Advertise on ILW
Connect to us
Make us Homepage
The leadingimmigration lawpublisher - over50000 pages offree
Copyright© 1995-ILW.COM,AmericanImmigration LLC.
(The following post has been revised and updated as of January 2, 2017 at 6:09 pm.)
The following will revise and replace my original post in this space, which originally appeared on December 30, 2016 and dealt with a different topic. It will also continue my comments on this topic which originally appeared in the Immigration Daily issue of November 14, 2016, shortly after the presidential election. See:
In a chilling interview with a progressive site known as alternet.org, which has nothing to do with the white supremacist "Alt-Right" movement, one of the Alt-Right's leaders, Jared Taylor (a former Harvard Summer School Japanese language instructor) outlined his vision for a whites-only US immigration policy for up to the next 50 years.
Taylor's proposals might not have sounded out of place 100 years ago, when laws excluding Chinese and other Asian immigrants were still very much in force; when non-white immigrants were barred from becoming naturalized Us citizens; when the notorious "Nordics"-only Johnson-Reed immigration act of 1924 was only a few years away from becoming law, and shortly before Adolf Hitler was to write in Mein Kampf that he had been favorably influenced by America's racial restrictions on immigration. See, The Guardian (February 5, 2004):
But Taylor's whites-only immigration views, as quoted below, might initially seem to be so wildly extreme in the diverse, multiracial America of the New Year 2017 that we are now entering as not even to be worth serious discussion.
At first glance, the idea that America could ever return to the whites-only immigration policies of a century ago would seem totally absurd. But would this really so impossible in the new administration?
As shown in a recent article published by Bannon's own news outlet (see below) not only Jared Taylor, who supported Donald Trump for president but was never part of his campaign, but Stephen Bannon, the head of Breitbart News, Trump's campaign manager and Trump's pick for senior presidential policy adviser, are very much opposed to the 1965 Hart-Celler immigration reform law which abolished the Nordics-only "national origin" immigration quoted of the 1924 law.
Breitbart News, in a September 3, 2016 article authored by former Republican Congressman and long time immigration opponent Tom Tancredo, has in effect advocated bringing back the 1924 racial immigration restrictions. See:
The following are Jared Taylor's proposals in his own words, according to his interview with alternet.org.
1) "Put a hold on all immigration for the next 5, 10, maybe 50 years...Let the country re-establish itself as a nation, and, at the same time, we could give a preference to Europeans."
2) "There are about 200,000 people who leave the country every year, if they were replaced by 200,000 people, some from South Africa, for example, south African whites, that would help us reach a new equilibrium in terms of what the nation should be about."
3) "Diversity is a terrible weakness for the United States...Diversity means that we still have race riots. Diversity means that every attempt to distribute resources is a shoving game.
Have the Hispanics got enough? Have the blacks got enough have the Asians got enough? Whether it's from the Harvard entering class to the nominations for the Oscars."
4) "In 1945, the United States had 125 million people. Nobody thought the country was overpopulated. Now we have 325 [million]. Where do we stop?"
5) "Until 1965, the United States had an immigration policy that was clearly designed to keep the country majority white. There was nothing wrong with that.
[If someone had told the signers of that law that in 70 years, white Americans would become the minority] "no one would have voted for that law."
With regard to Taylor's last quoted statement, namely that the Hart-Celler 1965 immigration reform law might not have been passed if it had been clear at the time how much the ethnic makeup of America would be changed by it, Taylor is, most likely, quite right.
But does that mean that it was a bad law or that today's diverse America is a worse country than the Northern European white Protestants immigration only country (as white Eastern European Jewish immigrants and Southern European Catholic ones were also barred by the pre-1965 immigration laws - not only African, Asian and Middle Eastern immigrants) that existed prior to 1965?
Certainly, discussing the views of an Alt-Right extremist such as Jared Taylor could, arguably, raise questions of relevance, since fortunately, he is not part of or ever likely to be included in the new administration, and cannot legitimately claim to speak for the incoming president.
But are the views of Jared Taylor and other Alt-Right extremists like him so far different from those which have been expressed by a media outlet controlled by someone who is expected to have a very influential role in the coming Donald J. Trump administration, or even from statements that were made during the campaign by the president-elect himself?
When we look at Tancredo's tirade against the 1965 immigration reform law, as published in and with the obvious approval Steve Bannon's Breitbart News, or at statements that Trump made himself during his August 31 immigration address in Phoenix about the need to revisit "decades old", "outmoded" immigration laws (which one could he have, just possibly, had in mind?), the difference between official Trump administration views on immigration and the avowedly white supremacist immigration platform of Alt-Right spokespersons such as Jared Taylor might not be as big as those of us who care about the survival of America's current, post 1965, officially race neutral immigration system might hope.
It will be important to monitor the influence, if any, that the white nationalist immigration agenda may have on the incoming Trump administration in 2017 and the years to come.
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 countries of the world, and without regard to ethnic background, religion or national origin, obtain work visas and green cards. Roger's email address is email@example.com
Updated 01-03-2017 at 02:43 AM by ImmigrationLawBlogs
The following post has been updated and revised as of January 14, 2017:
This post will continue my comments concerning the landmark 1972 US Supreme Court Decision in Kleindienst v. Mandel, 408 U.S. 753, which dealt with the question whether the constitutional rights of American citizens, not just immigrants, can be infringed by denying a foreign citizen or citizens admission to the US solely because of their political or religious beliefs.
As I mentioned in my previous comment on this landmark case (see Immigration Daily, December 29, 2016), the issue of protecting the First Amendment free speech rights of American citizens, which the Court majority acknowledged might be infringed by denying a US visitor visa to a pro-communist non-US citizen writer because of his political views, appeared to be headed on a collision course with the "plenary power" doctrine.
As is widely known, this doctrine, which holds that no non-US citizen has a constitutional right to enter the US, had its origins in the time of the notorious late 19th century Chinese exclusion laws, and was, very arguably, developed in order to support this overtly racial goal.
The following is how Justice Blackmun, writing for the court majority in Mandel, attempted to resolve this apparent conflict between "plenary power" of the executive and legislative branches of the federal government to exclude Mr. Mandel, and the what Justice Blackmun called the "constitutional interests" of US citizen academics in "sustained, face-to-face debate, discussion and questioning" which Mandel's admission to the United States would have have made possible but which were prevented by the government's decision to deny him a visitor visa.
After citing the history of the plenary power doctrine, beginning with the 1889 Chinese Exclusion Case and the related, equally infamous (my term, not Justice Blackmun's) 1893 case of Fong Yue Ting v. U.S. (citations omitted), Justice Blackmun cited a number of more recent Supreme Court decisions reaffirming the plenary power doctrine.
Then, (metaphorically speaking), Justice Blackmun called in Justice Felix Frankfurter for assistance:
"Mr. Justice Frankfurter ably articulated this history [of the plenary power doctrine] in Galvan v. Press [citation omitted], 1954, a deportation case, and we can do no better. After suggesting [page number omitted] that 'much could be said for the view' that due process places some limits on congressional power in this area 'were we writing on a clean slate,' he continued:
'But the slate is not clean. As to the extent of the power of Congress under review, [over immigration] there is not merely "a page of history"...but a whole volume.' In the enforcement of these policies, the Executive branch of the government must respect the procedural safeguards of due process...But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government...'
Justice Blackmun continues to quote from Justice Frankfurter's opinion in the above 1954 deportation case as follows:
"'We are not prepared to deem ourselves wiser or more sensitive than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens...'"
With all due respect to Justice Frankfurter, who is universally recognized as one of the greatest legal minds who has ever sat on the United States Supreme Court, one has to ask which Justices he had in mind when he referred to "those who have been most zealous in protecting civil liberties under the Constitution".
Was he talking about the Supreme Court Justices who issued the infamous Chinese Exclusion Case and Fong Yue Ting decisions, with all their overt racism and assumptions that Chinese immigrants were by nature inferior to native born white Americans? It would seem so, because, as seen above, those are the very cases that Justice Frankfurter (quite accurately) cited as the basis of the doctrine of plenary power over immigration.
If this is what Justice Frankfurter had meant by writing on a slate that was far from "clean", one would certainly have to agree.
The drastic consequences of holding that the "plenary power" over immigration doctrine, which is found nowhere in the Constitution, but was entirely a judicial creation stemming from one of the darkest time in all of America's legal history, in effect trumps (no pun intended, of course) the Constitutional guarantees of due process which are fundamental to America's democracy were illustrated by Justice Frankfurter himself, discussing the facts in the Gavin deportation case referred to above (347 U.S. 522):
"The power of Congress over the admission of aliens and the right to remain is necessarily very broad...Nevertheless, considering what it means to deport an alien who has legally become part of the American community, and the extent to which, since he is a 'person', an alien has the same protection for his his life, liberty and property under the Due Process Clause as is afforded to a citizen, deportation without permitting the the alien to prove that he was unaware of the Communist Party's advocacy of violence strikes one with a sense of harsh incongruity. If due process bars Congress from enactments that shock the sense of fair play - which is the essence of due process - one is entitled to ask whether it is not beyond the power of Congress to deport an alien who was duped into joining the Communist Party, particularly when his conduct antedated the enactment of the legislation under which his conduct is sought."
(One has to ask what Justice Frankfurter would have said about IIRIRA's provision, enacted four decades after the Gavin decision, automatically revoking permanent resident status and mandating deportation for ex post facto conduct, namely commission of an "aggravated felony", which can involve actions far less serious than advocating the overthrow of the government by force and violence.)
Returning to Justice Blackmun's majority opinion in Mandel, one also has to ask whether putting the "plenary power" doctrine ahead of the Bill of Rights guarantees in the Constitution, especially (as in Mandel), where the Court also recognized that US citizens, not only "aliens", may have a "constitutional interest" in deciding whether a particular foreign citizen should be admitted to the United States, makes any sense.
Since, as shown above, the "plenary power" doctrine had its origins in attempting to exclude immigrants from the US solely because of their race, and, as is evident from both the Gavin and Mandel cases, it was later used as an instrument of suppression against unpopular political opinions, both of which are in clear violation of the spirit, if not the letter, of our Constitution, is there any justification for using this doctrine against immigrants, and by extension their US citizen co-religionists, who practice a faith which is now as unpopular with many of our political leaders and much of the US public as having Asian ancestry was in America a century or more ago, or certain left wing political views were fifty or more years ago?
For an answer to this question, we should look at the dissenting opinions in that case, which I will do below.
To be continued.
Attorney at Law
Updated 01-22-2017 at 10:10 PM by ImmigrationLawBlogs
Few people would argue with the proposition that one of the most important and widely discussed immigration proposals to come out of the entire presidential election campaign and post election transition period is the president-elect's announcement that he will either ban or drastically restrict the entry of Muslim immigrants to the United States.
As almost everyone in America knows, the original version of this plan, first announced a year ago, in December 2015, was a world-wide ban based solely on religious belief. Subsequently, beginning with his August 31, 2016 Phoenix Arizona immigration address, Trump suggested that his original world-wide Muslim immigration ban, based on religion alone, might be transformed into an ideological ban, based on "extreme vetting" of applicants for admission from certain mainly Muslim countries.
Here is a strictly hypothetical example of how such "extreme vetting", to see if a given Muslim would-be immigrant or visitor supports "American values", might work:
(As background, while I cannot claim to be a specialist on this subject, I start with the proposition that Muslim domestic relations law assigns different, though not necessarily superior or inferior, roles to men and women. I also assume that Islamic law, in common with fundamentalist Christianity and Orthodox Judaism, strictly forbids same sex relationships.)
"Do you believe that women should have identical legal rights to men in all aspects of life? Do you support same sex marriage? Oh, you don't believe or support either of these because you are a Muslim?
Well, a lot of us non-Muslims here in America don't believe in equal pay (not to mention reproductive rights) for women either, and not all Americans, including but not limited to fundamentalist Christians, are comfortable yet with same sex marriage, as our Vice-President, Mr. Pence, showed while he was governor of Indiana; but, hey, if your sincerely held Muslim religious beliefs are opposed to the above "American values", sorry about that - no matter how much you are against terror or religious violence in any form, as we understand to be the case with the overwhelming majority of the world's Muslims, we still don't want you in America - Visa Denied.")
Since then, Trump has been less than precise about which plan he intends to follow, if either, so it is still not clear whether Ovid's dictum of 2,000 years ago at the beginning of his great epic poem Metamorphoses:
in nova fert animus mutatas dicere formas/corpora
("I will tell about transformations into new bodies.")
will apply to the president-elect's original proposal of a year ago.
What is clear, however, is that whether the proposed Muslim immigrant ban is based on religion, or has been transformed into a ban based on political belief or lack of adherence to "American values" - as defined by Donald Trump - (or, as may be more likely, some combination of the above), questions will inevitably come up about the effect that banning or restricting Muslim immigrants because of their religion and/or beliefs will have on the First Amendment rights of their US citizen co-religionists to freedom of speech and freedom of religion.
Already, there are far too many, and far too dangerous, signs that banning or restricting entry to the US by Muslim immigrants could have, and indeed are intended to have, a chilling effect on the free exercise of religion or the free expression of political views by Muslim American citizens
These are, for example, expressed in the open letter to the president-elect signed by 42 Constitutional law professors from universities all over America described in my December 27, 2016, Immigration Daily comment.
As shown in the law professors' letter, the new administration may be considering, not merely a ban on Muslim immigrants, but also restrictions on the civil rights and liberties of Muslim US citizens, such as setting up a registry for Muslim Americans, closing or conducting surveillance of mosques, and, most chilling of all, sending Muslim US citizens to "relocation" camps based purely on their religious affiliation as was done, to America's eternal disgrace, with Japanese-American US citizens based on race during WW2.
Therefore, it is helpful to re-examine what is arguably the leading US Supreme Court decision on all of America's modern legal history concerning the interplay between rules concerning the exclusion of immigrants because of their beliefs, and the First Amendment rights of US citizens. This case is Kleindienst v. Mandel, 408 U.S. 753 (Supreme Court, 1972). which I will proceed to discuss below.
The facts in Mandel were as follows:
Ernest Mandel, who sought admission to the US as a visitor, was a citizen of Belgium and a left wing writer who, while not a member of the Communist party, openly described himself as a "revolutionary Marxist" who adhered to the doctrines of world communism.
He applied for a visa in order to give a series of lectures and attend conferences in the US pursuant to the invitation of various university or student organizations. However, he was found to be ineligible for a visa under a statute making any non-US citizen who writes or publishes the doctrines of world communism or in favor of making the Unites States into a totalitarian dictatorship ineligible for admission.
Mandel did not challenge the fact that this statute applied to him. However, the statute also provided for the possibility of a waiver, and the US Department of State had recommended a waiver to the Attorney General (INS).
However, the Attorney General refused to grant the waiver. Mandel then brought an action in a federal district court, joined by several US citizen university professors, claiming that the statutes on which his visa denial were based were unconstitutional denials of their First Amendment rights to freedom of speech and their Fifth Amendment rights to due process and equal protection of the law because they prevented the US citizen professors from meeting and exchanging views with Mandel in person.
The District Court agreed with the plaintiffs and granted their request for an injunction ordering the government to admit Mandel to the United States.
On appeal by the United States, the first issue that the Supreme Court dealt with was whether there was such a thing as a First Amendment right to "receive information and ideas" that could be affected by denial of an opportunity for the USC plaintiffs to meet with Mandel personally (instead of hearing his views by transatlantic phone, which is what actually took place instead).
Justice Blackmun, writing for the majority, suggested that that such a right might very well have been involved in that case:
"...we are loath to hold on this record that existence of other alternatives [to meeting in person] extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access".
The fact that the Supreme Court recognized that, at least in some instances, US citizens have constitutional rights which could be infringed by denying admission to the US to a non-US citizen, would appear to put these rights on a collision course with the plenary power doctrine, which puts admission of non-US citizens to the United States beyond the control of the judicial branch, and makes this subject to the decisions of the "political branches", namely Congress and the Executive, only.
How the Supreme Court resolved this conflict in the Mandel case, and what implications this resolution might have for Muslim (or even non-Muslim) US citizens who might be in danger of losing even more vital and important constitutional rights, according to plans reportedly under consideration by the new administration, such as the freedom to dissent from or protest administration immigration policies, the freedom to attend their own places for worship, or even their freedom from arbitrary arrest and detention in concentration camp-style "relocation centers" without any charges or evidence of individual wrongdoing, will be examined in Part 2 of this three-part series.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards for more than 35 years. Roger's email address is firstname.lastname@example.org
Updated 12-30-2016 at 04:42 AM by ImmigrationLawBlogs
The following will update my comments in ilw.com which were originally posted on June 19, 2016 under the title: Would Muslim Immigrant Ban Violate Religious Freedom of US Citizens?
In the six months since that comment appeared, Donald Trump has been, of course, elected as the next president of the United States (with almost 3 million fewer popular votes than his opponent) and he has appointed two of America's leading detractors of the Muslim religion, General Michael Flynn and security "expert" Frank Gaffney Jr. as his National Security Advisor and transition team member, respectively.
Trump has recently suggested that his original proposal, announced one year ago, in December 2015, to ban all Muslim immigration to the US may (or may not) have "morphed" into a plan to conduct "extreme vetting" for immigrants or visitors from Muslim countries only, as in his August 31 immigration address, but this still singles out Muslim immigrants for suspicion and antagonism purely because of their religion, without any actual evidence of possible terrorist affiliations.
Trump's proposed total (or partial, whichever it may turn out to be) ban on Muslim immigrants also, to say the very least, casts suspicion on American citizen Muslims as well who seek nothing more than to exercise their right to freedom of religion, as guaranteed by the First Amendment to the US Constitution. To put it very mildly, in Trump's stated view, the line between the alleged dangers posed by Muslim immigrants and Muslim US citizens is blurred.
This is what Trump said to a reporter at a campaign event in Iowa, according to the Huffington Post, when Trump was asked if there should be a database system that tracks Muslims here in America:
"There should be a lot of systems, beyond databases...We should have a lot of systems, and today you can do it...
I would certainly implement that, absolutely."
Trump's recently appointed National Security Adviser, Michael Flynn, blurred the distinction between Muslim immigrants and Muslim US citizens even further, if anything, in his following remark, made this past August:
"Islam is a political ideology. It is a political ideology. It definitely higes behind this notion of it being a religion...
It's like cancer.,,And it's like a malignant cancer, though, in this case. It has metastasized."
But the above two statements would seem to be models of religious tolerance compared to former national security specialist turned anti-Muslim advocate and Trump transition team member Frank Gaffney Jr.
Gaffney is quoted by the Southern Povery Law Center as making the following statement in 2011:
"So pervasive is the MB's [Muslim Brotherhood's] 'civilization jihad' within the U.S. government and civil institutions institutions that a serious, sustained and rigorous investigation of the phenomenon by the legislative branch is in order. To that end, we need to establish a new and improved counterpart to the Cold War era's HUAC [House un-American Activities Committee] and charge it with rooting out anti-American - and anti-constitutional - activities that constitute an even more insidious peril than those pursued by communist Fifth Columnists fifty years ago."
Since Gaffney mentions the Constitution, what does this document actually have to say about freedom of religion? Is this a doctrine that applies to non-Muslims only? Or is it one that protects all religions, even ones that might not be popular with our incoming president, some of his advisers, or even a certain segment of the American public?
In this regard, an October 1, 2012 Legal Memorandum by Jay Alan Sekulow published by the Heritage Foundation, not known as a left wing or pro-immigrant organization, entitled:
Religious Liberty and Expression Under Attack: Restoring America's First Freedoms
is of a great deal of interest, even though it does not mention Islam or attitudes toward the Muslim religion specifically.
This document, one of the best summaries of what religious freedom really means in America (hint: not what Mssrs. Flynn, Gaffney and Trump appear to think it means), and which includes quotes about freedom of religion by George Washington, Thomas Jefferson and James Madison which some of the leaders in our new administration would no doubt find interesting reading, will be discussed in Part 2 of this series. The link is:
Attorney at Law
Updated 12-28-2016 at 03:12 PM by ImmigrationLawBlogs
Donald Trump is not even the new president yet, and already there is talk about the possibility of his being impeached by Congress over his immigration proposals.
Surprisingly, however, this suggestion is not only coming from Trump's opponents, some of whom are understandably concerned about the effect that his proposals for mass deportation of up to 3 million so-called "criminal aliens" in the United States (a much greater number than in all likelihood actually exist, according to the Migration Policy Institute), and his call for a ban on Muslim immigration (or "extreme vetting" of immigrants from Muslim countries, which arguably amounts to the same thing) could have on the constitutional rights and freedoms of American citizens as well as immigrants - see
Talk of possible impeachment over Trump's immigration policies is also coming from some of his own most ardent supporters, including Breitbart News, headed by none other than Trump's own pick for Senior Presidential advisor, Stephen Bannon.
In a December 17 Breitbart News article by former Republican Congressman Tom Tancredo, a long time supporter of ultra-harsh immigration enforcement policies, who is also critical of the 1965 immigration reform law that abolished 80 years of whites-only immigration policies that were embedded in our immigration laws prior to that time (see my December 25 ilw.com post), Tancredo suggests that Trump could be impeached by a Republican-controlled Congress for allegedly being "too strict" about immigration enforcement.
Tancredo writes in his above Breitbart News article as follows:
"...Congress's Republican leadership is busy doubling down on dissonance and disloyalty."
He gives two immigration-related examples:
" * Senator Lindsey Graham is joining Democrats in sponsoring new legislation to protect the "Dreamers" from deportation after their unlawfully granted legal status and work permits expire.
* Senator Susan Collins will oppose any restrictions on Muslim refugees, no matter how weak and inadequate the vetting to weed out jihadists."
Tancredo's attack on Republicans who, allegedly, might fail to line up in lockstep with Trump on immigration then moves over to the House:
"And then, on the House side, we have the naysayer in chief, speaker Paul Ryan...who has vowed to obstruct Trump's most important and most popular campaign promise - and end to open borders and vigorous immigration law enforcement."
Tancredo: Would Republican Establishment Use Impeachment to Block Trump Agenda?
Tancredo does not mention how the Republicans in Congress might actually go about impeaching Trump, or what grounds they might conceivably use. But here is one suggestion:
If Trump's plan is to accuse anyone who disagrees with him about immigration (or any other issue) of being, in Tancredo's above Breitbart News article's phrase: "disloyal" [to the "presidency", to paraphrase Richard Nixon, or to America, as Senator Joseph McCarthy infamously accused his opponents of being in the 1950's]. then there could indeed be need for a serious discussion of possible grounds for impeachment.
We have in this country something known as the First Amendment to the Constitution of the United States of America, which protects freedom of speech and other expressions of political opinion. When a president take office, he (or she) is required to take an oath to protect and defend that Constitution.
Violating that oath could be legitimate grounds for impeachment. If the head of Breitbart News, who happens to be the incoming president's designated Senior Advisor, is so worried that his new boss might be impeached - by his own party - he might do well to advise the president that suggesting that anyone who disagrees with him is "disloyal" could raise problems about commitment to free speech that might, conceivably one day be grounds for impeachment.
This is not to suggest that this is the only ground on which the new president might be subject to being prevented from carrying out his immigration agenda through impeachment.
There could others, including something known as Trump University, and a landmark, critically important Supreme Court decision: Kleindienst v. Mandel (1972) dealing with how the Constitutional rights of US citizens could be adversely affected by excluding certain classes of immigrants from entry to the United States, which will be discussed in forthcoming installments in this series.
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants obtain work visas and green cards for more than 35 years.
Roger's email address is email@example.com
Updated 12-27-2016 at 12:50 PM by ImmigrationLawBlogs