Biden-Appointed Judge Has No Idea What Easy Words Like ‘Shall’ Mean

Judge Dana Douglas argues that because the government previously declined to enforce a law, it is now prohibited from doing so.

The Federalist

In an important recent immigration decision by the U.S. Court of Appeals for the Fifth Circuit, two of the judges, Edith Jones and Kyle Duncan, did what judges are supposed to do. They applied federal law exactly as it is written. The third judge, Biden appointee Dana Douglas, ignored the law and did her own thing. We began the Dishonorable Judicial Conduct Award for judges who refuse to follow the law and instead twist it, or ignore it altogether, to achieve the policy outcome they want. Judge Douglas has earned the next one.  

As we all know, the Trump administration has been trying to do what the president promised when he was running for office: vigorously enforce our immigration laws. The effort on the southern border has been a spectacular success, with the flood of aliens the Biden administration intentionally allowed in slowed to a trickle.

But the administration has also been rounding up some of the millions, especially criminal aliens, who have been allowed to enter the country illegally. In this case, aliens who admit they entered the country illegally years ago challenged their detention. 

The relevant statute, 8 U.S.C. § 1225, a reform passed in 1996, is crystal clear. An alien who “is not clearly and beyond a doubt entitled to be admitted … shall be detained” pending his removal proceeding. Not “may be” or “might be” or “possibly be,” but “shall be” detained. Not to put too fine a point on it, but “shall” means shall.  

It appears these illegal aliens don’t believe the law applies to them; they insist they are entitled to bond hearings so they can be released and avoid detention altogether while waiting for their immigration hearings. It should be plain to anyone who can read that the statute simply does not say what they want it to say. 

Still, the Fifth Circuit majority did their judicial due diligence, examining the “relevant provisions and structure of the” 1996 law, as well as its “statutory history, and Congressional intent.” Congress, they said, meant exactly what Congress clearly said in the statute; no bond hearing is required, and the government can detain illegal aliens without one.

Prior to the 1996 reform, aliens who bypassed border controls and spent months or years evading apprehension “could seek release on bond pending deportation hearings.” Aliens who were stopped at an official port of entry, however, “were subject to mandatory detention” and “could not request release on bond.” The 1996 law ended this differential treatment because the old law “afforded greater procedural and substantive rights to aliens who bypassed entry procedures.” So not only does the statute mean what it now says, but Congress intentionally wrote it to stop the very practice these aliens now demand.

Despite this change in the law, prior administrations of both parties failed to enforce it and continued to provide bond hearings to aliens who were not entitled to them. As the Fifth Circuit majority pointed out, “successive presidential administrations” ignored the “shall be detained” language. 

But that changed with the Trump administration. A decision last summer by the Board of Immigration Appeals emphasized that staying illegally in the U.S. “for a lengthy period of time following entry without inspection, by itself, does not constitute an ‘admission.’” In plain English, the fact that prior administrations failed to detain or deport an illegal alien doesn’t mean aliens should now be considered “admitted” to the U.S. with lawful status. 

Since DHS started detaining illegal aliens, however, “over a thousand aliens have filed habeas corpus petitions seeking bond hearings.” In most of these cases, the district courts ruled in favor of the illegal aliens. They simply ignored the law (and, rightfully, should share the award we are giving today to Judge Douglas).

The Fifth Circuit majority concluded the obvious, that the plain language of the statute — “shall be detained” — and the supporting legislative history mean that detained aliens are not entitled to bond hearings and can be held until their immigration proceedings. This was a straightforward, common-sense decision compelled by the law.

Judge Douglas, however, was having none of it and raged against both the majority and the government for its effort to detain “millions” of illegal aliens, “some of them the spouses, mothers, fathers, and grandparents of American citizens.” Judges, however, have no authority to make decisions based on such personal observations, no matter how evocative. She never acknowledged, let alone addressed, the fact that the law does not say that if you entered the country illegally, you are entitled to stay here if you are somehow related to an American citizen.  

How, you might ask, did Douglas justify ignoring the plain language of the statute? The fact that the statute “has never been applied in this way” by the government and that the “overwhelming majority of courts in this circuit and elsewhere” don’t support “the government’s position,” she wrote, means it should be ignored now.  

No, she really wrote that. Her argument is that because the government previously declined to enforce a law as it is written, it is now somehow prohibited from doing so going forward. And she believes the government’s past enforcement negligence apparently gives her license to create a provision requiring a bond hearing that Congress not only did not put there but explicitly rejected. 

In her final paragraph, Douglas objects that the government’s position “would mean that, for purposes of immigration detention, the border is now everywhere.” Welcome to reality, Judge Douglas.