Posted by: Floyd J Fernandez, J.D. | July 6, 2017

9th Circuit Decisions & Congressional Acts–Maybe

The 9th Circuit Circuit Court of Appeals just made a defiant act, a veritable raking fire at the U.S. Congress, that is indicating that, as long as the present makeup of the U.S. Supreme Court exists, the Circuit is not going to lay down and let the Congress dictate to them their interpretation of the Constitution, especially in regards to immigration.

In the case of ‘Flores v. Sessions’, (Case No. 17-55208), a decision rendered in San Francisco today, a three-judge panel ruled on the effect of two Congressional acts, passed to apply to minors arrested at the border, freshly applied even while Barack Obama occupied the Presidency, but dealing with the rush of tens of thousands of unaccompanied minors to the American border from Central America.  That panel held that these minors still are not allowed to be held by ICE without an opportunity to have a hearing before an immigration judge to determine whether a bond should be granted, and the minor be released to a parent or responsible adult guardian.  The lead judge, Stephen Reinhardt, who was appointed by Richard Nixon in 1969, emphatically said that a 1997 settlement, ironically called ‘The Flores Settlement’, referring to a 9th Circuit case in that year, still applies to both accompanied and unaccompanied minors, and is not set aside by either law.  They included the Homeland Security Act of 2002, and the Traffic Victims Reauthorization Act of 2008.

A companion case from 2016, that dealt with accompanied minors, Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016), would almost certainly be appealed by the Jeff Sessions’ Justice Department to the Supreme Court.  Probably the motives would be half out of a campaign commitment to stop the rush of illegal immigration, and half out of just overwhelmed frustration at a rush of people who have come out of both the terror of a country overrun in their narco gang war, and the fear of the sealing of the border by Donald Trump.

There is a sense that patriotic border patrol and ICE officers, trying to get a sense of order, are deeply upset that they are being held up as gun-toting barbarians, simply because they are trying to stop wholesale release of tens of thousands, even more, into the streets of the country.  So many instances can be recounted by ICE officers of juveniles getting bond, ordered to be released into the custody of U.S. Citizen or Resident parents or guardians, only to find that they have simply disappeared into the countryside, with a majority of them not appearing for their court dates, and not even living at home.

Yet, the simple fact is that there are simply not sufficient facilities to handle all of these minors, and there are insufficient personnel to handle all of these persons in the various detention facilities, and insufficient courts and attorneys and personnel to handle the cases now before them.  And the government has to placate a public howling for stopping the surge in crime committed by those young immigrants who, are not the sad and frightened children, but the tatoo-covered teenagers who taunt and intimidate ICE officers, waiting for their chance to join their “brothers” in Mara Salvatruca 13, and other gang chapters in the USA.

The truth is, frustrated law enforcement and disgusting gangbangers has never been an acceptable excuse to mistreat young boys and helpless mothers of infant children.  The old 8th Amendment is a frustrating reminder that it is the last line of defense between a prison-detention system that is an orderly and restrained symbol of a civilized people, and a gehenna-style chain of holes that cause harm, and even sickness and death.  If the Flores Settlement is still good law, and I suspect it still will be, then it will be up to Congress to make sure that misguided people are returned to their countries without delay.

The House of Representatives passed the twin acts dealing with sanctuary cities and repeat illegal re-entrants who commit violent crimes last Thursday.  There are a string of people who have talked this issue to death, so I won’t join them, except on one issue.  A recent article in by Danny Cevallos addressed the matter of costs of immigration enforcement via withholding federal funds from “sanctuary cities” and those being sent to prison for what would then be felony re-entry.  In effect, he argues that the 10th Amendment would grant the states full rights to federal money, regardless of whether they cooperate with federal authorities, and that holding illegal re-entrants would cost too much more money.  Therefore, he asks, why bother?  He says that the issue can’t be solved by these laws, and that more reform should be passed by Congress to keep more undocumenteds in the USA.  In other words, it’s just too expensive, so do nothing.

Mr. Cevallos is a typical “open borders” activist, who believe there is no such thing as someone who is “illegal.” The notion that anyone should be deported or detained is distasteful to him, after all, the southwest border was drawn as a result of an illegal war from 1846-48, therefore any kind of aggressive immigration enforcement is a guilty shame.  However, we don’t stop prosecution and incarceration of other criminals simply because of the cost. And since I believe that the Mexican War was a just and moral one, the notion of guilt goes nowhere with me.  The sovereign borders of the U.S.A have been recognized as legitimate for 170 years, and shall continue to be.

Therefore, the entitlement personality of many on both sides of the border needs to be altered….permanently.  Once done, then there is room to let cooler heads prevail, and start with the warm blood of compassion, flowing to give space to those long-time, law abiding persons, who would live as productive Americans, with a path to full legalization.  But it would be done in a country with secure borders, not as the act of intimidated sheep.

–Consigliere Texicana–


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