I read with some interest a recent posting by my colleague Kausha Luna on the Guatemalan congress's passage of a law with basically two prongs — one dealing with human trafficking, the other with alien smuggling. The difference between the two is, in some ways, one of nuance. Simplified,
- Human trafficking occurs when people are moved illegally from place to place (usually across international borders) with the intent to misuse or abuse them — for instance, for under-aged child labor, for the sex trade, etc.
- Alien smuggling involves the movement of people (again, across international borders) and may or may not involve the intent to abuse them, but is done contrary to the immigration laws of the nations involved.
Here in the United States, we have equivalent laws to those just passed in Guatemala that criminalize each kind of conduct described above, as well as laws prohibiting slavery, involuntary servitude and peonage, and smuggling of aliens for immoral purposes.
As Luna explains, the Guatemalan anti-smuggling law is interesting in that it forbids movement of Guatemalans out of the country, if the intent is to smuggle them into another country contrary to that country's immigration laws.
It's clear that portion of the statute is aimed toward combating smugglers who have been instrumental in creating the "surge" of Guatemalans and other Central Americans into the United States, and was passed in response to pressure from the Obama White House due to its desire to curb the flow without having to gets its hands dirty by actually enforcing our own immigration laws; or having to arrest and detain the tens of thousands who have been coming in a waxing-and-waning, but constant, flow for nearly two years now. (See here, here, and here.)
In fact, not only is the administration not very good at migrant interdiction, it doesn't even have an effective anti-smuggling program to catch and prosecute the smugglers. It's a classic example of what Texans would call "all hat and no cattle".
This got me to thinking: What if, having passed the law to alleviate U.S. political pressure, the Guatemalans just ignored it? After all, there can't be much enthusiasm for interdicting Guatemalans headed north to enter the United States and get jobs. According to some sources, remittances from Guatemalans abroad account for 10 percent of the nation's gross domestic product: $5.1 billion in 2013 alone. The overwhelming majority of the remittances emanate from the United States.
What would happen if, for example, the Guatemalan president invoked his executive authority to direct the Fiscal General de la Republica (Prosecutor General of the Republic) to exercise prosecutorial discretion to ignore the smuggling of Guatemalans out of the country by declaring that enforcement priorities must be dedicated only to interdicting drugs, weapons, and dirty money crossing into or out of Guatemala, due to the limited resources available to the national police?
Sound familiar? It should. It's been the cornerstone of the Obama administration's continual effort to dismantle the immigration laws of the United States for nearly eight years now.
But, after all, sauce for the goose is sauce for the gander. If the Guatemalan government were to do such a thing, it would certainly leave the administration foundering for a way out of the conundrum posed by such a policy, wouldn't it?