Ninth Circuit creates new right for illegal aliens not to be deported

· June 17, 2019  
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Ninth Circuit courthouse
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Every day, the liberal courts remind us that we don’t have a problem with the immigration laws, but rather with lawless judges “repealing” the laws that were already passed by Congress. If the Trump administration continues to assert that the laws are the problem rather than the lower court judges, there is no law Congress could possibly pass to fix what is clearly a separation of powers problem.

On Thursday, a three-judge panel of Democrat appointees on the Ninth Circuit created Fourth Amendment rights for illegal aliens in the context of deportation proceedings, a huge break from an uninterrupted stream of case law.

In Perez Cruz v. Barr, the court deals with a raid conducted by ICE agents in 2008 on Micro Solutions Enterprises, a California-based printer cartridge maker. ICE arrested approximately 130 illegal aliens. Given that illegal aliens have no right to be in America, ICE can detain in order to deport any illegal alien without any search warrant, as long as the it is not during criminal proceedings. In this case, ICE actually had a search warrant for “employment-related documents located at the factory where Perez Cruz worked,” which should have strengthened, not weakened its case.

Nonetheless, the court ruled on Thursday that once ICE is at the scene to execute the warrant on the documents, agents are “not permitted to carry out preplanned mass detentions, interrogations, and arrests at a factory, without individualized reasonable suspicion.”

It’s hard to overstate how radical this decision is. “This is one of the more absurd immigration rulings in some time,” said Dale L. Wilcox, executive director and general counsel of the Immigration Reform Law Institute, in a comment to CR. “It further erodes the executive branch’s authority to enforce immigration law under the plenary power doctrine and treats immigration matters as criminal cases rather than the administrative cases they actually are. The result of this will be more handcuffs put on ICE in their ability to protect American citizens from lawlessness and often dangerous aliens.”

Indeed, this distinction between administrative cases of deportation to enforce our sovereignty and criminal cases where government is pursuing prosecution of illegal aliens has been settled for years in the Supreme Court. In Turner v. Williams (1904), the court said that obviously the executive branch can’t “declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property” without “that the fact of guilt should first be established by a judicial trial.” But simple “detention or temporary confinement as part of the means necessary to give effect to the exclusion or expulsion was held valid.”

The Supreme Court further stipulated emphatically, “No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein.”

In 1952, the court said “it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government’s power of deportation. … It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities,” Harisiades v. Shaughnessy (1952).

In 1893, the Supreme Court made it clear that the power to deport is just as unassailable as the power to exclude so long as the alien has not been naturalized. “The power of Congress to exclude aliens altogether from the United States or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications,” Fong Yue Ting v. United States, 149 U.S. 707 (1893).

For a judge to now say that ICE must get a warrant for every deportation is to abolish our laws, sovereignty, and 130 years of the judicial branch’s own precedent. Then again, just a few months ago, the Ninth Circuit created a habeas corpus right for endless lawsuits against deportations, despite multiple statutes barring the courts from hearing such cases.

If you’re wondering how an illegal alien gets to stay in the country for 11 years to lodge a lawsuit against Americans, this has become commonplace. Twelve years after an immigration judge ordered an El Salvadoran woman deported, she still remains in Frederick, Maryland, while she sues Frederick sheriff’s deputies for enforcing immigration law. Meanwhile, she has had three American-born kids since then, all the while in defiance of a deportation order.

The inmates are literally running the asylum. Illegal aliens breaking into our country are now seeking damages against our government for “extreme and outrageous” harms and for being separated from their children, even though every American criminal is separated from his or her child when prosecuted. The New Mexico governor is suing DHS for essentially not serving as travel agents for the illegal aliens once they are released. Just last week, the D.C federal appeals court ruled that illegal alien teens can come here to access abortion, demanding that we help kill their babies while granting automatic citizenship to the ones they choose to let live. Yet other localities can’t get standing to sue the federal government for releasing them in the first place and for not protecting Americans, as required by the foundations of the Immigration and Nationality Act.

The problem is that every one of these Ninth Circuit decisions is allowed to stand for years and brings irrevocable harm on our sovereignty, security, and society before the Supreme Court takes up the appeal. Yet, perversely, as I noted last week, just two percent of “family units” coming to the border now are entering in California, and just 17 percent are entering within the jurisdiction of the Ninth Circuit. Why should one court be allowed to subvert the most settled area of law for the whole country in a game of “catch me if you can” with a slow-acting Supreme Court?

Even many conservatives in Washington are making a mistake when they suggest the border crisis is a result of ‘Congress failing to act’ on the border. What laws could we possibly write that are stronger than the ones written already that are ignored by the executive branch and violated by the judicial branch? If we keep agreeing that courts have such power, then no new statute can rectify the problem. The law says unambiguously (8 U.S.C. § 1357(a)(1), (5)(A)-(B)) that “any” immigration officer “shall have power without warrant” “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” or arrest even on criminal offenses “if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest.”

We don’t have an immigration law problem. We have a liberal judge problem. This case is just another reminder that until the Trump administration reminds the courts of their “impotence,” as Justice Scalia predicted in 2015, we have no sovereignty as a nation.

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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.