About two months before the 9/11 attacks, the Supreme Court took a more active role in immigration regulation than it ever had before in Zadvydas v. Davis, a case that effectively forced the release of thousands of criminal aliens into the United States. The case illustrated the disastrous consequences of the judicial branch abandoning the plenary power doctrine, which holds that the political branches — the legislative and the executive — have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. A full analysis of the troubling Zadvydas case is available on our website.
At a recent hearing, Rep. Sandy Adams (R-FL) brought this issue to the forefront, asking DHS Secretary Janet Napolitano, "Isn't it true that if [criminal aliens] are in a deportation status and their home country will not accept them, that you release them back into the communities based on a ruling?" A video of the exchange is available online.
Napolitano referenced Zadvydas, saying the ruling "gives us about a six-month detention period."
Rep. Adams provided a number of horrific examples of violent aliens being released back into the United States who have gone on to commit additional crimes. One example of a criminal alien being released is Cambodian Loeun Heng, who brutally murdered 16-year-old Ashton Cline-McMurray, a disabled Massachusetts boy; CIS's Jessica Vaughan discussed the case here.
Tens of thousands of criminal aliens have been released into American communities since the Court's ruling, according to the Inspector General, endangering countless lives.
But these releases can be avoided: Federal law requires that the Secretary of State discontinue granting visas to all residents of a country that refuses to repatriate its nationals. Under such a threat, no country is going to tell the United States to go pound sand. In 2004, the GAO found this provision had been used once in 2001; though it had been refusing, Guyana issued travel documents for their 112 nationals within eight weeks. The law reads:
Discontinuing granting visas to nationals of country denying or delaying accepting alien. On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Attorney General notifies the Secretary that the country has accepted the alien. [8 U.S.C. § 1253; Note: Since the creation of DHS, the DHS Secretary assumes the responsibilities of the Attorney General in this provision.]
Rep. Adams pressed Napolitano on this statute, asking whether the government has followed this law and denied visas to the countries refusing to take back their nationals.
Napolitano answered, "We have not — what we have done is work with … countries that systemically refuse to accept their aliens back."
"So you're telling me you have not done any?" asked Adams.
"Not that I am aware of," said Napolitano.
Napolitano promised to go back and research the matter, but if her statement is accurate it means that Secretary of State Hillary Clinton and Secretary Napolitano are failing to follow federal law and endangering Americans in the process.
Rep. Adams has issued a letter to Napolitano asking for specific data on whether or not the government has followed the statute.
In a video interview with the Daily Caller, Rep. Adams says she has given DHS until November 18th to respond.