Magazine | July 9, 2018, Issue

Enforce Immigration Law or Change It

A U.S. Border Patrol agent at the U.S.-Mexican border near Calexico, Calif., in 2017. (Mike Blake/Reuters)
What’s needed is Congress

The United States maintains a policy of separating children from their parents in the case of illegal border crossings in the same sense that the United States has a policy of separating parents from their children when those parents are sent to prison for murder or tax evasion or are jailed for unpaid speeding tickets — or, for a more exact parallel, when we hold them in custody prior to trial.

For all the angst and wailing about the Trump administration’s so-called zero-tolerance policy at the southern border, there has been almost no acknowledgment of the basic facts of the case: 1) Unlike the mere act of being illegally present in the United States, which is a civil offense, crossing the border illegally is a criminal offense; 2) the president and his administration are sworn to see to the faithful execution of the laws of the United States; 3) the responsibility of the U.S. government is to the people of the United States at whose sufferance it governs, not to the world at large, in immigration law as in other matters; 4) those poor children are indeed put in a terrible situation — by their parents, directly, and indirectly by their home governments.

But, oh, how people love to denounce. Michael V. Hayden, CIA director during the George W. Bush administration, compared the arrest of illegal immigrants at the border and the subsequent separation of parents from their children to Nazi atrocities, a declaration of moral illiteracy if ever there was one. The New York Times has made a special crusade of the issue and published hilariously convoluted accounts of how the Trump administration’s decision actually to enforce the law on the books is a marked departure from the policy of the Obama administration, which, of course, it is, a rare case of truth in political advertising. Bill Clinton, who once dispatched armed men into a private home to seize a boy legally residing with family in the United States and ship him off to Fidel Castro’s gulag, has wagged his finger at the Trump administration. (He is a world-champion finger-wagger, as many of you will remember.) Mrs. Clinton, back to stand-by-your-man mode, put in her “Amen!” Dianne Feinstein and 42 of her fellow Senate Democrats are putting forward a bill that would forbid such family separations, but there are at the moment zero backers of any bill doing what the Trump administration’s critics are in effect demanding without having the gonadal capacity to say so: decriminalizing unauthorized border crossings. That’s what the slogan “No human being is illegal” means.

If Senator Feinstein et al. want to revoke the criminal penalties associated with illegally crossing the border, then let them put forward a bill to do so. If they don’t think illegal entry should be a crime, then they should say so. If enforcing the law as it is written is monstrous, then it is the law itself that is monstrous, not its enforcement.

When U.S. authorities apprehend would-be illegal immigrants crossing the border — illegally — they generally arrest them for the crime that they are manifestly in the process of committing, move that charge through an expedited judicial process, and then deport them back to Mexico.

That all happens pretty quickly — usually.

Sometimes, those illegals are wanted in the United States on other criminal charges. The repeated failure of the Obama administration and its predecessors to meaningfully address the problem of violent criminals’ coming and going at will across the U.S.–Mexico border is, in case you have forgotten, the proximate cause of the Donald Trump presidency. It was the case of Kate Steinle — shot to death by an illegal immigrant deported from the U.S. five times, with seven felony convictions on his record — that gave Trump his first real foothold in national politics. The United States is learning the same lesson that is being taught the hard way in Europe: If responsible actors refuse to deal seriously with immigration, there are sundry populist-nationalists of varying degrees of respectability or nastiness waiting on the sidelines to pick up that dropped ball. You know how the Trump guys are always saying, “This is how you got Trump”?

That is how you got Trump.

The other source of delay, increasingly relevant at the southern border, is the fact that many of those coming illegally are doing so not from Mexico but through Mexico, from Central America. Sending Mexicans back across the border on foot or by bus is pretty easy; chartering planes to send Salvadorans back to Ahuachapán via “ICE Air” is more complicated.

And it’s even more complicated when those in custody claim to be refugees seeking political asylum, which almost none of them are. The overwhelming majority are economic immigrants who would never think of following the legal procedure for seeking asylum — presenting themselves at a U.S. port of entry or abroad — if they hadn’t been caught trying to sneak across the border. Asylum claims not made through the existing process should be resolved quickly — ideally in less than 48 hours — and rejected in all but the most extraordinary of circumstances, which would allow speedy family reunification prior to deportation.

This is a case of what John Bolton famously called “provocative weakness.” For decades, the lax to unbelievably negligent enforcement of U.S. immigration law — combined with the Kafkaesque horror show that is the legal, aboveboard U.S. immigration system — created a powerful lure for very poor people with a desire to work and not much to lose to just pack up such worldly goods as they could carry and skip across the Rio Grande to pick tomatoes or clean motel rooms or hang drywall, all of which beat foundering in greater poverty and hopelessness in Mexico. For years, the U.S. government more or less ignored illegal immigration, give or take the occasional enthusiasm of Lieutenant General Joseph Swing and his “Operation Wetback” or President Ronald Reagan and his amnesty. Most of the illegal immigrants at that time were young Mexican men traveling alone, often sending remittances to family back home. But, over time, networks and communities emerged. Illegals started bringing family from back home or forming families in the United States. The more illegals there were in the United States, the easier it was for more to come. It’s the public-policy version of what the tort lawyers call an “attractive nuisance.”

It was natural that the informal (and often criminal) networks that evolved to serve Mexican illegals would come into the service of others seeking unauthorized entry to the United States, especially Spanish-speaking people able to travel easily to Mexico.

In 1997, a court ruling (known as the Flores decree) mandated that unaccompanied children apprehended making illegal entries not be held in federal custody for more than 20 days, and a subsequent decision applied the same rule to minors arriving illegally with family. Asylum cases drag on for months and months, and illegal entrants waiting for asylum hearings have a tendency to be less than diligent about showing up for court.

So, what to do?

We can’t incarcerate men, women, and children together for obvious safety reasons, and even if we did incarcerate families as units, we’d have to let the children go under the Flores rule. We could, one supposes, simply march those apprehended entering illegally back into Mexico and let the Mexicans deal with them — which in all likelihood would be a good deal worse for parents and children both than anything they would be likely to experience in U.S. custody. Mexico hands down two-year prison sentences for illegal entry.

Or, we could do what the Obama administration did, and what the critics of the Trump administration want it to do, which is to stop enforcing the law and allow some illegal immigrants to instrumentalize their children, using them as get-out-of-jail-free cards. But if we do that, we should prepare for what will come next. If you open the floodgates, you get a flood.

The people of the United States, like the people of any polity, have the sovereign right to determine for themselves who joins that polity and on what terms. The government of the United States — which is only their instrument — has a duty to carry out those policies, executing the laws passed by the people’s duly elected representatives. If the members of Congress don’t like the law, it is entirely within their power to change it and face the consequences at the next election rather than take the current cowardly path and act as though this is purely a matter of innovation on the part of the Trump administration.

And while there is much we could and should do to alleviate the terrible economic and political conditions that often prevail south of our border (imagine how much better off the United States would be if our immediate neighbor to the south were as rich as Germany or Norway), the American government is there to look after the interests of Americans. And Americans apparently have their own ideas about what their interests are when it comes to illegal immigration, in spite of the judgment of the New York Times and Senator Feinstein.

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