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From The Corner, By Hans A. von Spakovsky, 12/20/13 –
A federal judge in Texas has issued a searing indictment of the Obama administration’s immigration policy. He accuses the government of “completing the criminal mission” of human traffickers “who are violating the border security of the United States” and assisting a “criminal conspiracy in achieving its illegal goals.” The judge calls the administration’s behavior “dangerous and unconscionable” and says that “DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.”
On December 13, federal district court Judge Andrew S. Hanen of Brownsville, Texas, issued his order in U.S. v. Nava-Martinez. It described in shocking detail the malfeasance of the government. Mirtha Veronica Nava-Martinez, an admitted human trafficker and resident alien, pleaded guilty to attempting to smuggle a ten-year-old El Salvadoran girl into the U.S. This was Nava-Martinez’s second felony offense; she was convicted of food-stamp fraud in 2011. She was caught at the Brownsville & Matamoros Bridge checkpoint in Texas, after being hired by “persons unknown” to smuggle the girl into the U.S. The girl’s mother, Patricia Elizabeth Salmeron Santos, is an illegal alien living in Virginia. She had solicited the unknown smugglers to get her daughter from El Salvador to the U.S. for the agreed-upon price of $8,500.
As Judge Hanen pointed out, the human-trafficking conspiracy instigated by Salmeron Santos was interrupted when Nava-Martinez was arrested, but the “goal of the conspiracy was successfully completed thanks to the actions of the United States.” Hanen expressed grave concern over the “apparent policy of [DHS] of completing the criminal mission of individuals who are violating the border security of the United States.”
After the child was taken into custody, DHS agents learned that the mother had “instigated this illegal conduct.” Yet DHS delivered the child to the mother and took no enforcement action: “It did not arrest her. It did not prosecute her. It did not even initiate deportation proceedings for her.” As the judge said, “instead of enforcing the laws of the United States, the Government took direct steps to help the individuals who violated it,” conduct for which any “private citizen would, and should, be prosecute.”
What especially angered the judge was that this was the fourth case of this nature that he “had in as many weeks.” All involved “human traffickers who smuggled minor children [and] were apprehended short of delivering the children to their ultimate destination.” In each case, the parents were in this country illegally and had initiated and funded the illegal activity. And in each instance, DHS completed the crime by delivering the child to the parents and refusing to take any action against them.
As the judge pointed out, this means that DHS is encouraging “parents to put their minor children in perilous situations subject to the whims of evil individuals.” According to the judge, “this concern for the safety of these [children] in not fanciful or theoretical; it is a real and immediate concern.” While the Santos child had been transported in a car, “others are made to swim the Rio Grande River or other bodies of water in remote areas.” As Judge Hanen was waiting for the judgment in this case to be prepared, “two illegal aliens drowned, two more are missing, and a three-year-old El Salvadoran toddler was found abandoned by smugglers” just outside of Brownsville.
This DHS policy troubles Judge Hanen for three reasons. First and most important, human trafficking is controlled by and helps fund the drug cartels. He didn’t need to list the dangers facing minors and adults as they are smuggled into the U.S. In the last year alone, the judge had “seen instances where aliens being smuggled were assaulted, raped, kidnapped and/or killed.” Judge Hanen cited a long report on drug cartels that describes their “exploitation and trafficking of children” and the “violence, extortion, forced labor, sexual assault, or prostitution” to which they subject children and adults.
“Time and again,” the judge related, “this Court has been told by representatives of the Government . . . that cartels control the entire smuggling process. These entities are not known for their concern for human life. They do not hire bonded childcare providers to smuggle children. By fostering an atmosphere whereby illegal aliens are encouraged to pay human smugglers for further services, the Government is not only allowing them to fund the illegal and evil activities of these cartels, but is also inspiring them to do so.” By virtue of this DHS policy, American citizens are “helping fund these evil ventures with their tax dollars.”
Second, Judge Hanen said that the DHS policy “undermines the deterrent effect the laws may have and inspires others to commit further violations.” Since it is DHS policy to deliver the smuggled children to their parents and not initiate deportation proceedings against them or prosecute them for human trafficking, they “perceive that they have nothing to lose but some time and effort. If the human traffickers are successful, so much the better — mission accomplished. Even if their co-conspirators are unsuccessful, the Government will finish the job of the human traffickers — mission still accomplished.” Even worse, this DHS policy is “encouraging individuals to turn their children over to complete strangers — strangers about whom only one thing is truly known: they are criminals involved in criminal conspiracy.”
That the DHS policy is encouraging human trafficking cannot be doubted. Judge Hanen cites statistics showing that the number of UAC (unaccompanied alien children) apprehensions along the U.S.-Mexican border “increased 81 percent from FY2010 to FY2012.” As the judge says, “an 81 percent increase in two years should tell the DHS” what its policy is doing: “it encourages this kind of Russian roulette.”
Finally, Judge Hanen said that this DHS policy “lowers the morale of those law enforcement agents on the front line.” They “do their best to enforce our laws” with “no small risk to their own safety.” It is “shameful that some policymaker in their agency institutes a course of inaction that negates their efforts.”
Judge Hanen made clear that it is not his “goal to divide or separate family members.” But there is no reason why DHS cannot “reunite the parent and child by apprehending the parent who has committed not one, but at least two different crimes.” Instead, American taxpayers are not only paying the cost of transporting smuggled children across the country for delivery to the illegal alien parents, but are also paying room and board for the children and the salary and travel expense of a guardian to accompany them. The judge calls that “an absurd and illogical result.”
Judge Hansen said he would not address two issues that some might raise: whether it is in the best interests of this ten-year-old girl “to be reunited with a parent who had previously abandoned that child in a different country . . . [and] whether a responsible parent would place her child not only in the care of total strangers, but also in the care of total strangers which she knows are criminals.” He did note, however, that “most courts in the United States would not find that to be good parenting.”
As Judge Hanen concludes, the decision of Salmeron Santos to smuggle her child across the border “even if motivated by the best of motives, is not an excuse for the United States Government to further a criminal conspiracy, and by doing so, encourage others to break the law and endanger additional children.” The DHS policy is “as logical as taking illegal drugs or weapons that it has seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation. Legally, this situation is not different.”
While the court “is not blind to the needs of a minor child,” a concern for common decency does not compel the government “to not only aid, but also reward an individual for initiating a scheme to break the laws governing the border security of this country.” And it does not compel “the Government to aid the drug cartels who control this human trafficking.”
Finally, Judge Hanen tossed out the excuse the Obama administration often gives for its highly questionable behavior: prosecutorial discretion. The judge said that while prosecutors have the ability to defer prosecution or arrest in particular cases, “it is not aware of any accepted legal principle, including prosecutorial discretion, that not only allows the government to decline prosecutions, but further allows it to actually complete the intended criminal mission.”
The court ends with a stern admonition to the Obama administration: “The DHS should enforce the laws of the United States — not break them.”
— Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former Justice Department official.