Legal Commentary

    Jonathan Simon's post on Haiti and security is a good reminder that immigration policy has got to be a component of any meaningful foreign policy, security policy, or drug control policy.  The legislative process being what it is, we do one bill at a time, but this integration should be in the back of our minds, especially if we really are going to get a bill this year.  Now that the administration has granted temporary protected status to Haitians in the US, we should ask ourselves what the pros and cons would be of a much broader expansion of the right of foreign-born people to live in the US.  Haiti is a small contributor to the overall immigrant numbers, but it's significant enough that we might want to start asking: Okay, say we increase the Haitian quota, and say the sky doesn't fall, shouldn't we think about Mexico next?

    Ilya Somin at Volokh quotes approvingly from a Wall St. Journal editorial saying let's let just let all the Haitians move here.  It's interesting to me that an institution so strongly associated with the political right would be advocating a proposal that is generally thought to be associated with the political left (yes, I know that full-bore libertarianism sometimes scrambles the categories), and it reinforces my sense that a rational immigration policy really might emerge from the recognition by politically diverse groups of a common self-interest. And the terms of the status grant itself (it applies only to Haitians already here; it doesn't allow any earthquake victims in Haiti to come here) make the parallels to Mexico obvious: there can't be any solution that doesn't address the fact that in the Southwest, the U.S. and Mexico are already integrated economically, socially, linguistically, etc. to such a degree that the attempt to draw legal distinctions between people already here and people who will want to move here in the future is likely to be futile.   

    There's obviously a lot written on this, but less on the perspective I want to offer: a law-enforcement perspective on an open invitation for all Mexicans without criminal records to come and live and work in the United States.  I have been pondering trying out an op-ed along roughly the following lines, and I'm curious what this audience thinks.  I'm suggesting that whatever else one may say about the merits of an open-borders proposal (no-quota LPR status for any Mexican who moves here, with the usual naturalization and removability rules), it would likely allow us to better police our borders, reduce smuggling and associated crime, and catch and deport criminal aliens.

    I'm trying for more of an op-ed voice, too, for what it's worth, so I'd love to get feedback on both substance and style.  My draft is below the fold. 

       I was a federal prosecutor in a border district.  Most of my work involved policing the border.  I prosecuted drug smugglers, alien smugglers, and re-entering criminal aliens.  I prosecuted people for assaulting border patrol agents, stealing identities, and using forged entry documents.  Most of the efforts of the federal law-enforcement community in the Southwest border districts? the U.S. Attorneys? offices, the Border Patrol, Customs and Border Protection, Immigration and Customs Enforcement, and the Drug Enforcement Administration? are focused on those crimes.  We ought to ask whether we would enhance our ability to police those crimes-- and to focus on other crimes that don't get enough attention-- if the 99% of Mexican migrants who have no criminal history could come and go, work and live and pay taxes, freely, legally, openly, and within the system. There's a good case to make that this would make us more secure, not less.  

        Start with criminal aliens: We should deport them, and punish them if they come back.  Crimes committed by recidivist deported aliens are a serious and legitimate concern, and we shouldn't back down from immigration enforcement against serious criminal aliens.  But we need to ask whether the work of catching, punishing, and deporting those criminal aliens is helped or hindered by the policies that cover the 99% of Mexican immigrants who are not committing any crimes.  Less than one percent of the people caught by the Border Patrol crossing the Southwest border have criminal convictions in the U.S.  The manpower devoted to interdicting and removing non-criminal Mexicans depletes government resources, fuels professional smuggling organizations, and stifles immigrant cooperation with law enforcement.  This impedes our ability to stop crime and catch criminals. 

        In the hard-to-patrol desert regions of the Southwest, we?ve quadrupled the number of agents on the ground, built walls and fences, installed sensors and cameras? and we still don?t catch everyone.  Not even close.  The demand for entry has fueled a well-organized smuggling industry, networks of footguides, safe houses, and drivers to get aliens to their destinations.  The industry also relies on bribery, document forgery, and identity theft.  The revenue stream for this industry comes mostly from migrants with no criminal record, going back and forth for work and family.  But criminal aliens and drug smugglers use the same smuggling services, and and it's harder to catch them because enforcement resources are stretched thin when agents have to chase and remove large numbers of non-criminal, non-drug smuggling aliens.  

        High crossing volume means lots of processing work for Border Patrol agents.  When an agent catches a group, he?s off the line for the rest of the shift.   He?s got to transport the aliens to a station, then print and process the whole group.  Maybe one in a hundred will have a criminal record, if that.  

        Suppose we had open borders for all Mexicans with no criminal record: come in, get in the system, live, work, pay taxes, naturalize after seven years.  Say roughly 99% of would-be migrants are not criminals or drug smugglers.  If all these people were allowed to come in legally and openly through ports of entry, they would.  The demand for smuggling services would collapse, and the professional alien smuggling industry would disappear. So who would be left crossing through the deserts?  Only the people who could not cross openly through ports of entry: drug smugglers and deported criminal aliens.  And they'd be a lot easier to catch, because they couldn't blend in with large migrant groups, they couldn't rely on professional smuggling networks, and they wouldn't have ready access to documents or corrupt border agents.  The smuggling organizations would vanish with the collapse of demand, when 99% of their customer base no longer required their services.  And the Border Patrol would be spending more time patrolling and less time processing.  

        You'd see other benefits, too.  Organized alien smuggling drives all sorts of crime.  Aliens pay large amounts? $3000 is typical for a Mexican migrant? to be guided or smuggled across.  They?re then held in load houses, sometimes for weeks or more, until their families come through with payment.  When they?re assaulted or robbed, and they have no recourse, because they can?t call on U.S. law enforcement. And everybody cashes in on this cow-- U.S. street gangs have added alien smuggling to their portfolios. 

      The illegal status of non-criminal Mexicans also makes it harder to catch, prosecute, and deport criminal Mexicans, because non-criminal illegals don't report crimes committed against them, and don't cooperate with law enforcement, for fear of deportation.  And the sanctuary policies of many cities prevent cooperation between local and federal agencies.  If our goal is to find, punish, and deport criminal Mexicans, it makes sense to give status to non-criminal Mexicans.  

        I?ll leave to others the question of whether, leaving crime aside, we should invite all non-criminal Mexicans to live and work here if they desire.  There are plenty of people who will argue that nothing I've said makes a difference-- we should just double down on interdiction and build bigger walls.  As for me, I doubt the sky would fall with an open-border policy, and I bet a lot of people would be a lot happier.  But I don't have any special insight there.  My claim, for what it's worth, has to do with law-enforcement effectiveness:  Do we want to catch and punish criminal aliens in the U.S.?  Do we want to stop drug smuggling from Mexico?  Do we want to eliminate a major revenue stream for violent gangs?  If so, an open border policy with Mexico is an option we should think about.