Immigration Crisis Without a Solution-Really?

The recent influx of Central American children is reported as an apparent crisis without a solution.

At least not without a major change in the law or the way the immigration process works.

Nothing is further from the truth.

This is not the first mass migration crisis. Ask career immigration officials about such events as the late 1970’s Mariel Boatlift, the late 1980’s Nicaraguan South Texas influx, the early 1990’s Haitian Boatlift, and the mid-1990’s “Mini-Cuban Mass Migration Crisis.”

The required fix to the immigration laws was made after the Mariel boatlift, the only mass migration event that caught this country by surprise. In essence, what was changed was to make it an offense to attempt to bring an alien without authorization to the United States, even if you present the alien directly to this country’s immigration authorities rather than sneak the alien in to the country.

Since that time, each crisis was known either before or shortly after it began. And the laws on the booked worked just fine.

I know. I was one of the feds in the inner circle of decision-makers, advisors, and official government actors during each of the subsequent crises except this one.

The Nicaraguan crisis was easily handled. In less than a week after it began, it was handled. A couple of strategy meetings of the top officials at the former Southern Regional Office of the Immigration and Naturalization Service (INS), a couple of teleconferences with Headquarters, the Department of Justice, and a nod from the White House, and a plan of action was implemented that, in very short order, crushed the mass migration effort.

Tent “cities” were set up on the southern border, incoming migrants were held rather than released, INS trial attorneys, including, at my request, me, and Executive Office for Immigration Review (EOIR) judges were flown in from all over the country, and hearings were held in place and without delay.

The hearings offered no challenge to federal officials other than logistical. The reason is that while the law and due process requires that an alien suspected of entering or being in the U.S. in violation of law be provided a hearing, the process is designed to allow that hearing to be shortcut if the alien has no basis for relief.

In short, an illegal alien is presented before a judge and read a charging document that says that he or she is subject to deportation/removal for specific violations. In the case of aliens detained upon arrival, the charge is a very simple one that has to do with their failure to have any status or documents that allow them to be in this country.

The alien is then given an opportunity for a short continuance to seek counsel, by statute, at no cost to the government. If no counsel is sought, or if the alien comes back a couple of days later without counsel or any promise of a possibility of obtaining counsel, the hearing can proceed. If the foreign national comes back with an attorney, the hearing should proceed. Contrary to popular belief, even among some immigration practitioners and uninformed government officials, this is where the hearing can be completed.

The law presumes that once the government proves alienage, the burden shifts to the alien to establish, in essence, his or her right to remain in the U.S. At this point of the hearing, the judge is required to ask what, if any, “relief” from removal the alien will be applying for. If the alien or their counsel identify relief that the alien appears eligible for, the hearing is then continued for a “Merits” hearing at which the parties will present evidence and arguments for or against that assertion. Unfortunately, this is where the process first goes awry if the participating judge and trial attorney do not do their job.

The process has become so sterile and so routine that, in most cases in most jurisdictions, the matter is continued upon a “mere” assertion that the alien will “apply” for relief. In most jurisdictions, at best, that means that the next hearing is months if not years away. And, that means that the immigration service, based on resources if not simple concepts of humanity that should abhor holding a non-criminal violator in custody for months if not years, will release the alien on a mostly hollow “promise” that he or she will appear for their hearing in the future.

However, nothing in the law requires that the matter be continued unless the alien is at least prima facie eligible for the relief that will be addressed at the later hearing.

An alien who just arrived in the U.S., did so illegally, has no meaningful relations, such as a U.S. citizen spouse who can confer immigration benefits on them, and has no obvious eligibility for relief from deportation/removal, has no right to have his or her hearing continued.

Instead, such an alien can and should be ordered deported/removed, an action that starts the 30-day clock for filing an appeal to the Board of Immigration Appeals (BIA) and one that forces the alien or their counsel to an election—file a frivolous appeal that can be summarily dismissed while in custody, or use the “key” to their cell, waive appeal and take the bus or plane ride home.

Harsh? Maybe. Especially when applied to a minor. Fair, depends on how you are asking. The law ? Absolutely.

The judge has the right to force the alien and/or counsel to this election by requiring them to state with some specificity what it is that they will apply for and how it is that they might qualify for it.

The Department of Homeland Security (DHS) trial attorney has, at least in my book and when I was in a position to demand it, an obligation to force the election. Even when the judge does not do that on their own. They can and should do so by seeking a “proffer” on the facts and law that support such claimed eligibility, and/or making a motion to take testimony from the alien regarding such matters, and then making a motion to “pretermit” the alien’s application for relief and thus the alien’s attempt to get his or her case continued for that purpose.

In regard to the Nicaraguan crisis, in places like Harlingen, Texas, this process was repeated over and over again with rooms full of aliens in what were called “mash” hearings.

Once the process got started and everyone got on board, the hardest thing that the government trial attorney had to do, aside from managing the volumes of physical files he or she had to carry into the courtroom, was to say “the government waives appeal.”

The bottom line is that when all of this happens the way it should, the “game” is shortcut and the intent and purpose of this country’s immigration laws are fulfilled.

Moreover, and from a practical standpoint, you “break the back” of the mass migration influx.

Nobody wants to come if they are just going to be turned back in short order.

And, no foreign government wants to deal with the reverse of an outbound mass migration by having to receive and process volumes of their nationals being officially returned home on a continual and accelerated basis.

The obvious key is to act upfront and pre-empt the event from becoming a crisis.

The very key to how we dealt with the Nicaraguan influx, and the bases for how we effectively did the same for all of the later mass migration events using such arguably controversial but effective actions and determinations as the “wet-foot/dry-foot” repatriation policy to deal with the Haitian matter, and the “Southbound Interdiction Concept” using the post-Mariel law changes to deal with and stop the mini-Cuban crisis in its tracks.

This may all seem very Draconian and very uncaring. In particular as it applies to the current mass migration “crisis” consisting mainly of children.

It is not intended as either.

Instead, it is a way to dissuade adults in Central America and elsewhere from coming much less sending their children on a treacherous and very dangerous journey to illegally come to the U.S.

It is intended to ensure that foreign governments who seek to deal with their internal strife or economic woes by seeking to transfer their obligations to the United States by encouraging masses of their population to seek to illegally immigrate to our country see that they will instead will have to deal with processing the masses of repatriated nationals that we send back in record time.

It is intended as a wake-up call to those who have had the wool pulled over their eyes about what can and should have already been done but has not been done based on the political machinations of our Chief Executive and those who work for him, who swore to enforce the laws of this country, but who, based on ideology or based on the very real fear of retribution from within, haven’t done what they should have done to prevent the event from becoming a crisis.

As I once personally said to a very-liberal leaning senior INS official who confronted me after hours in the underground parking lot of the old INS facility in what I considered a continuation of his not so subtle attempts to impede my efforts to get the job done, there is nothing wrong with trying to help aliens with immigration issues or disputes in this country (In fact, in many ways, I consider it admirable under the right circumstances and a significant part of my now private practice is devoted to that). “But, reach into your coat pocket. You have a badge and credentials that say that you are an immigration officer. You got that status by swearing under oath to enforce the law. If that is not what you want to do, I suggest that you turn in your badge and get to it. Otherwise, get on board and help me do my job.”

The excuses, rhetoric, and theatrics have got to stop.

As noted, the legal and operational solutions are not that complicated.

The fix is really not that hard.

What apparently is, at least to this administration, is the will to do what they were elected and hired to do.

The Executive, our President, has got to stop pandering to the special interests, has got to start taking definitive action, and has to issue the orders to his vast army of agency heads, lawyers, judges, and staffers to act.

Or, they can all “turn their badges in” and let somebody else, someone who will do what they swore to do even when it is unpopular, do the right thing.

For this country, for the taxpayer, and, most of all, for the children.