Activist Circuit Court Decides Law Doesn’t Mean What It Plainly Says

Welcome to the world of immigration law — a down-the-rabbit-hole, through-the-looking-glass kind of place where nothing is as it seems on the surface, and words don’t mean what they plainly say; a place one of my colleagues rightly describes as “Bizarro World”.

The most recent evidence of this modern American phenomenon comes courtesy of the federal First Circuit Court of Appeals, which in a recent decision has asserted that the statute enacted by Congress and signed into law by the president (albeit not this one) that requires detention of certain kinds of alien offenders — usually aliens deemed to be “aggravated felons” under the law because of the crimes for which they have been convicted —doesn’t apply if federal immigration agents are unable to locate and arrest them soon after their release from custody by state or local criminal justice or correctional systems.

Instead, the court has ruled, such aliens must be given the opportunity to post bond. That sounds reasonable, right? It does, until one considers that a large percentage of aliens released from custody either fail to show up for their hearings or flee if the order of the immigration judge isn’t to their liking. That percentage has been measured in the past, and found to exceed 40 percent of all aliens, even those not convicted of crimes. Common sense tells us that a much higher percentage of aliens who have been convicted of serious crimes will abscond. After all, the chance of them being eligible for any kind of discretionary relief from removal is close to zero. There is every reason to get outta Dodge while they can.

So why does it take immigration agents months, sometimes years, to track down such aliens before taking them into custody? It’s not all that hard to figure out. First, consider that, right now, there are nearly 900,000 absconders already in the immigration system, which is tottering on the edge of collapse. (That figure has nearly doubled in the time President Obama has been in office, due to ill-considered and lenient detention policies enacted at the behest of advocacy groups.) Then there is the complicity of the administration in allowing its key tool — the use of detainers to hold aliens in police and correctional custody until ready for turnover to immigration agents — to wither away. At the behest of, and in response to threats of lawsuits from those self-same advocacy groups, well over 200 agencies (including some very major metropolitan police and sheriffs offices) now refuse to honor detainers. That means immigration agents don’t even know when alien felons are released into the community to disappear into the woodwork for as long as they can, hoping the agents do in fact take years to find and arrest them, if ever.

So now we close the circle and the advocacy groups allege that it is unconstitutional for immigration agents to want to hold such aliens in detention — even though the very fact of not having been able to find them for years would seem to show that they are flight risks — pending their hearings and removal. And the First Circuit Court has bought that logic.

The only thing more disturbing than all of this is that, according to the court, “Despite its years-long delay in bringing removal proceedings after the petitioners’ release from criminal custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or, for that matter, in the other cases where individuals have been detained years after release.” (Emphasis added). Go figure.

As I said, this administration is complicit in dismantling the gears of immigration law enforcement, and the price will be paid by communities throughout the nation for years to come. After all, felons of all stripes — aliens or otherwise — are more likely to be recidivists than your run-of-the-mill everyday man on the street.

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