May 08, 2003

What Part Of “Shall Take Into Custody” Doesn’t The DHS Understand?

When the Supreme Court issued its magnificent ruling in Demore v. Kim on April 29, the DHS got the green light to detain virtually any criminal alien in the United States without bond pending deportation.

That meant that, after a nationwide barrage of legal challenges, the immigration law was right back where it was when Congress passed it in 1996.

So what has the DHS been doing to implement this hard-fought Supreme Court victory?

Answer: not much. Last week, the DHS’ own Anthony Tangeman, Director of the Office of Detention and Removal, Immigration and Customs Enforcement division, released a memo about the Kim case. The memo offers no plans to pick up the aliens released while litigation was pending-unless they come into custody “under new circumstances.”

In the Kim case, the Supreme Court affirmed the Constitutionality of the broad mandatory detention provisions of Section 236 (c) of the Immigration Act. The Court reversed four federal appellate courts - the third, fourth, ninth and tenth circuits – that had, for one reason or another, struck down this perfectly good section of immigration law.

Section 236(c) got its detention teeth through amendments known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRAIRA]. This was signed by President Clinton on September 30, 1996, and became effective on April 1, 1997.

The usual suspects in the Treason Lobby immediately lined up to “fix ’96” with round-the-clock federal litigation. But the patriotic Washington Legal Foundation stood up against the horde--and won a compliment by the Supreme Court on its Kim case amicus brief to boot.

Three cheers for WLF!

Section 236(c) orders mandatory detention of just about every deportable criminal alien – both illegal aliens and criminal alien residents – pending lengthy removal proceedings before the Immigration Court system of the Executive Office for Immigration Review (EOIR). It says that the former INS – now the DHS – “shall take into custody” criminal aliens without bond during Immigration Court hearings and appeals.

Don’t be fooled by pro-criminal alien spin. The aliens affected by the Kim case aren’t altar boys.

The legislation applies to terrorists, drug criminals, drug traffickers, illegal alien smugglers, firearms violators and any alien convicted of an “aggravated felony” including murder, rape, serious assaults, and sexual abuse of a minor. Robbers, burglars, fraud artists and thieves get mandatory detention too. (Oddly enough, aliens convicted of domestic violence offenses not rising to the level of a serious assault – perhaps the group who could do the most immediate harm if released to the streets – are still eligible for an immigration bond.)

But why isn’t the DHS rolling the little white vans and old INS buses to start picking up the criminal aliens let out by the federal bench’s “fix ‘96” sympathizers?

The four federal circuits slapped by the Kim case cover 22 states, Guam and the U.S. Virgin Islands. That’s a lot of criminal aliens.

EOIR Immigration Court bond hearings were held for these criminal aliens – wrongly, the Supreme Court now says. And, across the country, these criminal aliens have been paying immigration bonds and walking out of custody. The INS also set its own bonds for these criminals, which they gladly paid. And then disappeared.

DHS’ Tangeman, a former INS deputy executive associate commissioner for Detention and Removal, was recently quoted suggesting exactly that would happen:

''Illegal aliens that are wanted by the Bureau of Immigration and Customs Enforcement are going to be taken into custody at any location in the United States.'

''We're working to change the way that we do business.''

[“Captured deportees hard to turn in -- Feds try to clarify 'absconder' policy,” by Julia Malone - Cox Washington Bureau, May 4, 2003]

Oh yeah, Tony? So why isn’t the DHS now rounding up all the criminal aliens released on illegitimate immigration bonds from New Jersey to Virginia to Colorado and California?

My answer: Laziness. Cowardice. Lack of imagination. Lack of public pressure (which VDARE.COM hereby supplies).

And here’s a thought: if these lucky “fix ‘96” convicted criminal aliens are on the loose even though there is no legal authority for them to be out there, doesn’t that expose the federal government to liability if they hurt someone?

Maybe that will encourage the bureaucracy.

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.