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  1. Trump's Attacks on Clinton as "Weak" on Muslim Refugees Helped Him Win. Should the Courts Ignore This in Muslim Ban Lawsuits? Roger Algase

    The following comment, which has been revised and expanded as of May 21, will continue with some of the points I discussed in my earlier comment on this topic dated May 9.

    Amid the countless reasons put forth by innumerable pundits for Hillary Clinton's losing an election that even Donald Trump has (accurately, for once) said she should have won, ranging from the Alpha of alleged Russian hacking of the DNC to the Omega of a letter by a certain government official by the name of James Comey, there is one important factor that has been largely overlooked by the media, but should not be overlooked by the Federal 4th and 9th Circuit Courts of Appeals.

    This is the role that the use of specifically anti-Muslim attacks directed against Hillary Clinton by Trump and his supporters may have had in determining the outcome of the election. The nature of these attacks, and their importance, deserve to be among the factors that the 4th and 9th Circuit Courts should consider in determining the legality of Trump's latest six Muslim country entry ban order.

    While Trump's revised executive order's actions against refugees, also blocked by the Hawaii federal judge's order now under review by the 9th Circuit, have received far less publicity, they are also arguably just as important to a judicial assessment of Trump's real motives for the entry ban order as the six almost 100 per vent Muslim country ban itself.

    Which of Trump's and his supporters many attacks on Muslims, and, especially Muslim refugees, am I referring to, and why are they so important to the six Muslim country and world-wide refugee ban litigation?

    Let us take a close look at an October 2016 article, appearing just a month before the election, in Breitbart News, then under the direction of Stephen Bannon, who, as every Muslim and non-Muslim in America knows, is now Trump's senior presidential adviser. The article bears a title typical for this publication, which has never been known for using restrained language:

    Critics: Hillary Clinton Plans to Flood U.S. With Muslim Refugees

    The article begins with a dire warning:

    "More than 45 per cent of the refugees resettled in the United States in FY 2016, 38,556 out of 84,995 were Muslim, according to the Department of State's interactive website. Of the 12,587 Syrian refugees who were resettled in the United States in FY 2016, more than 99 per cent, 12,487, were Muslim."

    The article then, after quoting from a National Review piece attacking the Democrats for supporting "aggressive multiculturalism" (an obvious code word for Latino, Middle Eastern, Asian and black immigrants) as opposed to "patriotic assimilation" (i.e. European immigrants, as were favored by the discredited and long since repealed 1924 Immigration Act which Trump's Attorney General Jeff Sessions had such high praise for as a Senator only two years ago, in his 2015 Immigration Handbook for Congressional Republicans), continues with a direct attack on Hillary Clinton.

    quotes from an article by Ann Corcoran, who specializes in blogging against Muslim refugees, when she is not warning that America is in danger of being taken over by Sharia law. See:

    According to Corcoran, as quoted in Breitbart's above referenced article:

    "If Clinton is elected, she will certainly bring in at least 200,000 refugees in her first year, the majority of whom will be from Muslim dominated countries...

    Hillary Clinton is clearly hiding her real plans from the American people. If she wins the election, she...will...flood the country with refugees from countries that hate us..."

    Breitbart also states:

    "Voters strongly oppose President Obama's plan to bring 110,000 Middle Eastern and African refugees to this country next year, up from 85,000 this year, and view that decision as an increased danger to national security, according to a Rasmussen poll."

    Is there any question about which religion the overwhelming majority of Middle Eastern Refugees and a large percentage of anticipated African refugees would belong to?

    But, as Breitbart News also makes clear in the same article, wildly inflated numbers of refugees whom Hillary Clinton allegedly planned to bring to the United States were not merely bandied about by Donald Trump's surrogates or supporters, but by Trump himself and his top immigration adviser, Jeff Sessions:

    "On September 20 in High Point, North Carolina, GOP nominee Donald Trump, citing a Senate study, said: 'Altogether Hillary Clinton's plan would bring in 620,000 refugees in her first term, alone, with no effective way ti screen or vet them. Her plan would cost $400 billion in terms of lifetime welfare and entitlement costs.'"

    And what "Senate study" did Trump have in mind when he made this speech? Breitbart reports:

    "But the 620,000 estimate does not come from the Trump campaign. Instead, it comes from a statement released by the Senate Subcommittee on Immigration and the National Interest chaired by Sen, Jeff Sessions (R-AL)"

    And this was not Trump's only attack against Clinton based on the issue of predominantly Muslim refugees: Mother Jones reported the following about a speech Trump made at a September, 2016 rally in Ft. Myers, Florida:

    "Trump attacked Clinton as weak on immigration and terrorism, saying the Democratic nominee 'has the most open borders policy of anyone ever to seek the presidency.' He also falsely claimed that ISIS prefers that Clinton win the election. "They want her so badly to be your president, you have no idea.'"

    The same report also states:

    "Later in the day, the Trump campaign issued a statement that called for 'extreme vetting' of refugees and keeping the number of Syrian refugees in the United States at their current low levels."

    Here are some excerpts from Trump's statement referred to in the above story:

    "Today, Hillary Clinton showed that she will say anything - and blame anyone - to shift attention away from the weakness she showed as Secretary of State. The Obama-Clinton doctrine of not taking ISIS seriously enough has emboldened terrorists all over the world. They are hoping and praying that Hillary Clinton becomes president so they can continue their savagery and murder...

    That's why I've proposed extreme vetting for immigrants from troubled parts of the world where terrorists live and train and oppose Hillary Clinton's 550% increase in the number of refugees from the conflict in Syria."

    What, exactly, did Trump mean by the term "extreme vetting"?

    Is it anything other than a Muslim entry ban?

    It is nothing other than that, according to Trump's response at his October 9, 2016 debate with Clinton: Here is the exchange, as reported in the transcript of the debate:

    "RADDATZ: Would you please explain whether or not the Muslim ban still stands?

    It's called extreme vetting." [Italics added.]

    After this bald admission that the Muslim ban and "extreme vetting" are one and the same thing, Trump continued as follows, according to the debate transcript:

    "We are going to areas like Syria where they're coming in by the tens of thousands because of Barack Obama. And Hillary Clinton wants to allow a 550 percent increase over Obama. People are coming into our country like we have no idea who they are, where they are from, what their feelings about our country is [sic], and she wants 550 percent more. This is going to be the great Trojan Horse of all time...

    But I don't want to have...hundreds of thousands of people coming in from Syria when we know nothing about them. We know nothing about their values and their love for our country."

    In addition to Trump's utterly baseless claim that the US was letting in refugees from Syria "when we know nothing about them" (after the normal 2-year screening process which was in place for Syrian refugees under Obama!), the last sentence of Trump's above response goes beyond the specific issue of terrorism and into the larger "cultural" attack which has been used to exclude unpopular minority immigrants from the time of the anti-Irish Know-Nothings in the mid-19th century, the Asian exclusion laws around the turn of the 20th century, and the anti-Jewish and anti-Catholic Johnson-Reed Immigration Act of 1924.

    Here, Trump is suggesting that, even apart from any alleged terrorist connections or sympathies, Syrian refugees may not fit in with American "values", or may be lacking in "love" for America, just as Chinese immigrants were accused by the US Supreme Court of being unable to assimilate in is notorious Chae Chan Ping decision in 1889, and as every other minority immigrant group in our history has been accused of at one time or another.

    Taken as a whole, Trump's above remarks show a clear pattern of using the terror issue as an entry way to excluding all members of an entire major world religion from the United States (just as Trump is now using "crime" as an excuse to ramp up the deportation of 11 million mainly Latino immigrants).

    Is this something that the 4th Circuit, 9th Circuit and other federal courts which may be deciding the legality of Trump's Muslim ban orders can be expected to turn a blind eye to?

    There is a powerful case to be made for the proposition that Trump's rhetoric accusing Hillary Clinton of being "weak" against the alleged danger of admitting Muslim refugees did more to help him win the electoral vote last November (while losing the popular vote to Clinton by almost 3 million votes) and become president than any other factor (including, to be sure, Clinton's own perceived weakness as a candidate, symbolized by her vapid, meaningless and now totally forgotten campaign slogan: "Stronger Together" ). (Oy!)

    In issuing the original and revised Muslim ban orders, was Trump's real concern one of national security? Or was he instead fulfilling a campaign promise (yes, even presidents sometime do that, now and then) that he made in his notorious worldwide Muslim ban speech of December 7, 2015?

    Isn't this something that the federal courts, under the doctrine of separation of powers on which our democracy depends, have not only the right, but the duty, to look into?

    And wouldn't this be the case even if Trump had not, after becoming president, continued his previous anti-Muslim policies by appointing Michael Flynn, who said that the Muslim religion was a "cancer", and Stephen Bannon, the Breitbart News chief who believes that the "West" is in a "War of Civilizations" with the Muslim world, to the highest level advisory positions in his administration?

    And this is not to mention Trump's appointment of Jeff Sessions, the source of the above inflated figures quoted by Breitbart News, whose only purpose was to scare American voters into thinking that this country would be inundated by hundreds of thousands of America-hating Muslim refugees if Hillary Clinton became president, as his Attorney General (with responsibility for defending the Muslim ban orders in court)!

    Are the federal courts obliged to pretend, to adopt a legal fiction that flies in the face of all reality and truth concerning the history of this issue, to the effect that none of the president's Islamophobic statements or actions, before and after his becoming president, have any meaning or connection with the origin and purpose of both the initial seven country version and his latest six Muslim country entry ban order?

    In Kleindienst v. Mandel (1972) a leading Supreme Court decision involving the capacity of the federal courts to review a State Department visa denial, the Court quoted a statement by Justice Felix Frankfurter, to the effect that the power of the courts to review executive branch immigration decisions might be different if the "slate" (of judicial precedents) were "clean". But, referring to a line of decisions dating from the dark period of the Chinese exclusion laws, Frankfurter said that the slate was not clean.

    In the case of Trump's Muslim ban orders, the issue, to be sure, involves a different "slate" - the president's own speeches and actions, both before and after taking office. Who can possibly say that that slate is clean?

    In conclusion, let us suppose that both of the above Circuit Courts, or the Supreme Court, accept the president's meretricious (from the Latin word meretrix - look it up) argument that the courts have no power to look behind the surface language of the latest six Muslim country entry ban order in order to ascertain its true purpose, and that they are instead required to accept the national security pretext set forth in the order at face value.

    Can there be any possible doubt that if the Muslim entry ban is upheld, the president, whose relationship with the truth has been tenuous at best in most of his immigration statements (as even many of his own supporters would admit), would seize on such a decision as an endorsement of his campaign statements that all Muslims are suspect, including several million loyal American citizens, and that the rights of these US citizens to free exercise of their religion, or their personal freedom from surveillance, or even from WW2 Japanese-American style internment if the untrammeled will of the president so determines, are no long recognized in Donald Trump's America?

    And if the rights of Muslim Americans disappear, how secure will be the rights of the rest of the American people who are not Muslims?

    This is the ultimate danger of Trump's Muslim ban orders, as well as his mass deportation agenda against mainly Mexican and other Latino immigrants. On the surface, they may only appear to affect the rights of non-citizens.

    But history, as well as so many of Trump's own attacks on the media, the judiciary, and just about anyone else who opposes him, show that once the rights and freedoms of immigrants start to vanish, the rights of the American people will soon follow.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world receive work visas and green cards, without regard to ethnicity, religion or nationality, in the true spirit of America.
    Roger's email address is

    Updated 05-21-2017 at 09:32 PM by ImmigrationLawBlogs

  2. Two New House Bills Support Trump's Racial Profiling, Mass Incarceration and Demonizing Immigrants Agenda. Roger Algase

    Two leading members of the House Judiciary Committee, Raul Labrador (R-Idaho) and Committee Chairman Bob Goodlatte, (R-Virginia) have introduced nightmare "immigration enforcement" bills which would give massive support to the agenda which Donald Trump and Jeff Sessions have been promoting that would lead to increased racial profiling, mass incarceration and demonizing immigrants in general as criminals, terrorists, fraudsters and people who take away jobs from Americans.

    The two bills, by vastly increasing the size of Trump's "Deportation Force" and, in the case of the Labrador Bill, authorizing state and local governments to enact their own anti-immigrant legislation along the lines of Arizona's notorious S.B. 1070 law and the recently passed, arguably even worse, Texas S.B.4 law, would come even closer to actualizing the long held goals of an anti-immigrant movement which has never accepted the demographic changes brought about by the immigration reform law of 1965 abolishing the "Nordics"-only "national origin" racially motivated immigration quotas of the 1924 Johnson-Reed Act.

    Attorney General Sessions, in particular, as a Senator, had high praise for the 1924 law as a basis for current US immigration policy.

    Summaries of both bills are posted on the official website of the House Judiciary Committee

    A news story about the two bills is also available at:

    The Labrador bill is called:

    The Michael Davis, Jr. And Danny Oliver In Honor Of State And Local Law Enforcement Act

    The Goodlatte bill is called:

    H.R. 2406, Immigration and Customs Enforcement Authorization Act.

    In addition to the dangerous and destructive provision authorizing state and local governments to enact own ant-immigrant legislation, mentioned above, the Labrador bill would do the following (again based on the official summary - I have not seen the full text):

    1) Contains provisions punishing "Sanctuary" cities and states by cutting off their DOJ and DHS grants, and exposing them to private lawsuits;

    2) Makes it easier to detain and deport drunk drivers, among other "criminal aliens";

    3) Makes it more difficult for foreign citizens to obtain legal visas by imposing extra layers of security screening, including social media checks. This could, potentially, give consular officers even more excuses for arbitrary visa denials based primarily on nationality or religion, as well as slowing down the visa process in general;

    4) In a major move toward making Trump's much vaunted "Deportation Force" a reality, the bill also provides for hiring an additional 12,500 ICE officers and for (according to the summary) "strengthening their ability to make arrests", i.e. create even more fear and panic in immigrant communities than there has been at present in the first four months of the "Donald Trump Era".

    According to the official summary, the Goodlatte bill would:

    i) "...ensure that ICE is dedicated to enforcing all immigration laws, not just a select few", i.e. that ICE does not leave anyone out of its mass deportation dragnet;

    ii) Beefs up ICE's investigation responsibilities, including, among other things, worksite enforcement and "immigration benefits and document fraud". This appears to be intended to put ICE further into the business of not only deporting unauthorized and criminal immigrants, but also intimidating and harassing employers and other sponsors of legal visas in order to discourage them from hiring immigrants. As Donald Trump said: "Hire American" (or go to jail)?

    iii) In connection with item ii) above, the Goodlatte bill would set up a division within ICE to be called Enforcement and Removal Operations (ERO). This division would be tasked with responsibility for, among other things, "identifying, apprehending, detaining and removing aliens unlawfully present" regardless of whether or not they have any criminal history or otherwise pose a danger to public safety.

    iv) In support of the above, the Goodlatte bill would also provide for major increases in Trump's Deportation Force, to the tune of 10,000 more ICE deportation officers and 2,500 detention officers.

    v) In addition, the Goodlatte bill codifies Trump's VOICE office, whose only real purpose is to publicize alleged crimes committed by or charged against immigrants. This is in the same spirit as that of the notorious German 1930's and 1940's publication "Der Stuermer", which did the same thing with regard to alleged crimes committed by Jews, and whose director, Julius Streicher, was ultimately executed as a war criminal.

    The above highlights from the summaries of these bills do not detract from the fact that certain specific features of the bills may, arguably, be marginally useful in providing protection not already contained in our strict immigration laws against dangerous criminals and potential terrorists.

    But the language of the bills (again on the basis of the provided summaries - the bills themselves reportedly amount to some 200 pages) lumps all immigrants together with the criminals and terrorists (as well as drunk drivers, "fraudsters" and "job stealers") in order to demonize America's primarily Hispanic, Asian, Middle Eastern and black immigrants as undesirable in America in every way imaginable.

    America's law enforcement officers will not fail to get the message that immigrants from parts of the world other than Europe are no longer wanted or welcome in Donald Trump's America; and federal, state and local police police will have carte blanche to go after immigrants in any way they wish, as much as they want.

    As the propaganda saying in Germany during the above mentioned period (1933-1945) went:

    Die Juden sind unser Unglueck! ("The Jews are our misfortune!")

    The same spirit of antagonism toward the great majority of America's immigrants, including those who have legal status in this country as well as those who do not, runs throughout the above two immigration bills.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world receive work visas and green cards without regard to ethnicity, religion or nationality. Roger's email address is

    Updated 05-19-2017 at 08:44 PM by ImmigrationLawBlogs

  3. What are Mike Pence's Views on Immigration? Roger Algase

    At the time that Vice President Mike Pence was selected as Donald Trump's running mate in July, 2016, there was a good deal of focus on the fact that Pence's stance on mass deportation was significantly different from that of Trump's.

    Newsweek quoted the following from a speech that Pence gave at the Heritage Foundation in 2006, which strongly contrasted with the emphasis that Trump and AG Jeff Sessions have been placing since Trump's inauguration on putting every unauthorized immigrant in the United States in fear of deportation, regardless of whether or not they have ever been charged with a crime or otherwise pose any threat to the peace and safety of America:

    "It is not logistically possible to round up 12 million illegal aliens. We know that this idea of putting everybody on buses and conducting a mass deportation is a non-starter."

    This statement, and a related proposal by Pence to grant legal status (not citizenship) to immigrants who "self-deport" briefly before coming right back to work as guest workers in the jobs they has been working in illegally did not exactly endear Pence to hard line anti-immigrant groups such as FAIR, which issued a July 2016 statement that it had some "concerns" about Pence's stands on immigration.

    This is not to say by any means that FAIR found nothing to like about some of Pence's immigration positions. For example, FAIR's statement commended his (unsuccessful) court battle to keep Syrian refugees from resettling in his state as governor of Indiana.

    FAIR was also happy with Pence's vote as a Congressman against the DREAM Act, and with his opposition as governor to President Obama's DACA program, which FAIR called an illegal use of executive power to grant amnesty to "millions of illegal aliens".

    FAIR'S statement did not mention Pence's strong condemnation of Trump's world-wide Muslim ban proposal in December, 2015. In a tweet, Pence denounced that proposal as "offensive and unconstitutional".

    Of course, as many have pointed out, even if some of Pence's proposals on immigration are more reasonable and less extreme than the Trumps/Sessions agenda which now holds sway in Washington, Pence, as Vice President, has no choice but to support Trump's agenda of mass deportation of mainly Latino immigrants and ban from entry to the US by 100 million Muslim immigrants from six countries (or as many of these as the federal courts may allow him to get away with).

    Therefore, we can expect Pence to be a loyal supporter of Trump's immigration agenda for as long as Trump is president.

    However long that might be.

    Roger Algase
    Attorney at Law

    Updated 05-18-2017 at 08:12 AM by ImmigrationLawBlogs

  4. The days of abdicating our duty to enforce immigration laws are over. By Nolan Rappaport

    © Getty

    On May 11, 2017, Attorney General Jeff Sessions made an appearance before Customs and Border Protection officers at the U.S.-Mexico border to announce the issuance of new guidance to federal prosecutors on criminal immigration enforcement.

    It is here, along this border, he said, that transnational gangs like MS-13and international cartels flood our country with drugs. They leave death and violence in their wake. “And it is here that criminal aliens and the coyotes and the document-forgers seek to overthrow our system of lawful immigration.”

    “I am here to tell you, the brave men and women of Customs and Border Protection: we hear you and we have your back.”

    The president has made enforcement of our immigration laws a priority, and we are seeing the results already. Illegal crossings dropped by 40 percent from January to February of this year, and last month, we saw a 72 percent drop compared to the month before the president was inaugurated. This is the lowest monthly figure in the last 17 years.

    It is “the Trump era.” The days of abdicating our duty to enforce the immigration laws are over.

    But what are his real intentions?

    According to Frank Sharry, one of the nation’s leading liberal spokespersons for immigration reform:

    “Attorney General Sessions is grandstanding at the border in an attempt to look tough and scare immigrants. It’s yet another example of the Trump administration treating all immigrants as threats and as criminals. This is the smokescreen they use to justify their efforts to deport millions, to keep people out of the country, and, ultimately, to try and remake the racial and ethnic composition of America.”

    Sharry’s accusations seem to be based on what he thinks of Sessions, not on what Sessions is doing, which in this case is just prioritizing the prosecution of criminal immigration violations.


    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. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

  5. Could Misrepresenting the Purpose of Trump's Muslim Ban Order be Grounds for Impeachment as a Fraud Upon the Court? Roger Algase

    On the afternoon of May 13, the Washington Post published an oped opinion by Harvard Law School professor Laurence Tribe, one of America's best known and most highly respected legal scholars, calling for Donald Trump's impeachment because of his alleged obstruction of justice by firing FBI Director James Comey.

    According to Professor Tribe, Trump's allegedly "phony justifications for the firing", in order to conceal the real reason for that action, namely impeding the investigation into alleged illegal ties with Russia by Trump or his top aides, were among the actions that, In Tribe's words, 'rise to the level of 'obstruction of justice'".

    See: Laurence H. Tribe: Trump must be impeached. Here's why.

    (I do not have a direct link to this article. Interested readers can go to Google.)

    While Professor Tribe did not mention anything about Trump's executive orders or other immigration actions, an additional possible ground for impeachment, based on similar reasoning, might very well be found in the claim made before the 4th Circuit Court of Appeals by Department of Justice Lawyers at Trump's direction to the effect that the president's latest executive order barring 100 million or more citizens of six almost 100 per cent Muslim countries from entering the United States, solely because of their nationality, was not a "Muslim ban", but was allegedly issued for valid national security reasons.

    See: ABA Bar Journal:

    DOJ lawyer tells 4th Circuit that Trump's travel order 'is not a Muslim ban'

    As I have pointed out in previous recent Immigration Daily comments on this issue, aside from the fact that numerous experts in the field have challenged the genuineness of the purported national security justification for the entry ban,

    the Trump administration has engaged in egregious bad faith by claiming a national security justification for the ban in the face of what what Virginia Attorney General Mark Herring (no connection with the plaintiff in the 3rd Circuit case discussed below) has aptly called "a mountain of evidence" that the entry ban was motivated by Trump's hostility against Muslims and the Muslim religion.

    Trump has said and done almost everything that he can attack Muslim immigrants, thereby also impeding the free exercise of religion by Muslim US citizens guaranteed under the 14th Amendment. He has done this both as a candidate and after he became president.

    See my recent comments on Trump's December 7, 2015 call for a worldwide ban on entry to the US by Muslim from any country, a proposal which remained on his official website for the next 17 months, right up until May 8, 2017, when it was suddenly removed shortly after the 4th Circuit oral argument!

    However, evidence that Trump's seven and six country entry bans were motivated by extreme animosity toward Muslims and their religion is not just based on one speech. The entire history of these two executive orders, comprising statements and actions that Trump has taken after becoming president as well as before, is laid out in a damning April 19 report by the highly respected Brennan Center for Justice at the New York University School of Law called:

    The Islamophobic Administration

    No one who reads this report with an objective and unbiased mind can possibly doubt that Trump's entry ban orders were directed against at least 100 million Muslims because of their religion, not because of any genuine national security concerns.

    The introduction to the report lists five ways, including but not limited to the Muslim bans themselves, in which the Trump administration:

    "through both speech and policy" has been "tangibly harming the American Muslim community".

    The report lists these five ways:

    "the use of anti-Muslim rhetoric; the elevation of Islamophobic staff members to key positions in the White House; the ban on visitors from seven Muslim-majority countries from entering the country; the goal of making vetting procedures 'extreme' for potential visitors and immigrants; and a lack of response to the rise in hate crimes targeted at Muslims and other groups."

    Therefore, there is at least a plausible argument that by instructing his lawyers to argue before the Circuit Court judges that his executive order was "not a Muslim ban" Trump might have directed these lawyers to attempt a fraud upon the court by misrepresenting the real motivation for the six country ban.

    In a 2005 3rd Circuit Court of Appeals case, Herring v. U.S., 424 F.3rd 384, cert. denied 547 U.S. 1123, the federal government was accused of participating in a fraud upon the court by allegedly using bogus national security grounds to withhold evidence which could have led to a heavier judgment against it in an air accident case than the amount which the plaintiffs eventually settled for.

    Even though the government was ultimately successful in defending against fraud upon the court charges in that case, the Court discussed the elements of this form of misconduct which could arguably have a great deal in common with the Trump administration's conduct in the 4th Circuit entry ban case, and possibly other pending federal court actions involving his entry ban executive orders as well - enough resemblances to be worth consideration by a Congressional impeachment panel.

    The Herring case involved a US military plane crash which had taken place in 1948 (almost 60 years before the 3rd Circuit's above decision!) in which the lead plaintiff's father, a civil engineer aboard the plane, had been killed. The plaintiff's mother and two other widows had sued the United States under the Tort Claims Act, but had not been able to gain access to Air Force documents relating to the crash because the government had claimed that they were privileged, because the plane was allegedly on a highly secret mission and that making the report of the crash available would compromise national security.

    As a result, and after going all the way up to the Supreme Court, which remanded the case to the District Court in U.S, v. Reynolds, 345 US 1 (1953) for further fact finding in which the government was ordered to produce the report so that the court could look at it and decide whether the claim of privilege was valid, but still refused to produce it the report, the plaintiffs finally settled the case for less than the full amount of their claim.

    In 2000, the lead plaintiff found out that the government had declassified the report in question, and she and the other plaintiffs then brought an action to vacate the settlement and reopen the case on the grounds that by claiming privilege with respect to the crash report, the government had committed a fraud upon the court.

    In the new lawsuit, the plaintiffs contended that the declassified report did not contain anything which would have revealed military secrets or compromised national security, as the government had claimed it did in the original lawsuit a half century before.

    After reviewing the now declassified report, the 3rd Circuit determined that there was in fact military information in the report which justified the government in asserting privilege, and that therefore the claim of fraud upon the court failed. The lawsuit to reopen the settlement decision was dismissed.

    Obviously, there are differences between the above case and the current litigation in the 4th Circuit and other federal courts over the legality of Trump's Muslim ban executive order. In the current litigation there is no claim of government privilege based on secrecy. Nor is there any mystery about what the alleged justification that the president is claiming for the executive order is, since the reasons for issuing the president's order are set forth in full detail in the order itself.

    But the Herring case, as well as the 1953 Supreme Court decision in the original lawsuit remanding the case to the District Court for further fact finding which was quoted at length in the 2005 3rd Circuit decision, both stand for the proposition that the courts do not have to accept the federal government's reasons for taking or refusing to take certain actions, even when a claim of national security is involved, if the national security claim is made with intent to deceive.

    In the Herring case, the effect of the government's alleged deceptive claim of privilege on national security grounds was to induce the plaintiffs to settle a tort case for 25 per cent less than they had asked for in the complaint.

    In the case of Trump's six (originally seven) country Muslim entry ban, the effect of the Trump administration's allegedly fraudulent use of national security and anti-terror justifications in order to impose a ban on entry to the US by at least 100 million members of a religion toward which Trump showed intense hostility during his campaign, and at least two of the highest ranking advisers he appointed after he took office as president (Stephen Bannon and Michael Flynn) openly regarded as fundamentally evil, has had infinitely greater ramifications than the settlement of a tort suit.

    It has sent a clear message, not only to America's 3 or 4 million Muslim US citizens and legal residents, but to Muslims in every country in the world, whether or not on the banned list (which, by the terms of the executive order itself is not necessarily limited to just six countries - it contemplates adding many others to the list - guess which religion will be in the majority in those countries as well!) that their religion is disfavored in America in violation of our Constitution.

    The order also sends a message that people who belong to that religion, merely by that fact, will be subject to suspicion and special scrutiny under the name of "extreme vetting" if they seek to enter the US, and that members of that religion who are US citizens may also become subject to special surveillance and observation, as Trump also threatened repeatedly during the campaign.

    With this background, and in view of the enormous consequences of this executive order if it is upheld, the Trump administration is under an even greater obligation to be honest and truthful with the federal courts about the real reasons for issuing the six country entry ban order.

    Given the enormous evidence that is already in the record showing that the president is not adhering to that standard of honesty and good faith, either in the alleged national security justifications for the ban that he is asserting in court, or in his lawyers' even more dangerous and authoritarian argument that the courts have no power to look at the motivation for the ban at all, the question of whether the president is responsible for an attempt to commit a fraud upon the court cries out for investigation leading up to impeachment proceedings.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world, without regard to their ethnicity, religion or nationality, obtain work visas and green cards.

    Roger's immigration law practice is primarily concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 training work visas; and in green cards through labor certification and opposite sex or same sex marriage. His email address is

    Updated 05-14-2017 at 11:10 PM by ImmigrationLawBlogs

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