How the Appropriations Bill Can Strengthen 'Remain in Mexico'

|The Volokh Conspiracy |

I recently wrote a piece for Lawfare on illegal immigration and the "compromise" appropriations bill that avoided another government shutdown. Here's the introduction:

While Congress and cable news chatter emergency powers and President Trump's wall, there's a far more important immigration fight under way on the southwest border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome. It was summarized this way by one Honduran caravan member, who traveled to the border because: "she had heard … that bringing her daughter would guarantee them admission into the United States."

She got it right—with one caveat. To avoid this outcome, the Trump administration is now telling applicants to wait for their asylum hearings in Mexico instead of the United States. That "remain in Mexico" policy, however, is fiercely contested and could be set aside by the courts tomorrow. If it is, anyone who crosses the border with a son or daughter will be more or less guaranteed admission, plus a work permit for some years, plus a realistic shot at staying in the country illegally for a lifetime.

I worked at the Department of Homeland Security (DHS) under President George W. Bush, and I played a large role in shaping and trying to pass comprehensive immigration reform legislation. I'm not a knee-jerk immigration restrictionist. But you don't have to be a restrictionist to think that it is bad policy to offer years of legal U.S. residence to anyone who can pass a background check and walk across the southwest border with a child in tow. There are probably a billion people around the globe who'd take that offer tomorrow. Worse, the policy effectively invites busloads of children and parents to cross without notice in some remote spots, swamping Border Patrol stations that were never built for child care. From a national security point of view, these mass border crossings are a major vulnerability; they can be exploited by smugglers who use them as cover to sneak in drugs and dangerous individuals elsewhere along the border while Border Patrol agents are busy handing out diapers and juice boxes.

So a lot depends on the Trump administration's effort to cut this Gordian knot of laws and court rulings with a "remain in Mexico" policy. A group of non-governmental organizations have already challenged the new approach in court, and they stand more than a decent chance of prevailing. Avoiding an adverse ruling will require creative lawyering and and aggressive international diplomacy on the government's part. In that effort, the administration may have gotten some unintended help from the drafters of the "compromise" appropriations bill that avoided another government shutdown. That, at least, is the thesis of this article.

Here's the rest: https://www.lawfareblog.com/how-appropriations-bill-can-strengthen-remain-mexico

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  1. But you don’t have to be a restrictionist to think that it is bad policy to offer years of legal U.S. residence to anyone who can pass a background check and walk across the southwest border with a child in tow. There are probably a billion people around the globe who’d take that offer tomorrow.

    *glances at the border, doesn’t see a billion people ready to pass a background check and walk across the southwest border with a child in tow tomorrow*

    Cool story, bro.

    1. Ang,
      Stop ruining a perfect good story with facts and empirical evidence.

    2. Yep.

      Also:

      1. There is not near any guarantee that if someone gets here they stay. Plenty of asylum applications are denied. People get removed when they lose (and no they don’t all skip their hearings and disappear).

      2. Families are not all paroled into the US. Many are in detention.

      1. No. Because of the Flores settlement, children can’t be detained. And you people threw a tantrum when the children were separated from the parents, because that’s “cruel.”

        1. Not true. We currently have three operating family detention centers.

          Go to detentionwatchnetwork dot org slash issues slash family-detention for details.

          1. Flores settlement says minors can’t be detained more than 20 days — conveniently not nearly long enough for their case to be heard. Hence the choice between releasing the whole gang into the US to disappear, or separating the alleged families to place the children in child care facilities.

            1. And of course, if they are captured a year later after skipping their “asylum” hearings, the same liberals screaming about the cruelty of detention will say how “cruel” it is to “deport these hard working, loving families back to a life of poverty and crime, after they’ve established roots and built a life here!”

              It’s bad faith. This is why I say they support open borders. They won’t use the words, but the effect is the same.

              1. There has not been a single liberal voice arguing that people who have legitimately lost their asylum claims cannot be removed. Indeed, such removals went on throughout the Obama administration.

                I actually think there is some truth to your last paragraph. There are definitely people in liberal circles who support border enforcement in theory but oppose anything that would deport anyone in practice merely for violating immigration laws (I think everyone supports deporting criminal aliens). Hillary Clinton made a comment to that effect in a 2016 primary debate.

                But I seriously have not heard ANYONE argue that people who lose their asylum claims should not be removed; and contrary to what many conservatives say, a lot of them are removed because plenty of them do not skip their hearings.

                1. Dilan Esper|3.4.19 @ 12:46PM|#

                  But I seriously have not heard ANYONE argue that people who lose their asylum claims should not be removed…

                  No they are not saying that specifically, but many leftists argue that non-criminal aliens should not be removed. Full stop. If those who lose their asylum claims are not criminals, leftists argue that they should not be removed. Your comment is disingenuous at best, and I suspect you know that.

            2. Well to get to a hearing they have to meet a threshold “credible fear”. Your notion that there isn’t anyone being removed after coming here for asylum is false.

      2. No, most do not leave if they are denied (either at a hearing or because they don’t show up)

      3. “and no they don’t all skip their hearings and disappear”

        Right, only 90% of them do?

        What a breathtakingly stupid comment.

        1. Right, only 90% of them do?

          Your own comment suggests that a mistake of about ~10% makes your comment stupid.

          Oh, look, you’re off by 50%.

          1. Yes, if you look at all immigration court proceedings for all types of migrants, the in abstentia rates are as you suggest. That is a shocking number by itself that doesn’t at all support your narrative, and shows the system is being taken advantage of on a massive scale.

            But if you look at particular groups crossing the border such as caravans and surges, those rates climb over 90%.

            More importantly: “half of those that pass [credible fear] screening?the very people who say they came here seeking asylum?never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.”

            And most pass that screening: “the adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.”

            1. That’s why the number of people abusing this loophole “went from fewer than 4,000 in 2009 to more than 73,000 by 2016?nearly a 19-fold increase?overwhelming the system and leaving those with just claims buried. The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000. All told the Executive Office for Immigration Review has over 600,000 cases pending?tripled from 2009.”

              Finally, showing up in court doesn’t mean showing up for removal: “here is the actual quote from the Federal Register: In many cases, families do not appear . . .and even when they do, many more fail to comply with the lawfully issued removal orders from the immigration courts.”

            2. Oh, ok, so when you said that, of “all” people who manage to get here, 90% of them skip their hearings and disappear, you actually didn’t mean what you said but something else.

              My bad. For, you know, reading what you wrote.

              No, but go on, tell me more about how what you didn’t say means something that I didn’t say it did or didn’t because I didn’t comment on what you didn’t say. In fact, let’s do nothing but talk about what no one has said!

              1. Calm down. You tried to suggest there was no problem here because it’s not a billion people lined up “tomorrow”, and Dilan tried to suggest there’s no major systemic abuse going on anyway. You both got blown out, and everyone knows you’re full of shit progressives who just want open borders to advance your detestable ideology by voter replacement.

                1. First, I AM NEVER CALM.

                  Secondly, you couldn’t be more wrong. I don’t want to advance my detestable ideology by voter replacement. I want open borders because I hate America and want to destroy it. Get your tropes straight, bro.

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    4. You’re a moron

      1. Happy to admit it, if you’ll admit you’re a fascist.

        1. Interesting variant on Godwin’s law. And right from the start, not even the pretense of an argument. Well done.

          1. Um, MKE, have you heard ActualRightWingPatriot? This was based on his history – he legit wants all liberals to die, and have IQ tests for voting, and exclude women.

            Fascist is the nice word for him.

            1. Well, reviewing the comments below now, I think troll might be better; or, if these views are sincerely his own, I think deranged might be more suitable.

            2. I still miss the Castro profile pic.

    5. *glances at thermometer, doesn’t see any rapid temperature increase, shrugs at arguments about global warming*

      Cool story, bro.

      But seriously, previous surveys have put the number who would immigrate to the US tomorrow at 150 million as their first choice. 640 million (adults) say they’d like to leave their current country and immigrate to another.

      Since the vast number of the other choices (IE, the UK, Canada, France, Australia, etc) block this type of mass immigration, it’s reasonable to assume the US would be a high second choice for many, especially if the US allowed this type of mass immigration.

      An easy trip to Mexico, followed by crossing a border, would lead to years of authorized working capability in the US.

      1. An easy trip to Mexico

        Yeah, just jump in your SUV with the kiddies. Don’t forget the snacks. Road trip – snacks = 🙁

      2. the number who would immigrate to the US tomorrow at 150 million as their first choice

        Which is not a number indicative of much at all. Especially since we’re not going to have an open border anytime soon.
        But it is good for scaremongering!

  2. I’m pretty sure that most of the Conspirators believe that restricting anyone (except possibly a known criminal) from traveling, living, and working anywhere, anytime, is a violation of basic human rights. Therefore, the Constitution must protect that right.

    1. My impression is that, among the Conspirators, anyway, only Somin goes that far. The rest of them mostly don’t care enough to put up a fight on the topic.

    2. I don’t particularly care if they come, I’m just not happy with having to pay for their maintenance through Federal, state, and local taxes.

      1. Well, unless you’re willing to support an amendment overturning the 14th and 15th Amendments, that’s the reality:

  3. Israel outright bans asylum requests from several countries in the region. USA should consider doing the same. Or at least not accept asylum requests simply based on stepping on US soil.

    1. I’m okay with the policy, provided that the asylum seekers are not of Amerindian or African descent.

    2. Has the United States many attacked several times in the last 75 years by countries in the region? Has Guatemala been funding a terrorist network that is wont to lob missiles, for shits and giggles, into Arizona? Did Nicaragua thunder forth that the U.S. should be wiped off the map?

      I’m no friend of Israel, I assure you, but even I can recognize the difference between their security situation and ours.

      Or at least not accept asylum requests simply based on stepping on US soil.

      You seem not to understand what “asylum” means. Or, if you mean by “accept asylum requests” that we grant asylum merely for stepping on U.S. soil, you don’t know how asylum claims work. Of, if you think that adjudicating asylum claims means accepting them, you’re an idiot.

  4. Children are a known golden key to entry, and some are not w/ parents. False application or child abduction (criminal acts) are possible-DNA could be a tool for child exploitation. Unaccompanied minors should be placed w/ citizens, not questionable households. The Constitution for “We The People” lacks clauses for those not holding birthrights. The act of stepping onto US soil should not circumvent laws & occupancy. The right to bear arms: requires a permit BEFORE a lawful firearm is issued. The same should apply BEFORE the occupancy on US soil is granted. Both are security measures w/ evolving laws. National security is the responsibility of the President protecting citizens. Now ISIS families are seeking relocations. Fake ID, not a problem & the border=opportunity. Ignorance to protection for We the People of the USA is a violation.

    1. Shorter AAP: I demonstrably have no clue how the system actually works, but I HATE IT HATE IT HATE IT HATE IT.

  5. Trump should order the military to fire on these illegal invaders. Then they won’t be separated or consigned to a life of poverty or violence ever again. They will be united in the warm, eternal embrace of Hay-Zeus!

    1. Shorter ARWP: HOO-RAY for MURDER!

      1. Why do you care about the lives of illegal Mayans and Aztecs?

        1. Do you have the dedication to sacrifice enough people to keep the sun coming up? Then maybe you should sit down and leave the real work to those who do.

          I make it a point to care about all badass human-sacrificing, crazy ball-playing, pyramid-building, agricultural clock-masters.

          1. They’re genetically violent savages. There’s a reason their societies practiced scalping, rape, pedophilia and other perversions.

            1. So did the Jews.

              There are prices to pay in being a badass in back in the day.

  6. This is not a hard policy to enact.

    End asylum from the border with Mexico.

    Anyone who attempts to bring a child illegally across the border goes is sent right back. And make Mexico throw them in prison for child abuse.

    Detain all waiting for immigration court rulings in work camps. Make them actually work for their stay and pay them a fair wage for that work. Once the courts are done dispense with those individuals according to the applicable rulings. For repeat illegals they also get to stay at the work camp and do work but lose the right to be paid for that work.

    End birthright citizenship through whatever means makes it constitutional.

    Easy enough. Problem solved.

    1. Of course it’s a hard policy to enact, so long as basically every Democratic member of Congress, and a significant fraction of the Republican members, want illegal immigration to continue unabated.

      1. Well yes the democrats don’t want immigration reform because they need the votes to stay in power. They won’t say it but everyone knows that is the real answer. Hence when reporters ask “why is a wall immoral?” the answer is always crickets chirping.

        1. The same crickets that chirp every time someone asks “show me evidence illegal immigrants are voting in our elections.”

          1. You mean like the illegal in NC who voted in something like six elections after being signed up by the DNC to vote who was convicted of doing this? Or the few hundred illegals that voted in PA? Or the thousand or so that voted in Chicago? Oh never hear about this on the news, right? Big surprise there.

            1. No, I mean like show me evidence.

              1. Not sure why, but I’ll bite.

                Voting jurisdictions in the U.S. can be divided into two buckets: those whose laws set the expectation that voter identity will be verified at the time of voting, and those that do not.

                To observe that there is little evidence of fraud in the first bucket says nothing surprising.

                To observe that there is little “evidence” of fraud in the second bucket says nothing useful.

                1. Did you actually just “bite” on the call for evidence by trying to explain why there’s no evidence?

                  Did you really, seriously just respond to a comment about crickets always chirping when evidence is demanded by agreeing to give it a shot and then chirping like a cricket?

              2. How is an illegal convicted of voting not evidence of voting by an illegal alien?

    2. I feel the same way about people from Denmark.

    3. Jimmy the Dane: “Easy enough.”

      Clearly has not read Article V.

      1. It would be easy enough if the right were to get some testicular fortitude and just treat the Supreme Court the same way the Left does – nothing more than a policy making machine. All it would take is 5 justices to say “jurisdiction thereof” means lawfully in the country as a citizen. Boom done. This tactic worked for the Left from the 50’s forward. Don’t really have any problem turning the tables on them now.

        If politics is now reduced to whoever can exercise the most raw political power then let the games begin.

        1. Without perverting the Constitution, how else could they find a “right” to ejaculate into another man and spread HIV?

        2. It’s pretty laughable that you don’t think the right has been doing exactly that with all federal courts for the last 30 years or so. Jimmy, meet FedSoc, FedSoc, Jimmy.

          1. Oh please do tell me what is the FedSoc equivalent of Roe v. Wade? Gay marriage? Or the made up right to bugger another man?

            1. What’s the point? To you, any decision you disagree with is illegitimate, simply on the basis of it disagreeing with your far right ideology. The left somehow engineered Roe v Wade, but the FedSoc hasn’t actively and openly been engineering an ideology and an agenda for years? You happen to agree with that agenda, fine. But don’t pretend it’s only the left favoring outcome-driven decisions.

              1. Do you think the Constitution protects a right to kill an 8 month old unborn baby and the right to ejaculate into another man’s tuchis? Yes or no?

  7. Estimates on the number of illegal immigrants range from 12 million to 22 million to 30 million.

    No matter what, it’s a staggering number. And every bit of it was preventable, but was encouraged and intentionally facilitated for reasons that are counter to the bests interests of the nation. There are a million outstanding removal orders alone, and these people are just allowed to stay. Imagine if there were a million fugitives roaming free in some other area of criminal offense.

  8. New York Times Admits Mass Rape of Latino Migrants

    The New York Times has admitted that many Latino migrants are being raped by the cartel-affiliated coyotes who traffick them to jobs in Democratic-run cities.
    Under the headline, “‘You Have to Pay With Your Body’: The Hidden Nightmare of Sexual Violence on the Border,” the newspaper reported:

    Gladys, 45, a mother of four from Guatemala, said she was kidnapped by armed smugglers after crossing the border and jumped out of a car to escape, but was captured again. For days, she was held prisoner at a stash house in McAllen and forced to have sex with six men. “I thought it would be better if I died when I fell from the car,” she said.

    The admission spotlights the Democrats’ hypocrisy in claiming to support migrants even as the migrants are raped en masse, said Jessica Vaughan, the director of government policy at the Center for Immigration Studies. Democrats protect the coyotes’ migration routes, and “if they really cared, they would be drafting legislation and trying to work with Republicans to pass the changes in law needed to deal with this [migration] crisis,” she said.

    1. I smell Breitbart.

      If you’re going to blame this on Dem policies, you’re really reaching.
      If you don’t think a wall just screws up that power dynamic even more, you don’t understand human nature when desperate and confronted with adversity.

      Decriminalizing the border and targeting businesses that employ illegals could do a lot, as could policies to, you know, target human trafficking. But naw, lets pay for a wall and more ICE Agents to look the other way, or worse join in

      1. Right — just have open borders! Problem solved.

        1. How many Dems do you think are for open borders?

          1. Lots of room between our current piecemeal performative-cruelty-based system and open orders, too.

            Wanting reform != wanting open borders.

          2. “Decriminalizing the border” is tantamount to de facto open borders

            As is continuing the asylum loopholes ripe for abuse

            As is failing to go after employers which you rightly pointed out

            And other simple fixes that could stop illegal immigration, but are adamantly opposed (including by some Republicans – the Chamber of Commerce lobby is strong).

            1. Your definition of open borders would appear to include the status quo. That’s lunacy.

              Nothing would stop illegal immigration, short of the war crimes some on here tellingly advocate.

      2. “‘The numbers are staggering’ as the floodgates of family migrations widen” WAPO

        1. OK. Not going to suddenly lay flat just because it’s the WaPo. Especially given the lack of numbers and that they’re quoting someone.

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