How Sen. Sessions Helped Close an Absurd Loophole in Border Enforcement

By Jerry Kammer on November 21, 2016

I don't know anything about the accuracy of claims that in the 1980s Jeff Sessions, then a U.S. attorney in Alabama, "demonstrated gross racial insensitivity". But I can report on the time in 2005 when Sessions' rapid response to a newspaper story demonstrated that he was one of a handful of U.S. senators who were determined to correct flaws in the federal government's enforcement of immigration laws.

The story, which appeared in the San Diego Union Tribune, described an absurd situation that was playing out in the Rio Grande Valley. Here is the top of the story, which was published under the headline "Loophole to America: Migrants exploiting border law for non-Mexicans". It had a McAllen, Texas, dateline. It also had my byline:

In the silvery-blue light of dusk, 20 Brazilians glided across the Rio Grande in rubber rafts propelled by Mexican smugglers who leaned forward and breast-stroked through the gentle current. Once on the U.S. side the Brazilians scrambled ashore and started looking for the Border Patrol. Their quick and well-rehearsed surrender was part of a growing trend that is demoralizing the Border patrol and beckoning a rising number of illegal immigrants from countries beyond Mexico. "We used to chase them; now they're chasing us," Border Patrol agent Gus Balderas said as he frisked the Brazilians and collected their passports.


The story went on to describe how the strange ritual played out. The Border Patrol took the Brazilians into custody, processed their paperwork, fed them, and asked their destination in the United States. Then it issued them notices to appear at an immigration court near that destination at some distant future date. Finally it drove them to the McAllen bus station so that they could continue their journey. The story reported that because of the loophole, the number of Brazilians arrested at the Border had grown from 260 in 1995 to 22,000 in 2005.

Three days after the story was published, Sen. Sessions read excerpts aloud at a joint hearing of the Senate Subcommittee on Immigration, Border Security, and Citizenship along with the Subcommittee on Terrorism, Technology and Homeland Security. He used it as the lead-in to his questioning of Border Patrol chief David Aguilar.

Said Sessions, as he introduced the story, "I have believed we've been in a state of denial about how things have been operating on the border. It's worse than most people realize."

As he responded, Aguilar demonstrated his skill in his ritualized roll of explaining that the Border Patrol was doing the best it could with the resources Congress had provided.

Said Aguilar: "One of the problems that we have with Brazilians ... is that Mexico does not require a visa for Brazilians coming into Mexico, which, of course, now they use as a means to jump off into the United States illegally. And because of the challenges that we have with our lack of detention space, we have the situation that we're faced with."

Upset at the absurdity on the border, Sessions and a few other lawmakers went to work to correct it. As a result, within a few months, Congress had appropriated funds to expand the detention space for the illegal migrants known as "OTMs" because they came from countries "other than Mexico". Moreover, the State Department had persuaded Mexico to re-establish a visa requirement for visitors from Brazil.

This two-track response was an impressive demonstration of problem-solving by federal officials. But because of other loopholes that riddle the fabric of immigration laws and policies, illegal OTM migrants continue to pour across the border in numbers that overwhelm the expanded detention space. They still receive notices to appear in immigration courts, which are so overwhelmed that the appearance dates are sometimes years in the future. And, as the story in the Union Tribune reported, many of them never show up in court and go about their lives in the United States as they hope for comprehensive reform legislation to grant them permission to stay.