Ports of entry
On border crossings, refuge, "arbitrary and capricious" standards, and permeability
After four days in the sweet stench of Mexico (trash, fish factories, dog poop), the sudden absence of smell in the chilled room where I am taken for questioning is like a sudden darkness. I suspect that if I were allowed to get any closer to the fascist officers behind the counter, I would get a whiff of cheap aftershave, the false aroma of cleanliness. I know that I am not in any actual danger. Not only have I not broken any laws, but I am a blonde female U.S. passport holder with a degree from Harvard Law School, who is no more than two phone calls away from someone high up at DHS. But though I am clutching my passport, in the buttery brown case Ben bought for me at a leather artisan in the Outer Sunset, my belongings are sitting on a metal table across the room, and the phone numbers in my iPhone in the inner pocket of my tote bag are of no use to me. I sit in the first row of metal chairs in this alternate universe DMV waiting room — no numbers above the agents to signal how long you will have to wait for your turn, no freedom to leave the room when you get fed up, no books or phones for distraction. Nothing to watch except the agents who take their sweet time, making fun of the children next to me who don’t understand the barked instruction in English to not use their phones, nothing to watch except the jiggling leg of the woman next to me who is told that she is not allowed to use the bathroom. I wonder when the ankle cuffs attached to the bench next to me were last used, if there is a portal like a laundry chute somewhere in here that sends people straight to the 1without ever getting to say goodbye to the sun. But unlike everyone else in this room, I can be confident that I will be let go soon and allowed to cross back into my clean, odorless country.
Often people seek to cross borders because safety awaits on the other side. International law recognizes that people who are fearful of persecution2 in their home country should be allowed to seek refuge in other countries. We call these people refugees. They are a legal category distinct from other border-crossers, and are meant to be entitled to certain privileges—such as seeking asylum. The UNHCR reports that in recent months, over four million Ukrainians have become refugees.
I am, of course, not a refugee. I crossed to go wine-tasting with Ben in the Valle de Guadelupe, and to get a quick taste of Mexico—in other words, a tourist. But I am a U.S. passport holder, which is perhaps the greatest privilege of them all. Ben was in Tijuana observing Mexican and Central-American families get turned away from the port of entry. Since March 2020, the U.S. government has used an obscure provision of the federal code to effectively “close” the border to refugees due to the pandemic, erecting yet another layer to the figurative and literal wall separating the U.S. from Mexico at the southern border. But in recent weeks, Ukrainian refugees have been waived through, without so much as a Covid test.
I just started reading a memoir by an early twentieth century Russian humor writer, Teffi, “Memories: From Moscow to the Black Sea.” I’m esoteric but not that esoteric—I had never heard of her, but when my father-in-law invited me to pick something out from the NYRB winter sale, the title caught my eye. At the time, Russia seemed poised to invade Ukraine, where I had just learned one branch of my family came from, and I was interested to learn more about the fluidity of borders in this part of the world. After the February revolution, Teffi becomes critical of the Bolsheviks, under whom life in St. Petersburg is increasingly grim. Starving, she leaves for Moscow in 1918, where she is eventually invited to join a brigade of actors to Ukraine under the guise of a cultural tour. “It seems clearer and clearer that I have to go. Everyone wants to leave.” It is eerie to read about Kyiv (then Kiev) as a bastion of normalcy and safety, the place where pastries are still “filled with cream.”
In the first chapters, Teffi waits in Moscow. The bureaucracy to which she is subjected is familiar. She waits for the commissar who will approve the trip, for the correct paperwork to come through, for the train tickets. The application for a travel permit requires “long, long hours in an endless line in some place that’s like a cross between an army barrack and a large prison. Finally a soldier with a bayonet takes my document from me and goes off to show it to his superior. Then a door is flung open—and out comes the superior. Who he is, I don’t know. I can only say that, in the language of the time, he is ‘draped in bullet belts.’” Teffi trembles as he asks her to confirm her identity and to sign her name in a notebook. It turns out he is asking her for her autograph. She gets her permit.
This is a permit to leave, not a permit to enter. Borders can serve both purposes—keeping people in and keeping people out. It turns out that the permit is not enough. Crossing requires being accompanied by the right person, bribing the right person, and being in in the right place at the right time. It is only when a passerby refuses the caravan’s bribe that the party realizes that “this enigmatic border zone now truly did lie behind us.”
It is interesting to note that, during this period at least, Ukraine is temporarily a separate place — a place that requires a permit. This is the era right before the short-lived (1917-1920) “Ukrainian People’s Republic,” the result of nationalist fervor in which Ukraine asserted its independence from the newly formed Russian Republic. Further complicating matters, however, the streets are patrolled by German police when Teffi arrives. (I need to brush up on my history.) But still, Ukraine is better than Rusissa—and for now, Ukraine is not Russia. Friends are “suddenly discovering that they have Ukrainian blood, Ukrainian connections, and ties of every kind.” But it’s a familiar place, an adjacent place. By 1921, western Ukraine will be incorporated into Poland and the Soviets will take control over the eastern part of the country.
As long as there have been borders, people have sought to cross them. In Migratory Birds, Mariana Oliver notes that “In East Berlin, the wall unified a single desire and planted the same thought in everyone’s minds: to cross over to the West.” That wall kept people in. Unlike the slabs of graffitied concrete that comprised the Berlin Wall, the wall that divides Tijuana from San Diego is striated so that when you get close enough, the empty marshes of the U.S. are visible from the Tijuana beach. This wall is meant to keep people out. Stretching out into the ocean, the wall embodies the absurdity of humanity’s effort to dominate and divide the wilds of the Earth. The ocean flows through and around the wall, taking with it language and culture and WhatsApp messages that connect families.
“REPATRIATE” calls the graffiti on the wall on the Playa de Tijuana, in English. When we first crossed, we had coffee at a minimalist black and white outpost adorned with succulents that could have been Dinosaur Coffee at Sunset Junction. The ranchero band playing on the patio of the seafood restaurant in Puerto Nuevo played “Baby Shark” to the large trans-border family with its many nieces and nephews not once, but twice.
At the U.S.—Mexico border, the border delineates a place where there is a provision of social services (waste management, water purification) from a place where there is not. A place where there is rule of law (once you are out of CPB custody) from a place where there is, arguably, not. But as evidenced by the hundreds and thousands of cars with California plates that wait in the pre-approved “SENTRI” line at the San Ysidro port of entry to cross back into the U.S. each day, families and economic systems span this border. A sentry is a guard who controls access to a place.
For Teffi and her caravan, the border zone is precarious, a place where one might be stopped or arrested or even shot merely for trying to leave. When I visited Berlin a few years ago, I felt on edge nearly my entire visit, as if the anxiety of its people still hung in the air. “The city stands out because it trades in reversal: the echo is sharper than sound, memory is stronger than the present, and in public you are only allowed to conjugate in the past tense,” writes Oliver. Berlin is still haunted by the shadow of the wall that once divided it. In Tijuana, I felt that same anixety lurking in the air — the hulking presence of a militarized border zone, the labrynth of roads and bridges and walkways and the sense that you could land in purgatory if you made a wrong turn.
I want to make it clear that I don’t think I was a victim at the border. I was annoyed, not in danger. The only thing in my suitcase that I had to be embarrassed of was the giant ziploc bag filled with medications for every variant of Mexico-induced digestive trouble. At one point, I felt a swell of something resembling fear rise up in me and threaten to emerge through my tear ducts. Get it together, I told myself. You have nothing to be scared of. I had the privilege of knowing that I was just being hassled and subjected to the caprice of bureaucracy. Failing to activate your Global Entry card is not a crime. At worst, the penalty should be being sent to the back of the regular, non-expedited line. And yet, being separated from your loved one in an instant and relegated to a room with a locked door, and being at the mercy of agents I do not trust, is frightening.
For what it’s worth, the standard by which courts evaluate many government agency actions is arbitrary and capricious, meaning the court will consider whether the government abused its discretion or wielded its power in a way that was baseless. But when you are sitting in that room, you are months, if not years, away from anyone reviewing the propriety of how you are treated in that room. Really, you’re in a black box. The agents in that room are tasked with determining who is allowed to lawfully enter the country and how they treat you until they make that decision is of no matter. If I had been detained for multiple hours for failure to active my global entry card and not allowed to use the bathroom, you would think the answer would be yes, this is arbitrary and capricious. But it is a high bar, and law enforcement at the border is given considerable deference. And detaining a U.S. passport holder for 20 minutes and subjecting her to a condescending lecture and confiscating her Global Entry card would hardly rise to the level of arbitrary and capricious. I was not a victim. The U.S. government—or more likely a third-party private contractor—got $25 out of me for a replacement card which I ordered online the next day. “Select card ‘lost or stolen,’” the CPB agent told me.
When I reread the above, I feared it came off as too morally and politically neutral. The notion of not being free to leave a country is repugnant to me. Even Ukraine’s decision to not allow men of fighting age to leave their homeland irritated a latent individualism inside of me. Let each man decide for himself who and what is worth fighting for, I argued to Ben over dinner one night. But a sovereign state’s right to control whom it lets in is central to the very notion of a sovereign state, and is often accepted as a neutral fact of statehood. The reality, of course, is that one country’s right to control whom it lets in can effectively deprive the citizens of another country the ability to leave their country for another. It goes without saying that this is particularly troubling when considered in the context of refugees. The (aspirational) UN Declaration of Human Rights does recognize the right of individuals to leave (and return to) their own countries. (Note that the UDHR also recognizes an expansive right to an adequate standard of living. Lol.) On some level, how can a scheme that lets some people in and keeps other people out, and which makes some people wait in Mexico and others wait in a hielera be anything but arbitrary and capricious?
Hielera is the Spanish word for “icebox,” which is used to refer to [freezing] immigration holding centers.
Fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.