“The order of deportation is not a punishment for crime. It is not a ‘banishment,’ in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process or law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application.” ~Fong Yue Ting v. United States, 1893
It’s better late than never. Twenty-three years after Congress nearly unanimously passed the toughest sovereignty law ever, the Trump administration is looking into finally implementing it. No new laws are needed.
How is it that, in 1954, President Eisenhower directly and indirectly removed over one million illegal aliens in just a few months without any lawfare, yet now every deportation gets litigated?
In 1996, after the number of illegal aliens in the country became intolerable (following the failed 1986 amnesty), there was a bipartisan consensus in Congress that we couldn’t adjudicate ourselves out of an invasion. Unlike in criminal cases, illegal aliens are not entitled to any due process to remain in the country if all we want to do is deport them rather than criminally prosecute them. Therefore Congress passed a law mandating that all illegal aliens be deported without any review by an immigration judge unless the illegal immigrant can prove to the “satisfaction of an immigration officer” that he has resided here for two consecutive years (8 CFR § 235.3(b)(1)(ii)).
As I noted before, the Clinton and Bush administrations never implemented the law. They only authorized expedited removal for those caught within two weeks of infiltration and only within 100 miles of the border. And even then, it was practically only used in a small percentage of cases. Millions of illegal aliens have been accorded a degree of due process explicitly denied by a consensus of Congress. The Trump administration is now looking into implementing the full extent of the law – anywhere in the U.S. within two years of entry.
The law requires the DHS to publish an official notice in the Federal Register for such a change. It has already filed notice to do so. The key point is that Trump is not inventing anything new; he is merely implementing the law that his predecessors ignored.
This decision, which I called for in April, will have a dramatic effect on protecting the American people both at the border and in the interior.
At the border, anyone not claiming asylum would be immediately deported. Even those claiming asylum, as I noted in April, can be immediately rejected by DHS if their claims are bogus, and they can be placed right back into expedited removal without the need for the cumbersome immigration court process.
This decision is also very important for many of the illegal aliens who remain in the country. Many of the illegal aliens who have come under this latest wave from Central American will soon pass the two-year limit of expedited removal. The difference between getting them out now vs. going through the process of an immigration court is the difference between night and day. Because the courts are so backlogged, they often release these flight risks on bond. Many of them, including criminal aliens, break their terms of bail, but wind up remaining in the country indefinitely. This is how there are over one million illegal aliens with final deportation orders and another 1.4 million with deportation orders that are still being appealed.
Drawing a line today and finally implementing expedited removal on the front end will preclude this endless lawfare and the ability of the immigration law profession to find infinite excuses for dangerous aliens to remain in the country. There is no reason anyone should be entitled to such due process when we merely want to preserve our sovereignty and aren’t trying to imprison them. But thanks to lawfare, people like Miguel Angel Martinez-Menjivar, a Salvadoran national charged with raping a 14-year-old girl in Maryland and breaking into her bedroom window, is now out on bond from ICE’s custody. Were we to immediately deport anyone who can’t demonstrate his residence here for two years, it would preclude a huge amount of this needless public safety problem.
On Friday, acting USCIS Director Ken Cuccinelli announced that several of the illegal aliens caught in last week’s mass MS-13 indictment were either ordered removed or were applying for various statuses. They were allowed to remain in the country to commit such heinous crimes because we allowed the lawfare train to get rolling rather than complete their expedited removal.
How strong is expedited removal in terms of removing the officious courts from the process? As the Congressional Research Service says regarding the lack of judicial jurisdiction, “The jurisdictional bar applies to claims that an immigration officer improperly placed an alien in expedited removal proceedings; challenges to an immigration officer’s credible fear determination; arguments challenging the procedures and policies implemented by DHS to expedite removal; and claims contesting the expedited removal order itself.”
In other words, Congress already gave DHS all the tools it needs to stop this at the front end.
Watch for the Left to howl, whine, and name-call over this decision. But guess what? This law passed the Senate unanimously by voice vote in 1996 and was signed by President Bill Clinton. The final conference bill passed the House 370-37. Nancy Pelosi, Chuck Schumer, Dick Durbin, Steny Hoyer, and James Clyburn, Democrat leaders who were all in the House at the time, voted for the bill. Even Nancy Pelosi, who was radicalized earlier than the others, still said on March 21, 1996, “I agree with my colleagues that we must curb illegal immigration responsibly and effectively.”
Dianne Feinstein, Patrick Leahy, and Patty Murray actually voted for the original Senate bill, which was much stronger before it was gutted in conference. Even the stronger bill passed with 72 votes in the Senate.
Two decades later, the Trump administration is finally implementing a universal promise to the American people. There can be no complaints.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.