5-5-25 - 7am - Judge Restricts Border Patrol

Episode Transcript

Speaker 1 (00:00):
Michael.

Speaker 2 (00:00):
I love how the press says, oh, these people need
to do process because Biden allowed them to skip due
process on the way in. Yeah, that doesn't make any sense.
But I guess it's kind of like with Obama. They
liked his black half, but his white supremacy half. We
don't talk about that anyways. I think we ought to
be charging these people for due process, Like, hey, you know,
you want due process. That'll be twenty five thousand dollars.

(00:22):
Kind of like the coyotes that brought you in.

Speaker 3 (00:26):
Charge for due process. That's pretty good you want. Isn't
that in of itself a violation of due process? We're
gonna yeah, you want due process, but you gotta pay
for it.

Speaker 1 (00:37):
I love it. I love it.

Speaker 3 (00:40):
So here's what I was going to talk about this hour,
But I think now that I really think back on it,
because you didn't have the benefit of Saturday's program that
I should do the nineteen ninety six Immigration Act and
this judge decision last Tuesday that she made out in

(01:04):
the Eastern District of California. I was going to talk
about Kilmar Abrego Garcia because the Democrats have seized upon
Garcia as some sort of epitomizing the lack of morality
in our immigration system. And I think they're absolutely wrong,
and I think the Democrats are making fools of themselves

(01:27):
by latching onto him as somehow he is the consummate
example of how our immigration system is so bad. I
think just the opposite is true. But rather than do that, now,
let's build up to it. And let's build up to it,
because let's go back to this judge, and let's go

(01:47):
back to how I believe based on the nineteen ninety
six Act, this woman has, this judge has absolutely usurped
the the law and the Constitution. And I mean she's
not just an activist judge. She has decided for herself that, oh,

(02:10):
this is the way that the law should be, not
the way the law is, but the way the law
should be because she doesn't like what's going on. Her
name is Jennifer Thurston. She is a trial judge. She's
just a district judge in the Eastern District of California.
And on Tuesday, which is why I brought this up
last Friday, she ruled that immigration officers from ice NCBP

(02:34):
for that matter, cannot rely upon this nineteen ninety six
Act which is a statute that Congress drafted for these
at the time.

Speaker 1 (02:46):
You know that.

Speaker 3 (02:47):
Let me lay some language groundwork I'm going to refer to,
and I'll probably flip back and forth, just depends on
how fast I'm talking, because at the time this law
was passed in nineteen ninety six, ICE did not exist.
ICE is a creation of the Department of Homeland Security creation.

(03:14):
So when DHS formally stood up on March three, two
thousand and three, what was then known as the Immigration
and Naturalization Services, which included customs and Border Patrol, and
these Immigration and Naturalization Service agents all became part of DHS,

(03:36):
and CBP became a distinct organization, and ICE became a
distinct organization. But in nineteen ninety six, it was basically
thens the Immigration and Naturalization Naturalization Services. They handled everything
from citizenship applications to border enforcement to you name it. It

(03:58):
was all unders So I'm going to flip back and forth,
but I'm always talking about CBP, ICE and I in
S because it's pretty much all the same thing. So
what she did was she she ruled, or actually she
didn't even say she ruled. She just kind of announced

(04:18):
that immigration officers can't rely on this nineteen ninety six law. Well,
the law actually, or her announcement, her ruling strips the
president of the tools that this nineteen ninety six law

(04:41):
gave the president. And I think when even further because
Article two of the US Constitution says the executive power
shall be vested in a president of the United States,
one individual, and the job of that president is to

(05:02):
see that the laws that the executive that the legislative
branch passes, shall be faithfully executed. In other words, you
take the laws that Congress gives you, and you go
execute those laws. That's his constitutional responsibility. So what this
judge did was an essence, take a law that Congress

(05:23):
lawfully passed, signed by a Democrat President Bill Clinton, and
just said no, you can't. You can't use this. Now
here's how it all started. The ACLU. Of course, the ACLU,
they sued Customs and Border Protection because they were engaged

(05:45):
in something called Operation Return to Sender, and that operation
resulted in dozens and dozens of arrests within her district. Now,
I should have looked at it planning to do this,
but I intended to look it up. She is in
the Eastern District of California. Let's just say that you

(06:08):
take the San Andreas Fault. I don't know that this
is accurate or not, but you take everything east of
the San Andreas Fault that might be considered geographically the
eastern district of California. There is a specific boundary, but
I haven't looked it up. The point I want to
make though, is it is not Los Angeles, it is

(06:29):
not San Diego, it is not San Francisco. It is Inland.
You know, there's a part of California that is the
eastern part of California, and that's called the Inland Empire. Well,
that's kind of generally her district. And that's important because

(06:50):
you know, we've talked in the past about being able
to apprehend people within one hundred miles of the border. Well,
that isn't necessarily a in this case, but the nineteen
ninety six law does apply in this case. So here's
what she basically commanded that Customs and Border Patrol must

(07:14):
secure a warrant, a Fourth Amendment warrant from a federal
judge or a federal magistrate before they can arrest and
deport an illegal alien, or at a minimum, they must
be able to show that they have probable cause that

(07:35):
the person they're trying to detain and deport might engage
in imminent flight. Now, as I joked on Saturday, I
thought to myself, wait a minute, if you think they're
going to engage in imminent flight, why don't you just
let them start engaging in emminent flight and just kind

(07:57):
of like border collies, just kind of you know, corralum,
and just make sure that as they try to flee you,
you keep them on a path that directs them down
to the southern border and then just push them across
the border like a bunch of border collies. Now you
may find that offensive, but I think it's a pretty
good analogy because if she says, oh, well, if you

(08:18):
got probable cause that they're going to engage in now
I know what she means. They're going to try to escape.
And I'm just trying to make a joke here, Well,
if they're trying to escape, why don't you just chase
them and just chase them like a bunch of border
colleges and chase.

Speaker 1 (08:30):
Them across the border.

Speaker 3 (08:31):
Problem solved, right, But then she said this that these
immigration agents cannot ask or persuade or try to convince
these illegal aliens to voluntarily deport, to voluntarily remove themselves

(08:54):
from the United States unless unless you first advise them
essentially of the Miranda rights. And I find that fascinating
because well, actually she went further. She said not just
Miranda rights, but every conceivable right that they might have

(09:15):
before they can choose to leave of their own accord.
It's a ninety page document, it's a ninety page order.
Now let's go to the Act before I apply the
Act to this case. The Illegal Immigration Reform and Immigration
Responsibility Act of nineteen ninety six is what we're talking about.

(09:37):
The Illegal Immigration Reform and Immigrant Responsibility Act of nineteen
ninety six. It's paraphrase as the.

Speaker 2 (09:49):
I R A.

Speaker 3 (09:50):
I can barely get it out, so we're just going
to talk about it as the nineteen ninety six law.
It was a comprehensive act signed into the law on
September thirty, nineth ninety six by Bill Clinton. Newt Gimmerige
was the Speaker of the House. I forget who the
majority leader was in the Senate, but nonetheless Republicans controlled
both houses. They passed this law, and Bill Clinton willingly

(10:13):
signed it into law, and we have sound bites at
the Wallzoo from Bill Clinton and other Democrats, including Chuck Schumer,
talking about how we needed this law because illegal immigration
was out of control in nineteen ninety six. So what
are some of the key provisions. Well, you can divide

(10:35):
them into three categories, border enforcement and security, penalties for
illegal entry, and the changes to legal immigration, which are
somewhat relevant here but not very much. Let's think about
the first one. Enhanced border enforcement and security. It increased
the number of border agents, something we still need to do.

(10:58):
It mandated, he didn't say you can if you want to,
mister president. It mandated the construction of fencing in high
traffic border areas such as war As, Tijuana, other places.
And it mandated not just a fencing, but the use
of whatever technological barriers that our technology had at that

(11:23):
time to secure the border. So, increase the number of
border agents, increase law enforcement, mandating construction of at least
in high traffic areas, fencing and other technological barriers. And
then it increased the penalties for smuggling, document fraud, and

(11:49):
imposed higher fines and prison sentences for engaging in human
trafficking or alien smuggling and document fraud. Then it increased
and provided harsh penalties and new procedures for people coming

(12:09):
into the country illegally. It established harsher penalties for entering
the country after deportation, including prison terms for up to
two years for a simple re entry and a penalty
for up to twenty years in prison. If you re

(12:29):
enter and you have a criminal record, and the best
I can read the statue, which is a convoluted statue,
you could you could just you know, into the country illegally,
say to do some temporary farm work in California, and
then cross back over go back to Mexico. But then

(12:52):
you come back as a migrant worker again, but you
do it illegally again. Now you can get to two
years in prison for that. But if you commit a
crime here or you commit a crime in Mexico either
place the way I read the statute anyway, and you
re enter the country as somebody with a criminal record,

(13:14):
now you can serve up to twenty years in prison.
But it also expanded the grounds for deportation. It broadened
the list of deportable offenses, including even minor crimes or
aggravated felonies, all of which could lead to mandatory deportation.

(13:40):
Now I want to skip the changes to legal immigration
for just a moment and get to the deportation and
detention procedures. So this law, this nineteen ninety six law,
mandated detention. It required detention for non citizens that had
certain criminal convictions pending deportation proceedings. And it listened closely

(14:05):
limited judicial discretion for the review of those detentions. In
other words, you could not like Garcia did well, they
didn't do it originally. They decided after the Supreme Court
ruled they needed to go back and change their appeal.
But you can't just ask for a habeas corpus hearing.

(14:29):
The judges can't hear those in certain cases. And it
provided for expedited removal. So it expanded the use of
expedited removal procedures. It allowed immigration officers to deport undocumented
illegal aliens listen closely without a hearing before an immigration judge.

(14:58):
Not just those that app are apprehended within one hundred
miles of the border or within fourteen days of entry,
but it expanded it beyond that. So for everybody that
keeps screaming about due process, the Congress said in nineteen

(15:19):
ninety six that in certain cases, you can be deported
without a hearing before a judge, particularly those apprehended within
one hundred miles of the border or within fourteen days
of coming into the country illegally. But it also expanded
it to those that are apprehended outside the one hundred

(15:41):
mile radius and beyond the fourteen days, and it applied
to new deportation rules retroactively, meaning that individuals could be
deported for crimes committed before the law.

Speaker 1 (15:55):
Was enacted in nineteen ninety six.

Speaker 3 (15:59):
Now let's go back to the legal immigration because while
it's not important to the Garcia case or the cases
going on, I think it's an important footnote for you
to understand because it's a reminder of, oh, yeah, we
used to do this well in nineteen ninety six, we're
gonna start doing it again.

Speaker 1 (16:16):
What's that.

Speaker 3 (16:18):
If you want to to sponsor let's say that you
were the grandparents and you want to sponsor your children,
you know, your adult son or daughter or your grandchildren
to come to this country. It imposed strict income requirements
for either US citizens or Green card holders that were

(16:40):
going to sponsor those people to come into the country.
You were required to demonstrate income that was at least
one hundred and twenty five percent of by the federal
poverty line. You had to cement affidavits that showed that
you had the money and that it made it legally
binding that you were going to use that money to
sponsor those people and to financially support those people. In

(17:01):
other words, it was a way to say, you want
to bring them here, that's fine, but you're not going
to get any government help in doing so. You've got
to prove to us. You've got to prove to at
the time I ins Immigration and Naturalization services that you
can support them. It also limited benefits you can get

(17:21):
the benefits now. It allowed states to limit benefits to
limit benefits in illegal aliens, and it required states to
verify immigration status in order to get certain programs.

Speaker 2 (17:41):
Michael, this nineteen ninety six immigration law sounds far bare
compared to what we've been doing for the last I
don't know several years.

Speaker 1 (17:51):
Is at least sounds like it's from.

Speaker 3 (17:53):
Eighteen eighty six, not in nineteen ninety six. Well, I
assume you're being so castic, because what you think about
in nineteen ninety six, what we were really doing was
trying to stop from happening what happened over the past
four years, which really is not barbaric at all. That's

(18:19):
why I wanted to mention the whole idea about the
sponsorships that you know, it was at a time if
you were watching the series nineteen twenty three, one of
the prequels to Yellowstone, you see the wife of the Sun,
you know, the gal that he married out when he
was an Indian or someplace that, you know, when she

(18:41):
comes here, she's having to prove all of her ability
to you know, are you really married? And they didn't
believe her. And then are you know, do you have
the wherewithal financially to you know, sustain yourself because that
was a requirement. Yeah, do you have a job? Can
you get a job? So it's really not barbaric at all.

(19:04):
But we've become so brainwashed, is one way to put it,
and we become so acclimated. Oh, this is just the
way it is. This is why history is so freaking important,
and this is why it's so important to understand the

(19:27):
context of everything that's currently going on. I guess as
Redundcay currently going on today, but everything that's currently going on,
that it wasn't always this way. We become acclimated, you know,
you become acclimated, you know, you take certain drugs and
the efficacy of the drugs begins to wear off because

(19:48):
your body becomes acclimated to it. And so you either
have to increase the doses you have to change the
type of drug you take.

Speaker 1 (19:54):
Well, this is a drug. The media is a drug.

Speaker 3 (19:58):
And they just keep you know, telling us how everything
is okay and this is the way it is.

Speaker 1 (20:02):
That No, it's not.

Speaker 3 (20:06):
And so now the Marxists, who essentially control federal, state,
and local government almost all over the country are like, oh,
I can't believe Brown, you're radical. No, I'm just going
back to what a Republican Congress and a Democrat centrist
President Bill Clinton signed. So I mentioned that the nineteen

(20:30):
ninety six law also limited judicial review. It limited judges
like this judge in the Eastern District of California from
reviewing deportation orders, and it reduced illegal alien's ability to
challenge those decisions in federal courts. It reduced opportunities for

(20:53):
them to ask for and get discretionary relief from deportation,
such as a cancelation of the removed order for almost
all non citizens, for almost all illegal aliens. It curtailed
the ability of non citizens to seek judicial review of

(21:15):
of deportation orders in federal courts. Let me just give
you a specific. Section two forty two of this Act
consolidated judicial review into a narrower process, limiting appeals to
very specific legal or constitutional issues, and many discretionary decisions
by these immigration judges or the Board of Immigration Appeals

(21:37):
were deemed non reviewable by a federal court. That's particularly
important in the Garcia case because his decision his removal
orders from years ago. Under the nineteen ninety six Act
are not reviewable by a federal district judge. Then, the

(21:59):
law went on to bar federal courts from reviewing certain
deportation orders, particularly for individuals that have been convicted of
any almost any sort of crime, unless their case raise
a quote substantial constitutional question, and I would argue in
these cases they do not raise significant constitutional or substantial

(22:22):
constitutional questions. It even eliminated habeas corpus for some cases.
You know where you have where you where you basically
say to the court, you know, bring the body, bring
the person before the court, so we can make sure
that they get their guaranteed rights. It narrowed the eligibility
for cancellation of removal. It restracts. It restricted access to

(22:52):
an original part of the Immigration and Naturalization Act, which
provided for discretionary waivers previously available for illegal aliens facing
deportation for certain crimes. If you had, you know, before
nineteen ninety six, if you were here with seven years

(23:15):
of residence, you could get this relief if you demonstrated
rehabilitation or family ties or something.

Speaker 1 (23:21):
Well, it got rid of all of that and said no,
it's not reviewable. You just boom. You can no longer
do it.

Speaker 3 (23:31):
So let's go back to what this judge did. One
clause of the nineteen ninety six Act is sufficient to
reveal the seizure because it authored the seizure of these
individual in Operation Return Descender. Very specifically, Section thirteen fifty

(23:54):
seven a two authorizes these immigration officers to apprehend without
a warrant, any alien that the officers have reason to
believe is presently illegally in the country and is likely
to escape their custody before a warrant can issue, and

(24:17):
even then, even if time allowed to seek a warrant,
the stamp that the nineteen ninety six law demands nothing
more than an administrative warrant. You know what that means, well,
it means like a Customs and Border Patrol supervisor can sign.

Speaker 1 (24:38):
One of those.

Speaker 3 (24:39):
It can even be completed on the telephone, or it
can be on a clipboard out in the field while
you're trying to deal with these individuals. Notice what Congress
required and what Congress deliberately omitted. It required reason, not
an affidavit sworn before a federal magistrate or a federal judge.

(25:03):
It required the likelihood of flight, not some sort of
clairvoyant certainty. It conferred this summary power on these immigration
officers because often border enforcement happens in places and at
times we're trying to get to a courthouse. You just
don't have the luxury to do that. But and here's

(25:28):
what pisces me off about this case. This judge said,
oh no, no, no, you have to go before a
federal magistrate, at a federal judge. Well, what did she
do when she said that? She exchanged all of the deliberations,
all of the debate, all of the calibrated balance that

(25:50):
Congress put in this law. And for which the President signed.
She exchanged all of that just for what she wanted.
Will screw you, judge, that's not your job. She raised
the evidentiary bar from just a reasonable belief that hey,
this person's going to try to escape to probable cause,

(26:14):
which then invokes all this due process. Congress said, no,
we don't have to have all this due process. But
even worse, she ordered the agents to put down their tools,
drive into town, however far that might be, whether where
there's a federal judge or a federal magistrate, and then

(26:35):
beg that judge of magistrate for a warrant that could
be delayed, you know, because maybe they've got they're hearing
other cases. They have other things to do. They're not
just sitting around waiting for a customs or an immigration
officer to show up. They're they're handling other hearings, other matters.
Oh so you gotta wait, just you know, wait in
line for everybody else. I know, he might try to
escape and then beg for probable cause. She transformed what

(27:02):
Congress gave the immigration people the ability to make an
onseeing decision, into this convoluted due process that I think
even under the broadest reading of the Fourth Amendment would
be no, you're not entitled to do that.

Speaker 1 (27:23):
And what did she do?

Speaker 3 (27:25):
She did She focused on the Fourth Amendment and she
says that in that opinion of hers, that it guards
against unreasonable searches and seizures. Yet the Supreme Court has
told us dozens of times what is unreasonable one mile
inland or one hundred miles inland might be reasonable at

(27:47):
the border, or one hundred miles away from the border
even further. Because and here's the key, sovereignty under our
Constitution confers upon the political branches. Article one and Article two.
You can consider those the political branches, because what do

(28:08):
they do they engage. First of all, it's all a
political process how they get there, and it's a political
process that they engage in in coming up with the
laws of the land. The Constitution confers plenary immigration power

(28:28):
on those two branches, not the judicial branch. The plenary power.
First of all, immigration is one of the enumerated provisions
in Article one that says Congress has authority. The federal
government has authority over immigration policy, not the states, not
these sanctuary cities, but Congress. An Article two says the

(28:53):
president has the plenary authority. Plenary means absolute, that's the
that's a layman word for plenary absolute power. So if
Congress has the absolute power over immigration and the president
has absolute power to faithfully execute those laws, not the judge.

(29:17):
And in fact, we have precedent precedent about what that
plenary power is.

Speaker 4 (29:27):
Next Michael or Michael and Dragon. So this nineteen ninety
six law that was passed is amazing. Why hasn't this
been used already.

Speaker 5 (29:41):
To stop these rogue judges. I'd like to hear what
you think and if they need to amend it, since
there's already a law, all they need is majority by one.

Speaker 1 (29:57):
Well, that's a.

Speaker 3 (30:01):
Easy answer, difficult to understand, and it has to do
with civil procedure. So my guess is, and I don't
know this for a fact, but I can't imagine that
they're not doing this.

Speaker 1 (30:20):
So I'm sure.

Speaker 3 (30:20):
In the Eastern District of California, they raised this law
as a defense to what they were doing, as an
argument for her to approve what they were doing, and
she chose to either ignore it or to overrule it,
which means then that they will have because it's California,

(30:42):
they will then have to appeal this ruling from last
Tuesday to the Ninth Circuit Court of Appeals, where it
will be heard by one of the appellate judges or
a panel of three appellate judges in the Ninth Circuit
in San Francisco. The Ninth Circuit is the most liberal,
other than maybe the DC Appellate Court is among the
most liberal, although they have a mixed bag when it

(31:05):
comes to immigration cases. So it's going to depend on
the draw the judges, and so they may agree with
the lower court judge and say the nineteen ninety six
law here doesn't apply, and then eventually I have to
go to the US Supreme Court.

Speaker 1 (31:18):
So there's the answer of I assume.

Speaker 3 (31:23):
I've not read the pleadings, but I can't imagine that
they wouldn't raise these issues and make these arguments, and
that they will make the same arguments all through the process.
But that's why eventually one or more of these cases
is going to have to get to the U. S.
Supreme Court. But interestingly, the nineteen ninety six law has

(31:50):
already been to the US Supreme Court. Well, I shouldn't
let me correct that not all these cases are on
the nineteen ninety six law. But some of the cases
that precede the nineteen ninety six law uphold what eventually

(32:12):
became the nineteen ninety six law. For example, a case
called US versus Ramsay from nineteen seventy seven. That case
involved customs agents that were opening envelopes without prior warrants.
They did not have a Fourth Amendment warrant, and on
the strength of that principle, the court approved them opening envelopes.

(32:37):
In other words, there was no due process with regard
to the envelopes. In a case from twenty twenty, in
Department of Homeland Security versus Therasagiam, the court said that
expedited removal with truncated hearings does not violate due process

(32:59):
because Hunger possesses the comprehensive authority over admission and exclusion
over entry and removal. But Judge Thurston didn't care about
those precedents, and she insists that the Fourth Amendment reasonablest
requirement requires.

Speaker 1 (33:20):
Her warrant rule, so her order obviously has to be appealed.

Speaker 3 (33:28):
And at some point whether this is a combination of cases,
whether the court, you know, combines a bunch of them
or picks one, this issue will be raised. The point
that I wanted to try to make is there are
different kinds of due process and the criminal process. The
criminal due process that you and I think of when
we hear due process. You know, the right to a trial,

(33:51):
the right to cross examine witnesses, certain procedures that you
have to adhere to, Miranda warnings, and all of that.
The Congress has said, both in the original I ins
Act of nineteen thirty four and in this Act of
nineteen ninety six. No, it's a different kind of do Prossner's.
It's not that strict.