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Federal Court Immigration Decisions Breeding More Arizona Enforcement Laws

Posted By Hans von Spakovsky On January 4, 2011 @ 11:00 am In Legal | Comments Disabled

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If you want prime examples of what is wrong with our federal courts and our immigration policies, two recent cases show how much harm liberal activists who masquerade as “impartial” judges can do—and how illegal immigrants not only game our enforcement system but actually make money off of it.

The first case involves an illegal immigrant, Cecil Harvey, who was deported back to Barbados in 2007, although that did not stop him from filing a lawsuit courtesy of the Cardozo School of Law. Harvey has just been paid $145,000 by the state of New York for supposed violations of his “civil rights” after a ruling by a federal judge against New York. The state’s violation? They held Harvey at Rikers Island for 35 days under an immigration detainer warrant before he was turned over to Immigration and Customs Enforcement (ICE).

Harvey was in Rikers, after three previous arrests, because he had once again been arrested for public drunkenness and drug possession. But federal regulations, for which there is no rational rhyme or reason, specify that an illegal immigrant being held by local authorities under a detainer warrant issued by ICE can be held for only 48 hours. So if ICE doesn’t pick the alien up almost immediately—something that this Administration has demonstrated it has no interest in doing—then local authorities have to release the illegal immigrant, no matter what federal crimes he may have committed in addition to his obvious immigration violations.

If we had a rational, common-sense immigration enforcement policy, then our rules would specify that if you are in this country illegally, then local, state, and federal authorities have the legal right to detain you when you are caught until you can be deported. Yet in this case, a habitual criminal who was admittedly in this country illegally, and who was eventually deported, now gets $145,000 in taxpayer funds to “compensate” him for being in jail for a month! I won’t even talk about the outrageousness of the fact that he wasn’t deported the first time he was arrested instead of after his fourth arrest.

The second case involves a whole group of illegal immigrants who were arrested by ICE in raids in New Haven, Connecticut—a town that welcomes illegal immigrants, even issuing them identification cards. The aliens filed a lawsuit claiming violations of their Fourth and Fifth Amendment rights because ICE arrested them in personal residences without search or arrest warrants. Keep in mind that these alien plaintiffs were in the United States illegally; in fact, Clinton appointee Judge Stefan Underhill specifically notes that these illegal immigrants did “not challenge their detention.” In other words, there is no question they had violated federal immigration laws and were here illegally.

However, Underhill is very careful to refer to these illegal immigrants as “undocumented aliens” in his 43-page court order that refused to grant all of the government’s motions to dismiss (which means the case will go forward). The use of that term is always an easy clue to the liberal views of an activist federal judge, who in this case has allowed a lawsuit to proceed against ICE agents who were doing their jobs. “Undocumented aliens” is an Orwellian term that has no legal meaning and was made up by Jimmy Carter’s INS Commissioner Leonel Castillo, one of the most unqualified political appointees to ever hold that office, in order not to offend radical Hispanic separatist groups by using the legally accurate term “illegal aliens.” It is the equivalent of calling a drug pusher an “unlicensed pharmacist.”

The end result is that this liberal federal judge believes that illegal immigrants who were detained in residential raids by ICE—aliens who did not challenge their detention—have claims against the government because ICE allegedly detained them without an arrest warrant or probable cause. This despite the fact that federal law (8 U.S.C. §1252) denies federal judges such as Judge Underhill the jurisdiction to review a discretionary decision of the Attorney General or the Secretary of Homeland Security—such as the decisions to detain these illegal immigrants. The same federal law makes it clear that “judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken … to remove an alien from the United States” (which would include Fourth and Fifth Amendment claims) can be raised only in a “judicial review of a final order.” But this case was not filed over a final order of removal, and the illegal immigrants had not contested their detention, so Judge Underhill was essentially ignoring federal statutory limitations on his power to review the claims raised by these illegal immigrants in a separate lawsuit.

The good news, however, is that with legislatures starting their new sessions in many states, The New York Times [2] is reporting that at least six states are planning to introduce Arizona-style laws intended to combat illegal immigrants, including Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania, and South Carolina. It is true that parts of Arizona’s law were declared “unconstitutional” by a federal district court, a decision that Arizona has appealed to the Ninth Circuit. But that decision was wrongly decided on very specious grounds and ignored prior precedent. It is probable that lawsuits filed against other states that pass Arizona-style laws will not have the same results. This would also open up other fronts in the legal battle against the Justice Department’s unprecedented and unwarranted lawsuit against Arizona.


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URL to article: http://blog.heritage.org/2011/01/04/federal-court-immigration-decisions-breeding-more-arizona-enforcement-laws/

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[1] Image: http://www.foundry.org/wp-content/uploads/PoliceICE.jpg

[2] The New York Times: http://www.nytimes.com/2011/01/01/us/01immig.html

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