Category Archives: immigration

A Sanctuary City Success

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New York City is a sanctuary city.  There are more than eight million stories in the city. Here is one of them.

Within the three months, from January to mid-April this year, ICE prepared more than 440 detainers against aliens booked by NYPD or NYDOC. Nearly 40 individuals who were released from custody, reoffended and were again arrested for crimes by local law enforcement officers.

That’s a 9% repeat offense rate, and those repeats happen quickly.  Here are some of those releases.

A 43-year old man from China was released in March after being arrested for Criminal Possession Controlled Substance…, then re-arrested for Criminal Possession Controlled Substance…in April.

And

A 28-year old man from Azerbaijan was released in February after being returned on a warrant for a Criminal Trespass…, then re-arrested in April for Grand Larceny…. [This one also is a violent offender, with an assault conviction in his history]

And

A 20-year old from Guatemala arrested for a felony count Assault 2nd Degree: Injure Victim 65 or older and released in January, arrested in February for Felony Grand Larceny, and arrested again in March for Resisting Arrest

And

A 28-year old Salvadoran man arrested for Assault in March was released, then again arrested for Robbery in April

Yes, indeed, that’s a success.  For illegal aliens who also are serious criminals.

National Sovereignty

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The European Court of Justice has decided it is the arbiter of a nation’s borders and of entry permissions, and not the nation itself.

The court heard the cases of two men, one Afghan and one with Croatian and Bosnian citizenship, and ruled the severity of their crimes or alleged crimes and how long ago they took place need to be taken into consideration before an entry ban is permitted.

The ECJ ruled that, while an EU member can bar entry to such persons, it must satisfy the court that its rationale is good enough; it is no longer a matter of national sovereignty, and that member cannot simply say, “No entry.”  This is an assault on the sovereignty of nations; it takes away from the nation its right to determine for itself who will be allowed to enter.

It attacks the principle of sovereignty that no person has an inherent right to enter any nation other than his own without that nation’s prior permission, and it attacks the tightly associated principle of sovereignty that no nation has an inherent obligation to let any foreign person in.

The ECJ’s ruling attacks the principle of sovereignty that borders are the province of the sovereign nation and its sovereign neighbor and arrogates the meaning of borders to the court.

Aside from the sovereignty question, there’s also this.  It may be a good or a bad idea for a nation to bar entry to this or that individual or to bar this or that group of individuals.  It’s often a moral question, too.  But it’s not a question that’s within the purview of an international court.  Nor is the morality of the matter a question that’s within the purview of any court.  Acting on a moral question—the very definition of what is moral—is a political act and a political definition.  It cannot be a judicial one, it cannot be the decision of a few who are unaccountable to the nation’s people.  Not in any free society.

This last, especially, has implications for immigration cases currently before the Supreme Court or soon to be.  Will the Justices make the political determination of who is allowed into the United States—as far too many district and appellate judges have presumed to do—or will they leave the political decision properly in the hands of our nation’s political actors?

A Federal Judge’s Mistakes

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US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal.  He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.

Bates’ mistakes are two.  One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order.  Of course, this is erroneous.  A Department Memorandum is not statute; it’s not even a Regulation.  It has no legal force beyond being a Cabinet-level equivalent of an EO.  As such, it’s subordinate to Executive Orders and available to cancelation by same.  At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.

Bates’ next mistake is claiming the EO is illegal because it offered insufficient support to its claim that the DACA program is illegal.  This is simply irrelevant.  See above: it’s sufficient for the President to instruct a subordinate Cabinet to do a thing, so long as the thing itself is legal.  There are no statutes barring a President from instructing the rescission of a Department Memorandum; such a statute would be unconstitutional, anyway, trampling on the separation of powers as one would.  No explanation for why a Memorandum should be rescinded is necessary, however useful one might be.

A Mistaken Argument

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The Supreme Court heard oral argument earlier this week on the legality of President Donald Trump’s Executive Order producing a moratorium on entry into the US from certain selected nations.  Neal Katyal, representing those arguing to keep Trump’s EO blocked,

says Congress previously has rejected exactly the kind of nationality-based ban that Mr Trump has implemented.

Whether or not that’s true, though, is irrelevant.  All that the Court can consider (aside from what is in the Constitution, which is always before the Court, and what’s in the Executive Order before the Court today), is what Congress has done this time.  Past actions are irrelevant, particularly since what Congress does today that differs or outright contradicts what Congress did yesterday overrides yesterday’s action.

The “Muslim Travel” Moratorium Case

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The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations.  (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)

Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way.  With that fantasy, those lower courts have struck the EOs, one after another.

The lower courts have been imposing their own prejudices.

What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices.  The duration of the moratorium is a political decision, and so cannot be considered.

In Connecticut National Bank v Germain, the Supremes held

…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

The concept plainly holds for EOs as well.  If it’s not in the EO, the EO doesn’t say it.

Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.