June 19, 2006

Don’t Be Fooled! Staged Immigration Arrests Meaningless Because Of Rigged Deportation System

Let me get this straight: the immigration scofflaw roundups by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division this past week have solved the illegal alien and criminal alien problem overnight . . . and now it’s O.K. to start handing out another massive illegal alien non-deportation amnesty, right?

Wrong.

Contrary to Bush Administration’s DHS public relations spin on the story, I would wager that most of the aliens whose arrests were mentioned in the headlines aren’t going to be automatically "sent back" at all.

Because, unless the aliens already have final orders of removal outstanding against them, most if not all of them will be set up for a virtually endless series of hearings and appeals before the Immigration Court system in the Department of Justice’s Executive Office for Immigration Review ( EOIR), its appellate body, the Board of Immigration Appeals ( BIA), and the federal circuit courts of appeal.

As I’ve been writing for almost five years now, illegal alien and criminal alien roundups don’t end the story—as long as there is this litigation-based deportation system concealed behind the curtain.

I debunked the myth of "arresting aliens" as a panacea in VDARE.COM back in 2003, when I wrote Arrest, Yes—But Don’t Forget The EOIR.

And nothing has changed today.

Recently, when a VDARE.com reader asked me via e-mail about the mechanics of "sending back" all the freshly-arrested aliens, I took the opportunity to explain that it just might be wishful thinking.

The VDARE.com reader asked:

"I'm sure you know about these raids. Question: When ICE apprehends an alien with sex convictions and deports him, does he just get pushed through the gate at the border, or do we put the scumbag in the hands of federales on the other side? I don't want to believe that we just turn him loose on the unsuspecting folks to the south. Any info?"

I replied:

You forgot the EOIR Immigration Court hearings after the arrests, grasshopper! For further enlightenment, please re-read my Absolutely Definitive Essay. Remember that no one is "just sent back" anymore in the Novus Ordo Seclorum [translation: New Order for the Ages—note that: saeculorum is misspelled on the $1 Federal Reserve Note].

Aliens deported to Mexico are pushed through a gate going south in a group. They might be "inspected" by the Mexican side as they enter though. The Mexican authorities must do some kind of check, because they do kick back Hondurans or Guatemalans, for example, if they find out that they happen to be impersonating Mexicans.

Of course, they summarily send them back to the U.S. for further processing as aliens from their true countries of origin.

Another VDARE.com reader asked this week about what I’ve called “the mischief of Min Song”—the 2001 case by the EOIR’s appellate body, the BIA, which allows aliens to get away with changing their state criminal court sentences after-the-fact, in order to avoid a removal order in EOIR Immigration Court.

That fact that previously-convicted sex offenders may have been part of the recent well-publicized immigration roundups ties right in to this same mischief of Min Song. With the recent arrests, the race is on for these aliens to hire attorneys to modify their past convictions.

The VDARE.com reader wrote:

"I am most confused. Was the policy before hand to retain an alien's ‘conviction’ for immigration purposes, so that he could be deported, even if the ‘conviction’ was later cleared by the courts? How exactly were aliens getting the conviction cleared? Were they being found innocent? Were there constitutional problems? I don't understand the mechanics of this.

"Moreover, how did they later separate ‘conviction’ from ‘term of sentence’ if deportation is only applicable to aliens ‘convicted’ of a crime for which they are given a year or more ‘term of sentence’ in prison. I simply don't understand how things worked before this decision or what the reasoning behind this decision was."

I replied:

Check out the Min Song decision on the BIA web site [PDF]. They're talking about changing the amount of the sentence so it won't be ‘one year or more’ necessary for a ground of removability in the Immigration Act. By going back into state criminal court on a post-conviction motion (potentially years after the fact) and changing the sentence from 365 to 360 days, then PRESTO . . . the alien is no longer removable under certain Immigration Act charges in EOIR Immigration Court.

“Now that’s ‘mischief.’

The VDARE.com reader astutely retorted:

"So, let me get this straight. Every alien that the Border Patrol catches has to go through the immigration courts? They don't ever just catch a bunch of Mexicans and then take them straight back to the border? They really take each and every one of them to court?"

I replied:

Congratulations, you now know more about "the system" than all of the U.S. Senate, most of Washington, D.C., and especially the President of the United States himself.

For your advanced degree now—in my Absolutely Definitive Essay—you can learn about the rigging of the Immigration Act Section 235(b) "expedited removal" provisions (which were supposed to put more aliens into the trucks, and out of the EOIR Immigration Court).

Back to your question—now the only aliens just "sent back" are the ones that don't know the magic words "political asylum"; don't request an EOIR hearing (which is their "right"); and the Mexican nationals who agree to being "voluntarily returned" to their native country, which just so happens to be a few miles from where they were apprehended (if caught in a border area).

With minor exceptions, aliens apprehended in the interior of the U.S. will all go to the EOIR Immigration Court and its infamous "get to stay" proceedings.

The moral of the story: arresting illegal aliens and criminal alien residents is only the beginning. The EOIR Immigration Court system is the "rest of the story."

The solution for this madness: Congress should finally give summary removal a chance . . . by abolishing the EOIR litigation bureaucracy and setting up a system that (wait for it) ACTUALLY DEPORTS ILLEGAL ALIENS AND CRIMINAL ALIEN RESIDENTS!!!

Juan Mann [email him] is an attorney and the proprietor of DeportAliens.com. He writes a weekly column for VDARE.com and contributes to Michelle Malkin’s Immigration BLOG.