The devil in the details of America's failed immigration law enforcement
If you want to understand one of the key reasons current U.S. immigration laws are not being enforced, please take a few minutes to read this article on the EOIR by Juan Mann:
There is a dangerous misconception lurking in Americaâ€™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?
Few Americans even recognize that thereâ€™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 comparisonâ€”remember that the volunteer Minuteman Project showed the world that they could do it in a month!
So whatâ€™s the problem?
[MUCH more, below the fold]
Itâ€™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.
The hidden truth about the EOIR is that Americaâ€™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. Other than the few summary removal provisions implemented at ports of entry, the deportation of foreign nationals in the United States is largely voluntary. 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.
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. 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. 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 EOIRâ€™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 Americaâ€™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.
WHAT NEEDS TO BE DONE?
Peter Brimelow, editor of VDARE.com, identified the solution in so many words in his 1995 book, Alien Nationâ€”Common sense about Americaâ€™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:
Take away the EOIRâ€™s jurisdiction piece-by-piece in a move towards abolishing the EOIRâ€™s nationwide U.S. Immigration Court system and Board of Immigration Appeals (BIA). Institute summary removal of all illegal aliens and pre-determined classes of criminal alien residents by federal immigration officers without judicial review. Abolish all stealth amnesty adjustment of status provisions that reward law-breaking (as well as all discretionary "second chances" for criminal aliens) in the Immigration and Nationality Act that are currently administered by the EOIR. Eliminate the immigration benefit fraud magnet of U.S.-based asylum processing at DHS asylum offices run by its Citizenship and Immigration Services (USCIS) division. Create a system where all asylum processing is done exclusively at U.S. Consulates abroad, or by the U.S. State Department for those countries where the U.S. does not have a consular presence. Eliminate non-immigrant visa-jumping from one category to another, as well as adjustments from non-immigrant to lawful permanent resident status for aliens already in the United States. All aliens wishing an adjustment of status or change of status should be required to exit the United States and receive a valid visa at a U.S. Consulate abroad, in order to make another lawful entry into the United States. Upon reentry, all applicants must then be able to satisfy the requirements for admissibility to the United States once again, including the unlawful presence grounds of Immigration Act Section 212(a)(9).
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. Itâ€™s the same plan he used for the Iraqi army in 1991â€”"first weâ€™re going to cut it off, and then weâ€™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 Stearnsâ€”PDF] remain loose on the streets.
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 BIAâ€”The most under-recognized obstacle to deporting illegal aliens is the shadowy immigration court system and it unaccountable appellate body, which routinely puts aliensâ€™ rights over citizensâ€™ 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 criminalsâ€™ "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 BIAâ€”and then on to the federal courts . . . and back-and-forth almost indefinitely. Thatâ€™s the problem with expecting to expel illegal aliens and convicted foreign criminals from our country through litigation. It just doesnâ€™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.
As aliens benefiting from the EOIRâ€™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.
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 Americaâ€™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.
[ER editor's note: The EOIR, and the laws that are supposed to uphold our immigration process are irrevocably broken. It's not the sexiest of topics, but it's important to know that we can't just talk about "enforcing our current immigration laws" without fully realizing that there is a revolving back door that completely undermines our laws. How many times have you heard somebody grumble that illegals know our laws better than WE do? It's true! They know how to work the system and milk it for all it's worth. Nevertheless, it's our concern, and our duty to become more aware, even though the topic itself may be kind of "dry". To learn more about issues concerning the EOIR, go here for a comprehensive wrap-up, including the following subjects:
THE CASE FOR SUMMARY REMOVAL
FEDERAL COURT MEDDLING IN IMMIGRATION LITIGATION
REINSTATEMENT OF REMOVAL STRUCK DOWN
SAVING THE IMMIGRATION AND NATIONALITY ACT
EXPEDITED REMOVAL PROVISIONS SHELVED
EXISTING ALTERNATIVES TO EOIR LITIGATION
DISMANTLING EOIR JURISDICTION PIECE-BY-PIECE
The Department of Justiceâ€™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.
In analyzing the entire jurisdiction of the EOIR piece by pieceâ€”reviewing all types of relief from removalâ€”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 EOIRâ€™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.
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