Don’t reward illegal immigrants for breaking the law

Should foreigners who enter the United States illegally enjoy the same privileges as those who submit to inspection and are lawfully admitted? That was the question before the Fifth Circuit Court of Appeals this term, and it rightly decided that those who enter illegally can be detained without bond hearings while their deportation cases are being processed. The Supreme Court recently agreed this fall to hear a similar case and will most likely follow the Fifth Circuit’s reasoning.Before 1996, the Immigration and Nationality Act contained a loophole that incentivized those seeking to enter the U.S. to break the law. Those without authorization to enter the country who presented themselves at a port of entry were subject to mandatory detention while their deportation cases were processed, while those who crossed illegally and were arrested in the U.S. were allowed to seek, and were often granted, release on bond.Congress closed this loophole with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Under the new law, Congress created two sets of removal procedures: one for aliens who have been “admitted” to the U.S. and another for those who have not. All aliens who crossed the border illegally and entered without inspection, regardless of how long they have been in the U.S., are considered “applicants for admission” and are subject to mandatory detention until they are deported. By contrast, those who entered the country legally on a work, student, or travel visa would be considered “admitted” and would be entitled to bond hearings if they overstayed their visas and were arrested before deportation.Fast forward to the second Trump administration: Three illegal immigrants, all of whom entered illegally, had been in the country for at least 10 years, and were arrested during traffic stops, challenged their mandatory detention without bond hearings on Fifth Amendment grounds.Writing for the majority, Judge Cory Wilson notes that “There is no dispute that Petitioners enjoy the protections of the Fifth Amendment,” but goes on to explain that “the question is what specific process is due for unadmitted aliens pending their removal proceedings—bearing in mind that Congress enjoys ‘broad power over naturalization and immigration’ and ‘regularly makes rules that would be unacceptable if applied to citizens.’”Wilson then traces the history of the Illegal Immigration Reform and Immigrant Responsibility Act and shows that Congress had illegal border crossers exactly like the petitioners in mind when it wrote mandatory detention into the law. Nothing in the law contemplates “flight risk” or “dangerousness” as factors for the government to consider when detaining illegal border crossers. The only questions are whether this person is in the country illegally and whether the person was properly admitted. Once the government has established illegal presence and the absence of lawful admission, no further legal process is due.The dissent, written by Judge Leslie Southwick, acknowledges that the petitioners entered the U.S. illegally and that the statute applies to them, but argues that their established residence in the U.S. affords them constitutional protections beyond those available to foreigners seeking entry at the border.In other words, Judge Southwick wants to confer special privileges on those illegal immigrants who have successfully evaded law enforcement for years. He literally wants to reward successful illegal behavior. Worse, he offers no boundaries or limits to this creation of special privileges for illegal immigrants. How long must an illegal immigrant be in the U.S. before he is due a bond hearing? Southwick doesn’t say. How long must the detention last before a bond hearing is due? Southwick is silent. He has no answers to these questions because his position has no basis in statute or the Constitution.BARACK OBAMA’S ANTISEMITIC DEMOCRATS“A nation ceases to be a nation if it can’t protect its borders,” Judge James Ho writes in his concurring opinion. “Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings.”Ho continues, before noting that the dissent would substitute its own judgment for Congress’s on how to secure the border. Congress closed the illegal border-crosser loophole in 1996. The Supreme Court should keep it closed.