Illegal Aliens? Guess What – A Solution Is Already On The Books.
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[VDARE.COM note: With this article, we welcome a new member of our Editorial Collective, Juan Mann. Juan is proprietor of — the only immigration reform web site exposing the federal immigration bureaucracy and the Executive Office for Immigration Review–EOIR. He tells us that he dedicates his work to the principle that one man's opinion can make a difference.]

In the terror of the beltway sniper episode lies another example of how immigration policy actions by executive branch bureaucrats have very real consequences for real Americans.

Columnist Michelle Malkin, author of the stunningly topical book Invasion, and reporters at the the Washington Times and elsewhere are rightly scrutinizing the Immigration and Naturalization Service, trying to find out who is responsible for releasing the illegal alien junior sniper, John Lee Malvo, in defiance of federal law governing apprehended alien stowaways.

But, in a broader sense, the federal government's decision to release the Jamaican illegal alien from INS custody on his own recognizance - without so much as a penny of immigration bond – was made years ago.

Malvo's release can be traced to a little-known but deliberate choice made by Clinton Administration Attorney General Janet Reno. She used the discretion Congress granted her in implementing the newly-minted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to opt for non-enforcement of some of the best immigration law enforcement provisions ever written - found in section 235(b) of the Immigration Act. As a result, key parts of these provisions remain dormant to this day.

Reno, along with then INS Commissioner Doris Meissner, chose not to enforce the streamlined removal provisions of section 235(b) to the fullest extent. They chose not to apply these provisions to a broader category of illegal aliens - which would have included sniper Malvo and his mother, regardless of whether they were stowaways or not.

Unfortunately, this Clinton Administration policy has been continued by the Bush Administration - with obvious consequences.

Section 235(b) of the Immigration Act allows the federal government to remove certain classes of aliens without giving them lengthy hearings before the alien-friendly Executive Office for Immigration Review bureaucracy of the Justice Department. [VDARE.COM note: Click here to get Juan's opinion of that!] Under section 235(b), aliens who present themselves for inspection at any point of entry can be detained and sent back where they came from if the inspecting officer believes that they have no proper documents - or if they have attempted to enter by fraud (by presenting false documents or lying to the officer).

Section 235(b) does include an abuse-prone process for determining whether aliens demonstrate a "credible fear" of return to their home countries (the first step toward applying for asylum). But it is still probably the most efficient law enforcement mechanism written by Congress for removing aliens quickly - a.k.a. throwing them out.

But there's a complication: Section 235(b)(1)(A)(iii) of the Act. This is the key to why sniper Malvo, and thousands of other illegal aliens like him, are not now covered by the expedited removal process.

This section gave the Attorney General the choice of whether or not to apply section 235(b) to all aliens discovered in the United States "who have not been admitted or paroled" (i.e. those here illegally) and who couldn't prove they had been in the U.S. for two years continuously.

The Attorney General has the option under the statute to designate these particular illegal aliens as being covered by section 235(b) – i.e. instantly removable without a hearing. But both Clinton's Reno and Bush's Ashcroft chose not to.

They let these illegals escape into the EOIR Immigration Court quagmire instead.

In short, under both Reno and Ashcroft, the INS has not been applying the streamlined immigration law enforcement tool of section 235(b) to the fullest extent possible. Section 235(b) has simply never been applied to recently-arrived aliens caught in the middle of the desert in southern Arizona, aliens caught in the act of climbing a border fence, swimming the Rio Grande river, or wading onto shore in southern Florida.

If these illegal aliens happen to be Mexican nationals crossing from Mexico, most are given a "voluntary return" home by the Border Patrol. But, Mexican or not, if the illegal aliens want to contest their removal, they can now avoid section 235(b) removal and proceed instead to formal hearings before an immigration judge - with possibility that they will be released from INS custody and continue their journey into the United States.

Additionally, since the 1996 Act became law, the INS has never applied section 235(b) to smuggled aliens who enter illegally and successfully make it to their destinations inside the U.S. – whether in Chicago, Los Angeles, Detroit, Atlanta or even Bellingham, Washington, where Malvo was apprehended.

This class of recently smuggled aliens, if they are apprehended within two years of their arrival, could all be rounded up and given expedited removal a.k.a. thrown out, by immigration officers under Section 235(b). But as the Clinton-Bush policy stands now, these aliens, including sniper Malvo, get the whole enchilada of EOIR Immigration Court hearings and the chance to be released from custody during the process.

From the little information the immigration bureaucracy has released so far, all signs suggest that Malvo and his mother were both active EOIR Immigration Court cases at the time of the Beltway shootings, even though they were both apprehended by the Border Patrol in December, 2001.

But if the Attorney General had made it government policy to apply section 235(b) to cover all permissible classes of illegal aliens, Malvo would not have been released to the streets. Period. End of story.

Sniper Malvo would not have had Immigration Court hearings in the state of Washington. He would have been given expedited removal by immigration officers as an alien without documents under Section 212(a)(6) of the Act.

He would not have shot American citizens.

So why hasn't the Attorney General applied section 235(b)(1)(A)(iii) of the Act to as many illegal aliens as possible, and put section 235(b) to work doing what Congress intended it to do? Lack of political will?  Lack of personnel? Inertia?

Whatever the reason for not acting in the past, however, it's now time for the Bush Administration and Attorney General Ashcroft to do the right thing.

They should use all the laws on the books to their fullest extent.

Unleashing section 235(b) would be a great first step for the federal government do its duty and deport illegal aliens.

Ironic silver lining: Releasing this particular stowaway and getting him into Immigration Court may have exposed the Justice Department to massive liability.

Plaintiffs' lawyers might figure out that the INS violated section 235(a)(2) of the Act – and, under Section 235(b)(1)(A)(iii) of the Act, perpetrated a dangerous policy of institutionalized non-enforcement

Attention Howard Foster!

November 05, 2002

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