Caravans, Congress, and the Courts
by

President Trump has threatened to permanently close the U.S.-Mexico border if he cannot strike a deal with the incoming Mexican government, under which migrants will await in Mexico the outcome of court fights in the U.S. If he succeeds, the immediate danger that the caravan would simply overrun the border as the courts paralyze the administration will be averted. Mexico’s new government comes to power December 1. The deal would double the U.S.’s migrant processing capacity and would alleviate applicant pressure at U.S. ports of entry. The failed effort of 500 massed migrants, some hurling rocks at U.S. border patrol agents, to force their way over the border, stopped by volleys of tear gas, signals dramatically the threat posed by such caravans. The Mexican government plans to deport the migrants who rushed the border. A Honduran migrant was quoted as saying that 20,000 migrants will assemble in Tijuana to march north on the highway and then cross the California border en masse. He called U.S. asylum applicant processing procedures “a waste of time.”

President Trump’s November 9 proclamation: (a) suspends for 90 days entry of aliens crossing U.S.-Mexico border, with “broad exceptions” for asylum seekers; (b) issued new asylum regulation enabling the president to bar groups of aliens from entry unless processed through ports of entry. The president’s order relied on two border security provisions enacted by Congress in the Immigration and Naturalization Act of 1952, those governing inadmissible aliens and travel controls.

Significantly, the president’s proclamation cited these facts:

The United States expects the arrival at the border between the United States and Mexico (southern border) of a substantial number of aliens primarily from Central America who appear to have no lawful basis for admission into our country. They are traveling in large, organized groups through Mexico and reportedly intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit. Many entered Mexico unlawfully — some with violence — and have rejected opportunities to apply for asylum and benefits in Mexico. The arrival of large numbers of aliens will contribute to the overloading of our immigration and asylum system and to the release of thousands of aliens into the interior of the United States. The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders. I therefore must take immediate action to protect the national interest, and to maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum. [Italics mine.]

In recent weeks, an average of approximately 2,000 inadmissible aliens have entered each day at our southern border. In Fiscal Year 2018 overall, 124,511 aliens were found inadmissible at ports of entry on the southern border, while 396,579 aliens were apprehended entering the United States unlawfully between such ports of entry. The great number of aliens who cross unlawfully into the United States through the southern border consumes tremendous resources as the Government seeks to surveil, apprehend, screen, process, and detain them.

Aliens who enter the United States unlawfully or without proper documentation and are subject to expedited removal may avoid being promptly removed by demonstrating, during an initial screening process, a credible fear of persecution or torture. Approximately 2 decades ago, most aliens deemed inadmissible at a port of entry or apprehended after unlawfully entering the United States through the southern border were single adults who were promptly returned to Mexico, and very few asserted a fear of return. Since then, however, there has been a massive increase in fear-of-persecution or torture claims by aliens who enter the United States through the southern border. The vast majority of such aliens are found to satisfy the credible-fear threshold, although only a fraction of the claimants whose claims are adjudicated ultimately qualify for asylum or other protection. Aliens found to have a credible fear are often released into the interior of the United States, as a result of a lack of detention space and a variety of other legal and practical difficulties, pending adjudication of their claims in a full removal proceeding in immigration court. The immigration adjudication process often takes years to complete because of the growing volume of claims and because of the need to expedite proceedings for detained aliens. During that time, many released aliens fail to appear for hearings, do not comply with subsequent orders of removal, or are difficult to locate and remove.…

The United States has a long and proud history of offering protection to aliens who are fleeing persecution and torture and who qualify under the standards articulated in our immigration laws, including through our asylum system and the Refugee Admissions Program. But our system is being overwhelmed by migration through our southern border. Crossing the border to avoid detection and then, if apprehended, claiming a fear of persecution is in too many instances an avenue to near-automatic release into the interior of the United States. Once released, such aliens are very difficult to remove. An additional influx of large groups of aliens arriving at once through the southern border would add tremendous strain to an already taxed system, especially if they avoid orderly processing by unlawfully crossing the southern border.

These factual recitations are readily ascertainable by anyone with access to televised or internet news. They were dismissed by the Court in shockingly cavalier fashion, as if simply being irrelevant.

On November 19, Judge Jon Tigar, an Obama federal district court appointee sitting in San Francisco, held that the proposed rules violate the 1952 Immigration and Nationality Act — specifically, a section of the Act (8 USC sec. 1158(a)), amended in 1996 to clarify procedures for control of alien entrants, that governs admissibility of aliens who enter illegally — and hence he blocked enforcement of the proclamation. The judge’s opinion specifically referred to Ninth Circuit cases calling for special consideration for asylum seekers:

In particular, the Ninth Circuit has repeatedly observed that in exercising discretion to grant asylum. The agency should take into account that bona fide asylum seekers may feel compelled to violate immigration laws “to gain entry into a safe haven,” and “that deception ‘does not detract from but supports [a] claim for fear of persecution.’” [Italics mine.]

The Ninth Circuit has been repeatedly forum-shopped by leftist plaintiffs in what amounts to domestic ideological warfare.

The heart of Judge Tigar’s order (setting aside several procedural issues) is that Congress expressly prohibited what the president proposes, in specific legislative provisions governing handling of asylum applications. Judge Tigar rejected the administration’s reliance on provisions governing admissibility by crediting the asylum seekers as likely genuine applicants.

The judge’s order is defective for these reasons: (a) the order fails to address the president’s constitutional powers pertinent to border security; (b) the judge ignores that most asylum seekers will not pass muster; (c) the order ignores that the vast majority of illegal entrants will melt into the huge American interior, and never show up for the hearing they sought; (d) the judge ignores massive immigration fraud by activists and lawyers, who seek to effectively nullify the president’s ability to protect the border against caravan invasions.

The judge simply ignores the reality as stated in the president’s proclamation. Put plainly, the vast majority of entrants are perpetrating a fraud on the courts. They are filing applications for an asylum that they are not entitled to, being economic migrants. They are being coached by their lawyers to file false affidavits, and to ask for an asylum hearing when they have no intention of showing up. Sanctuary groups, cities, and even states will shelter them.

The latest immigration news is that smugglers slash their prices if migrants bring children with them: “Human smugglers slash their $10,000 per-person price when migrants bring children up to the U.S. border to exploit asylum loopholes, says the Washington Post.

Reached by phone in Kansas City, [Denys Adelmo] Mejia said he saved thousands of dollars by traveling with a child. His smuggler would have charged $10,000 if he had been traveling alone, he said; with Elizabeth Dayana, it cost $4,500 for both of them. He has three years to pay this off — in monthly installments — or his mother could lose her house.

“When you come with a child, [the smuggler] only delivers you to the Border Patrol,” said Mejia. “When you’re coming alone, they have to take you all the way across the desert.”

The upshot: Mexican villages are losing children, including many who are taken by adults not their parents; the migrants then falsely claim the kids as their own children.

Also significant is that, continuing what has become a feature of left-leaning federal courts, the judge made his order applicable nationwide, citing the need for uniformity in immigration enforcement. But the president’s order addresses a crisis situation particular to four statesbordering Mexico. There are no caravans approaching elsewhere in the U.S., by land, sea or air. Rhode Island, Long Island, Kiawah Island, the Hawaiian archipelago, need not worry.

Growing use of this extraterritorial extension of jurisdiction by federal courts was criticized by former Attorney General Jeff Sessions in an October 2018 address. Sessions noted therein that in the first 175 years of the American constitutional republic no federal judge had asserted nationwide jurisdiction. In the ensuing 65 years that such rulings have been made, their use accelerated sharply during the first 21 months of the Trump administration, with 27 such rulings. This does not include rulings like Judge Tigar’s, made in the five weeks since mid-October.

Sessions also cited two other practices, what he termed “encroachments” by the judicial branch, on the powers assigned by the Framers to the legislative and executive branches: (a) ignoring traditional doctrines of “justiciability” (jurisdiction — the kinds of cases courts have power to decide), and “standing” (who may bring a given lawsuit); and (b) inquiring into the motives of executive branch officials, rather than whether actions taken by such officials were lawful. Of jurisdiction, Sessions stated:

Indeed, courts are even ignoring explicit congressional directives that strip them of jurisdiction to decide certain questions. For example, with respect to the designation of Temporary Protected Status, Congress has provided that “[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”

Yet, after the Secretary justifiably decided to terminate the designation for individuals from four countries, a federal district court held it does have jurisdiction to review the decision.

When President Trump criticized Judge Tigar’s decision, noting Tigar is an Obama appointee, he was rebuked by Chief Justice John Roberts; yet as Senate Judiciary Chairman Chuck Grassley pointed out, when on several occasions former president Obama rebuked the Supremes — and even warned the federal courts not to strike down Obamacare as unconstitutional — the chief justice was silent. Later, Roberts switched sides at the eleventh hour, providing the fifth vote to uphold the constitutionality of the Obamacare individual mandate.

Leave us recall, as well, the disposition by the Clinton administration of the Elian Gonzalez case. His mother and relatives set sail for Florida in a leaky boat in November 1999; a storm finished off the boat, including most of the passengers — most tragically, Elian’s mother. Picked up by the Coast Guard, Elian was taken to hospital for medical attention, and then placed with relatives in Miami’s Little Havana. The photo of a frightened Elian in a relative’s arms, confronted by an INS agent wielding an M4 military carbine, captured the essence of what Team Clinton did. Fidel Castro cleverly manipulated the situation, getting Elian’s father, who had divorced the mother and not seen the boy for at least a year, to ask for his return. American courts complied, despite the fact that Elian was being returned to a hostile Communist tyranny. Castro, more astute at PR than anyone on Madison Avenue, made the boy a Young Communist and later a lifetime supporter of the regime. (This is not to say that Elian was unhappy to see his dad, or that his dad was unhappy either. But Castro ran the show in Cuba, and Elian’s dad was not free, should he have so wished, to refuse Castro’s request to call for his son’s return.)

Bottom Line. A coalition of leftist groups is running a migrant smuggling operation, using force of numbers to overwhelm our order resources, and game our judicial system by filing phony asylum claims by the carload. The lawyers avoid fraud charges by not knowing which given members of the group are genuine refugees and which petitioners before American courts will skip the asylum hearing.

Open borders advocates cite our traditional hospitality extended to immigrants, but there is no legitimate precedent for this kind of mode of entry. The caravan is open smuggling by “coyotes” in the southwest lands, with proceeds going to the drug cartels. The national security interest here is substantial: Either America controls its borders meaningfully, or it ceases to exist as a full-fledged country.

A preview of what we are in for if we do not get migrant flow from Mexico and Central America under control is more of what we saw this Thanksgiving weekend: thousands streaming towards our border, either entering unchecked or, if stopped, trying to provoke gross over-reaction. Putting kids and ladies up front may get hardcore open borders advocates the viral video — dead women and children — that could turn the debate against the administration. The Donald’s best “Trump card” is to lean against the incoming Mexican government to nip this in the bud, making this Mexico’s top policy priority re the U.S.

Sovereignty, at minimum, entitles a country to decide who gets in and who stays and who is prevented from entering in the first place. Allowing unrestricted entry and residence, funding of criminal enterprises and bamboozling America’s courts undermines the essential sovereign right of America to exercise full orderly governance and administrative control, “from sea to shining sea.”

John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).

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