Immigration action required

Dear Readers, Our Founding Fathers gifted us with two (2) categories of courts – Article I Courts, empowered by Congress, and the Article III Supreme Court.  The latter “vests” the “judicial power of the United States” in the Supreme Court; the clause giving it the power to review every legal nook and cranny, from its “appellate jurisdiction” or the power to review other legal rulings. 

Article I Courts are creatures of Congress.  Explicitly and broadly recognized in Article III, § 1, in the power to create “such inferior Courts as the Congress may from time to time ordain and establish.”  Congress has bequeathed us the U.S. District Courts, Courts of Appeals, United States Tax Court, Court of Appeals for the Armed Forces, Court of Appeals for Veterans Claims, Court of Federal Claims, and Bankruptcy Courts.  Judges are nominated by Presidents, subject to Senate advice and consent approval, to serve their statutory terms.

Congress has also created some Article II courts administered and housed entirely in the Executive Branch, subject to Article I and Supreme Court appellate review.  A classic example of this is the court-martial, organized and administered within the umbrella of the Department of Defense.  The criminal military system, prosecutor and judge, has one ultimate authority – the President; there is no independency of arrest and judicial powers.

Similarly, our immigration legal construct is an Executive (Presidential) Branch production.  Congress creates a visa process (student, HB1, travel, etc.), Congress decides the intricacies of asylum, Congress sets immigration quotas and tells the Presidency to figure out how to administer these rules.  Congress has handed over the legalities of the Immigration Rubik’s Cube and effectively said, “Here, now you deal with it.”  

Anyone physically on U.S. soil has at least some Constitutional rights.  Everyone is entitled to notice and the right to be heard as basic Constitutional and human rights.  When we whisk human beings to Guantanamo Bay or San Salvador, these rights evaporate.  While flights are in the air, governmental officials can be ordered to turn around; once the plane lands and immigrants (legal or illegal) are disembarked, they become faceless ghosts.  

In our zeal to find criminals, we are rounding up human beings like animals and depositing them in a gulag on the supposition that tattoos or whispers conclusively establish gang membership.  We are thoughtlessly doing so in Stalin-like or Stasi-secrecy.  The legalities of our immigration system are controlled by a President; it is what he says it is – this should give us pause.

There are some successes.  In Denver, ICE officials successfully detained and removed the fugitive Jose Eduardo Moran-Garcia from El Salvador.  In Boston, a Dominican fugitive, here illegally and wanted for a 2017 murder in the Dominican Republic, was captured and deported by federal law enforcement.

There are also sickening stories of American excesses.  Andry José Hernandez Romero, a gay make-up artist fled abuse in Venezuela for safety in America.  He legally applied for asylum, following our rules.  Because of two crown tattoos, he was deemed a gang member, his status was administratively revoked, and he was snatched and deposited in the El Salvador hell-scape prison to rot.  

He is only one of many victims of the Trump Administration’s creative interpretation of its authority.  Kseniia Petrova, a Harvard medical researcher, was seized by Customs in Boston for possessing research frog embryos.  She faces deportation to Russia, a political “death sentence” given her opposition to the Ukranian invasion.  At least, she is still here and can litigate her apprehension. 

Congress controls the purse strings.  It dictates numbers and funds everything associated with immigration, Border Patrol, Judges, ICE, and Detention Centers.  For DECADES, the system has been underfunded; adjudicating asylum claims take YEARS, we lack the personnel to supervise legal applicants, and bed-spaces are insufficient to house those detained.  

We should not demand a President to solve a problem of Congress’ inattention.  Yet, we do.  ALL Presidents, to various degrees and impacts, have used Executive Orders to take action because Congress is “out to lunch.”  We have become so numb to EO immigration illegalities, that the chaos of recent actions seems normalized.  Some may like the concept of “Dreamers” – this is an EO, not a law.

We hold ourselves as an honorable country; a shining exemplar for the world.  We do not act brutally; we are not “jack-booted thugs.”  In our eagerness to fix Congress’ broken immigration policies, we have become our evil political doppleganger.  We are better than this, Congress needs to “step up to the plate.”

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.