Should Illegal Aliens Be Held Without Bond Pending Removal Proceedings?

The topic of discussion for this Constitution Monday concerns the rights of illegal aliens in the U.S. court system. A recent court decision may clear up many questions. In their article published at The Daily Signal, Cully Stimson and John Osorio shed more light on the case. 

Earlier this week, a federal appeals court held that the Department of Homeland Security could detain an illegal alien without bond pending his removal proceedings after he was arrested in Minneapolis in 2025. In journeyman fashion, the 8^th U.S. Circuit Court of Appeals interpreted the applicable immigration laws as written and applied common sense to reach its decision.

That law, 8 U.S.C. § 1225, a nearly three-decade-old statute, requires detention without bond for “an alien who is an applicant for admission if … an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” This case could be a gamechanger in the administration’s efforts to hold illegal aliens pending their removal hearings.

Joaquin Herrera Avila is a Mexican national. He was arrested last August in Minneapolis and admitted he was in the country illegally. Avila had illegally entered the U.S. twice; once in 2006 and again in 2016. When he was caught in 2025, Avila was held without bond, and DHS initiated removal proceedings for lacking valid entry documentation.

Avila requested a bond redetermination before the immigration judge, who denied his request. Avila’s attorney then filed a habeas petition in federal district court seeking his immediate release or a bond hearing. Avila argued that since he was not “seeking admission” while in the U.S., the statute simply didn’t apply to him.

Avila’s argument goes like this: As long as an illegal alien in the U.S. just sits back and does nothing to adjust his status in the country, such as seek asylum, 8 U.S.C. § 1225(b)(2)(A) did not apply to him.

The district court ruled in favor of Avila, claiming the statute did not apply because he had lived in the country for years without “seeking admission” to the U.S. But the text of the statute itself, as the 8^th Circuit noted in its de novo review of the law, is unambiguous. You don’t have to be a lawyer to understand it.

Section 1225(a)(1) is clear as a bell: “An alien present in the United States who has not been admitted or who arrives in the United States … shall be deemed for purposes of this chapter an applicant for admission.”

So, whether you actively apply for admission while you’re illegally in the country, or pull an Avila and do nothing, you’re still considered an “applicant for admission.” No further legal reasoning is required beyond the text of the statute itself….

The dissent’s first sentence raised our eyebrows: “Except for a single DUI, for nearly 20 years, Joaquin Herrera Avila had bene living a law-abiding life in the United States.”

Law abiding? Apparently the two times Avila entered the country illegally did not count. No doubt, that’s why the majority cited 8 U.S.C. § 1325(a) at the beginning of their opinion.

That statute makes it illegal to “enter the United States at any time or place other than as designated by immigration officers” and carries a term of imprisonment of up to six months for the first offense and up to two years for subsequent offenses….

This issue has been litigated across the country in federal courts. As more circuit courts split on this issue, it’s only a matter of time before this issue finds its way to the U.S. Supreme Court.

Will Republican Congress Fund Removable of 20,000 Illegal Aliens?

What will it take to deport the 20 million illegal aliens allowed into the United States by the Biden administration? According to Tom Gantert at The Daily Signal, Kevin Roberts, president of The Heritage Foundation, gave the following numbers in an op-ed published Monday in Fox News: “12,000 more agents, 4,000 more attorneys, 1,000 more judges, and 1,000 more support staff” and funding on a “historic scale.” 

“Americans need our leaders to act with the urgency that this moment demands. The safety and security of Americans must be placed first,” Roberts wrote. “The number one priority for Congress right now must be to ensure that every illegal alien who has invaded our country is detained and deported or leaves quickly on their own accord.”

Tom Homan and ICE agents, supported by Marines and other military offices as well as other federal agents have already deported several thousand illegal aliens in the first week of the second Trump term. The Air Force is assisting in removing them by hauling them out in cargo planes. However, with 20 million illegal aliens to remove from the United States, a few thousand are just a drop in the bucket.

Roberts wants Congress to “act swiftly in allocating funds for the “largest deportation operation in American history.” He recognized that the budget reconciliation process is a good way to deliver quick results. He “even advocated a new law requiring money transfer services to demand proof of legal status or face a 50% tax on any outgoing transfers.” Such money could be used to fund “enhanced deportation operations. 

Another sure way to cut down on the number of people entering the United States illegally is to “prevent aliens from accessing America’s welfare benefits.” He accused Republicans in Congress as loving “to beat the drum for border security and mass deportation” when it brought in money on the campaign trail. Now, they need to put America and Americans first.

In a Monday appearance on “The Will Cain Podcast,” Roberts shared an experience when he was chided for using the word invasion to describe the hordes of people crossing into the United States illegally. He did not mince words in showing how he felt about it.

“Somehow, we can’t call a spade a spade,” Roberts said. “All of these Americans in these thousands of communities that have been upended by these illegal aliens, some of them  committing horrific murders … that somehow, we have to be careful about what we call them and we can’t call it an invasion because it “quote-unquote degrades language.”

Roberts said Trump’s genius was calling it like it is.

“Ultimately, what we have arrived at, as Trump said a week ago today … is a revolution of common sense,” Roberts said.

Who Is Ken Paxton?

Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration in October 2023 with accusation that Border Patrol was illegally destroying Texas state property while helping illegal aliens to break American law. According to Joseph MacKinnon at Blaze Media, the lawsuit further asserted that federal agents “not only cut Texas’ concertina wire, but also attach[ed] ropes or cables from the back of pickup trucks to ease” the way for illegal aliens to break into the United States. 

MacKinnon reported that the Fifth Circuit Court issued a temporary order on the matter in December 2023 that prohibited the federal government from cutting the wire with the exception of medical emergencies. In January 2024, the U.S. Supreme Court vacated the order and sent the case back to lower courts. The most recent ruling came the day before Thanksgiving Day 2024.

The Fifth Circuit Court of Appeals issued a 2-1 opinion Wednesday granting Texas a preliminary injunction against the Biden administration. Circuit Judge Kyle Duncan … noted in the majority opinion:

The injunction is not barred by intergovernmental immunity because Texas is seeking, not to “regulate” Border Patrol, but only to safeguard its own property. Nor, for similar reasons, is the injunction barred by the Immigration and Nationality Act (“INA”). Finally, Texas has satisfied the injunction factors from Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Most importantly, the United States does not even contest that Texas has shown it will likely succeed on its state law trespass claims.

The court noted that while the Biden administration contends that the concertina wire poses a risk to human safety, the administration’s own behavior does as well as it has “facilitated and encouraged aliens to ‘undertake the dangerous task of crossing the river.’”

The court also rejected the Biden administration that the Lone Star State’s fencing undermines international relations, adding that “concerns about international relations do not erase property owners’ rights over thousands of square miles along the border.” …

The ever-defiant Republican Gov. Greg Abbott noted in response to the ruling that Texas will “continue adding more razor wire border barrier.”

Paxton called the result a “huge win for Texas,” tweeting, “We sued immediately when the federal government was observed destroying fences to let illegal aliens enter, and we’ve fought every step of the way for Texas sovereignty and security.”

“It was shocking to me that the federal government would go out of their way to cut razor wire to allow illegals to cross when we’re just trying to protect our own land,” Paxton reportedly told Newsmax Wednesday evening. “This wasn’t their land. This was our land, our private property. It had nothing due to the federal government. So this is a good win for Texas, a good win for the country, that this court recognized our ability to protect our land.”

Should More Illegal Immigrants Receive Amnesty?

The liberty principle for this Freedom Friday concerns open borders as a tactic to push amnesty. In the past, both Democrats and Republicans were against open borders and used the term “illegal alien” to identify anyone who crossed the border illegally but not now. First, Democrats insisted that illegal aliens be identified as “undocumented immigrants.” Now, the White House calls them “newcomers.”

Simon Hankinson, a senior research fellow in the Border Security and Immigration Center at The Heritage Foundation, wrote a series titled “Three Reasons the Left Wants Open Borders.” In his third article, he wrote that he had already covered ideology and electoral politics, and then he wrote about extortion. 

By turning on the taps of illegal immigration, open-borders proponents hope to create bargaining chips to negotiate amnesties and increased immigration flows. Since he took office, Joe Biden has paroled a million and a half inadmissible aliens under bogus premises, caught and quickly released into the U.S. the better part of 7 million more, and allowed at least 1.8 million more to evade Border Patrol – the “gotaways.”

As Jason Riley wrote in The Wall Street Journal last year, “The White House knows that an overwhelming majority of the people coming aren’t fleeing persecution but are economic migrants gaming our asylum laws. They know that there will be no serious effort to deport people whose claims are denied.”

Nonetheless, the roughly 10 million inadmissible foreign nationals who the White House calls “newcomers” will be new leverage to push immigration “reform,” which means massive amnesties and new “pathways” into the U.S. outside and on top of the legal immigration system authorized and numerically limited by Congress. Biden’s threat is to leave the taps wide open.

Under this pressure, wavering conservatives might concede to ineffective or even counterproductive legislation like Senate Majority Leader Chuck Schumer’s D-N.Y., bill that claimed to be a solution but did nothing to reduce the illegal flow. Fortunately, it failed on Thursday.

Hankinson called the failed bill “a trap” and quoted House Speaker Mike Johnson (R-LA) as stating correctly that the bill “would actually codify many of the disastrous Biden open-border policies that created this crisis in the first place.” The failed bill, if made into law, would make “it difficult for a future conservative president to reverse,” according to Hankinson. He then provided some history.

… The relevant lesson is the 1986 Immigration Reform and Control Act. The deal was that about 3 million illegal aliens would be amnestied, but that the government would work to stop the flow of illegal immigrants and keep another amnesty from happening again. To achieve this, employers would have to confirm the legal status of people before hiring them or face penalties.

The first part of the bargain (the amnesty) happened, but the second part did not in any comprehensive manner. Almost 40 years later, the number of illegal aliens present in the country is perhaps five times as great as in 1986.

President Joe Biden and/or his administration claim that Biden needs the bill to be passed to give him the “power” to secure the border. However, former President Donald Trump used the same power available to Biden to secure the power. Biden does not need more “power” and should not be given it.

Forty years ago, Congress promised to secure the border if 3 million illegal aliens were amnestied. The border is not secure yet. Therefore, there should be no discussions about amnesty for more illegal aliens. First, secure the border. Second, revamp legal immigration as needed. 

How Do We Reduce the Numbers of Crimes in America?

The liberty principle for this freedom Friday concerns the crime being committed by people who have entered the United States illegally. The numbers of illegal immigrants coming each month continue to increase. In April 2023, there were 275,000 illegal aliens who crossed the U.S. borders illegally nationwide. Most Americans understand that the majority of illegal immigrants come seeking a better life. However, there is a strong link between the increasing numbers of illegal aliens and crime in American communities. Hannah Davis recently published the following in The Daily Signal. 

President Joe Biden’s decision to grant mass parole for millions of aliens, allowing them to remain illegally in the United States, only amplifies the devastating effects of increased illegal immigration on our society.

Since Biden took office, over 6.2 million illegal aliens have been encountered at the nation’s borders, and over 2 million of them have been released into the nation’s interior. A considerable number of them have engaged in criminal activities once they settled. In 2023 alone, Border Patrol agents have encountered thousands of illegal aliens with prior criminal convictions, including assault, rape, and murder. The true extent of crimes committed by illegal aliens remains unknown because there are also over 1.5 million unaccounted for “gotaways” since Biden’s term began.

In 2021 Department of Justice report revealed that 64% of federal arrests in 2018 involved noncitizens, despite them comprising only 7% of the population at that time. While the Biden administration fails to provide continuous updates on illegal alien crime data, Texas’ Department of Public Safety maintains a running database of such incidents. Other states should follow suit. [Emphasis added.]

Several chilling examples underscore the urgency of the situation. Alexis Saborit, an illegal alien from Cuba with a history of violence, beheaded his girlfriend with a machete in July 2021.

In April of this year, Francisco Oropeza, deported four times in the last 14 years, was accused of gunning down five Honduran immigrants in Cleveland, Texas – including an innocent 8-year-old.

In February, Bryan Marquez, who had deportation orders but was still in the United States, brutally murdered his roommate by beating him. He was charged with first-degree murder.

In January, Jose Hernandez faced five counts of indecency with a minor after allegedly sexually assaulting a young child multiple times.

And in March of last year, Jean Macean, an illegal alien who posed as an unaccompanied minor, was charged with two counts of first-degree murder after allegedly murdering a Daytona Beach couple. Macean had previous arrests related to drug charges, which were dropped due to the soft-on-crime predilections of George Soros-back Florida State Attorney Aramis Ayala.

The Left advocates for soft-on-crime prosecutors who are backed by Soros’ funds and for sanctuary cities, but this is a deadly combination. As long as sanctuary cities shield criminal illegal aliens from deportation and leftist prosecutors are appointed to promote ideologically “woke” crime policies based on what the Left perceives as “fairness,” the persistence of heinous crime like these will endure.

American voters must understand that the Biden administration is responsible for opening the borders and allowing people to enter the nation without any vetting. Democrats are responsible for the soft-on-crime prosecutors who let criminals out of prison and refuse to press charges for new crimes. If we are to regain our freedom from crime, we must close our borders and vet anyone and everyone who enters our country. In addition, we must stop electing prosecutors who are soft-on-crime.

Illegals and the Census

            The topic of discussion for this Constitution Monday concerns the question of whether or not the 2020 census should include people who are in the United States illegally. The Census is used for a number of different reasons and ways. One very important way that the Census is used is to determine which areas of the United States need more or fewer representatives in the U.S. House of Representatives.

            Arthur E. Gary, general counsel for the Department of Justice, sent a three-page letter dated December 12, 2017, to Dr. Ron Jarmin of the Census Bureau. Gary requested in his letter that the Bureau reinstate on the 2020 Census questionnaire a question regarding citizenship. I hope that you noticed the word “reinstate.” The DOJ is claiming that they need an accurate counting of citizens in order to enforce the Voting Rights Act.

            Liberals are up in arms about the idea. They need the illegals to be counted in order to have more Democrat representatives. They claim that such a question on the questionnaire would frighten illegals from participating in the Census. Columnist Rick Moran has a question about the liberal hysteria. 

I fail to see how such a question could generate controversy. Illegal aliens are already very distrustful of the census so it’s hard to see how one question would make it worse. They really needn’t worry. The Census Bureau cannot share information from the census with Homeland Security or any other federal agency due to confidentiality laws.

Instead of getting hysterical about adding the citizenship question, perhaps illegal alien advocates could explain to them they are in no danger of discovery from the Census Bureau. That would be a far more productive use of their time and energy.

            It appears that the United States Government has an important need to know the number of citizens in the country. This number is needed for both representation and for voting rights verification. I say put the question on questionnaire!

Illegal Aliens

                The Senate voted 68-32 on Thursday, June 27, 2013, to overhaul the immigration system for the United States.  The Senate plan claims the requirement of making tough changes to secure the borders of our nation while at the same time creating a path to citizenship for millions of people who have come to our nation illegally.  Why would any sensible person want to reward people who have broken our laws?

                The thousand-page bill was crafted by the “Gang of Eight” – four Senators from each party – and was later amended in order to get enough votes to pass.  Thirty-two Republicans voted against the bill while fourteen Republicans, two Independents, and fifty-two Democrats voted for it.  I am sad to report that both of my Senators – Democrat Mark Begich and Republican Lisa Murkowski – voted for the bill.

                This is the first serious attempt to overhaul immigration law since amnesty was granted to millions of illegal aliens in 1986.  It did not work then, and it will not work this time.  The reason that it did not work and will not work is because our elected officials refuse to secure our borders.  We must secure our borders in order to know who is in our country and why they are here.

                Speaker of the House John Boehner (R-Ohio) claims, “The House is not going to take up and vote on whatever the Senate passes. We’re going to do our own bill.”  Many Republicans in the House believe that any bill passed by the House will be “compromised” once it is passed and are therefore urging no bill to be passed in the House.

                The Senate bill is a means to grant “backdoor amnesty” to millions of illegal aliens; this part of the bill is simply a plan to generate more loyal followers from the Hispanic community.  By passing this bill, the Senate failed to exercise its constitutional responsibility to block “backdoor amnesty” as well as to support strict enforcement of the federal immigration laws that already exist.  This all advances the plan of the Obama Administration that ignores the Constitution, bypasses Congress and the American people and enacts changes in the regulations that benefit those who come into our nation illegally.

                Congressman Lamar Smith (R-Texas), former chairman of the House Judiciary Committee, said, “… the Obama administration is cooking the books to make it look like they are enforcing immigration laws, when in reality they are enacting amnesty….”  He added, “… President Obama and his administration continue to circumvent Congress and use executive branch authority to allow illegal immigrants to remain in the U.S.” and have “made clear that it plans not to use but abuse these powers … the Obama administration cannot continue to pick and choose which laws it will enforce.  It is outrageous that they have put illegal immigrants and their liberal political base ahead of the American people.”

                Judicial Watch, Inc. is a non-partisan, non-profit organization with headquarters in Washington, D.C.  It was established in 1994 to serve as a “watchdog” over “our government, legal and judicial systems and to promote a return to ethics and morality in our nation’s public life.”  Tom Fitton, president of Judicial Watch, said, “Since 1994, Judicial Watch has used the courts to hold public officials accountable for their actions. And since 2005, we have blazed an historic trail in challenging state and local `sanctuary’ policies that coddle illegal aliens and undermine our immigration laws, as well as exposing and challenging the Obama administration’s efforts to abuse Executive Authority by granting `stealth’ amnesty to millions of illegal aliens.”

                Sheriff Joe Arpaio of Maricopa County, Arizona, said, “Among the worst problems facing us in the fight against illegal immigration are `sanctuary’ policies that tie the hands of local law enforcement people.  At one time we had that problem right here in Phoenix where police officers were prohibited from asking about a person’s immigration status or cooperating with federal immigration agents….  Thanks to the U.S. Supreme Court, we now have far greater freedom in protecting our citizens from criminal illegal aliens.”  He added that “taking on sanctuary cities, towns, counties, and states across America” is “the most important fight in the illegal immigration war.”  He thanked Judicial Watch for fighting that battle.

                Although Judicial Watch has won many battles in this war, they are still fighting numerous new ones and request assistance from Americans.  They want to stop the plan for “backdoor amnesty” as well as the Obama Administration’s attempt to “gut” Arizona’s tough illegal immigration enforcement laws.  They also need our help to fight “the Obama administration’s compulsive secrecy (we have initiated nearly 1,000 open-records requests, many related to the Obama administration’s efforts to undercut our laws against illegal immigration and enact amnesty for illegal aliens through the back door.).”

                President Obama received massive support from Hispanic voters in the last election; he and his minions are now “politically driven” to “lock in that part of the electorate for years to come and appease the most radical `open borders’ groups with more payoffs.”  Judicial Watch claims that the Obama Administration are 1) “refusing to prosecute illegal alien sanctuary cities and counties that violate federal law by not cooperating with federal immigration authorities,” 2) “advancing BACKDOOR AMNESTY through `administrative measures’ that bypass Congress and that may very well be unconstitutional,” 3) “attacking and attempting to block tough new state immigration enforcement laws in Alabama and Arizona, and threatening other pro-enforcement states with the same treatment if they also attempt to protect their citizens from the scourge of illegal immigration,’ and 4) “using so-called `prosecutorial discretion’ to dismiss outright potentially hundreds of thousands of legal cases against illegal aliens and permit them to stay in the United States in violation of the law!  It’s obvious now that law enforcement and public safety have taken a back seat to their efforts to satisfy illegal immigration advocacy groups and lock in this important voting bloc.”

                 Judicial Watch is fighting an administration that is out of control but committed to advancing its radical agenda without concern for any loss of constitutional freedoms or costs to American citizens.  Since the federal government uses taxpayer-funded lawyers as well as funds from leftist groups, Judicial Watch is fighting against a financially strong force.  You can register to receive more information from Judicial Watch at this site as well as make a donation to this organization.  Since our elected officials are not interested in protecting the rights of American citizens, we must join the fight against our out of control government and insist on immigration laws that put our rights before the rights of illegal aliens.