Immigration Law Enforcement: A Legal Review

Congress giveth, the EOIR ignoreth, the ACLU and
AILA attacketh, and the federal courts taketh away

As illegal aliens and their smugglers trample
the ranch lands of the American southwest, the
laws that are supposed to detain and deport them
also are being trampled in a less visible but no
less unrelenting assault. The Immigration and
Nationality Act is fighting for its life on a
daily basis against relentless legal attacks in
the federal courts and before the Immigration
Court hearing system within the United States
Department of Justice (DOJ).

While the Immigration and Naturalization Service
(INS) gets a public flogging, the real battle for the
integrity of our immigration laws as drafted by Congress
is being waged behind closed doors. The

Executive Office for Immigration Review
(EOIR), with
its Immigration Court system of perpetual hearings and
appeals to federal court provides the perfect forum for
a gradual chipping away of any immigration law
enforcement provisions passed by Congress. The
Immigration Court problem requires the creation of a
completely new framework for the removal of illegal
aliens and criminal alien residents from the United
States. The current litigation-based model for the
deportation of every single illegal alien in the country
is an invitation for disaster. Besides being completely
unworkable, the EOIR framework of endless litigation
encourages legal assaults against the clear will
expressed by our elected representatives in trying to
craft a coherent immigration policy for this country. As
a companion to any streamlined immigration legislation
that would actually deport illegal aliens and criminal
alien residents, the EOIR should be abolished, with its
Immigration Court system shut down to stop the
immigration litigation barrage.

If the EOIR`s Immigration Court survives, the
Immigration and Nationality Act will stand little chance
for survival in whatever form originally intended by
Congress. If the federal courts continue to craft
immigration policy in reviewing EOIR appellate cases,
any good work of Congress for immigration reform will be
undone before the President`s signature has dried on the
legislation. If Congress is serious about reforming the
Immigration Act, its first order of business should be
to abolish the EOIR. Maybe then the INS or whatever law
enforcement agency taking its place will finally be able
to do its job of enforcing the Immigration Act.

Saving the Immigration Act

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 pass for the law of the land in immigration law
enforcement. The Congress of the United States and the
many Presidents who signed this legislation must
shoulder the blame and receive the faint praise for
immigration laws on the books now. But there is more
blame to go around for the current state of affairs. As
if the massive Immigration Act has enough problems
already, perhaps the greatest threat to a logical
American immigration policy and its consistent
enforcement really lies in after-the-fact legal mischief
through the federal government and the federal courts.
The bottom line is that the best enforcement provisions
of our immigration laws are being rewritten by the
unelected.

The prime suspects for this erosion of immigration
law enforcement are pro-alien social activists among the
Department of Justice`s own

Immigration Court judges
of the EOIR, their

fellow travelers
within the EOIR`s appellate body
known as the

Board of Immigration Appeals
(BIA), the

U.S. Courts of Appeals
(notably the

Ninth Circuit Court of Appeals
on the left coast),
and even some recent shocking 5-4 immigration decisions
by the

Supreme Court of the United States.
But liberal
judges can`t do it alone. They are, as always, aided and
abetted by thousands of immigration trial lawyers from
the American Immigration Lawyers Association (AILA), the
American Civil Liberties Union (ACLU), and various alien
"rights" groups and ethnic lobbies. With this army of
attorneys arrayed against it, the poor Immigration Act
doesn`t stand a chance. Any enforcement provisions left
in the law that manage to survive the compromises of
Congress, soon will be turned into Swiss cheese by
pro-alien litigators and their ideological compatriots
on the bench.

1996 Anti-Terrorism immigration reforms

As a somewhat belated reaction to the

February 26, 1993,
bombing of the World Trade
Center, Congress passed very enforcement-minded
immigration legislation three years later 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 the second session of the 104th Congress was not
through yet. The immigration reformers were on a roll.
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 foreign
nationals.

The IIRIRA also created very valuable "administrative
removal" proceedings under its new Section 235(b), which
so far have managed to withstand the legal onslaught of
the pro-alien lobby (knock on wood). These provisions
allow aliens to be turned back at ports of entry, with
the Immigration and Naturalization Service sending them
right back to their native country without being
released into the United States, and without reaching
the safe legal haven (the briar patch) of the
Immigration Court system. The administrative removal
provisions of Section 235(b) may very well be the savior
of our country`s immigration law enforcement system.
Hopefully, administrative removals will become the
future of a new streamlined immigration system in a
world without the mismanagement of the INS and the
needless over-lawyered bureaucracy of the EOIR. But for
now, that world is just a dream.

The IIRIRA also brought cosmetic changes to the
Immigration Court system by renaming the federal
government`s "deportation" and "exclusion" proceedings
to kinder and gentler "removal" proceedings under the
new Section 240 of the Act. The new name would be just
about the only part of the 1996 Act left unscathed.
Before President Clinton`s signature dried on the 1996
AEDPA "anti-terrorism" bill and the IIRIRA immigration
reforms, the legal vandals inside and outside government
were already planning their campaign to "fix `96" and
roll-back the immigration enforcement work of the 104th
Congress.

Six Years of Slow Death

Now on the six-year anniversary of the
"anti-terrorism" immigration bill (April 24, 1996),
contrary to the intent of Congress, most of the
immigration law enforcement teeth of the 1996 Act have
been whittled away. The campaign by liberal cause
lawyers waged in the federal courts and in the
Immigration Court system within the Department of
Justice, has taken its toll. Most of the enforcement
gains of the AEDPA and IIRIRA, especially in the area of
immigration detention, have been scaled back to a shadow
of their former glory, or simply abolished by judicial
fiat. The end result is that the criminal aliens have
won. The attorneys of the ACLU and AILA have declared
victory. More convicted foreign nationals with green
cards have been released back into our communities. More
permanent resident aliens have been allowed to keep
their green cards in spite of committing a laundry list
of crimes. More illegal aliens have been released on
immigration bonds and ordered "removed" only on paper in
their absence. But all of the legal dismemberment of the
1996 Act wouldn`t have happened without the open door of
the Immigration Court system and its bureaucrats at the
EOIR, the BIA and the Immigration Courts. The federal
courts simply carried on the carnage started by the
EOIR`s government lawyers in robes at the Immigration
Court, granting even more relief to more classes of
illegal aliens and criminal alien residents.

Other than the bright spot of streamlined Section
235(b) administrative removals, there has been little to
cheer about in immigration law enforcement since the
1996 "anti-terrorism" immigration legislation. Most of
the legal erosion of immigration law has been for the
worse, with more criminal aliens being detained less,
and avoiding "removal" more frequently for a greater
variety of crimes. The detention provisions for illegal
aliens and criminal alien residents are a frequent and
well-worn target. So much so, that it is getting next to
impossible for the United States government to deport a
convicted criminal alien resident, unless the alien
agrees to give up his green card and leave. The way the
system is set up, with unnecessary formalism and
hyper-litigation from the start in the EOIR`s
Immigration Court, all the way up to the Supreme Court
of the United States, this country literally makes a
federal case out of the deportation of every single
illegal alien on our shores. The winners of these legal
battles are foreign nationals with no legal status in
our country and permanent resident aliens who are
convicted criminals. Under the current immigration law,
all aliens in Immigration Court removal proceedings have
the "right" to appeal their case for as long as it
takes, all the way to the Supreme Court of the United
States if they can, to avoid being deported to their
native countries.

With three million, eight million or twelve million
illegal aliens in the United States now (no one knows
exactly), and countless more removable criminal alien
residents, it is absolute folly to believe that the
current over- lawyered framework of Immigration Court
could handle even a fraction of the workload of
deporting aliens. The Immigration Court system, with its
endless menu of hearings and appeals all the way up to
the Supreme Court of the United States, would utterly
crash of its own weight if all of the removable aliens
in the country were actually apprehended by the
beleaguered Immigration and Naturalization Service. The
EOIR`s Immigration Court in the Department of Justice is
a system designed for failure. It is not designed to
enforce the Immigration Act by efficient and expeditious
removal of illegal aliens and criminal alien residents
from the United States. It is a system designed for the
benefit of the aliens in it, the trial lawyers profiting
from it, and the army of pro-alien litigators using the
federal courts to smash any enforcement provisions left
in the Immigration Act.

Stench from the bench

I have compiled a brief survey of recent legal
mischief by the federal courts and the Immigration Court
system. Unfortunately, this list is just a brief
snapshot of some of the more damaging pro-alien rulings
that litter the landscape, making immigration law
enforcement tougher and tougher every day for the
federal government. The legal assault against the 1996
"anti- terrorism" immigration legislation has rendered
Congress` original work largely unrecognizable, as
criminal aliens and their lawyers have scored victory
after victory. Here are their triumphs:


The U.S. Supreme Court


Zadvydas V. Davis

The Supreme Court allows criminal aliens who have
already been ordered deported to be released back into
America if the aliens` home countries will not accept
them. Someone please ask Justice Stephen G. Breyer if he
would like them living in his neighborhood.


INS v. St. Cyr
and

Calcano-Martinez v. INS

The Supreme Court allows more criminal aliens the chance
to keep their green cards, against the will of Congress.
With an assist to the Immigration and Naturalization
Service, this criminal alien amnesty creates 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 INS rushed
to expand the ruling even more through policy, making
more criminal aliens eligible to stay in the country.
Shame on you, Justice Anthony Kennedy! You should know
better.


The Ninth Circuit Court of Appeals


Kim v. Ziglar

Convicted criminal resident aliens can be released back
into society, contrary to the clear will of Congress who
wanted the INS to keep them locked up for safe-keeping
until being deported.


Hernandez-Montiel v. INS

Gay Mexican transvestite granted political asylum in the
United States by your friendly neighborhood appellate
judges of the Ninth Circuit.


Rivera-Sanchez

Conviction for transporting or selling drugs is not a
"drug trafficking" offense.


Richards-Diaz

The first judicial expansion of Section 212(c) relief,
that is until

INS v. St. Cyr
came along.


USA v. Robles-Rodriguez

State drug convictions are not drug convictions.


Trinidad-Aquino

Repeat drunk driving convictions with a sentence of over
one year are not "crimes of violence."


The Seventh Circuit Court of Appeals


Parra v. Perryman

Alien convicted of aggravated sexual assault prevails.


The Fifth Circuit Court of Appeals


Hernandez-Avalos

Repeat drunk driving convictions with a sentence of over
one year are not "crimes of violence."


The Third Circuit Court of Appeals


Patel v. Zemski
and

Sabrija Radoncic v. Zemski

Convicted criminal resident aliens can be released back
into society, contrary to the clear will of Congress who
wanted the INS to keep them locked up for safe-keeping
until being deported.


The Board of Immigration Appeals

The problem with tracking the movements of the BIA
"members" and their decisions is that the majority of
BIA decisions are designated as "unpublished." No one
really knows exactly how much damage the BIA has caused
by granting relief to aliens who should have been
deported under the law. Their "unpublished" cases never
see the light of day and are not regarded as

precedent decisions.
But even though the BIA is on
its best behavior trying to look judicial in the
published cases, called Interim Decisions, their true
colors come shining through occasionally. They just
can`t help it.


Interim Decision #3455

The Min Song case opens the floodgates for "aggravated
felon" criminal alien residents to keep their green
cards.
Read more analysis of Min Song.


Interim Decision # 3432

BIA logic: "burglary of a vehicle" is not a "burglary
offense."


Interim Decision #3309

The BIA tries to figure out which crimes aliens commit
are "particularly serious" crimes. But aren`t they all?


Interim Decision #3428

Alien`s conviction for unlawful use of a firearm is no
obstacle to keeping his green card.

Juan Mann is the proprietor of the only
immigration reform
web site
that exposes the bureaucracy of the EOIR.
He dedicates his work to the principle that one man`s
opinion can make a difference.

April 18, 2002