The Border as an ‘Attractive Nuisance’

A U.S. Customs and Border Protection border-patrol agent talks to people on the Mexican side of the border wall in San Diego, Calif., November 28, 2018. (Chris Wattie/Reuters)

If you have a swimming pool, you can be held liable if a trespassing child falls in and drowns unless you’ve taken reasonable steps to keep children from getting to the pool, like a fence. An unfenced pool (or trampoline or a discarded refrigerator that locks from the outside, among other potentially dangerous things) is thus called an attractive nuisance.

The loopholes in our asylum laws make our nation’s borders an attractive nuisance, as well. Of course, no matter what we do, there will always be people who will try to illegally infiltrate our borders, and it’s inevitable that some of them will die in the process — whether by drowning, exposure, dehydration, or other causes. But when we fail to take the most elementary steps to dissuade people from trying to sneak in — heck, when we reward people for sneaking in with kids in tow and making bogus asylum claims — we share the responsibility for those deaths.

The heart-wrenching photograph of a Salvadoran father and daughter who were found drowned Monday on the banks of the Rio Grande forces us to face this issue. Julian Castro was right when he said at last night’s Democratic debate, watching that image of Oscar and his daughter, Valeria, is heartbreaking. It should also piss us all off.

But once pissed off, how to respond? How do we make our border not be an attractive nuisance?

Castro’s answer — and the approach of virtually all Democratic candidates and elected officials — is open borders. And I no longer mean that Democrats are, in effect, calling for open borders. At last night’s debate there was no longer any pretense. Castro took the lead, followed by the rest, in calling for repeal of the criminal law against border infiltration, ending the practice of making asylum claimants take a number at ports of entry and wait their turn, the complete abolition of immigrant detention, and amnesty for every foreigner who manages to get past the border so long as they don’t commit a serious” crime (whatever that means today).  Though she wasn’t on the stage Wednesday, the party’s leader, House speaker Nancy Pelosi, made clear that she’s on board, asking at an event Monday What’s the point? of enforcing immigration laws inside the United States. What all this represents is the abolition of immigration limits.

This would certainly end the attractive-nuisance problem. It would also lead to a rush for the border that would make the 2015 border crisis in Europe (sparked by the photo of another drowned child) pale by comparison. Gallup reported earlier this year that 42 million people in Latin America want to move here, and the share that would actually follow through would be a lot higher than now if we were to formally convert the Border Patrol into a welcome wagon, as the Democrats propose. And that’s not counting the Africans, Middle Easterners, and other extra-continental migrants we’re seeing.

The other approach to ending the attractive-nuisance problem is to fence off the swimming pool, as it were. In some places that might actually mean a literal fence, but that won’t address the reasons for the current surge. At the very least, that would require plugging the three most serious legal loopholes incentivizing people to cross the border. It also would entail actually deporting people who’ve exhausted their due process, been turned down for asylum, and received a deportation order from a judge; until people in Central America see their fellows glumly stepping off the plane, their asylum ploys having failed, they’ll rightly figure the trip is worth it. More broadly, mandating the use of E-Verify, at least for new hires, is imperative, to fence off the labor market.

There are two ways the United States can limit its responsibility for deaths on the border: Unlimited immigration, or limits that are actually enforced.  The Democrats have made their choice. They should be made to answer for it.

Mark Krikorian, a nationally recognized expert on immigration issues, has served as Executive Director of the Center for Immigration Studies (CIS) since 1995.

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