April 21, 2008 at 3:52 am Leave a comment

Jazmine Ulloa / Adelante
Volume II, Issue 2 (March 2008)

The building of an actual physical barrier along the country’s southern border for national security may hinge on who wins the next presidential election.

Democratic presidential candidates Hillary Clinton and Barack Obama both spoke against plans for a physical fence at a debate held at the University of Texas at Austin in February, vying instead for virtual fencing and immigration reform.

With the most critical primary Texas has seen in two decades underway, their position on the issue has been especially important as they have aggressively campaigned to capture what both believe to hold the key to a win in the state—the Latino vote.

Leading republican candidate John McCain has also gone under fire in recent weeks for sidestepping his position on the fence and said he believes border security to be the top priority.

But despite change in the political climate and candidates’ insight that “people are clamoring to have secure borders not fences,” Homeland Security Defense Secretary Michael Chertoff still has until Dec. 31, 2008, to decide where 375 miles of fencing will be built, which is when his authority to decide mileage will expire.

“I wouldn’t be surprised if at least some of it is done [in Texas],” said Denise Gilman, clinical professor for the UT School of Law’s Immigration Clinic. “They moved pretty quickly in Arizona.”

Congress passed the Secure Fence Act in 2006, which originally mandated that 700 miles of fencing be built from Texas to California along the U.S.-Mexico border. Chertoff announced on Aug. 10, 2007 that his agency would scale back this number to 375 miles of fencing to build in segments across the border.

Some fencing has already been built in areas of California and Arizona, which proponents for a physical fence say have lowered the rate of apprehension of illegal immigrants. But Border Patrol officials said increased staffing, stadium lighting and motion sensors were critical to this improvement.
In Texas, the building of the fence is muddled by controversy and complexity, activists and legal experts said.

Chertoff has already filed suit against private property owners in Hidalgo and Cameron counties, the University of Texas at Brownsville and even the city of Eagle Pass because they have denied federal surveyors access to the land.

While the suits filed are not to take the property but to survey it, Gilman said, “They are definitely precursors to actual condemnation suits to take the property.”

Chertoff and the Department of Homeland Security have different projects for areas in Texas. In Hidalgo County, for example, original plans had the fence running through towns as far as two miles inland from the river, such as Granejo, Penitas and Hidalgo. This could have cut off private property between the fence and the river and water access to farmers and ranchers, county officials said.

But Hidalgo and federal officials reached an agreement Feb. 8 to instead build up levees along the Rio Grande to 18 feet high. While some city leaders and property owners called the agreement a compromise, Del Rio activist Jay Johnson-Castro said it was only a “micro-fix.”

“Let’s fix the levees, that needed to be done,” he said. “But let’s not use that as the pretext to build an 18-foot wall.”

Plans by Chertoff and the department for the University of Texas at Brownsville have the fence running through university property, cutting off nearly all of the school’s 18-hole golf course and leaving 166 acres of university land between the fence and the river, said Eagle Pass Mayor Chad Foster, a member of the Texas Border Coalition.

Although levee plans similar to those in Hidalgo have been proposed for the university, the city of Eagle Pass has yet to reach an agreement with the federal department, Foster said. Federal officials are discussing a stadium light project with the city. Current plans have the fence running in segments, cutting off Fort Duncan, a historical public park, from the city, for example, but not River Bend Resort.

“This fence is an ill conceived idea and gives a false sense of security to America,” Foster said.

But some still believe a physical barrier is necessary for national security. Although political support for a virtual fence has grown, in a press conference, Republican Congressman Duncan Hunter said a virtual fence is “virtually useless.”

Joe Kasper, spokesman for Hunter, said opposition to build a physical border fence has come from the department itself. Since it has the authority to build the border fence in the way that it chooses, the department has decided to build a combination of virtual and physical fences, he said.

“The department has taken on an ambiguous interpretation of the mandate in the Secure fence Act, when Hunter said it was straightforward,” Kasper said. “There is a serious threat to the physical fence if a candidate not committed to border control takes office.”

At the primary debate on campus, Democratic candidates stressed the importance of border security, and agreed that while some fencing may be appropriate, consultation with those living along the border would be essential.

“There is smart way to protect our borders and there is a dumb way to protect our borders,” Clinton said.

Failed leadership by the Bush administration on border security will be pushed unto the next administration to clean up, Democratic candidates said. But legal experts are searching to delay the building of the fence before then.

In Arizona, cases filed because of damage the fence could do to the environment were limited by a provision in the Real I.D. Act of 2005, which allows Chertoff to waive environmental standards in order to build the fence, Gilman said.

A physical fence along the border also raises private property and equal protection issues, said Gilman. She asks, “Why is the fence only going through certain areas?” It also raises human rights and environmental issues because the fence would affect indigenous communities and wildlife, she said. Legal experts are now looking to challenge the federal department for lack of consultation with the community, Gilman said.

“These are complex issues raised,” she said. “But the difficulty is trying to find the proper legal tool to get all these issues before the court.”

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