This article was originally published on Just Security
The scene of last week’s San Antonio smuggling tragedy is painful to think about: more than a hundred people crammed into a 170-degree tractor-trailer, desperately clawing at the sides of the vehicle, gasping for air. Now, with 10 dead and dozens more hospitalized, Trump administration and local officials are using this tragedy to argue for stricter border enforcement and a crackdown on human smuggling. Don’t let them get away with it.
In the wake of this disaster, state and federal government officials are once again trottingout the perverse argument that efforts to exclude and punish undocumented immigrants are actually for their own good and safety. They also claim that cracking down on the smugglers who transport them will protect immigrants, when really that does more harm than good.
A sober assessment of anti-smuggling efforts must begin with the recognition of three key facts:
The fundamental purpose of anti-smuggling efforts is to deter immigrants, not protect them;
Human smuggling, unlike trafficking, is typically consensual; and
Human smuggling exists, and is dangerous, precisely because our border policies make safe means of transportation impossible for undocumented people
To be clear, none of that is to say that smugglers are never to blame for endangering immigrants, or that they should never be prosecuted. On the contrary, the disaster in San Antonio — where smugglers reportedly misled the immigrants into believing the truck had a functioning refrigeration system — presents a strong humanitarian case for prosecution.
If the smugglers knowingly deceived the victims, then they certainly deserve to be held accountable, on humanitarian grounds alone. And even if the smugglers’ conduct was merely negligent (perhaps they wrongly believed that the vehicle had working refrigeration), there would be a strong humanitarian case for prosecution, given that it might incentivize smugglers to be more cautious in the future.
It’s also essential to recognize that the desperate circumstances commonly faced by undocumented immigrants blur the line between coercion and consent. Moreover, it is clear that in many cases, what begins as consensual smuggling morphs into fraudulent and/or coercive exploitation. Finally, it is crucial to accept that smuggling — even under the least coercive circumstances — is dangerous and involves profiting off vulnerable people, often to the benefit of violent criminal organizations. It is not pretty.
But at the end of the day, if we are truly motivated by the best interests of these vulnerable people, the question we have to answer is this: Would stricter border enforcement and a crackdown on human smuggling actually make undocumented immigrants better off? Contrary to the Trump administration’s message, the answer is a clear “No.”
“Humanitarian” Anti-Smuggling Rhetoric is a Pretext for Preventing Immigration
You don’t have to look too deep to see that those using the San Antonio tragedy to push for harsher border control aren’t genuinely motivated by protecting immigrants. For example, in a particularly disturbing response to the event, Texas Lt. Governor Dan Patrick — who has described immigrants as an illegal “invasion” from Mexico” who bring “third-world diseases” to America — said last week that we must prohibit sanctuary cities (e.g. make it easier to deport undocumented immigrants) and increase border security (e.g. do more to exclude undocumented people) in order to protect immigrants:
“Sanctuary cities entice people to believe they can come to America and Texas and live outside the law. Sanctuary cities also enable human smugglers and cartels. Today, these people paid a terrible price and demonstrate why we need a secure border…”
In a similar example, Immigration and Customs Enforcement (ICE) Director Thomas Homan characterized the tragedy as a “reminder of why human smuggling networks must be pursued, caught and punished.” Here, his alleged concern for the plight of immigrants is belied by his comments to the House Appropriations Committee in June, where he saidthat (1) undocumented immigrants “should look over [their] shoulder,”and “need to be worried” about deportation; (2) that undocumented immigrants are to blame for their families being torn apart; and (3) that we “shouldn’t wait for [an immigrant] to become a criminal” before we deport them.
A recent interview with a veteran ICE agent confirms that the agency uses “humanitarian” rhetoric as a pretext to push for harsher anti-smuggling policy. The agent expressed significant concern about ICE’s new policy of targeting immigrants who paid smugglers to bring their relatives into the country. ICE considers these family members to be co-conspirators in smuggling: guilty of placing children “directly in harm’s way.” While ICE has publicly characterized this as an effort to counter “a constant humanitarian threat,” the agent revealed that this rationale was “just a pretext to increase arrests and eventually deport more people.”
As Human Rights Watch notes, the protection of immigrants is at best an incidental justification for anti-smuggling efforts:
“[G]overnments … imply that … actions such as destroying [smuggling] boats is a humanitarian act aimed at saving lives when in reality the objective of such policies is to prevent people from migrating irregularly across these countries’ borders.”
Journalists should be careful to make this clear in their reporting and be wary of similar propaganda (see below) from the U.S. Department of Homeland Security.
Human Smuggling, Unlike Human Trafficking, is Typically Consensual
Proponents of immigration restriction capitalize on the confusion about the distinction between smuggling and trafficking, characterizing all smuggling operations as coercive, and as crimes against vulnerable immigrants. That characterization ignores the sad reality that turning to smugglers is a rational choice for many immigrants. As dangerous as it is, smuggling may provide their best hope of ever seeing their families again, or their best chance at escaping crushing poverty and/or violence in their home country.
The chart above, produced by the U.S. Human Smuggling and Trafficking Center (an interagency project of the State Department, the Department of Homeland Security, and the Justice Department) shows the key differences between smuggling and trafficking. Most importantly, it recognizes that the archetypal smuggling case involves voluntarytransportation, and is a crime against a border, not against a person.
A 2016 report of the U.S. Sentencing Commission found that “an alien was involuntarily detained through coercion or threat” in only 1.6 percent of human smuggling offenses. Another report by the Human Smuggling and Trafficking Center similarly recognized that “the person being smuggled is generally cooperating.” Interpol also maintains that, “in general, the individuals who pay a smuggler in order to gain illegal entry to a country do so voluntarily.”
As Human Rights Watch argues, “incorrectly labelling ‘smugglers’ as ‘traffickers’ conveniently ignores reasons why asylum seekers and migrants chose to leave home—such as conflict, widespread human rights abuses, famine and economic destitution.”
With that in mind, it seems cruel for government agencies to use cases of clear coercion or recklessness to argue for a crackdown of human smuggling as a whole. Doing so “conflate[s] all migrant smuggling with human trafficking,” deceptively characterizing ordinary unlawful migration — as dangerous and exploitative as it may be — as “a crime which everyone agrees should be eradicated.” If we are going to decry smuggling as a “crime against humanity” or characterize it “as victimizing people that are attempting to get a better life,” we must recognize that an even bigger crime is the policy of forcibly excluding immigrants from our country in the first place.
Human Smuggling is Dangerous Because Of Our Border Policies
Contrary to ICE’s propaganda, “victimizing people that are attempting to get a better life” is a much better description of U.S. border policy than human smuggling.
To the extent that smugglers victimize immigrants, their victimization is only made possible because safe legal travel is impossible for them.
The Somali-British poet Warsan Shire said it best: “No one puts their children in a boat unless the water is safer than the land.” In other words, the fundamental reason hundreds of men were stuck languishing in a “mobile oven” in San Antonio is because they couldn’t legally fly or drive into the country safely.
“Events like this are an unintended consequence of enhanced border enforcement and security measures…. Further enhancing border security puts migrants under greater risk and strengthens transnational human smuggling networks.”
Crucially, border enforcement doesn’t just create smuggling networks, it makes smuggling dangerous and leaves immigrants vulnerable to coercion.
The need to avoid detection by authorities is one of the main reasons that smuggling is so dangerous. For example, truck drivers smuggling immigrants may need to turn off their cooling system as they pass through immigration checkpoints, which may put immigrants in danger of overheating. And, if a cooling system breaks down or malfunctions, drivers can’t simply pull over and release their passengers. If they do, the drivers and their passengers could risk years in prison and/or deportation.
Finally, it is precisely the threat of deportation and prosecution for immigration offenses that makes immigrants vulnerable to coercion.
The Alliance to End Slavery and Trafficking (ATEST), a coalition of 14 leading anti-trafficking organizations has explained that “traffickers…use immigration status as a tool of coercion to exploit immigrant communities, both documented and undocumented.” The presidentially appointed U.S. Advisory Council on Human Trafficking has also suggestedthat threat of deportation may contribute to human trafficking and other forms of exploitation. Likewise, Saket Soni, executive director of the membership organisation National Guestworkers Alliance, told The Guardian that aggressive immigration enforcement is “a gift to human traffickers.”
Sadly, victims of exploitation are not safe from deportation. They are under threat even when engaging with the legal system to report abuse. Recently, the Department of Homeland Security even defended its practice of deporting crime victims.
As I have written before — while certain forms of immigration relief are theoretically available to crime victims — “the temporary and uncertain nature of immigration relief–and the risky and sometimes degrading process that is required to get it–leaves trafficking victims feeling extremely reluctant to report abuses to law enforcement.”
Nothing drives home their justifiable fear of cooperating with law enforcement like the way victims of the San Antonio case — victims who nearly baked to death — are being treated right now. Last week, nine of the victims — facing potential deportation or even prosecution — were forced into court in handcuffs and blue prison scrubs, compelled to serve as witnesses against their smugglers. (This also undermines the argument that this prosecution is truly aimed at providing justice for the victims.)
We Are All Complicit
The deaths of the men who suffocated in the truck, and the countless others like them, can’t be solely pinned on a truck-driver or even an international smuggling ring. ICE agents, border patrol officers, and prosecutors have a role to play too. But it’s not simply their fault either.
San Antonio native Rep. Joaquin Castro (D-Tex.) is right: “This represents a symptom of a broken immigration system that Congress, of which I am a part, has had the chance to fix but has not….That’s a colossal failure that has a human cost.”
This is “death by policy” — a policy that all Americans need to work to change. Until then, the deaths of these immigrants are on all of our hands.