Can we stop the caravan?
As Rod Dreher notes, the sight of thousands of Central Americans making their way en masse to the United States forces us to ask: “How far would we go to defend the sovereignty of our nations from invaders who want to cross our borders not with weapons to conquer, but nevertheless to settle here?”
The president’s threat to deploy the military to the border to stop the caravan conjures images of gunning down unarmed border infiltrators. This is precisely the kind of confrontation that some of the radicals cheering the caravan would love to see.
But this isn’t a military problem. It’s a law-enforcement problem, and one that ordinary civilian law enforcement can solve if provided with the right tools — which it does not have right now. The current rules regarding asylum and the treatment of alien minors, and the inadequate level of funding for detention of people applying for asylum (to make sure they can’t run off when their cases are rejected), effectively force immigration authorities into a catch-and-release policy, where aliens crossing the border are given a court date and then let go. This is a powerful incentive for more people to follow.
The incentive is so powerful that the current caravan is just the most photogenic part of the problem; fiscal-year 2018 statistics show that a slow-motion caravan confronts the border every day, with a daily average in September of more than 500 illegal aliens traveling in family units apprehended on the border (and soon released). Many others walk up to an immigration inspector at a legal crossing point on the Mexican border (“port of entry” is the technical term) and simply utter the magic word “asylum” and get in.
What to do? Deploying troops won’t do any good because they can’t arrest people; it would be just like the National Guard deployments under the Bush, Obama, and current administrations, where troops assisted the Border Patrol in reconnaissance and the like, which is fine as far as it goes but doesn’t solve anything. And they’re obviously not going to open fire on unarmed people. Even land mines and machines guns atop concrete border walls wouldn’t matter much, since most of those arriving would simply go to a legal port of entry. (About one-third of last spring’s caravan actually made it all the way to the border, and of those, the large majority went to ports of entry.)
The president’s threat to cut off foreign aid to the source and transit countries south of the border is less fanciful but still counterproductive. The whole point of that money is to reduce emigration pressures, so eliminating it would seem to be a case of cutting off your nose to spite your face. If the aid isn’t doing any good, we should just cut it off, caravan or no caravan, rather than using it as a threat.
The president’s threat to shut down the border is a more realistic way to pressure Mexico to stop the caravan. President Nixon did essentially that in 1969 to pressure Mexico on drugs. President Reagan did the same in 1985 in the wake of Mexican recalcitrance in investigating the kidnapping of DEA agent Kiki Camarena. Or, if some large share of the caravan descends upon a single port of entry, we just close that one. This would cause more pain on our side than in decades past, because our economy is more integrated with Mexico’s than it was in the 1960 or even the 1980s, but the pain would still be significantly greater for Mexico.
Other measures could include deputizing state and local law enforcement to make immigration arrests (which the law permits in the case of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border”), setting up emergency tent-city detention centers on the border, and/or using the travel-ban authority to prohibit the admission of anyone participating in a caravan.
All that and more may well already be included in the existing contingency plans for coping with a “Mass Immigration Emergency,” which the president could well declare if the caravan reaches our border with the kinds of numbers we’re seeing in southern Mexico. The Washington Post reported Thursday that such measures are under active consideration.
But the caravan, and new ones forming behind it, are merely symptoms. The problem is an overly permissive asylum system (including rules for dealing with illegal-alien minors) that has become the preferred way to penetrate our borders for those with no other way to do so. And only Congress can fix that.
In a sense, forcing Mexico to stop the caravans before they get to our border, or even declaring a Mass Immigration Emergency, really just lets congressional Democrats off the hook. Given the persistence of the filibuster rule requiring a supermajority for the passage of any legislation to plug border leaks (like the Flores agreement and the Trafficking Victims Protection Reauthorization Act — both regarding minors — and low standards for establishing the “credible fear” needed to justify asylum) or to increase detention capacity, Chuck Schumer has an effective veto over efforts to enforce the border. Political pressure must be brought to bear on Democratic lawmakers, not just through White House statements, but also by the Republican leadership in Congress forcing them to vote on targeted measures addressing specific vulnerabilities.
But a longer-term plan is also needed. As border control improves and we (hopefully) do a better job of policing legal visitors to ensure their timely departure, bogus claims of asylum are going to become the primary way to circumvent immigration limits. One concept that must be operationalized both in statute and through bilateral agreements is “safe third country.” The 1967 Protocol Relating to the Status of Refugees, the U.N. treaty that governs these matters, says states must recognize the refugee status of aliens “coming directly from a territory where their life or freedom was threatened.” People who pass through other countries with asylum systems (such as Mexico) should not be permitted even to apply for asylum because they are, by definition, no longer fleeing persecution.
Another long-term objective should be to limit the grounds for asylum. Currently the U.N. language, incorporated into the 1980 Refugee Act, says asylum is for those persecuted because of their “race, religion, nationality, membership of a particular social group or political opinion.” It is the fourth of these five categories that has been the source of much mischief; “membership in a particular social group” is a catch-all that activist lawyers and their judicial accomplices have used to try to pry open our borders, concocting non-existent “groups” as a way of finagling asylum. As Justice Samuel Alito wrote when he was still a circuit-court judge, “read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.'” The attorney general is instructing immigration judges to interpret the term narrowly, but only excising it from the law altogether can prevent its use by the opponents of borders.
But the U.N. treaty mandates “particular social group” as a basis for asylum. For that reason, and more generally to reassert control over who is allowed into our country, the president should withdraw from the treaty. As it stands now, we have created a “right” to asylum in the United States, a surrender of sovereignty whose consequences are becoming increasingly clear. Only the American people, through their elected representatives, should decide who gets to move here, not individual foreigners asserting a “right” created by the U.N. and vindicated by post-national anti-borders activists. The subtitle of John Fonte’s 2011 book poses the first question we must ask ourselves in assessing asylum policy: “Will Americans Rule Themselves or Be Ruled by Others?”