The ‘unknown unknowns’, plus a Supreme Court review
By Andrew R. Arthur | CIS on October 8, 2019
Much of the attention on the ongoing (but improving) humanitarian and national-security disaster at the border has been on unaccompanied alien children and aliens who are traveling in family units (UACs and FMUs, in government jargon) and who have been exploiting the credible-fear system by entering illegally and turning themselves in to the first Border Patrol agent they find. A recent story out of Laredo, Texas, however is a reminder that aliens also continue to enter illegally hoping they don’t get caught, a problem that needs to be addressed in its own right.
On October 4, 2019, the U.S. Attorney’s Office for the Southern District of Texas announced a conviction in a case involving a tractor-trailer carrying 71 illegal immigrants from a wide variety of countries: 36 Mexicans, 21 Guatemalans, 6 Salvadorans, 5 Hondurans, and 3 Brazilians. That truck was stopped at a Border Patrol checkpoint near Laredo on July 8 after an agency K-9 alerted to the fact that there were humans and/or drugs in the sealed trailer. The seal was removed, and the human cargo discovered.
The driver initially claimed that a friend had convinced him to drive the sealed truck to Uvalde (some 140 miles away), but his story soon fell apart. Investigators determined that the driver, in fact, owned the truck and rented the trailer, and had driven the same vehicle past the checkpoint seven times in the previous seven weeks. He pled guilty to conspiring to transport aliens, and is facing 10 years in prison and a fine of up to a quarter million dollars.
Clamping down on aliens seeking to evade apprehension is made more difficult by the waves of FMUs and UACs who have been overwhelming the border in recent months. Acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli discussed, at a recent Center for Immigration Studies Newsmaker event, how drug cartels have been using the distraction of massive numbers of aliens entering illegally in the past few months:
“And realize, we have to be much more flexible than we used to be in the past because of what’s going on on the southern side of the border. … [I]f you look from the south to the north, what you would see is a tollbooth for the cartels. And these smuggling organizations have to pay a cut to the cartels to even get to the border, and they steer the traffic. And they steer it in ways that advantage their other business. So they both take a cut, and they will, for instance, overwhelm Border Patrol manpower in one area so they can run drugs, guns, people — smuggle people across another part of the border — often relatively close by, but now you’ve drained the law enforcement resources to contend with that. [Emphasis added.]”
Plainly, some aliens had to have been able to make it across the border illegally to end up in a trailer in Laredo to begin with. And then there is the human cost to consider: It was 107 degrees in Laredo, Texas, on July 8, and there is no suggestion that the trailer in question was air-conditioned. Nor are such trailers intended for human transport. It was likely lucky for the 71 illegal migrants that they were apprehended by the Border Patrol, before they suffered heatstroke or worse. Deaths have happened before in such circumstances, and will again. Smuggling is a business, and those fatalities are simply “collateral damage” to those depraved enough to engage in it.
The numbers of aliens who evade apprehension are one of the great “unknown unknowns” in the world of immigration, as then-Defense Secretary Donald Rumsfeld put it in a different context: “the ones we don’t know we don’t know“. Border Patrol cannot apprehend all of the aliens who enter illegally (though not for want of trying). Cases like the Laredo prosecution show that notwithstanding all of the loopholes that encourage aliens to enter illegally, there remain some who do not want to get caught at all.
One final point: Among the key tools in stopping such smuggling schemes are the criminal provisions in section 274 of the Immigration and Nationality Act (INA). In December 2018, however, a three-judge panel of the Court of Appeals for the Ninth Circuit held that section 274(a)(1)(A)(iv) of the INA is “unconstitutionally overbroad“. Specifically, it held that this provision “criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression” in violation of the First Amendment right to free speech.
What kind of speech was the court referring to?
Here is what the clause in question states: Any person who — (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law … shall be punished.
Among the points in the Ninth Circuit’s decision:
We begin with an obvious example from one of the amicus briefs: “a loving grandmother who urges her grandson to overstay his visa,” by telling him “I encourage you to stay.” Nothing in Subsection (iv) would prevent the grandmother from facing felony charges for her statement. … The government has not responded persuasively to this point; it simply argues that the grandmother would not be subject to criminal charges because her statement was “not accompanied by assistance or other inducements.” However, … Subsection (iv) does not contain an act or assistance requirement.
Reviewing this same provision in a 2012 case, on the other hand, the Third Circuit had held that “encouragement or inducement must … be ‘substantial’ to support a conviction under the statute.” It continued: “This means not just general advice … but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been.”
Again, the criminal provisions listed in section 274 are crucial to the prosecution of smuggling schemes like that uncovered by the Border Patrol in Laredo, and the Ninth Circuit’s decision has eliminated the government’s ability to use one of the key clauses therein. The good news is that the Supreme Court has agreed to consider the Ninth Circuit’s decision in its latest term, which began Monday.
The bad news is that, like the Border Patrol and illegal aliens, the Court cannot stop all of the bad circuit decisions. Every little bit helps, though.
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