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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    Roger is right that this provision could be abused, but then so can many other criminal laws. I mention one as an example, the harboring provision. It's a capital offense to help someone to enter or remain in the country illegally if a death results from whatever it is that you do to help the person. Have you heard of any executions for violating the harboring provision? I haven't.

    It would be more productive to concentrate on the expansion of expedited removal proceedings. Trump is likely to deport millions of undocumented aliens without hearings under that provision. No appeals either.

    As I say in my article, the only way to deal with the upcoming onslaught of extreme enforcement measure is to find a way to work with the republicans on a comprehensive immigration reform bill that would meet the essential political needs of both parties.

    Nolan Rappaport
  2. ImmigrationLawBlogs's Avatar
    For another perspective on this bill, as well as companion bill introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA) see my May 19 ilw.com post:

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


    http://blogs.ilw.com/entry.php?9901

    In my discussion of these two bills, I rely only on the official summaries posted on the Committee website, not the full text of either bill, as Nolan does with the Labrador bill in his article.

    For this reason, my comment did not mention possibly the most horrendous provision of all in the Labrador bill, Section 314 which would criminalize certain types of visa overstay known as "unlawful presence" (a concept which originated in the 1996 IIRIRA and which can lead to 3 or 10 year bars on re-entry to the US).

    This section, in the hands of an aggressive Attorney General such as Jeff Sessions, could rapidly lead to filling up of America's prisons with millions of people who entered the US legally, but then overstayed their visas.

    The same section would also make failure to comply with the terms of one's visa a criminal offense, thereby also filling up a potential American prison network with legal immigrants who have been involved in even the most technical violations of their often complex, arcane and obscure visa terms.

    If this section becomes law, America would change from a nation of immigrants to a nation of gulag inmates, more resembling the former Soviet Union, which Russian President Putin, alleged ties with whose government some of our own president's top aides, or possibly even Trump himself, are now under investigation by a Special Prosecutor, once worked for as a KGB officer.

    I am not a Republican political consultant, but if I were, I might well advise the party's Congressional leaders to spend a little less effort and energy in looking for ways ways to prosecute and lock up F-1 students who may inadvertently fail for some reason to attend the required number of classes, or H-1B workers who may have omitted to sign their I-9 forms properly, and instead pay a little more heed to whether the leader of their party may have committed an impeachable offence by allegedly committing a far more serious crime known as Obstruction of Justice.

    Roger Algase
    Attorney at Law
    Updated 05-22-2017 at 06:39 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Matt, let us suppose that a hypothetical president (Not Donald Trump, even though his senior White House adviser, Stephen Bannon, is on record as having expressed views not inconsistent with those below), issues the following hypothetical executive order:

    "As president of the United States, in exercise of the authority vested in me by INA Section 212(f) I hereby determine that, in order to preserve, and protect, and to prevent dilution or impairment of, the values, culture, principles and ideals of more than 2,000 of European civilization which were bequeathed to us by the founders of the United States of America, all of whom were of European ancestry and steeped in European culture and values; and based upon my finding and determination that the European values, culture and civilization upon which this nation was founded and on which our identity as Americans depends, are now in danger of reduction or disappearance from our society due to the admission of large numbers of immigrants belonging to different cultural traditions and with different values, all of which is detrimental to the interests of the United States; and on the basis of the above determination, I hereby order that, effective immediately and until further notice, no alien shall be admitted to the US unless he or she can prove exclusively European ancestry with respect to both parents."

    Would you be willing to defend that kind of openly bigoted hypothetical executive order, Matt?

    Don't forget now, 212(f) is a very broad statute, as you have been explaining.

    Yup, very broad indeed.

    Roger Algase
    Attorney at Law
    Updated 05-19-2017 at 09:28 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    The Chinese exclusion laws were also ostensibly based on nationality, not race/religion. They did not ban every person in the world of Chinese ancestry from immigrating to the US, but only citizens of one country: China.

    Even with regard to China, the ban only applied to Chinese "laborers", not "merchants".

    Yet, the Supreme Court, in Chae Chan Ping (1889) expressly stated that race was the real reason for the ban (and, based on the prejudice of those dark times in our immigration history, upheld the exclusion laws mainly for that very reason).

    Today, our politicians are not as honest about their racial/religious prejudices prejudices as they were in those days when it comes to immigration - except for the president, that is, who made his hatred for Muslims from every country in the world, including US citizens, a centerpiece of his campaign, and certainly gave no indication after becoming president that he had changed his views in the slightest.

    To the contrary, by appointing someone like Mike Flynn, who has called the Muslim religion a "cancer" as a top presidential adviser, (and even today, May 19, Trump is now saying that he regrets giving into pressure to fire Flynn!) Trump is making clear where he stands on Muslims.

    Is there any legitimate reason why the courts should not now take him at his word?

    And what is the point of trying to invent all sorts of excuses for Trump, when he is only doing, with regard to as many Muslims as his legal advisers think the courts will let him get away with - and 100 million people in six countries is not a small number -what he has been promising to do right from the start?

    Roger Algase
    Attorney at Law
    Updated 05-19-2017 at 08:17 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    As an update, it is now not just one or more law professors who think that Trump should be impeached, but a growing chorus of politicians and commentators in both parties.

    http://thehill.com/homenews/administ...rumps-troubles

    They are now awaiting the results of the Special Prosecutor's investigation into Trump's alleged obstruction of justice and collusion with Russia to sway the results of last year's election.

    The lies, egregious bad faith and, arguably even possible fraud on the court in connection with Trump's Muslim ban litigation which I have described elsewhere in Immigration Daily, and his demagogic assaults against many other non-white immigrants are only part of a general pattern of lies and deception which might signal an early end to Trump's presidency if the criminal allegations which the special prosecutor will be looking into are proven to be true.

    Roger Algase
    Attorney at Law
    Updated 05-18-2017 at 08:16 AM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    I would also respectfully point out that if Hillary Clinton had been elected president in the electoral college, not only in the popular vote as she was, and she were under investigation by a special prosecutor for conduct that was one twentieth, one fiftieth, or even one hundredth as serious as the obstruction of justice and related allegations that Trump is now being investigated for, her opponents would be howling and screaming for her to be impeached and locked up.

    I refer to my previous Immigration Daily comments in which I looked into the origin of the two ancient Greek words referring to the actors in Greek dramas who were "giving answers" (krites) from under (hypo) masks.

    As I pointed out, this lead to the Greek word "hypokrites" which has certainly come back to life today in the "New Era" (no, I am not saying "New Order" as they did in Germany in 1933) of Donald Trump.

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 08:47 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    If pointing out that Trump is now facing a special prosecutor who will be looking into whether the president may have allegedly committed the crime of obstruction of justice, and whether he or his top staff may have allegedly illegally colluded with a dangerous and hostile foreign power to destroy the integrity of the electoral system on which our democracy depends, and that alleged conduct. if proven, is an immeasurably greater threat to the security of the American people than someone who gives a car ride to an unauthorized immigrant is a "tirade", because it implies that our Leader may be less than perfect, I cannot stop Nolan from doing so.

    This is (for the time being) still a country that respects freedom of speech, and Nolan's choice of epithets to support an absurd argument he has no chance of winning - namely that violating Section 274 of the INA is even remotely as serious or dangerous to our nation as what Donald Trump is being investigated for, is up to Nolan himself.

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 08:15 PM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    Nolan has still not answered my point on the basic flaw in his argument that the courts cannot go behind the face language of the Muslim ban executive orders to look at the surrounding circumstances relating to whether the order was issued in good faith, as in Kleindienst v Mandel.

    As I have also argued in my analysis of the 3rd Circuit's 2005 Herring decision, following the law of that case as stated by the Supreme Court some 50 years earlier (in the same litigation!) courts always have the inherent right to look into the question of whether a national security argument raised by the government in any situation may be a fraud upon the court.

    Nolan also doesn't answer my point that, just on the face of that order, the infamous WW2 order directing the internment of Japanese-American US citizens would not have been directed against people of Japanese ancestry at all. The order, which the US Congress and president apologized for by statute many years later, nowhere used the word "Japanese" in its text.

    Nolan's absurd argument that Trump's order banning 100 million citizens of six (originally seven) more than 99 per cent Muslim countries is not directed against Muslims because of their religion might just as well be used to argue that the notorious Chinese exclusion laws of the late 19th Century were not directed against Chinese as an ethnic group, because the law only applied to citizens of China itself, not to Chinese living in any other countries.

    However, just in case there is anyone who might ever be thinking of making such a ridiculous argument, I would point out that the Supreme Court in Chae Chan Ping (1889) expressly pointed out that the exclusion law was in fact based on race (and upheld the law as valid for that reason)!

    With his Muslim ban executive orders (original and current versions) Trump is showing the same animus and hatred against Muslims as a religion - expressed in so many of his other speeches and actions as well - that Congress and the executive showed against Chinese immigrants beginning 135 years ago when the first exclusion law was enacted in 1882.

    Are the courts going to allow Donald Trump to take America back to the spirit of those dark days in our history?

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 09:24 PM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    I won't discuss the merits of Roger's attempt to turn his comment about my article into a Trump tirade, but I will agree with him that harboring is a very broad provision. I do not know how far a prosecutor can go in enforcing it. Can DOJ prosecute Roger for his articles that support illegal immigration? I doubt it.

    But what if Roger finds out about an undocumented alien who absconded when he got a notice to appear for deportation and gives him a place to stay, feeds him, loans him money, and loans him a car to drive to and from his unauthorized employment. Yes, I think the prosecutor would win that case.

    Worse yet. If the alien drives the car Roger loaned him and kills someone in a accident while he is driving under the influence, Roger could be sentenced to life imprisonment or death.

    Not at all likely, but it could happen.

    Nolan Rappaport
  10. ImmigrationLawBlogs's Avatar
    If one reads the "harboring" statute, INA Section 274, and the case law concerning that statute which Nolan has not yet discussed so far as I am aware, but which I am planning to do in a future comment, it will be apparent that conduct which is far less serious and dangerous to the safety and security of the United States of America than Trump's alleged obstruction of justice in the FBI firing, which has now lead to the appointment of a special prosecutor (see below) could still run afoul of the extremely broad language of this statute and lead to throwing millions of Americans in jail for relatively trivial contacts with immigrants.

    Is this Jeff Sessions' and Donald Trump's vision for America?

    In late breaking news on May 17. the Justice Department has appointed a special prosecutor to look into Trump's or his top campaign staff's alleged illegal connections with Russia that might have influenced the outcome of the 2016 presidential election.

    http://www.politico.com/story/2017/0...a-probe-238524

    Is the pattern of duplicity, bad faith and outright lies that Trump has been "harboring" in attempting to justify his Muslim ban executive orders and his mass deportation agenda of ethnic cleansing against Hispanic and other non-white immigrants already in the United States, not to mention his demagogic assault on skilled legal immigrants from Asia as "job stealers" and "cheap labor", and which has now also become apparent in the scandal over his firing of FBI director Comey, about to signify the beginning of the end for his presidency?

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 06:51 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    While this is admittedly not in direct response to Nolan's above article, I also have to marvel at how Nolan can obsess in some of his other ilw.com comments about American citizens who in his view, may be violating INA Section 274 by "harboring" non-criminal unauthorized immigrants by refusing to turn them over to ICE for deportation or otherwise attempting to protect them from Trump's ethnic cleansing dragnet, while Nolan says nothing about Trump's alleged obstruction of justice in the Comey firing (as Laurence Tribe of Harvard Law School, one of America's most respected legal scholars argues in a recent Washington Post oped), or, even more recently, about Trump's alleged leaking of highly sensitive national security information to the Russians in a White House meeting according to news reports too numerous to mention.

    A little imbalance in terms of perspective here, Nolan?

    Roger Algase
    Attorney at Law
    I write about the harboring law to warn people that they can face extremely serious consequences if they violate it.

    Nolan Rappaport
  12. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I am glad that Nolan agrees with me about the law as stated in Mandel. As he points out in bold type, the issue is whether the Muslim ban executive order was in good faith.

    The courts have the power, and the obligation, to examine whether the executive order was issued in good faith.

    It is true that the president is given a good deal of discretion by law in making these decisions, and he might even have the benefit of a presumption of good faith under some of the relevant court decisions.

    I would not argue with that view.

    But this presumption can be rebutted, and Trump has rebutted it himself, with his own mouth and his own actions, before and after becoming president. I will not repeat the entire record of anti-Muslim hate which Trump engaged in during the campaign, and which he demonstrated in his top staff appointments after becoming president.

    The link I have provided to the report of the NYU Law School Brennan Center for Justice in my own May 15 Immigration Daily comment describes this whole sorry record. With regard to the December 7, 2015 speech in which Trump called for a world-wide ban on Muslim entry to the US, which was only the beginning of his record of anti-Muslim hate during and after the campaign, Trump never renounced that speech, and it was still on his official website right up until the day on May 8 that his lawyers made the bad faith, meretricious and even arguably fraudulent argument that Trump's executive order had nothing to do with religion.

    If the courts are required to accept this obvious lie without even looking into the actual facts, then it will mean that America has become a banana republic or a tin pot dictatorship in which the law is whatever El Presidente says it is.

    Or even worse, it would mean that America is turning into Putin's Russia, alleged connections with which Trump is now engaging in conduct arguably bordering on obstruction of justice in order to try to stop from coming to light - in the opinion of one of America's most respected legal scholars, Harvard Law School professor Laurence Tribe, as well a growing chorus of other observers.

    Again, see my own May 15 comment.

    Roger Algase
    Attorney at Law


    You are still ignoring my point that the order does not have language that discriminates against the Muslims. Even the Hawaiian court was unable to find such language. What would the Supreme Court's good faith exception apply to in this situation?

    Nolan Rappaport
    Updated 05-16-2017 at 04:27 PM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    Repetition of my above comment deleted again.

    R.A.
  14. ImmigrationLawBlogs's Avatar
    My above comment was repeated numerous times due to an apparent problem with the ilw.com database.

    My apologies to readers. I have tried to delete the repetitions.

    Roger Algase
  15. ImmigrationLawBlogs's Avatar
    See my above comment, which was repeated numerous times do to some apparent problem in the ilw.com system

    R.A.
  16. ImmigrationLawBlogs's Avatar
    While this is admittedly not in direct response to Nolan's above article, I also have to marvel at how Nolan can obsess in some of his other ilw.com comments about American citizens who in his view, may be violating INA Section 274 by "harboring" non-criminal unauthorized immigrants by refusing to turn them over to ICE for deportation or otherwise attempting to protect them from Trump's ethnic cleansing dragnet, while Nolan says nothing about Trump's alleged obstruction of justice in the Comey firing (as Laurence Tribe of Harvard Law School, one of America's most respected legal scholars argues in a recent Washington Post oped), or, even more recently, about Trump's alleged leaking of highly sensitive national security information to the Russians in a White House meeting according to news reports too numerous to mention.

    A little imbalance in terms of perspective here, Nolan?

    Roger Algase
    Attorney at Law
  17. ImmigrationLawBlogs's Avatar
    See my above comment.

    Roger Algase
  18. ImmigrationLawBlogs's Avatar
    I am glad that Nolan agrees with me about the law as stated in Mandel. As he points out in bold type, the issue is whether the Muslim ban executive order was in good faith.

    The courts have the power, and the obligation, to examine whether the executive order was issued in good faith.

    It is true that the president is given a good deal of discretion by law in making these decisions, and he might even have the benefit of a presumption of good faith under some of the relevant court decisions.

    I would not argue with that view.

    But this presumption can be rebutted, and Trump has rebutted it himself, with his own mouth and his own actions, before and after becoming president. I will not repeat the entire record of anti-Muslim hate which Trump engaged in during the campaign, and which he demonstrated in his top staff appointments after becoming president.

    The link I have provided to the report of the NYU Law School Brennan Center for Justice in my own May 15 Immigration Daily comment describes this whole sorry record. With regard to the December 7, 2015 speech in which Trump called for a world-wide ban on Muslim entry to the US, which was only the beginning of his record of anti-Muslim hate during and after the campaign, Trump never renounced that speech, and it was still on his official website right up until the day on May 8 that his lawyers made the bad faith, meretricious and even arguably fraudulent argument that Trump's executive order had nothing to do with religion.

    If the courts are required to accept this obvious lie without even looking into the actual facts, then it will mean that America has become a banana republic or a tin pot dictatorship in which the law is whatever El Presidente says it is.

    Or even worse, it would mean that America is turning into Putin's Russia, alleged connections with which Trump is now engaging in conduct arguably bordering on obstruction of justice in order to try to stop from coming to light - in the opinion of one of America's most respected legal scholars, Harvard Law School professor Laurence Tribe, as well a growing chorus of other observers.

    Again, see my own May 15 comment.

    Roger Algase
    Attorney at Law


  19. ImmigrationLawBlogs's Avatar
    And, Roger, Supreme Court precedent doesn't support your position either.

    In the decision denying a rehearing en banc on State of Washington v. Donald J. Trump, the court case that addressed the first version of the travel ban, Circuit Judge Jay Bybee wrote a dissent to defend the constitutional principle that the political branches, informed by foreign affairs and national security considerations, control immigration and that judicial review is limited by the Supreme Court precedent established in Kleindienst v. Mandel.

    In Mandel, the Supreme Court held that when the Executive exercises its power to make policies and rules for the exclusion of aliens on the basis of a facially legitimate and bona fide reason, the courts will not look behind the exercise of that discretion.

    Nolan Rappaport
  20. ImmigrationLawBlogs's Avatar
    It's not about whether the ban mentions Muslims. As I explain in my article, the Hawaiian court found no indication of religious discrimination in the text of the order. If the order does not engage in religious discrimination, what is the justification for looking beyond the text of the order for indications of intent to discriminate? If such intent were to be established, it is irrelevant if the order does not discriminate.

    It's true that judges can look beyond the language of a document or a statutory provision to determine its meaning, but that is only proper when there is ambiguity or some other lack of clarity in the language of the document or statutory provision. If the written document is clear and unambiguous, it stands on its own. In fact, that's why people reduce important language to writing, so they won't have to worry about someone coming along and claiming the something else was intended.

    Also, the courts are using campaign statements to establish intent. Who believes the campaign statements that politicians make while they are running for office?
    Politicians say things that will get them elected. Remember George Bush senior's comment, "Read my lips, no new taxes!"

    I challenge you, Roger, to find one case in which a judge relied on campaign statements before the travel ban. According to my research, it never happened, which is understandable in view of the fact that it is inherently unreliable.

    And, Roger, people aren't found guilty of misconduct in this country because they have hate or prejudice in their hearts. They are only guilty of misconduct if they act on their hate or prejudice

    As for the number of people, I didn't raise that point. Roger did when he made the absurd claim that the travel ban affected 100 million people. It only affected people who wanted to come to the US during the 90 day period.

    Nolan Rappaport




    Updated 05-16-2017 at 12:57 AM by ImmigrationLawBlogs
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