Michelle Malkin
Criminal aliens and their lawyers are rooting mightily for the Senate's version of the Homeland Security bill now being debated in Washington. That's because buried in the legislation is a very dangerous proposal to grant unprecedented power to a secretive, soft-on-immigration crime bureaucracy that oversees deportation appeals. Under Title XIII of S. 2452, dubbed the "Immigration Reform, Accountability and Security Enhancement Act of 2002," political appointees on the Board of Immigration Appeals would be elevated to the level of statutory appellate judges. They could formally reopen any final order of deportation and reopen the factual findings of trial courts at their discretion. Such procedures trample over bedrock principles of appellate review within our judicial system. No other appellate body in the country has the same power to retry the facts of cases on appeal, including the federal court system. This means that criminal aliens get "two bites at the apple" -- two opportunities to present their facts. It's a legal advantage that American citizens themselves do not enjoy when pursuing matters in the federal courts. Once the board determines that illegal aliens, asylum seekers and criminal aliens convicted of violent felonies can stay in this country, these decisions would be the final word. Here is why you should be afraid: The bill would completely strip the attorney general of his longstanding ability to administratively overrule the board -- as he did recently in the outrageous case of Melanie Beaucejour Jean. She was a Haitian nanny convicted of second-degree manslaughter in the beating death of a 19-month-old boy from upstate New York in 1995. In May, Ashcroft reversed a bleeding-heart ruling by three Janet Reno-appointed members of the board who had argued that Jean should be allowed to stay in the United States because the brutal killing of a defenseless child did "not constitute a crime of violence." We don't know just how rampant such unconscionable legal reasoning by the board really is because the majority of its decisions are unpublished. But among the criminal alien appellants who have prevailed in published board decisions are repeat drunk drivers, sexual abusers, burglars, drug offenders and other aggravated felons who escaped deportation on convoluted technicalities. The unaccountable appeals board has been a major obstacle in immigration law enforcement, and by extension, the War on Terror. Ashcroft highlighted the panel's abominable record earlier this year when he unveiled a package of reforms to streamline its decision-making process. The board receives more than 270,000 cases a year, and recently had a massive backlog of more than 56,000 pending cases. It is a sham deportation system that has spawned more than 314,000 fugitive alien deportees, with an unknown number of potential terrorists and violent criminals among them. Among us. As Ashcroft noted: "The backlog gives unscrupulous lawyers an incentive to file frivolous appeals in which the immigrant has no valid argument. Even though they cannot win, they are able, using the system, to guarantee the client additional years within the border of the United States. By exploiting this bottleneck in the system, such lawyers allow individuals who are here in violation of our laws to remain here even longer . . . we cannot and we will not allow an administrative bottleneck to threaten our national security." Creating bottlenecks is the bread and butter of the immigration lawyers' lobby. That is why they and their friends in high places (such as the legislative staffs of Sens. Joe Lieberman and Teddy Kennedy) are livid at Ashcroft's attempts to rein in the board. Their poison pill -- secretly snuck into the Homeland Security bill with no public debate -- is perilously petulant payback disguised as "reform" and "accountability." Isn't it time to stop putting profits and politics ahead of national security?

Michelle Malkin

Michelle Malkin is the author of "Culture of Corruption: Obama and his Team of Tax Cheats, Crooks & Cronies" (Regnery 2010).

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