Opinion: Yes, there is a crisis at the border

James Jay Carafano

The situation at the U.S. southern border continues to deteriorate. Thousands now cross the border illegally every day. In March, authorities apprehended 92,607 immigrants who entered the country illegally — the highest monthly total in more than a decade.

President Donald Trump visits a new section of the border wall with Mexico in Calexico, Calif., Friday April 5, 2019. Gloria Chavez with the U.S. Border Patrol, center, and Homeland Security Secretary Kirstjen Nielsen listen.

Unlike past waves of immigrants, those now entering our country illegally are not primarily from Mexico, nor are they primarily single men. Instead, they come mostly from the Northern Triangle: Honduras, Guatemala, and El Salvador. Nearly two thirds (64 percent) of those coming in illegally arrive as either whole or partial families (i.e., parents with minor children) or are unaccompanied children.

The number trying to claim asylum also has been rising steadily. It is now commonplace for those who are apprehended crossing illegally and those who are denied entry at ports of entry to claim asylum. Most who claim asylum are able to pass the initial “credible fear” hearing, but only around 10 percent of Central Americans who claim asylum will ultimately be granted it.

What do these various types of immigrants – family units, unaccompanied children, and asylum seekers—all have in common? When they are stopped or caught, all are given court dates and then released into the U.S. Most fail to show up to their court hearings. They just stay and hope the system never catches up with them.

Almost inevitably, it doesn’t. Of those caught entering the country illegally in FY 2017, either as family units or unaccompanied minors, 98 percent remain in the U.S. today. Of those who pass a credible fear hearing and are released, 40 percent never file for asylum.

Even with the no-shows, the sheer volume of illegal immigration is overwhelming our immigration court system. Over the last decade, the average wait time for a court hearing has grown from a little over one year in 2009 to almost two years today. This ill-serves those who have valid claims, while giving others more time to “disappear.”

Another problem is that simply trying to manage this level and type of illegal immigration is taking away resources from other important border security and trade missions. Border patrol agents regularly report seeing drug trafficking organizations and gangs send large groups of immigrants into certain sectors to overwhelm DHS’s capabilities.

While the Border Patrol is busy trying to manage large groups of immigrants entering the country illegally (especially children, who require extra care), the traffickers are free to engage in other illicit activities. Meanwhile, U.S. Customs and Border Protection is being forced to pull officials away from ports of entry, where legitimate trade and travel take place, to manage the surge in illegal immigration.

No one is well served by this situation, not American citizens, not immigrants who entered the country legally, not those engaged in trade, and not even the illegal immigrants who are sending more and more women and children on long, dangerous treks run by violent and vile criminal organizations.

That’s the bad news.

The good news is that we know what’s causing this. While some like to point to violence and crime in Central America as the main cause for the increase in illegal immigration, crime levels there have actually fallen significantly. If the theory is that high crime rates cause increases in migration, then we should expect migration due to crime to fall when crime falls. But instead the opposite is happening. Sure, crime and instability may be “push” factors in the decision to risk immigrating illegally, but they do not appear to be the driving ones.

Instead, the rapid rise in illegal immigration has been caused by weak U.S. laws and loopholes. Why did we catch over 53,000 family units this past March but only 1,126 in March 2017? Because in 2016, the 9th Circuit interpreted a 1997 court settlement known as Flores to say that the U.S. government was not allowed to detain alien children who crossed into the U.S. with their parents. Prior to this, the U.S. was generally able to detain and quickly remove immigrant families who entered the country illegally, thus deterring most from trying. But after this ruling, word started to get out that if you came to the border with your children, you would be caught and then released.

Similarly, if any unaccompanied children from a country other than Mexico show up at the border, the U.S. is required to release them because of the well-intentioned Trafficking Victims Protection Reauthorization Act of 2008.

The asylum process only further grinds the process to a halt and all but guarantees that most anyone who makes it to our southern border will be allowed to enter.

Taken together, these weak laws and loopholes have made a shambles of our legal immigration system. When almost everyone who gets caught is released, and almost no one who gets released is ever deported, the system is dysfunctional. Worse, it directly encourages illegal immigration.

If we wish to stop illegal immigration, we must close these loopholes and correct the laws to allow the government to detain and quickly repatriate immigrant families and children who enter the country illegally. We must also reform the asylum system to better serve those with legitimate claims. This might be accomplished by allowing their claims to be heard in Mexico or their home country, while raising the bar for applications made at our border.

The really ugly news is that, despite knowing what the problems are and how to fix them, Congress has for years failed to act. Even today, with illegal immigration reaching new extremes, Congress seems paralyzed. The rise of far-left progressives who see no problem with illegal immigration and want to abolish ICE or otherwise prevent the enforcement of U.S. immigrations laws makes the possibility of meaningful congressional action seem even more remote.

President Donald Trump has acted dramatically to call attention to the crisis at the border. In just the last month, he has replaced the leadership team at the Department of Homeland Security, threatened to cut off aid to non-cooperating countries and floated the idea of dumping asylum-seekers in sanctuary cities.

Some may argue that these are just stunts. That’s debatable. There is no question the president wants to show that he is doing everything in his power to get the situation under control. In the end, he hopes this will place pressure on Congress — either to help close the legal loopholes propelling the current flood of immigration and provide the resources to secure the border, or accept the blame for allowing the crisis to go unchecked.

A Heritage Foundation vice president, James Jay Carafano directs the think tank’s research on matters of national security and foreign affairs.