By Steve Levy
Advocates for the speedy deportation of criminal illegal aliens were elated over the April 7 Supreme Court decision confirming the administration’s ability to deport certain illegal immigrants under the Alien Enemies Act of 1798.
However, this irrational exuberance should be tempered by another part of the decision that confirmed the alien’s right to an opportunity for a hearing to challenge any such designation.
This is a procedure that can hamstring the administration with significant costs and delays.
In a logical world, an immigrant detained by law enforcement who cannot provide proof of legal status through a valid Social Security number or green card, I-94 or visa number, or temporary work permit existing in the U.S. database should be able to be deported immediately. The due process for that individual should be a reasonable amount of time to supply the valid information.
The due process in deportation cases should not be on the same level as that for potential incarceration. If someone is charged with a crime that may result in the loss of freedom, that individual, regardless of immigration status, should have the right to counsel, a jury trial, and all the other rights enumerated under the Constitution. But when we’re merely talking about removing a person from the country who was never rightfully here in the first place, the bar must be much lower.
So, what does SCOTUS mean when it says that individuals falling under the Alien Enemies Act “are entitled to notice and opportunity to be heard…”? The court noted that, “The notice must be afforded in a reasonable time and in such a manner that will allow them the time to seek habeas relief in the proper manner before removal occurs.”
If they do not file, but were given the opportunity to do so, the requirement has been fulfilled.
However, we live in a time where liberal and omnipresent NGOs, the ACLU, and other alphabet soup advocates for the illegal aliens coach the immigrants to require a hearing and to claim asylum protections, regardless how specious that claim may be. Thus starts the lengthy and costly process to deport these immigrants on an individual basis in a time and place where 3.6 million migrants have already filed petitions for hearings.
It took a relatively short time for Joe Biden to open the door to millions of illegal immigrants, but it will take far longer to deport a mere fraction of that number. This is despite the fact that the Trump administration arrested about the same number of illegal aliens (32,809) in its first 50 days as the Biden administration did in its last fiscal year.
There are two ways for an illegal immigrant to object to their deportation under the act. The first is to challenge the designation of being an enemy alien. The second is an asylum request under credible fear of torture. An asylum officer takes an unspecified amount of time to determine whether or not there is credible fear. If there is credible fear, a trial is scheduled no earlier than 21 days and no later than 45 days after the referral is received. If there isn’t, the defendant could ask for their case to be reviewed by an immigration judge, which is usually conducted 10 days after the referral is received. However, that is under a perfect system, without delays or insane backlogs.
Unfortunately, we live in a system where millions of Biden’s border hoppers created a backlog that is almost impossible to fully process. Consequently, such trials and hearings now average 636 days to process.
The path of least resistance to facilitate quick deportations seems to lie not with the Alien Enemies Act, but with existing law, that according to the American Immigration Council, authorizes border agents to summarily deport any individual anywhere in the U.S. who cannot prove that they have been in the country for two years before a border agent determined that they have entered illegally. But here again, the system can be gamed by the immigrant asking for asylum.
So if Biden and the Democrats allowed in fifteen to twenty million illegals and an aggressive Trump is only able to deport a million or so, can not it be said that the Dems have won?
The betrayal of the American public by purposely opening the border lost Democrats the 2024 election, but in the end they may have succeeded in bringing on board millions of new registered voters who owe their allegiance to the political party who opened the door for them. To progressives, it may even be worth losing a single election in order to dominate the electoral map for the next generation. All they need is one flip election where they gain control of both chambers of Congress and the presidency and you’ll quickly see every illegal alien in the nation on a path to citizenship and voting in the following election.
So if Republicans want to win the war on illegal immigration, they’re first going to have to deal with the due process issue as it pertains to illegal aliens as opposed to criminals facing incarceration.
Executive orders, legislation and new court challenges must bring about a system whereby those here illegally are not allowed to force taxpayers to provide them counsel and wait for years to deport them when a simple check of the database to determine if they have a legal Social Security number of green card should do the trick.
Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of “The Steve Levy Radio Show.” He is the author of “Solutions to America’s Problems” and “Bias in the Media.” www.SteveLevy.info, Twitter @SteveLevyNY, steve@commonsensestrategies.com