A recent decision issued by a federal district court in El Paso reveals the tenuous nature of attempts to secure the southwestern border by judicial opinion. The decision relates to measures that the state of Texas has recently established to interdict “the transportation of migrants” who were not authorized to cross the border. It comes on the heels of the Supreme Court’s refusal to stay a lower court’s decision enjoining the Biden administration from terminating the Migrant Protection Protocols, otherwise known as the “Remain in Mexico” program.
The centerpiece of MPP was an agreement with the government of Mexico whereby Mexico would receive non-Mexican nationals who had illegally crossed into the United States from Mexico and then claimed asylum. The migrants would wait in that country until their claim was heard by an immigration judge. In the months since the Biden administration ended enrollments in the MPP, chaos has overwhelmed the U.S. Border Patrol and Texas border communities all along the Rio Grande.
Given the recent Supreme Court order, the Biden administration’s Department of Homeland Security should not be facilitating the transportation of migrants who have requested asylum. It should be detaining them, at least, until Mexico has consented to a restart of the program.
In any case, the transportation of migrants who have illegally entered this country, whether they have subsequently requested asylum or not, is, in fact, lawfully subject to interdiction by Texas state and local law enforcement. That’s because “transportation” in many instances is part of an illegal smuggling operation. This authority to interdict has long been codified in a federal statute. To understand how it applies, it’s important to understand the human smuggling process itself.
The rise in migrant numbers, fueled by a significant increase in “other than Mexican” nationals and family units, reflects the growth in the human smuggling industry. The process of human smuggling usually begins when the migrant approaches and requests the services of a smuggler, known in the industry as a “coyote.” The lengthy and involved process constitutes a human smuggling conspiracy, and, most of the time, the migrant is the originator of the conspiracy.
The federal anti-human smuggling statute provides criminal penalties for the smuggler and those who conspire in the smuggling enterprise. With regard to the conspiracy aspect, the statute covers “any person who … engages in any conspiracy to commit” human smuggling of “an alien … to the United States.” Any person. Any conspiracy. And it confers arrest authority on “all … officers whose duty it is to enforce criminal laws.” Personnel of the various law enforcement departments of the states and localities in Texas, Arizona, New Mexico, California, and every other state is obviously included among the ranks of these “officers.”
The statute also provides criminal penalties for transporting migrants who are in the country illegally. Given the recent Supreme Court’s decision regarding MPP, nongovernmental organizations operating to assist migrants would be hard-pressed to plead ignorance of the fact that they are violating federal law. Consequently, NGO personnel would be likewise subject to arrest, along with their human cargo.
In practice, upon coming into contact with individuals suspected of participating in the smuggling, conspiracy to smuggle, and/or transportation of smuggled aliens, law enforcement would inform such persons that, unless the suspect aliens self-deport to Mexico in compliance with federal policy (i.e., MPP), they will be subject to arrest pursuant to the provisions of the federal anti-human smuggling statute. Self-deportation would be necessary because state and local authorities are not authorized to enforce most federal immigration laws. Most, that is, except the federal anti-human smuggling statute.
Another way this statute could be applied would be to prosecute the parents of unaccompanied minors who made the dangerous trek and crossed into the U.S. illegally. Any parent who puts their child into the hands of a coyote could be tried and convicted of conspiracy in absentia — and such a conviction would make the parent inadmissible to the U.S.
While it would be preferable for Congress to resolve the situation at the border, it’s been difficult for consensus to be achieved on the broader, and highly contentious, issue of immigration. Recent events have proven, incontestably, that this crisis won’t be solved in the courts. Until such time as Congress does act, states are free to exercise the explicit and clear authority found in the federal anti-human smuggling statute to create a significant “chilling effect” on the human smuggling that is breaking our southwestern border.
John Hostettler is vice president of federal affairs for States Trust at the Texas Public Policy Foundation. He served from 1995-2007 in the U.S. House of Representatives, where he was chairman of the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary for two terms.
