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July 01, 2022

Kavanaugh Joins Roberts and the Liberals to Uphold Biden's Right to Cancel Trump's "Remain in Mexico" Policy, Throwing Open the Border Wide to All Illegal Comers

Of course Kavanaugh defected. And of course Roberts was never on our side.

I now at least understand the basis of the lawsuit in the first place. There are two parts of the Immigration and Nationality Act in play. One states that illegal aliens "shall" be detained until they can be removed, or found to be in the country legally (granted asylum, etc.).

Another part states that, until their cases are disposed of, they "may" be removed to a "contiguous" territory -- that is, Mexico -- pending a determination of their status.

Now, in law, as in common usage, "shall" is non-discretionary. It's an order. You shall do this. Period.

"May" is discretionary. You are permitted to do this, but you are not required to.

The lower court found -- accurately -- that the US government was violating the "shall" be detained until removal part of the act -- as they simply released 90% of illegal aliens into the country -- which means that they were required to follow the "may" be removed to a contiguous foreign territory until their cases could be adjudicated part of the act.

Oh, there is a part of the statute that says that illegal aliens may be released into the country on "parole," on their own recognizance, but "only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit."

In other words: Not as a general "catch and release" policy which is applied to virtually all illegal aliens, with no case-by-case showing of a "significant public benefit."


This... makes sense, then. They're not detaining as they "shall" do, they're not allowed to just release every alien into the general population, therefore they are left only with the option of removing to a contiguous foreign territory.

This also means that the government has been violating the INA law for a long, long, time, but so what? The courts often discover the government has been acting illegally for a long time, as when they "discover" that people have always had a right to engage in sodomy and therefore 200 year old anti-sodomy laws are all illegal.

But apparently the idea that the Supreme Court could find that the government has been acting illegally for a long time was just too much of mind-blower for Kavanaugh and Roberts (as well as the open lefties), who therefore decided that the law couldn't possibly mean what it actually says.

They therefore found that the "may" verb in the "may be removed" part must also be the verb the statute means in the "shall be detained" part.


Here's some of the dissent:

In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border. When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?

Congress has provided a clear answer to that question, and the answer is no. By law, if an alien is "not clearly and beyond a doubt entitled to be admitted," the alien "shall be detained for a [removal] proceeding." 8 U. S. C. s.1225(b)(2)(A) (emphasis added). And if an alien asserts a credible fear of persecution, he or she "shall be detained for further consideration of the application for asylum," s.1225(b)(1)(B)(ii) (emphasis added). Those requirements, as we have held, are mandatory.

Congress offered the Executive two--and only two--alternatives to detention. First, if an alien is "arriving on land" from "a foreign territory contiguous to the United States," the Department of Homeland Security (DHS) "may return the alien to that territory pending a [removal] proceeding." s.1225(b)(2)(C). Second, DHS may release individual aliens on "parole," but "only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit." [My emphasis.]


Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible. But rather than avail itself of Congress's clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way. [My emphasis.]

There are other issues discussed, such as whether the lower court had jurisdiction to hear this case at all and whether Biden complied with the Administrative Procedures Act and whether Mayorkas' second order cancelling Remain in Mexico cured the deficiencies in his first order, but they don't seem very important to me. Or, at least, not politically juicy.

We really need to fix this part of the law and make it clear that Remain in Mexico is the law.


Joe Cunningham at Red State writes that Biden's legal win is a political loss:

Biden and the Democrats celebrated the ruling as a big win, but they have also guaranteed that voters, particularly those who are worried about the immigration crisis at the border, will be told in nonstop ads that Biden fought all the way up to the Supreme Court for the crisis.

Rescinding this policy opens the already-thrown floodgates even wider, allowing for greater numbers to flood the border with very little in the way to stop them from overwhelming border patrol. The Biden administration has thus far been reluctant to give federal agents any support, detention facilities, or funding to maintain control at the border. The result has been a flood of immigrants and a crisis that remains unchecked.

The death of 51 migrants in a truck trailer, a tragedy of human life we hadn't yet seen in this crisis, was a clear sign that we are failing not just to protect our border, but to protect human life.

By winning at the Supreme Court, Biden and his administration are taking ownership of the crisis. They are saying they want all of these people coming in from South and Central America, flooding our border and causing chaos among law enforcement in the region. They are laying claim to the resulting human and drug trafficking that happens in the region. They are saying this is all part of the plan.


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posted by Ace at 04:46 PM

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