When is Dreamer/Green Carder deportation legally justified?

By Richard A. Nixon

An important case currently before the U.S. Supreme Court is Lynch v. Dimaya.

James Garcia Dimaya

Mr. Dimaya is a non-citizen, here legally with a “green card.” Further he has been twice convicted in California of first-degree burglary. First degree burglary is burglary of a residence and is counted as a strike. It is much more serious than a second degree burglary which is burglary of a non-residence, The punishment, more severe for the first degree, can be up to six years in prison. The broad issue is whether Mr. Dimaya should be deported. The lower court found these convictions to be “aggravating factors” and held that he was ineligible to seek discretionary relief from deportation. His attorneys disagree, they argue that he should be permitted to stay based upon a vague vagueness argument. They argue that the Constitution commands that this twice-convicted, non-citizen, felon be permitted to remain in our midst.
The more narrow issue is whether the statutes defining “aggravating factors” and “crime of violence,” are unconstitutionally vague. The 9th U.S. Circuit Court of Appeals agreed with Dimaya and held they were.
The 5th Amendment due process clause requires only notice and an opportunity to be heard.
Dimaya states that even though the “Supreme Court is unlikely to invalidate this poorly drafted clause, it should.” He continues, “the present need for immigrant protection is plain.” He looks to the Supreme Court for clarification. I submit that the proper source for precision is not the Supreme Court, but the Supreme Document, i.e., the U.S. Constitution.
The purpose of immigration is to benefit the country not the immigrant. How does it benefit this country, or California, by permitting a non-citizen with two felony convictions to remain in our midst? Notwithstanding the criticism, the government is correct in targeting those with criminal records for deportation including the offense of undocumented border-crossing.
Some bash the Trump administration by noting that his administration has revoked the government’s promise not to deport the Dreamers, defined as young adults who had no choice in coming to the U.S. I submit the government is correct for several reasons. The first of which is that the Obama administration had no authority to grant the promise in the first place. This was clarified recently by the Supreme Court  in the Deferred Action for Parents of Americans (DAPA) cases in which the Court held that the Obama administration had exceeded its authority and that DAPA was illegal and unenforceable. Hence, the memo prepared by the Secretary of Homeland Security, Janet Napolitano, was in clear violation of the Administrative Procedures Act, which requires a notice and comment process. Neither process was effected. By analogy, I submit that the DACA cases will suffer the same fate.
The Napolitano memo is remarkable in that it states expressly that “This memorandum confers no substantive right, immigration status or pathway to citizenship.” The memo went on to state that, “Only the Congress, acting through its legislative authority, can confer these rights.” Most amazing is that she has now brought suit against the Trump administration, arguing, inter alia, that the rights conferred by her memo are indeed substantive and therefore cannot be rescinded !
To permit the so-called Dreamers to remain in our country, is to shift the power to determine who is permitted to enter/remain in this country from the citizens through their representatives, i.e., Congress, to the parents or others who dumped these “poor, innocent young people” into our midst. The Constitution counsels otherwise.
As stated in Elk v. Wilkins, 1884, no individual can determine for itself or for another who will be permitted to enter or remain legally in this country. This decision is to be made by the citizens of this country through their representatives, not the individuals who dumped or brought them here with no authority.
Although Elk dealt with citizenship as opposed to lawful residence, there is no question that citizenship is the ultimate goal of the Dreamers or their advocates as Undocumented Democrats. In Elk, the Court stated that there are two sources of citizenship, birth and naturalization. The Dreamers do not claim to have been born here. Therefore their only avenue toward citizenship is the naturalization process. Ms. Napolitano’s unauthorized memo does not comport with the requirements of the naturalization process.
Elk continues, “…an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required…” Again, Ms. Napolitano’s memo falls well short of that which is required.
Mr. Matt O’Brien, former manager for the investigative unit of the U.S. Customs and Immigration service, informs us, regarding the Dreamers, that 40 to 50 percent of applicants committed fraud and were approved without verification. Also, of the 700,000 illegal alien applicants, only 2,000 were under the age of 16 and nearly 75,000 were between 31 and 36. In short, most were not toddlers. As further informed, nearly 30% of those illegal aliens have ties to criminal gangs including the notorious and violent MS-13 gang.
Ironically, these violent gangs prey on these same illegal aliens the Left seek to protect.
The 14th Amendment, § 5 states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This provision permits Congress to revoke any and all executive orders inconsistent with the laws passed by Congress and the Constitution. It would also permit Congress to repeal any and laws which extend endless hearings and delays for non-citizen felons such as Dimaya. These hearings do nothing except permit the miscreant to continue presence in this country. Due process can be satisfied by determining that the alien is a non-citizen and that he has been convicted of a felony. That, I submit, is more than sufficient for deportation. It’s time Congress acted with the authority the Founding Fathers gave it.
A fortiori, those non-citizens with criminal records such as Dimaya, with two felony convictions, should be deported post haste.
Richard A. Nixon,Esq., Author of America -An Illusion of Freedom

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William Hicks
William Hicks
3 years ago

This seems to be a slam dunk that this is a Constitutional issue with the power belonging to Congress, not the Executive. BUT, since when has The Constitution stood in the way of progressive goals? This is of particular concern when Congress has ceded it’s Constitutional powers to the Executive and its administrative minions.

In other words, I wouldn’t hold my breath that The Constitution is considered the law of the land anymore. It seems obvious that we have transitioned from a Constitutional government to a monarchical government. That all could change with and educated voter base that sees all that will be lost if we go past this tipping point.