TRUE Enforcement and Border Security Act of 2005
made its official debut in the House of Representatives
as H.R. 4313 last week, ending the suspense created
following its unveiling by Congressmen Duncan Hunter
(R-CA) and Virgil Goode (R-VA) as "the border fence
The text of H.R.
4313 has yet to appear on
Thomas. But a VDARE.COM reader kindly sent me an
advance copy [PDF]
after reading my
Enforcement live up to its advance billing?
Well, compared to
the amnesty-filled garbage legislation now in
Congress—whether packaged as "temporary worker"
and "guest worker" programs—the 189-page
collection of items in H.R. 4313 is certainly much
closer to what's needed.
TRUE Enforcement is
the antidote to the Bush Administration's Big Lie that
another massive illegal alien non-deportation scheme and
foreign worker importation program is necessary to make
America more secure. This
propaganda was peddled most recently by Department
of Homeland Security (DHS) Secretary Michael Chertoff to
Senate Judiciary committee and to his
own employees. In contrast, TRUE Enforcement looks
like a knight in shining armor.
But what is
"true" immigration law enforcement anyway?
immigration law enforcement is
deporting them, and making sure they stay out.
That means summary
removal, not perpetual federal litigation. That means
officers with guns removing as many
criminals as quickly and efficiently as possible.
This past July 4, I
wrote about a "look-out-the-window" reality check
for judging Congressional immigration proposals. It
applies now more than ever:
"Until the time comes
when Americans look out of their windows one morning and
trucks, buses and trains filled with
illegal aliens and
criminal alien residents streaming outbound
toward the border, or to the nearest
airport out of the country . . . ONLY THEN will we
know that something is being done.
"But until that day
comes, Americans can know with absolute certainty that
the federal government has done NOTHING to halt the
illegal alien invasion of these United States . . . But
until then, you'll know that all of the "solutions"
emanating from Congress—including the ghastly specter of
another "amnesty"—are all just a lot of hot air."
So does TRUE
Enforcement actually deport aliens?
Answer: Yes . . .
well, some of them.
There are some
summary removal provisions in the bill. But
unfortunately, there are other parts of the bill that
work in the exact opposite direction, expanding and
perpetuating the worst elements of the federal
immigration litigation bureaucracy.
For example, the
bill features three excellent summary removal amendments
to the Immigration and Nationality Act (INA) that take
jurisdiction away from the Immigration Court
bureaucracy of the Department of Justice's Executive
Office for Immigration Review (EOIR).
And that's a good
But the bill then
turns right around and authorizes the hiring of at least
250 more government attorneys—including
50 EOIR immigration judges to fuel the immigration
litigation factory even further!
Remember there's an
important distinction among government lawyers. Hiring
Assistant United States Attorneys to actually
prosecute immigration crimes and put criminal
aliens in federal prison (for crimes such as
reentry after deportation,
alien smuggling, or for the newly-criminalized
"illegal presence" grounds in the bill's Sections
503 and 504) is GOOD.
hiring even more EOIR immigration judges? . . .
internationalist faction in Congress would love to
hack TRUE Enforcement to pieces. But there is hope.
The last two major
immigration bills from 1996 (the AEDPA and IIRAIRA
bills) actually established the important concepts of
Expedited Removal and
Reinstatement of Removal for the first time.
bills—America's last attempt at real immigration law
enforcement—passed both the House and Senate and were
signed into law by none other than President Clinton.
So stranger things
have happened, folks. A groundswell of popular support
"the border fence bill" could cause it to carry.
is my section-by-section highlights of the
TRUE Enforcement and Border Security Act of 2005
(H.R. 4313) . . . which just might become law.
512 amends INA Section 235(b) once and for all to
galvanize the DHS to actually implement the authority
granted by Congress in 1996 to enforce these same
provisions. This giant step for summary removal will
hopefully end the nearly ten years of foot-dragging and
sabotage of INA Section 235(b) by the executive
agencies. Under this section, any illegal alien found
anywhere in the United States within five years of entry
can be summarily removed by DHS immigration officers
without the alien entering the
deportation black hole of Immigration Court hearings
before the Department of Justice's Executive Office for
Immigration Review (EOIR) and the federal appellate
Juan's comment: Finally!
Expedited Removal of Criminal Aliens (ERCA)—Section
513 amends the existing "administrative removal"
provisions of INA Section 238 to set up another EOIR-free
and litigation-free summary removal avenue for aliens
convicted of an "aggravated felony" under
immigration law, as well as
alien firearms violators, and assorted terrorists
The new "ERCA" is music to my ears! But why not
extend "ERCA" to all criminal alien categories
listed in INA Section 237(a)(2) . . . notably drug
crimes and "crimes involving moral turpitude."
How about it, Congress?
Reinstatement of Removal—Section
514 amends the existing INA Section 241(a)(5) process
for allowing immigration officers to summarily remove
aliens who have been previously removed, deported or
excluded from the United States. The beauty of
"reinstating" a previous order against an alien lies
in (as always) the bypassing of EOIR and federal court
litigation in this summary process. These TRUE
Enforcement amendments cure the mischief caused by the
Ninth Circuit Court of Appeals which took it upon itself
invalidate this section of law recently.
Unfortunately, these amendments only make reinstatement
of removal effective for aliens presenting themselves
for inspection at a Port of Entry (POE), rather than for
all previously-deported aliens found again within the
United States. By limiting reinstatement only to the POEs, this most efficient law enforcement tool CAN'T be
used for previously-deported aliens encountered again
within the United States, especially in local jails and
state prisons. But it would sure come in handy to ensure
summary removal of these previously-deported aliens,
just in case the bill's reinvigorated expedited removal
and ERCA provisions don't happen to apply to a
particular illegal alien.
Institutional Removal Program—Section
223 uses the heavy hand of the federal government, as
well as the
carrot of federal funds, to make sure that
deportable illegal aliens and resident aliens detained
in state and federal prisons are turned over to the DHS
And that's a good thing, since finding out which
convicted criminals are deportable aliens is a lot
easier when they're
locked up rather than out on the street. This
provision is vital for the expedited removal of criminal
aliens in the bill's Section 513.
Citizen standing to sue—Section
233 grants a
private right of action in federal district court
for citizens to
sue, sue, sue[!!] to enforce federal, state and
local cooperation with immigration law enforcement.
So when your local city council decides to declare an
illegal alien sanctuary zone, the treasonous local
officials will finally be forced to defend themselves in
federal court, or risk the loss of federal law
enforcement money for their fiefdoms.
Three kinds of
511 amends INA Section 240B to create a new framework
for allowing many deportable aliens to leave the United
States within 90, 60 or 45 days without going through
the entire EOIR Immigration Court hearing and appeal
process. The new voluntary departure options force
aliens to make a decision on whether to leave
voluntarily before going to a full EOIR "merits
hearing" with an immigration judge. The amendments
limit the alien's options so they won't be able to just
take voluntary departure anyhow, years after presenting
a losing claim for relief in EOIR Immigration Court. The
new framework also gives complete control over setting
voluntary departure bond amounts (so the aliens will
actually leave) to DHS officers, not EOIR immigration
good! During the glory days of immigration law
enforcement during the
Eisenhower Administration, voluntary returns (in
lieu of hearings) played a major role in actually
deportable aliens out of the country.
507, 508 and 509 of TRUE Enforcement look like a
reincarnation of "The Alien Gang Removal Act of
H.R. 2933 — introduced in the House on June 16 by J.
Randy Forbes (R-VA). I've already
reviewed the bill this past June, and provided
suggestions for improvement. One particular
highlight of the gang provisions is that TRUE
Enforcement Section 508 amends the mandatory immigration
detention provisions of INA Section 236(c) to include
suspected gang members who are foreign nationals.
Bravo! The more deportable aliens covered under
mandatory detention, the merrier! Though "gang
membership" will be difficult to prove, the gang
bill will be an excellent law enforcement tool for
drug cartel foot-soldiers and their
street gang accomplices off of the streets and
hopefully out of the country.
Detaining aliens on obsolete military bases—Section
221 authorizes the creation of 200,000
bed spaces for immigration detention and removal
from among 20 military bases previously slated for
closure by the federal government.
Now that's one helluva good idea!
bracelets for aliens?—If
there are going to be 200,000 new beds available for
ICE Detention (in Section 221),
why bother with the ridiculous non-detention schemes
of Section 517? . . . "to study the effectiveness of
alternatives to detention, including electronic
monitoring devices and intensive supervision programs,
in ensuring alien appearance at court
you go again . . . EOIR Immigration Court!] and compliance
with removal orders."
Dueling Immigration Bond provisions—Sections
312 and 518 in the
review copy of TRUE Enforcement [PDF] that I
received offer different, conflicting amendments to the
same provision of law, namely the immigration bond
procedures of INA Section 236(a)(2). Personally, I
prefer the Section 312 version, which raises the minimum
immigration bond amounts from $1,500 to $10,000 for all
aliens. Section 518 offers a geographic limit (100 miles
from a border) and an exception for Mexicans (as well as
all those border-jumping
Canadians, too) and only raises the minimum bonds to
$5,000. Which one will it be, Congress?
Illegal alien defined—With
all the precision a physicist could muster, Section 222
of TRUE Enforcement creates a new INA Section 240D,
which defines the term
illegal alien in the context of procedures for
arrest and detention of immigration violators by state
and local law enforcement.
Criminalizing illegal presence—Section
503 and 504 criminalize the illegal presence of aliens
who have failed to comply with the terms of their
immigration status, including those who have over-stayed
non-immigrant visas. Previously, only the offense of
illegally entering the United States was punishable as a
federal crime prosecuted in federal district court by
U.S Attorneys. Now, visa over-stayers can be charged
with a federal crime too. But since so few of the
millions of illegal aliens in the United States are
actually prosecuted in federal court anyhow, will any
aliens really be prosecuted for these new crimes?
202 allows the hiring of at least 250 more government
attorneys, including 50 new positions for United States
Attorneys to be hired for prosecuting
immigration-related crimes in the federal district
courts. Unfortunately, the other 200 new lawyers in the
bill only serve to feed the federal immigration
litigation bureaucracy, including 50 new EOIR
Immigration judges, 100 new attorneys assigned to the
DHS Immigration and Customs Enforcement (ICE) division
to appear in EOIR Immigration Court, and 50 new
attorneys in the Department of Justice's Office of
Immigration Litigation (OIL) to defend the mass of
opportunistic immigration litigation in the federal
circuit courts of appeal that was created by the EOIR
Immigration Court process in the first place!
Remember, folks: more summary removal (that is, avoiding
the EOIR system altogether) means less federal
litigation. It's high time to stop the immigration
litigation madness, rather than fueling it.
Rolling illegal alien amnesty continues—Section
515 attempts to curtail the ridiculous rolling amnesty
of INA Section 240A(b)
"cancellation of removal for certain non-permanent
residents" by applying the inadmissibility grounds
of INA Section 212(a)(9)(B) which bar certain aliens
from the relief if they were previously removed,
deported, or otherwise returned by immigration
authorities. Unfortunately, because of the way these
particular inadmissibility grounds are constructed, the
minions in the private immigration bar are free to
argue that the INA Section 212(a)(9)(B) bar is
inapplicable to their previously-removed alien as long
as the alien is not "seeking admission within three
Yes, but regardless of this loophole, the scandal
remains as to why the earned "green card"
provisions of INA Section 240A(b) "cancellation of
removal" are allowed to persist in the Immigration
Act at all. This section of law rewards illegal aliens
with a brand new "green
card" if they successfully hide in the United
States for ten years, and have a spouse, parent or child
who is a U.S. citizen or lawful permanent resident. In
other words, illegal aliens can proudly
emerge "from the shadows," turn themselves in
to ICE, and apply for non-resident "cancellation of
removal" if they successfully evaded immigration
authorities for ten years, and have a qualifying
relative—even though they may not be eligible for an
immigrant visa petition through that person for years.
This situation is a textbook example of illegal aliens
cutting ahead in the visa line to enter the U.S.
illegally and being rewarded with a "green card"
for their efforts. Allowing the EOIR-administered INA
Section 240A(b) rolling amnesty to persist—thus
providing more incentives for illegal aliens to hide
from the authorities—is anathema to "true"
immigration law enforcement.
- No U.S. citizenship for [some] alien jackpot
babies—Section 322 unveils the long overdue
abolition of birthright United States citizenship by
clarifying the 14th
"subject to the jurisdiction" of the United
States for purposes of defining citizenship and
nationality at birth under INA Section 301. In other
words, illegal alien and non-immigrant visa-holding
mothers can no longer confer United States citizenship
on their children simply by giving birth to them on
United States soil. TRUE Enforcement also brings back
the marital distinctions of birthright citizenship by
allowing either married parent with
permanent resident status or U.S. citizenship to
pass on U.S. citizenship to their child only if their
born in wedlock on U.S. soil. So illegal alien
mothers can now give birth to a future U.S. citizen ONLY
if they are already married to a U.S. citizen or to a
lawful permanent resident alien (that is, if the illegal
alien mother has the possibility of adjusting status in
the future through an immigrant petition). However, this
framework creates the situation where a married couple
of an illegal alien mother and permanent resident alien
father—as well as a married couple of resident
aliens—can give birth to a child on U.S. soil and still
confer U.S. citizenship . . . a status which neither
of them currently possess. Jackpot!
- Federalization of birth and death
records—Section 443 calls for the federalization of
birth certificate standards nationwide by giving as
yet undetermined regulatory authority to the DHS and
Health and Human Services (HHS) Secretaries. As with the REAL ID Act's
federalization of state driver's license standards, this
open-ended power consolidation by the federal government
will soon start the phones ringing at the office of
Rep. Ron Paul from Texas. Rep. Paul had objected
strenuously to the passage of the
REAL ID Act (H.R. 1268) last May because of the
bill's federalization of license standards that have yet
to be determined by the DHS Secretary. And by the way,
Section 433 of TRUE Enforcement allows the HHS Secretary
to create a nationwide "electronic birth and death
registration system" with "a common data exchange
protocol" in order to allow "the implementation
of electronic verification of a person's birth and
But doesn't "true" immigration law
enforcement entail keeping track of aliens, not U.S.
Rep. Paul, call your office!
Juan Mann [send him
email] is a lawyer and the proprietor of