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  • Dale L. Wilcox

Why We Must Detain Illegal Aliens, Not Merely Catch and Release Them


In a scene from Cheech and Chong’s 1977 cult classic, “Up In Smoke,” the perennially red-eyed comic duo are found hiding behind a curtain at Cheech’s cousin’s house after police have barged through the front door.

When a relieved Cheech discovers they’re not actually police but immigration agents, he tells Chong to relax — and that he’d forgotten his cousin, an illegal alien, was getting married in Mexico soon and actually called the agents on himself.

When a still-confused Chong asks why he’d do such a thing, Cheech responds, “So he can get a free ride, man!”

Fast forward to today — and satire has become prophecy. At the border at least, thousands of illegal aliens actually seek out and present themselves to immigration agents every day knowing they’ll be safely taken to a processing facility, given food and water, and then released (often immediately) to friends or family.

This has become known as our “catch and release” policy that President Donald Trump routinely attacks in speeches.

The catch and release policy is one of the biggest motivations for aliens to cross our borders illegally. Who could blame them? Apprehension by immigration authorities does not bring a negative outcome to aliens. It has merely become another step in the process of living in America illegally and without consequence.

Predominantly, aliens going through this process have a minor with them or someone else who can pass a “credible fear” test, as nearly 100 percent of aliens can. These are, as White House adviser Stephen Miller referred to them recently on Fox News, the “non-impactables” — those who cannot be immediately sent home or detained pending their removal hearing due to activist judicial rulings and unclosed loopholes in the law.

Miller, of course, was speaking in reaction to the end of the recent shutdown talks, wherein Democrats pushed hard to cut back on the number of detention beds in ICE facilities. That effort failed for now.

Their push was so firm they reportedly blocked ICE representatives from taking part in spending bill negotiations. ICE had warned that the proposed reduction would have forced them to release thousands of criminal aliens into the public. This, despite Democrats during the Bush administration at least seeing firsthand the effectiveness of detention as a deterrent to illegal immigration.

At the time in 2006, a dearth of detention space coupled with an uptick in apprehensions of Central American illegal aliens (who, unlike Mexicans, take longer to process) forced the Department of Homeland Security (DHS) to adopt catch and release. Though the numbers of illegal entries are far less now than before, DHS managed to secure from Congress, which had Republican majorities in both houses, significant increases in detention-bed space.

With greater detention capacity, removals were higher and quicker and turned catch and release into “catch-and-return.” Not surprisingly, illegal entries dropped.

The importance of detention has been understood for over a century. As the Supreme Court stated in 1896, “Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation.” Even the United Nations agrees. Its International Covenant on Civil and Political Rights broadly recognizes the legitimacy of deterring through detention, especially in cases of public emergency, a situation the U.S. is in, undoubtedly.

Today, Democrats decry detention simply as “cruel” and demand increased use of ankle bracelets as an alternative. Putting aside that detainees have compared ICE facilities to hotels, ICE officials and experts agree that ankle bracelets aren’t nearly as effective in ensuring illegal aliens eventually get sent back home.

As ICE testified last year, around 30 percent of illegal-alien parents caught and then released with an ankle bracelet end up cutting them off. Furthermore, those in actual detention generally get their cases heard faster and so are removed faster — making detention, as DHS argues, a more efficient use of funds.

The problem isn’t just with Democrats. For years, anti-borders groups have attacked ICE’s use of private detention facilities, where the large majority are held, alleging that they lobby to push increased enforcement (as if they approach anything close to the billions spent by the other side). Recently, they launched a series of coordinated lawsuits against ICE’s detention-facility contractors, each making the striking claim that, by employing illegal aliens to perform routine facility maintenance–the norm across prisons as a way to give inmates a sense of purpose–they are in violation the Thirteenth Amendment’s prohibition against slavery.

A ban on the practice would massively increase facility costs (and federal appropriations) and could push companies to exit the industry or the U.S. market altogether.

In the face of all the evidence supporting the humane detention of illegal immigrants in order to effectuate their return, the Left’s war on detention, and ICE in general, shows no sign of abating, and any offers of compromise from the GOP or White House won’t likely appease them.

With legislative loopholes staying wide open and federal judges just waiting to create disastrous new precedent, patriotic voters must push their Republican representatives to support the president in declaring a new national emergency, not only regarding a wall expansion, but with a ramp-up of detention as well.

Without giving our immigration authorities the support they need, the invasion by non-impactables at our border will not stop.

Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: Dale L. Wilcox, Why We Must Detain Illegal Aliens, Not Merely Catch and Release Them, LifeZette, March 16, 2019.


IRLI is a supporting organization of the Federation for American Immigration Reform.

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