It takes no great insight to recognize there is a rapidly worsening security crisis along our southern border. Remarkably, a union representing the federal employees who handle this crisis is enabling it. Last Wednesday, American Federation of Government Employees Local 1924 filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in San Francisco in support of a lawsuit to block enforcement of the Trump administration’s Migrant Protection Protocols (MPP). Since its launch in January, the program by the end of June had temporarily returned to Mexico more than 15,000 asylum seekers who had been detained at U.S. ports of entry. MPP, reads the complaint, is “fundamentally contrary to the moral fabric of our Nation.” Such high-minded rhetoric ignores the fact that these migrants attempted to enter the U.S. illegally.
If a picture is worth a thousand words, then the many photos of “caravans” of thousands of Mexicans and (especially) Central Americans aggressively marching, phalanx-style, toward our southern border via Mexico speak volumes. As National Legal and Policy Center explained last November, these marches have been stage-managed by a tight network of ethnic radicals operating mainly out of Chicago. Their organizations want to make our border and interior enforcement inoperable. In their minds, there can never be enough immigration, legal or otherwise. The recent surge is reflected in Department of Homeland Security (DHS) data. This May, more than 144,000 people seeking entry in the U.S. without authorization were taken into custody by Border Patrol agents. Many were removed as inadmissible; others returned home on their own; still others were placed under consideration for humanitarian protection. As it was, the figures for February, March and April each set record highs. The growth during most of the Trump era has been explosive. During the first several months of 2017 the average monthly figure was less than 20,000. That actually was down from roughly 40,000 a month during the Obama era, a sure sign that President Trump’s early border protection executive orders, or at least his rhetoric in support of them, were succeeding. Since then, however, the figure has grown geometrically. The administration consistently has been thwarted by a loose coalition of congressional Democrats (with occasional help from Republicans), federal judges, “deep state” Homeland Security personnel, and nonprofit activist groups. Indeed, these caravans came into being precisely because the marchers understood on some level that they had powerful supporters here.
The weeks-long caravan from Honduras to the U.S. last fall, which culminated in a border riot across from Tijuana, underscored the precarious nature of the situation. Exacerbating this confrontation were months of negative media coverage of DHS’ Immigration and Customs Enforcement (ICE) temporary detention of Hispanic migrant children brought here illegally by their parents, often with the use of smugglers. That the parents’ claims of persecution back home often were unsubstantiated if not false apparently mattered little to critics of the administration. Neither did it matter that it was the parents, not ICE, who recklessly endangered children; those shelters protected their occupants from possible starvation, dehydration, kidnapping or death. All that mattered to Trump haters, it seemed, was the opportunity for moral grandstanding against our “concentration camps.”
The Trump administration quickly responded to the flood of asylum requests with Migrant Protection Protocols, informally known as “Remain in Mexico.” The program, announced on January 24, 2019, authorizes U.S. Border Patrol agents to place inadmissible individuals and families arriving here on land from Mexico in removal proceedings. In a typical situation at a border station, an agent conducts a brief interview with an asylum-seeking migrant, hands that person/family a “Notice to Appear” at a later date in immigration court, and places that person or persons in a Mexican border city such as Ciudad Juarez, Mexicali or Tijuana, where they remain until their hearing. At a hearing, an immigration judge renders a decision based on an assessment by one or more asylum officers employed by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). In effect, MPP undoes the disastrous “catch and release” policy of the Bush and Obama administration that lets unauthorized immigrants to enter our interior where they can (and usually do) remain for good, often skipping their scheduled court hearing and going undetected.
Deriving its authority from Section 235 of the Immigration and Naturalization Act, the program seeks to reconcile the potentially conflicting goals of border protection and human rights promotion. On one hand, MPP discourages entrants from making bogus claims of persecution back home – and a great many are. On the other hand, the program does what it can to ensure the health and safety of persons temporarily sent to Mexico. Unaccompanied alien children, along with aliens already in expedited removal proceedings, are not eligible for coverage. Then-Homeland Security Secretary Kirstjen Nielsen explained: “This humanitarian approach will help to end the exploitation of our generous immigration laws. The Migrant Protection Protocols represent a methodical commonsense approach, exercising longstanding statutory authority to help address the crisis at our Southern border.”
Open borders enthusiasts, unfortunately, have chosen to see MPP as an attack upon the innocent. Among the cast of critics, ironically, is the very union representing asylum office employees. On June 26, the Washington, D.C.-based American Federation of Government Employees Local 1924, about a fourth of whose 2,500 members are asylum review officers, filed a lengthy amicus brief in hopes of blocking MPP enforcement. A group of migrant plaintiffs, whose legal help includes the American Civil Liberties Union and the Southern Poverty Law Center, are claiming that the program represents a “widespread violation” of U.S. and international law. Asylum officers, reads the brief, “should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”
The lead attorneys for the plaintiffs, a radical Portland, Oregon group called Innovation Law Lab, are employing an innovative though not terribly convincing argument. According to international treaties signed by the U.S. and other nations in the aftermath of World War II, its lawyers maintain, our immigration law rests on the principle of “non-befoulment.” This is the idea that migrants who arrive at a signatory nation cannot be sent back where they could be imprisoned, harmed or killed. Current U.S. law states that to qualify for asylum, an applicant must demonstrate that he or she faces harm back home based on “race, religion, nationality, membership in a particular social group or political opinion.” The plaintiffs think this burden of proof is far too high. Mexico, the temporary destination of people removed under MPP is simply too dangerous for asylum seekers. As such, the argument goes, unauthorized migrants here cannot be repatriated to that country. “(D)espite professing a commitment to protecting the rights of people seeking asylum,” reads the AFGE Local 1924 amicus brief, “the Mexican government has proven unable to provide this protection.” In effect, the plaintiffs are arguing that asylum is a moral right if one’s country of origin can be shown to be “dangerous.”
By aligning itself with this sophistry, the union leaders is revealing its contempt for immigration law, all the while claiming the high moral ground. And while leadership and members in any union may diverge, there appears to be very little dissension. Asylum officers long have favored open borders. Much of this is because their employer, U.S. Citizenship and Immigration Services, is almost entirely funded by user fees; its employees have every incentive to maximize the number of users. During the Bush and Obama years, USCIS employees routinely put visa and asylum applications on a fast track for approval with little or no vetting. This pattern has continued under the present administration, first under Director L. Francis Cissna (until his firing by President Trump in late May) and now under Acting Director Ken Cuccinelli.
Ken Cuccinelli, who during 2010-14 served as Virginia attorney general under Republican Governor Bob McDonnell, heads an agency with an intolerable backlog of cases heavily driven by fraud. It is all too easy for USCIS bureaucrats, at once overwhelmed by their workload and disdainful of their official mission, to take the easy way out and release sham applicants into the U.S. The Migrant Protection Protocols exists to alleviate this workload. Predictably, a coalition of open-borders zealots on February 14 filed suit in San Francisco federal court to end MPP. Less than two months later, on April 8, U.S. District Judge Richard Seeborg, an Obama appointee, enjoined enforcement of the program, saying it likely violated federal law. Days later, the government appealed for a stay of the injunction. This procedural move succeeded. In May, a three-judge circuit court panel in San Francisco allowed MPP to continue while it reviews the constitutionality of the program. If the plaintiffs win, they will have AFGE Local 1924 in some measure to thank.
USCIS’ Cuccinelli, though not an immigration hardliner, quite properly is calling out the union for its behavior. On June 27, one day after Local 1924 filed its friend-of-the-court brief, he issued the following official statement:
Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.
Our Southern border is facing a daily crisis of aliens overwhelming our ports of entry, many of whom are attempting to enter and remain in the country in violation of our laws. Thus far, in Fiscal Year 2019, DHS has already apprehended more than 600,000 people at the Southern border.
We have reached the critical breaking point, and USCIS must continue to do our part to help stem this crisis and better secure the homeland.
This is what everyone at the Department of Homeland Security, not just at USCIS, should be saying. Unfortunately, there are employees who not only aren’t on board with this mission, but are using the legal system to subvert it. In undermining their agency mission, they are undermining rule of law. It isn’t enough to denounce AFGE Local 1924 for using member dues to cripple the MPP program. Public accountability requires that if these employees are refusing to do their jobs, they should be fired. On top of that, they should be investigated for possible lawbreaking under Title 8, Section 1324 of the U.S. Criminal Code, which in various ways bans the aiding and abetting of illegal immigration.
The crisis at our southern border is real and poses a intolerable set of security, fiscal, political and public health risks. It must be addressed forcefully. At least there are a few signs of hope. Last week, a preliminary estimate by the Department of Homeland Security showed that migrant arrests along our southern border for June would decline by as much as 25 percent from May. President Trump, if anything, has been flexible to a fault. Among other things, he has buckled on abolishing the Deferred Action for Childhood Arrivals (DACA) program that President Obama created via executive memo in June 2012. Notwithstanding, he is committed to restoring order along the border. That’s not something that can be said of Local 1924 of the American Federation of Government Employees.
Postscript: The union’s prospects for court victory, unfortunately, improved on July 24 when U.S. District Judge Jon Tigar, an Obama appointee, blocked enforcement of a new federal rule put in place the previous week designed to ease the stress on our asylum review process. Under the rule, migrants who pass through a country not of their own in order to get here would be excluded from consideration for asylum. In other words, a citizen of Guatemala who travels through Mexico and then arrives in America would not be eligible. Judge Tigar, ruling in favor of the ACLU, claimed this requirement would expose migrants to danger and thus would deny their rights under international law. While admitting that our immigration detention facilities are overwhelmed, he concluded, “(S)hortcutting the law, or weakening the boundary between Congress and the Executive, are not the solutions to these problems.” The decision, though not part of the appeals court lawsuit over Migrant Protection Protocols, will hamper the program from achieving its goals.
The Trump administration, to its credit, plans to appeal. And it may win. Only hours prior to Tigar’s ruling, in response to a separate lawsuit, U.S. District Judge Timothy Kelly (District of Columbia), a Trump appointee, dismissed a request for a restraining order against the rule filed by a pair of immigrant rights organizations claiming their own work would be undermined. Judge Kelly responded, “The plaintiffs before me are not asylum seekers affected by this rule.” At least someone on the federal bench understands what is at stake.