................................................................................43 a. Case of Victor Mandujano Navarro (September 1990) ........... 44 b. Case of Eduardo Zamores (November 1990) .......................... 44 c. Case of Humberto CarrilloEstrada (April 1985) .................... 45 d. Case of Francisco Ruiz Chdvez and Evelyn Castaileda Serna (March 1989) ................................................................ 47 e. Case of Darfo Miranda Valenzuela ....................................... 48 f Case of Martin GarctaMartfnez (May 1994) .......................... 50 2. B eatings....................................................................................... 52 3. Selected Narrativesof Beatings ..................................................... 55 a. Case of Ismael Ram(rez and other M exican Victim s .................................................................... 55 b. Case of Mario Ram6n Ferndndez Martinez............................. 57 c. Case of Daniel Rodriguez ........................................................ 58 d. Case of Unnamed Mexican Woman ........................................ 59 4. FactualConclusions Derivedfrom the Analysis of Abusive Narratives ......................................................................... 61 IV. OPERATION GATEKEEPER AND ITS TOLL: 624 DEATHS.. AND STILL COUNTING .................................................................... 64 V. INTERNATIONAL HUMAN RIGHTS AND UNDOCUMENTED M EXICAN W ORKERS ............................................................................................. 74 A. The InternationalConvention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990 .......... 77 [VOL. 2: 1, 2001] U.S. Border PatrolAbuses SAN DIEGO INT'L L.J. B. At the Bilateral Level Between the United States and Mexico ................................................................................................. 79 VI. C ONCLUSIONS ................................................................................................. 85 A N N EX ........................................................................................................................ 89 I. INTRODUCTION Since the ending of the "Bracero Program" in 1964, Americans have become increasingly accustomed to seeing foreign migratory workers, legal and illegal, become an almost ubiquitous component of the American landscape. In a simplistic manner, one may say that the labor abilities of these foreign workers generally tend to gravitate towards four key areas of the U.S. economy: 1) food preparation, 2) care for children and the elderly, 3) cleaning of homes, and, especially, 4) arduous agricultural work. For their abilities, they are well recognized as outstanding chefs and waiters, loving babysitters, patient Spanish teachers, and generous providers of care and affection to elderly people. They are also known to be diligent janitors and maids, superior gardeners and nursery specialists, and reliable agricultural workers. Their almost indispensable presence in the fabric of the U.S. society has also served to introduce Americans to the sounds of foreign tongues, music, and the flavors of alien foods and exotic tastes. From quite a contrasting perspective, Americans have also grown familiar with the dark side associated with foreign migratory workers: the mistreatment, abuse, and exploitation America and Americans are inflicting upon them. Unfortunately, we have become familiar to hearing racial insults being proffered against them or witnessing discriminatory practices affecting them, and remain aloof and indifferent. We, Americans, have witnessed the inhumane and sordid living conditions where these foreign migratory workers live, commonly described as "spider webs" by the local newspapers. It is in these "spider webs" that they not only eat and sleep but sometimes dare to dream, for months and years, suffering through a lack of electricity, running water, and sanitary facilities. America and her Americans have done little to change these appalling conditions. It is almost unbelievable that we have read about the brutal and violent raids that renegade military enlisted personnel (and even teenagers from affluent communities) have committed, attacking, torturing, injuring and killing foreign workers using guns, rifles, pellets, and rocks. We, Americans remain passive and say nothing about these atrocities. Have we changed our values and traditions so profoundly? Furthermore, each year, U.S. Border Patrol agents mistreat, abuse, injure, and kill hundreds of undocumented migratory workers along our border with Mexico. Launched in October 1994, the latest immigration enforcement strategy designed by military experts for the Immigration and Naturalization Service (INS) is "Operation Gatekeeper." Since its establishment, the death toll of undocumented migratory workers has risen dramatically. ' The violence, brutality, and frequent occurrences of these practices are so abhorrent, that one would think and expect that these inhumane actions would trigger a vigorous national outcry of all Americans to put an immediate and permanent end to them. Alas, six years have elapsed since Operation Gatekeeper was initiated and there has been no objection at all. Have we, Americans, become so insensitive, and America so callous, that we simply do not care about the hundreds of deaths of Mexican migratory workers which are taking place at