Abolish The EOIR! Juan Mann`s Absolutely Definitive Essay
There is a dangerous misconception
lurking in America`s growing public consciousness about
immigration law enforcement. From the man on the street
to the halls of Congress, the fatal error persists in
the belief that if only current immigration laws were
just enforced, the illegal alien invasion of these
United States would be over for good.
All would be well if we put the
legal mechanisms in place into effect . . . right?
Few Americans even recognize that
there`s any problem at all with HOW the federal
government goes about deporting illegal aliens and
criminal alien residents. Securing the Arizona desert
was a piece of cake in comparison—remember that the
volunteer Minuteman Project showed the world that they
could do it in a month!
So what`s the problem?
It`s too many lawyers, too much
litigation and a four-letter word called EOIR.
The problem that hides in plain
sight in the current immigration "catch and release"
controversy is the litigation bureaucracy of
The Executive Office for Immigration Review (EOIR).
The EOIR is a little-known federal
agency within the U.S. Department of Justice, It
comprises the nationwide U.S. Immigration Court system
and its appellate body, the Board of Immigration Appeals
(BIA) in Falls Church, Virginia. The EOIR is the
centerpiece of a largely unknown de facto stealth
permanent amnesty and non-deportation program for
illegal aliens and criminal alien residents.
According to its web site,
EOIR was created on January 9, 1983, through an internal
Department of Justice (DOJ) reorganization which
combined BIA with the immigration judge function
previously performed by the Immigration and
Naturalization Service (INS). Besides establishing EOIR
as a separate agency within DOJ, this reorganization
made the Immigration Courts independent of INS, the
agency charged with enforcement of federal immigration
But the hidden truth about the EOIR
is that America`s deportation process for illegal aliens
and criminal alien residents is designed for failure.
What starts out as deportation becomes perpetual
litigation – and relatively few deportable aliens ever
With the complicity of the
Department of Homeland Security (DHS), the EOIR
litigation bureaucracy forms the concealed piece in the
puzzle of institutionalized mass immigration sponsorship
by the federal government.
Other than the few summary
removal provisions implemented at ports of entry, the
deportation of foreign nationals in the United States is
The lengthy EOIR system of
hearings and appeals enables illegal aliens and criminal
alien residents to remain in the United States both
legally and illegally for years, often in perpetuity.
The EOIR and the DHS
bureaucracy enable thousands of detained aliens facing
deportation to be
released back to the streets on an immigration bond
or paroled out of federal custody during the EOIR
hearing process – giving them the option of disappearing
back into the United States regardless of the outcome of
their Immigration Court hearings.
The lack of physical security on
the land border exposes the EOIR process for the charade
that it is. Deported aliens just walk back in.
The EOIR literally makes a federal
case out of every illegal alien and criminal alien
resident in deportation proceedings by offering a
litigation gateway to the federal circuit courts of
appeal, and, sometimes, even to the U.S. Supreme Court.
After reviewing Immigration Court
decisions at the Board of Immigration Appeals (its
appellate body) the EOIR system offers automatic federal
circuit appellate court review for the deportation of
every illegal alien and every criminal alien resident in
the United States.
With endless available options for
filing appeals and motions available to a competent
immigration lawyer, EOIR hearings and appeals are never
really over until the alien wins.
The Second Circuit Court of Appeals
recently had this to say about the EOIR system in the
case of Drax v. Reno (338 F.3d 98, 99 (2d Cir.
"This case vividly illustrates the
labyrinthine character of modern immigration law—a maze
of hyper-technical statutes and regulations that
engender waste, delay, and confusion for the Government
and petitioners alike. The inscrutability of the
current immigration law system, and the interplay of the
numerous amendments and alterations to that system by
Congress during the pendency of this case, have spawned
years of litigation, generated two separate opinions by
the District Court, and consumed significant resources
of this Court. With regret and astonishment . . . this
case still cannot be decided definitively but must be
remanded to the District Court, and then to the Board of
Immigration Appeals ("BIA"), for further proceedings."
Considering the never-ending nature
of federal litigation, as well as the laundry list of
relief from deportation available in Immigration Court,
EOIR "removal" proceedings are really "get to
Although alleged to be a system for
determining whether particular illegal aliens and
criminal alien residents are deportable under the law,
in reality the EOIR hearing system is designed to give
aliens a mechanism to apply for relief from removal and
remain in the United States. The EOIR`s immigration
judges routinely award "green cards" (lawful
permanent resident status) to illegal aliens through
adjustment of status, and also allow convicted criminal
aliens to remain in the United States.
While virtually unknown in the
major media, the EOIR is the four-letter word of federal
EOIR litigation represents the
livelihood of thousands of immigration lawyers, whose
interests are represented by their nationwide lobbying
group, the American Immigration Lawyers Association (AILA).
The country`s over 200 EOIR
immigration judges earn from $109,587 to $142,500
per year, plus generous federal benefits.
The bottom line for America`s
taxpayers is that the EOIR is just one more monumental
waste of government resources. The EOIR unnecessarily
formalizes simple review processes that already are
entrusted to specially-trained (and most likely
lesser-paid) federal employees including consular
officers, district adjudications officers, immigration
inspectors, special agents, immigration agents,
deportation officers and asylum officers all over the
country and the world.
A system dedicated to giving formal
hearings and appeals for even previously-deported
illegal aliens and criminal aliens is a system begging
to be abolished – if only immigration reformers in
Congress knew it existed.
So after twenty years of fostering
federal litigation instead of deportation, it is high
time that the EOIR`s
specific functions be parceled out to federal law
enforcement personnel already in the Department of
Homeland Security who can do the job of deporting
illegal aliens and criminal alien residents.
In reality, the EOIR
litigation bureaucracy is the antithesis of real
homeland security. As a deportation system, the
EOIR is designed to fail, and it does. But as a machine
for facilitating mass immigration, the EOIR is a raging
WHAT NEEDS TO BE DONE?
Peter Brimelow, editor of VDARE.com,
identified the solution in so many words in his 1995
book, Alien Nation—Common sense about America`s
Immigration Disaster (page 260). According to
"Deportation procedures, for both
legal and illegal aliens, should be streamlined, and
criminal aliens automatically deported. . . .
U.S. immigration law has already been
significantly weakened by activist judges. But there is
nothing sacred about a wrongheaded ruling. The answer
is to pass another law. When Americans do seize control
of their immigration policy again, it will inevitably
take the form of an epic clash between legislative and
So how does Congress go about
creating a process to actually deport aliens?
Here are the nuts-and-bolts
- Take away the EOIR`s
jurisdiction piece-by-piece in a move towards
abolishing the EOIR`s nationwide U.S. Immigration
Court system and Board of Immigration Appeals (BIA).
- Institute summary removal of
all illegal aliens and pre-determined classes of
criminal alien residents by federal immigration
officers without judicial review.
- Abolish all stealth amnesty
adjustment of status provisions that reward
law-breaking (as well as all discretionary
"second chances" for criminal aliens) in the
Immigration and Nationality Act that are currently
administered by the EOIR
- Eliminate the
immigration benefit fraud magnet of U.S.-based
asylum processing at DHS asylum offices run by its
Citizenship and Immigration Services (USCIS)
division. Create a system where all asylum
processing is done exclusively at U.S. Consulates
abroad, or by the U.S. State Department for those
countries where the U.S. does not have a consular
- Eliminate non-immigrant
visa-jumping from one category to another, as well
as adjustments from non-immigrant to lawful
permanent resident status for aliens already in the
United States. All aliens wishing an adjustment of
status or change of status should be required to
exit the United States and receive a valid visa at
a U.S. Consulate abroad, in order to make another
lawful entry into the United States. Upon reentry,
all applicants must then be able to satisfy the
requirements for admissibility to the United States
once again, including the unlawful presence grounds
of Immigration Act Section 212(a)(9).
The most expedient strategy for handling the EOIR
litigation bureaucracy and the candy store of
immigration benefits it administers (such as asylum and
adjustments of status) comes from the playbook of
General Colin Powell. It`s the same plan he used for
Iraqi army in 1991—"first we`re going to cut
it off, and then we`re going to kill it."
The EOIR is already marooned.
It is an orphaned agency. Ensconced in Falls Church,
Virginia, the EOIR oversees a nationwide
Immigration Court system and a Byzantine appellate
Board of Immigration Appeals. With the INS abolished
and cast out of the Department of Justice, the EOIR now
represents a complete mismatch among remaining
DOJ agencies, including the
U.S. Marshals Service and
the United States Attorneys.
deportation abyss of EOIR litigation, attorneys
haggle over "orders of deportation," while over
300,000 fugitives from those orders and as many as 20
million illegal aliens [as estimated by Bear Stearns—PDF]
remain loose on the streets.
INVASION SPREAD THE NEWS
Peter Brimelow once noted on
VDARE.com that "one of the few rational
justifications for writing books is that you get to
Although I have yet to write a
book, I will offer my own
quote from March, 2002, identifying the EOIR as the
root of the problem.
Michelle Malkin published it in her best-selling
Invasion (pages 215-16), and in a September 2002
"backgrounder" by the Center for Immigration
Studies report called "The
Deportation Abyss: It Ain`t Over `Til the Alien Wins"—[PDF].
"Between the incompetence of the INS,
the complete lack of alien
detention center space, and the bureaucracy of the
EOIR, our system for deporting known illegal aliens and
criminal alien residents is a sad joke. But no one is
"If all of the illegal aliens and
deportable resident alien criminals were rounded up
tomorrow, the system would not be capable of handling
them. It would be an absolute disaster. The INS and EOIR
wouldn`t have the foggiest idea of what to do with them!
The aliens would all be released back out on the street
on immigration bonds and go back right where they were
as if nothing happened, while their cases would grind on
through the system of Immigration Court hearings and
In short, the EOIR process is the
major reason that the federal government remains
paralyzed in confronting the millions of illegal aliens
and criminal alien residents running free in the United
States, despite the supposed intent of policy, and the
existence of at least somewhat appropriate laws.
Congress can threaten to "close
the border" all it wants, but as long as the EOIR
remains in place, all is well for open borders. The
system will remain sabotaged behind the scenes.
If the borders are hemorrhaging
illegal aliens every day, and there is no reasonably
efficient process in place to detain and summarily
deport foreign nationals who do not belong on our
shores, no one is going to be leaving anytime soon . . .
and more aliens will keep coming.
The damage created by the EOIR on
federal immigration policy is a scandal of monumental
proportions. But so far, the first journalist to
call for the EOIR to be abolished was
Michelle Malkin. She wrote as much in her book,
Invasion (pages 232-33):
deportation delays: Abolish the EOIR and BIA—The
most under-recognized obstacle to deporting illegal
aliens is the shadowy immigration court system and it
unaccountable appellate body, which routinely puts
aliens` rights over citizens` safety. Attorney General
John Ashcroft should abolish the Executive Office for
Immigration Review and the Board of Immigration Appeals
and transfer their functions to existing law enforcement
officers within the immigration bureaucracy."
The EOIR is just another example of
criminals` "rights" being expanded and glorified
to overwhelm an entire law enforcement process.
Under current federal law, all
illegal aliens and criminal alien residents have the
"right" to a hearing before an EOIR immigration
judge, as well as the "right" to appeal their
case to the BIA—and then on to the federal courts . . .
and back-and-forth almost indefinitely. That`s the
problem with expecting to expel illegal aliens and
convicted foreign criminals from our country through
litigation. It just doesn`t work.
But even though the mainstream media has maintained
strict radio silence about the EOIR, the
truth about the EOIR bureaucracy manages to leak out
one illegal alien at a time.
Cases like Beltway sniper
John Lee Malvo, New York City
subway bombing plotter Gazi Ibrahim Abu Mezer, Los
Angeles airport shooter
Hesham Mohamed Hadayet, criminal nanny
Melanie Jeanbeaucejour, and
other terrorists are all veterans of the
non-deportation charade of the EOIR Immigration Court
hearing and perpetual appeal process.
As aliens benefiting from the
EOIR`s "catch and release" process continue to
wreak havoc on America, slowly but surely the picture
comes into focus . . . that the EOIR bureaucracy is a
detriment to the "homeland security" mission of
immigration law enforcement.
Unfortunately, the main problem
with affecting any change here is that topics like the
EOIR Immigration Court system, expedited removal of
illegal aliens [as in Immigration Act Section
235(b)], reinstatement of removal for
previously-deported aliens [as in Immigration Act
Section 241(a)(5)], expanding the "aggravated felony"
classification of criminal aliens [as in Immigration Act
101(a)(43)] and demanding the mandatory immigration
detention of criminal aliens [as in Immigration Act
Section 236(c)] aren`t sexy topics.
But they should be!
Just as building a physical barrier
is absolutely necessary to stop illegal immigration
across the southern border, summary removal of illegal
aliens and criminal alien residents is the silver bullet
for real immigration reform.
Legislation expanding summary
removal and taking jurisdiction away from the EOIR would
be a laser-guided missile down the main air conditioning
vent of America`s entrenched non-deportation system.
Abolishing the EOIR through summary removal would be the
vampire-repelling garlic to ward off the
AILA lawyers making a living from federal
Summary removal of illegal aliens
by federal officers, with the cooperation of state and
local law enforcement, would upset the existing
rigged immigration litigation apple cart by simply
kicking illegal aliens and convicted criminal alien
residents out of the country.
THE CASE FOR SUMMARY REMOVAL
For immigration law
enforcement to work, America needs summary deportation,
in the federal courts.
Just as the legal paradigm of the criminal justice
system provides no defense whatsoever against
Mohammedan suicide bombers, so
also clinging to the "alien rights"–based
federal litigation—while expecting the government to
deport aliens—simply doesn`t work.
Real immigration law enforcement is arresting aliens,
deporting them, and making sure they stay out for good.
And that means summary removal, not perpetual federal
litigation. That means officers with guns removing as
many interlopers and criminals as quickly and
efficiently as possible.
In recent Congressional testimony, Michael Hethmon,
Staff Counsel for the Federation for American
Immigration Reform exposed the grave dangers inherent in
the current litigation-based system of non-detention and
According to Hethmon:
"[I]n 2005 the
public violence and other barbaric behavior associated
with the drug and human trafficking criminal enterprises
operated by criminal street gangs has reached
unprecedented levels, and has spread nationwide, far
beyond its traditional `turf` in immigrant
"The need for a
legislative approach that applies internationally known
counter-insurgency techniques to the
alien membership of criminal street gangs in this
country is regrettable but compelling.
"It is regrettable,
because three main factors identified by analysts to
account for the appalling growth in
alien criminal gang activity in this country all
arise from the failure of Congress,
over more than a generation, to control illegal
immigration—[namely] . . . [t]he failure
by Congress to require and support effect border control
and interior enforcement . . . [t]he willingness
of Congress, beginning in the 1970s, to use
refugee policy as an expedient way to deal with the
economic upheavals that followed our
intervention in Third World insurgencies, notably in
Central America . . . [and] the blowback from the
failure of Congress to protect the American workplace
So is there a remedy in sight from Congress?
This past July 4, I
wrote about a "look-out-the-window" reality
check for judging Congressional immigration proposals,
which still applies now more than ever:
"Until the time comes when Americans
look out of their windows one morning and see vans,
trucks, buses and trains filled with
illegal aliens and
criminal alien residents streaming outbound
toward the border, or to the nearest
airport out of the country . . . ONLY THEN will we
know that something is being done.
"But until that day comes, Americans
can know with absolute certainty that the federal
government has done NOTHING to halt the illegal alien
invasion of these United States . . . But until then,
you`ll know that all of the "solutions" emanating from
Congress—including the ghastly specter of another
"amnesty"—are all just a lot of hot air."
In short, Congress must do
something to save the Immigration and Nationality Act,
not only from its own years of benign neglect, but from
the EOIR bureaucracy and the federal courts as well.
FEDERAL COURT MEDDLING IN IMMIGRATION LITIGATION
The EOIR litigation bureaucracy provides the ideal
workbench for a gradual chipping away of any immigration
law enforcement provisions passed by Congress.
According to Edwards:
"Activist judges arrogate power
to themselves, second-guessing elected legislators. The
tools developed to invent new `rights` for criminals,
evict all semblance of the Founders` Christian civic
religion and legalize the murder of the unborn are now
used to set immigration policies from the bench.
"Activist judges would start serving
the public good if they would respect Congress` broad
power to set immigration policies and defer to the
political process. Judicial muggings of the processes
of self-government only feed frustration, while stoking
the public`s ire toward immigrants."
as the EOIR continues to serve-up thousands of
immigration cases to the federal circuit courts of
appeal every year, the Immigration and Nationality Act
will stand little chance of remaining intact in whatever
form originally intended by Congress.
REINSTATEMENT OF REMOVAL STRUCK DOWN
blatant example of federal court meddling in immigration
law enforcement has been what the Ninth Circuit Court of
Appeals has done to the
reinstatement of removal provisions of the
Immigration Act—procedures designed to keep previously
deported illegal aliens and criminal alien residents out
of the country for good.
November 18, 2004, judges Dorothy W. Nelson,
Stephen Reinhardt and Sidney R. Thomas, struck down
these provisions with the release of their Morales-Izquierdo
Amazingly enough, the full appellate court has agreed to
hear the case again through an en banc hearing. [Morales-Izquierdo
v. Ashcroft, 388 F.3d 1299 (9th Cir.
2004), rehearing en banc granted, 423 F.3d 1118
(9th Cir. Sept. 12, 2005)]
But in setting their own immigration policy in the
Western states for now, these three rogue judges assumed
the power to
strike down the perfectly good federal
"reinstatement of removal" regulations of 8 C.F.R.
section 241.8—enacted fair and square by
Attorney General Janet Reno under the authority of
Immigration Act section 241(a)(5).
Here`s the key issue: the Ninth Circuit decided to
give previously-deported aliens a hearing in the
EOIR Immigration Court system when they are not
entitled to one.
The reinstatement of removal process was supposed to
ensure that when previously-deported aliens
reentered the U.S. illegally and were
caught again on American soil, they would be
summarily removed. Why?—because they already had a
hearing the first time they were deported!
Morales-Izquierdo himself was a twice-deported
illegal alien who came back uninvited a third
It`s painfully obvious that the pro-alien lobby wants
none of this
"summary removal" business. And their fellow
travelers in the
Ninth Circuit have also made sure to let the world
know that immigration law is a subject near and dear to
their hearts too.
SAVING THE IMMIGRATION AND NATIONALITY ACT
federal courts continue to craft immigration policy in
reviewing EOIR appellate cases one case at a time, any
good work of Congress for immigration reform will be
undone before the President`s signature has dried on the
The Immigration and Nationality Act of 1952, and its
various amendments, make up the spaghetti bowl of arcane
language, convoluted standards and perverse incentives
that make up the law of the land for immigration law
The last attempts by Congress at immigration law
enforcement were in 1996 as a somewhat belated reaction
to the February 26, 1993, bombing of the World Trade
Center. Congress passed some very enforcement-minded
legislation three years after the bombing called the
"Anti-Terrorism and Effective Death Penalty Act (AEDPA)
of 1996." President Clinton signed the
"anti-terrorism" immigration bill on April 24, 1996.
But during the second session of the 104th Congress,
later that same year, Congress passed even greater
changes to the Immigration Act called the "Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA) of 1996." The IIRIRA, known as the 1996 Act
was signed by President Clinton on September 30, 1996.
It became effective on April 1, 1997. The IIRIRA cut
back on relief available for criminal aliens and known
foreign terrorists, and called for the mandatory
detention of more classes of convicted criminals who are
EXPEDITED REMOVAL PROVISIONS SHELVED
The IIRIRA also created very valuable expedited
removal proceedings under its new
Immigration Act Section 235(b),
which allowed the summary removal of illegal aliens
found anywhere in the United States—within two
years of entering illegally.
So far, Immigration Act Section 235(b) has managed to
withstand the legal onslaught of the pro-alien lobby
through the federal courts. But these expedited removal
provisions have fallen victim to non-implementation by
both the Clinton and Bush Administrations through
stonewalling and sabotage.
In other words, the Bush Administration still isn`t
fully implementing the expedited removal law. It`s all
there in black and white in
Immigration Act Section 235(b)(1)(A)(iii).
Immediately after passage, the Clinton
Administration, through then-INS Commissioner Doris
Meissner, and subsequently the Bush Administration,
mothballed most of Section 235(b). The Section
235(b) authority was only put into effect for
immigration inspectors at ports of entry, not for any
immigration officers in the interior of the country or
outside of airport buildings.
Then, on August 11, 2004, the DHS
announced regulations allowing the Border Patrol to
summarily remove illegal aliens found within 100 miles
of a land border . . . if discovered within two weeks of
their illegal entry. The game of "pass the border
and you`re home-free" for illegal aliens had
gotten a little harder, but it continued.
This was still a very limited implementation of the
authority previously granted by Congress. Remember that
Congress has already given the federal executive
agencies the absolute authority to summarily remove
aliens found anywhere in the United States— within two
years of entering illegally! But the non-implementation
Other than the limited bright spot of streamlined
Immigration Act Section 235(b), there has been little to
cheer about in immigration law enforcement since the
1996 "anti-terrorism" legislation that first
instituted these ground-breaking concepts of summary
EXISTING ALTERNATIVES TO EOIR LITIGATION
So if the dream of summary removal
becomes a reality someday, who else could do all the
work if the EOIR Immigration Court system were
There are thousands of federal
government employees around the country and at United
States consulates abroad who already perform the same
functions as the employees of the EOIR. They already do
the same jobs in a fraction of the time, without the
ridiculous bureaucratic delay of endless hearings and
appeals, and at a fraction of the cost of EOIR`s
government lawyers in black robes.
Here`s who is already doing the
EOIR`s job or should be doing it for them:
- DHS, Citizenship and
Immigration Services (USCIS) District Adjudications
Officers—adjustments of status, derivative
citizenship claims, inadmissibility waivers
USCIS Asylum Officer Corps—asylum claims,
withholding of removal, U.N. Convention Against
- DHS, Immigration and Customs
Enforcement (ICE) INS Special Agents (investigators)
and Immigration Agents—administrative removal,
criminal alien apprehension and removal,
reinstatement of removal
ICE Deportation Officers—administrative removal,
criminal alien apprehension and removal,
reinstatement of removal
- U.S. Border Patrol
Agents—administrative removal, Section 235(b)
determinations for expedited removal
- DHS, Customs and Border
Protection (CBP) Immigration Inspectors—Section
235(b) determinations for expedited removal
- DHS, CBP and ICE District
Directors—waivers, registry, humanitarian parole
- U.S. State Department and U.S.
consular officers abroad—all immigrant and
non-immigrant visa processing, political asylum,
refugee petitions, U.S. citizenship determinations
- DHS attorneys assigned to CBP,
ICE and USCIS—provide legal advice to officers to
ensure whether aliens are removable under summary
Here`s the bottom line: the EOIR`s collection of
government attorneys—all of its immigration court
judges, BIA members, chief immigration judges and
administrators —should be disbanded. The EOIR`s
resources and budget could be put to better use within
the DHS actually summarily removing illegal aliens and
criminal alien residents where it could have an
immediate impact in deterring illegal immigration and
punishing border criminals.
Former DOJ, EOIR, BIA and DHS attorneys, and even the
DOJ`s Office of Immigration Litigation (OIL) assigned to
managing the avalanche of federal appellate court
litigation could be pressed into service as Special
Assistant U.S. Attorneys prosecuting immigration crimes.
This reservoir of government prosecutors could handle
the immigration-related cases that just aren`t being
prosecuted in federal district court in great numbers —
illegal entry into the United States (8 U.S.C. Section
1325), reentry after deportation (8 U.S.C. Section 1326)
and alien smuggling (8 U.S.C. Section 1327).
Others might become special magistrates to decide the
lowly immigration cases federal district court judges
don`t want to hear.
DISMANTLING EOIR JURISDICTION PIECE-BY-PIECE
But the best ammunition for
abolishing the EOIR is generated by analyzing what it is
exactly that the EOIR Immigration Court actually does in
the first place.
After determining the deportability
of an alien under immigration law, the bulk of an EOIR
immigration judge`s time is spent deciding applications
for relief from removal. In other words, the EOIR
administers a smorgasboard of non-deportation "second
chances," and outright grants of lawful permanent
Here is the EOIR Immigration
Court`s jurisdiction, piece-by-piece, as set forth in
the Immigration and Nationality Act (INA):
Cancellation of removal for non-permanent residents—The
ongoing amnesty program of "non-resident
cancellation" allows illegal aliens to receive
"green cards" — lawful permanent resident (LPR)
status — if they have lived in the U.S. illegally for
10 years and have a spouse, parent or child who is a
U.S. citizen or an LPR. EOIR Immigration judges
determine whether the alien`s deportation would cause
"exceptional and extremely unusual hardship" to the
qualifying relative. For the EOIR, multiple
out-of-wedlock children, and massive medical expenses
shouldered by American taxpayers (for indigent alien
relatives) are "equities" for aliens in a world
turned upside down. To reward the aliens` stealth in
hiding successfully in the U.S. for ten years, EOIR
judges give out "green cards" in the same court
proceedings that were supposedly started to deport the
alien in the first place. Thanks to this perverse
incentive built into the immigration law, illegal aliens
can benefit from their skill in breaking the law,
working in the U.S. illegally, hiding from immigration
authorities, and procreating.
INA Section 240A(b)(1)
of deportation—This benefit was the first
incarnation of the "non-resident cancellation of
removal" rolling amnesty. If an illegal alien
avoided detection in the United States for seven years,
the alien didn`t even need to have a "qualifying
relative" as in the "cancellation of removal"
green card give-away. The alien`s own hardship (caused
by going back home abroad) is enough to win a green
card. The alien could claim that he or she alone would
suffer "extreme hardship" if deported, regardless
of any hardship suffered by any qualifying relatives.
Again, this give-away is a reward for illegal aliens who
have broken the immigration laws by living and working
in the U.S. illegally.
INA Section 244(a) [repealed]
NACARA suspension of deportation—The
Nicaraguan Adjustment and Central American Relief Act of
1997 gives special benefits to prior political asylum
applicants regardless of whether or not their asylum
claims have any validity. This benefit allows aliens to
apply under the former suspension of deportation
standard (see above) if the aliens merely filed a
political asylum application and have been living in the
United States illegally from the following countries:
Nicaragua, Cuba, El Salvador, Guatemala, former Soviet
Union, Russia, Latvia, Estonia, Lithuania, Poland, Czech
Republic, Slovakia, Romania, Hungary, Bulgaria, Albania,
former East Germany, former Yugoslavia, Macedonia,
Serbia, Montenegro, Bosnia, Croatia, Slovenia, Belarus,
Ukraine, Georgia, Armenia, Azerbaijan, Moldova, Kazakstan, Uzbekistan, Turkmenistan, Tajikistan and
Kyrgystan. NACARA Sections 202, 203
benefit is yet another stealth amnesty for aliens who
didn`t bother to apply for the IRCA 1986 amnesty
give-away. Aliens who have been living illegally in the
United States since 1972 can get a
INA Section 249
Adjustment of status under Section 245
Section 245 adjustment, an alien admitted in some legal
status can apply for resident alien status during the
very same Immigration Court proceedings that were
supposed to be deporting the alien. To apply, the alien
must be the beneficiary of an approved immigrant visa
petition with a visa number currently available. EOIR
immigration judges have the option of stalling the
Immigration Court proceedings long enough for visa
numbers to become current for the aliens to apply. The
EOIR also has the power to
permanent resident aliens who are convicted of certain
crimes, in order to turn around and give the aliens
their green cards back.
INA Section 245
Adjustment of status
under Section 245(i)—Section
245(i) is the most famous recent stealth amnesty
program which allowed aliens who have entered the
U.S. illegally or over-stayed valid visas to apply
for adjustment of status to permanent residence
anyhow, despite the inadmissibility grounds of
Immigration Act Section 212(a)(9). For the
privilege of bypassing the unlawful presence
grounds, the aliens would have to pay an
"enhanced fee" of $1,000. Section 245(i) allows
aliens who have no legal status in the United States
to avoid deportation as long as they filed a visa
petition (through a spouse, parent, child, brother,
sister or an employer) prior to a certain deadline.
Since its creation by Congress through an
appropriations act for fiscal year 1995, the sunset
date for filing Section 245(i) petitions was
extended three times—from September 30, 1997, to
January 14, 1998, and finally until April 30,
2001—in order to give more aliens a chance to apply
for the give-away. Although there is no future
application deadline, the sheer backlog of
previously filed Section 245(i) petitions will allow
aliens waiting for their priority dates to become
current to remain in the U.S. with a free
non-deportation pass for years. By definition, all
Section 245(i) beneficiaries jumped the line ahead
of the thousands of visa applicants who continue to
lawfully wait their turn outside of the U.S. until a
visa number becomes available for their immigrant
petitions. But instead of waiting their turn to
enter, the Section 245(i) crowd that violated the
law can legally benefit instead.
INA Section 245(i)
alien granted asylum in the United States leaves
Immigration Court as a
and can apply for a resident alien card in a year. The
alien must prove past persecution (or a well-founded
fear of future persecution) under one of five
statutorily protected grounds,
nationality, membership in a particular social group, or
These classifications are under a constant assault of
expansion by EOIR immigration judges, the BIA and the
federal appellate courts. Any alien who says the magic
and tells a plausible story could win a life in the
United States. Asylum hearings by the EOIR (coupled with
DHS policies of releasing aliens from detention) are an
open door to the opportunists of the world.
International alien smuggling enables virtually anyone
in the world without legal documents to bypass the
system of U.S. consular refugee processing abroad.
Aliens who simply appear without documents at any U.S.
land border or airport on American soil can request
asylum through the INA Section 235(b)
process, be released from custody, travel on to another
city, and perhaps later appear for a hearing to be
awarded asylum by an EOIR immigration judge. The
potential for abuse of the current system is so great,
that the DHS "credible
fear" review and EOIR asylum process has the
potential to become the greatest back- door amnesty
program of all.
Sections 208, 209, 235
Withholding of removal—Withholding
of removal is a stricter flavor of asylum where the
alien can remain in the United States, but cannot apply
for permanent resident status.
INA Section 241
Withholding or deferral of removal under U.N. CAT—As
an alternative to asylum and withholding of removal,
aliens in Immigration Court could also receive
withholding or deferral of removal under the provisions
of Article 3 of
"The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment."
Under this standard, the alien must show a "clear
probability" of being tortured in the alien`s native
country. The EOIR reviews these cases along with any
asylum or withholding claims filed by the alien.
8 C.F.R. Sections 208.16, 208.17
Cancellation of removal for certain permanent residents—This
benefit allows criminal aliens who are already lawful
permanent residents to maintain their LPR status in
spite of being convicted of various crimes. The alien
must have been a permanent resident for five years and
have had legal status of some kind for seven years in
order to be eligible. But criminal aliens can only get
this relief from deportation once. So this
"one free shot"
tempts EOIR immigration judges to grant the relief
routinely as a
But career criminal aliens frequently are not put into
deportation proceedings automatically after their first
crime. So even though the DHS may miss many chances to
deport an alien, the aliens always are eligible for a
Permanent resident cancellation helps criminal aliens
convicted of drug possession, alien smuggling, abuse of
a spouse, drunk driving, robbery, burglary, theft,
sexual assault and a host of other crimes. Only those
aliens found to have been convicted of "aggravated felonies"
under Section 101(a)(43) of the Act are not eligible to
apply. In examining the jurisdiction of the EOIR,
Congress should explain to the American people why as a
policy interest it maintains permanent resident alien
criminals on our shores about whom the federal
government already knows. With countless foreign
nationals waiting to come into the United States
lawfully, Congress must be held accountable for allowing
convicted criminals to remain in the United States
through the EOIR`s daily
for convicted crminals.
INA Section 240A(a)
benefit is the first incarnation of the permanent
resident "cancellation of removal" provision.
Section 212(c) relief also allowed resident alien
criminals to keep their "green cards" in spite of
being deportable for various crimes. Congress attempted
to scale back this form of relief to deport many drug
smugglers and violent felons, but their efforts were
struck down by the meddling of the U.S. Supreme Court on
June 25, 2001. The case of INS v. St. Cyr [533
U.S. 289 (2001)] gave Section 212(c) relief, namely
green cards and the pathway to U.S. citizenship, to
countless criminal aliens. The Supreme Court in effect
allowed criminal aliens the chance to keep their green
cards, against the will of Congress. With an assist to
the former Immigration and Naturalization Service, this
criminal alien amnesty created relief from deportation
where there was none before. The Court resurrected
Section 212(c) of the Immigration Act by creating their
own form of relief—Section 212(C)yr—despite the
clear language of Section 440(d) of the AEDPA and
Section 304 of the 1996 IIRIRA. The former INS rushed to
expand the ruling even more through policy, making even
more more criminal aliens eligible to stay in the
INA Section 212(c) [repealed]
list of waivers relating to adjustments of status:
- Waivers for
"crimes involving moral turpitude"
including theft crimes, sex crimes and possession of
less than 30 grams of marijuana
INA Section 212(h)
- Waivers for alien smuggling
INA Sections 212(d)(11) and 241(a)(1)(E)(iii); and an
exception under INA Section 241(a)(1)(E)(ii)
- Waivers for immigration fraud
INA Sections 212(i) and 241(a)(1)(H)
- More waivers for document fraud, exchange
visitors, health-related reasons, labor certification
requirements, reentry after deportation, conditional
resident status, and crimes given a state or federal
pardon: INA Section 211(b), INA Section 211(c), INA
Section 212(d)(4), INA Section 212(e), INA Section
212(k), INA Section 216(c)(4), INA Section
241(a)(2)(A)(v), 8 C.F.R. 212.2.
The Department of Justice`s
EOIR is the power behind the scenes in immigration
law enforcement and the greatest obstacle to real
immigration reform in the federal government. The EOIR
is the legal bureaucracy that regulates, and in effect
cripples, the deportation of illegal aliens and criminal
alien residents in the United States.
Summary removal, not EOIR
litigation, should be the future of immigration law
Under current law, there is no
judicial review and no appeal of expedited removal
orders done by Department of Homeland Security
immigration inspectors at ports of entry, and by U.S.
Border Patrol officers in certain sectors along the
borders. Also, there are no appeals of non-immigrant
visa determinations and refugee denials from U.S.
consular offices abroad.
Amazingly enough, these summary
determinations are made routinely by federal officers
without any EOIR litigation whatsoever. And the world
In analyzing the entire jurisdiction of the EOIR piece
by piece—reviewing all types of relief from
removal—every single component is already accomplished
by other federal government divisions. And if not
already covered, the particular form of relief could be
easily moved out of the country for overseas
adjudication, or abolished outright as being an
ill-conceived reward for criminal behavior in the first
Summary removal in effect
represents the other side of the coin from the "summary
visas for all" impulse of the Bush Administration,
exemplified by its ongoing drive for a non-deportation
amnesty for existing illegal aliens under the guise of a
"guest worker" or "temporary worker" program. By
seeking to implement open-ended immigration status
hand-out, the Bush Administration apparently sees
nothing wrong with making a policy decision about which
illegal aliens to let in the country, and then summarily
carrying it out on a massive scale.
So why not do the same for summary
We as a nation, through Congress as
our policy-makers, should make a decision once and for
all on which foreign nationals are going to be let into
the country, who remains here, and who is going to be
kicked out. Congress should overhaul the Immigration
and Nationality Act and decide once and for all which
clearly-defined classes of aliens to summarily prevent
from entering the United States, as well as which
clearly-defined classes of aliens to summarily deport
from the United States.
Congress should make its decision,
implement a summary process, and stick to it. No
questions asked. No EOIR Immigration Court hearings.
No redundant BIA review. No federal litigation.
Under the current state of affairs,
the EOIR`s decides its own case-by-case personal
"amnesties" being decided behind closed doors every
day. Congress has abdicated its responsibility by
leaving immigration policy to the whim of executive
agency bureaucrats and power-hungry federal appellate
courts to grant relief one case at a time to illegal
aliens and criminal alien residents.
So rather than posturing about
"closing the border," Congress should strike a blow for
real immigration reform by abolishing the EOIR
litigation bureaucracy once and for all.
ABOUT Juan Mann: