National Security

SCOTUS-Enabled Criminal Alien Insanity

The courts' interference with immigration policy is making matters far worse.

Arnold Ahlert · Sep. 12, 2016

The Left’s odious machinations with regard to illegal immigration are far more extensive than most Americans realize.

On Sept. 3, 2016, Fresno County correctional officers Juanita Davila and Toamalama Scanlon were shot and critically injured by 37-year-old Laotian national Thong Vang. In 2014, the gang-banger finished a 16-year prison sentence for charges related to the abduction, forced confinement and rape of three girls between the ages of 12 and 14. Following his parole, Vang was supposed to be deported. Yet when Laos failed to respond to an Immigration and Customs Enforcement (ICE) request to assist in his removal, Vang was released to the streets in December 2014.

Hillary Clinton is in the eye of the storm. Center for Immigration Studies (CIS) Director of Policy Studies Jessica Vaughn explains, “In 2011, Hillary Clinton signed a formal agreement between the State Department and Department of Homeland Security (DHS) that pledged she would take action and put diplomatic pressure on uncooperative countries to take back their citizens, but instead Clinton’s State Department gave Laos a pass on this issue.”

Vang is the tip of the iceberg. In 2015 a whopping 3,735 illegal immigrant Laotian criminals were ordered deported, but when Laos refused to cooperate, they were also freed.

ICE’s explanation for the outrage? “When Laotian officials failed to respond to that request, ICE released Mr. Vang in December 2014 due to the Supreme Court’s ruling in Zadvydas v. Davis,” stated ICE spokeswoman Virginia Kice.

Zadvydas v. Davis? “In its second decision this week affirming the rights of immigrants, the Supreme Court ruled today that the government may not detain deportable aliens indefinitely simply for lack of a country willing to take them,” The New York Times reported in June 2001. “The 5-to-4 decision rejected the government’s view, as argued by both the Clinton and Bush administrations, that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.”

That would be a 5-4 decision engendered by leftist Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg, Stephen Breyer, and David Souter, who despite being appointed by George H.W. Bush, became “one of the most reliable members of the court’s liberal wing,” as the Times put it. And as is the habit of SCOTUS’s leftist element, these Justices took it upon themselves to legislate from the bench and abandon the “plenary power doctrine.” While the Constitution confers no immigration direction on any branch of government, various statutes and regulations created and adopted by the legislative and executive branches, a.k.a. the “political” government branches — coupled with a historical hands off approach by SCOTUS — evolved into the plenary power doctrine. It granted the political branches the sole power to regulate immigration as a basic character of national sovereignty. This doctrine allowed the political branches to exclude or deport aliens or deny them certain benefits based on a number of considerations, without judicial branch second-guessing.

As a result, Congress granted the U.S. attorney general the power to hold an alien in custody for a 90-day period following a final removal order. Prior to SCOTUS’s decision, the AG was also granted congressional power to hold an alien beyond 90 days for public safety reasons or otherwise, including the reality the bureaucratic process moves at a glacial pace.

Writing for the majority, Justice Breyer stated that holding someone indefinitely would pose a “serious constitutional threat” under the Fifth Amendment’s due process guarantee. The court determined the law permitted only “reasonable” detention, which SCOTUS arbitrarily pegged at six months, if deportation did not seem likely in the “reasonably foreseeable future.” If the government had an interest to extend the detention beyond that length it would have to come up with special reasons for doing so. As a result, the two defendants in the case, Kestutis Zadvydas, a convicted thief and cocaine dealer, and Kim Ho Ma, a convicted killer whose appeal was combined with Zadvydas,‘ were set free.

Thus, the Judicial Branch granted itself the final say on who stays and who gets deported. Moreover, based on this odious decision, lower courts have taken it upon themselves to adjudicate immigration policy as well.

Note that SCOTUS did provide the government a bit of wiggle room, if it determined there were egregious enough reasons to detain an alien beyond the six-month period. Yet note further that doing so would require a certain level of bureaucratic efficiency, a no-nonsense approach with recalcitrant nations, and a steadfast determination to remove from the streets of America as many dangerous criminal aliens as possible.

It is no secret a thoroughly corrupt Obama administration is oh-for-three.

The results of the SCOTUS ruling, combined with the Obama administration’s calculated torpor, have been catastrophic. In 2013, ICE released 36,007 criminal aliens from its custody. In 2014, 30,558 criminal aliens were released. Last year (ICE) released 19,723 criminal aliens from custody, a group with a combined total of 64,197 convictions, including 1,286 for sexual offenses, 216 for kidnapping — and 208 for murder. And once released, many of these criminal aliens committed additional crimes, including 124 charged with homicide.

“Just to see our mother in the condition she is, because we’re so used to seeing her laughing, joking, and being there for us,” lamented Juanita Davila’s daughter, Cristal, at a press conference in Fresno. The city of Fresno has denied being a sanctuary city. Yet according to a Declined Detainer Outcome Report (DDO) compiled by the DHS, Fresno County is, meaning it defies federal immigration law. It is a defiance practiced by hundreds of cities and counties across the nation, not one of which has been challenged by the Obama administration for doing so.

And in an infuriating consistency, neither are the countries who refuse to take back alien criminals. Regarding Thong Vang, America re-established normal diplomatic relations with the communist government of Laos in 1992, and in 2012, then-Secretary of State Hillary Clinton visited the nation, marking the first one by a secretary of state since 1955. Moreover in 2014, Laos received $33.9 million in aid from the U.S.

In other words, we have leverage if we want to use it. What are we doing instead? In addition to abiding the aforementioned 3,735 illegal and criminal Laotian aliens, Vaughn reveals the State Department “gave out more than 11,000 temporary visas in the last five years in Laos, despite the requirement in federal law that they impose visa sanctions on countries that won’t take back their citizens.”

Rosemary Jenks, NumbersUSA Director of Government Relations, asks the essential question. “If you have a pool of convicted, violent criminals in the country, and you have an easy, legal way to get them out, what possible excuse can this administration come up with for not doing that?”

Answer: the determination to engender the fundamental transformation of the United States of America by any means necessary. Even if it leaves two correction officers fighting for their lives — and thousands of other Americans mourning their dead.

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