How much longer are we going to allow lawless acts of past administrations and lower courts to flip immigration law on its head and act as if the laws themselves are the problems? Our immigration laws aren’t broken, it’s just that carefully selected lower courts violate those laws as well as Supreme Court precedent, plus the executive branch has refused to enforce many laws that haven’t even been tampered with yet by the judges. The American people never voted for the system in place to today. In fact, the people’s representatives voted for the opposite.
Last week, near Philadelphia, yet another alleged illegal alien child molester was arrested on charges of attempting to lure minors. Twenty-five-year-old Eudy Najera-Arita, an illegal alien from Honduras, was arrested in Delaware County, PA, in connection with two luring attempts of minors and exposing himself to one of the girls. As has been my practice in these cases, I reached out to Immigration and Customs Enforcement to get his immigration history. I asked if Najera-Arita was previously deported and reentered unknowingly or if he had been in this country undetected until local police picked him up on April 9. To my shock, it was neither. He was known to immigration officials, but was indeed never deported.
“Eudy Najera-Arita, 25, an unlawfully present citizen of Honduras, was arrested Nov. 28, 2012, by U.S. Border Patrol (USBP) as he attempted to enter the United States illegally,” said an ICE official on background. “On May 16, 2016, an immigration judge administratively closed his case as he was not considered an enforcement priority at the time.”
Here we have a single adult illegal alien who was apprehended by Border Patrol and was never deported. Somehow, he got into the immigration court docket rather than being removed immediately and had his case closed and was released, as was a common practice by immigration judges during the Obama administration.
Many of you might be wondering, why is it that, even aside from those claiming asylum, it seems like it takes years upon years to deport a single illegal alien, including the new ones who come here. Intermittently, “immigration judges” seem to have the power to block deportations. Or do they?
There is this dangerous perception that somehow our laws declared open borders or at least granted endless rights to avoid deportation until and unless we muster the votes to change the laws. The reality is the opposite. Our laws in place since 1884, revamped in 1952, and strengthened in 1996, were designed so that almost every individual who enters this country without proper documentation should be removed immediately without any ability to litigate in most circumstances. It’s about time we follow the law, rather than allow the lawlessness of previous administrations, to prevail.
In 1996, sensing a growing trend of litigation against deportations, Congress clarified unambiguously in The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA 96”) that any illegal not seeking discretionary relief of asylum must be immediately placed into “expedited removal” unless he or she has a claim of being a citizen or holding a green card. Section 235(b)(1)(A)(i)(iii) of the Immigration and Nationality Act stipulates that whenever an immigration officer determines that an alien is inadmissible, “the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.”
That is to say that not only is every illegal alien ineligible to access the courts, they are not even entitled to a hearing in front of an administrative immigration judge. Period. So right off the bat, putting aside the debate over credible fear and asylum law, every other illegal should be immediately deported. A total of 30,555 single adults were apprehended at the border in March of this year plus another 6,168 were deemed inadmissible at points of entry, very few of them having even asserted a bogus credible fear claim. Why are they not all being deported within hours?
But it goes deeper than that. How far does expedited removal go? Congress intended for the executive branch to use it for every single illegal not only caught at the border, but caught in the interior within two years of entry. Yes, you heard that right. A unanimous body of the Senate, backed by the signature of then-President Bill Clinton, wanted to ensure that illegal immigration is, you know, illegal. They are entitled to no due process against deportation (only for criminal charges that threaten them with imprisonment) other than what Congress gives them through statute. And in statute, Congress gave them nothing for the first two years of their illegal status. [Knauff v. Shaughnessy, (1950)]
What if they try to litigate their status as being here for two years? Existing regulation [8 CFR § 235.3(b)(1)(ii)], pursuant to the plain text and unambiguous intent of the statute, is abundantly clear that the burden of proof is on the alien to establish “to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the 2-year period.” Again, who gets to decide? “The Commissioner [now, the ICE Director] shall have the sole discretion to apply the provisions of section 235(b)(1) of the Act, at any time, to any class of aliens described in this section.”
Congress wanted to avoid the very judicial nightmare we have been facing the last number of years even before the bogus asylum surge. Congress wanted illegal aliens to have no access to courts or administrative judges. While there was disagreement in Congress at the time about a parallel proposal to limit legal immigration, everyone agreed upon the goal of ending illegal immigration once and for all. The original regulation promulgated by the Department of Justice reflects this goal. So, what happened? How come we barely remove anyone without a legal fight, even when they are not asylum-seekers?
Like every aspect of the ’96 law, including blocking in-state tuition for illegals and ending visa overstays, it was never implemented. The Clinton administration rarely used expedited removal outside of ports of entry. The Bush administration, while making a big deal about expanding it to between points of entry, still bastardized the entire intent of expedited removal, and through regulation on August 11, 2004, limiting its use only to those caught within 100 miles of the border within just 14 days of entry. This has since become the ‘ceiling’ for enforcement, and we rarely even apply these standards fully.
Isn’t it time to restore the real law? This administration can simply publish a new regulation in the Federal Register with a 90-day notice period to authorize ICE to remove all aliens anywhere, any place, any time. The only limitation that would allow apprehended aliens to go before an immigration judge for a hearing is if the alien can prove he was residing in the country continuously for two years. Any illegal alien in the interior who cannot provide such proof, and certainly anyone coming in at the border now, should be removed immediately without any judicial review or access to administrative judges. As the existing law says, “Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.” [Section 235(b)(1)(A)(iii)]
The only other wrinkle is that, under current practice, Border Patrol is mainly responsible for expedited removal, which is one reason why they’ve been limited to removal within 100 miles of the border (although that includes all land and sea borders, which is a large area, including many metro areas), which is their operational jurisdiction. To truly apply expedited removal everywhere, ICE would have to assume control over much of the program, which they have full authority to do under existing law.
That is the LAW that was passed by a unanimous Senate and it exudes common sense. For someone who has established ties to this country for two years, Congress intended to offer a modicum of due process in administrative courts, although they were not constitutionally required to do so. But anyone else should be out of here like anyone who trespasses on your property.
As for those who assert credible fear, we have noted time and again, that statute is clear that none of these people qualify. The sole determination of whether these inadmissible aliens qualify for relief from expedited removal based on credible fear claims are in the hands of the DHS secretary. Once that claim is denied on the spot, these illegal aliens are just like everyone else and placed into expedited deportation and there is no inherent judicial review of that deportation.
The only caveat is that those rejected from a credible fear claim can ask for review by an immigration judge of the actual denial of credible fear. But statute mandates that this be done ideally within 24 hours and at most within 7 days. Also, they SHALL be detained during that week [8 U.S. Code § 1225(B)(iii)(IV)] and cannot be released. The sole discretion for guidance in dealing with initial interviews and appeals is up to the DHS secretary and the attorney general. They have the power to shut this down. Beyond that, U.S.C. § 1158(b)(2)(C) states, ”[t]he Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).”
Thereafter, they must be deported without any access to the courts. The only petition they can make to the court is that they are being removed without an official expedited removal order, they got the wrong man, or the deportee is in fact a citizen. 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.”
Thus, we see that once placed in expedited deportation, no denial of credible fear claims can be second guessed after a brief appeal to a DOJ judge. None of this requires passage of a new law, rather the administration expanding expedited removal with a new regulation to automatically cover everyone under existing law.
This entire process is operating under the normal governing statutes assuming we continue to offer asylum. Of course, the president has unlimited inherent Article II and delegated statutory authority to shut down all forms of immigration requests and deny entry to anyone at any point [no matter how they stepped foot on our soil] and return them for such period as he deems in the national interest [8 § U.S.C. 1182f]. Denial of entry is unnegotiable in terms of court jurisdiction, even if one believes the courts could get involved in deportations of illegal aliens in general. By definition, if the Constitution and statute vest the president with the power to deny entry, as affirmed by the Supreme Court just last year, no alien could have obtained lawful entry contrary to that order even if they physically step foot on our soil. As the Supreme Court said in 1982, “An alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” [Landon v. Plasencia]
This analysis doesn’t even factor in the number of statutes in 8 U.S.C. 1182 that downright make almost all these aliens inadmissible on the grounds they are or will become a public charge or have a communicable disease of public health significance.
Nor does this factor in the reality that many of these migrants are traveling in belligerent caravans violent enough to even chase off the Mexican authorities. If this is not an invasion, I’m not sure what is. In addition, the cartels are weaponizing the migrants for military-style strategic surveillance and infiltration of our border. The notion that we could ever adjudicate ourselves out of a gradual invasion through migration was swatted down by Congress in 1996. They never envisioned this degree of paralysis from a direct invasion orchestrated by cartels. There is absolutely nothing that can stop a president from shutting down migration and processing just on that account alone because it’s quintessentially within the province of his powers of national security and foreign affairs.
We have reached the point that if anyone is advocating simply for Congress to “fix” laws that have been abused and are not broken, rather than addressing the executive and judicial malfeasance against existing law, there is frankly nothing Congress can pass that will ever solve the problem more than it did in 1996.
Just five days after taking office, President Trump issued an executive order (sec.11c) directing his DHS secretary to properly follow the statutory framework of expedited removal. Over two years later and over 1.2 million additional illegal aliens, we are still waiting for the fulfillment of the 1996 promise. With a new regulation, lawfully binding under current law, almost all of those people can be removed without any intervention from the courts. If it ain’t broke, don’t fix it.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.