Javier Ernesto Ayala-Osuna, for whatever his alleged moral failures, isn’t a stupid man.
On Thursday, The Washington Times reported that Ayala had turned himself in to Border Patrol at least six times between mid-April and mid-May, each time at the same part of the border, after crossing from Mexico. He was a single adult — which meant, under COVID-era guidance, he would be expelled from the country immediately.
Five of those times, the Border Patrol drove him back to Mexico and summarily deported him. Even though multiple re-entries are nominally a felony, authorities have avoided prosecuting most offenders during the pandemic.
Upon his sixth capture, however, they didn’t let him go. That’s because they allege he was a human trafficker who brought those he was smuggling into the country on foot. Instead of walking the 16 hours back to Mexico after dropping his charges off, however, he’d hitch a ride with the Border Patrol.
It’s almost like a taxi — except if it were a taxi, Ayala would have paid.
When he was captured May 16 with a group of four other individuals, however, the swift deportations were over for Ayala.
“The return-trip scam is the latest in a long line of tactics that allow smugglers to slip through holes in the nation’s defenses,” Stephan Dinan reported in The Times.
“Other strategies smugglers have used to exploit U.S. policy include painting vehicles to look like construction crews and then donning work vests to blend in with real crews working to build the border wall.”
Ayala’s strategy wasn’t so much camouflage as convenience, however.
“I must credit the smuggler for his ingenuity in exploiting the highly naive American system of limitless, no-consequence turn-backs,” Todd Bensman, senior national security fellow at the Center for Immigration Studies, told The Times.
Of course, you have to know you’re immediately going to be turned back. For that, you can thank a combination of COVID-era policy and a justice system that’s unusually lenient on serial border-crossers.
As former President Donald Trump dealt with the coronavirus crisis, his administration issued guidance under Title 42 of the U.S. health code, a law which says the Centers for Disease Control and Prevention can declare an emergency where individuals considered a health risk are prohibited from entering the country.
Under the Trump administration’s guidance, those trying to enter the country illegally at the southern border would be summarily returned to Mexico without any chance to make an asylum claim or seek other redress.
While it’s unclear what would happen to those who would attempt serial re-entry, numbers in 2020 were generally low — especially compared with what we’re seeing during the border crisis.
In spite of activist anger, President Joe Biden has kept the Title 42 guidance in place for most adults but has revoked it for minors and for many family units. That’s part of what’s driving the surge of illegal immigration — although an alleged smuggler like Ayala would cater to a different crew, the kind of person who would get sent back under Title 42 no matter what.
You know, the way that Ayala did, managing to hitch a ride on the taxpayer’s dime.
Border Patrol Agent Wesley Cornue told a federal court that the agency first became aware of the scam that Ayala was running on May 14, when a car caught on California Route 94 had two illegal immigrants being smuggled in the back.
The men said they had snuck into the United States once earlier, on May 10, but were caught. They also told authorities they were brought by a man named Javier, who helped them make another trip across the border on May 13.
After arriving on this side of the border at 5 a.m., they walked until they hit California Route 94, which runs along the Mexican border to San Diego, at 9 p.m.
Javier “told them he was going to turn himself in to Border Patrol and instructed them to stay in place, and he would arrange for them to be picked up once he was returned to Mexico,” Cornue told the court.
The cost of being smuggled by a foot guide like Javier? Only $8,000.
“After agents caught the two migrants, they went back to try to identify Javier based on their story,” Dinan reported.
“They found records of the May 10 crossing and identified Mr. Ayala. On May 16, agents spotted Mr. Ayala with the group of four others.”
While Title 42, when used correctly, is a deterrent to entry, it’s also created loopholes like the one Ayala allegedly exploited and a hefty recidivism rate. Agents told The Times that recidivism rates were running 20 to 30 percent a month at the border, whereas the number for the last pre-Title 42 year, 2019, was 7 percent.
Given the numbers and the potential for abuses like Ayala is accused of, it’s time to look into charging and holding those accused of repeat illegal entry, Bensman said.
“With a majority of Americans now vaccinated and all pandemic metrics in steep decline, the administration should keep Title 42 turn-backs but institute consequence-based rules that will reduce repetitive illegal border entries — and abuses,” he said.
And keep in mind, the border crisis isn’t driven as much by undocumented minors and family units as it was during the initial surge. According to The Associated Press, while Customs and Border Protections had slightly more encounters along the southern border in April than they did during March, breaking another decades-old record, the number of minors and families actually decreased by 9 and 10 percent, respectively.
And while nations in the so-called Northern Triangle of Central America — Guatemala, Honduras and El Salvador — are thought to be the wellspring of the upsurge, over half of the individuals encountered by CBP were from Mexico.
In other words, there’s plenty of business for human smugglers. And if they’re enterprising enough, we’ll even give them a lift back to Mexico.
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