December 6, 2005: Abolish The EOIR (The Executive Office For Immigration Review): Attorney Juan Mann Argues That Enforcement of Immigration Law Is Not Enough. The Endless Litigation Which The EOIR Guarantees Has to End.
December 06, 2005
Abolish The EOIR! Juan Mann's Absolutely Definitive Essay
By Juan Mann (Only Part Of This Essay Is Printted Here. See the Full Essay on the VDARE Web Site.)
There is a dangerous misconception lurking in Americas growing public consciousness about immigration law enforcement. From the man on the street to the halls of Congress, the fatal error persists in the belief that if only current immigration laws were just enforced, the illegal alien invasion of these United States would be over for good.
All would be well if we put the legal mechanisms in place into effect . . . right?
Few Americans even recognize that theres any problem at all with HOW the federal government goes about deporting illegal aliens and criminal alien residents. Securing the Arizona desert was a piece of cake in comparisonremember that the volunteer Minuteman Project showed the world that they could do it in a month!
So whats the problem?
Its too many lawyers, too much litigation and a four-letter word called EOIR.
The problem that hides in plain sight in the current immigration “catch and release” controversy is the litigation bureaucracy of The Executive Office for Immigration Review (EOIR).
The EOIR is a little-known federal agency within the U.S. Department of Justice, It comprises the nationwide U.S. Immigration Court system and its appellate body, the Board of Immigration Appeals (BIA) in Falls Church, Virginia. The EOIR is the centerpiece of a largely unknown de facto stealth permanent amnesty and non-deportation program for illegal aliens and criminal alien residents.
According to its web site,
“[t]he EOIR was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined BIA with the immigration judge function previously performed by the Immigration and Naturalization Service (INS). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of federal immigration laws.”
But the hidden truth about the EOIR is that Americas deportation process for illegal aliens and criminal alien residents is designed for failure. What starts out as deportation becomes perpetual litigation – and relatively few deportable aliens ever leave.
With the complicity of the Department of Homeland Security (DHS), the EOIR litigation bureaucracy forms the concealed piece in the puzzle of institutionalized mass immigration sponsorship by the federal government.
Other than the few summary removal provisions implemented at ports of entry, the deportation of foreign nationals in the United States is largely voluntary.
The lengthy EOIR system of hearings and appeals enables illegal aliens and criminal alien residents to remain in the United States both legally and illegally for years, often in perpetuity.
The EOIR and the DHS bureaucracy enable thousands of detained aliens facing deportation to be released back to the streets on an immigration bond or paroled out of federal custody during the EOIR hearing process – giving them the option of disappearing back into the United States regardless of the outcome of their Immigration Court hearings.
The lack of physical security on the land border exposes the EOIR process for the charade that it is. Deported aliens just walk back in.
The EOIR literally makes a federal case out of every illegal alien and criminal alien resident in deportation proceedings by offering a litigation gateway to the federal circuit courts of appeal, and, sometimes, even to the U.S. Supreme Court.
After reviewing Immigration Court decisions at the Board of Immigration Appeals (its appellate body) the EOIR system offers automatic federal circuit appellate court review for the deportation of every illegal alien and every criminal alien resident in the United States.
With endless available options for filing appeals and motions available to a competent immigration lawyer, EOIR hearings and appeals are never really over until the alien wins.
The Second Circuit Court of Appeals recently had this to say about the EOIR system in the case of Drax v. Reno (338 F.3d 98, 99 (2d Cir. 2003)).
“This case vividly illustrates the labyrinthine character of modern immigration lawa maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike. The inscrutability of the current immigration law system, and the interplay of the numerous amendments and alterations to that system by Congress during the pendency of this case, have spawned years of litigation, generated two separate opinions by the District Court, and consumed significant resources of this Court. With regret and astonishment . . . this case still cannot be decided definitively but must be remanded to the District Court, and then to the Board of Immigration Appeals (“BIA”), for further proceedings.”
Considering the never-ending nature of federal litigation, as well as the laundry list of relief from deportation available in Immigration Court, EOIR “removal” proceedings are really “get to stay” proceedings
Although alleged to be a system for determining whether particular illegal aliens and criminal alien residents are deportable under the law, in reality the EOIR hearing system is designed to give aliens a mechanism to apply for relief from removal and remain in the United States. The EOIRs immigration judges routinely award “green cards” (lawful permanent resident status) to illegal aliens through adjustment of status, and also allow convicted criminal aliens to remain in the United States.
While virtually unknown in the major media, the EOIR is the four-letter word of federal immigration policy.
EOIR litigation represents the livelihood of thousands of immigration lawyers, whose interests are represented by their nationwide lobbying group, the American Immigration Lawyers Association (AILA). The country's over 200 EOIR immigration judges earn from $109,587 to $142,500 per year, plus generous federal benefits.
The bottom line for Americas taxpayers is that the EOIR is just one more monumental waste of government resources. The EOIR unnecessarily formalizes simple review processes that already are entrusted to specially-trained (and most likely lesser-paid) federal employees including consular officers, district adjudications officers, immigration inspectors, special agents, immigration agents, deportation officers and asylum officers all over the country and the world.
A system dedicated to giving formal hearings and appeals for even previously-deported illegal aliens and criminal aliens is a system begging to be abolished – if only immigration reformers in Congress knew it existed.
So after twenty years of fostering federal litigation instead of deportation, it is high time that the EOIR's specific functions be parceled out to federal law enforcement personnel already in the Department of Homeland Security who can do the job of deporting illegal aliens and criminal alien residents.
In reality, the EOIR litigation bureaucracy is the antithesis of real homeland security. As a deportation system, the EOIR is designed to fail, and it does. But as a machine for facilitating mass immigration, the EOIR is a raging success.
WHAT NEEDS TO BE DONE?
Peter Brimelow, editor of VDARE.com, identified the solution in so many words in his 1995 book, Alien NationCommon sense about Americas Immigration Disaster (page 260). According to Brimelow:
“Deportation procedures, for both legal and illegal aliens, should be streamlined, and criminal aliens automatically deported. . . .
U.S. immigration law has already been significantly weakened by activist judges. But there is nothing sacred about a wrongheaded ruling. The answer is to pass another law. When Americans do seize control of their immigration policy again, it will inevitably take the form of an epic clash between legislative and judicial branches.”
So how does Congress go about creating a process to actually deport aliens?
Here are the nuts-and-bolts details:
Take away the EOIRs jurisdiction piece-by-piece in a move towards abolishing the EOIRs nationwide U.S. Immigration Court system and Board of Immigration Appeals (BIA).
Institute summary removal of all illegal aliens and pre-determined classes of criminal alien residents by federal immigration officers without judicial review.
Abolish all stealth amnesty adjustment of status provisions that reward law-breaking (as well as all discretionary “second chances” for criminal aliens) in the Immigration and Nationality Act that are currently administered by the EOIR
Eliminate the immigration benefit fraud magnet of U.S.-based asylum processing at DHS asylum offices run by its Citizenship and Immigration Services (USCIS) division. Create a system where all asylum processing is done exclusively at U.S. Consulates abroad, or by the U.S. State Department for those countries where the U.S. does not have a consular presence.
Eliminate non-immigrant visa-jumping from one category to another, as well as adjustments from non-immigrant to lawful permanent resident status for aliens already in the United States. All aliens wishing an adjustment of status or change of status should be required to exit the United States and receive a valid visa at a U.S. Consulate abroad, in order to make another lawful entry into the United States. Upon reentry, all applicants must then be able to satisfy the requirements for admissibility to the United States once again, including the unlawful presence grounds of Immigration Act Section 212(a)(9).
The most expedient strategy for handling the EOIR litigation bureaucracy and the candy store of immigration benefits it administers (such as asylum and adjustments of status) comes from the playbook of General Colin Powell. Its the same plan he used for the Iraqi army in 1991″first were going to cut it off, and then were going to kill it.”
The EOIR is already marooned.
It is an orphaned agency. Ensconced in Falls Church, Virginia, the EOIR oversees a nationwide Immigration Court system and a Byzantine appellate body, the Board of Immigration Appeals. With the INS abolished and cast out of the Department of Justice, the EOIR now represents a complete mismatch among remaining DOJ agencies, including the FBI, DEA, U.S. Marshals Service and the United States Attorneys.
In the deportation abyss of EOIR litigation, attorneys haggle over “orders of deportation,” while over 300,000 fugitives from those orders and as many as 20 million illegal aliens [as estimated by Bear StearnsPDF] remain loose on the streets.