After well over a year and one million illegal alien children and families coming to our border, has President Trump finally forged the deal to end the invasion?
No, the president is not fully asserting American sovereignty by announcing an §1182(f) shutoff at our border, but if his deal with Guatemala succeeds, it may net a similar result.
On the surface, it’s hard to overstate the importance of the third-party asylum deal the president signed with the Guatemalan government in the Oval Office on Friday. Guatemala is agreeing to serve as the first destination for asylum seekers coming northward. This deal will force all but the migrants from Guatemala itself to first apply there. Geographically, Guatemala is the chokepoint for all migration coming north. Anyone from the other countries in Central and South America, as well as from Africa, Haiti, and Cuba, ultimately come through Guatemala before pressing on to Mexico.
Once this deal is fully implemented, in August, according to DHS Secretary Kevin McAleenan, all these migrants except those from Guatemala will be ineligible to seek asylum in America. While the Central American migrants were overwhelmingly from Guatemala at the start of this crisis in 2018, in recent months there have been almost twice as many from Honduras. Thus, fully enforcing the requirement to first seek asylum in Guatemala will shut off most of the migration. For example, according to data I’ve seen from Texas DPS’ weekly border apprehensions in Texas, just 2,577 of the 14,266 aliens apprehended in the state the week of July 17 were from Guatemala. That means 82 percent should be turned back under this agreement (including those from Mexico who are already subject to expedited removal).
This is reason to celebrate the pending end to the border crisis, right?
Will they be turned back at our border?
The key question in light of this deal is whether the illegal aliens will now be turned back right at our border, as they should have been for months, or not. At the end of the day, the president has tweeted many hollow threats over the past year, and they have not deterred the illegal immigrants because they all see the reality on the ground or hear about it from their friends and relatives who just went through the pipeline without the much-hyped restrictions. Will this time be different?
Unless DHS actually turns them back at the border itself, this deal will be nothing more than a glorified Trump tweet. Remember, asylum is not even the issue any more. In many parts of the border, fewer than 10 percent are even expressing a credible fear of persecution. I’ve spoken to several border agents who’ve said that most of them, when being interviewed by Border Patrol, openly say they are coming for work or for medical care. Both of those motives should automatically render these people inadmissible (§1182(a)(4) for medical care public charge and (a)(5) for seeking labor) and they should be immediately sent back.
Yet DHS is still bringing them in (even from behind the wall!), and if they are here with a child, they are released within a few days. Again, DHS is doing this even for people not claiming asylum. Thus, the asylum deal won’t automatically change this policy. DHS must actively turn people back. Until Central Americans and Africans see mass numbers of people turned back, they will not be dissuaded from coming.
However, once the first migrants in the pipeline are turned back, it will likely put an end to this entire charade. Despite the media’s feigned outrage over Guatemala not being prepared to absorb asylum-seekers, no serious person thinks Guatemala will be flooded with migrants once they know America is closed for business. They are not fleeing persecution; they are seeking to come to the U.S., and nowhere else, for work, medical care, and birthright citizenship.
Kevin McAleenan said on Friday that any migrant from south of Guatemala who fails to make a claim there and “instead, in the hands of smugglers, make the journey all the way to the U.S. border, [would] be removable back to Guatemala.” The question lies in the word “removable.” If they continue to feel bound by the insane ruling of Judge Dana Sabraw that all illegal aliens with a child must be released together within 20 days, once we agree to hold them rather than turning them back immediately, we will ultimately have to release them. At present, ICE lacks the funding for enough deportations back to Central America even for single adult males. Thus, with a lack of funding, it will take some time to remove them, and by then, the courts will demand they be released. Turning them back and marching them over the river as soon as they are caught, which we are already doing at ports of entry, is the only solution.
Will Trump hold the line on the courts?
This entire crisis was spawned by the California judges last July shredding immigration law and enshrining the use of children as a ticket into our country. The courts have engaged in civil disobedience against every attempt of this administration to enforce the laws. The entire purpose of a third-party asylum agreement is to finally take this issue out of reach of the courts.
The law states in the most emphatic terms that the courts have absolutely no jurisdiction to hear any lawsuit against a third-party agreement. It is inherent in foreign diplomacy anyway and is as much out of the courts’ jurisdiction as war and treaty powers, but nonetheless, Congress codified it into law. 8 U.S. Code §1158(a)(3) states, “No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2),” which is the crafting of a third-party asylum deal with a foreign country. No ifs, ands, or buts about it.
Unfortunately, we’ve been down this road many times this year. There have been many illegal district court rulings on immigration issues over which Congress explicitly stripped the courts of jurisdiction. They did this in the case of TPS amnesty and in several deportation cases, as well as creating habeas corpus rights for illegal aliens explicitly barred by the 1996 law. In fact, just over the weekend, the Supreme Court ruled that the California judges had no valid case with standing to rule against Trump building a border wall with Pentagon funding.
Yet rather than enforcing the jurisdictional bar of the law against the same courts that have continuously been slapped down by SCOTUS, the Trump administration has enforced the lawless rulings against the law.
The left-wing open-borders groups are already threatening to sue the asylum deal, even though it is an act of diplomacy. The Trump administration needs to get out ahead of this by educating the public that all lawsuits against this agreement are barred under immigration law and that it will not participate in any court proceedings, respond with any briefs, or enforce any illegal court ruling.
The bottom line is that we are over one year into this crisis because, until now, the administration has not held strategic line at the border itself against the smugglers and the legal line against runaway California judges. There are no shortcuts to those two imperatives. The deal with Guatemala is a great way of announcing a change in those two policies, but absent those changes, it is no policy at all. (For more from the author of “Trump’s Guatemala Deal a Game-Changer? 2 Questions That Will Determine Success” please click HERE)