Crisis at the Border

President Donald Trump’s pre-midterm election warnings that a wave of Central Americans, including an unknown number of dangerous individuals, was being organized by left wing pro-immigration groups to penetrate the US southern border en masse, came true Sunday. Customs and Border Protection (CPB) officers were forced to fire tear gas to turn back hundreds of peo-ple trying to overwhelm them as they guarded the main San Ysidro border crossing between San Diego, California, and Tijuana, Mexico.

President Trump’s warnings about the threat, which were belittled by his left-wing critics – led by former President Barack Obama – as political hype and a reflection of his alleged anti-immigrant bias, were not exaggerated after all. Thousands of increasingly desperate migrants continue to pile up along the US-Mexican border, creating a humanitarian crisis and challeng-ing the national sovereignty of both countries.

According to a statement released by Secretary of Homeland Security Kirstjen Nielsen, the CBP closed the border crossing and its official port of entry “to ensure public safety in re-sponse to large numbers of migrants seeking to enter the U.S. illegally.” She said there were “multiple instances of persons throwing projectiles at CBP personnel,” and that “multiple U.S. Border Patrol agents [were] hit by rocks.” In addition to attempts to breach the border fencing, “there were many additional attempts to cross the border illegally” during the day, resulting in “multiple confirmed apprehensions.”

The confrontation started Sunday morning as a peaceful protest march by migrants living at a Tijuana sports complex who grew impatient at the small number of asylum applications (less than 100 per day) which were being processed by US government officials at the port of entry, and who realized that they would be facing a lengthy wait at the Mexican border.

When a crowd of several hundred protesters tried to cross a bridge leading to one of the pedes-trian crossings at the San Ysidro border station, their way was blocked by Mexican police in riot gear. A scuffle broke out between the Mexican officers and some of the protesters, while other marchers tried to bypass the police by running across a dry riverbed.

The Mexican police, carrying riot shields, formed a new line and appeared to contain the rush of migrants about 100 yards from the crossing. They also erected metal barriers on the roads and sidewalks leading to the main border crossing lanes for cars and trucks.

CATCH ME IF YOU CAN

A smaller group of migrants tried to make their way to a railway border crossing a few hundred yards away, where they were stopped by tear gas canisters lobbed at them by CPB officers on the American side of the border.

Protesters began seeking out other places where they could get across the border. Some tried to scale the border fence but were forced to give up when US border patrol officers hurled more tear gas canisters at them.

Once the fumes cleared, Mexican police cleared the migrants from their side of the border and arrested 39 of them. The Mexican interior ministry later reported that 500 migrants had tried to cross the border in a “violent manner” and warned again that they would deport any Central American migrant trying to cross into America illegally.

There were no serious injuries, but there easily could have been.

US Border Patrol agents arrested 42 migrants who had breached the border Sunday. Rodney Scott, the local chief CPB agent, said his officers had no choice but to defend themselves from mostly male migrants who were throwing rocks at them. “What I saw on the border yesterday was not people walking up to border control agents and asking to seek asylum,” Scott said sar-castically, in response to those who criticized the use of tear gas.

DHS Secretary Nielsen said that the “robust” presence of CBP agents on the southwest border would continue, and that anyone who damaged federal property or violated American sover-eignty at its border would be prosecuted. “DHS will not tolerate this type of lawlessness and will not hesitate to shut down ports of entry for security and public safety reasons,” she said.

Trump placed much of the blame for the border violence on Mexico and the Central American countries from which the migrants originated. “Would be very smart if Mexico would stop the caravans long before they get to our southern border, or if the originating countries would not let them form,” he tweeted. Trump also noted that the caravans are a convenient way for those countries to “get certain people out of their country and dump in U.S. No longer,” he declared.

Senator Lindsey Graham tweeted, “I support President Trump’s decision to close the border until we can get a handle on the chaos created by the broken laws governing asylum. We must have money for border security wall and must change asylum laws.”

PREPARING FOR THE WORST

The attempt to rush the border at San Ysidro had been anticipated by US border officials, who recently reinforced the area with additional layers of barbed wire and concrete barriers, and de-liberately reduced the flow of traffic through the crossing by closing some of the vehicle lanes.

San Ysidro is one of the busiest border crossings between Mexico and the United States. It is a large complex with multiple traffic lanes for vehicles and pedestrian access points. It normally accommodates 100,000 visitors a day, including many American and Mexican residents who commute daily in both directions to their jobs across the border. The border crossing was closed for less than a day Sunday, so it did not have a significant economic impact on either of the border, but President Trump warned that he is willing to close the border for longer periods of time if the surge of migrants seeking to cross into the US is not stopped.

“Mexico should move the flag waving Migrants, many of whom are stone cold criminals, back to their countries,” Trump wrote Monday on Twitter. “Do it by plane, do it by bus, do it anyway you want, but they are not coming into the U.S.A. We will close the border permanently if need be.”

None of the several thousand members of the US military who have been dispatched by Trump to support the 16,500 CBP agents already guarding the Mexican border were involved in the violence Sunday. As federal law enforcement officers, Border Patrol agents have broad latitude to use force if they think they are under attack or at risk of injury.

At a meeting early last week involving senior White House staff, cabinet officials and border patrol union leaders to discuss the tense situation developing along the Mexican border, Presi-dent Trump authorized members of the US military to use lethal force “to protect themselves, and to protect others, if they face critical situations on the border,” during the course of their “protective activities,” including crowd control, temporary detention and carrying out searches.

The White House issued a statement declaring, “The brave men and women at Customs and Border Protection willingly put themselves in extremely dangerous situations every day to pro-tect Americans and their families. The President’s authorization ensures the Department of De-fense can step in to protect those who protect us.”

Trump later personally confirmed that US troops on the southern border were authorized to use force, “If they have to. . . I’ve given the okay. . . I hope they don’t have to,” he said.

Several weeks ago, President Trump said that troops stationed at the border would treat thrown rocks like “firearms.”

“We’re not going to put up with that,” he said. “They want to throw rocks at our military, our military fights back. I told them to consider it a rifle.”

TRUMP BATTLES LIBERAL JUDGES TO PROTECT THE BORDERS

Early last week, Judge Jon S. Tigar, a member of the liberal US District Court for the Northern District in California, issued a temporary nationwide restraining order barring enforcement of a new policy that President Trump announced on November 8, which would prevent members of the caravan from applying for asylum unless they enter the country at official points of entry, alongside other new regulations limiting asylum claims.

Judge Tigar, who was appointed to the federal bench in 2012 by President Obama, issued his ruling in response to a lawsuit against Trump’s November 8 order which was brought by the ACLU, the Southern Poverty Law Center, and Center for Constitutional Rights. They claimed Trump’s order violated the Immigration and Nationality Act passed in 1965, which allows any-one who reaches the United States to seek asylum regardless of where they entered the country.

Lawyers for the White House argued that Trump’s temporary order was issued to protect the national interest in response to a looming border crisis. The order was set to expire in 90 days or sooner if Mexican government agreed to force the Central American migrants to turn back before they reached the US border.

In his 37-page ruling, Judge Tigar wrote, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly for-bidden.” He cited United Nations policies establishing the rights of migrants to claim asylum and concluded that the “failure to comply with entry requirements such as arriving at a desig-nated port of entry should bear little, if any, weight in the asylum process.”

CONGRESS HAS THE MAIN RESPONSIBILITY

Under the Refugee Act passed by Congress in 1980, migrants who present themselves at US ports of entry or reach American soil and state a fear of persecution in their home countries are entitled to a “credible fear” screening by a US asylum officer to determine whether the appli-cant should be referred to an immigration judge. The judge ruled that it was unfair for Trump’s policies to force migrants “to choose between violence at the border, violence at home, or giv-ing up a pathway to refugee status.”

If their application is approved by the asylum officer, under current rules, the migrants are typ-ically released from custody while waiting for a court hearing, which could take a year or long-er because immigration courts have a backlog of more than 750,000 cases. During that time, they are allowed to stay in the US and work under rules that President Trump has vowed to change.

Trump has condemned the “catch and release” policy which was followed by the Obama ad-ministration, because once released, most migrants don’t keep their promise to return for their court hearing and vanish instead inside the United States. The president has bitterly criticized Democrats for causing Congress to abdicate its exclusive responsibility to address the problem, as stated in Article I, Section 8 of the Constitution. Legal scholars agree that the president does not have the authority to fix the underlying problems with current immigration law by issuing executive orders. Only Congress has the power to fix it, but has refused to exercise it.

For example, when bipartisan immigration reform legislation passed the Senate but died in the House in 2013, President Obama sought to provide temporary protection from deportation to hundreds of thousands of so-called young “Dreamers,” who were brought to this country ille-gally as children, but the legality of Obama’s “DACA” order has been challenged and many legal experts expect it to ultimately be struck down by the courts.

USING IMMIGRATION AS A POLITICAL STRATEGY

Trump ran for president in 2016 based on a tough stand against illegal immigration, but he also said that he was sympathetic to the plight of the Dreamers who were raised in America and whose illegal immigration status is not their fault. In January, Trump made a generous proposal to congressional Democrats in which he offered to support providing permanent legal residence status and a potential path to citizenship for 1.8 million “Dreamers” in exchange for full fund-ing of a border wall on the Mexican border and ending two problematic immigration policies, the so-called visa lottery and permitting entry to the distant family members of existing legal immigrants based upon the principle of chain migration.

The elimination of the visa lottery and new limitations on chain migration had been features of the immigration reform proposals passed by the Senate in 2006 and 2013 and that Democrats had supported. But they rejected Trump’s immigration reform offer, largely because they were reluctant to approve any border wall funding that Republicans could then tout as fulfilling one of Trump’s most controversial campaign promises.

In recent years, the Democrats have used the immigration issue for their own political purposes just as Trump did during the midterm election campaign. Democrats have pointed to Trump’s outspoken criticism of the migrant caravans for posing a danger to national security, and his calls for strict immigration law enforcement and building a wall to protect the southern border, as evidence that he harbors anti-immigrant and anti-Latino bias. But at the same time, they have ignored his calls for increased legal immigration by foreigners from all countries with useful skills with which to contribute to the prosperity of the American economy.

For example, at a rally in Pensacola, Florida, Trump warned, “If Democrats get elected…they want to turn America into a giant sanctuary city for violent predators and ruthless gang mem-bers. We will keep the criminals, drug dealers, terrorists. . . out of our country.”

“When you look at that caravan coming up, that’s not what we want. That’s not for us folks. Not for us.

“We want people to come through our strong borders but they have to come in legally,” Trump said. “They have to come in absolutely through a process and they have to come in through merit.”

OBAMA IS WRONG. THE BORDER THREAT IS REAL

One of the harshest critics of Trump’s immigration rhetoric during the midterm campaign was former president Barack Obama. At a rally in Indiana to support the failed effort to re-elect Democrat Senator Joe Donnelly, Obama ridiculed Trump’s claim that the migrant caravan posed a threat to national security as a “political stunt. They’re telling us the single most grave threat to America is a bunch of poor, impoverished, broke, hungry refugees a thousand miles away,” Obama said at the time. But less than three weeks later, caravan members were storm-ing the border and battling with police at the entrance to San Diego.

Trump has declared in a tweet, “Migrants at the southern border will not be allowed into the United States until their claims are individually approved in court. We only will allow those who come into our Country legally. Other than that our very strong policy is Catch and Detain. No ‘Releasing’ into the U.S …

“All will stay in Mexico. If for any reason it becomes necessary, we will close our southern border. There is no way that the United States will, after decades of abuse, put up with the cost-ly and dangerous situation anymore!” Trump wrote.

Judge Tigar’s order was to remain in effect until Dec. 19, at which point he plans to consider arguments to permanently block the new Trump border policy. The Justice Department and the Department of Homeland Security issued a joint statement last week saying they would appeal his ruling. They expect it to be overturned by the Supreme Court in the same way that it re-versed a lower court ruling against a revised version of Trump’s ban on entry to the United States on foreigners from certain majority-Muslim and other countries whose security status could not be verified.

“As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country,” the joint statement said. “We look forward to continuing to defend the Executive Branch’s legitimate and well-reasoned exercise of its authority to address the crisis at our southern border.”

TRUMP VS. CHIEF JUSTICE ROBERTS ON JUDICIAL INDEPENDENCE

Judge Tigar’s ruling infuriated President Trump, who accused him of being politically motivat-ed. “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this any-more,” Trump said. He complained that liberals prefer to sue his administration in the San Francisco-based Ninth Circuit Court because of its reputation for issuing rulings against Trump’s immigration policies, which are then reversed when appealed to the Supreme Court.

“We get beaten, and then we end up having to go to the Supreme Court. Like the travel ban that we won,” Trump told reporters.

Trump’s accusation that federal judges tend to advocate in their rulings for the political beliefs of the president who appointed them prompted a rare public rebuke from Chief Justice John Roberts, who usually votes with the Supreme Court’s conservative majority. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordi-nary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said in a statement. “That independent judiciary is something we should all be thankful for.”

President Trump was not willing to let Chief Justice Roberts have the last word. Instead, Trump doubled down on Twitter on his criticism of the Ninth Circuit Court and its liberal judges. “Jus-tice Roberts can say what he wants, but the 9th Circuit is a complete and total disaster. It is out of control, has a horrible reputation, is overturned more than any circuit [court] in the country, 79% [of the time], and is used to get an almost guaranteed [liberal] result.”

Trump went on to declare, in a stream of tweets he issued during his Thanksgiving vacation at his Florida resort Mar-a-Lago, “Judges must not legislate security and safety at the border, or anywhere else. They know nothing about it and are making our country unsafe. Our great law enforcement professionals must be allowed to do their job! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!”

TRUMP SEEKS DEAL WITH MEXICO’S NEW PRESIDENT

With Congress unlikely to reach the bipartisan consensus needed to pass legislation that would resolve the immigration problem, Trump has been pressuring the Mexican government for months to help find a different solution. Over the weekend, Trump revealed that his administra-tion is in negotiations with the incoming Mexican government of president-elect Andrés Ma-nuel López Obrador, who takes office December 1, over a plan that would require migrants from Central America to stay in Mexico while waiting for their submitted applications for asy-lum in the US to be processed and adjudicated by American immigration courts. If adopted, the plan would make Judge Tigar’s ruling moot because the migrants would not be permitted to cross into the US as long as their asylum request had not been resolved.

The negotiations between the Trump White House and the incoming Mexican government are politically sensitive, because the new president does not want to avoid giving his voters the im-pression that he is giving in to American pressure on the migrant issue. His spokesman has em-phasized that the emerging deal should be seen as part of a larger growth initiative to foster economic development throughout Central America and southern Mexico.

At the same time, president-elect Obrador’s choice to become Mexico’s next interior minister, Olga Sanchez, declared that “Mexico’s future government doesn’t plan to allow the U.S. the right to deny asylum to migrants just because Mexico already granted them protection. The most important thing related to the caravans of Central American migrants that have entered our territory is the protection of their human rights.”

The delicate negotiations are being handled for Obrador by his future foreign minister, Marcelo Ebrard. According to a report by the Washington Post, the Mexican government would to agree to keep all the migrants in Mexico throughout their asylum application process in return for the US vastly increasing the volume of asylum requests it processes daily at key ports of entry in Mexico from a few dozen to 200-300, drastically reducing the current backlog and the length of time the migrants will have to wait for a decision.

According to a top advisor to Ebrard, “That suits us both, because the US can drown us by pro-cessing very few applications, and we have no way to increase their daily capacity if we don’t offer something in exchange.”

TRUMP’S LIMITED OPTIONS ON US SOIL

It also solves a combination of legal and political problems limiting Trump’s ability to keep the migrants applying for asylum from disappearing into the general population once they arrive on US soil.

Under existing US law, once here, migrants must be permitted to remain in the country while their asylum claims work their way through the immigration-court system. The detention fa-cilities available to US border authorities to hold migrants who have been arrested for entering the country illegally are far too small to hold them all, so most have been released on bond awaiting their immigration hearing.

Many migrants have also been exploiting the fact that if they are arrested while traveling with their children, by federal court order, they must be held in detention together for no more than 20 days.

Attempts by the Trump administration earlier this year to separate, as a deterrent, parents who have been arrested for crossing the border illegally from their children turned into a major po-litical fiasco when federal officials in different agencies lost track of the separated family members and were later unable to reunite them.

Despite Trump’s bluster on immigration, his administration does not have a practical, legal way to do away with catch and release, or the capacity to hold indefinitely all those migrants who are being arrested for entering the country illegally. Democrats and liberal judges will not be willing to rescue Trump from this combination of problems by passing new immigration laws or revoking their court orders mandating the current limits.

Making a deal with the new Mexican president to keep the migrants from reaching American soil before their immigration status is finally determined would seem to be Trump’s easiest way to sidestep the problem without suffering serious legal or political fallout.

HOW DID THE MIGRANT CARAVANS GET STARTED?

Several caravans of migrants, supported and organized by a pro-immigration humanitarian or-ganization known as Pueblo Sin Fronteras, started out from Central America towards the Unit-ed States in early October. It was not the first left-wing supported attempt to send large num-bers of migrants to storm the American border, but it was the largest to date. It soon picked up momentum and imitators through word of mouth spread by desperate and impoverished people living in Honduras, El Salvador and Guatemala.

The source of the funding behind the caravans remains murky. Some conservatives say it looks like other “grassroots” radical left-wing movements which have been covertly sponsored by international financier George Soros in recent years. It was certainly well organized, with well- trained leaders accompanying each of the caravan groups to provide support, guidance, encour-agement, legal advice and to manage media relations.

On October 19, several thousand caravan migrants forced their way across the border between Guatemala and Mexico, overwhelming the Mexican troops guarding the crossing and continu-ing north. At that point, Trump called the caravans a “slow motion invasion” that threatened American national security and expressed his belief that they included “very bad thugs and gang members.” When asked by reporters whether he had any proof of that allegation, he said no. But he also argued that since we don’t know the identity of those in the caravans, it was log-ical to assume that criminal gangs and terrorist groups would try to take advantage of them to enable their members to bypass the usual safeguards at the border.

If all else failed, Trump threatened to seal the US-Mexico border to keep the dangerous people among the migrants from crossing into the US. During campaign rallies leading up to the mid-term elections, Trump declared several times, “These illegal caravans will not be allowed into the United States. They should turn back now. They’re wasting their time.”

Trump said that most migrants in the caravans are not “legitimate” candidates for asylum in the United States, which by law is limited to those seeking to escape religious or political persecu-tion in their home country. News reports confirmed that most of the migrants in the caravans have admitted that their primary motive for coming to the US is to seek better economic oppor-tunities. However, before they are interview by US officials, the migrants are being coached by lawyers from pro-immigration groups to change their stories and make false claims about their history and motivation in order to meet the requirements of US law to qualify for asylum.

When the caravans began arriving in Mexico City, the weekend before the midterms, the Mexi-can government, with US encouragement, enticed the migrants to apply for asylum in Mexico rather continuing on to US border.

At the time, the Mexican interior ministry said 2,793 migrants had accepted Mexico’s invita-tion to applied for asylum status there, which came with temporary work visas, health benefits and the chance to enroll their children in Mexico City schools. Around another 500 migrants exhausted by the rigors of the journey to that point agreed to turn back and accepted an offer by Mexican officials for assistance to return to their countries of origin. But 5,347 migrants re-jected the Mexican offers and said that they were determined to try their luck getting into the United States.

DANGEROUS OVERCROWDING

The first members of the caravan who hitched rides northwards began arriving in Tijuana about two weeks ago. It is estimated that about 8,200 migrants are now at the US-Mexico border, more than half of them in Tijuana, with more arriving each day.

The vast majority of the migrants arriving at the US border are adult men, traveling alone, but there is also a significant number of parents traveling with their young children. They have also been funneled by local authorities into a Tijuana community sports complex which has been converted into a makeshift shelter and which is now dangerously overcrowded, with more than 5,000 people are now living in a space with a capacity for no more than 3,500.

Tijuana city officials say they have no money to improve conditions at the sports center. Over the weekend, the mayor of Tijuana, Juan Manuel Gastelum, said that living conditions at the sports complex have deteriorated to the point that they now constitute a humanitarian crisis. He appealed for help from the United Nations and the Mexican federal government with the burden of sheltering, feeding and clothing the migrants, which is costing his city more than $25,000 a day.

The migrants do not feel safe there, and for good reason. Tijuana was rated in 2017 by the Mex-ican think tank Seguridad Justicia y Paz as the fifth most violent city in the world. With its streets ruled by warring drug cartels, Tijuana has a higher murder rate than the cities of Central America from which the migrants fled.

CHILDREN AT RISK

At greatest risk from its criminal predators are about 80 unaccompanied minors ages 10 to 17. Tijuana has only one shelter for migrant children, which is supported by local civic organiza-tions. It doesn’t have the resources to care for all of the young migrants who are now arriving in the city.

One such youth, a 15 year-old-boy named Josue, told Reuters that he had made a previous at-tempt to get to the US last year. He didn’t succeed. Instead, he was kidnapped along the way and badly beaten by drug traffickers from the Zetas gang. Somehow, Josue wound up at a Mex-ican hospital which treated him, but once he was well enough to travel, Mexico deported him back to Honduras. Now he is trying to get into the US again.

The plight of migrants in Tijuana is not unique. The flow of Central American migrants moving north combined with the simultaneous slowdown in the processing of their asylum applications by US officials is overwhelming migrant shelters and local and state resources to meet their needs along the entire length of the US border with Mexico.

STUCK AT THE BORDER

Many of the migrants at the Tijuana sports complex had expected to enter the US without much difficulty once they reached the border, which is tantalizingly close across the adjacent high-way. They were looking forward to starting a new life in America. Now they are becoming in-creasingly desperate and frustrated with the realization of the obstacles still preventing them from achieving that goal.

Fani Caballero, 32, a migrant from Honduras who arrived at the Tijuana sports complex with the main caravan, sat by the train tracks, within sight of US border agents on the other side of the steel columns of the border fence. Her daughter, Cristina, seven, cried as Customs and Bor-der Protection helicopters circled overhead.

“People had thought that they were going to open the gates, but that was a lie,” Fani said. “We thought it would be easier.”

She had signed up for an interview with a United States asylum officer, the first step in the asy-lum application process, but the huge of number of caravan migrants who arrived with her at the same time meant she would have to wait for weeks.

“Now, I guess I’ll just wait my turn, because I can’t go back to my country,” she said.