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  1. When immigration judges get political, justice suffers. By Nolan Rappaport

    © Getty

    President Barack Obama’s immigration policies had the unintended consequence of encouraging illegal immigration. By focusing enforcement efforts primarily on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry, he created what I call a “home free magnet.”

    Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country unless they were convicted of a serious crime. This was a powerful incentive to do whatever was necessary to enter the United States.

    President Donald Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities. No deportable alien is safe under Trump’s enforcement policies.

    But previous administrations have left Trump with another enforcement problem that he has not resolved yet.

    The immigration judges who decide whether an alien in removal proceedings will be deported have been selected by successive administrations with varying views on immigration enforcement, which has produced an immigration court of 350 judges who have conflicting views on how immigration law should be applied.
    According to a Reuters analysis of thousands of immigration court decisions, whether an alien in removal proceedings is allowed to remain or is deported depends largely on which immigration judge hears his case and where the hearing is held.


    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.

  2. Supreme Ct. Justices' Questions Show Real Reason for Muslim Ban is Bigotry, not "Trumped-Up" Security Window Dressing. Roger Algase

    The conventional wisdom, based on numerous instant armchair analysis articles by mainly non-lawyer journalists appearing immediately after the April 25 Supreme Court oral argument in the Muslim Ban case Hawaii v. Trump (which the media misleadingly insist on calling a "travel ban" even though the nearly 200 million Muslims who are banned from entering the US under the president's latest version of his executive order are free to travel anywhere else in the world that they wish), is that the narrowly divided Supreme Court will uphold Trump's order and that the crucial "swing" Justice, Anthony Kennedy, will vote with the "conservative" (another euphemism - "radical right wing" might well be more accurate) majority on this issue.

    This would resolve the only real question in this case by holding that the alleged "national security" justification for the ban put forward by the Trump administration is genuine, and that it "Trumps" the Constitutional right to freedom of religion by Muslim US citizens who would be adversely affected by upholding the ban, as they unquestionably would be - a point which did not appear to come out at the oral argument to any great extent.

    But when one recalls that during Trump's campaign there was talk, not only of banning the world's entire Muslim population from the US, but of conducting surveillance of Muslim Americans and even interning them, in an ominous throwback to what happened to Japanese-Americans during WW2 (shamefully, with the Supreme Court's approval), it becomes clear what could be at stake for the 3 million US citizens who happen to belong to the Muslim faith if the latest version of Trump's ban order is finally upheld.

    However, no matter how much the ban's supporters on and off the Court may wish to to hand the president a victory on one of his "signature" campaign issue, it became obvious during the oral argument that the "national security" reason that has been put forth for the ban is nothing but "Trumped-up " window dressing for the anti-Muslim bigotry that underlies the ban.

    The main task for the Solicitor General, Noah Francisco, was to persuade the Court to disregard Trump's numerous statements and actions, both as a candidate and after taking office as president, making clear beyond any possible doubt that the real reason for barring 200 million Muslims from entering the US on the basis of their nationality alone, and without any evidence of individual wrongdoing, was hatred of of Muslims and their religion, or what the 4th Circuit politely but accurately called "animus" on Trump's part.

    However, two hypothetical questions, one by Justice Kennedy and the other by Justice Kagan, showed the essential hollowness (and lack of required good faith - see Kleindienst v. Mandel, 1972) in the government's claim that Trump's Islamophobic statements as a "private citizen" should be ignored (without mentioning Trump's retweeting a British anti-Muslim hate video and appointing openly Muslim-hating top advisers such as Michael Flynn and Steve Bannon as president, to mention only a few similar actions).

    Justice Kennedy's hypothetical question was the following, as reported by George Mason University Law Professor Ilya Somin in his incisive article about the oral argument (not only the best I have read, but in my opinion, the only good one that I have seen previously):

    "Suppose you have a local mayor and, as a candidate, he makes vituperative hate - hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements. That's - whatever he said in the campaign is irrelevant?"

    And, as also reported by Professor Somin, Justice Kagan asked whether:

    "...a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred"

    could legitimately produce a national security rationale for a travel ban against Israel without violating the Constitution.

    In answer to Justice Kennedy's question, Francisco's claim that Trump's statements about Muslims do not indicate the true purpose of the ban were unconvincing, to say the least, especially in view of Trump's claim, as president, not as a candidate, that his initial draconian version of the travel ban, which his administration later withdrew to comply with lower court orders, should never have been "watered down."

    (In this area, as in so many others, Trump has shown himself to be far from an easy client for any lawyer to represent!)

    And in answer to Justice Kagan's question, Francisco had no choice by to concede that a hypothetical entry ban against citizens of Israel would be unconstitutional, even if based on purported agency recommendations, such as those which Trump allegedly received from his officials (who, of course, would have been promptly fired for being "disloyal" if they had refused to support the ban).

    We can be sure that Justice Kagan will not forget her above question when she votes on which way to decide in this case. Anyone who supports freedom and equality of all religions in America and who does not favor using our immigration laws as an instrument of hatred and prejudice based on race or religion, as was the case for so much of America's immigration history and which Trump is now trying to do with his Muslim Ban, can only hope that Justice Kennedy will remember his hypothetical question too when the Court makes its decision.

    There is more at stake in this case than simply how many immigrants from predominantly Muslim counties will be allowed to enter Donald Trump's America with legal visas in the next few years. The larger issue is whether claimed unlimited presidential power over immigration will be allowed to "Trump" the United States Constitution.

    If the Supreme Court puts unlimited presidential power in any area of government ahead of the Constitutional guarantees of religious freedom and equal protection of the law to everyone, regardless of race, religion or ancestry, not only non-white immigrants will be the ones to suffer. The American people will also lose their freedom, and the basic values of justice and equality on which this nation was founded could well disappear.

    Roger Algase
    Attorney at Law

    Updated 04-26-2018 at 08:19 PM by ImmigrationLawBlogs

  3. Refugee Group Urges Supreme Court to Reject Trump's "Discriminatory, Anti-Muslim and Anti-Refugee" Policies Before Muslim Ban Argument. Roger Algase

    In connection with the beginning of oral argument before the Supreme Court dealing with the latest version of Trump's Muslim Ban, Oxfam America, a refugee assistance organization, has issued a statement including the following language:

    "Today's Supreme Court case is a moment of reckoning as to whether the US will remain an inclusive, welcoming place for people of all faiths and origins, or whether the US will choose to slam its door on the basis of religion.

    Oxfam has long opposed President Trump's anti-Muslim and anti-refugee rhetoric and policies. While the legal form of the various bans may have evolved over time, the discriminatory anti-Muslim and anti-refugee sentiment behind them is clear."

    After pointing out that admission of Muslim refugees has fallen to historic lows under the Trump administration, Oxfam's statement continues:

    "We are shocked and appalled by the administration's attempt to undermine the refugee resettlement program and its continued attempts to block entry of those from Muslim-majority nations...

    "Discriminating on the basis of religion is un-American, and we hope the Supreme Court upholds this core value."

    The full statement is available at

    It is not only the principle of religious freedom as guaranteed by the US constitution that is at stake in the Muslim Ban case. The supremacy of the rule of law in America is also at stake, as opposed to the administration's claim of unlimited presidential power to exclude immigrants for almost any reason whatsoever, no matter how arbitrary, capricious, bad faith, or openly bigoted the motivation for such exclusion may be.

    In the light of a recent federal court decision enjoining Trump's ban against military service by another target of Trump's discrimination, namely transgender people, on the grounds that they are a "protected class" because of the long history of prejudice against LGBT's in America, it is also worth exploring whether Muslims, both immigrants and US citizens, and, beyond that, non-white immigrants in general, should be treated as a protected class with respect to whom governmental action affecting their rights should be scrutinized very carefully by the courts.

    See Karnoski v. Trump, W.D. Washington, April 18, 2018.

    This question will be discussed in greater detail in my forthcoming comment.

    Roger Algase
    Attorney at Law

    Updated 04-25-2018 at 12:48 PM by ImmigrationLawBlogs

  4. Trump's "Breeding Concept" Tweet Recalls Dark Period of White Supremacist "Eugenics Concept" Influence on the 1924 Immigration Act. Roger Algase

    Donald Trump's April 18 "Breeding Concept" tweet referring to Mexican and other mainly Hispanic immigrants in California, which I wrote about in my April 23 Immigration Daily comment, has continued to create a storm of public outrage, even as the White House refuses to explain exactly what the president meant by using this racially charged term.

    Instead, White House press secretary Sarah Huckabee Sanders argued that the word "breeding" could "mean a lot of things to a lot of people", even as DHS Secretary Kirstjen Nielsen repeated a favorite white nationalist phrase about the right of a "sovereign nation" to "defend its borders" (at a time when illegal border crossings are reportedly at one of the lowest levels in many years)!

    It may be true that the word "breeding" taken by itself could mean a number of different things, but it is much harder to make that argument when "breeding" is combined with the word "concept", as in Trump's tweet.

    In the light of US immigration history, "breeding concept" can mean only one thing: eugenics - the dark pseudo science of alleged racial superiority and inferiority which had such a great influence on the "national origins" immigration quotas of the 1924 Immigration Act excluding most immigrants who were not from the "Nordic" countries of northern Europe (which Trump, almost 100 years later, now refers to as "Countries like Norway').

    Eugenics itself is also known as the "Eugenics Concept" according to a 2008 US government National Institutes of Health article. See, Guvercin:

    Eugenics concept: from Plato to present:

    It is impossible to overlook or deny the huge influence that racist eugenics ideology has had, not only on the 1924 act (which Trump's attorney general, Jeff Sessions, lavishly praised in an "immigration Handbook" for Congressional Republicans which he published as a Senator in January, 2015, and which Adolf Hitler also praised nine decades earlier in Mein Kampf - see below).

    As the site lumen learning states in its scholarly article:

    Eugenics in the United States/Cultural Anthropology

    "The Immigration Restriction League was the first American entity associated officially with eugenics. Founded in 1894 by three recent Harvard University Graduates, the League sought to bar what it considered inferior races from entering America...

    The League
    allied itself with the American BREEDERS Association..." (Capital letters spelling added for emphasis)

    The above should make the background of Trump's "Breeding Concept" tweet just a little clearer than his press secretary was evidently aware of or willing to acknowledge.

    But this is by no means all there is in the way of background to Trump's tweet. There is much more.

    The same article goes on to explain:

    "With the passage of the Immigration Act of 1924, eugenicists for the first time played and important role in the Congressional debate as expert advisers on the threat of "inferior stock" from eastern and southern Europe."

    One might add that the 1924 Act's almost total ban against immigration by people of "inferior stock" extended not only to eastern and southern Europe, withthose areas' large Jewish and Catholic populations, but also to all non-white areas of the world (except for the "Western Hemisphere" countries which were not subject to quotas), including the entire areas of Asia, the Middle East and Africa.

    The 1924 annual US immigration quota for Germany, for example, was approximately 50,000 immigrants. For India, Japan and China, it was 100 immigrants for each country. No this is not a typographical error. I am not leaving out any zeros by mistake.

    And as the above article also mentions, the US eugenics movement (or "concept"!) had a great influence on the Nazi ideology which ultimately lead to the extermination of six million Jews in the Holocaust.

    This, of course, does not imply that Trump supports antisemitism or genocide - or course he does not. It only implied that words have great meaning and can have enormous consequences.

    While no one would assume that Trump is an expert on the history of eugenics or even of the 1924 immigration act, it is by no means unfair or inappropriate to suspect that when he uses racially loaded terms such as "breeding concept", h has been listening to certain powerful and influential immigration advisers are are only too well versed in this dark history, and are now, with the president's active cooperation, trying to bring as much of it as possible back to America's present.

    Roger Algase
    Attorney at Law

    To be continued.

    Updated 04-24-2018 at 03:41 PM by ImmigrationLawBlogs

  5. Trump's "Breeding" Tweet Dehumanizes Immigrants, Echoing White Supremacists and Nazis. But DHS Chief Won't Criticize Her Boss. Roger Algase

    The following is a revised version, as of 9:56 am on April 22, of my comment which was originally posted on April 21.

    On April 18, Donald Trump issued a tweet which not only hit a new low point in his racial attacks on immigrants but contained disturbing echoes of Nazi anti-Jewish propaganda as well as "American as apple pie" style white supremacy. The tweet, as has been widely reported, was as follows:

    "There is a revolution going on in California Soooo many Sanctuary areas want OUT of this ridiculous crime infested & breeding concept. Jerry Brown is trying to back out of the National Guard at the border, but the people of the State are not happy. Want Security and Safety now."

    As in the case of many of Trump's other exercises in anti-immigrant demonization, the word "breeding" in this tweet appears to be ambiguous. It could refer, as the White House later claimed, only to "breeding" crime.

    But there is a darker and more ominous reference, namely to the of Mexican and other dark-skinned immigrants breeding too many children and thereby threatening America's white majority..

    According to the Southern Poverty Law Center (SPLC) and CNN, this is exactly the charge that Dan Stein, the head of one of today's most active and best known anti-immigrant groups, FAIR (Federation for Immigration Reform) made when he accused immigrants of "competitive breeding" in a 1997 WSJ interview, among the many other statements he has been reported as making accusing immigrants of undermining white "civilization" in America: See



    Stein is far from the only immigration opponent in America today using dehumanizing ways of referring to immigrants. Dana Milbank, in an April 20 Washington Post article, quotes two present Republican Congressmen, Jeff Duncan (R-SC) and Steve King (R-Iowa) as also making remarks comparing immigrants to animals. See:

    Is it a coincidence that Trump uses the language of white supremacy?

    (I do not have a working link to this article - please use Google to access.)

    Even more ominously, Milbank also mentions the following example of Nazi propaganda against the Jews. whom the Nazis described as"

    "... the product of the inbreeding of asocial, criminal, degenerate and rejected elements..."

    While Trump of course does not support antisemitism or genocide in any form, any statement implying that Hispanic or any other groups of non-white immigrants are "breeding", with all of that word's connotations of animal reproduction, should be taken with a great deal of concern.

    If Trump does not look at a particular group of immigrants as fully human, what kind of immigration policies can we expect from his administration? Without undue cynicism, one could answer that we might expect an anti-immigrant agenda very similar to the one which the Trump administration is now pursuing in order to reduce the number of nonwhite immigrants of every category - including legal as well as unauthorized immigration.

    There is, however, one context in which the term "breeding" had a positive connotation for the Nazis, namely in the "Lebensborn" program which was designed to "breed" "racially superior" children. Ironically, the biggest Nazi Lebensborn birth center was located in German-occupied Norway.

    There is no reason, of course, to think that Trump was aware of this when he made his infamous January 11 statement that he wanted America's immigrants to come from "Countries like Norway" instead of from what he called the "shithole countries" of Africa, Central American and the Caribbean.

    It is, however, disappointing to say the least, that Trump's DHS chief, Kirstjen Nielsen, whose name coincidentally suggests Norwegian ancestry, allegedly tried to convince a Senate committee at her conformation hearing that she did not know that Norway was mainly a white country!

    Nielsen also pointedly refused to speak out against Trump's latest "breeding" slur against immigrants who, we can be quite sure, are not from "Countries like Norway."

    How sensitive to the basic human, constitutional and statutory rights of non-white immigrants, whether they are applying for legal visas or green cards, or whether they are in the US without legal status, can we expect DHS policies to be under Nielsen's stewardship in Donald Trump's America?

    Roger Algase
    Attorney at Law

    Updated 04-22-2018 at 05:33 PM by ImmigrationLawBlogs

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