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The following comment has been revised and rewritten as of February 20 at 723 am:
In the latest development in the controversy over the president's January 27 Muslim ban order, which, in Orwellian fashion, the White House insists is not specifically directed against Muslims, even though an estimated 99 percent of the people in the seven countries affected by the order belong to that religion, the AP and the Washington Post both report that Donald Trump is planning to "replace" his original seven Muslim country travel ban order with a new order which would contain the same ban on entry against the almost 200 million citizens of the seven countries, close to 99 percent of whom just happen to be Muslims, but with a few minor, essentially cosmetic, tweaks.
The first tweak, according the AP and WP reports, is that the new ban would not apply to US permanent residents who are citizens of the seven countries. However, this is a meaningless change.
After the initial chaos, confusion, fear and anxiety caused by lack of clarity from the White House over whether the original January 25 executive order applied to green card holders or not, the White House had already issued a "clarification" (reportedly over the objections of Senior Advisor Stephen Bannon, who is widely considered to be one of the main instigators of the entry ban order in the first place) stating that US permanent residents from the seven countries were exempt from the ban.
In its briefs filed with the 9th Circuit, the DOJ also took the position that the ban did not apply to green card holders from the seven countries. Therefore this first reported tweak would be no real change at all. See also:
Another tweak reported by the AP and the WP is that citizens of the seven banned countries is that citizens of the above countries who have already been granted visas, or who are already in transit to the US with visas (which one is not clear) will be allowed to enter the US.
Dual citizens of the affected countries may also be exempt from the revised ban. However, these changes will, at most, affect only a very small percentage of the nearly 200 million citizens of the above countries who are still being being barred from the US solely because of their religion.
(I will not dwell on the absurd argument that the above ban is not really a Muslim ban because there is a tiny handful of non-Muslims also affected by the ban. If there has been any presidential finding, or rational basis ofr such a finding, that the 1 per cent or less of citizens of these countries who are Jews or Christians pose a danger to the US, I have not seen it.
The ban is clearly not directed against non-Muslims, even if a very few may turn out to be "collateral damage" by being denied visas also.)
Therefore, the basic authoritarian premise of the Muslim ban, that one man, the president, accountable to no one but himself (as the DOJ has claimed in its 9th Circuit briefs) has unlimited power to ban as many people as he wants for any reason he sees fit, remains in place.
As The Guardian reports:
"The goal of the new [Muslim entry ban] order is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious consequences it has on national security, according to Guardian sources."
When this attempt to use authoritarian power is looked at in the context of the increased police state measures that the Trump administration is putting into effect to step up mass arrests and deportations, in addition to the fear and panic in immigrant communities throughout America caused by stepped up ICE raids against unauthorized immigrants with no criminal records which took place last week, the danger to our democratic institutions becomes even greater. See:
Washington Post, February 18:
Memos signed by DHS secretary describe sweeping new guidelines for deporting illegal immigrants
I will discuss the details of these police atate measures, and the equal protection and due process issues they raise, in an upcoming comment.(Go to Google for a link to this report.)
But while the Muslim ban clearly raises serious questions concerning the extent, id any to which our laws and Constitution permit unfettered one-man control over over our immigration system, or a major part of it, under the Plenary Power doctrine and INA Section 212(f), there is an even greater danger to our democracy that goes beyond the four corners of the Muslim ban executive order itself.
This danger arises from the way that the president has tried to delegitimize opposition to the Muslim ban order by the courts and the media, by claiming that anyone who opposes the ban is in effect supporting terrorists and will bear responsibility for any future attack that might take place in America. See:
As the above salon.com/altenet.org article states, Trump's attacks on the courts in connection with the Muslim ban order:
"...should utterly horrify every champion of democracy, whether on the left or right end of the political spectrum."
But Trump's attacks against a free press as an "enemy of the people" for opposing his immigration policies recall the language of two of history's worst tyrants, Stalin and Mao..
To be continued.
Attorney at Law
Updated 02-20-2017 at 08:17 AM by ImmigrationLawBlogs
The following comment has been revised and updated as of February 18 at 4:00 pm:
The White House has vigorously denied an AP report that the Department of Homeland Security has been considering using the National Guard to assist in rounding up unauthorized immigrants in 11 Mexican border and contiguous states extending as far north as Oregon and as far east as Louisiana.
However, it is obvious that a leaked DHS memo dated January 25 containing such a provision was drafted with a great deal of care - much more, quite clearly, than was used in preparing the president's discredited seven nation Muslim entry ban order (along with banning the tiny percentages of non-Muslims living in the affected countries as window dressing which fooled no one, about the order's real purpose - least of all the 9th Circuit Court of Appeals panel which put the ban on hold).
There can be no serious doubt that the January 25 DHS memo, whether it will ever be officially adopted as policy or not, was meant to be taken very seriously as guidance for immigration enforcement purposes, and that the White House claim that the memo was a basis for discussion only does not ring true
For a report on the White House denial that using the National Guard is beng considered as policy, and for a link to the full text of the memo, see:
The context of the memo, which deals exhaustively and in great detail with many other aspects of immigration enforcement, including treatment of unaccompanied minors, "catch and release", credible fear determinations for asylum seekers, and reviving INA section 287(g) agreements between the DHS and the states in general, not just with respect to the National Guard, gives every sign that this memo was carefully drafted for the purpose of governing the details of many aspects of immigration enforcement policy.
The White House denial that this memo was never meant to go into effect and was a draft only, is very difficult to believe under the circumstances, and the fact that it was kept secret until someone in the administration evidently had the courage to leak it to the media is even more disturbing.
If America is to become a country where immigration enforcement policy is determined by secret directives, than we might be even closer to the spirit of another enforcement agency in a different country mentioned below.
I quote from the relevant part of the leaked DHS January 25 memo:
"D. Expansion of the 287(g) program to Include State Guard Units in the Border Region
Section 287(g) of the Immigration and Nationality Act authorizes me [DHS Secretary John Kelly] to enter into in agreement with a state or subdivision thereof to perform the functions of an immigration officer...
Pursuant to Title 32 of the united States Code, State National Guard components are employees of their respective states and are under the command of their Governors when they are not in federal service. Based on their training and experience, these men and women are particularly well-suited to assist in the enforcement of federal immigration law and augment border security operations by Department components...
Additionally, I am directing the Commissioner of CBP and the director of ICE to immediately engage with the Governors of the States adjacent to the land border with Mexico and those States adjoining such border states for the purpose of entering into agreements under section 287(g) of the INA to authorize qualified members of the state National Guard...to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States."
It is the words: "investigation, apprehension and detention of aliens in the United States" that are a particular cause for concern. One cannot help be reminded of other militia members who were used for the same purpose against other people who were not wanted by the regime in another well known country.
The following extract is from an article by the United States Holocaust Memorial Museum:
"In the months after Hitler took power, SA and Gestapo agents went from door to door looking for Hitler's enemies. They arrested Socialists, Communists, trade union leaders, and others who had spoken out against the Nazi party...By the summer of 1933, the Nazi party was the only legal political party in Germany...Democracy was dead in Germany."
Sorry, I cannot find a working link - please Google:
United States Holocaust Memorial Museum: Nazi Terror Begins
The above does not in any way imply that the dedicated men and women of the National Guard who are selflessly serving their States and their country in any way resemble the fascist thugs who made up Hitler's storm troopers (SA) and Gestapo.
But using any part of our military to engage in mass roundups and incarceration of civilians of any kind, regardless of what status they may have (or lack) in the United States, leads in the same direction as the activities described in the above Holocaust Memorial Museum extract, and can have the same effect on America's democracy as those activities did on democracy in Germany.
This danger is especially apparent when the military or militia forces in question are under the ultimate control of a leader who has so little respect for democracy as to call a free press the "enemy" of the nation, as Donald Trump has just done - and as Germany's leader did when he eliminated the free press after taking power in 1933. See:
As Senator John McCain said on February 18, suppressing the free press is "how dictators get started".
To be sure, as David Nakamura writes in the February 17 Washington Post, (link not available - please use Google) the administration is still accepting DACA applications, and Trump is clearly not entirely trusted by some anti-immigrant groups for equivocating on revoking what they call this "executive amnesty".
But the signs that America may be entering an era of anti-immigrant repression that could make comparison with "enforcement" tactics used in 1933 Germany against Jews and many other people whom the regime considered undesirable seem entirely reasonable are growing under the Donald Trump presidency, and they are growing with a troubling speed and intensity.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been represenrting mainly skilled and professonal immigrants with work visa and green card applications for more than 35 years. Roger's email address is email@example.com
Updated 02-18-2017 at 04:06 PM by ImmigrationLawBlogs
Update: February 17, 3:45 pm.
In a February 17 story, The Guardian provides more details about how national security officials are being shut out of decision making regarding the Trump/Bannon revised US travel ban against seven overwhelmingly Muslim countries, just as they were shut out of the original one. The Guardian writes:
"The goal of the new order [travel ban] is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious effect it has on national security, according to Guardian sources."
The Guardian continues:
"The process means domestic political concerns are given greater priority and consideration of their national security impact is marginalized despite the impact on US relations with much of the world."
What does this say about the good faith of the Trump administration's claims in its original and latest briefs before the 9th Circuit Court of Appeals arguing that the president's decision to impose the ban is not reviewable by the courts because the president purportedly has the sole power to make national security determinations relating to immigrant entry to the United States?
The more information that comes out showing that the "national security" justification for Trump's seven country ban is not genuine, the more it becomes evident that the 9th Circuit's decision to look behind the DOJ'a "national security" claim and conduct fact finding as to whether the ban was based on religious/racial animosities instead was a sound one.
My original comment appears below.
The Department of Justice, evidently unable to put up a defense of Trump's Stephen Bannon inspired Muslim ban immigration order that it could expect to win in court, has settled instead a strategy that, on the one hand, in effect asks the 9th Circuit Court of Appeals to withdraw its TRO against the ban order on the grounds that the order is being replaced by a more "limited" one, while, on the other hand, it argues on the basis of clearly misleading statements that the original order was legally valid and does not need to be withdrawn.
To top it off, according to POLITICO, the administration is preparing a new, more "limited" order which would in fact make only cosmetic changes in the discredited January 27 order.
I will discuss this last point first. According to the POLITICO story, the new, "narrower" seven country Muslim ban order would exempt citizens of the seven targeted countries who already are in the US with legal visas. This would allow them to travel without fear of not being allowed to return.
The new EO would also, again according to POLITICO, clarify that US permanent residents from the seven countries are exempt from the scope of the entry ban, something that, to put it very charitably, was less than clear when the original order was introduced. For the full story and a link to the DOJ's latest brief filed with the 9th Circuit, see:
These changes, no doubt, are welcome, because they make clear that people from the seven affected countries who have already been legally admitted to the US and who have connections with this country will be allowed to continue with their lives in the United States undisturbed by the president's order.
But, if the above POLITICO report about the proposed replacement executive order is accurate, the new order would still ban the almost 200 million citizens of the affected seven 99 percent or close to it Muslim countries (and other Muslim countries which the current order clearly contemplates adding to the ban, if one reads Sections 3 and 4 of the order carefully) who have never been to the United States.
In other words, if the above report is correct, the new proposed ban would still be aimed as keeping as many Muslims out of the United States as possible, based on the underlying assumption that their religion alone automatically makes them a danger to the United States.
There would be no real change in this policy, promoted by Trump's Senior White House Adviser Stephen Bannon, and his recently fired National Security Adviser, Michael Flynn, both of whom are well known for their view that America is in an ideological war, or "War of Civilizations", with the Muslim religion.
Nor, as the DOJ's latest brief that was filed with the Court on February 16 makes clear, has there been any change in the administration's argument that the president has unlimited power to prohibit any immigrants or groups of immigrants he wants from coming to the US.
Finally, as will be clear from the following discussion of the DOJ's latest brief, that there has been no backing down from the government's indefensible claim that Trump's ban affecting almost 200 million people from countries with close to, or in some cases more than, 99 per cent Muslim populations, is not based on religion, but on flimsy, also largely cosmetic, "national security" grounds.
I will discuss these latter two issues in more detail in a forthcoming comment.
Attorney at Law
Updated 02-17-2017 at 05:59 PM by ImmigrationLawBlogs
Update: February 17, 12:10 pm:
In a shocking story indicating that Trump may be considering bringing jackboots and storm troopers to America in the form of his often mentioned "Deportation Task Force", the AP reports on February 17 that a memo has been circulating among DHS officials contemplating the use of National Guard troops to round up and arrest unauthorized immigrants in 11 western states.
Late reports also indicate that the White House is denying the story, which may or may not have any meaning, depending on how far one trusts the White House to tell the truth about anything related to immigration in Donald Trump's America.
There is an old saying that when fascism comes to America, it will come with a smile. It might be more accurate to say that it is coming with a tweet.
If the AP story is accurate, and Trump's alleged jackboots do go into action against unauthorized immigrants, how long will it be before they start arresting and locking up American citizens who have any kind of connection with immigrants under INA Section 274, which makes it a felony for any person to "assist" an immigrant who remains in the US without legal status?
Then America will really find out that fascism is not just a word - we could be seeing it in action on every street corner and at every traffic stop in America.
For the AP story, see:
My previous comment follows below.
Update, February 16, 7:08 pm
POLITICO reports on February 16 that at a meeting between a top ICE official and a small group of House members from both parties, the Representatives were told that they "can and should expect many more arrests and removals [of unauthorized immigrants] this year."
This is one promise from the administration that it will certainly be safe to rely on in Donald Trump's America. For the full story, see:
My original comment follows:
In his administration's latest actions against Mexican immigrants whom Donald Trump labelled as "criminals" and "rapists" when he began his campaign for the presidency almost two years ago, ICE has arrested and detained a DREAMER with a young son, a job and no criminal record who was brought to the US at the age of 7.
The man, Daniel Ramirez-Medina, had been granted protection under President Obama's DACA program, which has not been cancelled or revoked by the new president and is still in full force and effect.
In another development, ICE arrested a Mexican woman in El Paso, Texas while she was in court obtaining an order of protection as a domestic violence victim.
Admittedly, the woman in that case would not appear to be the most sympathetic case one might imagine, having reportedly been deported from the US six times and having been previously arrested for assault and false imprisonment, among other alleged crimes. The report did not say whether she had any actual convictions.
However, what kind of message does the arrest of a domestic violence victim while seeking a protective order in court send to thousands, if not millions of other Latino and other minority domestic violence victims who may be in the US without legal status, but who are otherwise law abiding and who will now be afraid to report such violence or to take action to protect themselves against it?
And, in the light of ICE's raids and arrests across the United States against Latino immigrants regardless of whether or not they have ever been convicted of, or even charged with, a crime, what kind of message does this send to Latino and other non-European immigrants in general, with or without legal status, about whether or not immigrants from their countries are still welcome in the United States under any circumstances while this president is in office?
For the report on the Mexican woman arrested by ICE see:
A prescient article in America's Voice dated November 14, 2016 warned that Trump's plan to deport "criminal" immigrants as a priority was just a ruse and that the real intention was to carry out mass deportation of all unauthorized immigrants.
This prediction is now becoming reality. See
Trump's Plan to Deport "Criminals" is a Ruse and a Pretext to Start Massive Deportations of Hardworking Families
This artticle should be available by going to the website,
or through Google. I am sorry I do not have a direct link.
This article has also been updated to February 15 on the same America's Voice website, See:
No Lingering Doubts: Trump's Deportation Force Target's All 11 Million.
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 representing mainly skilled and professional immigrants from diverse parts of the world and from a variety of ethnic and religious backgrounds in work visa and green card caaes.
Roger's email address is firstname.lastname@example.org
Updated 02-17-2017 at 12:10 PM by ImmigrationLawBlogs
In a mild but significant break with the president, Senate Majority Leader Mitch McConnell stated on the Joe Scarborough TV show that presidential actions, including Trump's January 27 Muslim ban order (which is properly called a "Muslim ban" since all of the seven countries mentioned in the order are overwhelmingly Muslim in population, including, for example, Yemen, which Wikipedia lists as 99.99 per cent Muslim), are not above judicial review.
According to POLITICO, McConnell said that the power of judges to review the actions of other branches of government for legality applies to:
"Yes, all of us, both Congress and president..."
This is in direct contrast to White House aide Stephen Miller, who has been claiming that, with regard to the Muslim and refugee ban:
"the president's powers here are beyond question."
McConnell also said that he disagrees with the president's attacks against the federal district and appellate judges who have temporarily blocked his Muslim and refugee ban order.
The above is a stark reminder of what is really involved in the issues surrounding the president's January 27 executive order.
Beyond the question of whether some 200 million people living in seven countries (and by extension, potentially, citizens of other, or all, Muslim countries, around the world) can be barred from the United States because of their religion, lies the question of who will have ultimate power in America during the Trump years - the three co-equal branches of government, as provided by our laws and Constitution, or one man - Donald J. Trump.
The POLITICO story is at:
Attorney at Law
Updated 02-15-2017 at 03:07 PM by ImmigrationLawBlogs