The U.S. Court of Appeals for the Fifth Circuit this week stayed an order from the very same court finding that the Trump administration’s “mass detention” policy for all aliens who had entered illegally was unconstitutional. While the circuit court has yet to dispositively rule on the question, it’s likely foreordained. In any event, the stop after that is the only tribunal that matters – the Supreme Court. Here’s how four Tacoma, Wash., immigration judges’ rereading of the Immigration and Nationality triggered thousands of habeas petitions, and led to a major circuit split.
Congress Overhauls How the Law Treats Illegal Entrants in 1996
n 1996, Congress overhauled how the Immigration and Nationality Act (INA) – and in turn, immigration officers – must handle aliens who come here illegally.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which was enacted that year, amended the “inspection protocol” in section 235 of the INA, that is the procedures that govern the admission process by inspectors at the ports of entry.
Under those amendments, every alien “present in the United States who has not been admitted or who arrives in the United States” is deemed “an applicant for admission”, including those who illegally bypass inspection at the ports and proceed surreptitiously into the interior, and who therefore who have no intention of “applying” for anything.
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