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EOIR Immigration Court -- Implementing the permanent amnesty
Illegal alien amnesty is alive and well and living inside the United States Department of Justice.
The amnesty provisions of the 1986 Immigration Reform and Control Act passed by Congress and signed by President Ronald Reagan may have been the most public display of "amnesty" in the United States. But though the IRCA 1986 amnesty deadlines are long gone, it doesn't mean that amnesty is dead. In fact, amnesty never died at all. The Executive Office for Immigration Review -- a federal agency made up of the U.S. Immigration Court system and its appellate body, the Board of Immigration Appeals -- functions as the centerpiece of a largely unknown, ongoing permanent amnesty for illegal aliens and criminal alien residents operating every day in the DOJ. With the complicity of the Immigration and Naturalization Service, the EOIR litigation bureaucracy forms the hidden piece of the puzzle of institutionalized mass immigration in the federal government.
The Immigration and Nationality Act is so filled with exceptions, waivers and outright benefits, that the deportation of foreign nationals in the U.S. is largely voluntary. While Congress should accept responsibility for this emasculation of federal immigration law enforcement, there is plenty of blame left for the EOIR. The litigation bureaucracy of the EOIR is the facilitator of the many ongoing undeclared amnesty programs buried within the Immigration Act.
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. The EOIR and the INS allow detained aliens facing deportation to be released back to the streets on an immigration bond or paroled out of INS custody during the EOIR hearing process, giving every non-detained illegal alien and criminal alien the option of disappearing back into the U.S. regardless of the outcome of their Immigration Court hearings.
While immigration judges, federal appellate judges, BIA members, DOJ attorneys and the private bar fight over pieces of paper -- ultimately marked "removal order" -- illegal aliens and criminal alien residents relish the built-in delays of the EOIR system. If an Immigration Court case reaches the stage where an alien is actually physically removed from the U.S., deported aliens again flaunt the system. The current lack of physical security on the land border exposes the EOIR litigation process for the charade that it is -- since deported aliens can just walk right back in.
After reviewing Immigration Court decisions at the Board of Immigration Appeals -- EOIR's own appellate body -- the EOIR system offers another appellate review in the federal circuit courts, literally making a federal case out of the deportation of every illegal alien and criminal alien resident in the country. With optional appeals at every stage of the process, not counting the possibility of motions to "reopen" or "reconsider," EOIR hearings and appeals are never really over until the alien wins. The EOIR simply is not designed for detaining and deporting aliens.
The EOIR bureaucracy unnecessarily formalizes simple review processes that already are entrusted to lesser-paid State Department consular officers, INS adjudications officers, INS inspectors, INS special agents, INS deportation officers and INS asylum officers all over the country and the world. The country's over 200 EOIR immigration judges (not counting the "chief immigration judges" and members of the BIA) earn from $103,840 to $136,476 per year. If "homeland security" is truly a goal for immigration policy, the entire EOIR bureaucracy should be abolished with its functions parceled out to a law enforcement agency that can do the job of deporting illegal aliens and criminal alien residents.
The bounty of relief from deportation available to illegal aliens and criminal alien residents in EOIR Immigration Court proceedings is staggering. So much so that considering the laundry list of relief available, EOIR removal proceedings are really "get to stay" proceedings. The EOIR routinely grants the benefit of lawful permanent resident alien status to illegal aliens, ordering the INS to issue them a brand new "green card." The EOIR also permits criminal aliens who already have LPR status to remain in the United States in spite of criminal convictions that would make them deportable. The green card is the gateway to United States citizenship. Once someone has maintained LPR status in the United States for five years, they become eligible to file an application for naturalization with the INS. Once naturalization is complete, then the threat of deportation is gone forever. The truth is that today's green card holders are tomorrow's naturalized United States citizens. The EOIR immigration bureaucracy creates newly-minted green card holders every day -- implementing the permanent amnesty provisions of the Immigration Act. The bottom line is that as a deportation mechanism, the EOIR is designed for failure. As institutionalized mass immigration, the EOIR is a raging success!
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.
On April 3, 2002, the Board of Immigration Appeals set
the threshold high in
a 2002 case, but to no avail. For the EOIR,
out-of-wedlock children and medical expenses shouldered
by American taxpayers for indigent alien relatives are
seen as an "equity" in the immigration 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, hiding from immigration
authorities and procreating - - without anyone in the
major media eveen knowing that the EOIR exists, much
less reporting on the ongoing "cancellation of removal"
amnesty for illegal aliens.
INA Section 240A(b)(1)
Suspension 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]
Special 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
This 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 "green card"
INA Section 249
Adjustment of status under Section 245
Under 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. In order to
apply, the alien must be the beneficiary of an approved
immigrant visa petition with a visa number currently
available. 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 "readjust"
permanent resident aliens who are convicted of certain
crimes, in order to turn around and give the aliens
their green cards back -- all done in the very same
hearings that were set up to deport the alien for those
crimes in the first place.
INA Section 245
Adjustment of status under Section 245(i)
Section 245(i) is the most famous stealth amnesty program currently in the news. The EOIR administers 245(i) relief for aliens in Immigration Court hearings as yet another way for aliens facing deportation to avoid being deported. Is Section 245(i) an amnesty? – Absolutely! If an alien who is illegally in the United States without current legal status is not deported, then the alien is being given the benefit of an amnesty. 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 date. The application date has been set three times so far since 1995 in order to give more aliens a chance to apply for the give-away, but there is no future application date as of this writing.
By definition, aliens benefiting from 245(i) are all
deportable because they lack legal status; otherwise
they could adjust under the regular Section 245
provision. Aliens would not need Section 245(i) if they
did not have the need to waive the unlawful presence
grounds of the immigration law. The 245(i) aliens could
have all been deported from the United States. They all
could have been on a bus or a plane heading out of the
U.S. instead of being given the opportunity to file visa
petitions. But Congress has been threatening to extend
this benefit for a fourth time, or even permanently. The
Section 245(i) aliens, by their actions, have already
shown that they are not willing to abide by the
immigration laws of the United States. Section 245(i)
beneficiaries jumped the line ahead of the thousands of
visa beneficiaries who have lawfully waited their turn
outside of the U.S. until a visa number becomes
available for their petitions. But instead of waiting
their turn to enter, the Section 245(i) crowd that
violated the law now legally benefits from their fraud.
INA Section 245(i)
An alien granted asylum in the United States leaves
Immigration Court as a "refugee" 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, "race, religion, nationality, membership in a
particular social group, or political opinion." These
classifications are under a constant assault of
expansion by EOIR immigration judges, the BIA and the
federal appellate courts. Any alien that says the magic
words "political asylum" and tells a convincing story
could win a life in the United States. Asylum hearings
by the EOIR (coupled with INS 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 "credible fear"
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 INS "credible fear" and EOIR asylum process has
the potential to become the greatest back- door amnesty
program of all.
INA 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 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 legal status of some kind for seven years in order
to be eligible for cancellation of removal. But criminal
aliens can only get this relief to prevent deportation
once. This "one free shot" characterization of
cancellation of removal tempts EOIR immigration judges
to grant the relief routinely as a "second chance." But
career criminal aliens frequently are not put into
deportation proceedings automatically after their first
crime. So even though the INS may miss many chances to
deport an alien, the aliens always are eligible for a
"second chance" in the eyes of the EOIR system.
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.
INA Section 240A(a)
Section 212 (c) waiver
This 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 U.S. Supreme Court on June 25, 2001.
The case of
INS v. St. Cyr gave Section 212(c) relief
(meaning green cards and the pathway to U.S.
citizenship) to countless criminal aliens.
INA Section 212(c) [repealed]
Laundry list of waivers
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
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
Juan Mann is the proprietor of DeportAliens.com -- the only immigration reform web site that exposes the litigation bureaucracy of the EOIR. He dedicates his work to the principle that one man's opinion can make a difference.
August 08, 2002