The Long, Uncertain, Often Unsuccessful Road to Criminal Alien Removal

By Joe Guzzardi
July 18, 2016
 
The roadblocks to implementing effective controls over United States immigration policy are many and unnecessarily complex. Last week, State Department testimony to the House Committee for Oversight and Government Reform provided an excellent example of how stymied the process is to deport illegal immigrants even after they’ve been issued a final removal order. As defined, a final removal order requires that Immigration and Customs Enforcement comply with an immigration judge’s decision to deport an illegal immigrant within 90 days. But too often, illegal aliens remain beyond the 90-day period, sometimes because of ICE’s limited budget, but more frequently because of administrative red tape that hopelessly bogs the procedure down.
 
Nothing has exasperated federal officials more in their quest for commonsense immigration than the 2001 Supreme Court case, Zadvydas v. Davis, which restricts the time for which ICE can detain an illegal immigrant to a maximum six months even if he’s been ordered removed. Six months is long enough to deport an illegal immigrant, but not if the country he’s being return to rejects him.
 
Such a case made headline news earlier this summer when Haiti refused to repatriate its national and convicted felon Jean Jacques. After ICE made three failed attempts to send Jacques back to Haiti, it was, pursuant to Zadvydas v. Davis, forced to release him. Shortly after ICE freed Jacques, he bludgeoned a Connecticut woman to death.
 
That Haiti, a notoriously corrupt country that nevertheless received $350 million in federal aid in 2014, would deny a U.S. immigration request boggles the mind. The U.S. has another option in dealing with uncooperative countries like Haiti, but one that it’s failed to take advantage of. Under the 1952 Immigration and Nationality Act, the U.S. can opt not to issue visas to countries that refuse to take back their nationals. But, that’s only been done once in recent years when the George W. Bush administration rejected visa applications from Guyana.
 
The obvious problem with Zadvydas v. Davis is that it puts foreign governments in control of U.S. immigration policy. As dissenting Supreme Court justices wrote to explain their Zadvydas v. Davis decision, when other countries refuse to repatriate their own nationals, it forces “dangerous aliens,” as the justices identified them, back into U.S. communities.
 
In summary: ICE can’t hold criminal aliens beyond six months, many foreign countries won’t accept their nationals back, and the U.S. won’t exercise its option to withhold aid or visas to force the noncompliant nations to cooperate.
 
During last week’s hearing, Oversight Chair Jason Chaffetz (R-UT) accused the State Department of “playing nice instead of implementing the law” which, he claimed, leads directly to an increase in alien crimes that include murder, DUIs and sexual assaults. Chaffetz ordered the State Department official to “get rid of them,” a reference to the criminal aliens.
 
Chaffetz isn’t about to get his wish anytime soon. Since 2013, ICE has released more than 8,000 criminal aliens with final removal orders because their home countries won’t take them back. The federal government’s unwillingness to lift a finger—that is, to withhold aid or to deny visas-—to keep American communities safe is indefensible, and should be reviewed as a top priority when the newly elected 115th Congress convenes in January.
 

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Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]. Follow him on Twitter @joeguzzardi19.