Death Watch in the Desert

Humanitarian activists and federal agents do battle on the Mexican border

Border Guard

image by Reuters / Rick Wilking

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This is a place of ghosts. Ask anyone who walks these trails, in the bare-knuckle desert.

Here among high scrub, south of Arivaca, Arizona, sunlight glances off discarded water bottles, candy wrappers, tennis shoes, rosaries, and a tiny picture of the Virgen de Guadalupe in yellowing cracked plastic. Such things are hastily abandoned in the headlong passage between life and death, the fate of their owners unknown.

Officially, migrant deaths here each year number in the hundreds. Humanitarians who hike this country call those numbers bullshit. They say the desert is haunted by thousands of unfound dead people. Out here, a corpse gets about two weeks, tops. By then, sun and scavengers have sealed the deal.

A handful of rescue volunteers have come across bodies, but everyone has seen the bones. And in a place where mortality crunches underfoot, folks can get a bit touchy.

Take the feds and the humanitarian outfits. They’ve never shared much in the way of mutual admiration. Sure, everyone pledges bonhomie—each appreciates the other’s “tough job” or “dedication” or “good intentions.” But those are just words muttered to reporters. As it happens, the thing that keeps them at odds also binds them together: death all around. Death behind that shrub or in that wash, or settled in the shade of that half-buried boulder.

Death is the third partner in a relationship that nobody wants. The humanitarians provide assistance, food, and water to migrants. The feds mostly leave them alone to do so.

Until recently.

Over the past couple of years, federal agencies ranging from the U.S. Fish and Wildlife Service and the Bureau of Land Management to the Border Patrol have been putting activists under the gun.

Consider Kathryn Ferguson. In January 2008, she was arrested while she was checking migrant trails with the Samaritans group, and was held roadside for several hours by Special Agent Bob Ruiz of the Bureau of Land Management (BLM). According to Bart Fitzgerald, BLM special agent in charge for Arizona, Ferguson was detained for “acting mysteriously.” She was cited for creating a nuisance. A few days before her trial, that charge was mysteriously dropped.

In February 2008, No More Deaths volunteer Dan Millis was cited for littering after he left water jugs for migrants on the Buenos Aires National Wildlife Refuge south of Tucson. Two days earlier, he’d come across the body of Josseline Jamileth Hernandez Quinteros, age 14. Josseline made it all the way from El Salvador before death caught her here.

Seven months after Millis found her, he was convicted.

In August 2008, the No More Deaths camp near Arivaca was raided by two dozen Border Patrol agents, some on horseback. They had tracked two migrants to the compound, resulting in an ugly confrontation that lasted nearly two hours. The migrants were taken into custody and probably deported.

The same month, water stations long maintained on the Tohono O’odham Nation by a tribal member were ordered removed by tribal police. The man suspects the Border Patrol pressured the tribe to shut down his stations.

In December 2008, No More Deaths volunteer Walt Staton, like Millis, was cited for littering on the Buenos Aires National Wildlife Refuge. It was a Border Patrol agent who spotted Staton putting out sealed water jugs and alerted refuge officers.

These showdowns aren’t limited to Arizona. Earlier this year, Border Patrol agents near San Diego detained a Methodist minister attempting to give communion through the border fence. It made great material for the nightly news.

But to Bill Walker, it’s all a bit perplexing. He’s the Tucson attorney who handled Ferguson’s case, and he currently represents convicted litterers Millis and Staton.

“There is clearly a pattern of increased activity by the government against humanitarian groups,” Walker says. “I see no justification for it. It diverts significant resources from the prosecution of other crimes.”

He estimates that the federal government spent more than $50,000 to convict Staton. Even more troubling, says Walker, is that Staton’s case represents a clear escalation. “Dan Millis was prosecuted first, in front of a magistrate for an administrative violation. They charged him with littering, and that’s [up to] a six-month penalty. The magistrate in that case found him guilty but suspended the fine [and sentence].”

The government had an attorney and three agents working the Millis case, Walker says, “and must have spent $20,000 or $30,000.

“Now they charge the second guy, Walt Staton, and they up the ante on it. They don’t charge him with littering; they charge him with ‘knowingly littering.’ That means the potential penalty for him is a year in jail . . . for putting out water in the desert for migrants.”

Wyn Hornbuckle, a spokesman for Arizona’s U.S. attorney, says it’s impossible to calculate the costs of convicting Staton. “But as for the merits of this particular case,” he says, “having a unanimous jury verdict speaks for itself.”

Here’s what it says: Heads up, all you potential litterers!

 

Confrontation has taken a different tack in California. Friendship Park is a venerated border meeting ground where binational friends and family have long shared chats or picnics through the fence, in the San Diego area. At least that’s how it was until February, when Border Patrol agents sealed off the park for construction of a secondary border wall.

The closure prompted a protest by more than 100 people, who strode right into a barricade of Border Patrol vehicles. The scent of violence was heavy, and before it cleared, a Methodist minister, John Fanestil, had been detained. During the protest, he led a Christian service.

Fanestil says Border Patrol officers unnecessarily ratcheted up tensions during that bitter standoff. “They’re claiming the land between those two walls as their ‘theater of operations,’ ” he says, “and using the same tactics they’ve been trained to use on people entering the United States illegally from Mexico. But all of a sudden, they aren’t facing south; they’re facing north, and their tactics are beyond the pale for dealing with non­violent activists.”

Fanestil believes there’s a darker subtext to this melee.

“The Border Patrol is really trying to lock down the borderlands near the fence,” he says, “and prohibit access of any kind. In fact, they refer to people who would enter that area as ‘clutter.’ Their dream is of an uncluttered theater of operations.”

Back in Washington, D.C., Mike Reilly, assistant chief of the Border Patrol, dismisses Fanestil’s claims. “At the Border Patrol Academy, we get riot-control training,” he says, “and the rest of it is he-said, she-said stuff.”

Reilly also denies that these incidents are part of a larger crackdown on activists. Instead, he argues that an increased Border Patrol presence and intensified security measures are simply pushing everyone closer together.

“We’re just doing our job,” he says. “In the process of securing our nation’s border, with the fence and everything else, there are other issues that come up. And because illegal immigration is in the media, it seems that more people are saying we’re against them. But we’re not against anybody. There’s no policy to take a hard stance against any type of humanitarian group.”

 

Chad Berkley walks the migrant trail, and he totes a few ghosts of his own. Lanky and intense, Berkley is an Iraq war veteran who suffered concussion damage to the brain in a roadside bomb attack. That, he says, has played hell with his concentration skills.

The year since deployment has been about getting divorced and pulling himself together. A solid night’s sleep is still wishful thinking. But by day, he now roams these hungry hills, on the outskirts of Arivaca, under the banner of No More Deaths.

“At first, I felt like I was back on patrol in Iraq,” Berkley tells me, “always looking around.”

But he came here to bury Iraq, not relive it. “I want to do something altruistic,” he says. “I want to put all the skills I learned in the military to something positive. This isn’t necessarily a war zone, but it’s a similar militarized zone.”

Then Berkley returns to patrol. “Agua!” he barks as we walk. “America! Ayuda! Agua!”

Later, we pile into a Suburban with the No More Deaths crew and rumble back to the camp Berkley shares with a dozen or so volunteers. The camp entrance is marked by a rusted car door and secured by a nylon rope. Beyond are a smattering of tents, a pair of travel trailers, and a decrepit motor home. A fire pit smolders to one side.

Stints here vary. So do the residents. Many are college students, volunteering for a week or two of hot, remote duty. Some, like Berkley, sign on for a month. It’s all low-budget yet well disciplined. Each day, soon after sunrise, small groups head out into the deep desert with topographic maps and water jugs. They place water at precisely chosen spots, returning with empties to be disinfected and reused.

Other trail debris comes back, too. “If anything, I’d call us a net-delittering operation,” says camp coordinator Steve Johnston.

This place is part summer camp and part Reality 101. After all, you can always stumble across a body out there. Dan Millis did. Johnston pulls up a plastic chair and hands me a small card. On one side is a prayer. On the other is a photograph of Josseline, in a church and very much alive. Pretty, petite, dark, somber. She could be any moody teen you’d see at the mall. But you won’t be seeing her there.

“Her parents live in L.A.” Johnston says. “So she and her younger brother were traveling to L.A., to meet up with her parents. On the way, she got injured or sick, and they left her. The brother continued. When her brother got in touch with the parents, they called the Mexican consulate, and the consulate called [immigrant-rights group] Derechos Humanos, and Derechos Humanos called us. We started looking for her.”

Millis found the body while he was hiking a shortcut.

“She had taken off her shoes,” Johnston says. “When she was found, her feet were in a little puddle of water, and her shoes were neatly next to her.”

Steve Johnston is not a quiet man. But quietly, he tucks away the map.

Any policy that drives desperate people into the desert is wrong, Johnston says. But he doesn’t blame the Border Patrol, or at least not the guys he sees out here.

“This is not between us and them,” he says. “They’ve got their job to do.”

Of course, that doesn’t mean agents can’t get a bit, well, ornery. He recalls a few years ago, when they’d park up in the hills. “They’d turn deer lights on the camp,” he says. “They’d set up speakers on their trucks and blast rock ’n’ roll at us. It was like Guantánamo.”

These crude psych ops occurred under the reign of Tucson Sector Chief Michael Nicley, who openly disdained the activists who help migrants. “They feed them, give them water, and let them loose,” he told the Tucson Citizen in 2005. “They believe that’s a humanitarian effort. I believe that turns into a rescue for me later on.”

When Nicley retired in 2007, the humanitarian groups figured his replacement could only be an improvement. That successor was Robert Gilbert, a friendly fellow who seemed genuinely interested in a little give-and-take.

At that time, Mark Townley was president of Humane Borders, a group that maintains more than 100 desert water stations, including three on the Buenos Aires National Wildlife Refuge. He helped arrange a series of meetings between activists and the new chief, and soon Gilbert was touting these parleys to the media. “I thought it would be best if everybody gets together, we sit at a table, look at each other in the eye and say what can we do to make this border safer,” the chief told the Arizona Daily Star in May 2007. “I think anybody who is out there trying to save a human life, that is a great thing.”

But things didn’t quite work out so well. After about a year, the activists pulled out of the meetings, ending what Townley characterizes as an exercise in frustration. He says their concerns—such as getting food and water to migrants awaiting Border Patrol transport—received lip service from Gilbert, and little else. The same happened with abuse reports, he says. Agent Omar Candelaria, a spokesman for the Border Patrol’s Tucson sector, says the spirit of these meetings did result in better access to the Mexican consulate for detainees, and a video detailing their rights that plays in detention centers. “I can’t say those have come specifically from the meetings,” he says, “but they are things that have happened in the recent past.”

Still, Candelaria can’t cite a single point raised by the activists that has found its way into sector policies.

In fact, just a few months after those meetings ended, the teetering relationship took a big tumble, and Gene Lefebvre had a front-row seat. He’s a retired minister from the Shadow Rock United Church of Christ in Phoenix and a No More Deaths cofounder. On a morning in August 2008, he was out checking migrant trails near Arivaca when he got a call that agents were massing at the camp. By the time Lefebvre got there, he says, about 25 agents had surrounded the camp.

Among them was another sector spokesman, Mike Scioli. “Horse-patrol agents had followed foot-sign up to the No More Deaths campsite,” Scioli says. “When asked if there were any [migrants] there, they said no. A search of the area discovered the two individuals.”

Therein lies a big deal: According to No More Deaths protocol, volunteers must declare if migrants are in the camp to avoid charges of harboring.

When this is mentioned to Scioli, he backtracks, suggesting that the volunteers told agents “they didn’t know” if there were any migrants at the camp. They might have been confused, he says, because “a lot of people had just woken up from being in a tent.”

It was 11:15 a.m. when Gene Lefebvre received that call from a young woman at the camp. And wakeup time at the No More Deaths compound is 6 a.m. sharp.

Lefebvre says he was twice read his Miranda rights during the confrontation, a fact confirmed by several witnesses. And he directly contradicts Scioli about the migrants. He says that when agents were questioning him, he asked them what the young woman had answered when she was asked about migrants. “And the officer in charge confirmed that she told him there were two people there,” Lefebvre says.

Also visiting the camp that day was Miguel De La Torre, a seminary professor at the Iliff School of Theology in Denver, and several of his students. “What I found frustrating,” De La Torre says, “is that here we were providing medical attention, providing food and water for people in the desert, and that somehow, this is a crime. As Christians, we’re practicing our faith, and we’re detained for it in this country. When a law says that we can’t give basic medical attention to somebody, then that’s not a law.”

 

For nearly a decade, Mike Wilson, a member of the Tohono O’odham Nation and a retired U.S. Army sergeant, has risen before dawn to haul water from Tucson out to the reservation. But the same month the camp was raided, he was approached by a Tohono O’odham police officer while he was showing his water stations to seminary students led by De La Torre and the Reverend John Fife of Tucson. A cofounder of No More Deaths, Fife is a charter member of the humanitarian-assistance movement.

During that encounter, Wilson was ordered to pull the stations, and his guests were banned from the reservation for life. He says the moves were directed by Baboquivari District Chairwoman Veronica Harvey, a tribal official, and he suspects the Border Patrol may have swayed her decision. She did not return a phone call seeking comment.

Down on the Buenos Aires, manager Mike Hawkes says he’s not priming for any fights. But he does take a hard line on do-gooders like Staton putting out water jugs. “It’s illegal to litter on the refuge, basically,” he says. Nor will No More Deaths be getting any permits to make it legal. Humane Borders already has its stations out there, “and we think we have a good coverage with that.”

Hawkes says he’s not sure how much the water stations help, anyway. “Most of these folks who die are dying of exposure, because it’s either too hot or too cold. If people are too young or too old or not healthy enough to be making that trip, then they probably shouldn’t be making that trip.”

But to Jose Garcia, Hawkes is rolling the mortal dice. A professor of government at New Mexico State University who specializes in border-security issues, Garcia says the first migrant death at Buenos Aires after Staton’s conviction will be telling: “I can’t imagine how the refuge justifies taking a harder line, since you would think that human rights issues would trump littering. I would think the first death will be enough to attract the attention of the president of the United States.”

Even the Fish and Wildlife Service seems confused about its policy regarding those water drops. In November 2008, for instance, Lynn Scarlett, who was then deputy secretary of the Interior Department, wrote a memo suggesting that land managers could make their own call if certain steps were followed—including notification “of the appropriate Border Patrol sector chief.”

However, Fish and Wildlife Service officials say the policy is simple: No more refuge water stations. Confusing? Hell, yes, says the Reverend Robin Hoover, founder of Humane Borders. Hoover recalls a conversation he had with former Buenos Aires manager Mitch Ellis and Justin Tade, a lawyer in the agency’s Albuquerque regional office. “Tade flat-out told me not to apply for a new permit, because it would be denied,” Hoover says. “Then he said, if he was asked, he would deny ever having that conversation.”

Tade declined to comment when he was contacted. But the conversation was confirmed by Ellis.

Tom Harvey, Fish and Wildlife’s refuge supervisor for Arizona and New Mexico, emphasizes the refuge system’s wildlife-comes-first mission.

“It’s a balancing act,” he says, “and the recent littering citation with the No More Deaths organization is unfortunate. But the backdrop for that whole thing is the more than 40 tons of trash per year that our volunteers and our refuge staff have to remove. We’re just saying that if we’re going to keep this refuge free of trash, we have regulations that we have to implement and abide by.”

In response, No More Deaths has issued an ultimatum: If no agreement is reached, they’ll again start putting out water on Buenos Aires, consequences be damned. And Hoover says he’ll ask for more permits. If his requests are denied, he’s ready to raise hell.

Hoover considers Hawkes’ stance a deal with the devil. He recalls when the agency denied his group’s request to put out water stations on the Cabeza Prieta National Wildlife Refuge, near Ajo. That led to a wrongful-death lawsuit after 14 people died there in 2001. The judge ruled that the land manager had discretion to approve water stations if he so desired.

A few days after my visit to the camp, I sit in a downtown Tucson coffee shop with Margo Cowan, an attorney who has represented immigrants and groups like No More Deaths for years. Just down the street are all the trappings of power—the city building, the county headquarters, and the federal courthouse where Staton was convicted.

Even after all these years in the trenches—and all the failed attempts at border-policy reform—Cowan remains an optimist. She sees the tide turning with the Obama administration. And she believes things will change when word of the recent law-enforcement brush-ups reaches Ken Salazar, the new secretary of the Interior—who oversees the Fish and Wildlife Service—and Janet Napolitano, the former Arizona governor who now heads the Department of Homeland Security, which includes the Border Patrol.

“I’m surprised that the United States is digging in on their position about humanitarian assistance,” Cowan says. “But I’m sure Interior Secretary Salazar would not support this if he knew about it. Certainly, Governor Napolitano wouldn’t support it. She understands clearly what death in the desert is all about.”

For a moment, we sat, inexplicably, in silence. Perhaps there are ghosts even here.

 

On July 9, the day this story was published, a swarm of federal law-enforcement officials ticketed 13 more humanitarian volunteers as they put out water on the refuge. On July 21, six members of No More Deaths met with Interior Secretary Ken Salazar in Washington, D.C., to talk about border issues. The meeting, while inconclusive, may signal a mood for compromise. Dan Millis and Walt Staton are appealing their littering convictions.

 

Excerpted from Tucson Weekly (July 9, 2009), where freelance writer Tim Vanderpool often reports on immigration and border issues.

www.tucsonweekly.com