YES, ILLEGAL BORDER CROSSERS ARE BREAKING THE LAW. The Sept. 19 newsletter discussed the mass hysteria over the arrival of 48 Venezuelan illegal border crossers in Martha’s Vineyard on a flight orchestrated by Florida Republican Gov. Ron DeSantis. In reference to the newsletter, I tweeted this: “Problem with the Martha’s Vineyard freakout is that the debate ignores the real problem. We’re talking about how to accommodate illegal border crossers once they are in the country, and not about how to prevent people from crossing illegally into the U.S.”
The tweet set off a wave of indignant reaction. The people I described as “illegal border crossers,” many said, are most definitely not illegal. “These were asylum seekers,” said one respondent. “They are not here illegally.” “These people were here legally,” said another. “Asylum seekers are not illegals,” said a third. “They’re seeking asylum, they’re not ‘illegal border crossers,'” said a fourth. “Asylum seekers are not illegal, but we know your game,” said a fifth. And on and on.
Even observers with some experience in government claimed the illegal border crossers were, in fact, legal border crossers. “This is a point that must be emphasized: The Venezuelans whom DeSantis flew to Martha’s Vineyard were in the United States seeking asylum,” tweeted the Democratic activist and fundraiser Bill Kristol. “They followed U.S. law.”
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No, they did not. This is the simple fact: It is illegal to enter the U.S. without authorization, as all the Venezuelans did when they waded across the Rio Grande into Texas. Again: It is not legal to do that — wading across the Rio Grande is not a legal way to enter the U.S. Such an offense is punishable by up to six months in prison. A second offense — that is, doing it again after being returned to Mexico following a first offense, as many migrants do — is punishable by up to two years behind bars.
“If you run across the border and you don’t stop and talk to an official, that’s called entering without inspection,” said Joe Edlow, a former acting director of U.S. Citizenship and Immigration Services. “That is a federal offense, and you can be prosecuted for that. It is a criminal law, so your breaking that law has no bearing on your reason for entering the United States. There is no defense in that law as written that says, ‘I was coming in to seek asylum.'”
“Every alien who enters the United States illegally is removable,” added Art Arthur, who has served as a lawyer in the old Immigration and Naturalization Service, counsel in the House of Representatives dealing with immigration policy, and an immigration judge in Pennsylvania. “In fact, on their Notices to Appear (NTAs), the charging document in removal proceedings that is like an indictment in a criminal case, the charge is that they are removable either under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA — “Aliens Present Without Permission or Parole”) and/or Section 212(a)(7)(A)(i) of the INA (“Immigrant not in possession of an immigrant document).”
“The Venezuelans (and other border-jumpers) are using an asylum claim as a defense against deportation,” noted Mark Krikorian, executive director of the Center for Immigration Studies, which favors stricter immigration enforcement. “They can’t even make the asylum claim until they’re in removal proceedings for having entered illegally.”
So the illegal border crossers are in removal proceedings. Why are they in removal proceedings? Because they entered the U.S. illegally.
Given that, why do so many people believe the Venezuelans followed U.S. law when they crossed the Rio Grande? Well, perhaps some simply have no idea what they’re talking about. But others are likely confused by another part of U.S. law that allows immigrants to apply for asylum. The Immigration and Nationality Act says: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival) … may apply for asylum.” The Venezuelans definitely did not arrive at a designated port of arrival, but because of that “whether or not” provision, defenders say, the immigrants were still following the law.
No, they weren’t. Here is the simplest way to look at it: The immigrants entered the U.S. illegally. Once here illegally, they were placed in removal proceedings. In those proceedings, some will claim asylum, which they have a legal right to do. A small number of them will be granted asylum. A far larger number will be denied asylum, at which point, if the law were actually enforced, they would be removed from the country. But never at any time was their entry into the U.S. legal.
The Biden administration and Democrats in Congress stress the asylum side of the story. Tell them an illegal border crosser has entered the U.S. illegally and they will admit yes, but that person had a right to claim asylum. You could see that argument at work at a House Homeland Security Committee hearing last year, on March 17, 2021, with Department of Homeland Security Secretary Alejandro Mayorkas.
Republican Rep. Dan Bishop pressed Mayorkas on border crossing. “Entering the U.S. between ports of entry is illegal, isn’t that right?” Bishop asked the secretary. “Yes, it is,” answered Mayorkas. “Are you prepared to say right now that it is wrong for people to enter the United States illegally?” Bishop asked a little later. “Of course I am,” Mayorkas said.
Mayorkas tried to change the subject to asylum. Bishop would not let him. Bishop said, “There cannot ever be a right time to enter the country illegally or to incite migrants to do that, would you agree?” Mayorkas responded, “A claim of asylum, an individual fleeing persecution by reason of his or her membership in a particular social group, a claim of asylum is a claim that is recognized by law in the United States of America. And an individual who makes a claim of asylum is not breaking the law by doing so.” Mayorkas was being clever. The individual did not break the law by claiming asylum. He broke the law by entering the U.S. without authorization.
And even while claiming asylum is allowed by law, the fact is, the overwhelming majority of illegal border crossers will not receive asylum. Most are coming in hopes of getting a job and making more money than is possible in their homeland. That is not a valid basis for asylum in U.S. law. Democrats sometimes try to gloss over that fact, but it is a fact.
During Mayorkas’s Senate confirmation hearing, on Jan. 19, 2021, Sen. Ron Johnson (R-WI) asked, “Do you believe coming into this country illegally for economic improvement, is that a valid asylum claim?” Mayorkas answered, “Senator, the asylum laws are well established, and they provide that an individual who is fleeing persecution by reason of his or her membership in a particular social group is deserving of protection — ” Johnson interrupted to say, “OK, but coming here for economic gain is not a valid asylum claim. Would you agree with that?” “Senator, I believe I articulated the legal theory,” Mayorkas said.
Johnson was right, but Mayorkas just did not want to admit it. Later in the hearing, however, another Republican, Sen. James Lankford (R-OK), got Mayorkas to concede that economic opportunity is not a basis for asylum. “When one speaks of economic opportunity, what does one mean?” Mayorkas said in an exchange with Lankford. “Just generally, an opportunity to make a better living? If that is what you are referring to, my understanding is that that does not a legitimate asylum claim make.”
So the Biden administration knows that 1) millions of would-be immigrants are crossing illegally into the U.S. and 2) the vast majority of them have no claim to remain in the country. That would seem to call for a major effort to reduce the flow of illegal border crossers. Yet the administration is letting unprecedented numbers of immigrants stay in the U.S., which reinforces the incentive for more to come.
“It is irresponsible for the federal government to allow hundreds of thousands of illegal migrants to enter when recent experience shows that, once released, more than half will not bother actually filing the asylum application, and of those who do, half will skip out on the court hearings, and of those who do complete the process, only 10% are found eligible for asylum,” said Jessica Vaughan, policy director of the Center for Immigration Studies. “Allowing abuse of the asylum system in this way is imposing enormous costs on American communities and undermining the integrity of our asylum system, delaying protection for those who genuinely need it.”
Here is one thing that is settled: Illegal border crossers who wade across the Rio Grande or walk across the border at other points, away from ports of entry, are breaking U.S. law. That is not even a question.
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