By Andrew C. McCarthy:
Homeland Security secretary Jeh Johnson gave some peculiar testimony in a House hearing Tuesday about two men tied to a designated terrorist organization who, he says, fled to Canada after “they were released by the judge” in an immigration hearing. Representative Jason Chaffetz pressed Secretary Johnson on the matter but appears either to have run out of time or not known what to ask. He and the committee should follow up promptly.
The story begins back in September when the pair, along with two other companions, were caught attempting to enter the United States through Mexico. It was quickly reported that four terrorists had tried to enter the country, igniting concerns that Islamic State cells were taking root here. Johnson quickly moved to ease those concerns by revealing that the four men were, in fact, Kurds associated with the Kurdistan Workers Party (PKK).
The PKK is a delicate subject for the Obama administration at the moment. In Iraq and Syria, the Kurds are fighting our enemy, the Islamic State, and PKK forces are among their most effective fighters. The PKK, however, is itself a designated terrorist organization under American law. The administration thus faces a problem similar to that which hamstrings its support for the so-called moderate Syrian opposition: aiding the enemy of our enemy is material support to terrorism — a serious federal crime. (As I’ve noted time and again, the “moderate” Syrian opposition is rife with anti-Western Muslim Brotherhood elements and its most effective fighters are al-Qaeda affiliates.)
At the time of their detention, Secretary Johnson vowed that DHS would deport the four Kurds. But at yesterday’s hearing, he admitted that two were still detained and, worse, the other two had been released and had fled to Canada. Regarding the latter pair, the secretary claimed that their release was:
Not my preference. They were released by the judge, and they fled to Canada and they are seeking asylum in Canada.
Emphasizing that the two released Kurds “have terrorist ties,” Representative Chaffetz later asked Johnson, “Doesn’t that beg a lot of questions about what you’re doing in deporting criminals?”
Well, yes, it does raise questions . . . and Representative Chaffetz should press for answers.
As frequently happens in immigration matters, the administration is banking on the fact that most Americans, including, it seems, many members of Congress, do not realize that immigration judges are not real judges — meaning, judges who are members of the independent federal judiciary under Article III of the Constitution. To the contrary, immigration judges are merely mid-level officials of the executive branch.
Johnson’s testimony suggested that there was nothing much DHS could have done because a “judge” had released the two PKK-tied Kurds. But the bail decision was actually made by an immigration judge, who works for the Justice Department not the federal judiciary. The decisions of an immigration judge can be appealed to the Board of Immigration Appeals (BIA), which is also part of the Justice Department. Those decisions, in turn, can be reviewed by the BIA’s superior, the attorney general.
That is to say, any decision an immigration judge makes can be reversed by Eric Holder.