Here is an ironclad principle of governance and private property: Nobody has the right to trespass our territory, the same way nobody has a right to step on your personal property without permission. Any claim to asylum is at the discretion of our government, which has the prerogative of ignoring such claims altogether.
Nothing supersedes sovereignty. Yet it appears that, despite the promises to be tough, Trump’s DHS is beginning to process some of the caravan members. And as we mentioned before, every bit of profit from caravan crossings goes directly to the drug cartels – and even, in the case of much of the cocaine trade, to Hezbollah.
Slow motion catch-and-release is still a violation of sovereignty
A few weeks ago, we thought the issue of the caravan was over. A president like Donald Trump would not tolerate a blatant violation of our sovereignty and would not let the caravan on our soil, much less continue the catch-and-release policy. It appears that this posture is crumbling quickly. The administration is telegraphing the wrong message to the politically-driven caravans and the drug cartels that help them cross the border, according to one immigration expert.
“After initial tough talk, the Trump administration has so far allowed about one-third of the remaining caravan participants to come into the United States to make an asylum claim,” said Jessica Vaughan of the Center for Immigration Studies in an interview with CR. “This choice on how to handle the demands of the caravan and its organizers will only encourage others to follow suit and demand the chance to apply also. Already, a group of Mexicans said to be even larger than the Central American group has set up a tent city nearby where the caravan has parked itself in Tijuana.”
Arizona media reported yesterday that 158 illegals were allowed into the border crossing for processing and roughly half the application have been submitted. Another 50 remain camped outside.
While the administration did not let the caravan in carte blanche, it appears to be allowing in a dozen or so every day. “A slow motion catch-and-release process is no better than the routine catch-and-release policy practiced by the Obama administration,” said Vaughan.
As House Homeland Security Committee chair Rep. Michael McCaul said earlier this week, these individuals have been coaxed by the drug cartels, who stand to benefit from both the smuggling profits and the diversion for their drug mules, to say the magic words of “credible fear.” In reality, as we noted before, our statutes do not cover these individuals, because if fear of living in impoverished, violent countries were the litmus test for asylum, over two billion individuals would be eligible for asylum.
This particular group, which is organized by George Soros as a political stunt, is one of the most egregious abuses of asylum. Jessica Vaughan believes they are not even close to the letter or intent of the asylum laws. “First of all, they are in no immediate danger; they are protected by caravan organizers and Mexican police. Moreover, the government of Mexico has already offered the caravan walkers the chance to apply for asylum in Mexico – so those who are actually seeking asylum should be expected to take advantage of that offer.”
There is no right to step on our soil
But there is a broader point to be made. Even legitimate asylum-seekers do not have a categorical right to be accepted through our border entry points and onto our soil. No such right exists, and the presidential power to deny entry, both from inherent Article II powers and delegated authority from Congress (INA sec. 212f), is plenary, as part of the most settled area of law. This is why, according to Vaughan, even “if the U.S. government decides to indulge this country-shopping, it should at least insist that the processing take place in Mexico, so that the migrants and their lawyers cannot take advantage of court-imposed restrictions on detention of new arrivals that inevitably will lead to their release and ability to live and work in the United States indefinitely.”
There is actually precedent for this during past waves of migration from Central American countries. Vaughan says, “According to CBP officers I’ve met with, in the mid-1990s, when similar surges of asylum-seekers showed up on our doorstep, CBP adopted a policy that required visa-less asylum-seekers to make their application at the U.S. embassy in Mexico City.”
As Vaughan explains, anyone who truly wants to help legitimate asylum-seekers and weed them out from the frauds would embrace a policy of processing them at the Mexico City embassy. “Not only is this a shorter journey for the migrants, it avoids the catch-and-release problem altogether and forces Mexico to consider whether it wants to allow these migrants to enter and likely end up settling in Mexico, when the majority are almost certainly going to be unsuccessful in their asylum bid, since most are not actually persecuted, but simply seeking a better life.”
Processing them on our soil runs the risk of having frauds and dangerous individuals abscond and never show up for hearings, while the legitimate ones have to wait forever. “That’s why it’s such a mistake to let them in to pursue their claims, when they can be given generous due process outside our borders.”
We must assert our national rights
We now know there is a growing border surge. And if the administration declines to end catch-and-release for the blatantly political caravans, there’s no doubt those who come individually will be incentivized by such policies.
Imagine if we instead adopted Australia’s policies and automatically took any infiltrator to a secure location outside the country for processing? Then see how many are willing to make the journey.
After years of problems with migrants seeking asylum in Australia by boat, its government established a firm policy of never allowing “the boat people” onshore and instead housed them in a facility in Papua, New Guinea. Although Australia gave in to international pressure to eventually close the facility, which is, in part, why we got stuck with some of those migrants here in the U.S., it worked magic in putting an end to the boat people. If we did the same, or at least made them all process at the Mexico City embassy, there’d be a lot less illegal migration.
Moreover, closing our border entirely to any asylum claim and diverting the processing to our embassy would end much of the smuggling business for the drug cartels. This caravan crossing through Tajuana is undoubtedly paying the Sinaloa cartel, which controls that part of the border and is responsible for most of the heroin deaths in this country.
Finally, let us not forget that even if individuals find a way onto our soil, that does not give them any affirmative right. Constitutional rights on our soil only apply if you come here with consent. That is deeply rooted in social compact theory and settled law. As the court said long ago in United States v. Ju Toy, a person who comes to the country illegally is “to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries.”
At the very least, Trump should adamantly refuse to release from detention the ones he already let in. He is right to demand tougher laws from Congress, but the notion these people must be released is false. Nearly six decades ago the Supreme Court had already said, “For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 1958.
Sovereignty is supreme. It’s time for Trump to make it so again.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.