It Ain't Over 'til the Alien Wins

By Mark Krikorian on May 15, 2016

"Immigration cases — like old soldiers — seem never to die."

That's the opening line of the First Circuit Court of Appeals ruling in a recent case that exemplifies the relentless war on America's borders being waged by immigration lawyers and their illegal-alien clients.

This is an utterly conventional case, like thousands of others that clog the courts, the result of "serial attempts to revisit a final order of removal" (a deportation order), in the words of the ruling. The alien plaintiff's 20-year campaign of lies and immigration fraud shows what our immigration-enforcement system is up against.

Jose Garcia is a Dominican who entered into a fraudulent marriage with a U.S. citizen in 1996. (There's no information on how he got here in the first place — if I had to guess, I'd say on a visitor visa with the intent to stay — another fraud.) Two years later, as the law stipulates, he applied to have his provisional green card converted to a regular one; the fraud was uncovered and the application denied. The INS then started the process of deporting him.

And "process" is the right word, because only in 2009 — 11 years later — was he finally ordered removed by an immigration judge; and that was only because he didn't show up for a hearing. His lawyer then petitioned to have his case re-opened, claiming he'd been stuck in traffic. (That, along with "I never got the notice in the mail," are the most common lies used to justify skipping an immigration hearing that isn't expected to go your way.) The immigration judge said no, Garcia appealed to the Board of Immigration Appeals (BIA — the body between the immigration judges and the regular federal courts), then changed his mind and said he wanted to go home. So in 2009, 13 years after entering into a fraudulent marriage, he was removed to the Dominican Republic (at taxpayer expense).

In 2012 he came back illegally. The ruling doesn't say how; every year the Border Patrol does arrest a modest number of Dominican infiltrators, and others are arrested trying to fly from Puerto Rico to the United States using fake or stolen documents showing that they're Puerto Ricans. In any case he was charged with the felony of re-entry after deportation. In response, he filed to re-open his deportation case by claiming "ineffective assistance of counsel" back in 2009. He (through his new lawyer, presumably) claimed his 2009 lawyer hadn't moved to re-open the case after he'd been ordered deported. When that turned out to be a lie, "the petitioner switched gears and argued that the filed motion to reopen was 'terribly flawed' as it had not included a sworn statement from the petitioner himself."

He appealed to the BIA, was turned down, and then a year ago filed an appeal to the federal courts (the immigration judges and BIA are Justice Department civil servants, not actual judges). It's likely that during this whole time he's been out on bail and had a work permit, to boot; in other words, he's enjoyed four years (so far) of what he came here for in the first place — to live and work in the United States.

This latest ruling turned down his petition for judicial review, but who knows how long it will be before he's prosecuted for illegal re-entry (if Obama's Justice Department bothers to prosecute him at all), or if he'll simply run off and never be heard from again — until he commits vehicular homicide or some such.

The point of detailing this entirely typical 20-year saga of fraud, delay, and prevarication is to show that enforcing immigration laws requires a much more streamlined process for removing violators. Because the deportation of non-citizens is a civil, not criminal, matter, due process is whatever Congress says it is, and non-citizens must be provided fewer bites of the apple in challenging their removal. Congress needs to exercise its plenary power over immigration by, among other things, expanding "expedited removal," a tool defined in 1996 that "circumvents any judicial involvement from either the executive branch immigration courts or the judicial branch courts." It must also insist that the executive use this power to its maximum extent.

When the 1996 immigration law was passed — it created expedited removal among many other measures to stiffen immigration enforcement — the then-head of the immigration lawyers' association told me he assured his members that the bill was a testament to their effectiveness; in other words, they had so thoroughly obstructed enforcement of the laws that Congress had felt the need to push back. It's long overdue for Congress to push back some more.