By Juan Mann
12/06/2005
There is a dangerous misconception lurking in America’s growing public consciousness about immigration law enforcement. From the man on the street to the halls of Congress, the fatal error persists in the belief that if only current immigration laws were just enforced, the illegal alien invasion of these United States would be over for good.
All would be well if we put the legal mechanisms in place into effect … right?
Wrong.
Few Americans even recognize that there’s any problem at all with HOW the federal government goes about deporting illegal aliens and criminal alien residents. Securing the Arizona desert was a piece of cake in comparison — remember that the volunteer Minuteman Project showed the world that they could do it in a month!
So what’s the problem?
It’s too many lawyers, too much litigation and a four-letter word called EOIR.
The problem that hides in plain sight in the current immigration "catch and release" controversy is the litigation bureaucracy of The Executive Office for Immigration Review (EOIR).
The EOIR is a little-known federal agency within the U.S. Department of Justice, It comprises the nationwide U.S. Immigration Court system and its appellate body, the Board of Immigration Appeals (BIA) in Falls Church, Virginia. The EOIR is the centerpiece of a largely unknown de facto stealth permanent amnesty and non-deportation program for illegal aliens and criminal alien residents.
According to its web site,
"[t]he EOIR was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined BIA with the immigration judge function previously performed by the Immigration and Naturalization Service (INS). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of federal immigration laws."
But the hidden truth about the EOIR is that America’s deportation process for illegal aliens and criminal alien residents is designed for failure. What starts out as deportation becomes perpetual litigation — and relatively few deportable aliens ever leave.
With the complicity of the Department of Homeland Security (DHS), the EOIR litigation bureaucracy forms the concealed piece in the puzzle of institutionalized mass immigration sponsorship by the federal government.
Other than the few summary removal provisions implemented at ports of entry, the deportation of foreign nationals in the United States is largely voluntary.
The lengthy EOIR system of hearings and appeals enables illegal aliens and criminal alien residents to remain in the United States both legally and illegally for years, often in perpetuity.
The EOIR and the DHS bureaucracy enable thousands of detained aliens facing deportation to be released back to the streets on an immigration bond or paroled out of federal custody during the EOIR hearing process — giving them the option of disappearing back into the United States regardless of the outcome of their Immigration Court hearings.
The lack of physical security on the land border exposes the EOIR process for the charade that it is. Deported aliens just walk back in.
The EOIR literally makes a federal case out of every illegal alien and criminal alien resident in deportation proceedings by offering a litigation gateway to the federal circuit courts of appeal, and, sometimes, even to the U.S. Supreme Court.
After reviewing Immigration Court decisions at the Board of Immigration Appeals (its appellate body) the EOIR system offers automatic federal circuit appellate court review for the deportation of every illegal alien and every criminal alien resident in the United States.
With endless available options for filing appeals and motions available to a competent immigration lawyer, EOIR hearings and appeals are never really over until the alien wins.
The Second Circuit Court of Appeals recently had this to say about the EOIR system in the case of Drax v. Reno (338 F.3d 98, 99 (2d Cir. 2003)).
"This case vividly illustrates the labyrinthine character of modern immigration law — a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike. The inscrutability of the current immigration law system, and the interplay of the numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court, and consumed significant resources of this Court. With regret and astonishment … this case still cannot be decided definitively but must be remanded to the District Court, and then to the Board of Immigration Appeals ("BIA"), for further proceedings."
Considering the never-ending nature of federal litigation, as well as the laundry list of relief from deportation available in Immigration Court, EOIR "removal" proceedings are really "get to stay" proceedings
Although alleged to be a system for determining whether particular illegal aliens and criminal alien residents are deportable under the law, in reality the EOIR hearing system is designed to give aliens a mechanism to apply for relief from removal and remain in the United States. The EOIR’s immigration judges routinely award "green cards" (lawful permanent resident status) to illegal aliens through adjustment of status, and also allow convicted criminal aliens to remain in the United States.
While virtually unknown in the major media, the EOIR is the four-letter word of federal immigration policy.
EOIR litigation represents the livelihood of thousands of immigration lawyers, whose interests are represented by their nationwide lobbying group, the American Immigration Lawyers Association (AILA). The country’s over 200 EOIR immigration judges earn from $109,587 to $142,500 per year, plus generous federal benefits.
The bottom line for America’s taxpayers is that the EOIR is just one more monumental waste of government resources. The EOIR unnecessarily formalizes simple review processes that already are entrusted to specially-trained (and most likely lesser-paid) federal employees including consular officers, district adjudications officers, immigration inspectors, special agents, immigration agents, deportation officers and asylum officers all over the country and the world.
A system dedicated to giving formal hearings and appeals for even previously-deported illegal aliens and criminal aliens is a system begging to be abolished — if only immigration reformers in Congress knew it existed.
So after twenty years of fostering federal litigation instead of deportation, it is high time that the EOIR’s specific functions be parceled out to federal law enforcement personnel already in the Department of Homeland Security who can do the job of deporting illegal aliens and criminal alien residents.
In reality, the EOIR litigation bureaucracy is the antithesis of real homeland security. As a deportation system, the EOIR is designed to fail, and it does. But as a machine for facilitating mass immigration, the EOIR is a raging success.
Peter Brimelow, editor of VDARE.com, identified the solution in so many words in his 1995 book, Alien Nation — Common sense about America’s Immigration Disaster (page 260). According to Brimelow:
"Deportation procedures, for both legal and illegal aliens, should be streamlined, and criminal aliens automatically deported … .
U.S. immigration law has already been significantly weakened by activist judges. But there is nothing sacred about a wrongheaded ruling. The answer is to pass another law. When Americans do seize control of their immigration policy again, it will inevitably take the form of an epic clash between legislative and judicial branches."
So how does Congress go about creating a process to actually deport aliens?
Here are the nuts-and-bolts details:
The most expedient strategy for handling the EOIR litigation bureaucracy and the candy store of immigration benefits it administers (such as asylum and adjustments of status) 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 marooned.
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 and cast out of the Department of Justice, the EOIR now represents a complete mismatch among remaining DOJ agencies, including the FBI, DEA, U.S. Marshals Service and the United States Attorneys.
In the deportation abyss of EOIR litigation, attorneys haggle over "orders of deportation," while over 300,000 fugitives from those orders and as many as 20 million illegal aliens [as estimated by Bear Stearns — PDF] remain loose on the streets.
Peter Brimelow once noted on VDARE.com that "one of the few rational justifications for writing books is that you get to quote yourself."
Although I have yet to write a book, I will offer my own quote from March, 2002, identifying the EOIR as the root of the problem. Michelle Malkin published it in her best-selling book, Invasion (pages 215-16), and in a September 2002 "backgrounder" by the Center for Immigration Studies report called "The Deportation Abyss: It Ain’t Over 'Til the Alien Wins" — [PDF].
"Between the incompetence of the INS, the complete lack of alien detention center space, and the bureaucracy of the EOIR, our system for deporting known illegal aliens and criminal alien residents is a sad joke. But no one is laughing.
"If all of the illegal aliens and deportable resident alien criminals were rounded up tomorrow, the system would not be capable of handling them. It would be an absolute disaster. The INS and EOIR wouldn’t have the foggiest idea of what to do with them! The aliens would all be released back out on the street on immigration bonds and go back right where they were as if nothing happened, while their cases would grind on through the system of Immigration Court hearings and endless appeals."
In short, the EOIR process is the major reason that the federal government remains paralyzed in confronting the millions of illegal aliens and criminal alien residents running free in the United States, despite the supposed intent of policy, and the existence of at least somewhat appropriate laws.
Congress can threaten to "close the border" all it wants, but as long as the EOIR remains in place, all is well for open borders. The system will remain sabotaged behind the scenes.
If the borders are hemorrhaging illegal aliens every day, and there is no reasonably efficient process in place to detain and summarily deport foreign nationals who do not belong on our shores, no one is going to be leaving anytime soon … and more aliens will keep coming.
The damage created by the EOIR on federal immigration policy is a scandal of monumental proportions. But so far, the first journalist to call for the EOIR to be abolished was Michelle Malkin. She wrote as much in her book, Invasion (pages 232-33):
"End deportation delays: Abolish the EOIR and BIA — The most under-recognized obstacle to deporting illegal aliens is the shadowy immigration court system and it unaccountable appellate body, which routinely puts aliens' rights over citizens' safety. Attorney General John Ashcroft should abolish the Executive Office for Immigration Review and the Board of Immigration Appeals and transfer their functions to existing law enforcement officers within the immigration bureaucracy."
The EOIR is just another example of criminals' "rights" being expanded and glorified to overwhelm an entire law enforcement process.
Under current federal law, all illegal aliens and criminal alien residents have the "right" to a hearing before an EOIR immigration judge, as well as the "right" to appeal their case to the BIA — and then on to the federal courts … and back-and-forth almost indefinitely. That’s the problem with expecting to expel illegal aliens and convicted foreign criminals from our country through litigation. It just doesn’t work.
But even though the mainstream media has maintained strict radio silence about the EOIR, the truth about the EOIR bureaucracy manages to leak out one illegal alien at a time.
Cases like Beltway sniper John Lee Malvo, New York City subway bombing plotter Gazi Ibrahim Abu Mezer, Los Angeles airport shooter Hesham Mohamed Hadayet, criminal nanny Melanie Jeanbeaucejour, and other terrorists are all veterans of the non-deportation charade of the EOIR Immigration Court hearing and perpetual appeal process.
As aliens benefiting from the EOIR’s "catch and release" process continue to wreak havoc on America, slowly but surely the picture comes into focus … that the EOIR bureaucracy is a detriment to the "homeland security" mission of immigration law enforcement.
Unfortunately, the main problem with affecting any change here is that topics like the EOIR Immigration Court system, expedited removal of illegal aliens [as in Immigration Act Section 235(b)], reinstatement of removal for previously-deported aliens [as in Immigration Act Section 241(a)(5)], expanding the "aggravated felony" classification of criminal aliens [as in Immigration Act 101(a)(43)] and demanding the mandatory immigration detention of criminal aliens [as in Immigration Act Section 236(c)] aren’t sexy topics.
But they should be!
Just as building a physical barrier is absolutely necessary to stop illegal immigration across the southern border, summary removal of illegal aliens and criminal alien residents is the silver bullet for real immigration reform.
Legislation expanding summary removal and taking jurisdiction away from the EOIR would be a laser-guided missile down the main air conditioning vent of America’s entrenched non-deportation system. Abolishing the EOIR through summary removal would be the vampire-repelling garlic to ward off the legions of AILA lawyers making a living from federal immigration litigation.
Summary removal of illegal aliens by federal officers, with the cooperation of state and local law enforcement, would upset the existing rigged immigration litigation apple cart by simply kicking illegal aliens and convicted criminal alien residents out of the country.
For immigration law enforcement to work, America needs summary deportation, not perpetual immigration litigation in the federal courts.
Just as the legal paradigm of the criminal justice system provides no defense whatsoever against Mohammedan suicide bombers, so also clinging to the "alien rights"-based EOIR framework of federal litigation — while expecting the government to deport aliens — simply doesn’t work.
Real immigration law enforcement is arresting aliens, deporting them, and making sure they stay out for good. And that means summary removal, not perpetual federal litigation. That means officers with guns removing as many interlopers and criminals as quickly and efficiently as possible.
In recent Congressional testimony, Michael Hethmon, Staff Counsel for the Federation for American Immigration Reform exposed the grave dangers inherent in the current litigation-based system of non-detention and non-deportation.
Hethmon testified on June 29 before the House Judiciary Committee concerning the Alien Gang Removal Act of 2005 (H.R. 2933).
According to Hethmon:
"[I]n 2005 the public violence and other barbaric behavior associated with the drug and human trafficking criminal enterprises operated by criminal street gangs has reached unprecedented levels, and has spread nationwide, far beyond its traditional 'turf' in immigrant urban enclaves."
"The need for a legislative approach that applies internationally known counter-insurgency techniques to the alien membership of criminal street gangs in this country is regrettable but compelling.
"It is regrettable, because three main factors identified by analysts to account for the appalling growth in alien criminal gang activity in this country all arise from the failure of Congress, over more than a generation, to control illegal immigration — [namely] … [t]he failure by Congress to require and support effect border control and interior enforcement … [t]he willingness of Congress, beginning in the 1970s, to use refugee policy as an expedient way to deal with the economic upheavals that followed our intervention in Third World insurgencies, notably in Central America … [and] the blowback from the failure of Congress to protect the American workplace from illegal employment."
So is there a remedy in sight from Congress?
This past July 4, I wrote about a "look-out-the-window" reality check for judging Congressional immigration proposals, which still applies now more than ever:
"Until the time comes when Americans look out of their windows one morning and see vans, 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."
In short, Congress must do something to save the Immigration and Nationality Act, not only from its own years of benign neglect, but from the EOIR bureaucracy and the federal courts as well.
The EOIR litigation bureaucracy provides the ideal workbench for a gradual chipping away of any immigration law enforcement provisions passed by Congress.
Author and policy analyst James R. Edwards recently expounded on the problem of judicial meddling in immigration policy. [" Alien Enemies on the Bench," Human Events, Dec 23, 2004]
According to Edwards:
"Activist judges arrogate power to themselves, second-guessing elected legislators. The tools developed to invent new 'rights' for criminals, evict all semblance of the Founders' Christian civic religion and legalize the murder of the unborn are now used to set immigration policies from the bench.
"Activist judges would start serving the public good if they would respect Congress' broad power to set immigration policies and defer to the political process. Judicial muggings of the processes of self-government only feed frustration, while stoking the public’s ire toward immigrants."
As long as the EOIR continues to serve-up thousands of immigration cases to the federal circuit courts of appeal every year, the Immigration and Nationality Act will stand little chance of remaining intact in whatever form originally intended by Congress.
The most blatant example of federal court meddling in immigration law enforcement has been what the Ninth Circuit Court of Appeals has done to the reinstatement of removal provisions of the Immigration Act — procedures designed to keep previously deported illegal aliens and criminal alien residents out of the country for good.
On November 18, 2004, judges Dorothy W. Nelson, Stephen Reinhardt and Sidney R. Thomas, struck down these provisions with the release of their Morales-Izquierdo decision — [PDF]. Amazingly enough, the full appellate court has agreed to hear the case again through an en banc hearing. [Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004), rehearing en banc granted, 423 F.3d 1118 (9th Cir. Sept. 12, 2005)]
But in setting their own immigration policy in the Western states for now, these three rogue judges assumed the power to strike down the perfectly good federal "reinstatement of removal" regulations of 8 C.F.R. section 241.8 — enacted fair and square by Attorney General Janet Reno under the authority of Immigration Act section 241(a)(5).
Here’s the key issue: the Ninth Circuit decided to give previously-deported aliens a hearing in the EOIR Immigration Court system when they are not entitled to one.
The reinstatement of removal process was supposed to ensure that when previously-deported aliens reentered the U.S. illegally and were caught again on American soil, they would be summarily removed. Why? — because they already had a hearing the first time they were deported!
Morales-Izquierdo himself was a twice-deported illegal alien who came back uninvited a third time.
It’s painfully obvious that the pro-alien lobby wants none of this "summary removal" business. And their fellow travelers in the Ninth Circuit have also made sure to let the world know that immigration law is a subject near and dear to their hearts too.
If the federal courts continue to craft immigration policy in reviewing EOIR appellate cases one case at a time, any good work of Congress for immigration reform will be undone before the President’s signature has dried on the legislation.
The Immigration and Nationality Act of 1952, and its various amendments, make up the spaghetti bowl of arcane language, convoluted standards and perverse incentives that make up the law of the land for immigration law enforcement.
The last attempts by Congress at immigration law enforcement were in 1996 as a somewhat belated reaction to the February 26, 1993, bombing of the World Trade Center. Congress passed some very enforcement-minded legislation three years after the bombing called the "Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996." President Clinton signed the "anti-terrorism" immigration bill on April 24, 1996.
But during the second session of the 104th Congress, later that same year, Congress passed even greater changes to the Immigration Act called the "Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996." The IIRIRA, known as the 1996 Act was signed by President Clinton on September 30, 1996. It became effective on April 1, 1997. The IIRIRA cut back on relief available for criminal aliens and known foreign terrorists, and called for the mandatory detention of more classes of convicted criminals who are foreign nationals.
The IIRIRA also created very valuable expedited removal proceedings under its new Immigration Act Section 235(b), which allowed the summary removal of illegal aliens found anywhere in the United States — within two years of entering illegally.
So far, Immigration Act Section 235(b) has managed to withstand the legal onslaught of the pro-alien lobby through the federal courts. But these expedited removal provisions have fallen victim to non-implementation by both the Clinton and Bush Administrations through stonewalling and sabotage.
In other words, the Bush Administration still isn’t fully implementing the expedited removal law. It’s all there in black and white in Immigration Act Section 235(b)(1)(A)(iii).
Immediately after passage, the Clinton Administration, through then-INS Commissioner Doris Meissner, and subsequently the Bush Administration, shamelessly mothballed most of Section 235(b). The Section 235(b) authority was only put into effect for immigration inspectors at ports of entry, not for any immigration officers in the interior of the country or outside of airport buildings.
Five years later, in November, 2002, Attorney General John Ashcroft announced regulations to cover illegal aliens arriving in the United States "at sea" under Section 235(b). I applauded the effort.
Then, on August 11, 2004, the DHS announced regulations allowing the Border Patrol to summarily remove illegal aliens found within 100 miles of a land border … if discovered within two weeks of their illegal entry. The game of "pass the border and you're home-free" for illegal aliens had gotten a little harder, but it continued.
This was still a very limited implementation of the authority previously granted by Congress. Remember that Congress has already given the federal executive agencies the absolute authority to summarily remove aliens found anywhere in the United States — within two years of entering illegally! But the non-implementation scandal continues.
Other than the limited bright spot of streamlined Immigration Act Section 235(b), there has been little to cheer about in immigration law enforcement since the 1996 "anti-terrorism" legislation that first instituted these ground-breaking concepts of summary removal.
So if the dream of summary removal becomes a reality someday, who else could do all the work if the EOIR Immigration Court system were abolished?
There are thousands of federal government employees around the country and at United States consulates abroad who already perform the same functions as the employees of the EOIR. They already do the same jobs in a fraction of the time, without the ridiculous bureaucratic delay of endless hearings and appeals, and at a fraction of the cost of EOIR’s government lawyers in black robes.
Here’s who is already doing the EOIR’s job or should be doing it for them:
Here’s the bottom line: the EOIR’s collection of government attorneys — all of its immigration court judges, BIA members, chief immigration judges and administrators — should be disbanded. The EOIR’s resources and budget could be put to better use within the DHS actually summarily removing illegal aliens and criminal alien residents where it could have an immediate impact in deterring illegal immigration and punishing border criminals.
Former DOJ, EOIR, BIA and DHS attorneys, and even the DOJ’s Office of Immigration Litigation (OIL) assigned to managing the avalanche of federal appellate court litigation could be pressed into service as Special Assistant U.S. Attorneys prosecuting immigration crimes. This reservoir of government prosecutors 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 immigration cases federal district court judges don’t want to hear.
But the best ammunition for abolishing the EOIR is generated by analyzing what it is exactly that the EOIR Immigration Court actually does in the first place.
After determining the deportability of an alien under immigration law, the bulk of an EOIR immigration judge’s time is spent deciding applications for relief from removal. In other words, the EOIR administers a smorgasboard of non-deportation "second chances," and outright grants of lawful permanent resident status.
Here is the EOIR Immigration Court’s jurisdiction, piece-by-piece, as set forth in the Immigration and Nationality Act (INA):
The Department of Justice’s EOIR is the power behind the scenes in immigration law enforcement and the greatest obstacle to real immigration reform in the federal government. The EOIR is the legal bureaucracy that regulates, and in effect cripples, the deportation of illegal aliens and criminal alien residents in the United States.
Summary removal, not EOIR litigation, should be the future of immigration law enforcement.
Under current law, there is no judicial review and no appeal of expedited removal orders done by Department of Homeland Security immigration inspectors at ports of entry, and by U.S. Border Patrol officers in certain sectors along the borders. Also, there are no appeals of non-immigrant visa determinations and refugee denials from U.S. consular offices abroad.
Amazingly enough, these summary determinations are made routinely by federal officers without any EOIR litigation whatsoever. And the world still turns.
In analyzing the entire jurisdiction of the EOIR piece by piece — reviewing all types of relief from removal — every single component is already accomplished by other federal government divisions. And if not already covered, the particular form of relief could be easily moved out of the country for overseas adjudication, or abolished outright as being an ill-conceived reward for criminal behavior in the first place.
Summary removal in effect represents the other side of the coin from the "summary visas for all" impulse of the Bush Administration, exemplified by its ongoing drive for a non-deportation amnesty for existing illegal aliens under the guise of a "guest worker" or "temporary worker" program. By seeking to implement open-ended immigration status hand-out, the Bush Administration apparently sees nothing wrong with making a policy decision about which illegal aliens to let in the country, and then summarily carrying it out on a massive scale.
So why not do the same for summary removal?
We as a nation, through Congress as our policy-makers, should make a decision once and for all on which foreign nationals are going to be let into the country, who remains here, and who is going to be kicked out. Congress should overhaul the Immigration and Nationality Act and decide once and for all which clearly-defined classes of aliens to summarily prevent from entering the United States, as well as which clearly-defined classes of aliens to summarily deport from the United States.
Congress should make its decision, implement a summary process, and stick to it. No questions asked. No EOIR Immigration Court hearings. No redundant BIA review. No federal litigation.
Under the current state of affairs, the EOIR’s decides its own case-by-case personal "amnesties" being decided behind closed doors every day. Congress has abdicated its responsibility by leaving immigration policy to the whim of executive agency bureaucrats and power-hungry federal appellate courts to grant relief one case at a time to illegal aliens and criminal alien residents.
So rather than posturing about "closing the border," Congress should strike a blow for real immigration reform by abolishing the EOIR litigation bureaucracy once and for all.
ABOUT Juan Mann:
Juan Mann 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.
This is a content archive of VDARE.com, which Letitia James forced off of the Internet using lawfare.