Posted by: Floyd J Fernandez, J.D. | June 21, 2017

Of Trump, Of ICE, & Of Frustration

The last week in the world of immigration law has been a study of contradictions, frustrating contradictions.  On one hand the head of ICE, that is, the acting head of ICE, Thomas Homan, was giving answers to those who demanded he act with some semblance of understanding to those whose families were under the threat of being fractured with deportation, when he said, “Those who are ‘in the shadows’ need to be looking over their shoulder.  They should be worried.  They have committed a crime in being in the country illegally.”  By the way, unless they have been arrested coming over the border before, 8 U.S.C. Sec. 1324 is not a crime in its violation, but a civil infraction.  ICE’s acting head should know better.

In the meantime, President Trump grants complete satisfaction to those who are DREAM kids, by ordering that the Deferred Action for Childhood Arrivals (DACA) continue indefinitely.  Mr. Trump is doing much to short-circuit the narrative in the media and among political activists…on the left.  And he is getting plenty of cover, in the actions of federal immigration judges handslapping ICE officers trying to deport DACA holders who get arrested precisely because they were protesting heavyhanded removals of law-abiding immigrants by ICE under Trump.

The Supreme Court is also getting in on the act.  In the recent case of  ‘Sessions v. Santana-Morales’, 136 S. Ct. __ (2017), they held that the Equal Protection Clause forbade giving different standards for qualifications for children of male vs. female U.S. citizens to have American citizenship derived to them.  It was not a hotly contested case, but was virtually unanimous (Justice Thomas concurred in the result only).  The effect of that decision was to walk the area of immigration law closer to that of the rest of the body of law.  For most of American legal history, the ‘plenary power’ doctrine gave almost complete control of the realm of immigration law to the executive branch.  But for the last two decades the movement of the American judiciary has been to interpret the law to allow for judicial review of persons affected by immigration activity to the same acknowledgement of rights and privileges as those in other fields of the law.

The fact is that President Trump’s aggressive actions toward those seeking refugee or other immigration status from predominantly Muslim nations presently wracked with war and terrorism may be the very thing that a hostile judiciary and legal system will use to pretty well pull the plug on the ‘plenary power’ doctrine.  Such a move will subject all executive-administrative actions in the immigration field to judicial review.  On one hand that would begin to stop what has often been runaway abuse of authority by unelected bureaucrats that can harm not just foreigners but American citizens and legal residents that are seriously and negatively affected.  On the other, a grave danger exists that American legal rights would be extended to non-citizens who are not residing in the USA, that would at best flood and choke our already dysfunctional immigration system to collapse.  At worst, it would make the whole concept of national sovereignty meaningless, with disastrous results.

The amazing thing is that, by an Act of Congress, passed in December 2015, there is a ban on travel by individuals coming out of the affected 6 countries already!  Not only are those from those countries not able to come to the USA without individualized review from the various departments working together (DOS, DOD, CIA, DHS), but those citizens of Visa Waiver-eligible countries, mostly in Europe, who had visited those countries, are ineligible to use VWP or come in at all, unless cleared as a government employee or another special waiver.

I am also amazed at how President Trump has now decided to make a new overture to those who are either undocumented, or those who are sympathetic to them.  In a meeting with high-tech executives from Silicon Valley, he dropped the bomb of actually supporting comprehensive immigration reform!  This would, you would think, have his political opponents singing praises to God (but then, many of them don’t believe in Him–yes, HIM!) over this incredible willingness to compromise, but I am not surprised that the response is….”crickets.”  

But it will not be always thus.  

Postnote:  I apologize for the amateurish link cover for the entire last paragraph.  Somehow the field for the blog server simply would not allow me to block off the single sentence I would use, so I had to settle for what it would allow me to get the link on to the article by RedState on President Trump’s concession on immigration.  If he follows through, it IS huge!  Just blame WordPress, they’re probably leftists, anyway.  Ciao.

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