Contradictory Immigration Laws Incentivize Illegal Migration


August 1, 2022

By Matt O’Brien

Recently, 53 illegal aliens died a horrific death in a sweltering tractor trailer, on a Texas highway, as they were being smuggled into the United States. Only 11 of the migrants survived. This incident is a true tragedy. However, it is one that could have been prevented through deterrence.

But, rather than deterring unlawful entry, current U.S. immigration laws and policies incentivize alien smuggling. The anti-borders contingent complains about harsh consequences for violating the Immigration and Nationality Act – but in reality our immigration system is more like a game of roulette where the odds favor the gambler, not the house.

As soon as law enforcement authorities began investigating the tragic Texas incident, the Department of Homeland Security announced it would be looking into T and U visas for the survivors. The T program offers protections for victims of trafficking who assist in the prosecution of traffickers. The U visa program offers protections for victims of crimes other than trafficking.

These programs may seem like reasonable ways of inducing the victims of crime to testify against criminals in American courts. They are not. What they actually do is encourage immigration fraud and reward foreign nationals for breaking U.S. immigration laws

A recent report by the Department of Homeland Security’s (DHS) Office of the Inspector General found that, “mismanagement of the U visa program led to questionable petitioners gaining U visa benefits.” Indeed, over the last five years, the Department of Justice has pursued U visa fraud charges against individuals in Indiana, South Carolina, Minnesota and Pennsylvania. Similar cases abound, because fraud is, and always has been, rampant in the U program.

Meanwhile, the T program erroneously presumes that everyone who is smuggled into the United States has been “trafficked.” But there is a significant difference between people who are smuggled and those who are trafficked. The vast majority of migrants who use smugglers do so voluntarily and are willing participants in a criminal conspiracy to illegally enter the U.S.

Our immigration system is more like a game of roulette where the odds favor the gambler, not the house.

On the other hand, according to DHS’ anti-trafficking program, “Human trafficking involves the use of force, fraud, or coercion to obtain some type of labor or commercial sex act.” In other words, smuggled aliens pay a guide to get them across the border, victims of trafficking are enslaved.

And it’s not just through the alphabet soup of lettered visa programs that our own government encourages illegal migration. Cancellation of Removal for Non-Permanent Residents, actually rewards illegal aliens with a green card if they successfully evade immigration authorities for 10 years and claim that deportation would result in hardship to a spouse, child or parent who is a citizen or green-card-holder. Multiple other programs offer similar rewards for breaking our immigration laws.

That begs the question, why should one’s status as a trafficking victim, or as the victim of other crimes, serve as a basis for permission to reside permanently in America? Victims of other crimes do not receive special status under the law unless they are juveniles or non compos mentis. And why does being a fugitive from immigration authorities for a decade or more merit being rewarded with a green card? In other areas of law, ongoing violations result in a sentence enhancement, not exoneration and reward.

One of the primary functions of the law is to discourage people from engaging in unnecessarily risky behavior that presents a danger to the community. The law does this by associating negative consequences with bad acts.

Right now, America is doing an incredibly poor job of telling potential illegal aliens that entering the U.S. without authorization is dangerous and carries negative consequences. In fact, we’re doing the exact opposite. Our laws and policies encourage people to willingly accept unreasonable risk in the hopes of landing the greatest of all prizes – the ability to live and work in the freest country on Earth.

That’s why more than sixty people abandoned logic and allowed themselves to be locked in the back of an America-bound truck despite the fact that hundreds of others have died doing the same thing. In the absence of meaningful deterrence, the hope of rich reward outweighed a reasonable analysis of risk. And nobody who cares about the well-being of migrants should be comfortable with the fact that our squishy immigration laws are every bit as responsible for the deaths of 53 illegal aliens in Texas as the empty promises and moral bankruptcy of alien smugglers.

If we want secure borders and safe migrants, we should insist that our elected leaders stop passing contradictory statutes that reward foreign nationals for breaking the law.

Matt O’Brien is director of investigations at the Immigration Reform Law Institute and a former Immigration Judge who has heard and ruled upon many applications for Cancellation of Removal. Prior to becoming an Immigration Judge he served as the Chief of U.S. Citizenship and Immigration Service’s (USCIS) National Security Branch, where he was responsible for vetting S visa applicants. Before working at USCIS, he served as Assistant Chief Counsel with U.S. Immigration and Customs Enforcement where he regularly encountered issues connected with T and U visa applications.

Also published at The Washington Times, August 1, 2022.

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