On Monday, Border Patrol agents in Hidalgo, Texas, apprehended 36 aliens who had entered the United States illegally. The group consisted mainly of adults travelling with children and unaccompanied alien children (UAC). When agents sorted them out, they made a shocking discovery: One was a four-year-old girl — without any family, travelling from El Salvador. Congress should take note, and get rid of the incentives that encourage adults to expose their children to the dangers of illegal migration — and in particular, of smugglers.
I never know how much emphasis to place on such cases. As a father, I — with due respect to her family — have a sense of outrage. Outrage at whoever allowed her to be taken on this journey, and outrage at an immigration system that not only aids and abets, but actually encourages, caregivers to trust smugglers with toddlers whom they have a moral and legal obligation to protect.
In July 2018, I wrote a post that described the horrors and perils that illegal migrants to the United States face at the hands of smugglers. The stories therein are bad, because smugglers are evil.
When I was a kid, hitchhiking was a common way to get around. Stories thereafter abounded about the dangers of getting into the car of a stranger, and the rare — but serious — consequences of the practice. Parents forbade it, for the simple reason they did not want their children to be exposed to the possibility that a driver might have bad intent. Some did, most didn't, but even the minimal threat was too much for parents to bear.
Here's the thing: I can promise you that all smugglers are bad. At best, they are criminals who pay protection money to criminal cartels, as the Texas Tribune reported in March 2019. At worst, they are criminal predators who take whatever liberties they want with the migrants who are at their mercy. To such people, migrants are a commodity — which is to say, objects — and are treated as such.
I will assume that those parents love their children as I love mine. So why exactly would they trust their flesh and blood to criminals? Simple: U.S. immigration law encourages them to do so, if the parent in the United States wants to be reunited — in this country— with his or her child.
Specifically, section 462 of the Homeland Security Act of 2002 took jurisdiction over the care and placement of UAC apprehended by DHS away from the immigration enforcement agencies and vested it with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).
The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) expanded on HHS's jurisdiction over UACs. Under section 235 of the TVPRA, UACs are separated into two groups: those from contiguous countries (Mexico and Canada), and nationals of all other countries (like El Salvador).
Under the TVPRA, a UAC from a contiguous country can be returned if that UAC has not been and will not be a "victim of a severe form of trafficking in persons", does not have a credible fear, and "is able to make an independent decision to withdraw" his or her application for admission.
As the Congressional Research Service has found, however:
The TVPRA mandated that unaccompanied alien children from countries other than Mexico or Canada — along with UAC from those countries who are apprehended away from the border — are to be transferred to the care and custody of HHS and placed in formal removal proceedings.
More specifically, however, HHS is required to place them with a sponsor in the United States. I testified at length on the flaws and dangers in this system before the House Appropriations Committee in February 2019. Nothing changed.
Most of those sponsors are aliens here illegally. Between July 2018 and January 2019, 23,445 UACs were released to sponsors. Of those sponsors, 18,459 — 78.7 percent — had no status in the United States. Worse, 21 were under final orders from removal, six were denied asylum and were appealing to federal court, and 638 (2.72 percent) were in removal proceedings.
One federal judge, Andrew Hanen of the U.S. District Court for the Southern District of Texas, saw too many parents illegally present paying coyotes to bring their children to this country, and had enough. In U.S. v. Nava-Martinez, a case in which the defendant was convicted of smuggling a Salvadoran minor to the United States, he noted:
This is the fourth case with the same factual situation this Court has had in as many weeks. In all the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors into the custody of the parent living illegally in the United States.
Hidalgo is within Judge Hanen's jurisdiction. He made that statement almost seven years ago. Nothing changed.
Which brings me back to the four-year-old girl, travelling alone and found by the Border Patrol on the banks of the Rio Grande on a November morning in 2020. As the CBP press release explains:
In her possession, agents discovered a hand written note with contact information for a parent in the United States. Additionally, the child had a phone number written on the inside of her coat. Agents contacted the father and he stated that the mother abandoned the child.
This presents four possible scenarios: (1) The mother "abandoned" her child when she released the toddler to the care of the smuggler. (2) The child was "abandoned" by her mother and other family members subsequently trusted her to criminals to bring her to her father in the United States. (3) The child was "abandoned" by her mother and her father paid to have a smuggler bring her to the United States. (4) There was an agreement between the mother (presumably in El Salvador) and the father in the United States to have the child smuggled to this country.
I have seen all four scenarios (more times than I care to count), and any are plausible. Which one (if any) is correct? Only the father really knows, or has a good idea. No matter, however, because someone made a bad choice.
If the mother left her child, and the father knew it, it was incumbent on him to go to where the child was and take care of her. Now, he might have been as surprised as the Border Patrol agents in Hidalgo were to find out that the four-year-old girl was alone on the edge of America. If not, though, and if he knew that she was going to be smuggled to the United States by a criminal, he took an unforgiveable risk.
The 1948 John Ford classic, "3 Godfathers", tells the story of a trio of bank robbers on the lam who come upon a mother, dying in labor, on the trail. She entrusts the child to the three, who brave the desert and the law to bring the newborn boy to safety. One of them — Bob Hightower (John Wayne) — completes the mission. It is a story of love and redemption. It is also fiction.
Here are the facts: Even the best, most humane smuggler is a criminal, who exposes his or her charges to unspeakable dangers. Most smugglers are not humane, though, and frankly care little for their migrants except as a payday. And some smugglers are rapacious villains, with their own perverse (and hidden) agenda. None is John Wayne.
The laws of the United States should not incentivize their crimes. They do, however, and expose the most vulnerable to the greatest dangers. I have no doubt that the authors of those laws had the purest of intentions. But they need to wake up to the consequences of their acts and remove the incentives for parents and smugglers. The Border Patrol may not be there to save the next four-year-old girl.