Good News! There's Some Executive Branch Action On Immigration—If You Know Where To Look
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Asking the sobering question "Three Years After 9/11: Is The Tragedy Just Beginning?" Peter Brimelow analyzed the current state of the two possible answers to terror that he identified after 9/11:

  • war abroad;

  • immigration reform at home.

Brimelow wrote:

"In contrast to the enormous national effort expended on the war abroad, there has been absolutely no statutory and essentially no executive branch action on immigration reform at home. And incredibly, President Bush's Homeland Security Undersecretary Asa Hutchinson has just celebrated the 9/11 anniversary by telling reporters that it is 'not realistic' to reduce the 8-12 million illegal aliens now in the U.S. and that it is 'probably accurate' that no law enforcement officers are looking for them. ["Rounding up all illegals 'not realistic,'" by Jerry Seper, Washington Times, September 10, 2004.]

I'm not quite so pessimistic. Like scouring a forest for footprints and broken twigs, there are some signs out there of improved executive branch immigration enforcement—if you know where to look.

I'd give the executive branch a solid five (5) out of a possible 100.

And that's progress.

Of course the legislative branch does get zero (0) out of a possible 100—and Congress' potential influence on immigration policy is infinitely larger than that of the executive branch.

But, eventually, reality will reach Congress.

So into the woods we go!

By progress, I'm not talking about the massive Department of Homeland Security (DHS) reorganization, which was largely cosmetic. And it's obvious that Asa Hutchinson is cut from the same mold as the Bush Administration's first (and last) Immigration and Naturalization Service Commissioner, James Ziglar.

Just by opening their mouths, Hutchinson, Ziglar, and DHS Secretario Tom Ridge (the similarity in their statements is uncanny) have all served notice on society that they are unable and unwilling to enforce the immigration laws of the United States.

But the executive branch action hero for immigration law enforcement since 9/11 is Attorney General John Ashcroft in the Department of Justice (DOJ).

Here's what has been done since 9/11:

  • In November 2001, Attorney General Ashcroft designated aliens arriving "at sea" as falling under the most glorious and wonderful expedited removal provisions of Immigration Act Section 235(b). For those with a flair for the dramatic, you could make a case that Ashcroft effectively stopped a Camp of the Saints-style sea invasion in its tracks with the stroke of a pen. Maybe someone up there read my first suggestion on

  • On the land border front, the DHS announced a teeny-weeny expansion of Section 235(b) in August, 2004. Though Congress already authorized the expedited removal of all illegal aliens found anywhere in the U.S. within two years of their entry, the DHS only just recently authorized this authority—and only for illegal aliens found within 100 miles of a land border within two weeks of entry. The Treason Lobby howled anyhow. This is only the second such implementation in eight years. But it's undeniably a step in the right direction. The DHS supertanker could slowly be starting to turn.

  • In February, 2002, in a much needed crack-down on renegade DOJ attorneys-in-robes issuing decisions contrary to law, Attorney General Ashcroft cut the size of the bloated Board of Immigration Appeals (BIA) within the Executive Office for Immigration Review (EOIR), from 23 to 11 members. Anytime even just one pro-alien darling of the Treason Lobby gets kicked out of a decision-making position is cause for celebration. But twelve in one shot?? . . . Three cheers (well, at least two) for the Attorney General!

  • In December, 2003, just before the DHS reorganization that moved immigration law enforcement officers outside of the DOJ, the Attorney General secured immigration arrest authority for the G-Men at the Federal Bureau of Investigation. As far as I'm concerned, any bad news for immigration violators who are terrorism suspects is good news for America. Just think: You overstayed that visa? Maybe the FBI is watching you?

  • During 2002, the DOJ's Office of Immigration Litigation and Office of the Solicitor General pursued appeals of several horrible circuit court decisions that created new "rights" that meant the non-detention of criminal aliens. The DOJ's efforts paid off in April, 2003, when the Supreme Court actually issued a coherent decision [PDF] in Demore v. Kim. The Supreme Court stopped the Treason Lobby's lawyers in their tracks, ruling that when Congress provided for mandatory detention of criminal aliens in Section 236(c) of the Immigration Act, it meant just that—MANDATORY DETENTION!

  • The final 9/11 Commission report was completely devoid of real immigration law enforcement . . . but at least they looked at the issue of identity documents for illegal aliens. Well, sort of.

  • The Attorney General ordered the Chief Immigration of the Executive Office of Immigration Review, Michael J. Creppy to issue the now famous "Creppy Memo" shortly after 9/11. Citing national security, the directive closed Immigration Court proceedings to the public for all designated "special interest" cases i.e. aliens involved in terrorism investigations. EOIR Immigration Court proceedings are conducted within the executive branch, under the authority of the Attorney General, so Ashcroft was entirely within his authority to make this move. The Treason Lobby, including its outpost at the American Bar Association, promptly [PDF] denounced the "secret hearings"—a good sign!

  • The NSEERS (National Security Entry/Exit Registration System) required foreign nationals from the usual laundry list of terrorism-supporting countries to report to immigration authorities and prove their legal immigration status in the U.S.—or else! The Treason Lobby howled, of course.

Unfortunately, NSEERS was subsequently suspended by the DHS. There's still a long way to go.

But, from an immigration enforcement standpoint, America is better off having John Ashcroft in the Attorney General's office than in a U.S. Senate seat representing Missouri.

Juan Mann [send him email] is a lawyer and the proprietor of

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