In general, Justice Neil Gorsuch had a solid first term on the high court, with the exception of one very faulty and dangerous immigration decision that likely undermines the benefits of his other good decisions. He joined the four liberals in Sessions v. Dimaya to create due process rights against deportation and nullify a criminal alien statute for the first time in our history, and as a result, one of the many dangerous criminal aliens who was released just critically injured a Colorado police officer.
Karrar Noaman al Khammasi was brought to Colorado Springs as a refugee from Iraq in December 2012, one of over 130,000 we have imported since the Iraq war, equally divided between Sunnis and Shias. Khammasi had an unpleasant way of expressing his gratitude and immediately racked up a lengthy criminal record. He was arrested for drunk driving, trespassing, assault, extortion, and illegally possessing a firearm over the course of four years, according to the Washington Times. He was ordered to be deported in 2016, but thanks to a pair of court rulings from the Tenth and Ninth Circuits, the Obama administration released him with the faint intent of reopening his case someday. He immediately racked up more criminal encounters with the police, including assault and firearms violations, culminating in a shootout with Colorado Springs officers last week. Officer Cem Duzel remains in critical condition after he was shot in the head during the encounter.
Lowlives like Khammasi should easily be deported after their first charge of assault or burglary, but just this past term, Neil Gorsuch sided with the four liberal justices in upholding the Ninth Circuit’s ruling that “crime of violence” is too unconstitutionally vague to use to deport someone. At the time, I explained that this wasn’t some semantic debate over reading a statute but rather a wholesale creation of due process against deportation and a radical departure from our history of how we treat deportations. Gorsuch and the liberals have now set a precedent to treat deportation as a criminal punishment (subject to real due process) rather than a mere act of sovereignty.
Hundreds of other violent criminals have been set free since the Dimaya decision. Recently, other courts have begun to treat deportations as a criminal punishment even more serious than prison time and have subjected all proceedings to even more robust applications of due process.
This is an existential threat to the country that must be addressed by Congress, in the upcoming budget bill if need be.
To begin with, it is extremely difficult to land a conviction against anyone because of the hundreds of ways criminal defense attorneys can taint evidence. Due process means something very different in 2018 from what it meant in 1789. Every year the courts are finding more ways to keep violent criminals on the streets. It’s bad enough to have a leaky justice system among American criminals, but until now we were able to easily get rid of criminal aliens simply because they have no right to remain in the country. Thus, even if we can’t convict them of the crimes, we can deport them automatically, in the case of an illegal alien, or pursuant to the conditions laid out in statute, in the case of a legal immigrant.
However, in recent years, courts have been illegally extending due process in the context of deportation proceedings. Furthermore, because it’s so hard to land a conviction, the accused often plead down to lesser crimes, failing to trigger the mandate for deportation. In the case of the Dimaya ruling, assaults and burglaries have been deemed by the courts as unsuitable to be included in a crime of violence. This was evident in the case in Colorado Springs because in each offense, the lawyers made sure to plead down to lesser crimes that would not trigger a deportation. According to the Colorado Springs Gazette, Khammasi was arrested for assault and weapons charges even after being released due to the court ruling, but still wasn’t deported because he managed to plead down.
Rather than maniacally focus on the need of illegal aliens, how about Congress actually focus on deporting criminal aliens, people we should all agree to remove from this country?
Congress must ensure the following:
As always, no legislative solution matters unless the lower courts are kicked out of immigration. Remember, last year, a Michigan judge invalidated the deportation of hundreds of criminal aliens from Iraq, some of whom served time for rape and even murder. Rep. Louie Gohmert’s bill, H.R. 5648, would make the decisions of the administrative judges final unless the plaintiff secures a direct appeal to the Supreme Court.
Finally, we need a national discussion on the purpose of the refugee program and why we continue to bring in so many Islamists from both sides of the Sunni-Shia civil wars, to the detriment of our security. Even after a hollow victory in Trump v. Hawaii, Judge James Robart is allowing a lawsuit to go through challenging the president’s policy of extra vetting for refugees from countries like Iraq.
Until immigration and the courts are addressed, we have no safety, security, or sovereignty.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.