The Routledge Companion To Literature And Human Rights

Human Rights and Cultural Representations of Mexico-US Border Migration

Claudia Sadowski-Smith

Migration to the United States has long been understood as a concern of US national policy rather than as a human rights issue. After all, membership in the US nation is conferred by the US state; it is granted to children whose parents are citizens (jus sanguinis) or who were born on the territory of the United States (jus soli). Alternatively, citizenship can be acquired through naturalization. US citizenship provides access to what Linda Bosniak has called “internal citizenship rights” in the civil, political, and social realms, such as the right to vote and stand for elections; free choice of employment and other employment-related rights; as well as access to public services and welfare benefits. The status of noncitizens who live on US territory is regulated by US immigration law. Their temporary or permanent legal status largely affords them access to some of the same internal rights, but cannot vote, can be denied Medicare benefits, and can be excluded from certain public sector jobs (Bosniak 2006: 34, 49). Independently of legal status, however, any US noncitizen is potentially deportable.

The tightening of US immigration and refugee law in the last few decades has transformed a large portion of arrivals into undocumented immigrants who not only lack the legal right to enter, reside, or work in the United States, but who are also becoming increasingly deprived of basic internal citizenship rights. The majority of unauthorized migrants hail from Mexico and Central America, and enter the United States clandestinely via its southern border to become part of the unskilled labor supply. In the emerging “security” state (Hyatt 2011: 105), these migrants have become subject to more restrictive state laws as well as to tightened enforcement of federal US legislation that has taken the form of expedited deportation proceedings, increased incarcerations, removals, and deportations (Chacón 2007; Miller 2005; Provine and Doty 2011; Chin et al. 2010).

Because debates about undocumented immigration have long focused on issues of admission and exclusion, they have centered on demands for comprehensive immigration reform, which would provide a pathway to legalization for unauthorized migrants who are already here. Most recently, the US president provided temporary relief from deportation to a small portion of this population, including young migrants who came to the United States as children and the parents of US citizens and lawful permanent residents who have resided in the country since 2010. While these measures ameliorate conditions for some US undocumented immigrants, they do not address the gap created by US policies that produce large numbers of undocumented immigrants and then increasingly deprive them of internal citizenship rights. This process also leads to violations of migrants’ human rights. For example, expedited US deportation proceedings in which incarcerated migrants can neither examine nor confront evidence for their detention not only deprive them of US legal protections but also deny them the human right of equal treatment and protections before criminal courts. In addition, the separation of families as a result of immigration enforcement violates human rights declarations and international conventions on the protection of children (Meneses 2003–4: 280).

With the exception of human trafficking, however, human rights declarations have so far been somewhat quiet on the issue of immigrant rights. Declarations like the 2000 UN Convention against Transnational Organized Crime that have identified human trafficking as a human rights violation have isolated this phenomenon from the tightening of various border and immigration regimes (Pécoud and De Guchteneire 2006: 73). While the Universal Declaration of Human Rights (Article 13–2) (1948) declares the right to leave and to return to one’s country, it is silent on the right to immigrate (Pécoud and De Guchteneire 2006: 69). And fewer than 50 countries, none of them major immigration nations, have ratified the 1990 UN human rights treaty that deals with the rights of migrant workers and their families (Ruhs 2013: 13).

Recent cultural representations of Mexico-US border crossings, such as the 2007 novel The Guardians by Ana Castillo and the 2013 documentary The Undocumented by Marco Williams, move beyond calls for the legalization of unauthorized migrants and the human rights emphasis on trafficking. The two cultural representations focus on human rights violations at the Mexico-US border, which has undergone dramatic changes since the mid-1990s. The selective enforcement of popular migrant routes across the border with triple-layered fencing and additional Border Patrol agents has forced crossers to shift their entry points to more dangerous border geographies and to rely on the assistance of smuggling cartels. The confluence of these factors has resulted in a drastic surge in migrant deaths, which have by far surpassed the number of casualties recorded in the mid-1980s from drowning (mostly in the Río Grande) or from homicide and auto-pedestrian accidents in the late 1980s (Eschbach et al. 2003). Many crossers also simply disappear. While they have somewhat declined in the context of an overall decrease in Mexican migration (Gonzáles 2011), in the last 15 years at least 5,513 bodies were discovered, including 463 just in 2012 (Spagat 2013).

The work by Castillo and Williams presents border deaths and disappearances as human rights violations and highlights their traumatic effects on those left behind. Because they set out to give voice to and humanize the dead or disappeared, the two cultural representations cannot employ the first-person witnessing accounts that have dominated humanitarian interventionist work. These personal narratives are usually related in the form of memoirs, testimonios, or testimonies, by those who have experienced trauma, degradation, exploitation, and physical violence. They are told in order to elicit identification from the audience by engaging their sense of ethics and justice with causes distant or alien from their own experiences (Smith and Schaffer 2004).

Rather than personal narratives, the cultural productions by Castillo and Williams use the form of the magical realist novel and the cinéma verité documentary style to highlight the effects of deaths and disappearances of border crossers on family and community members. Set in a fictional New Mexico town close to El Paso, Texas, and near a border crossing point that is “not used for anything but the business of narcotraffickers” (Castillo 2007: 44), Castillo’s The Guardians employs magical realism, a genre first popularized in Latin America to represent traumatic events such as dictatorial regimes and civil wars, in order to chronicle the trauma various family members experience after the disappearance of a loved one. The novel opens when the protagonist Regina receives a call from a smuggler about her brother Rafa, who never completed his most recent border crossing, becoming, as she says, “one among hundreds every year disappearing or finally turning up dead because of heat and dehydration in the desert or foul play at the hand of coyotes [smugglers]” (Castillo 2007: 148). The two siblings were brought to the United States as undocumented immigrants when they were children, but while Regina later received US citizenship, Rafa “married a Mexican national and never got his documents fixed” (Castillo 2007: 179). He moved to Mexico, but unlike a large number of migrants who have settled in the United States to minimize increasingly more dangerous border crossings, Rafa regularly crosses into the north for work to send remittances to his family and to accumulate savings with the ultimate intention of permanently returning to Mexico. Rafa’s son Gabo, who started to live with Regina after the death of his mother, also remained undocumented.

The Guardians overlays realism with religious references and magical realism to represent the trauma of Rafa’s disappearance as experienced by his family and other members of the community who participate in the search for him. Their trauma is deepened by their inability to obtain assistance from federal or state agencies because of Rafa’s undocumented status. Rafa’s son Gabo cannot even visit a morgue in Ciudad Juárez, Mexico, to identify a body that may be his father’s for fear of not being admitted back into the United States because he lacks the appropriate legal documents. The stress and trauma of Rafa’s disappearance affect every family member. While Regina slips into depression, Gabo starts sleepwalking and becomes excessively devoted to religion. He starts wearing a monk’s garb and proselytizes in his school. In the magical realist universe of the novel, Gabo even starts bleeding from his hands. He also befriends a small-time gang that is associated with a Juárez drug cartel and claims to be able to help Gabo find his father. They lead Gabo to a drop house, where he is killed by a female member of the gang.

At the same time, the police find Rafa’s body in another drop house, 10 months after his disappearance. He had been held naked in a small room, forced to make meth, and was systematically abused with a Taser gun. Rafa’s involvement with this cartel exemplifies that migrants now need to use cartels, which have displaced the kinds of small-time operations that once dominated the business. As a result of tougher US border enforcement and Mexico’s crackdown on drug trafficking in the early 2000s, many drug smuggling operations have also expanded their activities to the trafficking of migrants. These drug smuggling cartels often hold migrants in safe houses to shake them down for ransom above the agreed upon smuggling price (Millman 2009).

Upon the discovery of Gabo’s body in one of those houses, Regina realizes the importance of closure is to be able to mourn a loved one, thinking that “the worst part was over, the not knowing” (Castillo 2007: 207). She also forgives her nephew’s murderer by informally adopting her infant child and regularly visiting her in prison. In the novel’s moral universe, Regina is thus associated with the Virgin Mary (or the Virgin of Guadalupe), and her adopted son Gabo becomes a Christ-like figure who died for the sins of gang members and people smugglers.

While Regina receives closure at the end of the novel, Marco Williams’ film The Undocumented (2013) chronicles how a crosser’s unresolved disappearance continues to affect his family. Using a cinéma verité style that eschews voiceovers and relies on unobtrusive, hand-held cameras, the film tells the story of Marcos Hernandez, an undocumented Mexican national in Chicago, who came north to look for his father Francisco after he disappeared in the Sonoran desert. Francisco wanted to find work to help pay for the family’s medical expenses. In a recorded phone conversation with Francisco’s smuggler that Marcos replays for the camera, the coyote (smuggler) reports that the father was left behind when he could not keep up with the other crossers. The family never heard from him again, but lives with the hope that he is still alive.

The film places the distress that Marcos and his family experience in the larger context of the work of US and Mexican state agencies and US human rights organizations. Set in 2009 when the number of border-crossing deaths was still climbing, The Undocumented incorporates many extremely uncomfortable close-up shots of often decomposing human remains and body parts as they are discovered by members of the Border Patrol Search and Rescue (BORSTAR), examined in the Pima County Office of the Medical Examiner (PCOME), and then photographed and inspected by investigators from the Mexican Consulate of Tucson, Arizona.

The citizenship status of the crossers continues to determine their rights of identification and burial. The medical examiner states that the remains of those suspected to be border crossers are treated like those of US citizens; they are fully autopsied to identify their cause of death. Their gender, date of death, age, and other characteristics are also determined. But only the Mexican Consulate workers are shown to try and match the discovered remains and their belongings, from which smugglers often remove IDs, to missing persons’ reports that would have been sent to their office, not a US agency. If remains are identified, the Mexican Consulate pays for their transportation back to Mexico.

The film chronicles and itself performs the transformation of some bodies into human beings, whose stories can then be told by the families they left behind. In one of the film’s most powerful scenes, Mexican Consulate workers find a phone number among the effects of a deceased, which helps them identify the person. When a picture of his skull is juxtaposed with his ID, the body not only gains a name but can also be sent to Mexico for burial. The film explores the impact of this death on the migrant’s extended family in Mexico. The audience learns that the migrant had tried to rejoin his wife and children in the United States, where he had lived for 17 years until he was deported. Because his immediate family members are never shown at the funeral, the audience gets to conclude that they probably were not able to pay for the body’s transportation to the United States and/or to cross the border to participate in the burial, which would allow them to share their loss with their family as well as other families and the community.

Many of those interviewed in the film agree that things need to change and task the US or Mexican governments with implementing such changes, while also seeking to elicit emotional responses from the audience. A medical examiner says that it is beyond time for border-crossing deaths to stop and asks rhetorically if the United States is implicated in the deaths. A member of the Coalición de Derechos Humanos in Tucson, which fights discrimination and human rights abuses by federal, state, and local US law enforcement officials, tells the story of a father whose search for his disappeared daughter ended up recovering five other remains and states that no one knows how many bodies remain undetected. A Mexican Consulate worker stresses that the dead are from humble backgrounds and come because the United States is asking for their labor. A family member of a deceased border crosser says that Mexicans leave because their government does not provide enough jobs.

The closing credits inform us that Marcos Hernandez is still searching for his father. As he says at various moments throughout the film, despite the fact that he could not find even a trace of his father, Marcos cannot accept his death. He continues to believe that his father “is somewhere but we don’t know how to find him” (The Undocumented 2013). Similar to the fictionalized family and community in Castillo’s novel, Marcos’ family is shown to have been rendered utterly powerless in the face of the father’s disappearance. The audience understands that as long as there is no body, the family’s grieving is impaired. Unable to engage in a burial, they are denied closure and the ability to share their loss (Robben and Suárez-Orozco 2000: 87). It is in this context that human rights organizations like the Coalición de Derechos Humanos in Tucson have created new ceremonies that bring together a community of mourners. The film ends with an annual ceremony at Tucson’s San Xavier Mission, where the dead are remembered. Their names – or the appellation “no identificado” – are called out and greeted with a collective “¡presente!” Discovered bodies are symbolized by white crosses that are added to those that were deposited there in previous years.

The two representations by Castillo and Williams invite the audience to see that border deaths and disappearances are an issue of both US national policy and human rights. The novel and film do not so much elicit the audience’s identification with border crossers, with their efforts to improve their economic circumstances through migration, or even with the hardships of their actual crossings. Instead, the two representations elicit outrage and incredulity at the ways in which the US border crossing regime allows for these deaths and disappearances and thus creates immeasurable trauma for families and communities. Unlike enforcement at other national borders (such as the former Berlin Wall or the India-Pakistan border), US border militarization is not intended to kill border crossers. Unlike Israel’s policy toward Palestinians, it is also not meant to keep laborers from entering and working in the host country (Klein 2007: 559). But the initial enforcement of popular US border crossing points was specifically designed to funnel migration to more difficult terrain in order to transform it into a buffer site whose perilous nature would deter undocumented human movement (Nevins 2002: 145). As a medical examiner in The Undocumented alleges, the deaths of border crossers were not only anticipated but considered an additional deterrence for undocumented border crossings. US border enforcement has thus created what Achille Mbembé and Libby Meintjes have called a geographical terror formation that is meant to curtail human movement (2003: 28), and deaths have become collateral damage in the larger effort to ensure the well-being and health of the US citizen community from which outsiders are excluded (Agamben 1995: 147).

The two representations by Castillo and Williams show that US border crossing regimes and immigration policies directly threaten the human rights of migrants, which derive from a common humanity that exists regardless of a migrant’s legal status in a particular country (Ruhs 2013: 2). After all, the right to life and health is set forth in the Universal Declaration of Human Rights. And the International Covenant on Civil and Political Rights (1966) commits its signatories to respect the civil and political rights of individuals, including the rights to life, freedom from inhuman or degrading treatment or punishment, liberty and security of the person, and equality before the law (Nessel 2012: 80). Focusing on migrant rights as human rights could create new venues for addressing the increasing rightlessness of migrants who have been turned into indocumentados through tightened US immigration law and enforcement regimes. Especially in the context of declining migration from Mexico and decreasing numbers of indocumentados, a border policy that leads to the death of migrants makes increasingly less sense. Discussions of more comprehensive migrant rights thus need to supplement the current focus on issues of legal status that triggers demands for the legalization of small groups of migrants who are already in the United States with human rights discourses.