November 21, 2005

Juan Mann Speaks…On TRUE Enforcement

The amnesty-free 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 bill."

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 last column.

So—does TRUE 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 the 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?

Answer: Real immigration law enforcement is arresting aliens, deporting them, and making sure they stay out.

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.

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 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."

So does TRUE Enforcement actually deport aliens?

Answer: Yes . . . well, some of them.

There are some excellent 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 thing. Bravo!

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 more 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.

But hiring even more EOIR immigration judges? . . . that’s BAD!

The 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.

And those 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 for "the border fence bill" could cause it to carry.

Here is my section-by-section highlights of the TRUE Enforcement and Border Security Act of 2005 (H.R. 4313) . . . which just might become law.

Expedited Exclusion—Section 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 courts.

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 and saboteurs.

Juan’s comment: 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 to invalidate this section of law recently.

Juan’s comment: 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 for removal.

Juan’s comment: 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.

Juan’s comment: good!

Three kinds of "voluntary departure"—Section 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 judges.

Juan’s comment: 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 getting deportable aliens out of the country.

Alien Gang Removal—Sections 507, 508 and 509 of TRUE Enforcement look like a reincarnation of "The Alien Gang Removal Act of 2005," 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.

Juan’s comment: 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 getting foreign 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.

Juan’s comment: Now that’s one helluva good idea!

Ankle 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 [Juan’s comment: there 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?

More government lawyers—Section 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!

Juan’s comment: 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 Treason Lobby’s 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 years."

Juan’s comment: 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 14^th Amendment’s phrase "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 child is 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 House 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 death."

Juan’s comment: But doesn’t "true" immigration law enforcement entail keeping track of aliens, not U.S. citizens? Rep. Paul, call your office!

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.