- The Washington Times - Thursday, June 3, 2021

In the category of not all crooks are stupid, one accused migrant smuggler figured out an ingenious way to cut in half the time it took him to get back to Mexico from the U.S. to prepare for his next load of people: He turned himself in to the Border Patrol.

During the COVID-19 pandemic, the federal government is not holding and prosecuting illegal immigrants. Instead, it is either catching and releasing or quickly expelling them to Mexico by busing them to the border and ushering them through a border crossing.

Javier Ernesto Ayala-Osuna, who authorities say is a foot guide for groups of illegal immigrants, would walk 16 hours from the border deep into the U.S. He realized he could get a free trip back to the border just by turning himself in to border officers.

Smugglers are always looking at policy changes in the U.S. and angling for ways to turn them to their advantage. 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.

Border Patrol Agent Wesley Cornue told a federal court that Mr. Ayala probably pulled the trick at least six times over a month. Agents caught him on May 16 with a group of four people after they were alerted to the scam by two other migrants who said he had guided them into the country.



“I must credit the smuggler for his ingenuity in exploiting the highly naive American system of limitless, no-consequence turn-backs,” said Todd Bensman, a senior national security fellow at the Center for Immigration Studies who keeps a close eye on smuggling activities.

In Mr. Ayala’s case, Border Patrol agents nabbed him six times from mid-April to mid-May, each time at the same part of the border.

U.S. law allows for the prosecution of illegal border crossers. The first instance is a misdemeanor, and repeat offenses are felonies.

But the pace of prosecutions depends on political will in Washington and the capacity and will of prosecutors on the ground to pursue the cases.

Prosecutions have all but dried up during the pandemic, Mr. Bensman said. The Trump and Biden administrations didn’t want to crowd more people into federal prisons.

Mr. Bensman said it’s time to rethink that policy.

“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.

The Times has reached out to Customs and Border Protection for comment.

Title 42 is the section of U.S. law that allows the Centers for Disease Control and Prevention to declare a health emergency and enable CBP to deny entry to people at the border and immediately expel unauthorized migrants.

Under the Trump administration, nearly all illegal crossers were expelled. That rate has fallen this year as the Biden team welcomes illegal immigrant children, many families and some single adults based on several factors.

A debate is brewing over when the Biden administration will end the Title 42 situation and whether it will spark another surge of migrants.

In Mr. Ayala’s case, ending the policy would deny him, and anyone else using the tactic, the quick return trip at U.S. taxpayers’ expense.

Mr. Cornue said agents got wise to the scam on May 14 after nabbing two migrants smuggled in the back seat of a vehicle near California Route 94, which runs close to the border.

The two men admitted they tried to sneak into the U.S. on May 10, guided by a man named Javier, but they were all caught and returned to Mexico.

They made another attempt on May 13. They crossed the border at 5 a.m. and walked until they got to Route 94 at 9 p.m. They said 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,” Mr. Cornue told the court.

A car eventually came to get them, but they got caught.

They said they were paying Javier $8,000 to be smuggled.

After agents caught the two migrants, they went back to try to identify Javier based on their story. 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.

One of the problems with using Title 42 is that the rate of recidivist crossings is up dramatically.

An agent told The Washington Times that recidivism rates are running at 20% to 30% a month, meaning the same person is caught more than once in a single month.

In 2019, Title 42 was not a factor in the migrant surge and the recidivism rate for the entire year was just 7%.

It’s not clear how many smugglers have hit on the tactic to get free return trips.

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.

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