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Former Judge: U.S. Has ‘Perverse Incentives’ for Parents to Smuggle Children Into Country Illegally

Detainees sleep in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville, Texas, on June 18, 2014. (AP Photo/Eric Gay, Pool)

WASHINGTON – The U.S. government’s policy of transferring young undocumented immigrants apprehended at the border to the interior of the country to stay with a sponsor who might be undocumented as well has contributed to the extensive backlog of pending immigration cases, according to a former federal immigration judge.

According to Health and Human Services, “Federal law requires that ORR [Office of Refugee Resettlement] feed, shelter, and provide medical care for unaccompanied children until it is able to release them to safe settings with sponsors (usually family members), while they await immigration proceedings. These sponsors live in many states.”

There are more than 610,000 pending immigration cases nationally.

“Quite frankly, if you enter the United States illegally, you are removable from the United States – and by illegally, I mean without a visa or without permission. If you come on a visa and you overstay, you are removable from the U.S.,” said Andrew Arthur, a former federal immigration judge in York, Pa., during a Center for Immigration Studies (CIS) discussion on the immigration court backlog. “As a judge, it’s not up to me to decide whether that’s the right thing to do or not the right thing to do, but the one thing I will tell you is if you allow individuals who enter the U.S. illegally to remain in the U.S. unmolested, as former ICE [Acting] Director John Sandweg had indicated was likely to happen to individuals who simply enter the U.S. illegally, you are going to get more of them.”

“Your docket is going to swell. This really is what we’re talking about today,” he added. “Why is the backlog so high? Because we’re not actually enforcing the immigration laws against people.”

The judge said the system had “created perverse incentives for people to smuggle their children into the U.S. illegally.”

“The smuggling fee went way down because people had simply just come across the border and claimed ‘credible fear.’ I mean, this was a problem for the smuggling gangs. They didn’t have anybody to smuggle because, quite frankly, you didn’t need a smuggler,” Arthur said. “I mean, these are the perverse incentives that regrettably have been in place. You pull drunk drivers off the streets, you pull individuals who have committed domestic violence out of the jails and you put them into immigration court. If they’re eligible for relief, I as a judge am going to grant you relief. But if you’re not eligible for relief, then Congress has said you should be removed.”

Arthur, a resident fellow in law and policy at CIS, said a lot of the “unaccompanied minors” showing up at the border did not make the dangerous trek from their home countries to the U.S. alone.

“If you are a 6-year-old, how did you get here from Guatemala if you’re unaccompanied? Unfortunately, in a lot of these cases the parents are complicit,” he said. “I’m a father. I love my son. I would never put my son in the hands of a person whose main stock and trade is moving heroin over the United States border. And we’ve actually seen ICE take action against parents who have paid smugglers to bring their kids to the United States. I think that’s a crucial issue.”

“The other thing is, most of the UAMs [Unaccompanied Aliens Minors] are minors in name, they’re under the age of 18, but most of them are, you know, 17 years old.”

Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies, encouraged the public to read a federal district court decision issued by Judge Andrew Hanen in Texas.

“He issued a decision in a case in which a human smuggler, a woman who had been caught before for smuggling was caught at the border with a young girl, I think the girl was like 11 or 12, very young. The smuggler was convicted of a felony but the judge castigated the administration. Why? Because what did they do when this smuggler was caught at the border? They took the child, delivered her to her illegal parent in Virginia; the illegal parent had paid a Mexican drug cartel to smuggle her daughter into the United States,” he said.

“In other words, this illegal alien parent in Virginia had paid a drug cartel to smuggle her young daughter across the United States. What Andrew Hanen, the judge, said was that he pointed out all the dangers of this, all the people who had been killed by the cartels, young women who have been raped and otherwise assaulted, and what did the government do? They delivered the child to her parent in Virginia,” he added.

Larry Burman, secretary-treasurer of the National Association of Immigration Judges, added that a migrant under 18 is considered an “unaccompanied minor” by the U.S. government even if they have relatives living in the country.

Von Spakovsky said the federal government should change its policy of paying to transport the young migrant to a relative in the U.S. who could be living in the country without permission.

“Now, I certainly agree that this unaccompanied minor – although they were accompanied by a human smuggler – should be reunited with her parent,” he said. “But as the judge pointed out, rather than then removing the child and the parent from the United States, they did absolutely nothing about it. Yeah, they prosecuted the smuggler, but they simply delivered the child. So what did the judge say? He said the U.S. government was completing this criminal conspiracy and encouraging more parents who were illegally in the United States to pay these drug cartels.”

“They are the ones that provide the personnel who do this work, they were completing this criminal conspiracy and encouraging more parents to engage in this kind of extremely risky behavior,” von Spakovsky added. “And what should happen in the case and what should be the policy of the United States government is that, yes, the child is reunited with their parent who is illegal in the United States, but then they are both removed from the United States and sent back to their home countries.”

Arthur recalled being a trial attorney in Baltimore and seeing 17-year-old migrant workers who would file for special immigrant juvenile status immediately after being arrested in orchards.

“It is sort of a misnomer in the sense that I’ve seen plenty of cases involving younger kids, generally with parents, but the number of cases in which there is a very young child of tender years who makes it to the United States independently, those are few and far between and very rare – there’s normally a parent in the United States who has paid the smuggler to bring the child here,” he said. “Let’s bring the parent forward and the parent can make the claim on behalf of the child.”