But detaining and releasing aliens like the young Jamaican and his mother on minimal immigration bonds is nothing new. Dozens, perhaps hundreds of illegal aliens like Malvo just walk right through the same federal immigration bureaucracy every day.
How many? Who knows?
Thanks to a chronic lack of detention space, lax immigration bonds on the border, candy store-like "humanitarian parole" procedures at ports of entry, and the delay-ridden litigation bureaucracy of the Executive Office for Immigration Review [the EOIR Immigration Court system inside the Department of Justice], illegal aliens pass right through immigration detention and on to destinations all over the country every day.
And once released from custody, aliens obviously have little incentive to return for hearings and/or deportation. Boatloads of smuggled Chinese and others from around the globe continue to disappear into the United States this way.
Unless something is done to stop the revolving door of immigration detention, the United States will never be able to get control of the illegal immigration problem. If not detained during the entire disposition of the review process (whether before the EOIR Immigration Court or not), illegal aliens who are already caught inside the United States, or arrested at ports of entry, will simply disappear.
But take heart. The EOIR stands ready to perform rituals ordering aliens removed In Absentia (in their absence). In reality, of course, the government will never see these aliens again.
When illegal aliens are apprehended inside the United States, some elect decide voluntarily to return to their native countries. Those who do not will be detained under an immigration bond initially set by the INS, and reviewed by an immigration judge. Illegal aliens who appear without documents at a border port of entry, or who drop from the sky at an airport, will be detained as "arriving aliens" under immigration law. If not sent back immediately through expedited removal, "arriving aliens" have the opportunity to be paroled into the country by the Immigration Service.
Immigration parole decisions by the INS are not reviewable by the EOIR. But current parole and bond policies are very lax. They allow just about any alien, even asylum-seeking gay Mexican transvestites, to be released from custody if they promise to appear again for Immigration Court hearings. Even M*A*S*H'S Corporal Klinger has a shot at getting paroled in.
Solution: The federal government could opt for a full enforcement of Section 235(b) of the Immigration Act. It just did so for aliens arriving by sea - a decision my VDARE.COM article may have helped along. Then the government just might be able to get control of illegal alien detention. If aliens remain detained throughout the process, the current wholesale abuse of the "credible fear" asylum review could be held in check. Mandatory detention works like magic to separate refugees from opportunists.
Bottom line: The federal government should move to detain as many illegal aliens as possible. It should keep them detained. And it should keep them away from the bureaucratic limbo of EOIR Immigration Court.
Detention of illegal aliens is the first step toward getting control of illegal immigration.
Under the status quo of the reigning EOIR, aided by lax bond and parole policies, illegal alien detention facilities on the border and at ports of entry are little more than comfort stations and welcome centers for illegal alien travelers continuing their journey. If the Department of Homeland Security does not set a new course to detain and deport illegal aliens, the old service processing centers of the INS will be become the new illegal alien Ellis Islands of the twenty-first century.
The fight between the fledgling Department of Homeland Security and the Attorney General's EOIR for control of immigration detention will determine whether the federal government is serious - or if the revolving-door bond and parole status quo will continue.
Can the new Border and Transportation Security division overcome the EOIR? The fate of real immigration reform hangs in the balance.
Juan Mann, a lawyer, is the proprietor of DeportAliens.com
December 21, 2002