In a post last week captioned “Washington Won’t Let Border Patrol Arrest Human Smugglers Offloading Aliens Right in Front of Them”, my colleague Todd Bensman reported that agents at the Southwest border are under orders not to arrest smugglers ferrying migrants entering the United States illegally. Given this, the Biden administration has effectively ceded control over immigration policy to those smugglers — or more precisely to Mexico’s criminal cartels.
Formally, the Immigration and Nationality Act (INA) is the roadmap for alien admissions to the United States. That broad document contains plenty of latitude for the administration (regardless of which one) in implementing the rules governing visas, travel to this country, and actual admissions.
Asylum is a major exception to the strict rules that prohibit foreign nationals from entering the United States at their whim. That said, however, from that post by Bensman and his other reporting, it does not appear that Border Patrol is actually screening illegal migrants to see if they have a fear of persecution (a requirement for asylum relief).
Instead, agents are ostensibly under orders to process those migrants quickly and release them into the interior of the United States, where they will remain indefinitely — if not permanently.
That is not to say that there are no impediments to entry; there are, but they aren’t being erected or implemented by the Biden administration.
As ICE explained in October, illegal migrants “know they need to pay an organization for transport” to the United States. The smugglers, who are “often associated with other transnational criminal organizations ... provide that transportation at a significant cost.”
In other words, if you don’t pay the smuggler, you don’t get in.
That is not to say that smugglers have carte blanche to move foreign nationals across the border. As RAND has explained, migrants — or more directly their smugglers — passing through a cartel’s self-described “territory” must pay a “tax” (known as a piso) to the cartels, both in the interior of Mexico and at the border.
To ensure that migrants have paid, Bensman has explained, cartel-associated smugglers now require “their customers to wear numbered, colored, and labeled wristbands”, of the sort one would see at a waterpark, bar, or all-inclusive resort.
As an aside, note how I italicized “piso”, but not “carte blanche”. Such foreign-language words in English-language writing are italicized until they become a part of the common parlance, at which point they aren’t anymore.
So many aliens are entering the United States illegally (more than 173,000 were apprehended at the Southwest border in April and an additional 40,000-plus avoided apprehension that month) and payments to the cartels are so obligatory for those migrants that soon I will simply be able to write “piso”.
Returning to the point, however, those smugglers and the cartels are now the ones who are imposing what limits do exist on immigration across the Southwest border, and are doing so with impunity.
Why, exactly, are federal agents prevented from arresting smugglers? According to Bensman, U.S. attorneys won’t prosecute them (smuggling is a federal crime under section 274(a) of the INA), for reasons that are wholly unclear. State law-enforcement officers won’t arrest them even where they are operating under their own smuggling laws out of fear that the smugglers will harm the migrants themselves in an escape attempt.
Any smuggler who did that would face 20 years in federal prison under section 274 of the INA, but those penalties only apply when the smuggler is actually prosecuted and convicted. If federal prosecutors won’t prosecute, though, there is no prospect of two decades’ incarceration, nor any impediment to tossing an infant into the Rio Grande.
So, the next time that Congress wants to examine the border crisis, they should skip calling DHS Secretary Alejandro Mayorkas. Instead, they should reach out to Ismael Zambada García, aka “El Mayo”, capo of the Sinaloa Cartel, which controls vast swaths of the border. He’s the one setting — and administering — immigration policy under the Biden administration.