The nation was riveted this week by a wrenching photo of a Salvadoran father and daughter who drowned in the Rio Grande trying to enter the United States. Accusations were hurled in the aftermath. Democratic presidential candidate Julián Castro blamed Trump’s metering policies for the fatalities. Acting director of US Citizenship and Immigration Services Ken Cuccinelli in turn blamed the father for both his own and his daughter’s death.
Both are wrong.
February’s omnibus bill killed them.
The omnibus bill killed them
In the narrow sense, the omnibus bill of this past February is proximately responsible for the deaths of Oscar Martinez and his two year old daughter Valeria. This law, combined with the Sabraw ruling of last July, prevents Border Patrol from separating migrants from their children and holding them if they seek asylum on ‘credible fear’ claims.
This policy has induced families from the Northern Triangle countries to take a shot at the US border. Nearly ten times as many families were apprehended in May 2019 as the previous May, almost all from the Northern Triangle countries.
The Martinez family was among those who sought to capitalize on the opportunity. Had the omnibus not passed, there is a 90% chance Oscar Martinez would never have set out for the US. But it did, and that ultimately put him in the muddy waters of the Rio Grande.
Moreover, the law requires a child be part of the package, compelling Oscar to bring along his toddler, Valeria. She was his ticket in. When he drowned, she died with him. She died because US policy demanded that her father bring her on this dangerous journey.
Therefore, as the proximate cause, the omnibus bill is clearly to blame. Without it, Oscar Martinez almost certainly would have stayed home. And even if he had tried the border, he would not have risked the life of his daughter in the attempt.
It was not the father’s fault
Conservatives commonly blame migrants for their plight. In important ways, this is untrue, at least in the sense of blaming the victim of a traffic accident for having chosen to travel by car.
US law states that entering the US without authorization in illegal. In practice, those caught crossing the border illegally will be apprehended and subsequently deported, possibly with some jail time in between. However, if a migrant succeeds in making to the US interior, there are plenty of good jobs waiting and, as it turns out, undocumented immigrants are something of a protected class, at least as a group. There is about a 3% chance of being caught and deported in any given year—not nothing, but a pretty low probability at any given time. If the migrant can run the gauntlet and remain undetected by ICE in the US, then he can increase his net wages by 4-7 times.
The migrants’ logic is ultimately correct. Jumping the border, or bringing the children and faking an asylum claim, is a rational strategy. The risk is well worth the reward, with almost all upside and very little downside. That’s how US migrant policy works in practice.
It has made sense for 300,000 Northern Triangle migrants so far this year. And it almost worked for Oscar Martinez.
As reported by the Daily Mail, in El Salvador, Oscar worked at a Papa Johns pizza restaurant, where he earned $350 a month. He and his wife Tania lived off this $10 / day, because Tania had already quit her job as a cashier in a Chinese restaurant to care for Valeria, their only child. According to Tania’s mother, they were not fleeing violence, but were in desperate search of a life where they could earn more. Their plan was to spend a few years in America to save up enough money to eventually return to El Salvador and buy or build their own house.
Determined to go to the US, they left El Salvador for Mexico on April 3rd. After two months stuck in southern Mexico with no prospect of entering the US legally, the family decided to make their way north. They took a bus to the US-Mexico border zone and upon arrival went straight to the International Bridge to try to plead their case. They were told that they would likely have to wait weeks if not months for their appointment because so many other families were ahead of them in line. Desperate, they decided to try to cross the Rio Grande themselves and made their way to the river bank. The father took Valeria across first, left her on the US bank and returned to assist his wife. The toddler tragically decided to follow her father back into the water and he returned to rescue her, but in vain. Both were swept away. Their bodies were found 500 yards down the shore.
Oscar and Tania Martinez had a plan, and they executed it step by step. They tried to comply with the law, but failing that, decided to attempt an extra-legal maneuver which would have succeeded but for a fluke, the decision of the toddler to follow her father back into the water in a small but fateful misstep. They were not fearing persecution, nor were they unemployed. But they saw a chance — granted by the omnibus bill — to quadruple their wages and move to a country which, at least for a time, would provide them opportunity and lift them from chronic penury. But for a minor, tragic turn of fate, they would have successfully crossed into the US, in all likelihood to be released like hundreds of thousands of fellow Central Americans.
Oscar Martinez was not crazy, stupid or a bad person. He was just unlucky. But his decision-making was sound, and his actions were responsible. He was looking for a better life for his family, and but for a small mishap, he would almost certainly have made it. In terms of risk/reward, it was the right decision, just like you may hop into your car to drive to work. Yes, there is risk, but most of the time, it is small and manageable. This time, it was small, but fatal.
Black markets force participants to play the odds, to stay at the roulette table turn after turn and hope they never lose, or lose big. Can we make it into Mexico? WIll they let us stay? Will the Americans give us a hearing? Can we go to the border? Will the cartels get us? Can we find a coyote? Do we have enough to pay them? Can we safely cross the river? Will Border Patrol catch us? If they do, will they release us into the US? Will we find jobs and a way to take care of our children? What if ICE catches us? The lack of a legal channel forces people to take risk, really a series of risks. Actuarially speaking, most of the time migrants win, but some of the time they fail. The incidence of death, rape, kidnapping and incarceration can all be calculated in advance. Black markets are not black boxes. It’s a matter of counting and cataloging the coin tosses.
Economics will drive the decision-making. The level of kidnapping, extortion and assault, the incidence of theft and the price of cartel and coyote fees are all a function of the wages migrants can earn in the US. So most of the time, trying the border will be worth it. The migrant’s decision to run the gauntlet to make it to the US is rational and responsible. But it is risky, sometimes life-and-death.
From the policy perspective, the issue is not whether migrants fail or succeed, but rather that US immigration policy forces them to take the risk. It’s not that Oscar and Valeria Martinez drowned. It’s that they were there at all.
Readers will no doubt expect me to harp on the benefits of a market-based approach, and I will not disappoint you. Enforcement-based regimes — prohibitions — create black markets that convert plans into games of chance: you bet your life. Prohibitions are farcically cruel, capricious and create little but crime and tragedy. Had Oscar Martinez had a legal option, he would have chosen it. Indeed, he did choose it. But because it led nowhere, he turned to illegal options. If he could have gotten a background check and purchased a visa, he could have calculated whether it made sense to go to the US. Without a doubt, he would have left his family, safe with their mother, back in El Salvador. And he would have worked huge hours to earn in a few months what he could make at home in a year. But he would have known, up front, whether the math made sense. No one would have died. No bitter recriminations would have followed. No stain would be left on our honor and decency. It would have come down to a simple economic decision, nothing more.