In our days at the immigration court, it always was a serious and somber moment when at the conclusion of a hearing we rendered a decision finding an illegal alien inadmissible or deportable, denying all applications for deportation relief, and issuing an order removing that alien back to their home country. The issuance of such an order would immediately be followed by an advisory letter to the alien explaining their rights to appeal and warning them of the criminal consequences of re-entering the country without proper authority. But now, that process is entering into the absurd.

Our former colleagues are now being forced to tell deportable aliens that the final deportation order they’re issuing isn’t actually an impediment to receiving the President’s grants of deferred action. Even though the alien’s violated our immigration laws (and dozens more in some cases), they’re now being advised that they can receive work permits, a social security card, tax benefits, parole, travel documents, and, if the alien is from Central America, the opportunity to bring qualifying family members to the United States at taxpayer expense. And even they’re not eligible for deferred action, they know they should simply sit tight as DHS may issue more policy memoranda expanding eligibility for deferred action and additional benefits.

Past and continuing lapses in enforcement policy have resulted in nearly 900,000 illegal aliens who have received final orders of deportation and have exhausted all appeals but who are still in the United Sates. Nearly 175,000 of these aliens with final orders are convicted criminals and 167,000 of these criminal aliens remain at large. The number of “non-departed” aliens grew by about 25,000 cases from 2013 to 2014. It is evident that current immigration enforcement policy under the Obama Administration is increasing and promoting illegal immigration rather than solving the illegal immigration problem.

America’s immigration court system is the most complicated in the world, but it’s still perhaps the most fair. An immigration court hearing affords an illegal alien with a full range of due process rights and the immigration judge must consider all evidence of record relating to the alien’s immigration history, criminal history, moral character, and humanitarian concerns. The judge’s decision must be based on a finding that the alien is deportable under at least one of the statutory grounds set forth in the Immigration and Nationality Act. The decision must also address the alien’s eligibility for any form of relief from deportation requested and contain a factual and legal analysis of the alien’s claims, including discussion, if relevant, as to whether a judge should grant deportation relief. The immigration judge’s authority to do this is limited by the provisions of the INA, DHS regulations, and established case law precedent. Any digression on the part of the judge from the rigorous principles imposed by law would result in a reversal of the immigration judge’s decision by an appellate review body—the Board of Immigration Appeals, a Circuit Court of Appeals, or even possibly the US Supreme Court. This was the system until President Obama was elected.

DHS has also no statutory authority to ignore or rescind an immigration judge’s final deportation order and yet this is what’s happening. Immigration judges retain jurisdictional authority over all immigration cases until the alien is physically removed from our country. Any rescission or reopening of a final order must be done by the immigration court or appropriate appellate body. DHS is only a party to an immigration proceeding and is subject to the immigration court’s authority and must be compliant with the court’s orders. Although DHS has been delegated with the ministerial duty to execute the removal order and physically remove the alien from this country that does not mean it is empowered to formulate policies for the removal of illegal aliens which conflict with the immigration court’s directives and the statutory removal process.

It is particularly egregious for DHS to empower midlevel bureaucrats with limited knowledge or experience in administering all the other provisions of the INA to adjudicate deferred action applications. The department guidelines they apply in rubber-stamp fashion nullify the orders of immigration judges who after a full hearing has analyzed the alien’s case and rendered a decision in conformity with the INA and established case law precedent. Deferred action adjudicators within the department could not be expected to know if an alien has a permanent bar to adjustment of status which would not be discoverable in the partial screening of such cases. Examples would be aliens who have made a false claim to citizenship, filed a frivolous asylum application, or participated in marriage fraud.

Deferred action is a concept which originated as merely an administrative convenience to the government which gives some cases lower enforcement priority with no rights or entitlements to the alien into an expanded illegal alien benefit program whose beneficiaries receive not only immunity from deportation proceedings but also the entitlements reserved by statute for those with proper legal status.

DHS acknowledges that being granted deferred action does not confer legal status to an illegal alien. But, in a tribute to circular reasoning, they assert that by using their authority in granting deferred action they have bestowed upon the alien the right to be ‘lawfully present’ even though they have no legal status and have not been granted visa or any other document establishing their legal basis to be here.

The INA was enacted to establish the statutory framework for the removal of illegal aliens. The “temporary” executive action programs are not premised on an assumption that the current law will remain in effect (which, as DHS well knows, mandates the removal of illegal aliens), but rather that it will be replaced with an amnesty law that will let those who’ve violated our immigration laws to stay here. In other words, DACA and DAPA are two guns held to the head of Congress and the courts pressuring them to break the current impasse in immigration enforcement policy. And until that happens, the resources expended in trying to prevent the removal of illegal aliens will continue to drain resources that could and should have been used to control our borders and expedite legal immigration.

It appears to us as former immigration judges that the final removal orders we used to issue don’t seem to be ‘final’ anymore.

The Honorable Elizabeth A. Hacker and The Honorable Mahlon F. Hanson are board members of the Immigration Reform Law Institute. 


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