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Update: March 22 as of 2:57 pm:
POLITICO reports that Donald Trump has sent warm greetings to the people of Iran for their Now Ruz holiday, the Iranian New Year. He praised Iran's multi-religious heritage and also commended"many Iranians who have come to our country in recent decades to make a new start in a free land."
If Trump's latest ban on entry to the US by some 100 million citizens of six (formerly seven) almost 100 per cent Muslim countries is upheld by the federal courts, there will not be very many more Iranians coming to America to "make a new start in a free land", since Iran is on the banned list.
My original comment appears below.
Much of the debate over the original and current versions of Trump's executive orders barring an estimated 100 million citizens of six 99 per cent Muslim countries from entering the United States without any showing that they have terrorist connections or individually present any threat to America is focused on the alleged lack of Constitutional protections for the rights of foreign citizens seeking to visit, study or work in this country temporarily.
In a recent ilw.com post, I introduced the thorny and complicated subject of the "Plenary Power" over immigration doctrine which the Supreme Court devised back in the 1880's to make it easier to discriminate against Chinese immigrants by keeping them out the the US on purely racial grounds, just as Trump is now trying to keep Muslims from the affected Middle Eastern and African countries out for primarily religious reasons. I will have more to say about "Plenary Power" in a future comment.
However, there has been less discussion about the specific ways in which Trump's Muslim ban is harming the Constitutional rights of Muslim US citizens to religious freedom and equal protection of the law, by making them in more subject to discrimination and threat of violence in reality, not just as a matter of personal feeling, as alleged, for example in the complaint filed in federal district court by the State of Hawaii and the individual Muslim plaintiff in that case.
Now comes a report by the Institute for Social Policy Understanding which adds substance to these fears, just as the Supreme Court, just over 60 years ago, found that there was a substantive basis for the feelings of African-American children that they were not equal to white children caused by the school segregation laws of that time.
The above report includes four key findings, all of which are at least in part the result of Trump's presidential campaign demonizing and scapegoating Muslims around the world, including American Muslims, as potential terrorists, which undeniably played a major influence in the genesis of Trump's Muslim entry ban orders.
These findings are as follows:
1) Muslim children face the most religious-based bullying in school.
2) Muslim Americans are more scared for their personal safety than any other religious group.
3) Muslims are facing additional screening at the border more than any other religious group.
4) More Muslims report religious-based discrimination than any other group.
Much as the supporters of Trump's ban on entry to the US by some 100 million people for no reason other than they happen to live in six overwhelmingly Muslim countries, none of whose citizens has ever been found to have committed an act of terrorism in the US (yes, some of these countries have terror group problems to be sure, but so do many other Muslim and non-Muslim countries that are not on the banned list) would like to pretend that only the rights of foreign citizens are affected by Trump's executive orders, the reality is that these orders, taken together with Trump's consistent attacks on Muslims both before and after taking office as president, are doing irreparable harm to the rights of millions of Muslim US citizens.
A summary and link to the full report is available at
In a summary of the report, entitled:
American Muslim Poll 2017: Muslims at the Crossroads,
the authors, Dalia Mogahed and Youssef Chouhoud, refer to the "deeply divisive presidential election cycle" and an uptick in "negatively charged rhetoric and discriminatory acts" against "not just Muslims already in the United States, but also toward those who year to make America their home."
Even if Trump had not threatened during the presidential campaign to put US Muslims and their places of worship under surveillance, his targeting of an estimated 100 million people for exclusion from the US for no other reason than they happen to live in countries with almost 100 per cent Muslim populations (which, like many other countries not on the list, have had to deal with the presence of terrorist supporters or organizations in their midst), is adding to the fear, hatred and suspicion with which millions of innocent American Muslims are being regarded by their co-US citizens (and by US border control agents).
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 obtain work visas and green cards for more than 35 years. Roger's email address is email@example.com
Updated 03-22-2017 at 01:57 PM by ImmigrationLawBlogs
Bulletin: March 22, as of 1:00 pm:
There has been a suspected terror attack on the British Parliament in London. Wiil this be Donald Trump's Reichstag (1933 German Parliament) Fire?
My original post appears below:
In another ominous indication that Donald Trump's attempts to ban more than 100 million citizens of six 99 per cent Muslim countries from coming to the United States have very little to do with national security, and a great deal to do with changing America's immigration demographics back toward the Europeans - only policies of the 1924 Johnson-Reed Immigration Act (which Trump's AG Jeff Sessions praised in a 2015 immigration manifesto, and which Senior White House Adviser Stephen Bannon's Breitbart News has also supported), The Guardian reports that every single one of the between 60 and 100 African applicants for visas to attend an annual conference on US-African business and trade at the University of Southern California was refused a visa, even though none of their approximately a dozen different countries of origin was covered by the ban (which the federal courts have temporarily blocked from taking effect in any event).
The internationally renowned UK newspaper writes:
"The African Global Economic and Development Summit, a three-day conference at the University of Southern California (USC), typically brings delegations from across Africa to meet with business leaders in the US to foster partnerships. But this year, every single African citizen who requested a visa was rejected, according to organizer Mary Flowers."
The Guardian continues:
"The problems for the trade summit mark the latest example of restricted travel to the US under Trump, whose controversial immigration policies and rhetoric have impacted a wide range of industries and communities. Soccer players, musicians, doctors, tech workers, protesters and others from across the globe have been denied access to the U.S., which has also experienced a slump in immigration since Trump's inauguration."
With regard to the countries of origin for the applicants who were denied visas, The Guardian writes:
"Rejected participants at the trade summit came from Nigeria, Cameroon, Angola, Ethiopia, Sierra Leone, Guinea, Ghana, South Africa and more, according to Flowers."
Even though Trump's latest six Muslim country ban is not currently in effect, The Guardian also reports than none of the rejected applicants were from any of the three African countries (Lybia, Somalia and Sudan) that were on the banned list.
According to the same report, many of the applicants who had already registered for the conference, which took place with only 50 to 75 participants instead of the 150 to 200 who usually attend, were refused visas after only short interviews even when they brought extensive documentation, such as bank statements and property records.
According to the same article, The State Department has refused to give any explanation for or to discuss its actions in banning visitors to the US from an entire continent.
It appears that the issue of arbitrary bans on entry to the US from parts of the world which may be out of favor with the Trump administration has escalated beyond entry from only half a dozen countries, for which there may have been at least the illusion of a pretext, however contrived, for a blanket exclusion.
According to the report, Mary Flowers also stated:
"I don't know if its Trump or if its the fact that the embassies that have been discriminating for a long time see this as an opportunity, because of the talk of the travel ban, to blatantly reject everyone...These trade links create jobs for both America and Africa. It's unbelievable what's going on."
There was a famous saying in ancient Rome.
Ex Africa semper aliquid novi - "There is always something new out of Africa."
One could update that saying to add that there is always something new from Africa - except visitors to an America in the Donald Trump era in which immigrants of color are feeling increasingly unwelcome.
For those who still believe in and support America's ideal of non-discrimination on the basis of race, religion or national origin which has been the basis of our immigration laws for the past half century, there is another Latin saying, taken from Cicero's famous address against Cataline before the Roman Senate, which might well be addressed to our 45th president and the nationalist advisers at the top of his hierarchy:
Quo usque tandem abutere...patientia nostra?
"How much longer will you continue to abuse our patience?"
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years. His email address is firstname.lastname@example.org
Updated 03-22-2017 at 12:01 PM by ImmigrationLawBlogs
President Trump’s revised travel ban hit another roadblock last week as the federal district court for Hawaii ordered a stop to implementing the travel ban. The decision was made on the ground that the plaintiffs are likely to succeed in court on the merits of their claim that the executive order violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.
But the court’s objection to the travel ban, which would impose a 90-day suspension on the entry into the United States of nationals from six countries which were designated by Congress and the Obama administration as posing national security risks, is that President Trump wrote it. The court even acknowledges this in its decision:
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.
“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
The court writes that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail and the fact that he asked Rudolph Giuliani how to do it legally.
According to Eric Posner, a professor at the University of Chicago Law School, the courts are creating a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason, which with respect to the order, is the national security interest in stricter vetting.
Read more at
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.
Update: March 19, 2:28 pm:
While the following report about the cancellation of an annual Cinco de Mayo Mexican-American community festival in Philadelphia over fears of ICE deportation arrests is not directly related to the Muslim entry ban issue discussed below, it is an additional indication of the manner in which Trump's immigration executive orders, issued pursuant to his claim of presidential "Plenary Power" over immigration, are having a chilling effect on the rights and freedoms of minority US citizens.
One thing is certain: this is not the last time we are likely to hear about Americans, including but not limited to those belonging to Muslim, Latino and other minority communities, becoming afraid to exercise their Constitutional rights and freedoms as a result of Trump's exercise of unilateral presidential power over immigration.
My original comment follows:
In the essentially trivial and superficial debate now taking place among the majority and dissenting judges in the 9th Circuit Court of Appeals, and between supporters and critics of Hawaii US District Judge Derrick Watson over how much, if any, weight to give to Trump's consistent record of campaign statements and proposals attacking all Muslims around the world in determining the real motive for Trump's revised six Muslim country entry ban, there is a danger of losing sight of the larger issue involved.
See my comment in the March 17 issue of Immigration Daily
Will Trump's claim to have "Plenary Power" to ban over 100 million people from six (formerly seven) 99 per cent Muslim countries based on little more than his own say-so lead to an attempt on his part to assert "Plenary Power" over all Americans and to take whatever action he chooses against racial and religious minorities in the US?
In order to answer this, we have to look at the origin of the Plenary Power doctrine itself, in the dark days of the late 19th century Chinese exclusion laws. Natsu Taylor Saito, a Law Professor at Georgia State University, has provided a comprehensive analysis of the way in which the racial attitudes that period are still affecting the rights of minority immigrants in the 21st century in his 2003 article in the Asian American Law Journal which will be discussed in detail in my next comment, entitled:
The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for Ongoing Abuses of Human Rights
10 Asian Am L.J. 13 (2003)
(I am sorry - I have not been able to find a direct link which works - please go to Google to access the full article.)
By way of introduction to this vast and crucial topic, however, it is difficult to overstate the absurdity of the argument being raised by Trump's supporters, including the five dissenting judges in the 9th Circuit who agreed with his view that the courts should step aside and give the president free reign (spelling and pun entirely intentional) over admission of foreign citizens to the US, while at the same time condemning the president for his intimidating personal attacks on the judges in the majority on that court who disagreed with his claim to unlimited power over entry to the US. to the effect that Trump's numerous and consistent campaign and, other pre-inauguration statements demonizing and vilifying all Muslims around the world as potential terrorists who hate America, should be ignored in deciding whether Trump's entry bans were motivated by "animus" against Muslims and their religion in general.
What difference can the exact timing of these statements, all of which were made within the past just over a year before his initial January 27 entry ban order, make in determining the real motives for Trump's entry ban orders against citizens of countries which are almost 100 percent Muslim?
As the ancient Greek poet Hesiod wrote some 700 years before the Christian era (in a somewhat different context!):
alla tie moi tauta peri dryn e peri petren?
("What does this matter to me more than a tree or a rock?")
Even if if the courts were to accept the argument of the five dissenting 9th Circuit judges and overlook all the negative things that Trump said about Muslims in general during the campaign, including his threats to put US mosques under surveillance and set up multiple databases to track Muslims in the US, Trump's statements and actions after taking office as president alone are enough to show intense "animus" against Muslims in general based mainly or solely on their religion.
Let us take a brief look at some of some of these post-inaugural statements and actions before moving on to the main question in my forthcoming comment.
First, upon becoming the president, Trump installed two of the most notorious opponents of the Muslim religion and Muslims in general as top White House advisers. I refer, of course to the now disgraced Michael Flynn, who attacked the Muslim religion as a "cancer", and to the still powerful and influential White House Senior adviser Stephen Bannon, who has claimed that America is in a "War of Civilizations" with the Muslim world.
Next, after appointing these advisers, Trump, according to news reports too numerous to need citation here, prepared and issued his initial January 27 Muslim US entry ban order (let's call a spade a spade here, without using misleading euphemisms such as "travel ban" - the more than 100 million Muslims affected were totally free to travel wherever they wished - as long as they stayed away from the United States of America) in a process that froze out his real national security experts and relied almost entirely on Bannon and on another White House adviser who also has a reputation as being no friend of Muslims or the Muslim world, Stephen Miller.
Next, after this disastrous introduction of the initial entry ban order, and while hundreds, if not thousands, of innocent Muslim visitors and permanent residents, including not only students, skilled workers and family members of Americans returning from overseas visits, but even a baby coming here for life-saving surgery and a translator who had risked his life to help American soldiers overseas, were either summarily sent back or were trapped and detained for hours at airports throughout the US without access to lawyers until the courts stepped in to stop these abuses, Trump announced that the order was going "smoothly" and exactly as planned.
Then after the order was put on hold by a federal district judge in Seattle, Trump launched a vicious personal attack on the judge, James Robart, accusing him, and all opponents of the ban order, of allowing potential "terrorists" to pour into the US.
Finally, just before the new, six country order was released, Trump made a speech in which he said that he should have stuck by the disastrous original order. At the same time, Stephen Miller announced that the new order would accomplish the "same policy objectives" as the original one.
Is this not enough evidence that the two entry ban orders were motivated by the same antagonism toward Muslims and their religion that Trump not only exhibited, but reveled in, during his campaign?
Where is the "good faith" in these two executive orders which the Supreme Court ruled in Kleindienst v. Mandel (1972) and Kerry v. Din (2015) must be shown in order to insulate executive branch actions in relation to admission of immigrants or other foreign citizens from judicial scrutiny?
To use another ancient Greek analogy, are the courts supposed to drink the forgetful waters of Lethe, not only with regard to Trump's antagonistic statements toward Muslims made a year or six months ago, but also as recently as a month ago or even last week, when he was no longer just a candidate, but was already the president?
As Ovid, the great Latin epic poet of Greek mythology who was "deported" from his own city of citizenship, Rome, by another autocrat, Augustus Caesar, to spend the rest of his (Ovid's) life in exile, wrote:
utque soporificae biberem si pocula Lethes,/temporis adversi sic mihi sensus abest.
"As if I were drinking a sleep-inducing cup of Lethe's waters/ I lose all sense of these adverse times." (My translation.)
With the above as introduction, in my forthcoming comment i will address to the central issue presented by Trump's two Muslim ban orders, namely what his claim of absolute, "Plenary" power over entry to the United States by non-US citizens could mean for the future of racial and religious equality in the Untied States, and for the survival of our democracy.
This forthcoming comment will contain a detailed discussion of Professor Saito's above cited Law Journal article.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years. His email address is email@example.com
Updated 03-20-2017 at 05:32 PM by ImmigrationLawBlogs
Update: March 18, 12:20 pm
POLITICO reports on March 17 that the 9th Circuit Court of Appeals judges are escalating their attacks on each other in additional opinions written after the five-judge dissent authored by Judge Jay Bybee, discussed below in my expanded version of my original comment first posted on March 17.
I will have more to say about Judge Bybee's dissent and the fierce reaction to it on both sides in an upcoming comment ilw.com comment.
For the POLITICO story, see:
The expanded version of my original comment appears below.
In what could could be one of the most extraordinary judicial opinions ever written in the history of US immigration law, 9th Circuit Judge Jay Bybee, joined by four other of that court's judges, issued a dissenting opinion which sharply criticized Donald Trump personal attacks on the judges of the court, even while supporting Trump's claim of almost unlimited presidential power to ban immigrants from entering the United States.
For a summary of Judge Bybee's dissent an a link to the full opinion in the American Bar Journal, see:
In a lengthy opinion which relied heavily on the alleged limits on judicial power to interfere with "good faith" decisions of the executive branch to exclude non-US citizens from entering the US (citing Kleindienst v. Mandel, S. Ct. 1972, but said nothing about the Constitutional rights of U.S. citizens to free exercise of religion and equal protection of the law, Judge Bybee wrote in his dissent that:
"We are judges, not Platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress."
Without going into the origin of the Supreme Court's doctrine of "Plenary Power" being vested in Congress and the executive over immigration, dating from the dark days of the Chinese exclusion laws, it is enough to point out that Trump's Muslim ban orders did not even meet the very basic Kleindienst v. Mandel test, cited by Judge Bybee, of being facially legitimate and in good faith.
However, after making clear in his opinion that he (and the other four judges who joined in the dissent) supported Trump's view that the courts have little or no business questioning his power to bar any foreign citizen or citizens he chooses from entering the US for almost any reason he chooses, Bybee, one of America's most conservative judges, who achieved notoriety as the author of the G.W. Bush administration's "Torture Memos", wrote a denunciation of Trump's authoritarian attempts to intimidate the judiciary which, one can safely predict, will be quoted more many years or even centuries to come, for as long as America continues to remain a democracy:
"Even as i dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were all out of bounds of civic and persuasive discourse - particularly when they came from the parties [i.e. Donald Trump]. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."
Judge Bybee's stinging rebuke of Trump's personal attacks on judges who do not agree with him concluded:
"Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all."
As if to lend credibility to Judge Bybee's unprecedented rebuke of a sitting president for undermining the rule of law in America, even while agreeing with Trump's position on the case at hand, Trump responded with another, ominous attack against the court's majority judges who supported a more limited view of presidential power, accusing the 9th Circuit as follows:
"That circuit is in chaos and that circuit is frankly in turmoil."
Trump's latest attack follows a threat in February by Republican Senators to break up the 9th Circuit in response to its original decision blocking Trump's seven country Muslim entry ban.
What does this say about the chances for survival of democracy and the rule of law in America while Donald Trump is president?
As I predicted in an earlier Immigration Daily comment, both Trump's claim of unlimited presidential power over immigration and his personal attacks against judges who disagree with him put the foundations of America's democracy at risk.
The issue raised by Trump's attempt to ban more than 100 million Muslims in six, formerly seven, countries from entering the United States has now escalated from an assault on a particular religion to an attack on the Constitution's separation of powers and judicial independence itself.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.
Roger's email address is firstname.lastname@example.org
Updated 03-18-2017 at 01:29 PM by ImmigrationLawBlogs