Tag: asylum

Criminal Illegal Immigration Falls 75 Percent

The number of Border Patrol apprehensions is climbing rapidly this year. Border Patrol has apprehended 273,089 people along the Southwest border since the beginning of fiscal year 2019 through to the end of February 2019. If those numbers continue to climb, Border Patrol apprehensions this fiscal year could exceed the annual number in any year since the start of the Great Recession. Even though Border Patrol has apprehended more people in recent years, the number of criminal aliens arrested by Border Patrol has dropped since at least FY 19. 

According to Border Patrol, criminal aliens are those who have been convicted of crimes here or abroad if the conviction is for conduct which is also criminal in the United States. From the beginning of fiscal year 2015 through the end of February 2019, the absolute number and percent of criminal aliens arrested by Border Patrol have fallen in every year (Figure 1). In 2015, about 5.7 of all Border Patrol apprehensions were criminal aliens. For FY 19 through the end of February, only 0.7 percent of people apprehended by Border Patrol were criminal aliens. If the number of criminal aliens apprehended continues to decline apace for FY 19, the absolute number will be 75 percent below 2015.     

Figure 1

Many politicians and political commentators complain that people showing up on the border and entering illegally or asking for asylum are criminals. The falling number of previously convicted criminals showing up is evidence to the contrary. Relative to earlier surges in apprehensions along the border, the larger number of women, children, and asylum seekers means that today’s surge is preferable to previous surges.   

When people were worried about the migrant caravan last year, I wrote a blog arguing that it probably didn’t contain many criminals and likely looked a lot like the rest of the illegal immigrant population. The Border Patrol figures on criminal alien arrests tend to agree with me. Like previous surges of illegal immigration, this one presents problems, but they are better problems than those faced in the past.  

The Law of Nations, Sovereign Power Over Immigration, and Asylum: It’s Not As Clear As It Seems

Judge Jon S. Tigar of the U.S. District Court for the Northern District of California recently struck down a Trump administration policy barring asylum for those who do not enter through a legal port of entry.  Tigar’s major point is that Trump’s order conflicts with a statute that specifically says that those who entered illegally are eligible for asylum.  Despite this temporary ruling against the administration’s asylum order, a higher court will probably approve Trump’s action by invoking I.N.A. 212(f) that, according to the Supreme Court decision in the Travel Ban case, seems to give the president nearly unlimited power to ban whomever he wants from coming here no matter what the rest of the law says.  I hope I’m wrong, but I wouldn’t bet against that outcome.

Some commentators are outraged by the court order blocking president Trump’s change to asylum because they think it violates the national sovereignty of the U.S. government to determine who can enter without limitation.  Outside of the fringes, debates about national sovereignty are rare in the context of immigration policy because the Supreme Court has frequently affirmed Congress’s plenary (read unlimited) power to pass any immigration law it wants because of inherent power vested in the national sovereignty of the United States.  Despite some arguments that seek to limit that power or that it was invented almost a century after the Constitution was enacted, this inherent power is not seriously challenged and almost nobody would consider it illegitimate.

Those Supreme Court cases cited foundational scholars in the field of international law to support the majority’s opinion that Congress had plenary power over immigration.  In this context, international law refers to the customs, behaviors, and evolving rules that regulated the intercourse between governments and foreign individuals.  The two most cited international law scholars in the above Supreme Court decisions, supporting Congress’s unlimited power to restrict the movement of people across borders, are Emer de Vattel and Samuel von Pufendorf.  A recent article in the European Journal of International Law by Vincent Chetail shows just how selectively the Supreme Court cited those two scholars.

Before summarizing Chetail’s research on Vattel and Pufendorf, one must understand that they inherited and altered an international legal tradition that preceded them by centuries. 

Chetail’s paper begins with the work of Francisco de Vitoria (1480-1546), who is frequently portrayed as the founder of international law (also known as the law of nations).  He argued that the free movement of persons is a cardinal feature of international law through the right of communication, meaning that the right of humans to communicate with each other implies that they also have the right to move in order to communicate.  He used this to argue that when the Spaniards sailed to the Americas, they had no right of conquest or to occupy the Americas.  However, he went on to argue that Spaniards did “have the right to travel and dwell in those countries so long as they do no harm to the barbarians.”  This right supposedly comes from the law of nations, which derives from natural law and is not abridged by the division of the world into nations.  Vitoria argued that the right of free movement is mandatory so long as it does not cause harm to the host society, meaning crime.  He even argued, quite radically, that nations that refuse admission to non-criminals are committing an act of war.  Vitoria applied his argument to Europeans, arguing that “[I]t would not be lawful for the French to prohibit Spaniards from traveling or even living in France, or vice versa, so long as it caused no sort of harm to themselves; therefore it is not lawful for the barbarians either.”  Vitoria argued that these principles also support universal free trade, free navigation, and birthright citizenship. 

Chetail then moves on to discuss the work of Hugo Grotius (1583-1645), who endorsed Vitoria’s description of international law and refined it further by arguing that individuals have a right to leave their own country and to enter and remain in another.  In essence, Grotius argued that in order for there to be a right to emigrate, there must also be a right to immigrate.  He even argued, like Vitoria, that the right of movement can be taken by force if it is unjustly denied by the government.  Those who are criminals, would harm society, or skirt essential duties like repaying loans can be barred from immigrating or emigrating under Grotius’s theory.  He applies the same limitations on emigrating as he does on immigrating. 

Next, Chetail looks at the work of Samuel von Pufendorf (1632-1694).  He was the first international law scholar who argued that state sovereignty and the state’s power to choose whom to admit dominated any natural right of movement.  Pufendorf argued that individuals have the right to emigrate, but not to immigrate.  He did not elaborate on why his opinion differed from that of Grotius and Vitoria on this matter.  However, Pufendorf did write about two exceptions: shipwrecked sailors and some asylum seekers.  He wrote:

[I]t is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted, who are driven on the coasts by necessity, or by any cause that deserves pity and compassion. Not but that it is barbarous to treat, in the same cruel manner, those who visit us as friends, and those who assault us as enemies [emphasis added].

Those exceptions aren’t as broad as they first seem.  Although he argued that states should accept foreigners because “we see many states to have risen to a great and flourishing height, chiefly by granting license to foreigners to come and settle amongst them; whereas others have been reduced to a low condition, by refusing this method of improvement,” Pufendorf ultimately argued that those humanitarian concerns of admitting asylum-seekers should only occur when the host state decides to so do. 

Pufendorf reversed the reasoning of Grotius and Vitoria.  They argued that free movement was the general rule with some specific exceptions, but Pufendorf argued that no movement was the general rule with some specific general exceptions and total state control otherwise. 

Christian von Wolff (1679-1754) is the next philosopher of international law in the tradition of total state control over migration.  Wolff’s main contribution was to argue that the sovereign owns the nation, and he exercises this power as an individual property holder does regarding entry of people onto his land.  

Wolff does grant several exceptions to this general state power.  Foreigners have a right to enter a country if they do not harm the state.  This right of harmless use means that foreigners can travel through a nation’s territory on their way elsewhere, that asylum seekers or refugees have the right to enter and remain, and that “foreigners must be allowed to stay with us for the purpose of recovering health, … study, … [or] for the sake of commerce.”  Wolff went on to write that “permanent residence in [a nation’s] territory cannot be denied to exiles by a nation, unless special reasons stand in the way [emphasis added].”         

Those exceptions seem like strong limitations on the power of states to deny entry, but Wolff pulls a lawyer’s trick to argue that foreigners have the right to enter if those above conditions are met but also that there is no enforcement mechanism.  Thus, Wolff argues that states have total control over entry and no private actor can commit violence to enforce the right of admission.  Foreigners have a right to ask for admission under Wolff’s system and the state is morally bound to accept many of them, but the state is legally free to refuse them. 

The last international law scholar that Chetail writes about is Swiss author Emer de Vattel (1714-1767), who is also the most important, as he is cited extensively in the Supreme Court cases discussed above.  Vattel synthesized the work by the earlier scholars.  He argued that there is a qualified power of state sovereignty to control immigration with the two substantial caveats of innocent passage and necessity.  Innocent passage and necessity can only be denied using excellent reasons regarding the security of the admitting state.  He wrote:

[T]he introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property [emphasis added].

The fact that Vattel argues for exceptions is important because the Supreme Court didn’t recognize these exceptions when it quoted him in the 1892 case Nishimura Ekiu v. United States:

It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to its self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100.

Chetail doesn’t pull any punches when criticizing the judges who wrote the Nishimura Ekiu decision:

At the time of this judgment, the authority of Vattel proved to be instrumental in justifying a radical breakdown from the time-honoured tradition of free movement … the famous dictum of the US Supreme Court was based on a biased and selective reading of Vattel. In fact, the two earlier-quoted passages from the Swiss author were taken out of their context, with the overall result of providing a partial account of his views on the admission of foreigners. This misreading of Vattel has prevailed until now among US judges.

Most relevant to the ongoing chaotic situation on the Mexican border where many migrants stormed it and were repelled by tear gas, is that Vattel seems to endorse a right to illegal entry if legitimate entry is unjustly blocked by the government.  Recall that asylum-seekers, which includes those fleeing dire poverty under Vattel’s definition, fall under the necessity exception:

When a real necessity obliges you to enter into the territory of others – for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation – you may force a passage when it is unjustly refused.

Vattel, one of the two intellectual heavyweights whom the Supreme Court cites to justify Congress’s plenary power over immigration, argued that the government cannot bar asylum-seekers and many other migrants from entering the United States and that those unjustly refused entry can do so illegally – a very radical position.  According to Vattel, that right is not restricted and can be enforced against the will of any sovereign so long as illegal entry is the only way to safeguard an essential interest of the foreigner.        

This post is not an argument for one or another of the views held by the above-mentioned writers, but instead a summary of fascinating recent work by a professor of international law on an important subject.  The most shocking thing is how selectively the Supreme Court cited Vattel over a century ago to grant Congress a vast and unrestricted power that Vattel did not recognize.  

Free Trade Agreements Don’t Increase the Number of Asylum Seekers and Refugees

Alexandria Ocasio-Cortez, the recent winner of a Democratic primary for Congress in New York, argued that free-trade agreements (FTAs) have caused the number of refugees and asylum seekers to the United States to grow.  This is a somewhat common claim among some critics of trade or FTAs in particular. 

To test this claim, we gathered a list of all the FTAs that the United States has signed and how many asylum seekers and refugees they sent to the United States since the year 2000.  We combined all asylum seekers, affirmative and defensive, that were counted by the United Nation Human Rights Commission.  Some asylum seekers from these countries are double or triple counted due to the oddities of the asylum system.  We then added refugee admissions from the Department of Homeland Security. 

Next, we ran several regressions to see the relationship between having an FTA with the United States and the number of asylum seekers, refugees, or those two categories of humanitarian visas combined who arrive in the United States from those countries.  The first regression was a difference-in-differences with two-way fixed effects.  The second was a difference-in-differences regression with linear time trends.  The third was a triple difference-in-differences with two-way fixed effects that also included asylum seekers, refugees, and humanitarian immigrants from Latin America specifically.  To ensure proper statistical inference, we computed robust standard errors clustered at the country level to correct for country-level autocorrelation in these variables.

Our results are that there is no statistically significant change in the number of asylum seekers or refugees that countries send to the United States after they sign an FTA in any of the above regressions.  We find very low within R-squares for these models that suggest that the presence of FTAs has very little predictive power for within-country variability for the number of asylum seekers and refugees.  In other words, FTAs don’t explain the flow of asylum seekers and refugees, and other variables that we did not include in our model do.       

Figure 1 shows the number of asylum seekers from countries that have signed an FTA since 2000 in the five years before and after the agreement going into effect.  Each line represents a different country.  There is no relationship between signing an FTA and the number of asylum seekers.

Figure 1

Asylum Seekers within Five Years of Signing an FTA per Country

Source: United Nation Human Rights Commission

The refugee system is the other half of the humanitarian immigration system and it shows no change in the number of asylum seekers before and after the signing of FTAs (Figure 2).  It’s worth noting that nations that send refugees to the United States send very few refugees and almost all of those sent in Figure 2 are Colombian.

Figure 2

Refugees within Five Years of Signing an FTA per Country

 

Source: Department of Homeland Security.

There are many potential explanations for changes in the number of asylum seekers and refugees coming to the United States.  They range from changing conditions in other countries to alterations in American law or policy and everything in between—but let us set aside the notion that FTAs somehow force people to flee their home countries. 

The Terrorism Risk of Asylum-Seekers and Refugees: The Minnesota, New York, and New Jersey Terrorist Attacks

News stories are now suggesting that the Minnesota stabber Dahir Adan entered the United States as a Somali refugee when he was 2 years old.  Ahmad Khan Rahami, the suspected bomber in New York and New Jersey, entered as an Afghan asylum-seeker with his parents when he was 7 years old.  The asylum and refugee systems are the bedrocks of the humanitarian immigration system and they are under intense scrutiny already because of fears over Syrian refugees.    

The vetting procedure for refugees, especially Syrians, is necessarily intense because they are overseas while they are being processed.  The security protocols have been updated and expanded for them.  This security screening should be intense.  The process for vetting asylum-seekers, who show up at American ports of entry and ask for asylum based on numerous criteria, is different.  Regardless, no vetting system will prevent or detect child asylum-seekers or child refugees from growing up and becoming terrorists any more than a child screening program for U.S.-born children will be able to prevent or detect those among us will grow up to be a terrorist. 

Adan and Rahami didn’t manage to murder anyone due to their incompetence, poor planning, potential mental health issues, luck, armed Americans, and the quick responses by law enforcement.  Regardless, some may want to stop all refugees and asylum seekers unless they are 100 percent guaranteed not to be terrorists or to ever become terrorists.  Others are more explicit in their calls for a moratorium on all immigration due to terrorism.  These folks should know that the precautionary principle is an inappropriate standard for virtually every area of public policy, even refugee screening.   

House Bill Eviscerates Asylum System, Deports Child Trafficking Victims

President Obama recently asked Congress for authority to treat Central American children in the same way the government treats Mexican children. The Asylum Reform and Border Protection Act (H.R. 5137), introduced today by Reps. Chaffetz (R-UT) and Goodlatte (R-VA), Chairman of the House Judiciary Committee, goes beyond the President’s request. The bill eliminates any sort of review for juvenile victims of trafficking and the requirement that an immediate return of a child be voluntary.

Under current law, Mexican children may be immediately removed if they are:

  1. Not severe victims of trafficking,
  2. Not asylum seekers, or
  3. If they accept voluntary departure, a procedure by which the child admits that he or she has no right to be here and leaves in lieu of formal removal proceedings.

Under the proposed H.R. 5137, all children caught at the border would be subject to expedited removal, a process under which they can be removed without a hearing before a judge if they have no credible fear of persecution (8 USC 1225(b)). This process triggers an automatic 5-year bar on legal reentry (8 USC 1182(a)(9)(A)(i)). Any child caught at the border may be detained until his asylum application is adjudicated. It extends the current arbitrary one year deadline on asylum applications for adults to children.

Unaccompanied children could be detained or released under the bill while waiting for final approval of their asylum application, but the bill redefines “unaccompanied” to mean that once a child has been released to a parent, they no longer qualify for release, which means they would head right back into detention.

Worse, H.R. 5137 raises the initial standard of review for all asylum claims for children. Rather than going before a judge simply by asserting a fear, they would actually have to convince an asylum officer that their claim was “more probable than not” to be factual in order to even to go before a judge. Raising the standard that high for an initial review would bar many legitimate asylum seekers.

Even worse, H.R. 5137 allows children apprehended at the border to be removed without any asylum screening to a “safe third party country” (i.e. Mexico) without an agreement from that country, as is required by current law. If H.R. 5137 becomes law, the U.S. government would immediately start dumping Honduran, El Salvadoran, and Guatemalan children into Mexico.

The crisis along the Southwest border has prompted many Americans to want all unlawful immigrants and children removed. But this bill goes far beyond that desire. H.R. 5137 would remove many foreigners who have legal rights under our current immigration laws. H.R. 5137 would be a disastrous blow to America’s asylum system and send numerous children with legitimate asylum claims back into danger.

The Ecuadorian Pot Calls the American Kettle Black on Media Freedom

For a time it looked like Edward Snowden, famed NSA leaker, was headed for Ecuador, whose London embassy still hosts asylum-seeker Julian Assange of WikiLeaks. But the leftist government curiously has cooled on Snowden.

President Rafael Correa originally praised Snowden for his leaks, but then back-tracked. More recently Correa indicated that an asylum request would be considered only after Snowden reached Ecuadorian territory or an embassy, and after consultation with the Obama administration. The Hugo Chavez confidante added: “I believe that someone who breaks the law must assume his responsibilities.” 

The suspicion is that Correa decided principle wasn’t as important as his people’s access to the U.S. market. Nothing personal, just business!

Thankfully, President Correa is primarily a problem for his own people, a dangerous demagogue like Chavez who uses nominally democratic means to amass ever more power. The group Freedom House cited Correa’s use of “questionable maneuvers to remove opposition legislators and members of the Constitutional Court.” Human Rights Watch reported that “prosecutors have repeatedly applied a ‘terrorism and sabotage’ provision of the criminal code against participants engaged in public protests against environmental and other issues.” 

Correa also uses his control of the government and the courts to discourage media criticism. Last month the National Assembly approved a new “gag law” which creates a Communication Regulation and Development Council, Office of Superintendent of Information and Communication, and Citizen Participation, and Social Control Council to enforce its provisions.

The government closed a score of independent radio and television stations last year. President Correa also has used lawsuits to punish his critics. One case imposed a $40 million judgment and jail terms. Observed Freedom House: “International human rights and press freedom organizations, the Organization of American States (OAS), and the United Nations denounced the court decision as a clear effort to intimidate the press.”

His attacks on the press dramatically contradict his policy toward foreign leakers. Indeed, observed my Cato Institute colleagues Juan Carlos Hidalgo and Gabriela Calderon de Burgos:

Another, less reported story is Correa’s war against leakers in his own government. Since he came to power in 2007 there have been four well-documented case where the Ecuadorean government either prosecuted or arrested people who leaked information to the media, revealing instances of corruption in Correa’s government. 

Freedom House only rates Ecuador as “partly free.”  As I wrote in my latest Forbes online column:

While [recently] in Ecuador I talked with people who are more classically liberal, favoring limited government, competitive markets, and free expression.  Although they oppose the crony right as much as the populist left, there was a shared feeling of intimidation.  Years ago, when a free market university let Correa go after he chose politics over the classroom, he sent government regulators to the school.  Many who write about the president today say they temper their criticism, lest they face a ruinous lawsuit.

For Ecuadorian President Correa, sanctimony is high art. To him press freedom and government transparency are for other governments, not his own.