You have likely seen the picture of 25-year-old Óscar Alberto Martínez Ramírez and his 23-month-old daughter, Valeria, who drowned in the Rio Grande attempting to enter the United States. The story behind the attempt by Martínez and his family to enter the United States illegally is important, and frames the immigration debate currently raging in Washington. Unfortunately, that story has been lost in the responses to the picture.
First, the responses. Here is a tweet by Kamala Harris, the junior senator from California (and Democratic candidate for president):
These families seeking asylum are often fleeing extreme violence. And what happens when they arrive? Trump says, 'Go back to where you came from.' That is inhumane. Children are dying. This is a stain on our moral conscience. https://t.co/NHly7QTiAq
— Kamala Harris (@KamalaHarris) June 26, 2019
And here is a tweet by Robert Francis "Beto" O'Rourke, former congressman from Texas and unsuccessful candidate for senator from Texas (and Democratic candidate for president):
Trump is responsible for these deaths. https://t.co/UZirFjh3fm
— Beto O'Rourke (@BetoORourke) June 26, 2019
And here is a tweet by Corey Booker, the junior senator from New Jersey (and Democratic candidate for president):
We should not look away. These are the consequences of Donald Trump’s inhumane and immoral immigration policy. This is being done in our name. https://t.co/mZQnREOjV0
— Cory Booker (@CoryBooker) June 25, 2019
During a recent panel discussion, I summarized an anecdote that was told by Abraham Lincoln about a traveler who was out riding on his horse when a furious storm came up, darkening the skies. A bolt of lightning shook the ground. The traveler fell on his knees, praying: "A little more light, Lord, and a little less noise." The traveler's statement is as timely as it ever was.
As the AP initially described the situation along the border in the context of the image:
The searing photograph of the sad discovery of their bodies on Monday, captured by journalist Julia Le Duc and published by Mexican newspaper La Jornada, highlights the perils faced by mostly Central American migrants fleeing violence and poverty and hoping for asylum in the United States.
Given that lead-in, one would expect that the Martínez family was seeking asylum, fleeing either violence or poverty. While they may have been seeking asylum, there is no evidence that they were fleeing either violence or poverty.
AP quoted Oscar Martinez's mother, Rosa Ramírez, who explained the circumstances that brought the family to the Southwest border of the United States:
Ramírez said her son and his family left El Salvador on April 3 and spent about two months at a shelter in Tapachula, near Mexico's border with Guatemala.
"I begged them not to go, but he wanted to scrape together money to build a home," Ramírez said. "They hoped to be there a few years and save up for the house."
The fact that the family intended to return to El Salvador suggests that violence was not the impetus that drove the family northward. Nor is there any suggestion in Ms. Ramirez's statement that the family was impoverished. Rather, drawn by the ability to make money in the United States to build a house back in El Salvador, they undertook the journey.
The AP article references statements by a Tamaulipas government official, who "said the family arrived in Matamoros early Sunday and went to the U.S. Consulate to try to get a date to request asylum." AP adds that:
[W]aits are long there as elsewhere along the border. Last week, a shelter director said only about 40 to 45 asylum interviews were being conducted in Matamoros each week, while somewhere in the neighborhood of 800-1,700 names were on a waiting list.
That outlet concedes, however: "It's not clear what happened to the family at the U.S. Consulate, but later in the day they made the decision to cross."
I have already described the standards for asylum:
An applicant for asylum has the burden to demonstrate that he or she is eligible for that protection. To satisfy that burden, the applicant must prove that he or she is a refugee. A "refugee" is a person outside of his or her country of nationality or habitual residence who is "unable or unwilling" to return to that country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
Generalized conditions of violence are not sufficient to support a request for asylum relief, absent a nexus to one of the five factors listed above. As noted, there is no indication that the Martinez family was fleeing violence, and, in fact, they likely were not given their willingness to return the in future. Poverty is not a basis for asylum at all, but again there is no proof that the Martínez family was impoverished.
Rather, the April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel aptly describes the likely reason why that family undertook what turned out to be a deadly trek:
By far, the major "pull factor" is the current practice of releasing with a [notice to appear (NTA), the charging document in immigration removal proceedings] most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals.
In other words, migrants come illegally to the United States with children claiming asylum they likely are not eligible for because they know they will be quickly released into the interior of the United States.
Why is DHS's "current practice" to release "most illegal migrants who bring a child with them" with an NTA? As the bipartisan panel explains, U.S. Immigration and Customs Enforcement (ICE), the DHS agency charged with detaining immigrants pending removal proceedings, "has effective capacity to detain only 2,500 [family units (FMUs)], and that capacity is woefully inadequate given the surge in FMU migration over the past year."
Whose fault is that lack of detention space? It has to be Trump's, right? Sens. Harris and Booker say he's the one to blame for aliens entering illegally, and so does former Rep. O'Rourke. Nope. Congress, and in particular Democrats on the House Appropriations Committee, who refuse to fund more ICE detention space (and especially FMU detention space) are responsible, as I explained in a May 13, 2019, post.
Flores v. DHS must be Trump's fault, then, right? Nope, in an August 2015 order Judge Dolly Gee of the United States District Court for the Central District of California ruled that FMUs must be released in an average of 20 days. That order was affirmed by the Court of Appeals for the Ninth Circuit in July 2016. Barack Obama was the president then, and his Justice Department argued against that release policy. Trump was stuck with the consequences.
It should be common sense, but since finding common sense is an uncommon commodity in Washington these days, let me simply make the following observations:
If the ports of entries along the Southwest border were simply opened to any and all migrants, it would be impossible to enforce our customs laws, and we would lose the ability to interdict illegal entrants, drugs, and other contraband. The Southwest border would cease to exist as a practical matter. As a consequence, the wages and working conditions of disadvantaged Americans (both citizens and lawful immigrants) would fall, and quickly.
You don't have to believe me on the last point, however. In 1995, civil rights icon (and the first African-American woman elected to the House of Representatives from the South) Barbara Jordan, who was then serving as the chairwoman of President Bill Clinton's Commission on Immigration Reform, testified: "Immigration policy must protect U.S. workers against unfair competition from foreign workers, with an appropriately higher level of protection to the most vulnerable in our society." That is why we have laws limiting immigration.
If the laws were enforced at the ports of entry, but all impediments to aliens crossing the border illegally were removed, on the other hand, more aliens would make the dangerous journey through Mexico to illegally cross the border. We saw a photograph that represented the deaths of two aliens who attempted to cross that border this year. There are hundreds more deaths we don't see. That number would only increase exponentially.
And those who do suffer, and would suffer, the most are the children, as the panel explained:
Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money. [Emphasis added.]
Judge Gee started an August 2015 order in Flores with the following quote from Mahatma Gandhi: "An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it." As a judge, I avoided beginning my decisions with such aphorisms to avoid any suggestion of bias; of course, I did not have the lifetime tenure of a federal district court judge. That said, were he alive today, perhaps Gandhi would have amended it to note that: "An error also does not become truth because of the number of times it is retweeted."