February 24, 2017
By Dale L. Wilcox
Justice Department attorneys got a reprieve in another one of their battles with the Ninth Circuit and the ACLU this week. In perhaps the most anticipated immigration Supreme Court case this term, Jennings v. Rodriguez, the Court will decide whether or not to reverse the Ninth Circuit’s 2013 ruling making bond hearings for criminal and terrorist aliens mandatory.
DOJ attorneys argue that the Ninth Circuit’s decision, which is currently in operation in that region, is a direct rewrite of the Immigration & Nationality Act’s express requirement that these aliens be detained during their removal proceedings. But luckily for the DOJ, just this past week Senator Chuck Grassley’s Judiciary Committee received DHS data on the criminal recidivism-rates of aliens who had been released back into the circuit as a result of the court’s ruling. SCOTUS should find this data striking.
Under the INA, aliens deemed removable based on criminal or terrorism grounds are expressly disallowed bond hearings. This alien-category generally must be detained until their removal hearings take place. The policy consideration here should be obvious. As the DOJ argues in their briefs, letting these aliens out of detention before their hearing allows them to “reoffend,” “flee” and “thwart the government’s efforts to remove them.”
Indeed, the high recidivism rates among this alien-category led to Congress in 1996 inserting into the INA the very no-bond-hearings provision that’s now being challenged.
But the background and express mandate of this provision was disregarded by the Nine Circuit. When the ACLU brought its class action against the policy, the court of appeals decided that the text of the INA actually contains an implied limitation on criminal-alien detentions. After a period of six-months (a time-limit they artificially set), they decided the government must have to show a “special justification” for any further detention. Criminal aliens after all, they asserted, had a liberty interest in ‘avoiding unnecessary restraint’ under the Fifth Amendment’s procedural due process clause.
That justification, the panel said, should be presented by the government at regular bond hearings wherein the government must demonstrate by “clear and convincing evidence” that the alien’s either a flight risk or a danger to the community.
Such a determination flips the burden normally found in bond proceedings. According to the INA, generally the government can release aliens on bond at its discretion on a case-by-case basis. Denials of such discretionary relief can then be appealed, first to an immigration judge, then to the Board of Immigration Appeals where they must demonstrate they’re likely not to abscond or be a danger to the community.
The ACLU, however, wants this turned upside down. They want blanket-relief first with the government itself having to then justify why an individual alien’s detention is warranted.
But thanks to Senator Grassley’s new findings, we can now see what such a policy would look like if applied nationwide. As his committee found, of the 533 aliens the ICE office in Los Angeles was forced to release between October 2012 to December 2013 (when the decision came down), 195 of them, or 37 per cent, ended up being arrested again and some of them multiple times—and these were the ones who got caught.
The crimes committed ranged from drug and theft offenses to violent crimes like murder, rape, child cruelty, and spousal abuse. These are nearly 200 re-offending aliens (many of whom were likely arrested for multiple crimes) who would’ve been detained if the clear text of the INA was followed.
On top of unleashing crime on American communities, should SCOTUS side with the Ninth Circuit and the ACLU, the new policy imposed on ICE and our immigration courts could push our immigration system to its breaking point. Mandating bond hearings every six months will likely lead to a jump in frivolous appeals filed by aliens simply to extend their detention to the six-month limit and thereby letting them escape into US communities.
And more fundamentally, to read into the constitution more due process rights for criminal aliens and illegal aliens in general, which the Ninth Circuit’s done, acts like a magnet for more to cross over our borders. And more illegal aliens equal more detentions and a further crowding of courts’ dockets, which will only lead to more delays and more releases.
Our immigration system is by far the most liberal and open in the world. But that’s still not enough for the open-borders lobby. Criminal aliens who feel their circumstances present a rare case in which their detention has become unconstitutional are allowed to mount a challenge against the INA as it’s been applied to them personally. Class actions seeking to permanently overturn whole swathes of our democratically-enacted immigration laws should not be necessary.
But such court-directed overhauls have been taking place for years shrinking every time what our representatives in Congress put in place through the legislative process. As a result, Americans at our southern border and elsewhere continue to suffer under a state of crisis. If the Supreme Court refuses to reverse the Ninth Circuit, this latest effort could push these crisis-levels into outright immigration anarchy.
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