March 28, 2005

The Ninth Circuit’s Good Friday Betrayal

By Juan Mann

Goodbye, Rule of Law. Say hello to rule by black-robed judicial Jacobins.

As if there weren’t already thousands of other examples of judicial tyranny nationwide, a recent decision giving previously deported criminal aliens the opportunity to gain legal immigration status again—contrary to the clear intent of Congress—has just been reinforced.

On November 18, 2004, the release date of Morales-Izquierdo v. Ashcroft — PDF] U.S. immigration policy was hijacked by federal judges from the notorious Ninth Circuit Court of Appeals.

Three Ninth Circuit nabobs, Judges Dorothy W. Nelson, Stephen Reinhardt and Sidney R. Thomas, struck down federal "reinstatement of removal" regulations designed to keep deported illegal aliens and criminal alien residents OUT of the country for good.

As rulers of an eight-state jurisdiction covering the entire West Coast—Arizona, California, Oregon, Washington, Idaho, Montana, Alaska and Hawaii—the unelected Ninth Circuit appellate judges thumbed their noses at both the Congress and the executive branch, taking control of the federal immigration law enforcement and telling the Department of Homeland Security (DHS) how to implement their pronouncements.

Their action threw a monkey wrench into the detention and removal operation of the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division, forcing the release of untold numbers of illegal aliens to the streets.

Now, on Good Friday, March 25, three different Ninth Circuit judges—Ferdinand F. Fernandez, A. Wallace Tashima and Ronald M. Gould—have released another decision reinforcing Morales-Izquierdo. (Handa v. Clark [PDF] decided March 25, 2005—case No. 04-35293)

These decisions affect the great battleground states of illegal immigration on the Mexican border—Arizona and California.

With the Ninth Circuit preventing the quick summary removal of certain detained aliens, when other illegal aliens are apprehended, the chances are even greater that they will be released on an immigration bond and sent on their way again because of a lack of detention space.

In setting their own immigration policy in the West, these rogue judges assumed the power to strike down 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. Section 241(a)(5) lays out the Congressional authority for establishing the "reinstatement of removal" process as follows:

"Reinstatement of removal orders against aliens illegally reentering.—If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry."

The regulations implementing this process are set forth by the Attorney General in 8 C.F.R. section 241.8(a) as follows:

"Applicability—An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances."

It all sounds clear to me. "No right to a hearing" means—no hearing.

But the Ninth Circuit decided to give these aliens a hearing in the Immigration Court system of the Department of Justice’s Executive Office for Immigration Review (EOIR), when they are not entitled to one.

The 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!

Remember that Morales-Izquierdo himself was a twice-deported illegal alien who came back uninvited a third time.

It’s painfully obvious that the Treason 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.

So much so that the Ninth Circuit has taken the unprecedented step of singling out the subject of immigration law and publishing an “immigration outline” on its web site!

The unstated aim: make it as easy as possible for anyone to appeal immigration—to the point that even a monkey could file an appeal, argue the case, and have it granted by the friendly pro-criminal alien cabal in black robes.

The Treason Lobby’s finest, the American Immigration Law Foundation (AILF) recently published a practice advisory—[PDF]—that

"suggests ways to take advantage of the benefits of the Morales-Izquierdo decision (on reinstatement of removal) and push DHS to promptly enforce the decision."

Wonderful!

So what has been the response so far from the Bush Administration and Congress so far?

Nothing.

One option would have been to have the full appellate court of the Ninth Circuit reconsider the decision en banc.

But with six Ninth Circuit judges now on record in favor, the attractiveness of that option is fading fast.

Another option: America can hope that the Bush Administration will seek review before the Supreme Court.

But that will take years. And there’s no guarantee of success.

But remember, a special session of Congress was convened to try to save the life of Terry Schiavo.

And Congress can act at any time to prevent judicial sabotage of its immigration legislation. 

What is it—and the Bush Administration—waiting for?