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  1. Travel ban issue will be moot before SCOTUS date here's why. By Nolan Rappaport


    Getty Images

    President Donald Trump filed an appeal with the Supreme Court of adverse decisions in two circuit courts on his March 6 executive order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

    He also petitioned the court for a temporary stay of injunctions issued by the circuit courts that had restricted the implementation of the executive order. In a decision on Monday, the court granted the petition in part, staying the injunctions to the extent that they apply to foreign nationals abroad who have no connection to the United States. The stays are in effect only until the case is decided on its merits.

    Pertinent precedent

    In Kleindienst v. Mandel, the court held that Congress has plenary power to establish policies for the exclusion of aliens from entering the United States, which it can delegate conditionally to the executive branch. When the executive branch has used such authority to exclude aliens “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

    The absolute nature of the delegation at issue in this case is reflected in the language of the statutory provision that conferred it on the president in Section 212(f) of the Immigration and Nationality Act when it was enacted in 1952:

    "Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants..."

    Are the travel ban issues moot?

    Read more at --
    http://thehill.com/blogs/pundits-blo...me-court-heres

    Published originally on The Hill.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.





    Updated 06-28-2017 at 05:02 PM by ImmigrationLawBlogs

  2. Muslim Civil Rights Lawyer: Supreme Ct. Entry Ban Decision Promotes Discrimination Against All Muslims. Are Rights of Any Americans Safe? Roger Algase

    Update: June 28, 5:54 pm:

    Some legal analysts have suggested that the Trump administration can easily get around the Supreme Court's exception to its decision to uphold Trump's Muslim ban order until the Court's October term begins. The way to do this, according to this argument, would be for the administration to issue consular "guidance" memos which would in effect instruct consular officers to refuse visas to citizens of the affected six countries, even when the applicants clearly meet the standard of having bona fide ties with the US in order to qualify for the exception to the ban as enunciated by the Supreme Court in its June 26 decision.

    Then, the administration could rely on the doctrine of non-reviewability of consular officer visa decisions, set forth by the Supreme Court in Kerry v. Din (2015).

    This argument is set forth, for example, by Santa Clara University Law Professor Pratheepan Gulasekaram as quoted in a June 28 Slate article

    How Trump can get his Muslim Ban


    The flaw in this argument is that, under Kerry v. Din, the doctrine of non-reviewability of consular visa denial by the courts is not absolute. It is limited to cases in which there is no "affirmative showing of bad faith" - a standard set forth by Justice Kennedy writing for the plurality in that case.

    Admittedly, this is a standard which is not easy to meet. Very possibly, Justice Kennedy may not have contemplated that the behavior of any rational president or administration in connection with refusing admittance to the US to any immigrants or classes of immigrants would be egregious enough to put this standard into play.

    But that was before Donald Trump became the president.

    My original comment appears below.

    In the June 27 issue of Immigration Daily, I wrote that the Supreme Court had given Donald Trump a "Pyrrhic" victory, or at best (from the president's standpoint) a very incomplete one, by upholding Trump's six almost 100 percent Muslim country entry ban (hereinafter "Muslim ban" - not some vapid and meaningless euphemism such as "travel ban", whatever that means) for 90 days (which Trump will without the slightest possible doubt seek to extend for as long as he can - either in its current form or under the guise of his latest "Extreme Vetting" mantra - whatever that means), but with a very significant loophole.

    The loophole, as I explained in my comment and as numerous other writers have also pointed out) was that anyone from the six banned countries with bona fide ties to the US will be exempt from the ban entirely.

    Since the Supreme Court gave at least some specific guidance as to what it meant by the term bona fide ties to the US, it would appear from its decision that a substantial percentage of the people from the six countries who are able to receive visas from US consular posts in the first place will be eligible to enter the US without being affected by the ban. (My guess was 95 percent - perhaps overly optimistic from the point of view of the affected citizens of the six almost 100 per cert Muslim countries).

    This is because, few if any applicants in the six targeted countries would normally be able to have their visa applications approved unless they had substantial ties to the US in the first place.

    Therefore, as I argued in my June 27 comment (which was posted on ilw.com on June 26 - see below), leaving the president's ban in place for people who do not have strong ties to the US would arguably not affect very many people, since very few of those people would have been able to get visas even without the ban.

    However, no matter how much the president may have been disappointed - or "angered" - as he reportedly was by a lower court decision blocking his ban order - see: http://www.cnn.com/TRANSCRIPTS/1703/15/cnnt.02.html - by the thought of his administration's still being required by the Supreme Court decision to accept hundreds, or thousands, of people belonging to a group of people whom the president has made clear on numerous occasions that he would prefer not to admit the United States - a gens invisum (despised group of people) to use Virgil's famous phrase about Trojan refugees in Book 1 of the Aeneid - namely people who belong to the Muslim religion - there is still one extremely uncomfortable reality coming from that decision.

    That reality is that even though the Court has carved out a significant loophole to its order upholding the ban decision, it still upheld the president's religious ban in principle. My above June 27 comment did not fully deal with this issue.

    However, a Muslim civil rights lawyer and Harvard Law School graduate, Amir H. Ali, writing in The Guardian on June 27, has focused on the critically important underlying message that Trump conveyed to America and the world by issuing the Muslim ban orders in the first place, and which the Supreme Court confirmed by upholding the ban, even in part.

    https://www.theguardian.com/commenti...discrimination

    What is this underlying message in the Supreme Court's June 26 decision upholding the president's Muslim ban in part? It is a very simple one: that it is OK for the U.S. government to discriminate against Muslims because of their religion.

    This means not just Muslims from the six (originally seven targeted countries. It means all Muslims.

    And this leads to another fundamental question: If a country adopts a policy restricting the freedom of one group of people to exercise their basic rights, including freedom of religion, how secure will the basic rights of all other citizens of that country be, even if they are not members of the disfavored group (in this case, Muslims)?

    Ali writes, in his above article:

    "To understand the impact of the supreme court's decision, it is important to appreciate what it is like to be Muslim in the U.S. today: that your religion exposes to to the all-but-accepted-reality of routine deprivations of liberty and privacy each time you present yourself at the border.

    This discrimination (whether subconscious or otherwise is an unwritten condition of your apparent offense of Flying While Muslim."


    Ali continues:

    "And it [the fear of discriminatory treatment at the US border] is rational even when the strength of your connection to the U.S. means that you cannot lawfully be denied entry. There are myriad examples of American Muslims - people who have an unqualified and irrevocable right to enter the US - being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry."

    And he concludes, in a stinging but well-justified rebuke to the Supreme Court in its June 26 decision:

    "This point appeared to be lost on the court, which seemed to believe that affording discretion to deny entry to those people who fail its test will have no impact on the people who will pass the test. That reasoning reflects a fundamental misapprehension of what it is like to arrive in the US as a Muslim today.

    To be sure, the court's decision is far more tolerable than reinstating the travel ban in full, as the three dissenting judges would have done. But when carving lines into Trump's travel ban, the court may well have unleashed some of the vitriol that lies directly beneath."


    The last sentence above is the key. There cannot be the slightest rational doubt, based on the president's own statements and actions, both before and after taking office as president that his Muslim country entry ban orders (a much more accurate description than "travel ban". as I have mentioned above) were based on vitriol against Muslims purely because of their religion.

    The 4th Circuit majority, a little more politely perhaps, referred to this as "animus" instead, but using a Latin word instead of an English one does not change the point.

    During the presidential campaign, then candidate Trump infamously said (in March 2016): "I think Islam hates us".

    http://www.cnn.com/2016/03/09/politi...-us/index.html

    Can anyone seriously argue that Trump's Muslim ban orders (after becoming the second president in this century to be elected after losing the popular vote) were intended to accomplish any other purpose than to "return the compliment"?

    And is that March 2016 statement, which was obviously the real motivation for Trump's Muslim ban orders, including the original, even more sweeping seven country ban which Trump now states that he regrets having "watered down", in essence any different from another statement, about a different but well known religious group made some 80 years ago - a statement that will be infamous as long as human history endures so as to need no translation? I refer to Joseph Goebbels, writing in support of Adolf Hitler's persecution of the Jews in the 1930's:

    "Die Juden sind unser Unglueck!"

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-28-2017 at 04:57 PM by ImmigrationLawBlogs

  3. USCIS Introduces "Extreme Vetting" in New I-485 Adjustment of Status Form. Welcome to the United States of Ideological Purity. By Roger Algase

    Up to now, I-485 applicants who are successful in their applications to adjust status to permanent resident (green card) status have been receiving an I-797 approval notice with a wonderful greeting at the top stating:

    WELCOME TO THE UNITED STATES OF AMERICA

    Now, immigrants who are filing I-485 adjustment (AOS) applications will no longer have to wait until this form is approved in order to receive greetings of a very different kind from the US Department of Homeland Security.

    As soon as they read the new I-485 form which was introduced by USCIS on June 26, they will be welcomed into Donald Trump's promised Brave New World of "Extreme Vetting".

    While the new I-485 form was introduced with a USCIS announcement containing all the usual phraseology about how the form is more convenient, clear, user friendly, etc., which we are used to seeing every time a new, longer, more complex and convoluted immigration form is rolled out, the real difference between the new form and the current edition dated January 17, 2017 (only 3 days before the new president took office) is in the expanded "security" questions.

    While the new form, of course, does not in fact contain such a notice, it would not be inappropriate if it did contain one such as, say, the following:

    WELCOME TO THE UNITED STATES OF EXTREME VETTING

    To illustrate, the previous January 17, 2017 I-485 form (which will still be valid during a 90-day grace period) is 6 pages long and contains a total of 18 criminal history and security questions. The new form, in contrast, contains 80 (the real number, not a typo) criminal history and security questions. Moreover, many of these 80 questions are broken down into several parts, so that the total number of actual questions adds up to closer to 100 (or even more - I have not yet made an exact count). (Of course, the previous 18 questions also included a number of a's, b's c's, etc. so the actual total number of questions was higher than just 18.)

    This is not to say that there is anything wrong with big numbers per se in the sheer amount of questions asked. The immigration laws are extremely complex, and there are dozens of different grounds for being inadmissible to the United States.

    But the warning signs are in the vague, catch-all nature of some of the questions, which are not related to any specific provision of law, and seem to be nothing more than excuses to deny a green card to anyone whom our nation's 45th president, or his delegated immigration officials, decide that they do not want to remain in the United States for any reason they choose.

    Here are two examples:

    "Do you intend to:

    46.d Engage in any activity that could endanger the welfare, safety or security of the United States?

    47. Are you
    engaged in or, upon your entry into the United States, do you intend to engage in any activity that could have serious adverse foreign policy consequences for the United States?"

    What are these two questions supposed to mean? What immigration or other law defines the extraordinarily broad and vague term "welfare, safety or security of the United States"?

    What on earth could the even broader and vaguer phrase: "potentially adverse foreign policy consequences for the United States" possibly refer to?

    With regard to the first of the above two questions, some members of the Trump administration, such as Attorney General Jeff Sessions and Senior Presidential adviser Stephen Bannon, are on record as stating that all immigration in its present form, whether permitted by law or otherwise, is detrimental to the welfare of the United States.

    Trump himself, in his August 31, 2016 immigration address, called for much lower levels of legal immigration in general. Under this theory, if the president thinks that America already has too many immigrants (as he has claimed) any immigrant who applies for a green card might be "endangering" the "welfare" of the United States.

    This may sound like an extreme example, but consider some of the people whom Trump has, during both his campaign and after assuming the office of president has attacked as supposedly endangering the "safety and security of the United States". Here is a partial and incomplete list:

    1) President Barack Obama,
    2) Presidential candidate (and popular vote winner) Hillary Clinton,
    3) Any federal judge who opposed the president's Muslim ban executive orders,
    4) Members of the Democratic party,
    5) Anyone else who opposes or disagrees with the current president on any issue.

    The above list is not given in order to argue political points. It is only meant to illustrate the point that the above phrase can mean anything an immigration examiner wants it to mean - very possibly leading to long delays or even denials of green card applications for totally arbitrary reasons.

    This is even more true when we get to the phrase "potentially serious adverse foreign policy consequences for the United States."

    Who makes that decision?

    Were there potentially serious adverse foreign policy consequences for the U.S when the president pulled out of the Paris Climate Change Accords? When he (reportedly) pushed and shoved the Prime Minister of a much smaller country (Montenegro)?

    When the president criticized NATO allies as "deadbeats", while falling to impose stronger sanctions on Russia's dictator Vladimir Putin, alleged connections to whom on the part of Trump or his top officials are now under investigation by an independent counsel?

    Again the purpose here is not to argue about political questions. It is only to show that certain questions in the new I-485 AOS application form appear to be more concerned with imposing arbitrary standards or ideological purity on green applicants that go far beyond anything sanctioned or contemplated by our immigration laws - or by the norms of any democracy.

    Roger Algase
    Attorney at Law


    Updated 06-27-2017 at 01:29 PM by ImmigrationLawBlogs

  4. Supreme Court Hands Trump Pyrrhic "Victory" by Upholding Muslim Ban Only Against People Not Likely to Come to U.S. Anyway. Roger Algase

    Update: June 26, 9:15 pm:

    For another opinion supporting my own view that the June 26 Supreme Court decision reinstating parts of Trump's Muslim entry ban order was considerably less than an overwhelming victory for the president; and that it can even be looked at a resounding defeat for Trump if one focuses on the fact that lifting the injunction will probably make very little difference in who actually gets admitted to the US from the six countries affected, with or without the entry ban, see:

    Sabrina Saddiqui, writing in The Guardian:

    https://www.theguardian.com/us-news/...uling-analysis

    Nonetheless, even if the president's "victory" in having at least part of his ban reinstated may be more symbolic than in actual practice, the message that the Supreme Court is sending to the Muslims of America - and the world - is highly disconcerting for the future of religious freedom in America and of our democracy.

    The message is that the highest court in the most powerful and respected nation in the world is willing to wheel and deal away basic religious equality and human rights for almost 200 million people in the six countries and their co-religionists in the US, and accept second-class status for American Muslims, while branding their religion as a pariah one that is just a bit less "equal" than the others.

    By banning, even "temporarily" (and of course Trump is going to extend the ban, most likely re-branded as "extreme vetting", for as long and as often as he can, especially encouraged by the failure of the Supreme Court to oppose him more vigorously this time around - that is a given) almost 200 million people who do not have close ties with America, simply because of their religion, the Court is not only rewarding the president for his bigotry, bad faith and grab at imperial power in issuing the ban orders in the first place, but is encouraging him to adopt even wider, more bigoted and dangerous (for our democracy) ban or exclusion policies in the future.

    Today, Trump may have only succeeded in imposing a largely theoretical ban against a group of people who might not have been able to get visas anyway even without the ban.

    But who knows who will be the object of Trump's immigration bans or "extreme vetting" tomorrow? Most or all immigrants from outside Europe, as in the infamous 1924 Johnson-Reed law which both Trump's AG, Jeff Sessions (in 2015) and, (90 years earlier) an aspiring young German politician named Adolf Hitler wrote about so favorably?

    Any immigrant or visitor from anywhere in the world who has ever spoken out against Trump, or who refuses to pledge personal loyalty to him, as Trump allegedly asked former FBI Director James Comey to do before firing him? It has happened in other countries. It could happen in America.

    Did the Supreme Court, on June 26, 2017 just make it even more likely that, one day soon, it will happen in America?

    Update: June 26, 2:10 pm:

    In its decision to uphold the parts of the lower courts' temporary injunctions against enforcing Trump's entry ban that would bar citizens of the six targeted Muslim countries against people from those countries who have bona fide connections with the United States (see below), the Supreme Court, for the fist time that I am aware of, appears to be putting non-permanent resident foreign citizens who have bona fide connections with the US in the same category along with permanent residents in terms of having rights that take precedence over the executive's claimed unlimited right to decide who can enter the United States under the Plenary Power doctrine.

    In doing so, the Supreme Court may have opened the door to a significant weakening of that doctrine, which dates from the period of the infamous Chinese exclusion laws. "Plenary Power" at least in theory, gives the executive and Congress exclusive power over all admissions to the US by foreign citizens.

    While the Court did not specifically discuss Plenary Power in its decision, by making this important distinction, the Court may have weakened the Plenary Power doctrine to the point where, possibly at some time in the future, this doctrine might wind up in the dustbin of American immigration law history where it deserves to be.

    This is not to deny, of course, that any judicial support for Trump's Muslim ban, directed against even one person based on religion, is still a vote in favor of prejudice and bigotry, and against the values of equal justice and human rights on which America is based, and which are now under unprecedented attack in this administration.

    My original comment follows:

    In a per curiam decision from which the Court's three most conservative Justices dissented in part, the Supreme Court on June 26 agreed to hear the Trump administration's appeal from two Circuit Court decision enjoining implementation of the entry ban against citizens of six targeted almost 100 percent Muslim countries, but denied the government's motion to lift the Circuit Court injunctions against enforcing the ban against citizens of those countries who have a bona fide connection to the US - i.e. the people who are most likely to want to come to this country and who were the main targets of Trumps ban orders.

    The Court, in an evident bone thrown to the administration and to the Justice Department lawyers defending the Muslim ban, agreed to lift, for 90 days, the lower courts' injunctions against banning people who would be the least likely to want to come to the US or to be able to receive visas if they applied - namely people who have no connection with the U.S.

    The Supreme Court, in its decision, also indicated that by the time the case comes up for hearing in October, the entire entry ban order may be moot.

    While the president may no doubt try to "Trumpet" this decision as a resounding victory, it is, in reality, closer to the type of victory won by King Pyrrhus in ancient Greek history. This is not the type of "victory" that most rational people are looking for in any situation.

    The decision, however, is likely to cause a good deal of inconvenience, hardship and confusion at US airports this summer as various immigration officers raise questions about whether people from the six countries entering the US have the requisite bona fide connections with the U.S.

    There will no doubt be a good deal of litigation in the lower courts over this question during the next 90 days, and during the periods over which it is virtually certain that Trump will seek to extent the "temporary" (ha, ha, ho, ho, haw, haw haw, - who on earth really believes that?) ban.

    The three dissenting Justices wanted to lift the Circuit Court injunctions in their entirely and reinstate Trump's original six-country ban order against all of the approximately 180 million citizens of those countries, almost all of whom choose to attend mosques rather than churches or synagogues.

    No surprise here in the case of Justices Thomas and Alito, but one can express some surprise about Justice Gorsuch, who strongly stood up in favor of immigrant rights against executive overreach when Obama was president and Gorsuch was sitting on the 10th Circuit, but who now is evidently willing to give Trump virtually imperial powers in this area.

    Et tu, Neil?

    The full text of the Court's decision can be accessed by going to the June 26 Washington Post article:

    Supreme Court Will Hear Travel Ban Case

    and clicking on the direct link to the decision in that article.
    __________________________________
    Roger Algase is a New York immigration lawyer, and a graduate of Harvard College and Harvard Law School, who has been helping mainly skilled and professional immigrants from diverse parts of the world with work visas and green cards for more than 35 years.

    Roger focuses mainly on H-1B, O-1 and J-1 work visas, and on green cards through labor certification (PERM) and through opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

    Updated 06-27-2017 at 06:08 AM by ImmigrationLawBlogs

  5. Trump ends 20-year policy of hosting Muslim End of Ramadan Dinner at W.H. More Evidence of Religious "Animus" for Courts to Consider? Roger Algase

    The Washington Post reports that Donald Trump has terminated a 20-year White House policy of hosting a dinner to celebrate the Eid, ending the Muslim fasting month of Ramadan, and has issued a short, perfunctory statement marking this important Muslim holiday instead.

    http://www.houstonchronicle.com/news...g-11244746.php

    Holding a White House dinner to celebrate this event dates from the time of President Thomas Jefferson, and had been revived under Presidents Clinton, Bush and Obama.

    While of course, the current president has no legal or other obligation to mark this celebration, canceling this event can be read as one more indication that this president does not feel a great deal of empathy or respect for Americans who practice this particular faith.

    There can be little doubt that the president, by cancelling the Eid celebration, intended to send the 3 or 4 million American citizens and permanent residents who practice this religion a clear message about his own personal feelings toward all people who belong to this religious group, not just to citizens of the six countries on his latest entry ban list.

    Could this be additional evidence for the Supreme Court and/or other federal courts to consider of what the Fourth Circuit Court of Appeals determined was Trump's clear pattern of "animus" and religious discrimination in general against Muslims as the real motive for his entry ban orders?

    It would not be unreasonable for the courts to reach such a conclusion.

    While extending best wishes to all Muslims for this holiday, it is important to bear in mind that their struggle against religious prejudice and discrimination in America, including but not limited to immigration policy, but also including an appalling increase in anti-Muslim hate crimes in this country (and the U.K.) which our nation's 45th President has done little or nothing to speak out against, is a struggle for justice and equality on behalf of Jews, Christians and all the diverse people of America, regardless of religious affiliation or lack of same.

    As Rabbi Burton L. Visotzky of the Jewish Theological Seminary in New York, and Reverend Bertram Johnson of New York's Riverside Church, two of America's best known and most respected religious organizations, wrote recently in The Hill:

    Jews and Christians must oppose Trump's 'Muslim ban'. Again.

    http://thehill.com/blogs/pundits-blo...slim-ban-again

    Roger Algase
    Attorney at Law

    Updated 06-25-2017 at 04:48 PM by ImmigrationLawBlogs

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