April 20, 2016
On behalf of the Federation for American Immigration Reform , IRLI has submitted an important friend-of-the-court brief (attached here) to the Board of Immigration Appeals (BIA) defending the key requirement that every alien must be “admitted” to the United States in order to become eligible for the benefits and privileges that ours laws offer to aliens who respect our laws.
“Admission” means that the alien has entered our territory through a port of entry or other legal means, and been “inspected” by an immigration officer, who can only “authorize” an alien who is “clearly and without doubt” in compliance with our immigration laws. For example, generally only aliens who have been admitted are eligible to apply for green cards and ultimately to naturalize, and cannot be excluded from the U.S. like illegal aliens. Since admission was made the key requirement for legal entry in 1996, aliens can no longer claim immigration benefits merely by crossing our sea or land borders.
Open borders sympathizers in the immigration bar frankly see the admission law as a major legal barrier to their agenda of massive uncontrolled immigration. Constantly looking for exceptions to undermine the uniform rule of law, immigration lawyers have filed test cases pointing out that some aliens who have entered illegally can still become eligible for a permanent resident green card through special loopholes in the law. The special categories include the alien in this case, a Mexican who entered illegally but was granted a U nonimmigrant visa for helping police to solve a serious crime, yet later was convicted of a felony himself, before applying for the green card. When the Department of Homeland Security (DHS) tried to deport the alien based on his felony conviction, his lawyer argued that he could not be deported because he was never legally “admitted.” The immigration judge held that it did not matter whether the alien crossed the border legally, was inspected and authorized, because U visa aliens could apply for green cards under the law, thus allowing DHS to ignore the admissions law when they found it convenient.
After the alien appealed, IRLI advised the BIA that this time the criminal alien’s lawyer had a point. Just because one of the special loopholes like the U visa allowed an illegal alien to stay in the U.S. as a reward for being an informant, the alien still had to apply for “admission” if he wanted to enjoy the benefits of that status. The solution, IRLI argued, is not to create another administrative loophole that ignores the law and weakens enforcement, but for every alien to actually appear before the Border Patrol or at an Immigration and Customs Enforcement office and complete the admission process as Congress has required. “If DHS would apply the law as written by Congress instead of contorting the law to grant relief favored by open borders lobbyists, entry as well as deportation would be more uniform, more efficient and more just,” commented IRLI Senior Counsel Mike Hethmon, co-author of the amicus brief along with IRLI Staff Counsel Elizabeth Hohenstein.
The case is In Re Garnica Silva (BIA).
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