Fact-Check: Former Immigration Judge Debunks 5 Claims in Democrats’ Border Wall Lawsuit

A U.S. Border Patrol agent questions a man in Nogales, Ariz., seen through a hole in a metal fence marking the border between the U.S. and Mexico, in 2007. Guillermo Arias/Associated Press
Guillermo Arias/Associated Press

Art Arthur, a resident fellow at the Center for Immigration Studies (CIS) and former immigration judge, referred to a federal lawsuit filed against President Donald Trump by California and 14 other states over the president’s declaration of a national emergency and plans to redirect federal funds for border wall construction as “political theater.”

Arthur offered his remarks on Tuesday’s edition of SiriusXM’s Breitbart News Tonight in an interview with hosts Rebecca Mansour and Joel Pollak.

The lawsuit dismisses Trump’s characterization of the status quo of unlawful immigration and border security as an emergency, framing it as a “manufactured crisis“:

Contrary to the will of Congress, the President has used the pretext of a manufactured “crisis” of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border. This includes the diversion of funding that each of the Plaintiff States receive.


1 – Redirection of Military Funds Hurts Plaintiff States’ Economies
Arthur said, “The lawsuit appears to be based on the fact that they will be using funding for military facilities in their state, so it’s a pretty slim read given the fact that military facilities by definition are federal, and I guess that they will lose money in the states, but as you mentioned before, we’re talking about 15 Democratic states’ attorneys general. This is, quite frankly, more the same. This is just political theater. They filed it in the Northern district of California, a place that you’ll note that there is no border wall planned. It’ll go to the Ninth Circuit, and the president’s plan will probably be enjoined in the Ninth Circuit, possibly.”
The Supreme Court would decide in Trump’s favor, speculated Arthur.

“In any event, if it went to an en banc panel in the Ninth Circuit, almost definitely the injunction would be upheld, and then it will go to the Supreme Court,” predicted Arthur. “The Supreme Court will say the president has the authority under the National Emergencies Act to do this and it’ll all be fine, but we’ll have to get to that point.”

Mansour asked how long the lawsuit would take to reach the Supreme Court.

“It could probably take about 18 months to two years,” assessed Arthur. “Keep in mind, we’re just talking about one lawsuit. As soon as they break ground anywhere, then whoever owns that ground or hovers near that ground or because of language that was put in the latest appropriations bill, DHS has to consult with local officials anywhere that it’s planning on building a wall.”

Arthur went on, “So there’ll be lawsuits in conjunction with the consultations, even if the consultations are completely fulsome and in good faith. This is simply going to be tied up in litigation forever. The fact that the funds of the people of this state have to be spent on this political theater is just ridiculous. People are dying in this city. People are dying in this country because of these drugs, and they need to be stopped.”

2 – Illegal Border Crossings Have Dropped

Claims that border apprehensions are decreasing over time offer a misleading picture of illegal immigration, explained Arthur.

The lawsuit declares, “CBP personnel have significantly increased over the past two decades, while illegal border crossings have dropped, causing the average annual number of apprehensions made by each CBP agent to drop by almost 91%, from 192 in FY2000 to only 18 in FY2017.

Arthur stated, “The number of aliens who are apprehended at the border is down. That is correct. There were historical means, however, back in 2011, 90 percent of all the illegal entrants that we saw were single adult males and 90 percent of them were Mexican, which meant that they could be turned around in about eight hours and sent back home. In the first four months of 2019, by comparison, 60 percent of all aliens apprehended along the southwest border were unaccompanied alien children and aliens traveling in family units.”

Arthur continued, “What we’re looking at right now is a humanitarian disaster. We’re going to see 600,000 people — 360,000 of which are kids and parents with kids, mothers with kids, fathers with kids — -showing up at our southwest border — it’s going to cost $1.2 billion just in humanitarian assistance to take care of them, to buy baby formula, food, diapers, blankets for this population of people that we’re seeing. Eight hours to turn around that single adult Mexican and send him back to Mexico, 78 hours to process any one of these individuals by the Border Patrol, and they don’t have the facilities to hold these people because you can’t put children with adult males. You can’t put two different families together. You have to separate these folks out. These border patrol processing facilities just aren’t build for this. We are looking at a humanitarian disaster at the border.”

Arthur broke down the projected $1.2 billion Border Patrol estimate for humanitarian assistance in fiscal year 2019 in a February 10 article:

As I have noted in previous posts, the president’s budget request is not all about infrastructure/fencing/ “the Wall”. Included in that request is $800 million for urgent humanitarian assistance. My colleague Dan Cadman has noted that this request is for “unspecified” assistance. I have recently returned from a tour of the Southwest border in western Arizona and eastern California, and I now have a better idea of what that money is intended for: to support the Border Patrol’s expensive new mission as caretaker for thousands of members of family units and unaccompanied alien minors (UAC).

In FY 2018, the Yuma sector, which has jurisdiction over 126 miles of the border, spent $350,000 for humanitarian support, according to Justin Kallinger, operations officer for the sector. That money paid for more than $150,000 in meals, $15,000 for baby formula and diapers, and $27,000 for blankets. Already in FY 2019, the sector has spent $400,000 to cover humanitarian costs, including more than $240,000 in meals, $45,000 in baby formula and diapers, and $33,000 in blankets. All told, the Border Patrol expects to pay $1.2 billion in humanitarian costs border-wide.

This is a staggering toll, and the responsibility to provide such aid is a far cry from the Border Patrol’s primary mission: “to detect and prevent the illegal entry of aliens into the United States” and to “help maintain borders that work — facilitating the flow of legal immigration and goods while preventing the illegal trafficking of people and contraband.”

3 – A Wall Will Not Reduce Cross-Border Drug Smuggling

One of the lawsuit’s sections is entitled, “There Is No Evidence that a Border Wall Will Impact the Smuggling of Dangerous Drugs into the United States.”

Arthur noted how drugs such as fentanyl and heroin smuggled into America across the southern border are killing Americans.

“We have people dying in this town,” said Arthur, referring to his hometown of Baltimore, MD. “You drive through the streets of Baltimore and you see people drugged out and leaning up against curbs and doorways. This is an epidemic in this city, and the fact that the funds of the people of this state have to be spent on this political theater is just ridiculous. People are dying in this city. people are dying in this country because of these drugs and they need to be stopped.”

4 – Military Assets Must Not Be Used For Wall Construction

The lawsuit claims, “There is no factual basis to support the statutory criteria for diverting
funding,” and, “building a border wall does not ‘require use of the armed forces’ under 10
U.S.C. section 2808.”

The lawsuit adds, Construction of border fencing has been carried out by civilian contractors in
recent years. In fact, in 2007, the U.S. military informed DHS that “military personnel would no longer be available to build fencing. This, along with the desire to not take CBP agents away from their other duties, led CBP to decide to use “commercial labor for future infrastructure projects.”

Deploying military assets to build border security infrastructure is not unprecedented, explained Arthur.

“The first part of the wall was actually built by the Corps of Engineers,” Arthur remarked. “Military units, national guard units erected barriers as part of training exercises, because, quite frankly, building  a wall [or] fence is sort of like building a building. It only has one wall. It was done through contracts with CBP. The contracts were worked out by the Corps of Engineers. Land was acquired by them.  The idea that the military has never been involved in this endeavor is completely ridiculous.”

5 – Immigrants Commit Less Crimes Per Capita Than Native-Born Americans

The lawsuit alleges, “Federal data confirm that immigrants are less likely to commit crimes than are native-born Americans.

Arthur addressed a the narrative framing illegal aliens as more law-abiding than American citizens. The lawsuit states, “Federal data confirm that immigrants are less likely to commit crimes than are native-born Americans.”

“One of the biggest fallacies is — or one of the biggest arguments people make is — illegal aliens commit crimes at lower percentages than other people,” stated Arthur. “One, there’s no actual facts to back that up because nobody really measures the statistic, but two, who cares? Every crime committed by somebody who enters the United States illegally is a crime that would have been prevented had that person never entered the United States. Watch It’s a Wonderful Life. Harry wasn’t there to save all the men on that transport because you weren’t there to save Harry. That illegal alien wasn’t in the United States because you stopped him before he killed that young girl.”

Breitbart News Tonight broadcasts live Monday through Friday on SiriusXM’s Patriot channel 125 from 9:00 p.m. to midnight Eastern (6:00 p.m. to 9:00 p.m. Pacific).

Follow Robert Kraychik on Twitter @rkraychik.


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