There Is No Right to Enter the United States Illegally

Panic! At the Border

By Andrew R. Arthur on November 26, 2018

CNN reported on yesterday's melee near the San Ysidro Port of Entry, when a group of 500 foreign nationals attempted to breach the U.S. border near Tijuana. As a result, the port of entry was briefly closed. This incident underscores the fact, often lost in the current debate about the fate of members of the caravan who are camped out in that Mexican city, that aliens do not have the right to enter the United States illegally.

The network reported:

As the migrants tried to cross the border, authorities on the US side used tear gas to disperse them, the journalists said. Video of the scene showed a cloud of tear gas that sent people running and screaming, including families with young children.


Mexico's Interior Ministry said federal and local authorities stopped the migrants Sunday from crossing the border illegally. Those identified as having tried to illegally cross will be processed for deportation to their home countries, the ministry said.

By Sunday night, Tijuana police had arrested 39 people, the agency said on Facebook.

The Interior Ministry described Sunday's incident as "acts of provocation" and warned that far from helping the migrants' cause, it could result in a serious incident on the border.

There are a couple of points to unpack from the foregoing passage. But first, let's get back to basics.

It is been well reported, and endlessly explained (not least by me) that the reason why there are thousands of migrants camped along the Southwest border in Tijuana is that those individuals want the opportunity to assert "a credible fear" of persecution, such that they would be placed into removal proceedings under section 240 of the Immigration and Nationality Act (INA), to remain in the United States and, putatively, apply for asylum. The reason why they are able to do this is because of the expedited removal provisions in section 235(b) of the INA.

That provision of the INA does not exist to facilitate asylum claims. To the contrary, it exists to facilitate the removal from the United States of aliens who have attempted entry through fraud or without proper documents. Not to be too basic about the whole thing, but our immigration system is premised on the idea that foreign nationals are to be prescreened abroad, and that those who are eligible are given visas (either nonimmigrant or immigrant) to enter the United States if they are not otherwise inadmissible.

After that prescreening, they are screened again by U.S. Customs and Border Protection (CBP) officers before they are allowed into the United States. This two-level screening process ensures that aliens who are admitted to the United States are coming here for the purpose that they claim, that they are able to support themselves in this country, that they are not criminals, and that they do not pose a danger to the people of the United States (both citizens and nationals of the United States and other aliens lawfully admitted), among other grounds. People who claim that the immigration system is "broken" usually don't understand this process, or simply ignore it.

That is the rule, and it explains the expedited removal process well. If you want to come to the United States, get a visa and enter legally. If you fail to do so, Congress has stated, you should be removed as quickly as possible.

All of that said, there certain aliens who have made it into the United States and who require the protection of this country because they are unable to go home, because of the danger that they would be tortured if returned, or they would be "persecuted" on account of their race, religion, nationality, membership in a particular social group, or political opinion. For those individuals, we provide asylum, withholding of removal under section 241(b)(3)(A) of the INA, and protection under Article 3 of the Convention Against Torture.

The "credible fear" exception, however, has begun to swallow the "expedited removal" rule, as I explained in an April 2018 post captioned "Caravan Points Out Weakness in U.S. Border Policy, No 'safe third country' exception for credible fear claims". To underscore this point, in a November 2018 post, I noted that: "In FY 2018, 41 percent of all aliens in expedited removal (97,192) were referred for a credible fear interview with an asylum officer." To put this into context, aliens are deliberately entering the United States illegally in order to assert credible fear claims. Thus, the process that was intended to make it easier to remove aliens caught illegally entering the United States is now being exploited by third-country nationals to journey illegally to this country in order to make a credible fear claim (with an 89 percent likelihood that that claim will be sustained) to then be allowed into the United States indefinitely. There is no pre-screening abroad, no real inspection by CBP, and very little information as to the true history (or past crimes or potentially malicious intent) of those who are utilizing this system.

This last point was placed in clear relief by recent reporting on the caravan. For example, the San Diego Union-Tribune reported on November 20 that Homeland Security Secretary Kirstjen Nielsen had stated that "more than 500 criminals including documented gang members have been identified among the caravan." That article continued: "She would not say how the alleged criminals were identified." I get paid to follow the news, and in every report in which the 500 criminal and gang member statistic was included, the fact that Secretary Nielsen had failed to identify her sourcing followed the statistic almost immediately.

That latter quote from the San Diego Union-Tribune offers a factual point, but misses a larger one. It is not up to the Secretary of Homeland Security to explain how her department identified 500 criminal aliens. Instead, it is up to the more than 5,000 members of the caravan (as identified by The Guardian (UK)) to establish that they are not criminals, or gang members, or dangers to the security the United States for that matter. To quote Ray Davies in "Lola", however: "It's a mixed up, muddled up, shook up world."

The odds are, if some, most, or all of those 5,000 potential asylum applicants pass the credible fear screening, and are placed in removal proceedings, we will never really know whether some, most, or all of them have a criminal history. It is possible that the Department of Homeland Security will have criminal history information on some of those applicants (as Secretary Nielsen's quote makes clear), but immigration court is not an effective venue for ferreting out such facts.

There are, in fact, criminal history and national security questions on the Form I-589, the application that must be completed to apply for asylum, withholding of removal, and protection under Article 3 of the Convention against Torture. It has been my experience, however, that: 1) aliens who are criminals and pose a danger to the national security rarely answer those questions truthfully; and 2) there is not much that DHS can do to assess the veracity of the answers provided therein.

This is especially true given the asylum confidentiality regulation contained in 8 C.F.R. § 208.6. As I explained in my April 2017 Backgrounder "Fraud in the Credible Fear Process":

This regulation hinders any attempt by ICE or other government agency to verify with the alien's home government information provided during the credible fear process, or to use that information to determine whether the alien poses a terrorism risk. This is in part why, even when credible fear claimants do provide supporting documentation, USCIS rarely forwards those documents for overseas verification. In fact, from FY 2010 to FY 2014, asylum offices submitted only 111 requests to either USCIS or State Department consular officers for such verification. Documents commonly submitted in connection with asylum claims, such as foreign police reports and medical records, can provide strong extrinsic support for such claims; they are rarely, however, familiar or self-authenticating, and many can be forged.

If you wanted to craft a procedure to allow truly dangerous individuals to enter the United States and remain indefinitely, a combination of expedited removal, credible fear, and the aforementioned regulation would be about as close as you could get.

Occasionally, I will admit, alien applicants will slip up when testifying, and admit to wrongdoing in their home countries. Those exceptions are few and far between.

With all of that explained, allow me to return to the quote from CNN, above. As noted, the Trump administration is allowing those aliens who have congregated in Tijuana to apply in an orderly fashion for credible fear interviews at the ports of entry, although I would question whether they have any obligation to do so. The alternative would be a run on the ports, so the process the administration is following is logical.

That article asserts that the incident in question "began with a march to the border that organizers said would be peaceful." Once at the border, after making it past Mexican authorities, some of the marchers attempted to enter through the San Ysidro Port of Entry, only to be turned away. It continues:

After they were prevented from entering the port of entry, some of the migrants "attempted to breach legacy fence infrastructure along the border and sought to harm CBP personnel by throwing projectiles at them," Secretary of Homeland Security Kirstjen Nielsen said in a statement.

CBP then utilized tear gas as a protective measure to disperse the crowd.

Accompanying that article are several pictures, including one that appears intended to elicit a sympathetic response, showing a mother wearing a "Frozen" t-shirt holding the arms of two barefoot young girls running away from the tear gas. The obvious question that this picture raises is why, exactly, a mother with two pre-adolescent girls would be attempting such a dangerous maneuver as attempting to breach the border fence between Mexico and San Ysidro, but I may just be cynical.

The Border Patrol has the authority to not only arrest those who enter illegally, but also to dissuade their entry. As the CBP website notes: "While the Border Patrol has changed dramatically since its inception in 1924, its primary mission remains unchanged: to detect and prevent the illegal entry of aliens into the United States." That is why we have border walls: to prevent illegal entry. There is nothing in the law that requires the Border Patrol to allow aliens to enter the United States illegally, and then arrest them. Simply put, aliens do not have a right to illegally enter the United States.

And the use of non-lethal force such as tear gas is a reasonable response to attacks on Border Patrol officers. Lest casual readers believe such attacks are simply fabricated or rare, my own experience is the opposite. I was simply riding in a Border Patrol vehicle along the border in Calexico, Calif., in November 2006 when what sounded like a cinder block landed on the roof, thrown from the Mexicali side. While it shocked me, the driver treated it like an ordinary fact of life.

These are all important points to note as the situation in Tijuana continues. There will likely be more attempts to breach the border, more responses by the Border Patrol, and more pictures to tear at the heartstrings.

One last thought: Mexico is an asylum-granting country, and those third-country nationals who claim that they are fleeing harm in their own country can always apply there. The fact that they haven't raises the question of whether it is fear of harm at home, or opportunity in the United States, that has brought them to this point.