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
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
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unpublished.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.
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?