De-Magnetizing the Border with an Iron Will and a Silver Tongue

After weeks of snarling, teeth gnashing, and Nazi death camp analogies by the media and punditocracy, President Trump ordered family separation of illegal crossers at the border to end.

U.S. Rep. Mario Diaz-Balart (R-Fla.) summed up the conundrum facing policymakers:

We want to make sure that the families are not divided, and yet we do have to secure the border . . . [Detaining families together] is an option, and if somebody has a better one, we’d like to look at it.

So what to do?

There are two principle short-term policy options in a post-family separation settlement. Either detain and prosecute all comers but hold together as family units or release crossers in the United States, with a notice to appear in court later.

Each has practical hurdles and requires a political consensus to execute but the latter, as discussed below, will only worsen the problem in the long term, effectively super-charging the border magnet, even it is an easier lift in the short term.

To Detain or Not to Detain . . . ?

Although Trump’s executive order explicitly did not end the “zero tolerance” prosecution policy, the influx of border crossing Unaccompanied Alien Children (UACs) and family units has overwhelmed DHS’s ability to accommodate unified families in detention. In the latest twist, the Administration says it lacks the resources to hold the parents and children, anyway.

If the trend of the last few months hold, over 40,000 people will be apprehended at the border in June including 9,500 individuals family units and 6,500 UACs.

Since the feds only have about 3,300 beds for detaining families, the overflow of apprehended illegal crossers has to be handled somehow. With over 420 family unit individuals crossing daily, Trump is now turning to the military to provide tens of thousands of beds and accommodation for detained crossers.

But with only 334 immigration judges equipped and trained to handle the case load, wait times for adjudication of the detained immigrants’ cases now exceeds 40 days.

The story is similar for UACs with over 76,000 cases pending as of April 1 and growing massively since then.

So, the turnover rate in government provided beds is slow, the caseloads are huge, and the judges overworked with no end in sight. With strained resources, the entire immigration system is at a breaking point.

If You Love Somebody, Set Them Free?

Even Obama’s own DHS Secretary Jeh Johnson publicly rejected the release-first approach over the weekend, “We can’t have catch and release and in my three years we deported, or repatriated or returned over a million people.”

Contrary to the wishes of the media and commentariat, the American people don’t want consequence-free policies. Only 21 percent of CBS poll respondents want a return to “catch and release” of illegal entries, whereby the entire family is released in the United States and expected to show up to court. Forty-eight percent want immediate family reunification via deportation. A YouGov poll confirmed the sentiment, with only 19 percent preferring to “Release the families and have them report back for an immigration hearing at a later date” while a whopping 64 percent wanted some form of detention for the parents.

Critics point out there is a working model for “alternatives to detention” or ATD.

In fact, that policy—to provide notice to appear, release on bond, or some type of monitoring—has been held up as an effective alternative to universal detention by a series of immigrant rights defenders from CATO to the ACLU.  

Except of course, these claims are disingenuous and convenient because the hard Left decries  as inhumane any plan to use ankle monitoring to track and eventually deport failed asylum claimants and inadmissible aliens.

They don’t really want any illegal migrants or false asylum seekers removed at all.

And aside from detention, there’s no certainty that a border crosser will appear at court. According to immigration judge Mark Metcalf’s analysis, more than 50 percent of aliens released or never detained eventually fail to appear at their court hearings and are ordered removed. The official figure, which Metcalf argues is artificially undercounting failures to appear, now averages about 40 percent of aliens absconding from FY2014 to FY2016.

Asylum Roulette

At the same time, the number of asylum claims is skyrocketing from Central America’s “Northern Triangle” countries (Guatemala, El Salvador, and Honduras)—rising 892 percent since 2012. In FY2017, nearly 80,000 Central Americans claimed asylum at the border yet less than 5 percent of their claims are ever granted.

The incomplete available data for FY2018 is even more telling, in the first 6 months of the fiscal year over 60,000 defensive asylum claims (the type of claim filed by border crossers to avoid expedited removal proceedings) have been filed through March.

Not So Innocent

But most migrants are not actually seeking asylum, as one alien admitted to the New York Times on June 17th:

Elsa Johana Ortiz Enriquez packed up what little she had in Guatemala and traveled across Mexico with her 8-year-old son, Anthony. In a group, they rafted across the Rio Grande into Texas. From there they intended to join her boyfriend, Edgar, who had found a construction job in the United States. [Bold mine]

And some are callously risking the lives and welfare of their children to game the U.S. immigration system:

This is the reason I brought a minor with me,” said Guillermo T., 57, a construction worker who recently arrived in Arizona. Facing unemployment at home in Guatemala, he decided to head north; he had been told that bringing his 16-year-old daughter would assure passage. He asked that only his first named be used to avoid consequences with his immigration case. “She was my passport,” he said of his daughter.

And the American public has taken notice of the cynical use of children by their illegal alien parents. Fifty-four percent of public blames the border crossing parents for the crisis compared to 35 percent Trump and/or the government, according to Rasmussen.  

While there’s no need to diminish legitimate need for a functional asylum process for the deserving, in fact, bad economics is the real driver of Central American migration, as many aliens admit freely:

Iván Buezo said he is determined to make it back to the U.S. after recently being detained in Houston and deported. Days after being flown back to Honduras, the 17-year-old was waiting for a bus, ready for another attempt at migrating to the U.S., where he wants to find a job. In Honduras, he said he can earn just $5 a day working on a farm. “You can’t make any money here,” he said. “I want to go to work, to have a better future.”

According to a 2012 Gallup survey, between 15 and 20 percent of those Central American countries would move to the United States if given the opportunity. That’s roughly 5 to 7 million individuals who want to come here.

Make no mistake, these migrants aren’t nincompoops: they are actively engaged in finding the best way to enter the United States without consequences and have been doing so for a while.

As the Wall Street Journal reported in 2016:

The controversial tactic temporarily lifts the threat of deportation from undocumented immigrants. The asylum claims also enable applicants to obtain work permits and driver’s licenses while their cases crawl through the adjudication process…Government data that would capture the recent surge in such applications isn’t yet available. But an American Immigration Lawyers Association advisory last month outlining “ethical considerations” relevant to such applications said, “the practice has become widespread.” The strategy is hotly debated in the legal community, with some attorneys saying that applicants with bona fide claims are disadvantaged by a backlog exacerbated by those whose cases lack merit…Asylum applicants are entitled to file for a work permit if their application has been pending for 150 days. Given the current backlog in the immigration system, it can take three or four years for that first interview to take place, which ensures the issuance of work permits. “The backlog is created by these lawyers literally flooding the asylum office with cases that lack merit,” said Charles Kuck, an Atlanta attorney. “It’s an abuse of the law.”

So, under the previous framework, by uttering the word asylum, claimants got to work and drive and blend in to society as their case winds it way through courts—which can take years.

In addition to getting all the benefits of a life in the United States without waiting in line, they are disadvantaging legitimate claimants by clogging the courts with baseless, selfish claims.

More than a year after the dust settled on the last Central American migrant surge in 2014, some interesting facts came to light:

According to Border Patrol interviews conducted during this past summer, many illegal immigrants told authorities they believed the U.S. was allowing families to stay, speaking of “permisos” to remain in the country. An internal Border Patrol report concerning the situation was obtained by Republicans on the House Judiciary Committee and first reported by the Associated Press in October… The Border Patrol found that 68% of the illegal immigrants interviewed believed either that the U.S. was offering some form of asylum or amnesty. Federal agents found that 64% of the individuals interviewed believed that the U.S. was granting work permits to those who arrived as a family. Part of the challenge is a recent change to U.S. immigration policy that makes it more difficult to detain families arriving with children. A federal judge ruled this year that immigration officials must quickly release families with children from detention centers, saying that such an action violates a 1997 settlement not to hold children. The federal government has appealed that decision and is asking for an expedited hearing. “Thing that’s driving it is that when children and family units arrive, generally they are permitted to stay while they’re in removal proceedings, said Marc Rosenblum, deputy director of nonpartisan Migration Policy Institute’s U.S. Immigration Policy Program. “That process typically takes a year or two—or longer.” Mr. Rosenblum said migrant families are being freed and told to appear in federal court. “That looks a lot like a ‘permiso’ to them,” he said.

Thus, despite claims of violence and other horrendous situations driving the migrant surge, it is now clear that the magnet was the subtle signals from Obama that amnesty or leniency, especially for families and children, was the order of the day.

If we return to ‘catch and release’ even if only for families and children, the magnet’s pull will only get stronger by backing down. It will eventually force another 1986-style mass amnesty of everyone who managed to abscond or simply tie up the courts long enough to avoid being permanently repatriated.

Playing the Long Game

With public support behind some form of detention, Trump has some political capital to spend to solve this crisis. But he needs a strategy, not just in the immediate future, but for the long run.

Like during the Cold War, the US must revive its information services to stem the flow of migrants and mean what it says about it.

In the battle to secure the border, actions speak louder than words but sending a resounding message is the first step.

If the Administration can continue to detain and prosecute illegal crossings and hold the mostly false asylum claimants until deportation, it must publicize the consequences directly to the people next in line on the migrant caravans.

Via a Radio Free Europe-style broadcast and information dissemination across all media, the federal government must get the message out that border crossing is not permitted, there is no amnesty, and importantly, how dangerous and foolhardy such a crossing is. The drug smugglers and cartels, the careless and dangerous coyotes, the soaring temperatures and hostile conditions make the journey a perilous one before it achieves 100 percent futility upon capture in the United States.

The next step is harder. Trump, the Congress, and the American people must stick to their guns or they will only precipitate another crisis.

As Margaret Thatcher admonished George H.W. Bush, “This is no time to go wobbly.”

To de-magnetize the border, we have to have an iron will and silver tongue.

Photo credit:  MANDEL NGAN/AFP/Getty Images

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