For the past nine years, progressives have alleged various illegal conduct by Donald Trump, but with scant evidence of direct harm. But Joe Biden, in just four years, allowed, indeed encouraged, a roughly estimated 8 to 10 million illegal immigrants to arrive and then stay in our country, some of whom soon committed violent crimes, including murder, theft, drug trafficking, and juvenile sexual slavery. Besides the psychological and criminal costs, the financial burden on American taxpayers has been in the billions of dollars. But Biden’s immigration policy has nevertheless been lauded by the Left, even though it is taking jobs from poorer, deserving American citizens and straining our welfare system beyond its limits.
Biden was not merely passively at fault. In addition to releasing millions of inadmissible aliens into the United States without adequate screening, he gave around $6 billion to the UN and NGOs for their support of these illegal immigrants. This money, in addition to enriching NGO executives, was often used to transport migrants to their desired American destinations, where they were to be housed, and to advise them on how to beat the legal system. At the same time, thousands of homeless Americans remained on the streets.
In addition to paying these illegal alien supporters, the Biden Administration made it simple and easy for noncitizens to claim asylum through an expedited process. The Biden Administration also secretly flew in just one year 320,000 immigrants from Cuba, Haiti, Nicaragua, and Venezuela into the United States. Then it fed and housed them, sometimes in luxury hotels. Approximately 1.5 million immigrants from these countries have been granted humanitarian “parole” by Biden and remain in the United States.
Biden could do all of this without permission from the courts or Congress. But as President Trump seeks to cure this harmful illegality, his task is overwhelming, given the maze of rights conferred on these immigrants by Congress, often enlarged by judicial decisions. But why should an illegal immigrant have a right to remain in the United States and receive benefits while the U.S. government proceeds with an expensive and time-consuming deportation proceeding? A better question is whether an illegal immigrant, although a “person” entitled to due process, always has a liberty or property interest that due process protects.
The answer, it would seem, is the commonsense formulation of Justice Scalia in a 5-4 dissent in the 2001 case, Zadvydas v. Davis. Justice Scalia gave his trenchant analysis that an illegal immigrant should not be granted rights simply by avoiding immediate deportation. Quoting with approval from the earlier case of Shaughnessy v. U.S. ex rel. Mezei (1953), he expressed a view with which most of us would agree:
Due process does not invest any alien with a right to enter the United States nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires the admission or sufferance of aliens hostile to our scheme of government. (Emphasis added per Scalia, J.).
Since today’s present Supreme Court would likely favor Scalia’s sentiments, one would think that it should therefore be a simple process to remove illegal immigrants who have escaped immediate deportation. If so, all Tren de Aragua and MS-13 arrestees can be sent packing immediately, full stop.
However, Scalia’s comment was directed at immigrants who had already received a removal order. Ironically, the only recent arrestee who was clearly subject to a prior removal order was El Salvadorian MS-13 gang member Kilmar Abrego Garcia, who was deported to El Salvador and is now the subject of heated debate over the legality of his removal, specifically to El Salvador.
Clearly, the removal of the most dangerous criminals and undesirable noncitizens should be a priority for our country. But the present legal morass prevents a successful deportation program from being implemented, even for this most dangerous cohort. This is so because even Scalia’s blunt opinion does not apply until each alien has enjoyed expensive and time-consuming procedures, even assuming that the noncitizen can be found and personally served.
Those who fearmonger that innocent people are not immune from deportation simply do not understand that even clearly criminal non-citizens enjoy practical immunity, simply through safety in numbers from overwhelming Biden immigration.
There is no pretension here to immigration expertise, but merely to a recognition of the inarguable problems with the status quo once a noncitizen manages to stay in the country for a minimal time. Skipping the line illegally pays, while those who follow the rules are treated as suckers.
Let us explain. While a migrant caught within fourteen days of arrival can be given a summary removal order, allowing immediate deportation, many who were immediately apprehended weren’t given such orders by Biden immigration officials, or, if given, were allowed to stay. Indeed, Biden changed procedures to encourage simplified asylum petitions, legally preventing immediate deportation for many. More disturbingly, if illegal immigrants can stay for fourteen days without a removal order, they now have a panoply of procedural rights beyond seeking asylum. Even after those procedural rights are exhausted, we know that about 1.2 million illegal immigrants who currently have removal orders remain in the United States because they cannot be found.
If the fourteen-day period lapses, the government must obtain a standard removal order. To begin, the government must first file a Notice to Appear. That Notice must be personally served, which is often impossible because the migrant cannot be located. Even after being located and served, the non-citizen can still apply for “relief from removal,” based on various factors, including relatives living in the United States and hardship.
The government must prove “alienage,” that is, that the immigrant is a non-citizen, sometimes challenging because citizenship records are incomplete. The migrant, after all, could have claimed earlier approval or birthright citizenship.
If the non-citizen does not appear at the hearing, the removal can be ordered, but the order is subject to the migrant (when later detained) claiming lack of knowledge of the order.
If the government cannot prove the person is removable, sometimes the case is terminated “with prejudice,” and the removal cannot be attempted again. Even if removal is ordered, it can be cancelled if the non-citizen can show residence within the United States for ten years and “hardship” to a relative. Thus, many have effectively gained permanent legal residency by long avoiding our system, often aided and abetted by NGOs supported by our government. In short, our system rewards those who evade it.
Of course, all immigrants can claim asylum upon showing a legitimate fear of returning to their home country, whereupon the noncitizens can receive a green card after a year. Even noncitizens who do not gain asylum can obtain an order not to be removed to their home country if life or freedom is threatened, such as in the case of Abrego Garcia.
Clever litigants can demand a mini-trial, which increases the governmental burden. Any removal order can be appealed. Once the removal order is final, it may not be executed for humanitarian reasons. President Obama, for instance, granted “deferred action” to a large population of non-citizen minors.
Even if detained for proven crimes, not all noncitizens are removed. There are often debates in criminal courts over whether a crime deserves deportation. And of course, in sanctuary cities and states, the immigrant criminal is not held for federal agents even if the crime is serious and deserving of deportation.
After a removal order is issued, the Immigration and Naturalization Act allows one “motion to reopen.” This motion can be based on any one of a slew of factors, including personal circumstances, ineffective counsel, changed conditions in the home country, etc.
Even an immigrant declared a danger to the community must be released back into the United States population if no country will accept that person within 90 days, even if detained for that period because of a danger to community safety. There are estimated to be as many as 30 million illegal immigrants in our country, but conservative figures acknowledge at least 11 million. A deportation program for this latter number of non-citizens is estimated to cost roughly one trillion dollars.
Even with thoroughgoing legislative reform, a substantial portion of resident non-citizens would not be deported, given the expense. But deporting the worst should be made more practicable. Only Congress has the power to significantly remedy this dire situation. A start would be reinstating the former COVID emergency procedures under Title 42, allowing deportation at the border without an order.
One important reform would also be to allow immediate deportation of any noncitizen, even if encountered after fourteen days, with only an informal, summary removal order. As a practical matter, most later efforts regarding “getaways” would be concentrated on criminals and grifters. The only question should be, however, noncitizen status. An asylum petition should be made prior to entry, and after illegal entry, it should not allow a noncitizen to remain pending a decision. The bases for asylum should be tightened. NGOs should not receive government aid for legal advice to immigrants.
Applicable habeas corpus writ procedures, which are subject to legislative adjustment, should be streamlined. In short, there should be reasonable procedural protections, but not processes easily gamed by NGOs advising noncitizens. Finally, presidentially designated terrorist groups, without proof of sanction by a foreign government, should be subject to summary arrest and removal or detention in a presidentially specified facility.
Congress stood by as Biden threw open our borders. Now it must act to remedy its own lassitude, as nobly intended procedural immigration safeguards have become an overwhelmingly insuperable maze of obstacles to safeguarding the citizenry and avoiding potential insolvency.
So, Congress, do your job, or, as Senator Charles Schumer is prone to advise, “reap the whirlwind.”
John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the books, Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate and Began Today’s Partisan Advocacy Journalism and The Mysteries of Watergate: What Really Happened.