The Never Ending Story: Immigration and Judicial Activism

A federal judge in Detroit recently stayed the removal of 1,444 Iraqi nationals arrested by U.S. Immigration and Customs Enforcement (ICE). Most of the affected Iraqis are Christians, who claim that they fear physical harm if forced to return home. ICE has been prohibited from removing them while the federal courts review their cases – to determine whether they qualify for political asylum or any other form of relief from deportation.

It is a virtual certainty – even after further court proceedings – that 99 percent of the affected individuals will still be found deportable from the United States. Nearly all have criminal convictions. Their offenses range from murder to rape and child molestation. The immigration and nationality act clearly places the safety of U.S. citizens and lawful permanent residents above alien criminals’ fear of persecution. Most felony convictions – and a large number of misdemeanors – render an alien ineligible for relief from removal.

The one shot that most convicted criminals have at remaining in the U.S. is protection under Article III of the United Nations Convention Against Torture (CAT III). And CAT III requires a showing, via a submission of objective evidence, that an alien would, more likely than not, be tortured, by the government, if sent home. That is a tough standard to meet. Even though conditions in Iraq are worse than those in a Western democracy, the U.S. Department of State reports that terrorists – not the Iraqi government – committed the vast majority of serious human rights abuses in 2016.

This case isn’t frustrating to average Americans because the U.S. can’t afford to be generous to a group of foreigners facing repatriation to a homeland that is in disarray. It’s maddening because the United States has already been more than sufficiently gracious.  All 1,444 members of the group have previously had a hearing before the U.S. Immigration Court and ample opportunity to have their cases reviewed by the Board of Immigration Appeals.  Yet, they’re still claiming that they haven’t been given due process.

That’s more than a little galling. This particular group of Iraqi Christians was given a chance at a new life in the United States. But rather than seizing that opportunity and contributing to their adopted communities, they behaved in a most un-Christian fashion.

What’s even more galling is that, yet again, a federal court has prioritized the personal safety of criminal aliens over the public safety and national security concerns of the American public. And this is only the latest in a long line of cases where activist courts have frustrated the efforts of the Trump administration to enforce the Immigration and Nationality Act in order to provide aliens with “due process.” Of course, the average taxpayer may wonder how much process is due to foreigners who commit crimes in the United States?

Sadly, far too many federal judges appear to believe that criminal aliens are entitled to more protection from the constitution and the federal government than the American citizens whose hospitality has been so sorely abused.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


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  2. avatar

    Congress needs to pass a law (under Articles I and III of the Constitution) restricting the federal court’s jurisdiction over immigration matters. That would end the ability of federal courts (including the Supreme Court) to meddle with the execution of the nation’s immigration laws. Of course, the Demographic Party would never permit that and the GOP is too focused on tax cuts for their donors to help us out with a little common-sense legislation.

  3. avatar
    David Farrar on

    I find it hard to believe most of the 1,444 Iraqi nationals arrested by U.S. Immigration and Customs Enforcement (ICE) are Christians when Obama imported one Christian for every 1000 Sunny Muslims.

    • avatar

      So now you are saying Trump u worse than Obama?….hahaha…what is your pointless point?