Homeland security secretary Jeh Johnson on Capitol Hill. (Alex Wong/Getty)

The DHS secretary needs to answer some questions.

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.




In the online practice manual for BIA proceedings that it publishes, the Justice Department instructs that the BIA — which, again, is subordinate to the attorney general — “has general emergency stay authority when DHS appeals an Immigration Judge’s custody decision.” (See pp. 89–90.) The manual elaborates, “A bond decision is stayed by regulation when . . . DHS has determined that an alien should not be released, but the Immigration Judge authorized the alien’s release” (pp. 91–92).

Consequently, if an immigration judge makes an outrageous ruling releasing onto America’s streets two illegal aliens who are members of a designated terrorist organization, DHS need not take that lying down. The Department need only demand an emergency stay of the release order from the BIA, and file its appeal.

Moreover, if the BIA were then to make a similarly outrageous decision upholding the immigration judge’s order releasing terrorists onto our streets, DHS could then immediately demand a review of the BIA’s decision by the attorney general. Just so we’re clear, this would be an appeal by one cabinet official to another cabinet official, both of whom answer to the president. As the practice manual explains, “The Attorney General may vacate decisions of the [BIA] and issue his or her own decisions” (p. 9). That is, the attorney general gets to impose the president’s will.

There is one important situation, the practice manual goes on to explain, when the BIA has no authority to review an immigration judge’s decision to release an alien on bail: When DHS fails to appeal (p. 90).


Secretary Johnson claims that the release of these illegal aliens tied to a designated terrorist organization was not his “preference.” Well then, did he direct his DHS subordinates to appeal the release decision made by Attorney General Holder’s subordinate, the immigration judge?

To summarize, absent an order from a real federal court — i.e., an Article III judicial court, whose judges are not members of the executive branch — it is not possible for an illegal alien who is a member of a designated terrorist organization to be released from DHS custody unless the executive branch decides to release him. The Department of Homeland Security does not have to sit idly; DHS can demand that the terrorist remain in custody unless and until the attorney general decides to release him.

So why were the two Kurds who, DHS concedes, are members of a designated terrorist organization released from custody? If an immigration judge ordered their release, did DHS appeal? If not, why not?

Understand: If these illegal aliens were released and allowed to proceed to Canada — despite terrorist ties that should have placed them on a watch list — it happened because the Obama administration decided it should happen. It was not the “judge’s” decision to make.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.