An Open Letter To The Attorney General About Immigration Law Enforcement
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Dear Attorney General Ashcroft:

The time is fast approaching when you will surrender the Immigration and Naturalization Service – the pride of the Justice Department – to the new Department of Homeland Security. But take heart.

You still control the one agency within the Department of Justice that is the power behind the scenes in immigration law enforcement - and also the greatest obstacle to real immigration reform in the federal government: the Executive Office for Immigration Review (EOIR.).  The EOIR is the legal bureaucracy that regulates, and in effect cripples, the deportation of illegal aliens.

The truth about the EOIR comes out one alien at a time - in cases like sniper John Lee Malvo, criminal nanny Melanie Jeanbeaucejour, subway bombing plotter Gazi Ibrahim Abu Mezer, Los Angeles airport shooter Hesham Mohamed Hadayet and other terrorists. The picture is coming into focus. The EOIR bureaucracy really is a detriment to the homeland security mission of immigration law enforcement.

The most expedient strategy for handling the EOIR litigation bureaucracy comes from the playbook of General Colin Powell. It's the same plan he used for the Iraqi army in 1991 – "first we're going to cut it off, and then we're going to kill it."

The EOIR is already cut off.

It is an orphaned agency. Ensconced in Falls Church, Virginia, the EOIR oversees a nationwide Immigration Court system and a Byzantine appellate body, the Board of Immigration Appeals. With the INS abolished, the EOIR is a complete mismatch among remaining DOJ agencies — the FBI, DEA, U.S. Marshals Service and the United States Attorneys.

The EOIR's collection of government attorneys, some in black robes, some not, should be disbanded. The EOIR's resources and budget could be put to better use within the DOJ. There it could have an immediate impact in deterring illegal immigration and punishing border criminals.

Former EOIR and INS Legal Proceedings Program attorneys could be pressed into service as Special Assistant U.S. Attorneys. They could handle the immigration-related cases that just aren't being prosecuted in federal district court in great numbers — illegal entry into the United States (8 U.S.C. Section 1325), reentry after deportation (8 U.S.C. Section 1326) and alien smuggling (8 U.S.C. Section 1327).

Others might become special magistrates to decide the lowly cases federal judges don't want to hear.

All the tax dollars and brainpower devoted to the EOIR could be farmed out as "cheap labor" for the federal criminal courts and the United States Attorneys – to do the jobs these Americans don't want to do.

The abyss of EOIR litigation, with its redundant appellate process, squanders federal resources. Government attorneys haggle over "orders of deportation" while over 300,000 fugitives from those orders are still on the streets.

If the EOIR remains, the deportation bottleneck will go unreformed, despite the new Department of Homeland Security.

Abolishing the litigation log-jam of the EOIR is the only long-term solution to gaining control of the illegal alien and criminal alien threat to this country.

And right now, with the DHS in its formative stages, it is important for you to take the lead in averting a turf battle between the EOIR and the Border and Transportation Security division.

If EOIR immigration judges continue to release aliens from federal custody at an alarming rate, and DHS officers are not given the full expedited removal power of Immigration Act Section 235(b), the federal government will continue to be in the business of letting aliens into the U.S. while pretending to be deporting them. The revolving door of detention only facilitates invasion.

As Attorney General, you should consider giving these housewarming gifts to the new Department of Homeland Security: 

  • Revoke the authority of EOIR immigration judges to review immigration bonds under 8 C.F.R. Sections 3.19 and 236.

  • Begin the process to audit, review and abolish the EOIR.

Now more than ever, the federal government must detain and deport illegal aliens and criminal alien residents.

Eliminating "immigration court" and its endless appellate process is an idea whose time has come.

After 9/11, the failed EOIR system is an ill-conceived foible that America can no longer afford.

Juan Mann, a lawyer, is the proprietor of

January 12, 2003

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