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  1. Will Trump's "Plenary Power" Over Muslim Immigrants Lead to Plenary Power to Take Away Minority Rights and the Freedom of All Americans? Roger Algase

    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

    Updated 03-20-2017 at 05:32 PM by ImmigrationLawBlogs

  2. 9th Cir. Dissent Rebukes Trump For Attacking Judiciary, While Supporting Trump's Power Over Immigration. Trump Attacks Court Again. Roger Algase

    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 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

    Updated 03-18-2017 at 01:29 PM by ImmigrationLawBlogs

  3. Federal Judge in Hawaii rules that Court should not close its eyes to the real motive behind Trump's Muslim ban orders. Roger Algase

    The following comment includes revisions made as of March 17 at 9:02 am:

    A federal district court judge in Hawaii, Derrick Watson, late in the day on March 15, issued a temporary restraining order putting a nationwide hold on Trump's latest version of the ban on entry to the US by some 100 million citizens of six 99 per cent Muslim countries.

    In his opinion, the judge cited a mountain of evidence, both during the presidential campaign and after his inauguration, that the ban was motivated by an intent to disfavor Muslims and their religion, in violation of the guarantee of religious freedom in the first Amendment to the Constitution.

    Trump's history of attacking all Muslims as potential terorists as the motivation for the six country ban and his previous seven country version (which Trump said as recently as March 15 that he wishes he had stuck with!) is so obvious that it cannot be seriously challenged.

    However, Trump's lawyers are now claiming that the court should have disregarded the obvious truth and accepted Trump's alternative version of reality, that the ban is somehow related to national security despite the very thin veneer of evidence to support that claim produced so far, because many of his antt-Muslim statements were made during the presidential campaign, when candidates will say anything and everything to get elected, rather than after he actually took office.

    This ignores the fact that everything Trump has done and said about admitting Muslims to the US is entirely consistent with what Trump said about Muslims and threatened to do to them during the campaign.

    Trump's Orwellian insistence that the courts should disregard the open and obvious hatred of Muslims in which he has been revelling ever since he called for a world-wide ban on Muslim entry to the US in December, 2015, would do more than merely violate the religious freedom guaranteed to all Americans, Muslims not excepted, by the First Amendment to our Constitution.

    In addition to paraphsasing Orwell's famous dictum in Animal Farm that "All animals are equal, but some animals are more equal than others." by holding, in effect, that "All religions are equal in America, but Islam is less equal than others", Trump is also, in effect, claiming that, as president, he has the power, as Big Brother did in Orwell's 1984, to declare that "2+2 equals 5."

    Fortunately, not only for America's core value of freedom of religious belief, but also for continued democracy in America, Judge Watson rejected Trump's extreme claim, not only to be the sole determiner of immigration policy but the sole arbiter of reality - what is true and what is false.

    The District Court's decision can be accessed at:
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.

    Roger's email address is

    Updated 03-18-2017 at 11:30 AM by ImmigrationLawBlogs

  4. Hawaii's case against Trump's travel ban, debunked. By Nolan Rappaport


    Hawaii has filed a lawsuit challenging President Donald Trump’s revised version of his Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on four main grounds:

    1. Hawaii claims the Order violates the prohibition against nationality-based discrimination in the Immigration and Nationality Act (INA).

    This argument is based on 8 U.S.C. 1152(a)(1)(A) of the INA, which prohibits discrimination on the basis of nationality. Hawaii claims that the EO violates this provision by prohibiting nationals of six countries from entry into the United States.

    But this interpretation takes the section out of context. It just applies to the per country levels for the annual allocation of immigrant visas to aliens coming to the United States to live here permanently.

    In the section titled “Numerical limitations on individual foreign states,” it states that “Except as specifically provided in paragraph (2) [family-sponsored and employment-based immigrants] and in sections 1101(a)(27) [special immigrant], 1151(b)(2)(A)(i) [aliens not subject to direct numerical limitations], and 1153 [allocation of immigrant visas] … no person shall … be discriminated against in the issuance of an immigrant visa because of the person's … nationality.”


    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.

    Updated 03-15-2017 at 08:35 AM by ImmigrationLawBlogs

  5. Prominent Rabbi and Minister Call Trump's Authoritarian New Muslim Ban, Which Recalls Earlier US Measures Against Jews, Unconstitutional. Roger Algase

    Leaders of two of America's most prominent religious institutions, Rabbi Burton L. Visotsky of the Jewish Theological Seminary and Rev Bertram Johnson of the Riverside Church (both in New York) have issued a joint statement condemning Donald Trump's revised ban on entry to the US by citizens of six overwhelmingly (in some cases, more than 99 percent) Muslim countries.

    Haaretz, one of Israel's leading newspapers, has also compared Trump's attacks on Muslims to the movement to keep Jewish immigrants out of the US in the late 19th and early 20th centuries.



    In their joint article appearing the The Hill on March 12, Rabbi Visotsky and Reverend Johnson pointed to a recent statement to Fox News by White House policy adviser Stephen Miller that the new six country Muslim ban order will "have the same basic policy outcome" as the previous order, which was stayed by the 9th Circuit and other federal courts.

    It would be very surprising if the federal courts, such as the US District Court in Hawaii which is now reviewing the new executive order, ignore or overlook Miller's statement in determining whether there is any material difference between the intent to discriminate against immigrants on the basis of religion in the new six country ban and the original, now revoked, seven country ban order.

    In their statement, Rabbi Visotsky and Reverend Johnson also show clearly, in words which arguably go right to the heart of the matter more directly than the opinions of the 9th Circuit and other federal courts have done to date, why religious discrimination against Muslim immigrants also adversely affects the Constitutional rights of Muslim American citizens to the free exercise of religion

    "This Muslim Ban 2.0 is the next in a series of actions by the adminstration that make Muslim Americans feel unwelcome in their own country."

    And it is not only the rights of Muslim Americans that are affected. As the two distinguished religious leaders also state:

    "That 'same basic policy outcome' violates the principles established in the Constitution. Our nation was founded on the freedom of religion and we must protect that freedom for all Americans today."

    In other words, Trrump's new six country Muslim ban, no less that the first one, is a blow against the religious freedom of all of us in America today, regardless of what religion we may or may not belong to or practice.

    As the grandchild of a another Jewish Rabbi, one who immigrated to America in the late 19th century, at a time of the same type of hostility toward Jewish immigrants that Donsld Trump and his top advisers are now showing toward Muslim immigrants, I can well understand and relate to the above statement by these two respected and courageous religious leaders.

    The above cited article in Haarerz well describes the atmosphere of hatred and exclusion which Jewish immigrants to America had to face in the time of my immigrant grandparents.

    This history, as well as America's history of prejudice and persecution toward Irish, Asian and, let us not forget, Mexican, as will as many other immigrant groups which were not from the "Nordic", Protestant, countries of Western Europe, is woven into the fabric of Trump's Muslim ban orders.

    With regard to Jewish immigrants specifically, Haaretz, in an article written prior to last year's election, stated:

    "The revered Senator Henry Cabot Lodge lobbied against Jewish immigration at the end of the 19th and start of the 20th centuries. He was the driving force behind the literacy test that was aimed at keeping Jews out.

    The Israeli newspaper then contrasts Lodge's "restraint" with regard to voicing his antagonism toward Jewish immigration with Trump's openness in identifying which ethnic or religious immigrant groups he is most opposed to:

    "But in a famous speech in 1897, Lodge refrained from specifying that it was the Jews who were bothering him the most; 120 years later, Trump has had no constraints in identifying Mexicans as murderers and pinpointing Muslims as problematic immigrants who had no intention of assimilating."

    In its decision blocking Trump's first, seven country Muslim immigration ban, the 9th Circuit recognized that the history of that order, including Trump's election campaign statements and proposals, was relevant to understanding that order's real intent, and that this history could mot and should not be overlooked in making a final determination concerning the January 27 order's legality and Constitutionality.

    One hopes that in the State of Hawaii's lawsuit against the replacement Muslim ban order, and in any other lawsuits that may be brought against that order, the courts will consider not only the immediate election campaign history of Trump's Muslim ban orders, but also their larger context of Trump's mass deportation executive orders targeting Latino, Asian and other minority immigrants.

    And in order to gain a full understanding of both Trump's Muslim ban orders and his mass deportation orders, America's history of persecuting minority immigrants, going back at least to the time of the mid 19th Century Know-Nothings, cannot be lightly passed over.

    David Bier, an immigration policy analyst at Cato Institute, writing in the New York Times on January 27, in response to Trump's original seven-country Muslim ban order, describes this history as follows:

    "...a long and shameful history in this country of barring immigrants based on where they came from. Starting in the 19th century, laws excluded all Chinese, almost all Japanese, then all Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a comprehensive 'national origins system' skewing immigration quotas to benefit Western Europeans and to exclude most Eastern Europeans, almost all Asians, and Africans.

    Mr. Trump appears to want to reinstate a new type of Asiatic barred zone by executive order."

    In effect, Trump, in his original seven Muslim country order, as in essence unchanged in his new six Muslim country ban order affecting some 100 million people, 99 percent (or close to it) of whom belong to that religion, is trying to bring back America's long and shameful history of barring immigrants from the US on the basis of race and religion.

    And Trump is not even trying to do this by Congressional action, which might at least provide a fig leaf of "legality" under the Plenary Power doctrine set forth by the Supreme Court in the dark and shameful time of the Chinese Exclusion laws.

    Instead, Trump is trying to wipe out 50 years of non-discriminatory immigration policies mandated by the landmark 1965 immigration reform law, which abolished the discriminatory 1924 national origin immigration quotas, by one -man executive fiat.

    Bier also alludes to the authoritarian nature of Trump's ban, which, according to mostt if not all news reports, was drawn up without any input, or even knowledge, by Congressional leaders in either party, or even Trump's own national security or foreign affairs experts:

    "...Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president to 'suspend the entry' of 'any class of aliens that he finds are detrimental to the interests of the United States."

    Bier continues:

    "But the president ignores the fact that Congress, the restricted this power in 1965, stating plainly that no person could be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence.'...

    Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between 'the issuance of a visa' and the 'entry' of the immigrant. But this is nonsense. Immigrants cannot be legally issued a visa if they are barred from entry. This all orders under the 1952 law [INA Section 212(f)] apply equally to entry and visa issuence, as his[January 27] order acknowledges."

    Bier continues:

    "While presidents have used their power dozens of times to keep out certain groups of foreigners under the 1952 law, no president has ever barred an entire nationality of immigrants without exception."

    Herein lies tha biggest danger of all in both Trump's original Muslim ban order and in is slightly scaled down, essentially cosmetically changed one, which, as quoted above, still seeks to achieve "the same basic policy outcome".

    The danger is that by claiming that he has the right to a vast expansion of the unilateral power to exclude immigrants that was actually conferred by Congress or has been used by any previous president, Trump is taking one more giant step toward imposing authoritarian, one man rule in America.

    This can only remind us of how another chief executive in a different country used a different set of enactments, aimed against the same ethnic/religious group that Senator Henry Cabot Lodge was so anxious to keep out of America, as a stepping stone to solidifying absolute power in his country just over 80 years ago.

    These enactments, promulgated in Germany in 1936, were known as the Nuremberg Laws.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants, without regard to ethnicity, religion or nationality, obtain work visas and green cards in this land of freedom and equal opportunity for all.

    Roger's email address is

    Updated 03-13-2017 at 09:04 AM by ImmigrationLawBlogs

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