So the Biden Regime is negotiating damages to illegal aliens who were arrested and detained, then “suffered” family separation, after crossing the border in 2018 and 2019.
White House spox: Biden is “perfectly comfortable” with the American taxpayer funding cash payments for illegal immigrants. pic.twitter.com/6n9pVpmqbk
— Arthur Schwartz (@ArthurSchwartz) November 4, 2021
Incredibly, these illegals will collect $450,000 per person and up to $1 million per “family.” Taxpayers’ tab: $1 billion. But aside from the obvious—the shocking bill for taxpayers—few observers have noted the biggest problem with the “settlement”: It’s illegal on its face because it violates federal law. It’s part of a pattern of “sue and settle” sweetheart deals whereby Leftists in government invite Leftist lawyers to file lawsuits before Leftist judges to create regulation behind the scenes [Stopping Sue and Settle, by The Editorial Board, The Wall Street Journal, October 18, 2017]. The Mother of all sue and settle sweetheart deals: the 1993 Flores settlement, which was actually the root of the Trump Administration’s “family separation” problems.
Remember, these illegals that the Biden Regime is proposing to reward suffered no damages. Illegal aliens do not have a legal or constitutional right not to be deported or held in custody with family members. No tort, no lawsuit. The reason: black letter federal immigration and tort claims law.
The illegals and their Treason Lobby attorneys with the American Civil Liberties Union claim that so-called families suffered damages under the 1946 Federal Tort Claims Act, which permits monetary payments for harm caused by Federal employees acting in their official capacity. FTCA grew out of a U.S. Supreme Court decision, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, that created a tort for such damages. Prior to Bivens, the U.S. was immune from lawsuits except for violations of signed contracts.
But although Congress created tort liability in FCTA, that relief is financial and cannot be used to change the law or public policy. (That hero of the Constitution, Justice Clarence Thomas, is an avowed opponent of Bivens; he has no respect for bad precedent or Constitutional fiction).
Aside from using FCTA, individuals can also seek redress by obtaining injunctions against actions that violate established rights held under statute and the Bill of Rights. That is quite common and used frequently. But it’s only injunctive, Damages are not awarded.
How did we get into this mess? It begins with the execrable Flores Settlement.
In 1985, Jenny Lisette Flores, a Salvadoran minor illegal, was arrested at the Mexican border, then held pending deportation hearings. Her parents had paid Mexican coyotes to smuggle her in.
Sound familiar? Illegals used the same smuggling scheme during the Obama Regime and the Trump Administration to import their children. Flores entered as part of an earlier crisis at the border, but it was short-lived and solved by the judicious application of arrest, custody, and deportation.
Unsurprisingly the ACLU’s Treason Lobby shysters were ready and went to the infamous Ninth U.S. Circuit Court to overturn the law that authorized detaining illegals until they are deported, admitted, or paroled. ACLU prevailed, and the Reagan Administration went to the U.S. Supreme Court.
The case was originally known Flores v. Meese, during the Reagan Administration, but SCOTUS did not decide the case until 1997, when Janet “Send In The Waco Killers” Reno was Attorney General. SCOTUS remanded it back to the Ninth Circus for implementation in accordance with the quite specific decision that the then-Immigration and Naturalization Service can hold aliens in custody at the discretion of the Attorney General.
The regulation does not exceed the scope of the Attorney General's discretion to continue custody over arrested aliens under 8 U. S. C. § 1252(a)(1). It rationally pursues a purpose that is lawful for the INS to seek, striking a balance between the INS's concern that the juveniles' welfare will not permit their release to just any adult and the INS's assessment that it has neither the expertise nor the resources to conduct home studies for individualized placements. The list of approved custodians reflects the traditional view that parents and close relatives are competent custodians, and otherwise defers to the States' proficiency in the field of child custody. The regulation is not motivated by administrative convenience; its use of presumptions and generic rules is reasonable; and the period of detention that may result is limited by the pending deportation hearing, which must be concluded with reasonable dispatch to avoid habeas corpus. Pp. 309-315.
[Reno v. Flores, SupremeJustia.com]
But Leftist Reno simply defied SCOTUS and the law and unnecessarily negotiated the now-infamous Flores agreement. The feds released Flores, which established that illegal-alien minors would not be held in custody. That came back to haunt the Trump Administration, with kritarch Dolly Gee using the Flores Settlement to bust open the borders.
Three years after Reno’s illegal move, Congress passed and Clinton signed The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, [IIRIRA] which overturned the Flores Settlement and made all illegals subject to removal and detention as they awaited deportation. The Attorney General had the option to parole illegals.
So this is the nut of the matter so far: IIRIRA and the Flores Decision established policy for the detention of illegal aliens during removal proceedings regardless of age or the presence of parents or children. Both lower court decisions and any kritarch’s policy preferences. And when police arrest aliens and charge them with crimes, they also may be held until trial [18 United States Code (USC), Section 3142, Release Or Detention Of A Defendant Pending Trial, Law.Cornell.edu]. Illegals do not have the right to be reunited with family members after serving a prison sentence.
But the Biden Regime is using Reno’s move in Flores as precedent. It simply ignored IIRARA and 18 USC 3142 to create a right for illegals not to be arrested, detained, or in any way to suffer trouble with immigration authorities.
That brings us back to the $1 billion settlement package for illegal aliens, which covers illegal-alien families arrested, deported, and/or “separated” in 2018 and 2019. They don’t just want your money. As their ACLU stick-up man said, they want “a pathway to remain in the country.” In other words, the settlement would do what it isn’t supposed to do: change public policy.
Yet aside from creating new “law” in the guise of a settlement like Flores, the Biden Regime is also defying the FTCA and Bivens. The key principle of federal tort claims is that there must be, well, a tort; i.e., the plaintiff must show harm. But being arrested and separated from one’s parents or children after breaking the law is not a tort—by definition, an unlawful act by officers of the U.S.
Example: an FBI sniper shoots your wife in the head while she is holding your baby. Your wife was unarmed and not threatening anyone. That’s a tort under FTCA [Idaho shootout survivors get $3 million settlement, by Carl Cannon, The Baltimore Sun, August 16, 1995].
And an example applicable here: An illegal is arrested unlawfully, which would be almost impossible to prove. But in these cases, none of the arrests, deportations, or criminal prosecutions were unlawful. One cannot claim a tort for a lawful action, except in extraordinary circumstances, such as physical abuse during arrest. Federal law absolutely authorizes the arrest of illegal aliens [8 USC 1357, Powers Of Immigration Officers And Employees, Law.Cornell.edu].
Nor is there any right, once paroled, released, or deported, to be reunited with a spouse or children. Any such claim is novel. The government might have an interest in deporting families together, but it is neither required by law nor any SCOTUS decision to do so. Perhaps DHS should have kept better track of illegal aliens and deported them together, but given the hundreds of thousands who zerg-rushed the border, that was impossible.
Similarly, illegal-alien arrestees and convicts have no right to be reunited with family members after release. No minors were charged with breaking 8 USC 1357. Only adults were, and they were immediately deported after conviction and completing their sentences. Note that when American citizens are released from federal prison, they are not “reunited” with families at the expense of the federal government. They get a set of civilian clothes and a bus ticket back to the federal district where they were convicted.
Upshot is, the Biden Regime and ACLU and their clients are colluding to break the law. The lawsuit and settlement were planned from the beginning to pay off Joe’s political allies. It’s a case of “sue and settle.”
The supposed “settlement” is a fraud upon the taxpayers in which the federal government is a co-conspirator. Biden, Attorney General Merrick Garland, any federal attorney or other government employee, as well as the illegal aliens and their communist ACLU attorney, should be charged with at least three crimes, not counting the one that forbids aiding and abetting illegal aliens [8 U.S. Code § 1324—Bringing in and harboring certain aliens, Law.Cornell.edu]:
Contact the inspectors general the departments of Justice, Homeland Security, and Health and Human Services to report the crimes. Contact Senator Chuck Grassley, too. He stays on top of government misconduct.
Of course, no one will be brought to book for the crimes, nor will any of Biden’s Open-Borders torpedoes appoint a Special Counsel.
That leaves impeachment, which should be high on the agenda of 118th Congress if and when the GOP sweeps the House and Senate in 2022.
The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.
Federale's opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.
